2. Buyer will indemnify, defend and hold harmless Trydor, its shareholders, officers, directors, employees, agents and representatives from and against all losses, damages, liabilities, costs, and expenses including, but not limited to, property damage, loss of profits or revenue, loss of use of any property, cost of capital, cost of purchased or replacement power or temporary equipment, personal or bodily injury, or death (“Losses”), that may arise pursuant to or in connection with the Agreement, the Goods, or the Services (including, without limitation, Losses arising in connection with the performance of Services on Buyer’s premises by Trydor employees, representatives, agents, or subcontractors), regardless of whether such Losses are suffered directly by Buyer or arise pursuant to or in connection with a third‐party suit, claim, counterclaim, demand, judgment or other action (each a “Claim”) and regardless of whether or not Trydor or any third‐party is proportionately negligent with respect to such Losses and/or Claim, provided that Buyer need not indemnify Trydor for Trydor obligation, if any, to Buyer under Sections herein. For the avoidance of doubt and without limitation, this indemnification obligation requires Buyer to pay any judgments against Trydor or any other indemnified party resulting from any Claim, any court costs of Trydor or any other indemnified party in connection with any Claim, and any reasonable attorneys’ fees and disbursements incurred by Trydor or any other indemnified party in Trydor defense of any Claim. Trydor will have the sole and exclusive right to conduct the defense of any Claim at Buyer’s sole and exclusive cost and expense. Buyer’s indemnification obligation does not depend on the truth or accuracy of any allegations made against Trydor, Buyer or any third party.
Interpretation of the Agreement
1. None of Trydor’s or Buyer’s shareholders, directors, officers, partners, managers, employees, agents or representatives has any authority to orally modify or alter in any way the terms and conditions of the Agreement. The terms, conditions, and limitations set forth in the Agreement can be modified, altered, or added to only by a subsequent written instrument signed by an authorized representative of Trydor. Regardless of how many times Buyer purchases, or has purchased, goods and services from Trydor by whatever means, each time Buyer accepts the Agreement, Buyer and Trydor enter into a separate agreement that will be interpreted without reference to any other agreement between Buyer and Trydor, or what Buyer may claim to be a course of dealing or course of performance that has arisen between Buyer and Trydor. No inconsistent usage of trade or industry custom, if any, prior to, contemporaneous with or subsequent to the making of the Agreement will waive, vary, serve to explain or serve to interpret any of the terms, conditions and limitations of the Agreement. The Agreement is the sole and exclusive agreement with respect to the matters discussed herein and the provision of Goods and Services hereunder, (except for any contemporaneous writing agreed to in writing by Trydor expressly modifying the terms and conditions hereof, which is hereby incorporated herein by reference and made a part hereof) and supersedes all prior and contemporaneous agreements and understandings, negotiations, inducements, representations or conditions, whether oral or written, whether express or implied, with respect to such matters. Failure by Trydor to enforce any of the terms, conditions and limitations of the Agreement will not constitute a waiver of those terms, conditions and limitations or a waiver of any other terms, conditions or limitations of the Agreement, and the failure of Trydor to exercise any right (whether provided by the Agreement, law, equity, or otherwise) arising from Buyer’s default under the Agreement will not constitute a waiver of that right or any other rights.
1. Trydor will not be liable for its failure to perform under the Agreement (including, without limitation, the failure to deliver any Goods or perform any Services) due to circumstances beyond its control, including, without limitation, fire, flood, earthquake, pestilence or similar catastrophe; war, act of terrorism, or strike; lack or failure of transportation facilities, shortage of suitable parts, materials or labour; any existing or future law, rule, regulation, decree, treaty, proclamation, or order of any governmental agency; inability to secure fuel, materials, supplies, equipment or power at reasonable prices or in sufficient amounts; act of God or the public enemy; or any other event or cause beyond Trydor reasonable control, including, without limitation, any delay caused by Buyer (each, a “Force Majeure Event”). If any Force Majeure Event prevents Trydor performance of any of its obligations under the Agreement, Trydor will have the right to (a) change, terminate or cancel the Agreement, or (b) omit during the period of the Force Majeure Event all or any portion of the quantity of the Goods deliverable during that period, whereupon the total quantity deliverable under the Agreement will be reduced by the quantity omitted. If Trydor is unable to supply the total demands for any Goods to be delivered under the Agreement due to a Force Majeure Event, Trydor will have the right to allocate its available supply among its customers in whatever manner Trydor deems to be fair and equitable. In no event will Trydor be obligated to purchase materials from other than its regular sources of supply in order to enable it to supply Goods to Buyer under the Agreement. No change, cancellation or proration by Trydor will be deemed to be a breach of any clause, provision, term, condition, or covenant of the Agreement.