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(d) Furnish SIEMENS with all available lnformatlan pedlnent to the Services',
<br />(a) Obtain and famish to SIEMENS all approvals, permits and consents from
<br />government authorities and others as may be required for performance of the
<br />Services except for those SIEMENS has expressly agreed Ir wl'Iiing to obtain;
<br />(f) Maintain the Services site In a safe condition! notify SIEMENS promptly
<br />of any site cond1toris requiring special care; and provide SIEMENS with any
<br />avallI documents describing the quantity, nature, location and extent of suoh
<br />conditions;
<br />(g) Comply Win all lam and provide any notices required to be given to any
<br />government authorities In connection with the Servlces, except Such notices
<br />SIEMENS has exprosey agreed In this Agreement to give;
<br />(h) Provide SIEMENS With Material Safety Data Sheets (MSDS) conforming
<br />to OSHA requirements related to all Hazardous Motorlola at the site which may
<br />Impact the Servlces',
<br />(1) Furnish to SIEMENS any contingency plans related to the site;
<br />q) Furnish the specified operating environment, Including without Ilmltsllon,
<br />suitable "lean, stable, property conditioned electrical power end other writes;
<br />(k) Maintain all Covered Equipment In good working order In compllancs With
<br />all applicable laws and service, repair and replace all Covered Equipment as
<br />necessary', and,
<br />(p Perform Inspections and tests as Indicated In the Life Safely System
<br />Logbook and record same In the Life Safely System logbook.
<br />4.2 Customer acknowledges that the technical and pricing information herein is
<br />proprietary to SIEMENS and agrees not to disclose or otherwise make It
<br />available to others.
<br />4.3 Customer acknoww[edges that It Is now and shell be at ell times In control of
<br />the Services site. SIEMENS shall not have any, responsilelllly, duly or authority
<br />to direct, supervise or oversee any employees or contractors of Customer or
<br />their work or to provide the means, methods or sequence of their work or to
<br />stop their work, SIEMENS' work and/or presence at a site shall not relleve,
<br />others of their responslbllily to Customer or to ethers. Except as expressly
<br />provided herein, SIEMENS is hot responsible for the adequacy of the health,
<br />safety or sacurty programs or precautions related to Customer's or It other
<br />contractors' activities or operations; the work of any other person or entity; or
<br />Customer's site conditions, SIEMENS Is not actionable for Inspecting,
<br />observing, reporting or correcting health or safely conditions or deficiencies of
<br />Customer or others at Customer's site. So as not to dscourege, SIEMENS
<br />from voluntarily addressing such Issues, In the event SIEMENS does make
<br />observations, reports, suggestions or otherwise regarding such Issues,
<br />SIEMENS shall not be lights or responsible for same.
<br />4A Except as expressly staled in this Agreement, Customer le solely
<br />responsible for any removal, replacement of rafinishing of the building structure
<br />or finishes that may be required to perform or gain access to the services,
<br />4.5 Customer alone shall act to protect life and property from the time a center
<br />or full system failure occurs unit( SIEMENS notifies Customer that such system
<br />Is operational or the emergency has been cleared. Customers actions shell
<br />Include all appropriate interim safety precautions (such as a manual 1[a
<br />watch'). SIEMENS shall have no obligation to provide guards, fire watch
<br />Personnel, or other servke4 follovllllg a system fallwe, except Services as are
<br />4.6 Customer shall not ottach to the system or Covered Equipment any device
<br />[hat Interferes with the Services or the proper operation of the system or
<br />covered Equipment.
<br />Arbors 5: Oompenestiai,
<br />5.1 Annual Facie) shall be adjusted for each year after the final year of the
<br />Initial Terri pursuant to the agreed Price Adjustment hereto and Incorporated
<br />herein. Unless otherwise agreed In wrld% this Agreement Is not cancelable
<br />and the annual fee Is not refundable except as provided heroin.
<br />5.2 Payments to be made under this Agreement will provide far, and be In
<br />conedershon of, only Services specifil Included under the Proposed Selalon AII
<br />other Services, Including but not limned to the felknxing, shill be saperagly billed or
<br />surcharged on a III and materials basis' (a) emergarcy Services parfonned at
<br />Customer's request, If inspection does not reveal any deflclenoy covered by [his
<br />Agreement; (b) SeMces performed other than during SIEMENS ' normal wotdng
<br />5.3 SIEMENS shall Invoice Customer as provided mine Agreement, win not
<br />expressly provided, then on an annual basis prier to the Stan Date and annually
<br />thereafter on the anniversary of such Start Date, Invoices are due and payable
<br />net cash upon receipt unless Customer has applied and been approved for
<br />credit with SIEMENS, In which case the Invoice Is payable within 30 calendar
<br />days of receipt by Customer or as otherwise set forth In this Agreement. If any
<br />payment Is not received when due, SIEMENS may deem Customer to be In
<br />breach hereof and may enforce any romodles available to It hereunder or et
<br />law, including without limltatlon, acceleration of payments and suspension or
<br />termination of Bongoes at any time and without notice, and shall be entitled to
<br />compensation for Servlces previously performed arid costs reasonably III ad
<br />In connection with the suspension or termination. In the event that any payment
<br />due horeundar[s not paid when due, Customer agreast to pay, upon demand,
<br />as a late charge, one and one-half percent (1.5 %) of the amount of the payment
<br />per month, limited by the maximum rate permitted by law of each overdue
<br />Siemens Industry, Inc., Building Technologlos Olvlslon
<br />amount under this Agreement. Customer shall reimburse SIEMENS' costs and
<br />expenses (Including reasonable attorneys' and witnesses' fees) Incurred for
<br />colloGlon under this Agreement. If Customer disputes any Option or all of an
<br />Invoice, It shell notify SIEMENS In wtlbng of the amount In dispute and the
<br />reason for Its disagreement within 21 days of receipt of the Invoice. The
<br />undisputed portion shall be paid when due, end Interest on any unpaid portion
<br />shall accrue as aforesaid, from the date due WIN paid, to the extent that such
<br />amounts are finally determined to be payable to SIEMENS,
<br />5.4 Except to the extent expressly agreed In this Agreement, SIEMENS' fees
<br />do not include any taxes, axclle s, fens, duties, permits or other government
<br />charges related to the Servlces. Customer shall pay such amounts or reimburse
<br />SIEMENS for any amounts It pays. If Customer elalme a tax exemption or
<br />direct payment pall It shall prCVlda SIEMENS with a valid exemption
<br />certiflcate or permit and Indemnify, defend and hold SIEMENS harmless from
<br />anytaxes, costs and penalties arlang out of same,
<br />55 Unless agreed othenviae, the preing for each year after the Initial Term of
<br />the Agreement and each year of each renewal of the Agreement shall be
<br />determined as the Immediate prior year price plus a price escalator based upon
<br />the D.S. Department of Labor, Bureau of Labor Statistics Urban Consumer
<br />Price Index-All Urban Consumers U.S. AD Items, 1982 - 1984.100 ( "ppi-v),
<br />In addition, each ronawal term pacing shall be cd)uslel for any additions or
<br />deletions to Services selected for the renamml fain. The price escalator shall be
<br />the latest semiannual CPI -U Identified above published prof to each annual
<br />anniversary, This exodator shall be applicable to each annual term, whether e
<br />renewal term or an annual farm after the first year of the Initial Term.
<br />Article 6: Ohangos; Delayer Excused Performance
<br />6,1 As the Services are performed, conditions may change or circumstances
<br />outside SIEMENS' reasonable control (such as changes of law) may al lop
<br />which require SIEMENS to expend additional costs, exet "r time to complete
<br />the Services, in which case SIEMENS shah notify, Customer and an equitable
<br />adjustment made to the compensation and time for performance. In the event
<br />conditions or circumstances require Services to be suspended or terminated,
<br />SIEMENS well be compensated for Services performed and for costs
<br />reasonable Incurred In connection with the suspension ortermination.
<br />6.2 SIEMENS shall not be responsible for loss, delay, Injury, damage or
<br />failure of performance that may be caused by circumstances beyond Its control,
<br />Including but not limited to acts or omissions by Customer or Its wriplayees,
<br />agents or conhractors, Acts of God, war, civil commotion, acts or omissions of
<br />government authorities, fire, that(, conos[on, flood, water damage, lightning,
<br />4reaze4ps, strikes, lockouts, differences with workmen, riots, explosions,
<br />quarantine restrictions, delays in transportation, or shortage of vehicles, fuel,
<br />labor or materials. In the event of any such circumstances, SIEMENS shall be
<br />sw ugad from PerlpnrshOO of rho Servlces and the tlmo for porfermancu snail
<br />be extended by a period equal to the time lost plus a reasonable recovery
<br />period and the compensation equitably adjusted to compensate for additional
<br />costs SIEMENS Incurs due to such circumstances.
<br />Arcane 7: Warmnttes; Olscla)mers, Llmhatlonof Llabillty
<br />7:t Labor In performing the Services Is warranted to be free from defects In
<br />Workmanship for 90 days after the Servlces are performed. All labor provided
<br />by SIEMENS hereunder found to be defective and otherwise qualifying under
<br />this warranty shall be re- performed by SIEMENS. Such re,performance
<br />hereunder shall not Interrupt or prolong the lerms of this Warranty. In the event
<br />that any such re- performl falls to sure such defects, then Customer's
<br />exclusive remedy against SIEMENS for damages from any cause whensoever,
<br />whether In contract or ton, shell not exceed an amount equal to the limitation set
<br />forth In Section 7.5 fief eln.
<br />Z2 THE EXPRESS LIMITED WARRANTY PROVIDED ABOVE IS IN LIEU
<br />OF AND EXCLUDES ALL OTHER WARRANTIES, STATUTORY,
<br />EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL
<br />EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
<br />FITNE88 FOR A PARTICULAR PURPOSE, QUALITY, CAPACITY, OR
<br />WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES AGAINST
<br />PATENT INFRINGEMENTS OR DEFECTS, WHETHER HIDDEN OR
<br />APPARENT, AND EXPRESS OR IMPLIED WARRANTIES WITH RESPECT
<br />TO COMPLIANCE OF THE COVERED EQUIPMENT WITH THE
<br />REQUIREMENTS OF ANY LAW, REGULATION, SPECIFICATION OR
<br />CONTRACT RELATIVE THERETO, WHICH ARE HERESY EXPRESSLY
<br />DISCLAIMED.
<br />7.3 Customer hereby, for it and any parties claiming under It, relapses and
<br />discharges SIEMENS from any IlsbNty Mining out of ell hazards covered by
<br />Customer's Insurance, and all Ori nls control SIEMENS arising out of such
<br />hazards, Including any right of subrogation by Customer's Insurance carrier, are
<br />hereby waived by Customer.
<br />7.4 ANY IDEAS, SUGGESTIONS, RECOMMENDATIONS, FINANCIAL
<br />EVALUATIONS, FEASIBILITY STUDIES OR ECONOMIC ANALYSIS
<br />PREPARED BY SIEMENS UNDER THIS AGREEMENT WILL REPRESENT
<br />ITS BEST JUDGMENT BASED ON ITS EXPERIENCE AND THE
<br />AVAILABLE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE
<br />E DRGY MARKET IS VOLATILE AND SUBJECT TO FREQUENT PRICE
<br />Service Only 2009
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