SIEMENS BUILDING TECHNOLOGIES, INC. -2001

Home Browse Search

SIEMENS BUILDING TECHNOLOf.;IES, INC. "-/ Landis Division ....." TERMS AND CONDITIONS (WIO FLS) The following terms and conditions are attached to and form an integral part of Siemens Building Technologies, Inc.'s (referred to herein as "SBTI") Technical Support Program Proposal ("Proposal"). The portions of such Proposal relating to "Scope of Work" or any "Proposed Solution" (in either case, ,referred to herein as the "Proposed Solution"), together with these terms and conditions, are collectively referred to as the "TSP Agreement". Article 1: General Article 2: Equipment Testing, Inspection and Maintenance .1.1 a) The TSP Agreement, when accepted in writing by the Customer 2.1 The Customer represents that all Equipment is in satisfactory ,and approved by an authorized representative of SBTI shall constitute the working condition. By the latter of the first thirty (30) days of this TSP entire, complete and exclusive agreement between the parties relating to a Agreement or the first scheduled inspection, SBTI will have inspected all the technical support program ("Services") for the equipment and software Equipment. . identified in the List of Equipment or the Service Coverage Report attached 2.2 If SBTI determines as a result of such inspection that any to. the TSP Agreement ("Equipmen~") and s.hall supersede a~ cancel all Equipment is in need of repair or replacement, the Customer will be so pnor agreements and understandings, wntten or oral, relating to, the notified and shall take corrective action within thirty (30) days, or such subje~t m.atter of the TSP Agreement. Th~ TSP Agr~ement and <;1ny nghts Equipment shall be automatically removed from coverage hereunder. SBTI or obligatiOns thereunder may not be assigned by either party Without the will not be liable or responsible for the continued testing, maintenance, advance written consent of the other. repair, replacement or operating capabilities of any portion of the Equipment (b) The terms and conditions of this TSP Agreement shall not be until it has been restored to an acceptable initial condition at Customer's sole modified or rescinded except in writing, signed by a corporate officer of expense. Any services provided by SBTI in the course of such restoration SBTI. SBTl's performance under this TSP Agreement is expressly will be separately charged, on a time and materials basis, and not included in conditioned on Customer's assenting to all of the terms of this TSP fees paid hereunder. If individual items of Equipment cannot, in SBTI's sole Agreement, notwithstanding any different or additional terms contained in determination, be properly repaired or replaced due to age, obsolescence, any writing at any time submitted or to be submitted to SBTI by Customer lack of availability of refrigerant gas, halon gas, necessary parts, materials, relating to this subject matter. compatibility or otherwise, or as a result of excessive wear or deterioration, c) The terms and conditions set forth herein shall supersede, ?BT~ may, ~ithin ten ,(10) days of such inspection, Qive written notice that it govern and control any conflicting terms of the Proposed Solution or the IS WithdraWing such Items from coverage under thiS TSP Agreement and Proposal. adjust the amounts to be paid hereunder accordingly. 1.2 This TSP Agreement shall automatically renew for successive 2,3 If the Propos.ed Solution p~o~ides for main~enance, any repairs ~nd one (1) year periods beginning on the anniversary date of the original term repla~~ments of EqUlPr:nent are limited ~o restonng th.e proper work~ng as set forth in the Proposal unless stated otherwise in the TSP condition of such EqUipment. SBTI Will not be obligated to proVide Agreement.' replacement Equip~~nt that represents significant capital improvement 1.3 Either party may terminate or amend this TSP Agreement at the compared to the onglnal. Excha~ged co~pon~nts become th.e property of end of the initial term or at the end of a renewal term by giving the other SBTI: except Hazardous Mat~n~!s, which Will under all circumstances party at least sixty (60) days prior written notice of such amendments or remain the property and responsibility of Customer. intent not to renew. Article 3: Charges, Fees and Invoices 1.4 If, during or within 90 days after the term of this TSP Agreement, 3.1 Payments to be made under this TSP Agreement will provide for, Customer engages any SBTI employee who has performed Services and be in consideration of, only Services specifically included under the under this TSP Agreement, Customer shall pay SBTI an amount equal to Proposed Solution. All other Services, including but not limited to the the employee's latest annual salary. following, shall be separately billed or surcharged on a time and materials 1,5 This TSP Agreement shall be governed by and enforced in ~asis: .(a) emergency Services ~erformed at Cust<:>mer's request, if accordance with the laws of the State of Illinois, or if the Services are inspection does not reveal any defiCiency covered by thiS TSP Agreement; provided in Canada, the Province of Ontario, All claims or disputes arising (b) Serv,ices performed other. than during SBTI's nor~al working hours; and under this TSP Agreement shall be litigated in the State, Commonwealth, (c) Service performed on equipment not covered by thiS TSP Agreement. or Province in which Services are being provided to Customer hereunder. 3.2 Invoices are due upon receipt or otherwise as may be set forth 1.6 The Services are outlined in the attached Proposal's Proposed therein. If any payment is not received when due, SBTI may deem Solution provisions, incorporated by reference herein, and shall be ~ustomer to be in brea~h he~eof a~d ma~ e.nf~rce any rem.edies avail~bl~ to performed on the Equipment during SBTl's normal working hours, Monday It here~nder or at law, 1n~ludlng Without limitation suspension <:>r te:n:lna~lon through Friday inclusive, excluding holidays, unless otherwise set forth of Services and acceleration of payments. Any amount not paid Within Sixty herein. (60) days of the date due shall accrue interest from the date due, until paid, 1.7 Customer will at all times designate a contact person with at the rate of te~ percent (1.0%) per annu~. 1!1 the event of a dis~ute by authority to make decisions for Customer regarding the Services. Cus~omer regardln~ any portion or al~ of an InVOIced ~mount, the u~dlspu~ed Customer will provide SBTI with information sufficient to contact such portion shall be paid w~en due, and Interest on, the diSputed, unpaid portion person in an emergency. If such representative cannot be reached, any shall accrue as aforesaid, from the date du~ until the date of payment, to the request for Service received from a person located at Customer's premises will extent that such amounts are finally determined to be payable to SBTI. be deemed authorized by Customer, and SBTI will, in its discretion, act 3,3 Customer is responsible for paying any present or future sales, use, accordingly. occupancy.. excise or other federal, provincial, or local tax due or owing as a 1,8 SBTI will be permitted to control and/or operate all Equipment result of thiS TSP Agreement. necessary to perform the Services, Article 4: Allocation of Risk 1,9 SBTI will not be required to conduct safety or other tests, install 4.1 (a) Until one year from either the date hereof or the date the new devices or equipment or make modifications to any Equipment Equipment is installed, whichever first occurs, all equipment manufactured beyond the Proposed Solution set forth in this TSP Agreement. Any by SBTI or bearing its nameplate will be free from defects in material and Customer request to change the Proposed Solution or the nature of the workmanship arising from normal use and service. Services must be in the form ?f a mutually agreed change order, effective (b) Labor for all Services under this TSP Agreement is warranted for only when executed by all parties hereto. 90 days after the work is performed. 1.10 If the Equipment is altered or moved. by any.person, including (c) Equipment will not fail to function because of errors in processing, ~usto~er, othe~ than S~TI <:>~ a person authonzed by It,. Customer shall providing or receiving date or time data involving dates between January 1, Immediately notify SBTII~ wntmg, and SBTI res~rv~ ~he nght to perform a 1999 and March 31, 2001, provided other products and software, including the reacceptance test on, or If necessary a recommissIoning of, the system at computer workstation, with which the system interacts properly exchange date Customer's expense. and time data with the system. 1,1.1 . After any .of the following events, SBTI will ~ave no Iiabilitx or 4.2 (a) The limited warranties set forth in Section 4.1 will be void as to, ?bhgatl?n unde~ thiS TSP Agreeme.nt, whether relatl.ng to the testing, and shall not apply to, any Equipment (i) repaired, altered or improperly Ins~ctlon, mamtenance c:>r operation .of any EqUipment,. and. may installed by any person other than SBTI or its authorized representative; (ii) termlnat.e. or suspend services under thiS TSP ~greement Imm~lately subjected to unreasonable or improper use or storage, used beyond rated upon giving notice to Cust~m~r:. Customer falls to (a) authonze a conditions, operated other than per SBTI's or the manufacturer's instructions, rea~ptance test or r~o~mlsslonmg that SBTI dee~s necessary; .(b) or otherwise subjected to improper maintenance, negligence or accident; (iii) notify SBTI o~ any modifications or c~~nges to the ~qUlpment per Section damaged because of any use of the Equipment after Customer has, or 1.10; (c) notify SBTI of any conditions, malfunctions or changes per should have knowledge of any defect in the Equipment. or (iv) not Section 6,2; or (d) provide the access required by Section 6.3.' ' FORM HVAC (10/98)