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<br /> DocuSign Envelope ID: F9EEB204-AFE5-4984-B49A-37234E3B3DBD
<br /> emergency Services performed at Customer's request,if Inspection does riot reveal any deficiency covered by this Agreement;(b)Services performed
<br /> other than during SIEMENS'normal working hours;,and(c)Service performed on equipment not covered by this Agreement.
<br /> 5�3 SIEMENS shalll invoice Customer as provided'in this Agreement, or if not expressly provided:,then on an annUall basis prior to the Start Date
<br /> and annually thereafter on the anniversary Ol'such Start Date, Invoices are due and payable within 30 calendar days of receipt by Customer or as
<br /> otherwIse set forth in this Agreement If any payment Is not received when due, SIEMENS may deern Customer to be in breach hereof and may
<br /> enforce any remedies available to it hereunder or at law,Including wi,tho,uit limitation, acceleration of payments and suspension or termination of
<br /> Ser0ces at any time and without notice,and shall be entitled to compensation for Services previously performed and costs reasonablly incurred in
<br /> connection with the suspension or'termination,In the event that any payment due hereunder is not paid when due,Customer agreest to pay,upon
<br /> demand, as a late charge, one and one 4ialf percent(1.5%g)of the amount of ffie payment per month, limited by the maximum rate permitted by
<br /> law of each overdue amount undler this Agreement,CUStOrner shall reimburse SIEMENS'costs and expenses(including reasonable attorneys"and
<br /> witnesses'fees.)Incurred for collection under this Agreement,If Customer disputes any portion or all at an invoice,it shalt notify SIEMENS inwrifing
<br /> of the amount in dispute and the reason for its disagreement within 21 days of receipt of the Invoice.The Undisputed portion shalt be paid when due,
<br /> and 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
<br /> be payable to SIEMENS,
<br /> 5A 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 clarms
<br /> ,a tax exemption or dlirect payment permit, it shall provide SIEMENS with a valid exemption certificate or peraill arid Inderninify, defend and hold
<br /> SIIEMIENIS harmless from any taxes,costs and penalliesarisingi oul 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 shat be determined as the Immediate prior year price plus a price escalator based upori the U.S.Department of t..abor, Bureau of
<br /> t..abor Statistics Urban Consumer Price Index.-All Urban Consumers U.S. All items, 1982— 1984=100("CPI-U"). In addition, each renewal
<br /> term pflicingi shall be adjusted for any addictions or deIetionis to Services selected for the renewal)term.The price escalator shall be the latest
<br /> semlannual CPI-U Identified above published prior to each annual anniversary. This escalator shall be ap�p�lIcable to each annual term,
<br /> whether a renewal term or an annual term after the first year of the Initialt'rerm.
<br /> Artkie 6: Changes;Delays;Excused Performance
<br /> 6.1 As the Services are plerf armed,conditions may change or circumstances outsIde SIEMENS'reasonable control(such as changes of law)may
<br /> develop which require S,IIEMENS to expend add4jonall costs,effort or firne to complete the Services,in which case SIEMENS shalt notify Customer
<br /> and any equitable adjustment made to the compensation and tirne for performance. In the event conditions or circumstances require Services to be
<br /> suspended or terminated, SIEMENS shall be cornpensated for Services performed and for costs reasonable incurred Iraq connection with the
<br /> suspension or termination,
<br /> 6.2 SIEMENS shall not be responsible for loss,delay,injury,damage or fai:llu:re of performance that may be caused by circumstances beyond!its
<br /> control,including but not limited to acts or omissions by Custorner or its employees,agents or contractors,Acts of God,war,cMil commotion,acts
<br /> or omissions, of government authorities, fire, theft, corrosion, flood, water damage, lightning, freeze-ups, strikes, lockouits, differences with
<br /> workmen, riots, explosions,quarantine restrictions, delays,Ins transportation, or shortage of vehicles, fuel, labor or materials. Ins the event of any
<br /> such circumstances,SIEMENS shall be excused frorri performance of the Services and the fine for performance shalt be extended by a period
<br /> eqUat to the time lost plus a reasonable recovery period!, arid!the compensation equilably adjusted to compensate for additional costs SIEMENS,
<br /> Incurs due to such cIrcurnstances.
<br /> AHicle 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. Alll labor
<br /> provided by SIEMENS hereunder found!to be detective and otherwise qualifying under this warranty,shall be re-performed by SIEMENS. Such re-
<br /> performance hereunder shat riot interrupt or prolong the terms of this warranty. hi the event that any such re-performance falls to cure Such
<br /> defects, then, Custarner's, exclusive remedy against SIEMENS for damages from any cause whatsoever, whether in contract or tort, shall not
<br /> exceed an arriount eqUall to the limitation set forth In Section 7,5 herein.
<br /> 7.2 THE EXPRESS LIMITED WARRANTY PROV1f:)ED ABOVE IS IN I IEU OF AND,EXCLUDES ALL O'T1 IER WARRANTIES,STATUTORY,
<br /> EXPRESS, OR IMPLIED,, INCLUDING WITHOUT LIMITATION ALL EXPRESS OR IMPLIED, WARRANTIES OF MERCHANTABII n Y OR
<br /> FITNESS FOR A PARTICULAR PURPOSE, QUALITY, CAPACITY, OR WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES
<br /> AGAINST PATENT INFRINGEMENTS OR DEFEC'rS, WHETHER IADDEN OR APPARENT', AND EXPRESS OR IMPI IED 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 SIEMFnLNS arsing out Of such hazards, Including any right of subrogallon by
<br /> Customer's Insurance carrier,are hereby waived!by Customer.
<br /> 74 ANY IDEAS, SUGGESTIONS, RECOMMENDATIONS, FINANCIAL EVALUATIONS, FEASIBILITY STUDIES OR ECONOMIC
<br /> ANALYSIS PREPARED BY SIEMENS UNDER THIS AGREEMENT WILI REPRESENT' ITS BEST JUDGMENT BASED ON ITS
<br /> EXPERIENCE AND THE AVAILABLE INFORMATION. CUSTOMER ACKNOW LEDGES THAT THE ENERGY MARKET IS VOLATILE AND
<br /> SUBJECT TOFREQUENT PRICE AND REGULATORY CHANGE:S. cus'roMER FURTHER ACKNOWLEDGES THAI'
<br /> SIEMENS DOES NOT CONTROL F UTURE MARKET CONDITIONS OR THE ENERGY MARKET'S REGULATORY CLIMATE, NOTHING
<br /> HEREIN SHALL BE CONSTRUED BY THE CUSTOMER AS A PREDIC"T"ION OF FUTURE ENERGY MARKET CONDITIONS OR ENERGY
<br /> PRICES.ACCORDINGLY,SIEMENS DOES NOT PROVIDE CUSTOMER A GUARANTY OR WARRANTY OF'rHE RESULTS OF SIEMENS'
<br /> RECOMMENDATIONS, CUSTOMER MAKES'ANY" AND ALL ENERGY PROCUREMENT AND RELATED DECISIONS. CUSTOMER
<br /> ACKNOWLEDGES THAT ALL ENERGY PROCUREMENT AND REt ATED DECISIONS ARE MADE AT THE:"CUSTOMER'S SOLE RISK.
<br /> 715 WITH R'ESP'ECT TO ANY LtABILITY(WARRANTY OR OTHERWISE)THAT SIEMENS MAY HAVE UNDER THE AGREEMENT, IN NO
<br /> EVENT SHALL SIEMENS BE LIABLE (INCLUDING WITHOUT (.IMITATION!, UNDER ANY THEORY IN TORTS) FOR ANY LOSS OF USE,
<br /> REVENUE, ANTICIPATED PROFITS OR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WfTHOUT
<br /> t IMITATION t OST PROFITS AND/OR LOST BUSINESS OPPORTUNITIES) ARISING OUT OF OR IN CONNECTION WITH THE
<br /> AGREE:':MENT ORTIdE SERVICESWIdETHERARISING INWARRANTY,TORT,CONTRACT STRICTLIAB11 ITY,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, Sk MENS' 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, agiency, warranty, trespass, indemnity or any other thieo�ry of liability, shall be limited, as liquidated
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<br /> Sternens Ind'us", Inc. May 30, 20114 Page 21
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