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DocuSign Envelope ID: 3CB53A1 D-004F-4B51-913A-A5ED432F87BC
<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 r0ated to the Services Customer shall pay such amounts or reimburse SIEMENS for any amounts A pays. If Customer claims
<br /> a tax exemption or direct payment permit, A shall provide SIEMENS with a valid exemption certificate or permit and indemnify, defend and hold
<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-All 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 /> semh-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 6: Changes;Delays;Excused Performance
<br /> 6.1 As the Services are performed,conditions may change or circumstances outside SIEMENS'reasonable control(such as changes 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 As 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 lost 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 fafls, 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 /> 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 /> Article 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 ductwork, shell and tubes, heat exchangers, coils, unit cabinets,
<br /> Siemens Industry, Inc. May 25, 2013 Page 21
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