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(d) Furnish SIEMENS with all available Information pertinent to the Services;
<br />(e) Obtain and furnish to SIEMENS all approvals, permits and consents from
<br />government authorities and others as may be required for performance of the
<br />Services except forthose SIEMENS has expressly agreed in writing to obtain;
<br />(f) Maintain the Services site In a safe condition; notify SIEMENS promptly
<br />of any site conditions requiring special care; and provide SIEMENS with any
<br />available documents describing the quantity, nature, location and extent of such
<br />condition,
<br />(g) Comply with all laws and provide any notices required to be given to any
<br />government authorities In connection with the Services, except such notices
<br />SIEMENS has expressly agreed in this Agreement to give;
<br />(h) Provide SIEMENS with Material Safety Data Sheets (MSDS) conforming
<br />to OSHA requirements related to all Hazardous Materials at the site which may
<br />impact the Services;
<br />(i) Furnish to SIEMENS any contingency plans related to the site;
<br />0) Furnish the specified operating environment, including without limitation,
<br />suitable, clean, stable, progeny conditioned electrical power and other utilities;
<br />(k) Maintain all Covered Equipment in good working order in compliance with
<br />all applicable laws and service, repair and replace all Covered Equipment as
<br />necessary; and,
<br />(1) Perform inspections and tests as Indicated in the Life Safety System
<br />Logbook and record same in the Life Safety System logbook.
<br />4.2 Customer acknowledges that the technical and pricing information herein is
<br />proprietary to SIEMENS and agrees not to disclose or otherwise make it
<br />available to others,
<br />4.3 Customer acknowledges that It Is now and shall be at al times In control of
<br />the Services site. SIEMENS shall not have any responsibility, duty or authority
<br />to direct, supervise or oversee any employees or contractors of Customer or
<br />their work or to provide the means, methods or sequence of their work or to
<br />stop their work. SIEMENS' work and /or presence at a site shall not relieve
<br />others of their responsibility to Customer or to others. Except as expressly
<br />provided herein, SIEMENS is not responsible for the adequacy of the health,
<br />safety or security programs or precautions related to Customer's or it other
<br />contractors' activities or operations; the work of any other person or entity; or
<br />Customer's site conditions. SIEMENS is not responsible for inspecting,
<br />observing, reporting or connecting health or safety conditions or deficiencies of
<br />Customer or others at Customer's site. So as not to discourage SIEMENS
<br />from voluntarily addressing such issues, in the event SIEMENS does make
<br />observations, reports, suggestions or otherwise regarding such issues,
<br />SIEMENS shall not be liable or responsible for same.
<br />4.4 Except as expressly stated In this Agreement, Customer is solely
<br />responsible for any removal, replacement or refinishing of the building structure
<br />or finishes that may be required to perform or gain access to the Services.
<br />4.5 Customer alone shall act to protect life and property from the time a padl al
<br />or full system failure occurs grip SIEMENS notifies Customer that such system
<br />is operational or the emergency has been cleared Customer's actions shall
<br />Include all appropriate interim safely precautions (such as a manual "fire
<br />watch "). SIEMENS shall have no obligation to provide guards, fire watch
<br />personnel, or other services following a system failure, except Services as are
<br />specifically provided for In this Agreement.
<br />4.6 Customer shall not attach to the system or Covered Equipment any device
<br />that interferes with the Services or the proper operation of the system or
<br />Covered Equipment.
<br />Article 5. Compensation
<br />5.1 Annual Fee(s) shall be adjusted for each year after the final year of the
<br />Initial Term pursuant to the agreed Price Adjustment hereto and incorporated
<br />herein. Unless otherwise agreed in writing, this Agreement is not cancelable
<br />and the annual fee is not refundable except as provided herein.
<br />5.2 Payments to be made under this Agreement will provide for, and be in
<br />consideration of, only Services specifically included under the Proposed Souion. At
<br />other SeMces, including but not limited to the followng, shall be separately billed or
<br />surcharged on a time and materials basis, (a) emergency Services performed at
<br />Customers request, if Inspection does not reveal any deficiency covered by this
<br />Agreement; (h) Services performed other than during SIEMENS ' normal working
<br />hours; and (c) Service performed on equipment not covered by this Agreement.
<br />5 -3 SIEMENS shall invoice Customer as provided in this Agreement, or if not
<br />expressly provided, then on an annual basis prior to the Start Date and annually
<br />thereafter on the anniversary of such Start Dale. Invoices are due and payable
<br />net cash upon receipt unless Customer has applied and been approved for
<br />credit with SIEMENS, in which case the Invoice is payable within 30 calendar
<br />days of receipt by Customer or as otherwise set forth In this Agreement. If any
<br />payment Is not received when due, SIEMENS may deem Customer to be in
<br />breach hereof and may enforce any remedies available to it hereunder or at
<br />law, Including without limitation, acceleration of payments and suspension or
<br />termination of Services at any time and without notice, and shall be entitled to
<br />compensation for Services previously performed and costs reasonably Incurred
<br />in connection with the suspension or termination. In the event that any payment
<br />due hereunder is not paid when due, Customer agreest to pay, upon demand,
<br />as a late charge, one and one -half percent (1.5 %) of the amount of the payment
<br />per month, limited by the maximum rate permitted by law of each overdue
<br />Siemens Industry, Inc., Building Technologies Division
<br />amount under this Agreement. Customer shall reimburse SIEMENS costs and
<br />expenses (including reasonable attorneys' and witnesses' fees) incurred for
<br />collection under this Agreement. If Customer disputes any portion or all of an
<br />Invoice, it shall notify SIEMENS in writing of the amount In dispute and the
<br />reason for Its disagreement within 21 days of receipt of the invoice. The
<br />undisputed portion shall be paid when due, and interest on any unpaid portion
<br />shall accrue as aforesaid, from the date due until paid, to the extent that such
<br />amounts are finally determinable be payable to SIEMENS,
<br />5.4 Except to the extent expressly agreed In this Agreement, SIEMENS' fees
<br />do not Include any taxes, excises, fees, duties, permits or other government
<br />charges related to the Services. Customer shall pay such amounts or reimburse
<br />SIEMENS for any amounts It pays. If Customer claims a tax exemption or
<br />direct payment permit, it shall provide SIEMENS with a valid exemption
<br />certificate or permit and indemnify, defend and hold SIEMENS harmless from
<br />any taxes, costs and penalties arising out of same.
<br />5.5 Unless agreed otherwise, the pricing for each year after the Initial Term of
<br />the Agreement and each year of each renewal of the Agreement shall be
<br />determined as the immediate prior year price plus a price escalator based upon
<br />the U.S. Department of Labor, Bureau of Labor Statistics Urban Consumer
<br />Price Index-All Urban Consumers U.S. All items, 1911984=100 ( "CPI -U ").
<br />In addition, each renewal term pricing shall be adjusted for any additions or
<br />deletions to Services selected for the renewal term. The price escalator shall be
<br />the latest semi - annual Coll identified above published prior to each annual
<br />anniversary. This escalator shall be applicable to each annual term, whether a
<br />renewal term or an annual term after the first year of the Initial Term.
<br />Article 6. Changes; Delays; Excused Performance
<br />6.1 As the Services are performed, conditions may change or circumstances
<br />outside SIEMENS' reasonable control (such as changes of law) may develop
<br />which require SIEMENS to expend additional casts, effort or time to complete
<br />the Services, in which case SIEMENS shall notify Customer and an equitable
<br />adjustment made to the compensation and time for performance. In the event
<br />conditions or circumstances require Services to be suspended or terminated,
<br />SIEMENS shall be compensated for Services performed and for costs
<br />reasonable incurred in connection with the suspension ortermination.
<br />6.2 SIEMENS shall not he responsible for loss, delay, injury, damage or
<br />failure of performance that may be caused by circumstances beyond its control,
<br />Including but not limited to acts or omissions by Customer or Its employees,
<br />agents or contractors, Acts of Gad, war, civil commotion, acts or omissions of
<br />government authorities, fire, theft, corrosion, flood, water damage, lightning,
<br />freeze -ups, strikes, lockouts, differences with workmen, riots, explosions,
<br />quarantine restrictions, delays in transportation, or shortage of vehicles, fuel,
<br />labor or materials. In the event of any such circumstances, SIEMENS shall be
<br />excused from performance of the Services and the time for performance shall
<br />be extended by a period equal to the time lost plus a reasonable recovery
<br />period and the compensation equitably adjusted to compensate for additional
<br />costs SIEMENS Incurs due to such circumstances.
<br />Article 7. Warranties; Disclaimers; Limitation of Liability
<br />7.1 Labor in performing the Services is warranted to be free from defects in
<br />workmanship for 90 days after the Services are performed. All labor provided
<br />by SIEMENS hereunder found to be defective and otherwise qualifying under
<br />this warranty shall be re- performed by SIEMENS. Such re- performance
<br />hereunder shall not interrupt or prolong the terms of this warranty. In the event
<br />that any such re-performance fails to cure such defects, then Customer's
<br />exclusive remedy against SIEMENS for damages from any cause whatsoever,
<br />whether in contract or tort, shall not exceed an amount equal to the limitation set
<br />forth in Section 7.5 herein.
<br />7.2 THE EXPRESS LIMITED WARRANTY PROVIDED ABOVE IS IN LIEU
<br />OF AND EXCLUDES ALL OTHER WARRANTIES, STATUTORY,
<br />EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL
<br />EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
<br />FITNESS FOR A PARTICULAR PURPOSE, QUALITY, CAPACITY, OR
<br />WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES AGAINST
<br />PATENT INFRINGEMENTS OR DEFECTS, WHETHER HIDDEN OR
<br />APPARENT, AND EXPRESS OR IMPLIED WARRANTIES WITH RESPECT
<br />TO COMPLIANCE OF THE COVERED EQUIPMENT WITH THE
<br />REQUIREMENTS OF ANY LAW, REGULATION, SPECIFICATION OR
<br />CONTRACT RELATIVE THERETO, WHICH ARE HEREBY EXPRESSLY
<br />DISCLAIMED.
<br />7.3 Customer hereby, for it and any parties claiming under it, releases and
<br />discharges SIEMENS from any liability arising out of all hazards covered by
<br />Customers insurance, and all claims against SIEMENS arising out of such
<br />hazards, including any right of subrogation by Customers insurance carrier, are
<br />hereby waived by Customer.
<br />7.4 ANY IDEAS, SUGGESTIONS, RECOMMENDATIONS, FINANCIAL
<br />EVALUATIONS, FEASIBILITY STUDIES OR ECONOMIC ANALYSIS
<br />PREPARED BY SIEMENS UNDER THIS AGREEMENT WILL REPRESENT
<br />ITS BEST JUDGMENT BASED ON ITS EXPERIENCE AND THE
<br />AVAILABLE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE
<br />ENERGY MARKET IS VOLATILE AND SUBJECT TO FREQUENT PRICE
<br />Service Only 2009
<br />Siemens Industry, Inc. 9/5/2013 Page 10
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