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DocuSign Envelope ID:3CB53A1 D-004F-4B51-913A-A5ED432F87BC
<br /> 3.9 Customer acknowledges that SIEMENS, in the normal conduct of its business, may use concepts, skills and know-how developed while
<br /> performing other contracts. Customer acknowledges the benefit which may accrue to it though this practice, and accordingly agrees that
<br /> anything in this Agreement notwithstanding Siemens may continue, without payment of a royalty, this practice of using concepts, skills and
<br /> know-how developed while performing this Agreement,
<br /> 3.10 Where Services include energy consulting,any estimates of probable construction or implementation costs,financial evaluations,feasibifity
<br /> studies or economic analyses prepared by SIEMENS, the documents prepared for the Customer wiH represent SIEMENS' best judgment
<br /> based on SIEMENS'experience and the information reasonably available to SIEMENS at the time that the Services are performed. Customer
<br /> acknowledges that SIEMENS does not control: (a)the costs of labor, materials,equipment or services furnished by others; (b)overall market
<br /> conditions; or, (c)contractors' methods of determining prices. Accordingly, Customer acknowledges that proposals, bids or actual costs may
<br /> differ from opinions,evaluations or studies submitted by SIEMENS as part of the Services provided hereunder.
<br /> 3.11 Where Services include EMC,SIEMENS will have a disaster recovery plan and a disaster contingency plan.
<br /> Article 4: Responsibilities of Customer
<br /> 4.1 Customer,without cost to SIEMENS,shall:
<br /> (a) Designate a contact person with authority to make decisions for Customer regarding the Services and provide SIEMENS with information
<br /> sufficient to contact such person in an emergency. If such representative cannot be reached, any request for Services received from a person
<br /> located at Customer's site will be deemed authorized by Customer,and SIEMENS wilt,in its reasonable discretion,act accordingly;
<br /> (b) Provide or arrange without cost all reasonable provisions, means and access for SIEMENS to any site and the equipment where Services are
<br /> to be perfbrmecl;
<br /> (c) Permit SIEMENS to control and/or operate all controls,systems,apparatus,equipment and machinery necessary to perform the Services;
<br /> (d) Furnish SIEMENS with all available information pertinent to the Services,
<br /> (e) Obtain and furnish to SIEMENS all approvals, permits and consents from government authorities and others as may be required for
<br /> performance at the Services except for those SIEMENS has expressly agreed in writing to obtain;
<br /> (f) Maintain the Services site in a safe,condition; notify SIEMENS promptly of any site conditions requiring special care;and provide SIEMENS
<br /> with any available documents describing the quantity,nature,location and extent of such conditions;
<br /> (g) Comply with all Taws and provide any notices required to be given to any government authorities in connection with the Services, except such
<br /> notices SIEMENS has expressly agreed in this Agreement to give
<br /> (h) Provide SIEMENS with Material Safety Data Sheets(MSDS)conforming to OSHA requirements related to all Hazardous Materials at the site
<br /> which may impact the Services;
<br /> (i) Furnish to SIEMENS any contingency plans related to the site;
<br /> (t) Furnish the specified operating environment, including, without limitation, suitable, clean, stable, properly conditioned electrical power and
<br /> other utilities;
<br /> (k) Maintain all Covered Equipment in good working order in compliance with all applicable laws and service, repair and replace all Covered
<br /> Equipment as necessary;and,
<br /> (l) Perform inspections and tests as indicated in the Life Safety System Logbook and record same in the Life Safety System logbook,
<br /> 4.2 Customer acknowledges that the technical and pricing information herein is proprietary to SIEMENS and agrees not to disclose or otherwise
<br /> make it available to others_,7031rcl ro(Ir la t iityir:W of Si 0rr)D 111x?x j ALt"r-A reernient-
<br /> 4.3 Customer acknowledges that it is now and shall be at all times in control of the Services site,SIEMENS shall not have any responsibility,duty
<br /> or authority to direct,supervise or oversee any employees or contractors of Customer or their work or to provide the means,methods or sequence of
<br /> their work or to stop their work. SIEMENS'work and/or presence at a site shall not relieve others of their responsibility to Customer or to others.
<br /> Except as expressly provided herein,SIEMENS is not responsible for the adequacy of the health,safety or security programs or precautions related
<br /> to Customer's or it other contractors'activities or operations;the work of any other person or entity; or Customer's site conditions. SIEMENS is not
<br /> responsible for inspecting,observing, reporting or correcting health or sa"conditions or deficiencies of Customer or others at Customers site, So
<br /> as not to discourage SIEMENS from voluntarily addressing such issues, in the event SIEMENS does make observations,reports, suggestions or
<br /> otherwise regarding such issues,SIEMENS shall not be liable or responsible for same,
<br /> 4.4 Except as expressly stated in this Agreement, Customer is solely responsible for any removal, replacement or refinishing of the building
<br /> structure or finishes that may be required to perform or gain access to the Services.
<br /> 4.5 Customer alone shall act to protect life and property from the time a partial or full system failure occurs until SIEMENS notifies Customer
<br /> that such system is operational or the emergency has been cleared. Customer's actions shall include alll appropriate interim safety precautions
<br /> (such as a manual "fire watch"). SIEMENS shall have no obligation to provide guards, fire watch personnel, or other services following a
<br /> system failure,except Services as are specifically provided for in this Agreement.
<br /> 4.6 Customer shall not attach to the system or Covered Equipment any device that interferes with the Services or the proper operation of the
<br /> system or Covered Equipment,
<br /> Article 5: Compensation
<br /> 5.1 Annual Fee(s) shall be adjusted for each year after the finat year of the Initial Term pursuant to the agreed Price Adjustment hereto and
<br /> incorporated herein. Unless otherwise agreed in writing,this Agreement is not cancelable and the annuall fee is not refundable except as provided
<br /> herein,
<br /> 5.2 Payments to be made under this Agreement will provide for,and be in consideration of,only Services specifically included under the Proposed
<br /> Solution, Ali other Services, including but not limited to the following, shall be separately billed or surcharged on a time and materials basis: (a)
<br /> emergency Services,performed at Customer's request,if inspection does not 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 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
<br /> fo"rUeC4 vv4h 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 agireest 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 /> fees) incurred for coflection under this Agreement If Customer disputes any portion or all of an invoice, it shall notify SIEMENS in writing of the
<br /> Siemens Industry, Inc. May 25, 2010 Page 20
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