|
<br />SIEME~S BUILDI,NG TECHNOLOGIES, INC.
<br />rfRMs AND CONDITIONS (WID FLS) '-"
<br />
<br />Landis Division
<br />
<br />'-'
<br />
<br />The following terms and conditions are attached to and form an integral part of Siemens Building Technologies, Inc.'s (referred to herein as "SBTI")
<br />Technical Support Program Proposal ("Proposal"). The portions of such Proposal relating to "Scope of Work" or any "Proposed Solution" (in either case,
<br />referred to herein as the "Proposed Solution"), together with these terms and conditions, are collectively referred to as the "TSP Agreement".
<br />
<br />Article 1: General
<br />1.1 a) The TSP Agreement, when accepted in writing by the Customer
<br />and approved by an authorized representative of SBTI shall constitute the
<br />entire, complete and exclusive agreement between the parties relating to a
<br />technical support program ("Services") for the equipment and software
<br />identified in the List of Equipment or the Service Coverage Report attached
<br />. to the TSP Agreement ("Equipment") and shall supersede and cancel all
<br />prior agreements and understandings, written or oral, relating to the
<br />subject matter of the TSP Agreement. The TSP Agreement and any rights
<br />or obligations thereunder may not be assigned by either party without the
<br />advance written consent of the other.
<br />(b) The terms and conditions of this TSP Agreement shall not be
<br />modified or rescinded except in writing, signed by a corporate officer of
<br />SBTI. SBTl's performance under this TSP Agreement is expressly
<br />conditioned on Customer's assenting to all of the terms of this TSP
<br />Agreement, notwithstanding any different or additional terms contained in
<br />any writing at any time submitted or to be submitted to SBTI by Customer
<br />relating to this subject matter.
<br />c) The terms and conditions set forth herein shall supersede,
<br />govern and control any conflicting terms of the Proposed Solution or the
<br />Proposal.
<br />1,2 This TSP Agreement shall automatically renew for successive
<br />one (1) year periods beginning on the anniversary date of the original term
<br />as set forth in the Proposal, unless stated otherwise in the TSP
<br />Agreel)1ent.
<br />1.3 Either party may terminate or amend this TSP Agreement at the
<br />end of the initial term or at the end of a renewal term by giving the other
<br />party at least sixty (60) days prior written notice of such amendments or
<br />intent not to renew.
<br />1.4 If, during or within 90 days after the term of this TSP Agreement,
<br />Customer engages any SBTI employee who has performed Services
<br />under this TSP Agreement, Customer shall pay SBTI an amount equal to
<br />the employee's latest annual salary,
<br />1.5 This TSP Agreement shall be governed by and enforced in
<br />accordance with the laws of the State of Illinois, or if the Services are
<br />provided in Canada, the Province of Ontario. All claims or disputes arising
<br />under this TSP Agreement shall be litigated in the State, Commonwealth,
<br />or Province in which Services are being provided to Customer hereunder.
<br />1.6 The Services are outlined in the attached Proposal's Proposed
<br />Solution provisions, incorporated by reference herein, and shall be
<br />performed on the Equipment during SBTl's normal working hours, Monday
<br />through Friday inclusive, excluding holidays, unless otherwise set forth
<br />herein.
<br />1,7 Customer will at all times designate a contact person with
<br />authority to make decisions for Customer regarding the Services.
<br />Customer will provide SBTI with information sufficient to contact such
<br />person in an emergency. If such representative cannot be reached, any
<br />request for Service received from a person located at Customer's premises will
<br />be deemed authorized by Customer, and SBTI will, in its discretion, act
<br />accordingly.
<br />1.8 SBTI will be permitted to control andlor operate all Equipment
<br />necessary to perform the Services.
<br />1.9 SBTI will not be required to conduct safety or other tests, install
<br />new devices or equipment or make modifications to any Equipment
<br />beyond the Proposed Solution set forth in this TSP Agreement. Any
<br />Customer request to change the Proposed Solution or the nature of the
<br />Services must be in the form of a mutually agreed change order, effective
<br />only when executed by all parties hereto.
<br />1.10 If the Equipment is altered or moved by any person, including
<br />Customer, other than SBTI or a person authorized by it, Customer shall
<br />immediately notify SBTI in writing, and SBTI reserves the right to perform a
<br />reacceptance test on, or if necessary a recommissioning of, the system at
<br />Customer's expense.
<br />1.11 After any of the following events, SBTI will have no liability or
<br />obligation under this TSP Agreement. whether relating to the testing,
<br />inspection, maintenance or operation of any Equipment, and may
<br />terminate or suspend services under this TSP Agreement immediately
<br />upon giving notice to Customer: Customer fails to (a) authorize a
<br />reacceptance test or recommissioning that SBTI deems necessary; (b)
<br />notify SBTI of any modifications or changes to the Equipment per Section
<br />1.10; (c) notify SBTI of any conditions, malfunctions or changes per
<br />Section 6.2; or (d) provide the access required by Section 6.3.
<br />
<br />Article 2: Equipment Testing, Inspection and Maintenance
<br />2.1 The Customer represents that all Equipment is in satisfactory
<br />working condition. By the latter of the first thirty (30) days of this TSP
<br />Agreement or the first scheduled inspection, SBTI will have inspected all the
<br />Equipment.
<br />2.2 If SBTI determines as a result of such inspection that any
<br />Equipment is in need of repair or replacement, the Customer will be so
<br />notified and shall take corrective action within thirty (30) days, or such
<br />Equipment shall be automatically removed from coverage hereunder. SBTI
<br />will not be liable or responsible for the continued testing, maintenance,
<br />repair, replacement or operating capabilities of any portion of the Equipment
<br />until it has been restored to an acceptable initial condition at Customer's sole
<br />expense. Any services provided by SBTI in the course of such restoration
<br />will be separately charged, on a time and materials basis. and not included in
<br />fees paid hereunder. If individual items of Equipment cannot, in SBTl's sole
<br />determination, be properly repaired or replaced due to age, obsolescence,
<br />lack of availability of refrigerant gas, halon gas, necessary parts, materials,
<br />compatibility or otherwise, or as a result of excessive wear or deterioration,
<br />SBTI may, within ten (10) days of such inspection, give written notice that it
<br />is withdrawing such items from coverage under this TSP Agreement and
<br />adjust the amounts to be paid hereunder accordingly.
<br />2,3 If the Proposed Solution provides for maintenance. any repairs and
<br />replacements of Equipment are limited to restoring the proper working
<br />condition of such Equipment. SBTI will not be obligated to provide
<br />replacement Equipment that represents significant capital improvement
<br />compared to the original. Exchanged components become the property of
<br />SBTI, except Hazardous Materials, which will under all circumstances
<br />remain the property and responsibility of Customer.
<br />
<br />Article 3: Charges, Fees and Invoices
<br />3.1 Payments to be made under this TSP Agreement will provide for,
<br />and be in consideration of, only Services specifically included under the
<br />Proposed Solution. All other Services, including but not limited to the
<br />following, shall be separately billed or surcharged on a time and materials
<br />basis: (a) emergency Services performed at Customer's request, if
<br />inspection does not reveal any deficiency covered by this TSP Agreement;
<br />(b) Services performed other than during SBTI's normal working hours; and
<br />(c) Service performed on equipment not covered by this TSP Agreement.
<br />3.2 Invoices are due upon receipt or otherwise as may be set forth
<br />therein. If any payment is not received when due, SBTI may deem
<br />Customer to be in breach hereof and may enforce any remedies available to
<br />it hereunder or at law, including without limitation suspension or termination
<br />of Services and acceleration of payments. Any amount not paid within sixty
<br />(60) days of the date due shall accrue interest from the date due, until paid,
<br />at the rate of ten percent (10%) per annum. In the event of a dispute by
<br />Customer regarding any portion or all of an invoiced amount, the undisputed
<br />portion shall be paid when due, and interest on the disputed, unpaid portion
<br />shall accrue as aforesaid, from the date due until the date of payment, to the
<br />extent that such amounts are finally determined to be payable to SBTI.
<br />3.3 Customer is responsible for paying any present or future sales, use,
<br />occupancy, excise or other federal. provincial, or local tax due or owing as a
<br />result of this TSP Agreement.
<br />
<br />Article 4: Allocation of Risk
<br />4.1 (a) Until one year from either the date hereof or the date the
<br />Equipment is installed, whichever first occurs, all equipment manufactured
<br />by SBTl or bearing its nameplate will be free from defects in material and
<br />workmanship arising from normal use and service.
<br />(b) labor for all Services under this TSP Agreement is warranted for
<br />90 days after the work is performed.
<br />(c) Equipment will not fail to function because of errors in processing,
<br />providing or receiving date or time data involving dates between January 1,
<br />1999 and March 31, 2001, provided other products and software, including the
<br />computer workstation, with which the system interacts properly exchange date
<br />and time data with the system.
<br />4.2 (a) The limited warranties set forth in Section 4.1 will be void as to,
<br />and shall not apply to, any Equipment (i) repaired, altered or improperly
<br />installed by any person other than SBTI or its authorized representative; (ii)
<br />subjected to unreasonable or improper use or storage. used beyond rated
<br />conditions, operated other than per SBTI's or the manufacturer's instructions,
<br />or otherwise subjected to improper maintenance, negligence or accident; (iii)
<br />damaged because of any use of the Equipment after Customer has, or
<br />should have, knowledge of any defect in the Equipment; or (iv) not
<br />
<br />FORM HVAC (10/98)
<br />
|