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INDUSTRY, Inc.
<br />AND REGULATORY CHANGES_ THEREFORE. CUSTOMER FURTHER
<br />ACKNOWLEDGES THAT SIEMENS DOES NOT CONTROL FUTURE
<br />MARKET CONDITIONS ORTHE ENERGY MARKET'S REGULATORY
<br />CLIMATE, NOTHING HEREIN SHALL BE CONSTRUED BY THE
<br />CUSTOMER AS A PREDICTION OF FUTURE ENERGY MARKET
<br />CONDITIONS OR ENERGY PRICES. ACCORDINGLY, SIEMENS DOES
<br />NOTPROVIDE CUSTOMER A GUARANTYOR WARRANTY OF THE
<br />RESULTS OF SIEMENS' RECOMMENDATIONS_ CUSTOMER
<br />MAKESANY AND ALL ENERGY PROCUREMENT AND RELATED
<br />DECISIONS. CUSTOMER ACKNOWLEDGES THAT ALL ENERGY
<br />PROCUREMENT AND RELATED DECISIONS ARE MADE AT THE
<br />CUSTOMER'S SOLE RISK.
<br />7.5 WITH RESPECT TO ANY LIABILITY (WARRANTY OR OTHERWISE)
<br />THAT SIEMENS MAY HAVE UNDER THE AGREEMENT, IN NO EVENT
<br />SHALL SIEMENS BE LIABLE (INCLUDING WITHOUT LIMITATION, UNDER
<br />ANY THEORY IN TORTS) FOR ANY L055 OF USE, REVENUE,
<br />ANTICIPATED PROFITS OR SPECIAL, INDIRECT, INCIDENTAL OR
<br />CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST
<br />PROFITS AND/OR LOST BUSINESS OPPORTUNITIES) ARISING OUT OF
<br />OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES
<br />WHETHER ARISING IN WARRANTY, TORT, CONTRACT , STRICT
<br />LIABILITY, OR ANY OTHER THEORY OF LIABILITY, WHETHER, FOR
<br />WARRANTY, LATE OR NON- DELIVERY OF ANY SERVICES, AND
<br />WHETHER SIEMENS HAS BEEN ADVISED OF THE POSSIBILITY OF
<br />SUCH DAMAGES', and, in any even. SIEMENS aggregate liability for anyend
<br />all claims, losses or expenses (including attorneys fees) arising out of this
<br />Agreement, or out of any Services furnished under this Agreement. whether
<br />based In contract, negligence, strict liability, agency, warranty, trespass,
<br />indemnity or any other theory of liability, shall be limited, as liquidated damages,
<br />to the greater of $1,000 or 10% of me total compensation received by
<br />SIEMENS from Customer under this Agreement. SIEMENS reserves the right
<br />to control the defense and settlement of any clalm for which SIEMENS has an
<br />obligation under the wardely hereunder. The parties acknowledge that the price
<br />which SIEMENS has agreed to perform its Services and obligations under this
<br />Agreement is activated based upon the foregoing limitations of [lability and
<br />that SIEMENS has expressly relied on, and would not have entered into this
<br />Agreement buffer such limitations of lleality,
<br />7.6 It is understood and agreed by and between the parties that SIEMENS Is
<br />not an Insurer and this Agreement is not Intended to be an Insurance pollcyor a
<br />substitute for an moral poppy. Insurance, If any shell he obtained by
<br />Customer. Fees are based solely upon the value or the Seamless, and are
<br />unrelated to me value of Customers property or the property of others on
<br />Customers premises,
<br />8.1 SB: LrrniO w1lmn t be rrnfinflnre for the maintenance, s
<br />B.9 mees t ceseeb of he respatshle f. the malntenanc lintle it or replacement Of,
<br />or rsee pe necessitated by reason oc (a) nonmed tocro nourepleceehle a
<br />obsolete a of Iha ,and Equipment, incadhi tf r not our, tl to tludwoci shell nd twater
<br />heat exdargers, rd's, unit ural sus, cesngs, refrnday material, and bar alsame, water
<br />and pneumatic piping stated h r lX or coding town, slats antl basins. etc. unless
<br />otherwise spspers or stated herein; a (b) rogigmce, abuse, misuse, improper ce
<br />or repairs re naciflactions
<br />manuf Improper aural a lack it opamla maintenance
<br />or is o failure to campy sear menNndIts de opa. SARI and S refnmedal regulmrt>m's,
<br />Mrs of God or othaurreasaa beyond Its Equi STEM ENS than by s no 2sNS or for any sancta perfemretl on any Covered Equipment other Than by SIEMENS ar fts
<br />'aras
<br />6.2 ea SIEMENS Shames beresponsibo loss,uding butnot' damage mat maybe
<br />eased M yCuLTAfances beyond its co r ag rs, Acts but not war. Gfud to ads n.
<br />ads of government, Qlstamer arks em,AOy el a or serfs, s, of God, war. rill bisexu l
<br />ads of ess, fire, melt, canceled
<br />systemn,acker water damage, Ile, dng,ences am
<br />compNer stoke x program ar mine re hackers. shakes, ticks art tion, or shortage
<br />am
<br />workmen, cots, arposiorrs, quaar0ne reshitlions, delays in transportation, or shortage
<br />6. va SIE FEN, is not reason h.
<br />ds SIEMENS is not for repeim, ter was treatment b Cesto LgersRAl
<br />due to diced corrosion, erosion, Ins b aer or is p eguele wain Ireelmed by dhers, plectra is
<br />BA SIEMEND shot 'not he responsible
<br />atite ibleforwehes. allarclnslutions, of an other
<br />valves,
<br />rmar my mou. wrieffrow antl tamper snitches, allow, �atlons and ET she
<br />permaner2y mounted Inlegml pipe or air rind comporavl. Pddliorely, SIEMENS shall
<br />not be responsible ER ay venting or dmelning of systems.
<br />8.6 WHERE ATTAIN INCLUDE EFFORTS BY SIEMENS TO HELP
<br />CUSTOMER TO ATT N REBATES AND/OR INCENTIVES N, AVAILABLE
<br />SOURCES OR THAT ANY COLT REDUCTION, CUSTOMER
<br />COST REDUCTION THAT ANY REBAT AVAILABLE OR ENERGY! FUEL
<br />COAT REDUCTION THAT MAY T AVAILABLE TO CUSTOMER IS
<br />GRANTED BY A THIRD PARTY OUTDID[ THE CONTROL ENS.
<br />CUSTOMER FURTHER ACKNOWLEDGES THAT WHILE SIEMENS WILL
<br />EITHER ASSIST CUSTOMER OR ENDEAVOR ITSELF TO OBTAIN ANY
<br />AND ALL E. SATESNJC DOES NOT OR ENERGY/ FUEL COST ILL OBTAIN
<br />AVAILABLE. SIEMENS DOES NOT GUARANTEE THAT IT WILL OBTAIN
<br />OR APPLY FOR ALL REBATES/INCEIITIVES OR ENERGY,' FUEL COST
<br />Siemens Industry, Mc., Building Technologies Division
<br />REDUCTIONS THAT MAY BE AVAILABLE TO CUSTOMER FURTHER,
<br />CUSTOMER HEREBY RELEASES SIEMENS FROM ANY AND ALL
<br />LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING FROM
<br />SIEMENS' FAILURE TO OBTAIN OR APPLY FOR ANY REBATE/
<br />INCENTIVE OR ENERGY /FUEL COST REDUCTION THAT COULD IN ANY
<br />WAY BE OBTAINED BY CUSTOMER,
<br />Articfe Of Hazardous Materials Provlslons
<br />0.1 The Services does not include drectly or Indirectly performing or arranging
<br />for the detection, monitoring, handing. storage. removal, Iramporlatlon,
<br />disoosal or treatment of OII or Hazardous Medical.. Except as disclosed
<br />Perri this Article, Customer represonathat. to its best knowledge, there Is
<br />no asbestos or any other hazardous or toxic materials, as defined in the
<br />Comprehensive Environmental Response, Compenselion antl Liability Act of
<br />1880, as amended, the regulations promulgated thereunder and other
<br />applicable federal, state or local law ('Nazereadus Materials "), present at
<br />Customer's Sites where the SBMces are performed. SIEMENS will call
<br />Customer Immediately If If discovers or suspects the presence of any
<br />Hazardous MatecaL Al Services have been priced and agreed to by SIEMENS
<br />In reliance on Customers representations BS Set forth In this Amas The
<br />puissance of Hazardous Materials constitutes a thongs in this Agreement
<br />whose terms must be agreed upon by SIEMENS before Its obligations
<br />hereunde- andlcanlinuld
<br />9.2 Customer Is salary responsible for testing, abating, encapsulating,
<br />removing, remedying or neutralizing such Hazartlous Materials, and for the
<br />costs thereof. Customer Is responsible for the proper diaexam of all Hazardous
<br />Moledels and Oil that at anytime are present at the Services site In accordance
<br />with all applicable federal, state, and local laws, regulations, and ordinances.
<br />Even if change order has been entered Into pursuant to this Article, SIEMENS
<br />shall have the right to slop the Services until the site is free from Hazardous
<br />Matene[s. In such event, SIEMENS shag receive an equitable extension of time
<br />to complete me Services, and compensation for delays caused by Hazardous
<br />Materials remediallon. In no event shall SIEMENS be required or construed to
<br />take dire ownership or responsibility for such Oil or Hazardous Materials.
<br />Customer shall sign any required waste manifests in conformance with ell
<br />government regulations, listing Customer as the generator of the waste.
<br />99 Customer warrants that, prior to the execution of this Agreement, it shall
<br />notify SIEMENS In wrlting of any and all Hazardous Materials which to
<br />Customers best knowledge are present, potentially present ar Ilkely to become
<br />present at the Services site and shall provide a ca, of any slle safely policies,
<br />including but not limited to look out and tag procedures, chemical hygiene plan,
<br />hi or otter items required to be disclosed or maintained by federal, state,
<br />or local Jews, regulations or ordinances.
<br />9.4 Customer shall indemnify, defend and hold SIEMENS harmless from and
<br />against any damages, losses, cost's, liabilities or expanses (Including attorneys'
<br />fees) arising out of any Oil or Hazardous Materials or from Customer's breach
<br />of, or !allure to perform Its obligations under this Article.
<br />itrtlele l0: fmpmtlEr mothodemelfy
<br />10.1 Customer acknowledges that SIEMENS is raquhatl to comply with
<br />applicable export laws and regulatlohs relating to the sale, exportation, transfer,
<br />assignment, disposal and usage of the Covered Equipmenl or Services
<br />provided under the Contract, Including any expert license requirements.
<br />Customer agrees that such Covered Equipment a Services shag not at any
<br />time already or Indirectly be used prepared, sold, transferred, assigned or
<br />otherwise disposed of in a manner which mdll result in non - compliance with such
<br />applicable export laws and regulations. It shall be a condition of the continuing
<br />performance by SIEMENS of its obligations hereunder that compliance with
<br />such export laws ant regulations be maintained at all times. CUSTOMER
<br />AGREES TO INDEMNIFY AND HOLD SIEMENS HARMLESS FROM ANY
<br />AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS AND FINES
<br />RELATED TO NON-COMPLIANCE WITH APPLICABLE EXPORT LAWS
<br />AND REGULATIONS.
<br />Article 1 L Small Business Concern
<br />11A SIEMENS shall adhere to FAR 5221 M6 regarding the'Utlfzatl on of Smell
<br />Business Concerns as pad of its Commercial Small Business 5ubcontractiry
<br />Agreement with the federal government. SIEMENS' policy is to offer' small
<br />business concerns, including small disadvantaged businesses, women owned
<br />small businesses, HUBi smell businesses, veteran owned small businesses
<br />end service disabled veteran ownetl small businesses, the "maximum radical
<br />opportunity'to paddleats In performing contracts let by any commercial entity,
<br />[cost government or federal agency, including smnoniracts for subsystems,
<br />assemblies, components, end related services for major systems,
<br />Siemens Confidential and Proprietary
<br />25A -15
<br />service only 2009
<br />ye fit
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