SIEMENS BUILDING TECHNOLOGIES 2 - 2006

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SIEMENS sile conditions. SIEMENS Is not responsible for inspectlng, observing, reporting or correcting health or safety conditions or deficiencies of Customer or others at Customer's site. So as nol to discourage SIEMENS from vOluntarily addressing such issues, In the event SIEMENS does make observations, reports, suggestions or otherwise regarding such Issues, SIEMENS shall not be liable or responsible for same. 4.4 Except as expressly stated in this Agreement, Customer is solely responsible for any removal, replacement or refinishing of the building structure or finishes that may be required to perform or gain access to the Services. 4.5 Customer alone shall act to protect life and property from the time a partial or full system failure occurs until SIEMENS notifies Customer that such system is operational or the emergency has been cleared. Customer's actions shall include all appropriate interim safety precautions (such as a manual "fire watch"). SIEMENS shall have no obligation to provide guards, fire watch personnel, or other services following a system failure, except Services as are specifically provided for in this Agreement. 4.6 Customer shall not allach to the system or Covered Equipment any device that Interferes with the Services orthe proper operation of the system or Covered Equipment. Article 5: Compensation 5.1 Unless otherwise agreed in writing, this Agreement is not cancelable and the annual fee is not refundable except as provided herein. 5.2 SIEMENS shall invoice Customer as provided in this Agreement, or if not expressly provided, then on an annual basis prior to the Start Date and annually thereafter on the anniversary of such Start Date. Invoices are due arid payable net cash upon receipt unless Customer has applied and been approved for credit with SIEMENS, In which case the Invoice is payable within 30 calendar days of receipt by Customer or as othSlWise set forth In this Agreement. If any pa~ent is not received When due, SIEMENS may deem Customer to be in breach hereof and may enforce any remedies available to it hereunder or at law, including without limitation, acceleration of payments and suspension or tennlnation of Services at any time and without notice, and shall be entitled to compensation for Services previously perfonned and costs reasonably incurred In connection with the suspension or tennlnation. Any amount not paid within 30 calendar day.> of InVoice receipt shall accrue interest from the date due, until paid, at the rate of 12% per annum. Customer shall reimburse SIEMENS' costs and expenses Oncluding reasonable attorneys' and witnesses' fees) incurred for colIection under this Agreement. If Customer disputes any portion or all of an invoice, it shall notify SIEMENS in writing of the amount in dispute and the reason for its disagreement within 21 days of receipt of the Invoice. The undisputed portion shail be paid when due, and interest on any unpaId portion shall accrue as aforesaid, from the date due until paid, to the extent that such amounts are finally determined to be payable to SIEMENS. 5.3 Except to the extent expressly agreed in this Agreement, SIEMENS' fees do not Include any taxes, excises, fees, duties, pennits or other govemment charges related to the Services. Customer shall pay such amounts or reimburse SIEMENS for any amounts it pays. If Customer claims a tax exemption or direct payment permit, it shall provide SIEMENS with a valid exemption certificate or permit and indemnify, defend and hold SIEMENS harmless from any taxes, costs and penaltfes arising out of same. 5.4 The pricing for each year after the first year of the Agreement and each year of each renewal of the Agreement shall be determined as the Immediate prior year price plus a price escalator based upon the U.S. Department of Labor, Bureau of Labor Statistics Urban Consumer Price Index-AII Urban Consumers, U.S. All Items, 1982- 1984=100 ("CPI-U"). In addition, each renewal term pricing shall be adjusted for any additions or deletions to Services selected for the renewal term. The price escalator shall be the latest semi-annual CPI-U identified above published prior to each annual anniversary. This escalator shall be applicable to each annual term, whether a renewal term or an annual tenn after the first year of the Initial Term. In any event, the escalator shall neither exceed 5.0% nor be less than 3.0%. Article 6. Changes; Delays; Excused Performance 6.1 As the Services are performed, conditions may change or circumstances outsIde SIEMENS' reasonable control (such as changes of law) may develop which require SIEMENS to expend additional costs, effort or time to complete the Services, in which case SIEMENS shall notify Customer and an equitable adjustment made to the compensation and time for performance. In the event conditions or circumstances require Services to be suspended or terminated, SIEMENS shall be compensated for Services performed and for costs reasonable incurred in connection with the suspension or termination. 6.2 SIEMENS shall not be responsible for loss, delay, Injury, damage or failure of performance that may be caused by circumstances beyond its control, Including but not limited to acts or omissions by Customer or its employees, agents or contractors, Acts of God, war, civil commotion, acts or omissions of government authorities, fire, theft, corrosion, flood, water damage, lightning, freeze-ups, strikes, lockouts, differences with workmen, riots, explosions, quarantine restrictions, delays In transportallon, or shortage of vehicles, fuel, labor or materials. In the event of any such circumstances, SIEMENS shall be excused from perfOlTllance of the Services and the time for performance shall be extended by a period equal to the time lost plus a reasonable recovery period and the compensation equitably adjusted to compensate for additional costs SIEMENS incurs due to such circumstances. Article 7: Allocation of Risk 7.1 EXCEPT SUCH OBliGATIONS EXPRESSLY STATED iN THIS AGREEMENT, SIEMENS EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, STATUTORY, EXPRESS, OR IMPliED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FORA PARTICULAR PURPOSE. SIEMENS MAKES NO WARRANTY, EXPRESS OR IMPliED, THAT ANY SERVICES PROVIDED HEREUNDER WILL PREVENT ANY LOSS, OR WILL IN All CASES PROVIDE THE PROTECTION FOR WHiCH IT IS PERFORMED OR INTENDED. THE EXPRESS WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS AGREEMENT MAY ONLY BE MODIFIED OR SUPPLEMENTED IN A WRITING SIGNED BY AN OFFICER OF SIEMENS. 7.2 Customer hereby, for it and any parties claiming under it, releases and discharges SIEMENS from any liability arising out of all hazards covered by Customer's Insurance, and all claims against SIEMENS arising out of such hazards, Including any right of subrogallon by Customer's insurance carrier, are hereby waived by Customer. 7.3 Anything herein notwithstanding, In no event shall either party be responsible under this Agreemeni for Incidental, consequential, punitive, exemplary or special damages, Including without limitation lost profits, loss of use and/or lost business opportunities, 'whether arising In warranty, late or nori-delivery of any Services, tort, contract or strict lIability, and regardless of whether either party has been advised of the possibility of such damages and, in any event, SIEMENS' aggregate liabJllty for any and all claims, Josses or expenses (including attorneys fees) arising out of this Agreement, or out of any Services fumished under this Agreement, whether based In COlltract, negligence, strict liability, agency, warranty, trespass, indemnity or any other theory of liabIlity, shall be limited, as liquidated damages, to the greater of $1,000 or 10% of the total compensation received by SIEMENS from Customer under this Agreement. SIEMENS reserves the right to control the defense and settlement of any claim for which SIEMENS has an obligation to indemnify hereunder. The parties acknowledge that the price which SIEMENS has agreed to perform its Services and obligations under this Agreement is calculated based upon the foregoing limItations of liability, and that SIEMENS has expressly relied on, and would not have entered into this Agreement but for such IImilationsofliability. 7.4 It is understood and agreed by and between the parties that SIEMENS is not an insurer and this Agreement is not intended to be an Insurance policy ora substitute for an insurance policy. Insurance, if any, shall be obtained by Customer. Fees are based solely upon the value of the Services, and are unrelated to the value of Customer's property or the property of others on Customer's premises. Article 8: Hazardous Materials Provisions 8.1 The Services does not include directly or indirectly performing or arranging for the detection, monitoring, handling, storage, removal, transportation, disposal or treatment of Oii or Hazardous Materials. Except as disciosed pursuant to this Articie, Customer represents that, to Its best knO\o\lledge, there is no asbestos or any other hazardous or toxic materials, as defined In the Comprehensive Environmental Response, Compensation and liability Act of 1980, as amended, the regulations promulgated thereunder, and other applicable federal, state or local law C'Hazardous Materials"), present at Customer's Sites where the Services are performed. SIEMENS will notify Customer immediate,ly If it discovers or suspects the presence of any Hazardous Material. Ail Services have been priced and agreed to by SIEMENS In reliance on Customer's representations as set forth in this Article. The presence of Hazardous Materials constitutes a change in this Agreement whose terms must be agreed upon by SIEMENS before its obligations hereunder shall continue. , 8.2 Customer Is solely responsible for testing, abating, encapsulating, removing, remedying or neutralizing such Hazardous Materials, and for the costs thereof. Customer Is responsible for the proper disposal of all Hazardous Materials and Oil that at any time are present at the ServIces site in accordance with all applicable federal, state, and local laws, regulations, and ordinances. Even if change order has been entered into pursuant to this Article, SIEMENS shall have the right to stop the Services until the site is free from Hazardous Materials. In such event, SIEMENS shall receive an equitable extension of time to complete the Services, and compensation for delays caused by Hazardous Materials remediation. In no event shail SIEMENS be required or construed to take title, ownership or responsibIlity for such Oil or Hazardous Materials. Customer shall sign any required wasle manifests in conformance with ail government regulations, listing Customer as the generator of the waste. 8.3 Customer warrants that, prior to the execution of this Agreement, It shall notify SIEMENS in writing of any and all Hazardous Materials which to Customer's best knowledge are present, potentially present or likely to bacome present at the Services site and shall provide a copy of any site safety policies, including but not limited to lock-out and tag procedures, chemical hygiene plan, MSDSs or other items required to be disclosed or maintained by federal, state, or locai laws, regulations or ordinances. 8.4 Customer shall indemnify, defend and hold SIEMENS harmless from and against any damages, losses, costs, liabilities or expenses Oncludlng attorneys' fees) arising out of any Oil or Hazardous Materials orfrom Customer's breach of, or failure to perform its obligations under this Article. [, Initials Page 4 of 4 Ii