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DocuSign Envelope ID:37AF196F-70A9-40BD-BDE0-4E0A39EC4A40
<br /> GENERAL TERMS AND CONDITIONS
<br /> (SERVICE)
<br /> EXPRESSLY DISCLAIMED. reinstallation or relocation of Covered Equipment; (c) painting or
<br /> 7.6 Customer hereby, for it and any parties claiming under it, refinishing of Covered Equipment or surrounding surfaces; (d)
<br /> releases and discharges Siemens from any liability arising out of all changes to Services; (e) parts, accessories, attachments or other
<br /> hazards covered by Customer's insurance. All claims against devices added to Covered Equipment but not furnished by Siemens;
<br /> Siemens arising out of such hazards, including any right of (f) failure to continually provide suitable operating environment
<br /> subrogation by Customer's insurance carrier, are hereby waived by induding, but not limited to, adequate space, ventilation, electrical
<br /> Customer. power and protection from the elements; (g) the removal or
<br /> 7.7 ANY IDEAS, SUGGESTIONS, RECOMMENDATIONS, reinstallation of replacement valves, dampers, waterfiow and tamper
<br /> FINANCIAL EVALUATIONS, FEASIBILITY STUDIES OR switches, airflow stations, venting or draining systems, and any other
<br /> ECONOMIC ANALYSIS PREPARED BY SIEMENS UNDER THIS permanently mounted integral pipe or air duct component; or(h)latent
<br /> AGREEMENT WILL REPRESENT ITS BEST JUDGMENT BASED defects in the Covered Equipment that cannot be discovered through
<br /> ON ITS EXPERIENCE AND THE AVAILABLE INFORMATION. the standard provision of the Services. Siemens is not responsible for
<br /> CUSTOMER ACKNOWLEDGES THAT THE ENERGY MARKET IS services performed on any Covered Equipment other than by
<br /> VOLATILE AND SUBJECT TO FREQUENT PRICE AND Siemens or its agents.
<br /> REGULATORY CHANGES. THEREFORE, CUSTOMER FURTHER 8.2 Siemens will not be responsible for the maintenance, repair or
<br /> ACKNOWLEDGES THAT SIEMENS DOES NOT CONTROL replacement of, or Services necessitated by reason of: (a) non-
<br /> FUTURE MARKET CONDITIONS OR THE ENERGY MARKETS maintainable, non-replaceable or obsolete parts of the Covered
<br /> REGULATORY CLIMATE. NOTHING HEREIN SHALL BE Equipment, including but not limited to ductwork, shell and tubes, heat
<br /> CONSTRUED BY CUSTOMER AS A PREDICTION OF FUTURE exchangers, coils, unit cabinets, casings, refractory material, electrical
<br /> ENERGY MARKET CONDITIONS OR ENERGY PRICES. wiring, water and pneumatic piping, structural supports, cooling tower
<br /> ACCORDINGLY, SIEMENS DOES NOT PROVIDE CUSTOMER A fill, slats and basins, etc. unless otherwise specifically stated in the
<br /> GUARANTY OR WARRANTY OF THE RESULTS OF SIEMENS' Document; or (b) negligence, abuse, misuse, improper or inadequate
<br /> RECOMMENDATIONS. CUSTOMER MAKES ANY AND ALL repairs or modifications, improper operation, lack of operator
<br /> ENERGY PROCUREMENT AND RELATED maintenance or skill,failure to comply with manufacturer's operating and
<br /> DECISIONS. CUSTOMER ACKNOWLEDGES THAT ALL ENERGY environmental requirements.
<br /> PROCUREMENT AND RELATED DECISIONS ARE MADE AT 8.3 Siemens is not responsible for repairs,replacements or services to
<br /> CUSTOMER'S SOLE RISK. Covered Equipment due to corrosion, erosion, improper or inadequate
<br /> 7.8 WITH RESPECT TO ANY LIABILITY (WARRANTY OR water treatment by others, electrolytic or chemical action, or reasons
<br /> OTHERWISE) THAT SIEMENS MAY HAVE UNDER THIS beyond its reasonable control.
<br /> AGREEMENT, IN NO EVENT SHALL SIEMENS BE LIABLE 8.4 WHERE SERVICES INCLUDE EFFORTS BY SIEMENS TO
<br /> (INCLUDING WITHOUT LIMITATION, UNDER ANY THEORY IN HELP CUSTOMER TO ATTAIN REBATES AND/OR INCENTIVES
<br /> TORTS) FOR ANY LOSS OF USE, REVENUE, ANTICIPATED FROM AVAILABLE SOURCES OR ENERGY/FUEL COST
<br /> PROFITS OR SPECIAL, INDIRECT, INCIDENTAL OR REDUCTION, CUSTOMER ACKNOWLEDGES THAT ANY
<br /> CONSEQUENTIAL DAMAGES(INCLUDING WITHOUT LIMITATION REBATE/INCENTIVE OR ENERGY/ FUEL COST REDUCTION
<br /> LOST PROFITS AND/OR LOST BUSINESS OPPORTUNITIES) THAT MAY BE AVAILABLE TO CUSTOMER IS GRANTED BY A
<br /> ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT THIRD PARTY OUTSIDE THE CONTROL OF SIEMENS.
<br /> OR THE SERVICES WHETHER ARISING IN WARRANTY, TORT, CUSTOMER FURTHER ACKNOWLEDGES THAT WHILE
<br /> CONTRACT, STRICT LIABILITY, OR ANY OTHER THEORY OF SIEMENS WILL EITHER ASSIST CUSTOMER OR ENDEAVOR
<br /> LIABILITY, WHETHER, FOR WARRANTY, LATE OR NON- ITSELF TO OBTAIN ANY AND ALL REBATES/INCENTIVES OR
<br /> DELIVERY OF ANY SERVICES, AND WHETHER SIEMENS HAS ENERGY/FUEL COST REDUCTION AVAILABLE, SIEMENS DOES
<br /> BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOT GUARANTEE THAT IT WILL OBTAIN OR APPLY FOR ALL
<br /> 7.9 It is understood and agreed by and between the parties that REBATES/INCENTIVES OR ENERGY/FUEL COST REDUCTIONS
<br /> Siemens is not an insurer and this Agreement is not intended to be THAT MAY BE AVAILABLE TO CUSTOMER.
<br /> an insurance policy or a substitute for an insurance policy. Article 9: License and Intellectual Property
<br /> Insurance, if any, shall be obtained by Customer. Fees are based 9.1 Any tangible form of a report or drawing specifically developed for,
<br /> solely upon the value of the Services provided hereunder, and are commissioned by and deliverable to the Customer in connection with
<br /> unrelated to the value of Customer's property or the property of Services performed by Siemens under this Agreement("Work Product
<br /> others on Customer's premises. Accordingly, Siemens' aggregate Deliverables") shall become the Customer's property upon receipt by
<br /> liability for any and all claims, losses or expenses (induding the Customer and payment of any fees due Siemens under this
<br /> attorney's fees) arising out of this Agreement, or out of any Services Agreement. Siemens may retain file copies of such Work Product
<br /> or goods furnished under this Agreement, whether based in Deliverables.
<br /> contract, negligence, strict liability, agency, warranty, trespass, 9.2 If any know-how, tools and related documentation owned or
<br /> indemnity or any other theory of liability, shall be limited, as licensed by Siemens and used by Siemens to install or commission
<br /> liquidated damages, to the greater of $1,000 or 10% of the total Equipment and Software for operation at the Site, including but not
<br /> compensation received by Siemens from Customer under this limited to tools for installing any Software, performing diagnostics on
<br /> Agreement. Equipment as installed at the Site as well as any reports, notes,
<br /> 7.10 Siemens reserves the right to control the defense and settlement calculations, data, drawings, estimates, specifications, manuals,
<br /> of any daim for which Siemens has an obligation under the warranty documents, all computer programs, codes and computerized
<br /> hereunder. materials prepared by or for Siemens and used by Siemens to provide
<br /> 7.11 The parties acknowledge that the price which Siemens has the Services ("Instruments') are provided to the Customer under this
<br /> agreed to perform its Services and obligations under this Agreement Agreement, any such Instruments shall remain Siemens property,
<br /> is calculated based upon the foregoing limitations of liability, and that including the intellectual property conceived or developed by Siemens
<br /> Siemens has expressly relied on,and would not have entered into this in the Instruments.
<br /> Agreement but for such limitations of liability. 9.3 In addition, all intellectual property: (i)that has been conceived or
<br /> Article 8: Limitations of Maintenance or Service Obligations developed by an employee or subcontractor of Siemens before
<br /> 8.1 Unless agreed otherwise, Services do not indude and Siemens is Siemens performs any Services under this Agreement; (ii) that is
<br /> not responsible for: (a) service or provision of consumable supplies, conceived or developed by such employee or subcontractor at any time
<br /> induding but not limited to batteries and halon cylinder charging; (b) wholly independently of Siemens performing the Services under this
<br /> Siemens Industry,Inc.,Building Technologies Division 4 of 6
<br /> For:Orange County
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