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53 SIEMENS shall invoice Customer as provided in this Agreement,or if not expressly provided,then on an annual basis prior to the Start Date
<br /> and annually thereafter on the anniversary of such Start date.Invoices are due and payable net cash upon receipt unless Customer has applied and
<br /> been approved for credit with SIEMENS,in which case the invoice is payable within 30 calendar days of receipt by Customer or as otherwise set
<br /> forth in this Agreement.If any payment is not received when due, SIEMENS may deem Customer to be in breach hereof and may enforce any
<br /> remedies available to it hereunder or at law,including without limitation,acceleration of payments and suspension or termination of Services at any
<br /> time and without notice,and shall be entitled to compensation for Services previously performed and costs reasonably incurred in connection with
<br /> the suspension or termination.In the event that any payment due hereunder is not paid when due,Customer agreest to pay,upon demand,as a
<br /> late charge,one and one-half percent(1.5%)of the amount of the payment per month, limited by the maximum rate permitted by law of each
<br /> overdue amount under this Agreement.Customer shall reimburse SIEMENS'costs and expenses(including reasonable attorneys'and witnesses'
<br /> frees)incurred for collection under this Agreement. If Customer disputes any portion or all of an invoice, it shall notify SIEMENS in writing of the
<br /> amount in dispute and the reason for its disagreement within 21 days of receipt of the invoice.The undisputed portion shall be paid when due,and
<br /> interest on any unpaid portion shall accrue as aforesaid,from the date due until paid,to the extent that such amounts are finally determined to be
<br /> payable to SIEMENS.
<br /> 5.4 Except to the extent expressly agreed in this Agreement, SIEMENS'fees do not include any taxes, excises, fees, duties, permits or other
<br /> government charges related to the Services.Customer shall pay such amounts or reimburse SIEMENS for any amounts it pays.If Customer claims
<br /> a tax exemption or direct payment permit,it shall provide SIEMENS with a valid exemption certificate or permit and indemnify,defend and told
<br /> SIEMENS harmless from 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 the Agreement and each year of each renewal of the
<br /> Agreement shall be determined as the immediate prior year price plus a price escalator based upon the U.S.Department of Labor,Bureau of
<br /> Labor Statistics Urban Consumer Price Index-AIL Urban Consumers U.S. All items, 1982—1984=100("CPI-U"). In addition, each renewal
<br /> term pricing shall be adjusted for any additions or deletions to Services selected for the renewal term.The price escalator shall be the latest
<br /> semi-annual CPI-U identified above published prior to each annual anniversary. This escalator shall be applicable to each annual term,
<br /> whether a renewal term or an annual term after the first year of the Initial Term.
<br /> Article S: Changes,Delays,Excused Porfonnance
<br /> 61 As the Services are performed,conditions may change or circumstances outside SIEMENS'reasonable control(such as charges of law)may
<br /> develop which require SIEMENS to expend additional costs,effort or time to complete the Services,in which case SIEMENS shall notify Customer
<br /> and an equitable adjustment made to the compensation and time for performance.in the event conditions or circumstances require Services to be
<br /> suspended or terminated, SIEMENS shall be compensated for Services performed and for costs reasonable incurred in connection with the
<br /> suspension or termination.
<br /> 6.2 SIEMENS shall not be responsible for loss,delay,injury,damage or failure of performance that may be caused by circumstances beyond its
<br /> control,including but not limited to acts or omissions by Customer or its employees,agents or contractors,Acts of God,war,civil commotion,acts
<br /> or omissions of government authorities, fire, theft, corrosion, flood, water damage, lightning, freeze-ups, strikes, lockouts, differences with
<br /> workmen,riots,explosions,quarantine restrictions,delays in transportation,or shortage of vehicles,fuel,labor or materials. In the event of any
<br /> such circumstances, SIEMENS shall be excused from performance of the Services and the time for performance shall be extended by a period
<br /> equal to the time lest plus a reasonable recovery period and the compensation equitably adjusted to compensate for additional costs SIEMENS
<br /> 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 workmanship for 90 days after the Services are performed. All labor
<br /> provided by SIEMENS hereunder found to be defective and otherwise qualifying under this warranty shall be re-performed by SIEMENS. Such re-
<br /> performance hereunder shall not interrupt or prolong the terms of this warranty. In the event that any such re-performance fails to cure such
<br /> defects, then Customer's exclusive remedy against SIEMENS for damages from any cause whatsoever, whether in contract or tort, shall not
<br /> exceed an amount equal to the limitation set forth in Section 7.5 herein.
<br /> 7.2 THE EXPRESS LIMITED WARRANTY PROVIDED ABOVE IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES,STATUTORY,
<br /> EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
<br /> FITNESS FOR A PARTICULAR PURPOSE, QUALITY, CAPACITY, OR WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES
<br /> AGAINST PATENT INFRINGEMENTS OR DEFECTS, WHETHER HIDDEN OR APPARENT, AND EXPRESS OR IMPLIED WARRANTIES
<br /> WITH RESPECT TO COMPLIANCE OF THE COVERED EQUIPMENT WITH THE REQUIREMENTS OF ANY LAW, REGULATION,
<br /> SPECIFICATION OR CONTRACT RELATIVE THERETO,WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
<br /> 7.3 Customer hereby,for it and any parties claiming under it,releases and discharges SIEMENS from any liability arising out of all hazards
<br /> covered by Customer's insurance, and all claims against SIEMENS arising out of such hazards, including any right of subrogation by
<br /> Customer's insurance carrier,are hereby waived by Customer.
<br /> 7.4 ANY IDEAS, SUGGESTIONS, RECOMMENDATIONS, FINANCIAL EVALUATIONS, FEASIBILITY STUDIES OR ECONOMIC
<br /> ANALYSIS PREPARED BY SIEMENS UNDER THIS AGREEMENT WILL REPRESENT ITS BEST JUDGMENT BASED ON ITS
<br /> EXPERIENCE AND THE AVAILABLE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE ENERGY MARKET IS VOLATILE AND
<br /> SUBJECT TO FREQUENT PRICE AND REGULATORY CHANGES.THEREFORE, CUSTOMER FURTHER ACKNOWLEDGES THAT
<br /> SIEMENS DOES NOT CONTROL FUTURE MARKET CONDITIONS OR THE ENERGY MARKET'S REGULATORY CLIMATE. NOTHING
<br /> HEREIN SHALL BE CONSTRUED BY THE CUSTOMER AS A PREDICTION OF FUTURE ENERGY MARKET CONDITIONS OR ENERGY
<br /> PRICES.ACCORDINGLY,SIEMENS DOES NOT PROVIDE CUSTOMER A GUARANTY OR WARRANTY OF THE RESULTS OF SIEMENS'
<br /> RECOMMENDATIONS. CUSTOMER MAKES ANY AND ALL ENERGY PROCUREMENT AND RELATED DECISIONS. CUSTOMER
<br /> ACKNOWLEDGES THAT ALL ENERGY PROCUREMENT AND RELATED DECISIONS ARE MADE AT THE CUSTOMER'S SOLE RISK.
<br /> 7.5 WITH RESPECT TO ANY LIABILITY(WARRANTY OR OTHERWISE)THAT SIEMENS MAY HAVE UNDER THE AGREEMENT, IN NO
<br /> EVENT SHALL SIEMENS BE LIABLE(INCLUDING WITHOUT LIMITATION, UNDER ANY THEORY IN TORTS) FOR ANY LOSS OF USE,
<br /> REVENUE, ANTICIPATED PROFITS OR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
<br /> LIMITATION LOST PROFITS AND/OR LOST BUSINESS OPPORTUNITIES) ARISING OUT OF OR IN CONNECTION WITH THE
<br /> AGREEMENT OR THE SERVICES WHETHER ARISING IN WARRANTY,TORT,CONTRACT,STRICT LIABILITY,OR ANY OTHER THEORY
<br /> OF LIABILITY, WHETHER, FOR WARRANTY, LATE OR NON-DELIVERY OF ANY SERVICES, AND WHETHER SIEMENS HAS BEEN
<br /> ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; and, in any event, SIEMENS' aggregate liability for any and all claims, losses or
<br /> expenses(including attorneys fees)arising out of this Agreement,or out of any Services furnished under this Agreement,whether based in
<br /> contract, negligence, strict liability, agency, warranty, trespass, indemnity or any other theory of liability, shall be limited, as liquidated
<br /> damages,to the greater of$1,000 or 10%of the total compensation received by SIEMENS from Customer under this Agreement. SIEMENS
<br /> Siemens Industry, Inc. May 20,2010 Page 21
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