Last Update: Nov2020v1
These Terms of Service for Wedge System Pilot Program (“ServiceTerms”) govern the Pilot Program for the Wedge System described in the Addendum to Rental Agreement for Wedge System Pilot Program executed by and between a customer (“Customer”) and United Rentals of Canada, Inc. (“United”). Capitalized terms used but not defined in these Service Terms shall have the meaning assigned to them in the Addendum or the Rental Agreement, as applicable. Each party is referred to herein individually as a “Party” and collectively as the “Parties.”
“Computer” means a single computer system (including smart device, laptop and desktop) without restriction to brand, type, memory capacity, storage capacity, processors, processor cores or any other attribute, that is capable of accessing and operating the Smart Heater Software. A computer may be a separate physical device or may be a virtual device operating as a portion of a separate physical device.
“Confidential Information” of a Party means information about its business affairs, products, customers, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, disclosed to the other Party, whether orally or in written, electronic, or other form or media, whether or not marked, designated or otherwise identified as “confidential.” Confidential Information of United includes, without limitation, the Smart Heater Software, Wedge SystemDocumentation, Raw Data, information about the performance of the Wedge System, and the terms of the Addendum. Confidential Information does not include information that can be shown through documentary evidence is: (a) in the public domain through no fault of the receiving Party; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party not known to the receiving Party to be bound by an obligation of confidentiality to the disclosing Party with respect to such Confidential Information; or (d) independently developed by the receiving Party without use of the information of the disclosing Party.
“CustomerSystem” means Customer’s programs, network, hardware, main power system, and software including any modifications, additions or replacements thereto needed to access the Smart Heater Software and participate in the Pilot Program.
“Dependent Items” means any Computer, hardware, operating system, database application, web server application, components, equipment or third-party software on which or with which the Smart Heater Software is intended to run or interoperate. The Dependent Items are defined within the Documentation made available to Customer.
“Documentation” means standard documentation containing instructions for the installation, operation and/or use of the Smart Heater Software provided in printed or electronic form to Customer by United.
“Intellectual Property Rights” means all registered and unregistered rights under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws.
a. Equipment Delivery. At a date and time mutually agreeable to the Parties and following United’s acceptance of a written request from Customer designating the type and number of Wedge System components to be delivered, United shall deliver and install the Wedge System components, including any Smart Heater Control Boxes on one or more Heaters already in place at the Worksite (as defined below) and make available to Customer the Smart Heater Software, via web address, and the Wedge System Documentation, via electronic download, if applicable. Each Wedge System shall be installed and used only at the one (1) worksite to which it is delivered, and such location must be a mutually agreeable site in as identified in the Addendum (the “Worksite”).
b. Inspection; Acknowledgment. Customer shall inspect the Wedge System components, including, if applicable, any Smart Heater Control Boxes (including the connections to the Heaters on which the Smart Heater Control Boxes are installed) and test the Wedge System to satisfy itself as to the condition, quality, suitability and fitness of the Wedge System for Customer's purposes. The Wedge System will be deemed accepted upon the first to occur of: Customer’s acceptance of the Wedge System or failure to notify United of any apparent defects within ten (10) days after delivery and installation (at which point the Wedge System is deemed accepted). Customer acknowledges and agrees that: (i) it is receiving the Smart Heater Software as part of a pilot test of the Wedge System, including the Remote Operations, (ii) the Wedge System, including the Remote Operations, is in a development stage with initial and experimental functionality only; (iii) the Wedge System, including the Remote Operations, may not operate properly or be in final form or fully functional; (iv) the Wedge System may contain errors, design flaws or other problems; and (v) United has the right unilaterally to abandon development of the Wedge System, including the Remote Operations, at any time at its sole discretion without any obligation or liability to Customer. With knowledge of these risks, Customer wishes to assume liability for the same and proceed with the Pilot Program. Customer’s sole remedy for any defects in the Wedge System shall be to return the Wedge System components to United and to delete the Smart Heater Software and the Wedge System Documentation from Customer’s systems, and United’s sole obligation to Customer shall be to accept the return of the Wedge System.
c. Operation of the Wedge System. Customer shall ensure that the Wedge System is operated only by employees of Customer (or, if Customer is an individual, only by Customer) who have received training and instruction from United in the safe operation of the Wedge System (“Authorized Operators”). The Wedge System carries with it operational risk, including risk that is inherent in the Remote Operations. Customer shall ensure that each Authorized Operator takes all training and reviews and observes all of the Wedge System Documentation and warnings relating to the operation of the Wedge System and operates the Wedge System in accordance with all such Wedge System Documentation, training and warnings and only if such Wedge System Documentation, training and warnings are clearly understood. The storage, transportation, repair and maintenance of the Wedge System must be done only in accordance with the Wedge System Documentation and the accompanying training and warnings. Customer acknowledges that the Wedge System is certified for indoor use only but may be used outdoors in connection with the requirements of Section 6(b)(ii) of these Service Terms.
d. Inherent Risks; Warnings; Appropriate Signage.Customer acknowledges, agrees, and understands that there are risks inherent in the use of the Wedge System and with the Pilot Program. These risks include, but are not limited to, the risks referenced in the Wedge System Documentation, which are incorporated by reference as though fully set forth herein, as well as the following: (i) the Heater may spontaneously blast dangerously hot air at any time without notice; (ii) the Heater may emit dangerous fumes; (iii) dangerous voltage and risk of electric shock from the Heater and the Smart Heater Control Box; (iv) the Heater may automatically shut off at any time without notice, including, without limitation, if it loses power; (v) burns, other serious injury, and death may occur if a person enters the clearance space or is near the Heater; and (vi) explosions, fire, and other property damage may occur if objects or combustible materials including gases are in the clearance space or near the Heater or the Smart Heater Control Box. Customer shall ensure that each Authorized Operator: (A) takes all training; (B) reviews and observes all of the Wedge System Documentation, including all warnings relating to the operation of the Wedge System; and (C) operates the Wedge System in accordance with all such Wedge System Documentation, training and warnings. Customer shall also be responsible for and agrees to post United-provided warning signs necessary to ensure that Authorized Operators and other persons are aware of the risks inherent in the use of the Wedge System and the warnings in this Section for as long as any of the Wedge System components are at the Worksite. Customer shall not operate the Wedge System without ensuring that appropriate warning signs are posted.
e. Maintenance and Repair.Customer shall ensure that no one other than United alters or modifies any Wedge System components. No one may service, repair, or open any Wedge System components, other than qualified personnel authorized in writing by United in connection with maintenance services authorized by United in writing; except that Customer may use any “reset” button on a Smart Heater Control Box to reset the Smart Heater Control Box. United is under no obligation to inspect the Wedge System or the Heater but United may, at its sole discretion, inspect any component of the Wedge System (and in the case of a Smart Heater Control Box, if applicable, the Heater to which it is connected) at any time, wherever located. Customer represents and warrants that Customer has the authority to grant, and Customer hereby grants, United and its agents the right to enter the Worksite for the purposes set forth herein.
a. Software License Grant. Subject to these Service Terms, the Addendum and the Terms and Conditions, and to the extent Customer elects to rent the Smart Heater System, United grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access the Smart Heater Software on Customer’s Computers or Customer’s employee’s personal Computers for use and testing in combination with the Smart Heater System located at the Worksite during the Term.
b. Raw Data. To the extent Customer elects to rent the Smart Heater System, Customer acknowledges that United will obtain incidental information about the Worksite and the functionality of the Smart Heater System at the Worksite in connection with Customer’s use of the Smart Heater System (“Raw Data”). United shall retain ownership of all Raw Data and all data, concepts, products, services, software, intellectual property and other rights arising from or related to United’s or its affiliates’ use, analysis, research and development of Raw Data. Notwithstanding any other provision of these Service Terms, the Addendum or the Terms and Conditions, United may use Raw Data to develop, enhance, modify and improve technologies, tools, methodologies, services and offerings, and/or for development or performance of data analysis or other insight generation.
a. Technical Support. United agrees to provide reasonable technical and administrative support to Customer during the Term at no charge; provided, however, that support shall extend only to the functionality of the Wedge System and does not substitute United for Customer’s internal IT capabilities. United will use commercially reasonable efforts to resolve basic issues relating to the Wedge System, including usage, how-to questions and quality problems. This support services described in this Section 4(a) constitute “Technical Support,” which Customer acknowledges and agrees may be provided by subcontractors, affiliates, and/or vendors of United.
b. Training. United will provide Customer employees (or, if Customer is an individual, Customer) with training regarding the Wedge System at a time and date mutually agreeable to the Parties. This training may be provided via telephone or Web conference, at the election of Customer; provided, however, that any requested on-site training shall be subject to fees and reimbursement for reasonable travel, accommodation and other costs to be paid by Customer.
a.Availability of Licensed Software. United makes no representations or warranties as to the availability of the Smart Heater Software, which may be subject to periods of unplanned unavailability during the Pilot, if applicable.
b.System Control. Except as otherwise expressly provided in these Service Terms, as between the Parties, Customer has and will retain sole control over the operation and management of, and all access to and use of, the Wedge System , and sole responsibility for all access to and use of the Wedge System by any person by or through the Customer System (if applicable)or any other means controlled by Customer.
c.Customer Obligations. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair the Customer System on or through which the Wedge System is accessed or used, if applicable; (b) provide United personnel with such access to Customer's premises and Customer Systems as is reasonably necessary for United to perform under these Service Terms; (c) provide sufficient notice to United of any anticipated downtime of the Customer System; (d) provide all cooperation and assistance as United may reasonably request to enable United to exercise its rights and perform its obligations under and in connection with these Service Terms; (e) to the extent that Customer elects to rent the Smart Heater System, to perform active monitoring of the Smart Heater System with no less care and diligence than a reasonably prudent operator of commercial heaters would perform with respect to heaters without Remote Operations and not rely solely on the Pilot Program for monitoring of the Heaters; and (f) notify United immediately if it learns of any unauthorized use or breach of security of the Wedge System.
a. Software Restrictions. To the extent Customer elects to rent the Smart Heater System, Customer shall not, and shall not permit any other person to, access or use the Smart Heater System except as expressly permitted by these Service Terms. For purpose of clarity and without limiting the generality of the foregoing, Customer shall not, except as these Service Terms expressly permit: (i) copy, modify, or create derivative works of the Smart Heater Software; (ii) merge the Smart Heater Software with other software, provided that the Smart Heater Software may be installed and interoperate with the Dependent Items; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Smart Heater Control Boxes or Smart Heater Software to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (iv) reverse engineer (unless expressly permitted by law), disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Smart Heater Software in whole or in part; (v) bypass or breach any security device or protection used by or with the Smart Heater Control Boxes or the Smart Heater Software; (vi) input, upload, transmit, or otherwise provide to or through the Smart Heater Software any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; (vii) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Smart Heater Software; (viii) access or use the Smart Heater System for purposes of competitive analysis of the Smart Heater System, the development, provision, or use of a competing software service or product or any other purpose that is to United’s detriment or commercial disadvantage; or (ix) otherwise access or use the Smart Heater System beyond the scope of the authorization granted under these Service Terms.
b. Hardware Restrictions. The Terms and Conditions and these Service Terms contain important restrictions on the use of the Wedge System. Customer shall be solely responsible for the use of the Wedge System and ensuring that any Authorized Operators of the Wedge System are aware of the restrictions on use. These restrictions include, but are not limited to, operators: (i) only using the Wedge System for commercial purposes and usage permitted by the manuals, instructions, training, and warnings provided or supplied by United and only if the Wedge System has been installed and configured by service personnel authorized by United in accordance with the accompanying manuals, instructions, training, and warnings and inspected before each use; (ii) if applicable, only using a Smart Heater Control Box if it is connected to a properly grounded receptacle for protection against electrical shock and if installed outdoors, in a suitable outdoor rated enclosure and grounded in accordance with local electrical installation and safety regulations; (iii) if applicable, only using a Smart Heater Control Box if it is supplied with power to operate a heater and the ampacity rating of the thermostat cables or other cables connected to the relay contacts are suitable for the connected load; (iv) if applicable, only using a Smart Heater Control Box if all other equipment or hardware connected to its relay contacts are installed according the manufacturer’s instructions and in accordance with local regulations; (v) if applicable, only using the Smart Heater Control Box and the Heater to which it is attached where there is sufficient clearance (as specified in the Heater manufacturer’s manuals and documentation) from all persons and property (including flammable materials) and such clearance room has been inspected before each use; (vi) if applicable, only moving, servicing, or configuring (which shall mean software configuration for setting the target temperature and state of the Heater either by Customer or United at Customer’s direction) the Smart Heater Control Box after receiving express written preapproval from United to do so and then only after disconnecting it from power; (vii) only using the Wedge System in conformance with applicable laws including occupational health and safety legislation, hazardous products legislation and any other legal requirements; (viii) not reselling or remarketing the Wedge System, receiving any charge or benefit for the use of the Wedge System, or sharing or transferring the Wedge System, or any component thereof, without United’s express written preapproval; (ix) not using the Wedge System, or permitting it to be used, for a purpose or in a manner that is contrary to law, for any illegal or abusive purpose; (x) not adapting, translating, modifying, decompiling, disassembling, reverse engineering (unless expressed permitted by law) or otherwise interfering with the Wedge System; or (xi) not modifying, altering, or defacing any of the warnings, precautions, trademarks, service marks, copyright or other intellectual property markings on the Wedge System.
c. Suspension of the Smart Heater Software. To the extent Customer elects to rent the Smart Heater System and notwithstanding anything to the contrary in these Service Terms, the Addendum, or the Terms and Conditions, United (or its subcontractors) may suspend Customer’s continued access to the Smart Heater Software if United (or its subcontractors) reasonably determines that: (i) there is a threat or attack on the Smart Heater Software, the Smart Heater System or any infrastructure related to the Smart Heater Software; (ii) Customer’s or any Authorized Operators’ use of the Smart Heater Software disrupts or poses a security risk to the Smart Heater Software, the Smart Heater System, any intellectual property or infrastructure related to the Smart Heater Software, or to United or its other customers or vendors; (iii) Customer, or any Authorized Operator, is using the Smart Heater Software for fraudulent or illegal activities; (iv) United’s provision of the Smart Heater Software to Customer or any Authorized Operators is prohibited by applicable law; (v) any vendor of Customer has suspended or terminated Customer’s access to or use of any third-party services or products required to enable Customer to access the Smart Heater Software; or (vi) Customer otherwise breaches these Service Terms, the Addendum, or the Terms and Conditions. United will use commercially reasonable efforts to provide written notice of any such suspension to Customer and to provide updates regarding resumption of access to the Smart Heater Software following any suspension. United will use commercially reasonable efforts to resume providing access to the Smart Heater Software as soon as reasonably possible after the event giving rise to the suspension is cured. United will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized Operator may incur as a result of a suspension.
The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under these Service Terms, including to make required court filings. Except as otherwise provided herein, on the expiration or termination of the Addendum, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed.
The term of this Addendum shall commence on the Addendum Effective Date and expire on the date of expiration or termination of the Rental Agreement or, if earlier, on the date on which this Addendum is terminated in accordance with its terms. Each Party shall have the right to terminate this Addendum for convenience immediately upon written notice to the other Party for any reason. Upon expiration or termination of this Addendum, (i) Customer’s right to use the Wedge System (other than the Heaters, if Customer continues to rent the Heaters under the Rental Agreement) and Customer’s license to the Smart Heater Software, if applicable, shall immediately terminate; (ii) Customer will (at United’s discretion) assist United in either promptly removing all Wedge System components and any related warning signs provided by United from the Worksite or making the same available for United’s prompt removal; (iii) Customer shall delete the Smart Heater Software, if applicable and the Wedge System Documentation, and any copies thereof, from Customer’s Computers, devices, networks or systems, and shall destroy any copies of the Wedge System Documentation in its possession or under its control and certify the same in writing within thirty (30) days; and (iv) each Party shall promptly return or destroy any Confidential Information of the other Party relating to the Pilot Program and certify the same promptly upon request by the disclosing Party.
a. Intellectual Property. As between the Parties, United retains all rights, title, and interest, including any Intellectual Property Rights, in and to the Wedge System and any enhancements and improvements to, and any derivative works of, the Wedge System. Customer does not acquire any rights, express or implied, in or to the Wedge System. As between the Parties, Customer will own all rights and title, including all Intellectual Property Rights, to the Customer System and any enhancements and improvements to, and any derivative works of, the Customer System.
b. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to United suggesting or recommending changes to the Wedge System, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, “Feedback”), United shall own and is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
a. United Information Security. To the extent Customer elects to rent the Smart Heater System, United and/or its subcontractors, as applicable, will implement and maintain an industry-standard information security program with administrative, physical, and technical safeguards designed to protect the integrity of data, but in no case guarantees the protection of such data. Customer agrees that United (and its subcontractors) may transfer, store, and process data provided by the Customer in locations other than Customer’s country.
b. Customer Information Security. To the extent Customer elects to rent the Smart Heater System, Customer will take necessary security precautions to prevent unauthorized access to the Smart Heater Software and Customer System and provide regular backup of relevant Customer data. Customer will obtain any consents and comply with any laws necessary to allow the operation of the Smart Heater Software, to ensure that data provided by the Customer is valid and does not contain any information prohibited by law, and to permit United and its subcontractors to process, store, and transfer data provided by the Customer.
In addition and not substitution for the insurance requirements in the Terms and Conditions, Customer agrees to maintain and carry, at Customer’s sole cost, commercial general liability insurance with combined single limit of CA $5,000,000 per occurrence and $10,000,000 in the aggregate for claims alleging bodily injury, including death, personal injury and property damage sustained by any person as a result of the maintenance, use, operation, possession, storage, erection, dismantling, servicing or transportation of the Wedge System and any other insurance required by law. Customer shall obtain insurance policies that provide, or are endorsed to provide, that all insurance required hereunder is primary and non-contributory to any other insurance maintained by United. United shall be named as an additional insured for liability insurance and, if applicable, additional loss payee. Any deductibles or self-insured retentions shall be the sole responsibility of the Customer. All insurance required by these Service Terms shall include a waiver of rights of recovery against United or its insurers by the Customer and its insurers, as well as a waiver of subrogation against United or its insurers. The policies required hereunder shall provide that United must receive not less than ninety (90) days’ notice prior to any cancellation.
a. Hardware Disclaimer. THE WEDGE SYSTEM IS A PRE-RELEASE PRODUCT AND IS NOT AT THE LEVEL OF PERFORMANCE OR COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE OFFERING. THE WEDGE SYSTEM MAY NOT OPERATE CORRECTLY, AND MAY BE SUBSTANTIALLY MODIFIED PRIOR TO FIRST COMMERCIAL SHIPMENT OR WITHDRAWN. THE WEDGE SYSTEM IS PROVIDED “AS IS.” UNITED MAKES NO WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND WHATSOEVER, EXPRESS, STATUTORY OR IMPLIED, AS TO THE DESIGN, OPERATION, SERVICEABILITY, MERCHANTABILITY OF THE WEDGE SYSTEM OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. THERE IS NO WARRANTY, REPRESENTATION OR GUARANTEE OF ANY KIND WHATSOEVER THAT THE WEDGE SYSTEM IS SUITED FOR CUSTOMER’S INTENDED USE, OR THAT IT IS FREE FROM DEFECTS. UNITED DISCLAIMS ALL WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND WHATSOEVER, EITHER EXPRESS, IMPLIED OR STATUTORY AND WHETHER ARISING BY LAW, INCLUDING ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, MADE IN CONNECTION WITH THE WEDGE SYSTEM OR CUSTOMER’S USE OF THE WEDGE SYSTEM. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION, CONDITION, GUARANTEE OR WARRANTY MADE BY UNITED OR ANY OTHER PERSON ON UNITED’S BEHALF.
b. Smart Heater Software Disclaimer. TO THE EXTENT CUSTOMER ELECTS TO RENT THE SMART HEATER SYSTEM, THE SMART HEATER SOFTWARE IS A PRE-RELEASE PRODUCT WITH PRE-RELEASE CODE AND IS NOT AT THE LEVEL OF PERFORMANCE OR COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE OFFERING. THE SMART HEATER SOFTWARE MAY NOT OPERATE CORRECTLY, AND MAY BE SUBSTANTIALLY MODIFIED PRIOR TO FIRST COMMERCIAL SHIPMENT OR WITHDRAWN. THE SMART HEATER SOFTWARE, TECHNICAL SUPPORT, AND DOCUMENTATION ARE PROVIDED “AS IS.” UNITED MAKES NO WARRANTIES OR REPRESENTATIONS RELATING TO THE SMART HEATER SOFTWARE OR CUSTOMER’S USE OF THE SMART HEATER SOFTWARE, TECHNICAL SUPPORT, OR DOCUMENTATION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY EXCLUDES THE WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND MERCHANTABILITY. UNITED DOES NOT WARRANT THAT THE SMART HEATER SOFTWARE AND DOCUMENTATION OR ANY OUTPUT, SERVICE, OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON'S EXPECTATIONS OR REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.
a. Limitation of Liability. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW (BUT NOT IN THE CASE OF UNITED’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT), IN NO EVENT SHALL UNITED BE LIABLE OR RESPONSIBLE TO CUSTOMER OR ANY OTHER PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, PRODUCT LIABILITY (INCLUDING, WITHOUT LIMITATION, MANUFACTURER’S LIABILITY), OR TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF UNITED (EXCEPT FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT), FOR: (I) ANY LOSS, DAMAGE, DEATH OR INJURY CAUSED BY, RESULTING FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE WEDGE SYSTEM, ITS OPERATION OR ITS USE; (II) UNITED’S FAILURE TO DELIVER THE WEDGE SYSTEM AS REQUIRED HEREUNDER OR UNITED’S FAILURE TO REPAIR OR REPLACE NON-WORKING ASPECTS OF THE WEDGE SYSTEM; OR (III) ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, ENHANCED, AGGRAVATED, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, INCREASED COSTS, DIMINUTION OF VALUE, LOST BUSINESS, LOSS OF GOODWILL OR REPUTATION, LOSS OF USE, LOSS OF REVENUE OR LOST PROFITS (WHETHER DIRECT OR INDIRECT), RESULTING FROM OR IN ANY WAY CONNECTED WITH THE WEDGE SYSTEM, IN EACH CASE REGARDLESS OF WHETHER CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
WITHOUT LIMITING THE FOREGOING, IT IS UNDERSTOOD AND AGREED BY CUSTOMER THAT UNITED IS NOT AN INSURER AND THAT INSURANCE COVERAGE, IF ANY, SHALL BE OBTAINED BY CUSTOMER. CUSTOMER AGREES TO LOOK EXCLUSIVELY TO CUSTOMER’S INSURER TO RECOVER FOR ANY AND ALL LOSSES, DAMAGES, INJURIES, DEATHS, OR CLAIMS OF ANY KIND. CUSTOMER ALSO RELEASES AND WAIVES ALL RIGHT OF RECOVERY AGAINST UNITED ARISING BY WAY OF SUBROGATION.
a. Indemnification. To the fullest extent permitted by law, Customer shall indemnify, defend and hold United, and its officers, directors, agents, contractors, servants, employees, successors, assigns, affiliates, parents and subsidiaries, harmless from and against any and all liability, claims, losses, damages or costs (including, but not limited to, attorneys’ and other legal fees, loss of profit, business interruption or other special or consequential damages, or damages relating to property damage, bodily injury or death) arising out of or related in any way whatsoever to the operation, use, possession or rental of the Wedge System or any breach of this Addendum by Customer and whether or not arising from the negligence of United (except for its gross negligence or intentional misconduct). This obligation to defend, indemnify, and hold harmless also applies to any claims asserted against United based upon strict liability or product liability (including, without limitation, manufacturer’s liability) causes of action related to Customer’s use of the Wedge System. In furtherance (but not in limitation) of the indemnity provisions in the Rental Agreement, Customer expressly and specifically agrees that the foregoing obligation to defend, indemnify and hold harmless shall not in any way be affected or diminished by any statutory or constitutional limitation of liability or immunity Customer enjoys from suits by its own employees. This duty to defend, indemnify and hold harmless will continue in full force and effect notwithstanding the expiration or termination of this Addendum.
b. Customer Acknowledgment. Customer acknowledges that Section 14(a) above fully extends its indemnification obligations under the Rental Agreement (with regard to claims resulting from or in any way connected with the Wedge System) to include the whole of any loss, damage or liability caused partially or wholly by the negligence of United (except for gross negligence or intentional misconduct).
a. Order of Precedence. The Addendum, Wedge System Service Terms, and the Rental Agreement (including the Terms and Conditions) are meant to be read in harmony; provided, however, that in case of conflict and only to the extent of the conflict, the Addendum shall control the Wedge System Service Terms, the Wedge System Service Terms shall control the Rental Agreement (including the Terms and Conditions), and the Parties acknowledge and agree that this Section 15(a) shall expressly supersede any analogous order of precedence clause in the Rental Agreement.
b. No Assignment; Subcontractors. Customer shall not assign, delegate or subcontract its rights or obligations hereunder without first obtaining the written consent of United, and any purported assignment, delegation or subcontracting in violation of this sentence shall be null and void. Customer expressly acknowledges that United may subcontract its obligations under the Addendum, and expressly authorizes the delivery and installation of the Wedge System and the performance of services relating to the Wedge System by third parties engaged by United.