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<br />~nutactpr~, fabricated and assembled by SBTI or not bearing SBTl's
<br />nClmeplGlte, However, SBTI assigns to Custorr vithout recourse, any
<br />and all assignable warranties available from any~ufacturer, supplier, or
<br />subcontractor of such Equipment.
<br />(b) Any claim under the limited warranty granted above must be
<br />made in writing to SBTI within thirty (30) days after discovery of the
<br />.claimed defect, or with respect only to the warranty set forth in Subsection
<br />4.1 (c) prior to April 1, 2001, unless discovered directly by SBTI. Such
<br />limited warranty only extends to Customer and not to any subsequent
<br />owner of the Equipment. Customer's sole and exclusive remedy for any
<br />Equipment or Services not conforming with this limited warranty is limited
<br />to, at SBTl's option, (i) repair or replacement of defective components of
<br />covered Equipment, or (ii) reperformance of the defective portion of the
<br />, Services, or (ii) to the extent previously paid, the issuance of a credit or
<br />refund for the original purchase price of such defective component or
<br />potion of the Equipment or Services,
<br />(c) SBTI shall not be required to repair or replace more than the
<br />component(s) of the Equipment actually found to be defective. SBTl's
<br />warranty liability shall not exceed the purchase price of such item.
<br />Repaired or replaced Equipment will be warranted hereunder only for the
<br />remaining portion of the original warranty period.
<br />4,3 THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE
<br />ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES,
<br />STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT
<br />LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS
<br />FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY
<br />DISCLAIMED. SBTI MAKES NO WARRANTY, EXPRESS OR IMPLIED,
<br />THAT ANY EQUIPMENT PROVIDED HEREUNDER WILL PREVENT
<br />ANY LOSS, OR WILL IN ALL CASES PROVIDE THE PROTECTION FOR
<br />WHICH IT IS INSTALLED OR INTENDED. THE LIMITED EXPRESS
<br />WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS TSP
<br />AGREEMENT MAY ONLY BE MODIFIED OR SUPPLEMENTED IN A
<br />WRITING SIGNED BY A DULY AUTHORIZED CORPORATE OFFICER
<br />OF SBTI.
<br />4.4 SBTI will indemnify Customer from and against losses, claims,
<br />expenses and damages (including reasonable attorney's fees) for personal
<br />injury or physical damage to property, but not loss of use of the property
<br />resulting from such damage or from damage to any work performed
<br />hereunder. Such indemnification shall be solely to the extent caused by or
<br />arising directly from SBTl's or its employees', consultants' or agents'
<br />negligent acts or omissions or willful misconduct in connection with its
<br />performance of Services hereunder. SBTl's obligations under this
<br />indemnity provision shall not extend to claims, losses, expenses and
<br />damages arising out of or in any way attributable to the negligence of
<br />Customer or its agents, consultants or employees other than SBTI. SBTl's
<br />liability to Customer or any third party under this Section 4.5 or otherwise
<br />under the TSP Agreement is expressly limited to, and SBTI shall not be
<br />liable other than for the direct losses, claims, expenses and damages
<br />arising as aforesaid, SBTI shall in no event be responsible under this TSP
<br />Agreement for incidental, consequential, punitive, exemplary or special
<br />damages, including without limitation lost profits andlor lost business
<br />opportunities, whether arising in warranty, late or non-delivery of any
<br />Equipment or Services, tort, contract or strict liability, and regardless of
<br />whether SBTI has been advised of the possibility of such damages, SBTI
<br />reserves the right to control the defense and settlement of any claim for
<br />which SBTI has an obligation to indemnify hereunder. The parties
<br />acknowledge that the price for which SBTI has agreed to perform its
<br />Services and obligations under this TSP Agreement has been calculated
<br />based upon the foregoing limitations of liability, and that SBTI has
<br />expressly relied on, and would not have entered into this TSP Agreement
<br />but for, such limitations of liability.
<br />
<br />Article 5: Environmental
<br />5,1 Except as disclosed pursuant to Section 5.3, Customer
<br />represents that there is no asbestos or any other hazardous or toxic
<br />materials, as defined in the Comprehensive Environmental Response,
<br />Compensation and Liability Act of 1980, as amended, the regulations
<br />promulgated thereunder, and other applicable federal, state or local law
<br />("Hazardous Materials"), present at Customer's locations where Services
<br />are performed. SBTI will notify Customer immediately if it discovers or
<br />suspects the presence of any Hazardous Material. All Services have been
<br />priced and agreed to by SBTI in reliance on Customer's representations as
<br />set forth in this Section 5,1 The presence of Hazardous Materials
<br />constitutes a change in the Proposed Solution equivalent to a change
<br />order whose terms must be agreed to by SBTI before its obligations
<br />hereunder will continue.
<br />5.2 Customer shall be solely responsible for testing, abating,
<br />encapsulating, removing, remedying or neutralizing such Hazardous
<br />Materials, and for the costs thereof, Even if an appropriate change order
<br />has been entered into pursuant to Section 5.1 above, SBTI will continue to
<br />have the right to stop providing Services until the job site is free from
<br />Hazardous Materials. In such event, SBTI will receive an equitable
<br />
<br />extension of time to cOI"'~lete its Services, and compensation for delays
<br />caused by Hazardous M~IS remediation.
<br />
<br />5.3 Customer warrants that, prior to the execution of the TSP
<br />Agreement, it has notified SBTI in writing of any and all Hazardous Materials
<br />present, potentially present or likely to become present at Customer's
<br />locations and has provided a copy of any jobsite safety policies, including but
<br />not limited to lock-out and tag procedures, laboratory procedures, chemical
<br />hygiene plan, material safety data sheets, and other items covered or
<br />required to be disclosed or maintained by federal, state, or local laws,
<br />regulations or ordinances.
<br />
<br />5.4 Customer hereby indemnifies and holds harmless SBTI from and
<br />against any damages, losses, costs, liabilities or expenses arising from
<br />Customer's breach of, or failure to perform its obligations under, Sections
<br />5.1, 5,2 or 5,3 above,
<br />
<br />Article 6: Customer Responsibilities
<br />
<br />6.1 Customer will operate and maintain all Equipment in accordance
<br />with applicable manufacturer's specifications, including those set forth in the
<br />manufacturer's operating manuals or instructions, as well as all requirements
<br />of applicable law or of authorities having jurisdiction. Such Equipment shall
<br />be operated only in the specified operating environment, which shall be
<br />supplied by Customer, including without limitation: (a) suitable electrical
<br />service, including clean, stable, properly conditioned power, to all Equipment;
<br />(b) telephone lines, capacity and connectivity as required by such
<br />Equipment; and (c) heat, light, air conditioning or other environmental
<br />controls, and other utilities in accordance with the specifications for the
<br />Equipment. Failure to so operate the Equipment will terminate immediately
<br />any maintenance obligations SBTI may have hereunder.
<br />
<br />6.2 Customer will promptly notify SBTI of any unusual operating
<br />conditions, system malfunctions or building changes that may affect the
<br />Equipment or any Services,
<br />
<br />6.3 Customer will provide SBTI with reasonable means of access to
<br />the Equipment and shall make any necessary provisions to reach the
<br />Equipment and peripheral devices, Customer will be solely responsible for
<br />any removal, replacement or refinishing of the building structure or finishes
<br />that may be required to gain access to such Equipment.
<br />
<br />6.4 Customer shall properly dispose of all ballasts, mercury bulb
<br />thermostats, used oil, contaminated filters, contaminated absorbents,
<br />refrigerant and any other Hazardous Materials that at any time are present at
<br />Customer's premises, in accordance with all applicable federal, state, and
<br />local laws, regulations, and ordinances. At no time and under no
<br />circumstances will SBTI be responsible for any such removal or disposal and
<br />Customer hereby indemnifies and holds SBTI harmless from and against
<br />any liability or claim arising therefrom.
<br />
<br />6,5 Customer will, if applicable, provide and pay for a dedicated voice
<br />grade dial-up phone line and install a terminal block in a mutually agreed
<br />upon location. All on-line service Equipment (not including the phone line)
<br />will remain the property of SBTI unless otherwise stated herein.
<br />
<br />Article 7: Limitations of Maintenance or Service Obligations
<br />
<br />7.1 SBTI will not be responsible for the maintenance, repair or
<br />replacement of, or Services necessitated by reason of: (a) non-
<br />maintainable, non-replaceable, or obsolete parts of the Equipment, including
<br />but not limited to ductwork, shell and tubes, heat exchangers, coils, unit
<br />cabinets, casings, refractory material, electrical wiring, water and pneumatic
<br />piping, structural supports, cooling tower fill, slats and basins, etc. unless
<br />otherwise specifically stated herein; or (b) negligence, abuse, misuse,
<br />improper or inadequate repairs or modifications, improper operation, lack of
<br />operator maintenance or skill, failure to comply with manufacturer's operating
<br />and environmental requirements, Acts of God, or other reasons beyond its
<br />control. SBTI assumes no responsibility for any service performed on any
<br />Equipment other than by SBTI or its agents.
<br />
<br />7.2 SBTI shall not be responsible for loss, delay, injury or damage that
<br />may be caused by circumstances beyond its control, including but not
<br />restricted to acts or omissions by Customer or its employees or agents, Acts
<br />of God, war, civil commotion, acts of government, fire, theft, corrosion, flood,
<br />water damage, lightning, freeze-ups, strikes, lockouts, differences with
<br />workmen, riots, explosions, quarantine restrictions, delays in transportation,
<br />or shortage of vehicles, fuel, labor or materials.
<br />
<br />7.3 SBTI is not responsible for repairs, replacements or services to
<br />Equipment due to corrosion, erosion, improper or inadequate water
<br />treatment by others, electrolytic action, chemical action or other reasons
<br />beyond its reasonable control.
<br />
<br />7.4 SBTI shall not be responsible for the removal or reinstallation of
<br />replacement valves, dampers, waterflow and tamper switches required from
<br />pipes and duct work including any venting or draining systems.
<br />
<br />FORM HVAC (10/98)
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