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reserves the right to control the defense and settlement of any claim for which SIEMENS has an obligation under the warranty hereunder.The
<br /> parties acknowledge that the price which SIEMENS has agreed to perform its Services and obligations under this Agreement is calculated based
<br /> upon the foregoing limitations of liability,and that SIEMENS has expressly relied on,and would not have entered into this Agreement but for such
<br /> limitations of liability.
<br /> 7.6 It is understood and agreed by and between the parties that SIEMENS is not an insurer and this Agreement is not intended to be an
<br /> insurance policy or a substitute for an insurance policy. Insurance, if any, shall be obtained by Customer. Fees are based solely upon the
<br /> value of the Services,and are unrelated to the value of Customer's property or the property of others on Customer's premises.
<br /> Arm 8: Limitations of Maintenance or Service Obligations
<br /> 8.1 SIEMENS will not be responsible for the maintenance,repair or replacement of,or Services necessitated by reason of. (a)non-maintainable,
<br /> non-replaceable or obsolete parts of the Equipment, including but not limited to ductwark, shell and tubes, heat exchangers,coils, unit cabinets,
<br /> casings,refractory material,electrical wiring,water and pneumatic piping,structural supports,cooling tower fill,slats and basins,etc.unless otherwise
<br /> specifically stated herein; or(b)negligence, abuse, misuse, improper or inadequate repairs or modifications, improper operation, lack of operator
<br /> maintenance or skill,failure to comply with man itadurees operating and environmental requirements,Ads of God,or other reasons beyond its control.
<br /> SIEMENS assumes no responsibility for any service performed on any Covered Equipment other than by SIEMENS or its agents.
<br /> 8.2 SIEMENS shall not be responsible for loss,delay,injury or damage that may be caused by circumstances beyond its control,including but riot
<br /> restricted to ads or omissioru by Customer or Its employees or agents,Ads of God,war,civil commotion,ads of government,fire,theft,corrosion,
<br /> flood, water damage, lightning, freeze-ups, computer viruses, program or system hackers, strikes, lockouts, differences with workmen, riots,
<br /> explosions,quarantine restrictions,delays in transportation,or shortage of vehicles,fuel,labor or materials.
<br /> 8.3 SIEMENS is not responsible for repairs, replacements or services to Equipment due to corrosion, erosion, improper or inadequate water
<br /> treatment by others,electrolytic or chemical action,or reasons beyond its reasonable control.
<br /> 8.4 SIEMENS shall not be responsible for the removal or reinstallation of replacement valves,dampers,waterflow and tamper switches,airflow
<br /> stations,and any other permanently mounted integral pipe or air dud component Additionally,SIEMENS shall not be responsible for any venting or
<br /> draining of systems.
<br /> $.5 WHERE SERVICES INCLUDE EFFORTS BY SIEMENS TO HELP CUSTOMER TO ATTAIN REBATES AND/OR INCENTIVES FROM
<br /> AVAILABLE SOURCES OR ENERGY/FUEL COST REDUCTION, CUSTOMER ACKNOWLEDGES THAT ANY REBATE/INCENTIVE OR
<br /> ENERGY/ FUEL COST REDUCTION THAT MAY BE AVAILABLE TO CUSTOMER IS GRANTED BY A THIRD PARTY OUTSIDE THE
<br /> CONTROL OF SIEMENS. CUSTOMER FURTHER ACKNOWLEDGES THAT WHILE SIEMENS WILL EITHER ASSIST CUSTOMER OR
<br /> ENDEAVOR ITSELF TO OBTAIN ANY AND ALL REBATES/INCENTIVES OR ENERGY/FUEL COST REDUCTION AVAILABLE,SIEMENS
<br /> DOES NOT GUARANTEE THAT IT WiLL OBTAIN OR APPLY FOR ALL REBATES/INCENTIVES OR ENERGY/FUEL COST REDUCTIONS
<br /> THAT MAY BE AVAILABLE TO CUSTOMER. FURTHER,CUSTOMER HEREBY RELEASES SIEMENS FROM ANY AND ALL LIABILITY TO
<br /> CUSTOMER OR ANY THIRD PARTY ARISING FROM SIEMENS' FAILURE TO OBTAIN OR APPLY FOR ANY REBATE/INCENTIVE OR
<br /> ENERGY/FUEL COST REDUCTION THAT COULD IN ANY 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 for the detection, monitoring, handling, storage, removal,
<br /> transportation,disposal or treatment of Oil or Hazardous Materials.Except as disclosed pursuant to this Article, Customer represents that,to its
<br /> best knowledge, there is no asbestos or any other hazardous or toxic materials, as defined in the Comprehensive Environmental Response,
<br /> Compensation and Liability Act of 1980, as amended,the regulations promulgated thereunder, and other applicable federal, state or local law
<br /> ("Hazardous Materials"),present at Customer's Sites where the Services are performed.SIEMENS will notify Customer immediately if it discovers
<br /> or suspects the presence of any Hazardous Material.Ali Services have been priced and agreed to by SIEMENS in reliance on Customer's
<br /> representations as set forth in this Article.The presence of Hazardous Materials constitutes a change in this Agreement whose terms must be
<br /> agreed upon by SIEMENS before its obligations hereunder shall continue.
<br /> 9.2 Customer is solely responsible for testing,abating,encapsulating,removing,remedying or neutralizing such Hazardous Materials,and for the
<br /> costs thereof.Customer is responsible for the proper disposal of all Hazardous Materials and Oil that at any time are present at the Services site in
<br /> accordance with all applicable federal,state,and local laws,regulations,and ordinances.Even if change order has been entered into pursuant to
<br /> this Article, SIEMENS shall have the right to stop the Services until the site is free from Hazardous Materials. in such event, SIEMENS shall
<br /> receive an equitable extension of time to complete the Services,and compensation for delays caused by Hazardous Materials remediation.In no
<br /> event shall SIEMENS be required or construed to take title,ownership or responsibility for such Oil or Hazardous Materials.Customer shall sign any
<br /> required waste manifests in conformance with all government regulations,listing Customer as the generator of the waste.
<br /> 9.8 Customer warrants that,prior to the execution of this Agreement,it shall notify SIEMENS in writing of any and all Hazardous Materials which
<br /> to Customer's best knowledge are present,potentially present or likely to become present at the Services site and shall provide a copy of any site
<br /> safety policies,including but not limited to lock-out and tag procedures,chemical hygiene plan,MSDSs or other items required to be disclosed or
<br /> maintained by federal,state,or local laws,regulations or ordinances.
<br /> 9.4 Customer shall indemnify, defend and hold SIEMENS harmless from and against any damages, losses, costs, liabilities or expenses
<br /> (including attorneys'fees)arising out of any Oil or Hazardous Materials or from Customer's breach of,or failure to perform its obligations under this
<br /> Article.
<br /> Article 10: Import/Export Indemnity
<br /> 10.1 Customer acknowledges that SIEMENS is required to comply with applicable export laws and regulations relating to the sale,exportation,
<br /> transfer, assignment,disposal and usage of the Covered Equipment or Services provided under the Contract, including any export license
<br /> requirements. Customer agrees that such Covered Equipment or Services shall not at any time directly or indirectly be used,exported,sold,
<br /> transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with such applicable export laws and
<br /> regulations. It shall be a condition of the continuing performance by SIEMENS of its obligations hereunder that compliance with such export
<br /> laws and regulations be maintained at all times. CUSTOMER AGREES TO INDEMNIFY AND HOLD SIEMENS HARMLESS FROM ANY AND
<br /> ALL COSTS, LIABILITIES,PENALTIES,SANCTIONS AND FINES RELATED TO NON-COMPLIANCE WITH APPLICABLE EXPORT LAWS
<br /> AND REGULATIONS.
<br /> Article 11: Small Business Concern
<br /> 11.1 SIEMENS shall adhere to FAR 52.219-8 regarding the"Utilization of Small Business Concerns",as part of its Commercial Small Business
<br /> Subcontracting Agreement with the federal government. SIEMENS'policy is to offer small business concerns,including small disadvantaged
<br /> businesses, women owned small-businesses, HUBZone small businesses, veteran owned small businesses and service disabled veteran
<br /> owned small businesses, the "maximum practical opportunity" to participate in performing contracts let by any commercial entity, local
<br /> government or federal agency,including subcontracts for subsystems,assemblies,components,and related services for major systems.
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