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AND REGULATORY CHANGES. THEREFORE, CUSTOMER FURTHER
<br />ACKNOWLEDGES THAT SIEMENS DOES NOT CONTROL FUTURE
<br />MARKET CONDITIONS ORTHE ENERGY MARKET'S REGULATORY
<br />CLIMATE, NOTHING HEREIN SHALL BE CONSTRUED BY THE
<br />CUSTOMER AS A PREDICTION OF FUTURE ENERGY MARKET
<br />CONDITIONS OR ENERGY PRICES. ACCORDINGLY, SIEMENS DOES
<br />NOTPROVIDE CUSTOMER A GUARANTYOR WARRANTY OF THE
<br />RESULTS OF SIEMENS' RECOMMENDATIONS. CUSTOMER
<br />MAKESANY AND ALL ENERGY PROCUREMENT AND RELATED
<br />DECISIONS, CUSTOMER ACKNOWLEDGES THAT ALL ENERGY
<br />PROCUREMENT AND RELATED DECISIONS ARE MADE AT THE
<br />CUSTOMER'S SOLE RISK,
<br />7.5 WITH RESPECT TO ANY LIABILITY (WARRANTY OR OTHERWISE)
<br />THAT SIEMENS MAY HAVE UNDER THE AGREEMENT, IN NO EVENT
<br />SHALL SIEMENS BE LIABLE (INCLUDING WITHOUT LIMITATION, UNDER
<br />ANY THEORY IN TORTS) FOR ANY LOSS OF USE, REVENUE,
<br />ANTICIPATED PROFITS OR SPECIAL, INDIRECT, INCIDENTAL OR
<br />CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST
<br />PROFITS AND /OR LOST BUSINESS OPPORTUNITIES) ARISING OUT OF
<br />OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES
<br />WHETHER ARISING IN WARRANTY, TORT, CONTRACT STRICT
<br />LIABILITY, OR ANY OTHER THEORY OF LIABILITY, WHETHER, FOR
<br />WARRANTY, LATE OR NONDELIVERY OF ANY SERVICES, AND
<br />WHETHER SIEMENS HAS BEEN ADVISED OF THE POSSIBILITY OF
<br />SUCH DAMAGES', and, in any event, SIEMENS' aggregate liability for any and
<br />all claims, losses or expenses (Including attorneys fees) arising out of this
<br />Agreement, or out of any Services furnished under this Agreement, whether
<br />based in contract, negligence, strict liability, agency, warranty, trespass,
<br />indemnity or any other theory of liability, shall be limited, as liquidated damages,
<br />to the greater of $1,000 or 10% of the total compensation received by
<br />SIEMENS from Customer under this Agreement. SIEMENS reserves the right
<br />to control the defense and settlement of any claim for which SIEMENS has an
<br />obligation under the warranty hereunder. The parties acknowledge that the price
<br />which SIEMENS has agreed to perform Its Services and obligations under this
<br />Agreement Is calculated based upon the foregoing limitations of liability, and
<br />that SIEMENS has expressly relied on, and would not have entered into this
<br />Agreement but for such limitations of liability.
<br />7.6 It is understood and agreed by and between the parties that SIEMENS is
<br />not an insurer and this Agreement Is not Intended to be an insurance policy or a
<br />substitute for an insurance policy. Insurance, If any, shall be obtained by
<br />Customer Fees are based solely upon the value of the Services, and are
<br />unrelated to the value of Customers property or the property of others on
<br />Customer's prcmises.
<br />Amidsi (.imitations of Maintenance orServlce Obligations
<br />8.1 SIEMENS wit not be responsible for the maintenance, repair or replacement of,
<br />or Services necessitated by reason of (a) nonmeiremabke, nonreplaceable or
<br />obsolete parts of the Equipment, including but net limited to ducN✓ohk, shell and tubes,
<br />heat exchangers, coils, unit cabinets, casings, refractory materiel, electrical wiring, water
<br />and pneumatic piping, structural supports, coding tower fill, data and basins, etc, unless
<br />otherwise specifically staled herein; or (b) negligence, abuse, misuse, improper or
<br />inadequate repairs or modifications, improper operation, lack of operator maintenance
<br />or cull, failure to comply with manufacturers operating and environmental requirements,
<br />Ads of God, or other reasons beyond its control. SI EMENS assumes no responsibility
<br />for any service performed on any Covered Equipment other than by SIEMENS or its
<br />agents.
<br />8.2 SIEMENS shell not be responsible for loss, delay, Injury or damage that maybe
<br />caused by dreurmstances beyond its control, Including but not restricted to acts or
<br />emissions by Customer or its employees or agents Ads of God, war, civil commotion,
<br />acts of government, fre, theft, corrosion, flood, water damage, lightning, freeze -ups,
<br />computer Al program or system hackers, strikes, lockouts, differences with
<br />worlanen, dots, anylosions, quarantine restrictions, delays in transportation, or shortage
<br />of whose, fuel, labor or materials,
<br />8.3 SIEMENS is nor responsible for repairs, replacements or services to Equipment
<br />due to corrosion, emslon, Improper or inadequate water treatment by others, elecki
<br />or chemical action, a reasons beyond its reasonable control.
<br />8A SIEMENS shall net be responsible forthe removal orrelnstallation of replacement
<br />valves, dampers, waterfow and temper switches, airflow stations, and any other
<br />perrmare rty mounted Irkegral pipe or air duct component. Addltionaly, SIEMENS shot
<br />net be responsible for any venting or draining of systems.
<br />0.5 WHERE SERVICES INCLUDE EFFORTS BY SIEMENS TO HELP
<br />CUSTOMER TO ATTAIN REBATES ANDS R INCENTIVES FROM AVAILABLE
<br />SOURCES OR ENERGY/FUEL COST REDUCTION, CUSTOMER
<br />ACKNOWLEDGES THAT ANY REBATE /INCENTIVE OR ENERGY/ FUEL
<br />COST REDUCTION THAT MAY BE AVAILABLE TO CUSTOMER IS
<br />GRANTED BY A THIRD PARTY OUTSIDE THE CONTROL OF SIEMENS,
<br />CUSTOMER FURTHER ACKNOWLEDGES THAT WHILE SIEMENS WILL
<br />EITHER ASSIST CUSTOMER OR ENDEAVOR ITSELF TO OBTAIN ANY
<br />AND ALL REBATES /INCENTIVES OR ENERGY/ FUEL COST REDUCTION
<br />AVAILABLE, SIEMENS DOES NOT GUARANTEE THAT IT WILL OBTAIN
<br />OR APPLY FOR ALL REBATES4NCENTIVES OR ENERGY/ FUEL COST
<br />Siemens Industry, Inc., Building Technologies Division
<br />REDUCTIONS THAT MAY BE AVAILABLE TO CUSTOMER. FURTHER,
<br />CUSTOMER HEREBY RELEASES SIEMENS FROM ANY AND ALL
<br />LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING FROM
<br />SIEMENS' FAILURE TO OBTAIN OR APPLY FOR ANY REBATE/
<br />INCENTIVE OR ENERGY/ FUEL COST REDUCTION THAT COULD IN ANY
<br />WAY BE OBTAINED BY CUSTOMER.
<br />Article 9: Hazardous Materials Provisions
<br />9.1 The Services does not Include directly or indirectly performing or arranging
<br />for the detection, monitoring, handling, storage, removal, transportation,
<br />disposal or treatment of Oil or Hazardous Materials, Except as disclosed
<br />pursuant to this Article, Customer represents that, to Its best knowledge, there is
<br />no asbestos or any other hazardous or toxic materials, as defined in the
<br />Comprehensive Environmental Response, Compensation and Liability Act of
<br />1980, as amended, the regulations promulgated thereunder, and other
<br />applicable federal, state or local law ( 'Hazardous Minarials"), present at
<br />Customer's Sites where the Services are performed, SIEMENS will notify
<br />Customer Immediately if it discovers or suspects the presence of any
<br />Hazardous Material. All Services have been priced and agreed to by SIEMENS
<br />in reliance on Customer's representations as sat forth in this Article. The
<br />presence of Hazardous Materials constitutes a change In this Agreement
<br />whose terms must be agreed upon by SIEMENS before its obligations
<br />hereunder shall continue,
<br />9.2 Customer is solely responsible for testing, abating, encapsulating,
<br />removing, remedying or neutralizing such Hazardous Materials, and for the
<br />costs thereof. Customer Is responsible for the proper disposal of all Hazardous
<br />Materials and Oil that at any time are present at the Services site In accordance
<br />with all applicable federal, state, and local laws, regulations, and ordinances,
<br />Even if change order has been entered into pursuant to this Article, SIEMENS
<br />shall have the right to stop the Services until the site is free from Hazardous
<br />Materials. In such event, SIEMENS shall receive an equitable extension of time
<br />to complete the Services, and compensation for delays caused by Hazardous
<br />Materiels remedietion In no event shall SIEMENS be required or construed to
<br />take title, ownership or responsibility for such Oil or Hazardous Materials.
<br />Customer shall sign any required waste manifests In conformance with all
<br />government regulations, listing Customer as the generator of the waste.
<br />9.3 Customer warrants that, prior to the execution of this Agreement, it shall
<br />notify SIEMENS In writing of any and all Hazardous Materials which to
<br />Customer's best knowledge are present, potentially present or likely to become
<br />present at the Services site and shall provide a copy of any site safety policies,
<br />Including but not limited to Icck-oul and tag procedures, chemical hygiene plan,
<br />MSDSs or other items required to be disclosed or maintained by federal, state,
<br />or local laws, regulations or ordinances.
<br />9.4 Customer shall indemnify, defend and hold SIEMENS harmless from and
<br />against any damages, losses, costs, liabilities or expenses (Including attorneys'
<br />fees) arising out of any Oil or Hazardous Materials or from Customer's breach
<br />of, or failure to perform its obligations under this Article.
<br />Article 18: import /Export Indemnity
<br />10.1 Customer acknowledges that SIEMENS is required to comply with
<br />applicable export laws and regulations relating to the sale, exportation, transfer,
<br />assignment, disposal and usage of the Covered Equipment or Services
<br />provided under the Contract, inclutling any export license requirements.
<br />Customer agrees that such Covered Equipment or Set v Ices shall not at any
<br />time directly or indirectly be used, exported, sold, transferred, assigned or
<br />otherwise disposed of in a manner which will result In non - compliance with such
<br />applicable expel laws and regulations. It shall be a condition of the continuing
<br />performance by SIEMENS of Its obligations hereunder that compliance with
<br />such export laws and regulations be maintained at all times. CUSTOMER
<br />AGREES TO INDEMNIFY AND HOLD SIEMENS HARMLESS FROM ANY
<br />AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS AND FINES
<br />RELATED TO NON - COMPLIANCE WITH APPLICABLE EXPORT LAWS
<br />AND REGULATIONS.
<br />Article N: Small Business Concern
<br />11.1 SIEMENS shell adhere to FAR 52.2138 regarding the "Utlllzation of Small
<br />Business Concerns ", as part of its Commercial Small Business Subcontracting
<br />Agreement with the federal government, SIEMENS' policy Is to offer small
<br />business concerns, including small disadvantaged businesses, women owned
<br />small- businesses, HUBZone small businesses, veteran awned small businesses
<br />and service disabled veteran owned small businesses, the "maximum practical
<br />opportunity' to participate in performing contracts let by any commercial entity,
<br />local government or federal agency, Including subcontracts for subsystems,
<br />assemblies, components, and related services for major systems.
<br />Service Only 2009
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