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DocuSign Envelope ID: AD3C76OB- 8590- 44B6- 96E4- CA9154EB7FOF
<br />GENERAL TERMS AND CONDITIONS
<br />(SERVICE)
<br />Article 1: General
<br />1.1 These General Terms and Conditions, including any
<br />supplemental terms (each a "Rider'), are attached to and made part of
<br />the Proposal, Advantage Services Agreement, or other document as
<br />the case may be including any change order, in which these General
<br />Terms and Conditions are incorporated (the "Document'), that when
<br />approved in writing by the Customer and accepted by an authorized
<br />representative of Siemens shall (a) constitute the entire, complete and
<br />exclusive contract between the parties (this "Agreement') (i) to
<br />implement the services identified in the Document (the "Services ") to
<br />be provided by Siemens and (ii) for the physical equipment
<br />( "Equipment'), software owned or licensable by Siemens ( "Software'),
<br />any related documentation (`Related Documentation'), deliverable
<br />Instruments (as defined in Section 9.2), and Work Product Deliverables
<br />(as defined in Section 9.1) identified in the Document to be provided by
<br />Siemens under the Agreement in accordance with the performance of
<br />the Services (collectively, the `Deliverables') and (b) supersedes and
<br />cancels all prior proposals, agreements and understandings, written or
<br />oral, relating to the subject matter of this Agreement.
<br />1.2 Neither party may assign this Agreement or any rights or
<br />obligations hereunder without the prior written consent of the other
<br />except that either party may assign this Agreement to its affiliates and
<br />Siemens may grant a security interest in the proceeds to be paid to
<br />Siemens under this Agreement; assign proceeds of this Agreement;
<br />and /or use subcontractors in performance of the Services.
<br />1.3 The terms and conditions of this Agreement shall not be modified
<br />or rescinded except in writing, with the prior approval of the Legal
<br />Departments of Siemens and Customer and signed by duly authorized
<br />officers or managers of Siemens and Customer.
<br />1.4 In the event of conflict between the Document and these General
<br />Terms and Conditions, these General Terms and Conditions shall
<br />control. In the event of conflict between a Rider and Document or
<br />these General Terms and Conditions, the Rider shall control. Any
<br />differing or additional terms and conditions in any purchase order or
<br />other document are of no force and effect unless specifically accepted
<br />in writing by the parties.
<br />1.5 Nothing contained in this Agreement shall be construed to give any
<br />rights or benefits to anyone other than the Customer and Siemens
<br />without the express written consent of both parties. All provisions of this
<br />Agreement allocating responsibility or liability between the parties shall
<br />survive the completion of the Services and termination of this
<br />Agreement.
<br />1.6 Certain terms and conditions contained herein may not apply to the
<br />Services to be provided hereunder. It is the intent of the parties,
<br />however, that the interpretation to be given to the terms and conditions
<br />is to apply all terms and conditions unless clearly inapplicable given the
<br />type of Services included.
<br />1.7 This Agreement shall be governed by and enforced in
<br />accordance with the laws of the State of North Carolina. Any litigation
<br />arising under this Agreement shall be brought in the State or
<br />Commonwealth in which the Services are provided to Customer.
<br />1.8 AFTER THE EXPIRATION OF THE INITIAL TERM, THIS
<br />AGREEMENT SHALL AUTOMATICALLY RENEW FOR SUCCESSIVE
<br />ONE YEAR PERIODS BEGINNING ON THE ANNIVERSARY DATE
<br />OF THE INITIAL TERM UNLESS STATED OTHERWISE IN THE
<br />DOCUMENT.
<br />1.9 This Agreement is non - cancellable during the Initial Term. Either
<br />party, however, may terminate this Agreement at the end of the Initial
<br />Term or at the end of a renewal term by giving the other party at least
<br />sixty (60) days prior written notice of its intent not to renew.
<br />1.10 If, during or within ninety (90) days after the term of this
<br />Agreement, Customer engages any Siemens employee who has
<br />performed work under this or any other agreement between Customer
<br />and Siemens, Customer shall pay Siemens an amount equal to the
<br />employee's latest annual salary.
<br />Article 2: Covered Equipment
<br />2.1 "Covered Equipment" shall mean the equipment expressly
<br />identified in the Document upon which Services will be performed.
<br />Siemens Industry, Inc., Building Technologies Division
<br />For: Orange County
<br />Customer represents at the commencement of this Agreement that,
<br />with the exception of Covered Equipment that is an Equipment
<br />Deliverable under this Agreement, if any, all Covered Equipment is in
<br />satisfactory working condition and complies with all applicable codes.
<br />2.2 If a fire or life safety system is included as part of the Covered
<br />Equipment and does not comply with all applicable codes or if removal
<br />of any item of Covered Equipment from coverage would compromise
<br />or impair the integrity or the compliance with law of any system or
<br />Services, and Customer fails to take all necessary corrective action,
<br />then Siemens may terminate this Agreement without further obligation
<br />and retain all monies received pursuant to this Agreement.
<br />2.3 All testing and inspection of any Covered Equipment provided for
<br />in this Agreement will be performed at the time and place and in the
<br />manner deemed appropriate by Siemens, in accordance with
<br />applicable law and the requirements of then current National Fire
<br />Protection Association ( "NFPA ") guidelines if applicable, and other
<br />relevant standards. Customer is solely responsible for, and hereby
<br />indemnifies and holds Siemens harmless from and against, any
<br />liability arising from Customer's specification of a testing schedule
<br />other than then current NFPA or other applicable standards or laws.
<br />2.4 If the Covered Equipment is altered or moved by any person,
<br />including Customer, other than Siemens or a person authorized by
<br />Siemens, Customer shall immediately notify Siemens in writing, and
<br />Siemens reserves the right to perform a reacceptance test on, or, if
<br />necessary, a recommissioning of the system at Customer's expense.
<br />Reacceptance tests will be performed in accordance with then current
<br />NFPA or other applicable requirements, and charged on a time and
<br />materials basis.
<br />Article 3: Services by Siemens
<br />3.1 Siemens shall only perform the Services identified in this
<br />Agreement. Siemens is not required to conduct safety or other tests,
<br />install or maintain any devices or equipment or make modifications or
<br />upgrades to any equipment beyond the scope of this Agreement. Any
<br />request to change the scope or the nature of the Services must be in
<br />the form of a mutually agreed change order, effective only when
<br />executed by all parties hereto.
<br />3.2 Siemens shall perform the Services during its local, normal
<br />working hours, unless otherwise stated in this Agreement.
<br />3.3 Siemens shall have no liability or obligation to continue providing
<br />Services in the event Customer fails to (a) authorize a reacceptance
<br />test or re- commissioning that Siemens reasonably deems necessary;
<br />(b) notify Siemens of any modifications or changes to the Covered
<br />Equipment or unusual or materially changed operating conditions,
<br />hours of usage, system malfunctions or building alterations that may
<br />affect the Services; (c) provide the access to any site where Services
<br />are to be performed; or (d) operate, service or maintain the Covered
<br />Equipment in accordance with manufacturer's or supplier's
<br />instructions or this Agreement. After any of the aforesaid events,
<br />Siemens may terminate or suspend services under this Agreement
<br />immediately, upon giving notice to Customer.
<br />3.4 Any repairs and replacements of Covered Equipment as may be
<br />expressly included in the Services are limited to restoring the proper
<br />working condition of such Covered Equipment. Siemens will not be
<br />obligated to provide replacement Covered Equipment that represents
<br />significant capital improvement compared to the original. Exchanged
<br />or removed components become the property of Siemens, except
<br />Hazardous Materials (as defined in Section 10.1), which under all
<br />circumstances remain the property and responsibility of Customer.
<br />3.5 The Services shall be performed in a manner consistent with the
<br />degree of care and skill ordinarily exercised by persons performing the
<br />same or similar Services in the same locale under similar
<br />circumstances and conditions.
<br />3.6 Where Services include energy consulting, any estimates of
<br />probable construction or implementation costs, financial evaluations,
<br />feasibility studies or economic analyses prepared by Siemens, the
<br />documents prepared for the Customer represent Siemens' best
<br />judgment based on Siemens' experience and the information
<br />reasonably available to Siemens at the time that the Services are
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