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Section 18.11. ESCO Responsibility. To the extent where such damage or injury occurs <br />as a result of ESCO's negligent acts or omissions under this Contract, ESCO shall be responsible <br />for (i) any damage to the Equipment and (ii) any bodily injury, personal injury and tangible <br />property damage, but only if such damage is not covered by insurance required to be maintained <br />by ESCO. <br />Section 18.12. Indemnification. ESCO agrees to indemnify and hold the Owner and its <br />officers, agents, and employees ("Indemnitees") harmless from any and all claims, demands, <br />losses, liabilities, damages, and court awards (including costs, expenses, and attorney fees) to third <br />parties for personal injury or death or physical damage to tangible property, arising from, resulting <br />from, or connected with the services and work performed and equipment installed under this <br />Contract by ESCO, its agents, employees, invitees, guests and subcontractors and subconsultants <br />of any tier, subject to the limitations provided in this Contract, but only to the extent of the fault <br />of ESCO. <br />ESCO's duty to indemnify Indemnities shall not apply to liability for damages arising out <br />of bodily injury to persons or damage to property caused by or resulting from the negligence of <br />Owner, its agents or employees or invitees, or guests, or subcontractors or sub consultants of any <br />tier. <br />ESCO specifically and expressly waives any immunity that may be granted it under any <br />worker's compensation act. Further, this indemnification obligation shall not be limited in any <br />way by any limitation on the amount or type of damages, compensation, or benefits payable to or <br />for any third party under worker's compensation acts, disability benefits acts, or other employee <br />benefits acts; PROVIDED ESCO's waiver of immunity by the provisions of this paragraph extends <br />only to claims against ESCO by Indemnitees, it does not include, or extend to, any claims by <br />ESCO's employees directly against ESCO. This Section 18.12 shall survive termination of this <br />Contract. <br />SECTION 19. OWNERSHIP <br />Section 19.1. Ownership of Design Documents and Certain Proprietary Property Rights. <br />All drawings, reports and materials prepared by ESCO specifically in performance of this Contract <br />(Contract Documents) shall become the property of the Owner. Owner shall be the sole and <br />exclusive owner of the Contract Documents and all revisions, editions and versions thereof made <br />by other than ESCO. Re -use or modification of the Contract Documents for purposes other than <br />originally intended and without ESCO's written permission shall be at the Owner's sole risk. <br />Owner agrees to indemnify and hold ESCO harmless from all claims damages and expenses, <br />including attorneys' fees, arising of such re -use or modification by Owner. ESCO shall retain <br />ownership of all underlying designs, calculations, formulas, patterns, secret inventions or <br />processes, or other intellectual or proprietary rights (collectively "instruments of ESCO's <br />professional services") that are or may be used in the production of Contract Documents. Contract <br />Documents shall be delivered to the Owner by ESCO no later than ninety (90) days after the <br />Commencement Date. If available, such drawings, reports and materials shall be delivered in <br />electronic form, however ESCO will not modify these documents to represent as -built conditions <br />unless specifically contracted to do so. The Owner shall grant to ESCO a perpetual, irrevocable, <br />non-exclusive royalty free license to use all Contract Documents. <br />ESCO (McKinstry)/OWNER/PERFORMANCE CONTRACT 18 <br />