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SERVICE AGREEMENT
<br />13. Confined Space. If access to confined space
<br />by Company is required for the performance of
<br />Services, Services shall be scheduled and
<br />performed in accordance with Company's
<br />then-current hourly rate.
<br />14. Hazardous Materials. Customer represents
<br />that, except to the extent that Company has been
<br />given written notice of the following hazards prior to
<br />the execution of this Agreement, to the best of
<br />Customer's knowledge there is no:
<br />"Permit confined space," as defined by OSHA,
<br />Risk of infectious disease,
<br />Need for air monitoring, respiratory protection, or
<br />other medical risk,
<br />• Asbestos, asbestos-containing material,
<br />formaldehyde or other potentially toxic or otherwise
<br />hazardous material contained in or on the surface of
<br />the floors, walls, ceilings, insulation or other
<br />structural components of the area of any building
<br />where work is required to be performed under this
<br />Agreement.
<br />All of the above are hereinafter referred to as
<br />"Hazardous Conditions". Company shall have the
<br />right to rely on the representations listed above.
<br />If hazardous conditions are encountered by
<br />Company during the course of Company's work, the
<br />discovery of such materials shall constitute an event
<br />beyond Company's control and Company shall
<br />have no obligation to further perform in the area
<br />where the hazardous conditions exist until the area
<br />has been made safe by Customer as certified in
<br />writing by an independent testing agency, and
<br />Customer shall pay disruption expenses and
<br />re-mobilization expenses as determined by
<br />Company.
<br />This Agreement does not provide for the cost of
<br />capture, containment or disposal of any hazardous
<br />waste materials, or hazardous materials,
<br />encountered in any of the Covered System(s)
<br />and/or during performance of the Services. Said
<br />materials shall at all times remain the responsibility
<br />and property of Customer. Company shall not be
<br />responsible for the testing, removal or disposal of
<br />such hazardous materials.
<br />15. Limited Warranty. COMPANY WARRANTS
<br />THAT ITS WORKMANSHIP AND MATERIAL
<br />FURNISHED UNDER THIS AGREEMENT WILL
<br />BE FREE FROM DEFECTS FOR A PERIOD OF
<br />NINETY (90) DAYS FROM THE DATE OF
<br />FURNISHING. Where Company provides
<br />product or equipment of others, Company will
<br />warrant the product or equipment only to the
<br />extent warranted by such third party. EXCEPT
<br />AS EXPRESSLY SET FORTH HEREIN,
<br />COMPANY DISCLAIMS ALL WARRANTIES,
<br />EXPRESS OR IMPLIED, INCLUDING BUT NOT
<br />LIMITED TO ANY IMPLIED WARRANTIES OF
<br />MERCHANTABILITY OR FITNESS FOR A
<br />PARTICULAR PURPOSE WITH RESPECT TO
<br />THE SERVICES PERFORMED OR THE
<br />PRODUCTS, SYSTEMS OR EQUIPMENT, IF ANY,
<br />SUPPORTED HEREUNDER. COMPANY MAKES
<br />NO WARRANTY OR REPRESENTATION, AND
<br />UNDERTAKES NO OBLIGATION TO ENSURE BY
<br />THE SERVICES PERFORMED UNDER THIS
<br />AGREEMENT, THAT COMPANY'S PRODUCTS
<br />OR THE SYSTEMS OR EQUIPMENT OF THE
<br />CUSTOMER WILL CORRECTLY HANDLE THE
<br />PROCESSING OF CALENDAR DATES BEFORE
<br />OR AFTER DECEMBER 31, 1999.
<br />16. Indemnity. Customer agrees to indemnify, hold
<br />harmless and defend Company against any and all
<br />(continued)
<br />losses, damages, costs, including expert fees and
<br />costs, and expenses including reasonable defense
<br />costs, arising from any and all third party claims for
<br />personal injury, death, property damage or
<br />economic loss, including specifically any damages
<br />resulting from the exposure of workers to
<br />Hazardous Conditions whether or not Customer
<br />pre-notifies Company of the existence of said
<br />hazardous conditions, arising in any way from any
<br />act or omission of Customer or Company relating In
<br />any way to this Agreement, including but not limited
<br />to the Services under this Agreement, whether such
<br />claims are based upon contract, warranty, tort
<br />(including but not limited to active or passive
<br />negligence), strict liability or otherwise. Company
<br />reserves the right to select counsel to represent It in
<br />any such action.
<br />17. Insurance. Customer shall name Company, its
<br />officers, employees, agents, subcontractors,
<br />suppliers, and representatives as additional
<br />insureds on Customer's general liability and auto
<br />liability policies.
<br />18. Exclusions. This Agreement expressly
<br />excludes, without limitation, testing inspection and
<br />repair of duct detectors, beam detectors, and UV/IR
<br />equipment; provision of fire watches; clearing of Ice
<br />blockage; draining of Improperly pitched piping;
<br />batteries; recharging of chemical suppression
<br />systems; reloading of, upgrading, and maintaining
<br />computer software; making repairs or replacements
<br />necessitated by reason of negligence or misuse of
<br />components or equipment or changes to
<br />Customer's premises, vandalism, corrosion
<br />(Including but not limited to micro-bacterially
<br />induced corrosion ("MIC")), power failure, current
<br />fluctuation, failure due to non-Company Installation,
<br />lightning, electrical storm, or other severe weather,
<br />water, accident, fire, acts of God or any other cause
<br />external to the Covered System(s). This Agreement
<br />does not cover and specifically excludes system
<br />upgrades and the replacement of obsolete systems,
<br />equipment, components or parts. All such services
<br />may be provided by Company at Company's sole
<br />discretion at an additional charge. If Emergency
<br />Services are expressly Included in the scope of
<br />work sectlon, the Agreement price does not include
<br />travel expenses.
<br />19. Availability and Cost of Steel, Plastics
<br />& Other Commodities. Company shall not be
<br />responsible for failure to provide services, deliver
<br />products, or otherwise perform work required by this
<br />Agreement due to lack of available steel products or
<br />products made from plastics or other commodities.
<br />(i) In the event Company is unable, after reasonable
<br />commercial efforts, to acquire and provide steel
<br />products, or products made from plastics or other
<br />commodities, if required to perform work required
<br />by this Agreement, Customer hereby agrees that
<br />Company may terminate the Agreement, or the
<br />relevant portion of the Agreement, at no additional
<br />cost and without penalty. Customer agrees to pay
<br />Company in full for all work performed up to the
<br />time of any such termination. (ii) If Company is able
<br />to obtain the steel products or products made from
<br />plastics or other commodities, but the price of any
<br />of the products has risen by more than 10% from
<br />the date of the bid, proposal or date Company
<br />executed this Agreement, whichever occurred first,
<br />then Company may pass through that increase
<br />through a reasonable price increase to reflect
<br />increased cost of materials.
<br />20. Force Majeure. Company shall not be
<br />responsible for delays or failure to render services
<br />due to causes beyond Its control, including but not
<br />limited to material shortages, work stoppages, fires,
<br />civil disobedience or unrest, severe weather, fire or
<br />any other cause beyond the control of Company.
<br />21. Termination. Company may terminate this
<br />Agreement immediately at its sole discretion upon
<br />the occurrence of any Event of Default as
<br />hereinafter defined. Company may also terminate
<br />this Agreement at Its sole discretion upon notice to
<br />Customer if Company's performance of Its
<br />obligations under this Agreement becomes
<br />impracticable due to obsolescence of equipment at
<br />Customer's premises or unavailability of parts.
<br />22. No Option to Solicit. Customer shall not,
<br />directly or Indirectly, on its own behalf or on behalf
<br />of any other person, business, corporation or entity,
<br />solicit or employ any Company employee, or Induce
<br />any Company employee to leave his or her
<br />employment with Company, for a period of two
<br />years after the termination of this Agreement.
<br />23. Default. An Event of Default shall be 1) failure
<br />of the Customer to pay any amount within ten (10)
<br />days after the amount Is due and payable, 2) abuse
<br />of the System or the Equipment, 3) dissolution,
<br />termination, discontinuance, insolvency or business
<br />failure of Customer. Upon the occurrence of an
<br />Event of Default, Company may pursue one or
<br />more of the following remedies, 1) discontinue
<br />furnishing Services, 2) by written notice to
<br />Customer declare the balance of unpaid amounts
<br />due and to become due under the this Agreement
<br />to be Immediately due and payable, provided that
<br />all past due amounts shall bear Interest at the rate
<br />of 1Y, % per month (18% per year) or the highest
<br />amount permitted by law, 3) receive Immediate
<br />possession of any equipment for which Customer
<br />has not paid. 4) proceed at law or equity to enforce
<br />performance by Customer or recover damages for
<br />breach of this Agreement, and 5) recover all costs
<br />and expenses, Including without limitation
<br />reasonable attorneys' fees, In connection with
<br />enforcing or attempting to enforce this Agreement.
<br />24. One-Year Limitation On Actions; Choice Of
<br />Law. It Is agreed that no suit, or cause of action or
<br />other proceeding shall be brought against either
<br />party more than one (1) year after the accrual of the
<br />cause of action or one (1) year after the claim
<br />arises, whichever is shorter, whether known or
<br />unknown when the claim arises or whether based
<br />on tort, contract, or any other legal theory. The laws
<br />of Massachusetts shall govern the validity,
<br />enforceability, and interpretation of this Agreement.
<br />25. Assignment. Customer may not assign this
<br />Agreement without Company's prior written
<br />consent. Company may assign this Agreement
<br />without obtaining Customer's consent.
<br />26. Entire Agreement. The parties intend this
<br />Agreement, together with any attachments or
<br />Riders (collectively the "Agreement") to be the final,
<br />complete and exclusive expression of their
<br />Agreement and the terms and conditions thereof.
<br />This Agreement supersedes all prior
<br />representations, understandings or agreements
<br />between the parties, written or oral, and shall
<br />constitute the sole terms and conditions of sale for
<br />all equipment and services. No waiver, change, or
<br />modification of any terms or conditions of this
<br />Agreement shall be binding on Company unless
<br />made in writing and signed by an Authorized
<br />Representative of Company.
<br />27. Severabillty. If any provision of this Agreement
<br />02009 SimplexGrimell LP. All rights reserved. SG4269R6 (Rev. 01/09) 4321502514 Page 10 of 11
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