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11. EXCLUSIONS-Carrier is not responsible for items not normally subject to mechanical maintenance including but not limited to: <br /> duct work,casings, cabinets, fixtures,structural supports,grillage,water piping, steam piping, drain piping, cooling tower fill,boiler <br /> tubes, boiler refractory, disconnect switches and circuit breakers. Carrier is not responsible for repairs, replacements, alterations, <br /> additions, adjustments, repairs by others, unscheduled calls or emergency calls, any of which may be necessitated by negligent <br /> operation, abuse, misuse, prior improper maintenance, vandalism, obsolescence, building system design, damage due to freezing <br /> weather,chemical/electrochemical attack,corrosion,erosion,deterioration due to unusual wear and tear,any damage related to the <br /> presence of mold, fungi, mildew, or bacteria, damage caused by power reductions or failures or any other cause beyond Carriers <br /> control. Carrier shall not be required to perform tests, install any items of equipment or make modifications that may be <br /> recommended or directed by insurance companies, government, state, municipal or other authority. However, in the event any <br /> such recommendations occur, Carrier, at its option, may submit a proposal for Customer's consideration in addition to this <br /> Agreement. Carrier shall not be required to repair or replace equipment that has not been properly maintained, <br /> 12.EQUIPMENT CONDITION&RECOMMENDED SERVICE(Service Contracts only)-Upon the initial scheduled operating and/or <br /> initial annual stop inspection,should Carrier determine the need for repairs or replacement, Carrier will provide Customer in writing <br /> an'equipment condition' report including recommendations for corrections and the price for repairs in addition to this Agreement. <br /> In the event Carrier recommends certain services(that are not included herein or upon initial inspection)and if Customer does not <br /> elect to have such services properly performed in a timely fashion, Carrier shall not be responsible for any equipment or control <br /> failures,operability or any long-term damage that may result. Carrier at its option will either continue to maintain equipment and/or <br /> controls to the best of its ability, without any responsibility, or remove such equipment from this Agreement, adjusting the price <br /> accordingly. <br /> 13. PROPRIETARY RIGHTS(Service Contracts only)-During the term of this Agreement and in combination with certain services, <br /> Carrier may elect to install,attach to Customer equipment,or provide portable devices(hardware and/or software)that shall remain <br /> the personal proprietary property of Carrier. No devices installed, attached to real property or portable device(s)shall become a <br /> fixture of the Customer locations. Customer shall not acquire any interest,title or equity in any hardware,software,processes, and <br /> other intellectual or proprietary rights to devices that are used in connection with providing service on Customer equipment. <br /> 14. LIMITATION OF LIABILITY - Under no circumstances shall Carrier be liable for any incidental, special or consequential <br /> damages, including loss of revenue, loss of use of equipment or facilities, or economic damages based on strict liability or <br /> negligence.Carrier shall be liable for damage to property, other than equipment provided under this Agreement, and to persons,to <br /> the extent that Carrier's negligent acts or omissions directly contributed to such injury or property damage. Carriers maximum <br /> liability for any reason(except for personal injuries)shall consist of the refunding of all moneys paid by Customer to Carrier under <br /> this Agreement. <br /> 15. CANCELLATION - Customer may cancel this Agreement only with Carriers prior written consent, and upon payment of <br /> reasonable cancellation charges. Such charges shall take into account costs and expenses incurred, and purchases or contract <br /> commitments made by Carrier and all other losses due to the cancellation including a reasonable profit. <br /> 16. CUSTOMER TERMINATION FOR CARRIER NON-PERFORMANCE - Customer shall have the right to terminate this <br /> Agreement for Carrier's non-performance provided Carrier fails to cure such non-performance within 30 days after having been <br /> given prior written notice of the non-performance. Upon early termination or expiration of this Agreement, Carrier shall have free <br /> access to enter Customer locations to disconnect and remove any Carrier personal proprietary property or devices as well as <br /> remove any and all Carrier-owned parts, tools and personal property. Additionally, Customer agrees to pay Carrier for all incurred <br /> but unamortized service costs performed by Carrier including overheads and a reasonable profit. <br /> 17. CARRIER TERMINATION - Carrier reserves the right to discontinue its service any time payments have not been made as <br /> agreed or if alterations, additions or repairs are made to equipment during the term of this Agreement by others without prior <br /> agreement between Customer and Carrier. <br /> 18. CLAIMS - Any suits arising from the performance or nonperformance of this Agreement, whether based upon contract, <br /> negligence,and strict liability or otherwise,shall be brought within one(1)year from the date the claim arose. <br /> 19. GOVERNMENT PROCUREMENTS-The components,equipment and services provided by Carrier are"commercial items"as <br /> defined in Section 2.101 of the Federal Acquisition Regulations ("FAR"), and the prices of such components, equipment and <br /> services are based on Carriers commercial pricing policies and practices (which do not consider any special requirements of U.S. <br /> Government cost principles, FAR Part 31, or any similar procurement regulations). As such, Carrier will not agree to provide or <br /> certify cost or pricing data, nor will Carrier agree to comply with the Cost Accounting Standards (CAS). In addition, no federal <br /> government procurement regulations, such as FARs or DFARs, shall apply to this Agreement except those regulations expressly <br /> accepted in writing by Carrier. <br /> 20. HAZARDOUS MATERIALS-Carrier is not responsible for the identification,detection,abatement, encapsulating or removal of <br /> asbestos, products or materials containing asbestos, similar hazardous substances, or mold, fungi, mildew, or bacteria. If Carrier <br /> encounters any asbestos or other hazardous material while performing this Agreement, Carrier may suspend its work and remove <br /> its employees from the project, until such material and any hazards associated with it are abated. The time for Carrier's <br /> performance shall be extended accordingly,and Carrier shall be compensated for the delay. <br /> i <br /> i <br /> Equipment and/or Service <br /> CCS-TCES 040811 <br /> 2 <br />