Warranties and Guarantees The Contractor warrants and guarantees that:
(a) all information provided, and all representations made by Contractor as a part of the Proposal Checklist or application, if any, submitted to NYSERDA in order to obtain this Agreement were, to the best of Contractor’s knowledge, complete, true and accurate when provided or made;
(b) as of the Effective Date, it is financially and technically qualified to perform the Work, and is qualified to do business and is in good standing in all jurisdictions necessary for Contractor to perform its obligations under this Agreement;
(c) it is familiar with and will comply with all general and special Federal, State, municipal and local laws, ordinances and regulations, if any, that may in any way affect the performance of this Agreement;
(d) the design, supervision and workmanship furnished with respect to performance of the Work shall be in accordance with sound and currently accepted scientific standards and engineering practices;
(e) all materials, equipment and workmanship furnished by it and by Subcontractors in performance of the Work or any portion thereof shall be free of defects in design, material and workmanship, and all such materials and equipment shall be of first-class quality, shall conform with all applicable codes, specifications, standards and ordinances and shall have service lives and maintenance characteristics suitable for their intended purposes in accordance with sound and currently accepted scientific standards and engineering practices;
(f) neither the Contractor nor any of its employees, agents, representatives or servants has actual knowledge of any patent issued under the laws of the United States or any other matter which could constitute a basis for any claim that the performance of the Work or any part thereof infringes any patent or otherwise interferes with any other right of any Person;
(g) to the best of Contractor’s knowledge, there are no existing undisclosed or threatened legal actions, claims, or encumbrances, or liabilities that may adversely affect the Work or NYSERDA’s rights hereunder;
Disclaimer of Implied Warranties The warranty set forth herein is in lieu of, and ‘Reseller’ expressly disclaims all other product warranties of any kind whatsoever whether express, implied, statutory, arising by course of dealing or performance, custom, usage in the trade or otherwise, any warranty of merchantability, or fitness for a particular purpose, and in any event no such implied warranty has applicability beyond the time period covered by this warranty.
Warranties and Indemnity 5.1 Subject to Clause 5.10, [**] warrant to the Buyer in the terms set out in Part 1 of Schedule 3 and Part 2 of Schedule 4 and not withstanding any other provision of this Agreement, any reference in any Warranty to a Seller shall be to the Sellers.
5.2 The Sellers are aware and acknowledge that the Buyer has entered into this Agreement in reliance on the Warranties which have induced it to enter into this Agreement.
5.3 The Warranties are given subject only to the matters fairly disclosed in the Disclosure Letter. The rights and remedies of the Buyer in respect of any breach of the Warranties shall not be affected by Completion.
5.4 Each of the Warranties set out in each paragraph of Part 1 of Schedule 3 are separate and independent and unless otherwise expressly provided shall not be limited by reference to any other Warranty or anything in this Agreement.
5.5 If there is a breach of a Warranty and:
5.5.1 the value of an asset of the Company or the Subsidiary Undertaking is or becomes less than the value would have been had the breach not occurred; or
5.5.2 the Company and/or the Subsidiary Undertaking is/are subject to or incur(s) a liability or an increase in a liability which it would not have been subject to or would not have incurred had the breach not occurred, [**] pay the Buyer on demand (at the Buyer’s option) an amount equal to the relevant Due Proportion of the reduction caused in the value of the Shares.
5.6 [**] indemnify the Buyer against the relevant Due Proportion of all reasonable and proper costs which the Buyer may incur whether before or after the start of an action in connection with:
5.6.1 the settlement of a claim against the Sellers in respect of a breach or an alleged breach of a Warranty or the enforcement of a settlement; and
5.6.2 legal proceedings against the Sellers in respect of a breach or an alleged breach of a Warranty in which judgment is given for the Buyer or the enforcement of the judgment.
5.7 [**] the Buyer against the relevant Due Proportion of all reasonable and proper costs which the Buyer may incur in relation to any and all losses suffered by the Company following Completion as a result of any variation or error in the figures set out in Schedule 8.
5.8 If in respect of or in connection with any breach of any of the Warranties or any indemnity claim under this Clause 5 any sum payable to the Buyer by the Sellers by way of compensation is subject to Taxation, then such further amount shall be paid to the Buyer by the Sellers so as to secure that the net amount received by the Buyer is the same as it would have been were the payment not subject to Taxation.
5.9 Each of the Sellers waives and may not enforce any rights which he/she may have in respect of a misrepresentation, inaccuracy or omission in or from information or advice supplied or given by the Company and/or the Subsidiary Undertaking or any present or former officer or employee of the Company and/or the Subsidiary Undertaking for the purpose of assisting them in relation to any term of this Agreement, the making of a representation, the giving of a warranty or the preparation of the Disclosure Letter.
5.10 Part 2 of Schedule 3 (Limitations on Sellers' liability) shall apply to limit or exclude, in accordance with its terms, any liability of the Sellers in respect of a Warranty Claim, provided that no provision of that schedule shall apply to limit or exclude any such liability arising out of any fraudulent act or omission by or on behalf of the Sellers.
5.11 Any amount paid by or on behalf of the Sellers in respect of a breach of the Warranties and/or under a Warranty Claim made under Part 1 of Schedule 3 shall be deemed to reduce the Consideration and be a repayment of the Consideration to the extent of that amount.
