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3.8 All reports and drawings specifically prepared for and deliverable to Customer pursuant to this Agreement ("Deliverables') shall become
<br /> Customer's properly upon full payment to SIEMENS.SIEMENS may retain file copies of such Deliverables.All other reports,notes,calculations,
<br /> data,drawings,estimates,specifications,manuals,other documents and all computer programs,codes and computerized materials prepared by or
<br /> for SIEMENS are instruments of SIEMENS'work('Instruments')and shall remain SIEMENS property.Siemens conveys no license to software
<br /> unless otherwise expressly provided in this Agreement.All Deliverables and Instruments provided to Customer are for Pemtitted Users'use only
<br /> for the purposes disclosed to SIEMENS,and Customer shall not transfer them to others or use them or permit them to be used for arty extension of
<br /> the Services or any other purpose,without SIEMENS'express written consent. Any reuse of Deliverables or Instruments for other projects or
<br /> locations without the written consent of SIEMENS,or use by any party other than Permitted Users,will be at Permitted Users'sole risk and
<br /> without liability to SIEMENS; and, in addition to any other rights SIEMENS may have,Customer shall indemnify, defend and hold SIEMENS
<br /> harmless from any claims,losses or damages arising therefrom.
<br /> 3.9 Customer acknowledges that SIEMENS,in the normal conduct of its business,may use concepts,skills and know-how developed while
<br /> performing other contracts. Customer acknowledges the benefit which may accrue to it though this practice, and accordingly agrees that
<br /> anything in this Agreement notwithstanding Siemens may continue,without payment of a royalty,this practice of using concepts,skills and
<br /> know-how developed while performing this Agreement.
<br /> 3.10 Where Services include energy consulting,any estimates of probable construction or implementation costs,financial evaluations,feasibility
<br /> studies or economic analyses prepared by SIEMENS, the documents prepared for the Customer will represent SIEMENS' best judgment
<br /> based on SIEMENS'experience and the information reasonably available to SIEMENS at the time that the Services are performed.Customer
<br /> acknowledges that SIEMENS does not control:(a)the costs of labor,materials,equipment or services furnished by others;(b)overall market
<br /> conditions;or,(c)contractors'methods of determining prices.Accordingly,Customer acknowledges that proposals,bids or actual costs may
<br /> differ from opinions,evaluations or studies submitted by SIEMENS as part of the Services provided hereunder.
<br /> 3.11 Where Services include EMC,SIEMENS will have a disaster recovery plan and a disaster contingency plan.
<br /> Article 4. Responsibilities of Customer
<br /> Al Customer,without cost to SIEMENS,shall,
<br /> (a) Designate a contact person with authority to make decisions for Customer regarding the Services and provide SIEMENS with information
<br /> sufficient to contact such person in an emergency. If such representative cannot be reached,any request for Services received from a person
<br /> located at Customer's site will be deemed authorized by Customer,and SIEMENS will,in its reasonable discretion,act accordingly;
<br /> (b) Provide or arrange without cost all reasonable provisions,means and access fo SIEMENS to any site and the equipment where Services are
<br /> to to performed;
<br /> (c) Permit SIEMENS to control and/or operate all controls,systems,apparatus,equipment and machinery necessary to perform the Services;
<br /> (d) Furnish SIEMENS with all available information pertinent to the Services;
<br /> (e) Obtain and fumish to SIEMENS all approvals, permits and consents from government authorities and others as may be required for
<br /> performance of the Services except for those SIEMENS has expressly agreed in writing to obtain;
<br /> (f) Maintain the Services site in a safe condition;notify SIEMENS promptly of any site conditions requiring special care;and provide SIEMENS
<br /> with any available documents describing the quantity,nature,location and extent of such conditions;
<br /> (g) Comply with all laws and provide any notices required to be given to any govemment authorities in connection with the Services,except such
<br /> notices SIEMENS has expressly agreed in this Agreement to give;
<br /> (h) Provide SIEMENS with Material Safety Data Sheets(MSDS)conforming to OSHA requirements related to all Hazardous Materials at the site
<br /> which may impact the Services;
<br /> (i) Furnish to SIEMENS any contingency plans related to the site;
<br /> (I) Furnish the specified operating environment, including without limitation, suitable, clean,stable, properly conditioned electrical power and
<br /> other utilities;
<br /> (k) Maintain all Covered Equipment in good working order in compliance with all applicable laws and service, repair and replace all Covered
<br /> Equipment as necessary;and,
<br /> (1) Perform inspections and tests as indicated in the life Safety System Logbook and record same in the Life Safety System logbook.
<br /> 4.2 Customer acknowledges that the technical and pricing information herein is proprietary to SIEMENS and agrees not to disclose or otherwise
<br /> make it available to others.
<br /> 4.3 Customer acknowledges that it is now and shall be at all times in control of the Services site.SIEMENS shall not have any responsibility,duty
<br /> or authority to direct,supervise or oversee any employees or contractors of Customer or their work or to provide the means,methods or sequence of
<br /> their work or to stop their work.SIEMENS'work and/or presence at a site shall not relieve others of their responsibility to Customer or to others.
<br /> Except as expressly provided herein,SIEMENS is not responsible for the adequacy of the health,safety or security programs or precautions related
<br /> to Customer's or it other contractors'activities or operations;the work of any other person or entity;or Customer's site conditions.SIEMENS is not
<br /> responsible for inspecting,observing,reporting or correcting health or safety conditions or deficiencies of Customer or others at Customer's site.So
<br /> as not to discourage SIEMENS from voluntarily addressing such issues,in the event SIEMENS does make observations,reports,suggestions or
<br /> otherwise regarding such issues,SIEMENS shall riot be liable or responsible for same.
<br /> 4,4 Except as expressly stated in this Agreement, Customer is solely responsible for any removal, replacement or refinishing of the building
<br /> structure 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 partial or full system failure occurs until SIEMENS notifies Customer
<br /> that such system is operational or the emergency has been cleared.Customer's actions shall include all appropriate interim safety precautions
<br /> (such as a manual "fire watch"). SIEMENS shall have no obligation to provide guards,fire watch personnel, or other services following a
<br /> system failure,except Services as are specifically provided for in this Agreement.
<br /> 4.6 Customer shall not attach to the system or Covered Equipment any device that interferes with the Services or the proper operation of the
<br /> system or Covered Equipment.
<br /> Article 5. Compensation
<br /> 5.1 Annual Fee(s)shall be adjusted for each year after the final year of the initial Term pursuant to the agreed Price Adjustment hereto and
<br /> incorporated herein. Unless otherwise agreed in writing,this Agreement is not cancelable and the annual fee is not refundable except as provided
<br /> herein.
<br /> 5.2 Payments to be made under this Agreement will provide for,and be in consideration of,only Services specifically included under the Proposed
<br /> Solution. All other Services, including but not limited to the following, shall be separately billed or surcharged on a time and materials basis: (a)
<br /> emergency Services performed at Customer's request,if inspection does not reveal any deficiency covered by this Agreement;(b)Services perforned
<br /> other than during SIEMENS'normal working hours;and(c)Service performed on equipment not covered by this Agreement.
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