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17. Force Majeure.
<br />The Grantee shall not be responsible for delay resulting from its failure to perform if neither the fault nor the negligence
<br />of Grantee or its employees or agents contributed to the delay and the delay is due directly to acts of God, wars, acts
<br />of public enemies, strikes, fires, floods, or other similar cause wholly beyond Grantee's control, or for any of the
<br />foregoing that affect subcontractors or suppliers if no alternate source of supply is available to Grantee. In case of
<br />any delay Grantee believes is excusable, Grantee shall notify Department in writing of the delay or potential delay
<br />and describe the cause of the delay either (1) within ten days after the cause that creates or will create the delay first
<br />arose, if Grantee could reasonably foresee that a delay could occur as a result; or (2) if delay is not reasonably
<br />foreseeable, within five days after the date Grantee first had reason to believe that a delay could result. THE
<br />FOREGOING SHALL CONSTITUTE THE GRANTEE'S SOLE REMEDY OR EXCUSE WITH RESPECT
<br />TO DELAY. Providing notice in strict accordance with this paragraph is a condition precedent to such remedy. No
<br />claim for damages, other than for an extension of time, shall be asserted against Department. The Grantee shall not be
<br />entitled to an increase in the Agreement price or payment of any kind from Department for direct, indirect,
<br />consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or
<br />inefficiency, arising because of delay, disruption, interference, or hindrance from any cause whatsoever. If
<br />performance is suspended or delayed, in whole or in part, due to any of the causes described in this paragraph, after
<br />the causes have ceased to exist Grantee shall perform at no increased cost, unless Department determines, in its sole
<br />discretion, that the delay will significantly impair the value of the Agreement to Department, in which case Department
<br />may: (1) accept allocated performance or deliveries from Grantee, provided that Grantee grants preferential treatment
<br />to Department with respect to products subjected to allocation; (2) contract with other sources (without recourse to
<br />and by Grantee for the related costs and expenses) to replace all or part of the products or services that are the subject
<br />of the delay, which purchases may be deducted from the Agreement quantity; or (3) terminate Agreement in whole or
<br />in part.
<br />18. Indemnification.
<br />a. The Grantee shall be fully liable for the actions of its agents, employees, partners, or subcontractors and shall
<br />fully indemnify, defend, and hold harmless Department and its officers, agents, and employees, from suits,
<br />actions, damages, and costs of every name and description arising from or relating to:
<br />i. personal injury and damage to real or personal tangible property alleged to be caused in whole or in
<br />part by Grantee, its agents, employees, partners, or subcontractors; provided, however, that Grantee
<br />shall not indemnify for that portion of any loss or damages proximately caused by the negligent act
<br />or omission of Department;
<br />ii. the Grantee's breach of this Agreement or the negligent acts or omissions of Grantee.
<br />b. The Grantee's obligations under the preceding paragraph with respect to any legal action are contingent upon
<br />Department giving Grantee: (1) written notice of any action or threatened action; (2) the opportunity to take over
<br />and settle or defend any such action at Grantee's sole expense; and (3) assistance in defending the action at
<br />Grantee's sole expense. The Grantee shall not be liable for any cost, expense, or compromise incurred or made
<br />by Department in any legal action without Grantee's prior written consent, which shall not be unreasonably
<br />withheld.
<br />c. Notwithstanding sections a. and b. above, the following is the sole indemnification provision that applies to
<br />Grantees that are governmental entities: Each party hereto agrees that it shall be solely responsible for the
<br />negligent or wrongful acts of its employees and agents. However, nothing contained herein shall constitute a
<br />waiver by either party of its sovereign immunity or the provisions of Section 768.28, F.S. Further, nothing herein
<br />shall be construed as consent by a state agency or subdivision of the State to be sued by third parties in any matter
<br />arising out of any contract or this Agreement.
<br />d. No provision in this Agreement shall require Department to hold harmless or indemnify Grantee, insure or assume
<br />liability for Grantee's negligence, waive Department's sovereign immunity under the laws of Florida, or
<br />otherwise impose liability on Department for which it would not otherwise be responsible. Any provision,
<br />implication or suggestion to the contrary is null and void.
<br />19. Limitation of Liability.
<br />The Department's liability for any claim arising from this Agreement is limited to compensatory damages in an amount
<br />no greater than the sum of the unpaid balance of compensation due for goods or services rendered pursuant to and in
<br />compliance with the terms of the Agreement. Such liability is further limited to a cap of $100,000.
<br />20. Remedies.
<br />Nothing in this Agreement shall be construed to make Grantee liable for force majeure events. Nothing in this
<br />Agreement, including financial consequences for nonperformance, shall limit Department's right to pursue its
<br />remedies for other types of damages under the Agreement, at law or in equity. The Department may, in addition to
<br />Attachment 1
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<br />Rev. 8/28/18
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