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DocuSign Envelope ID: AD3C76OB- 8590- 44B6- 96E4- CA9154EB7FOF
<br />GENERAL TERMS AND CONDITIONS
<br />(SERVICE)
<br />Invoices are due and payable net cash upon receipt unless Customer
<br />has applied and been approved for credit with Siemens, in which case
<br />the invoice is payable within 30 calendar days of receipt by Customer
<br />or as otherwise set forth in this Agreement. If any payment is not
<br />received when due, Siemens may deem Customer to be in breach
<br />hereof and may enforce any remedies available to it hereunder or at
<br />law, including without limitation, acceleration of payments and
<br />suspension or termination of Services at any time and without notice,
<br />and shall be entitled to compensation for Services previously
<br />performed and costs reasonably incurred in connection with the
<br />suspension or termination. In the event that any payment due
<br />hereunder is not paid when due, Customer shall pay, upon demand,
<br />as a late charge, one and one -half percent (1.5 %) of the amount of
<br />the payment per month, limited by the maximum rate permitted by law
<br />of each overdue amount under this Agreement. Customer shall
<br />reimburse Siemens' costs and expenses (including reasonable
<br />attorneys' and witnesses' fees) incurred for collection under this
<br />Agreement. If Customer disputes any portion or all of an invoice, it
<br />shall notify Siemens in writing of the amount in dispute and the reason
<br />for its disagreement within 21 days of receipt of the invoice. The
<br />undisputed portion shall be paid when due, and interest on any unpaid
<br />portion shall accrue as aforesaid, from the date due until paid, to the
<br />extent that such amounts are finally determined to be payable to
<br />Siemens. Notwithstanding any provision of this Agreement Siemens
<br />shall not declare a default unless Customer fails to cure the default
<br />within twenty (20) business days of the receipt of written notice of
<br />the default.
<br />5.4 Except to the extent expressly identified in this Agreement,
<br />Siemens' fees do not include any taxes, excises, fees, duties, permits
<br />or other government charges related to the Services. Customer shall
<br />pay such amounts or reimburse Siemens for any amounts it pays. If
<br />Customer claims a tax exemption or direct payment permit, it shall
<br />provide Siemens with a valid exemption certificate or permit and
<br />indemnify, defend and hold Siemens harmless from any taxes, costs
<br />and penalties arising out of same.
<br />5.5 Unless agreed otherwise, the pricing for each year after the
<br />Initial Term of this Agreement and each year of each renewal of the
<br />Agreement shall be determined as the immediate prior year price
<br />plus a price escalator based upon the U.S. Department of Labor,
<br />Bureau of Labor Statistics Urban Consumer Price Index-All Urban
<br />Consumers U.S. All items, 1982 - 1984 =100 ( "CPI -U'). In addition,
<br />each renewal term pricing shall be adjusted for any additions or
<br />deletions to Services selected for the renewal term. The price
<br />escalator shall be the latest semi - annual CPI -U identified above
<br />published prior to each annual anniversary. This escalator shall be
<br />applicable to each annual term, whether a renewal term or an
<br />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
<br />circumstances outside Siemens' reasonable control (such as changes
<br />of law) may develop which require Siemens to expend additional costs,
<br />effort or time to complete the Services, in which case Siemens shall
<br />notify Customer and an equitable adjustment made to the
<br />compensation and time for performance. In the event conditions or
<br />circumstances require Services to be suspended or terminated,
<br />Siemens shall be compensated for Services performed and for costs
<br />reasonable incurred in connection with the suspension or termination.
<br />6.2 Siemens shall not be responsible for loss, delay, injury, damage
<br />or failure of performance that may be caused by circumstances
<br />beyond its control, including but not limited to acts or omissions by
<br />Customer or its employees, agents or contractors, Acts of God, war,
<br />terrorism, civil commotion, acts or omissions of government
<br />authorities, fire, theft, corrosion, flood, water damage, lightning,
<br />freeze -ups, computer viruses, program or system hackers, strikes,
<br />lockouts, differences with workmen, riots, explosions, quarantine
<br />restrictions, delays in transportation, or shortage of vehicles, fuel,
<br />labor or materials. In the event of any such circumstances, Siemens
<br />shall be excused from performance of the Services and the time for
<br />Siemens Industry, Inc., Building Technologies Division
<br />For: Orange County
<br />performance shall be extended by a period equal to the time lost plus a
<br />reasonable recovery period and the compensation equitably adjusted
<br />to compensate for additional costs Siemens incurs due to such
<br />circumstances.
<br />Article 7: Warranties; Disclaimers; Limitation of Liability
<br />7.1 Labor in performing the Services is warranted to be free from
<br />defects in workmanship for 90 days after the Services are performed.
<br />All labor provided by Siemens hereunder found to be defective and
<br />otherwise qualifying under this warranty shall be re- performed by
<br />Siemens. Such re- performance hereunder shall not interrupt or
<br />prolong the terms of this warranty. In the event that any such re-
<br />performance fails to cure such defects, then Customer's exclusive
<br />remedy against Siemens for damages from any cause whatsoever,
<br />whether in contract or tort, shall not exceed an amount equal to the
<br />limitation set forth in Section 7.9 herein.
<br />7.2 To the extent that Equipment is a Deliverable as part of the
<br />Services under this Agreement, Equipment manufactured by Siemens
<br />or bearing its nameplate shall be warranted for the earlier of one (1)
<br />year from the date of first beneficial use or from the date of installation
<br />to be free from defects. To the extent that Software is a Deliverable
<br />as part of the Services for use in the Equipment or in a computer
<br />owned by the Customer, Customer agrees to take delivery of any
<br />such Software subject to (i) any applicable Siemens or third party end -
<br />user license agreement (EULA) accompanying such Software, or (ii),
<br />if no EULA accompanies such Software, the EULA posted at
<br />www.usa.siemens.com /btcpseula (Siemens' EULA web site) for
<br />such Software used in or with the Equipment identified by product
<br />model or part number on the Siemens EULA web site. Such
<br />Software shall be warranted in accordance with its applicable EULA
<br />unless an exception is explicitly identified in the Document under this
<br />Agreement. For all other Equipment, Siemens hereby assigns to
<br />Customer, without recourse, any and all assignable warranties
<br />available from any manufacturer or supplier of such Equipment and
<br />such Software and will assist Customer in enforcement of such
<br />assigned warranties.
<br />7.3 The limited warranties set forth in Sections 7.1. and 7.2
<br />respectively, will be void as to, and shall not apply to, any Services,
<br />Equipment or Software (i) repaired, altered or improperly installed by
<br />any person other than Siemens or its authorized representative; (ii)
<br />Equipment subjected to unreasonable or improper use or storage,
<br />used beyond rated conditions, operated other than per Siemens' or
<br />manufacturer's instructions, or otherwise subjected to improper
<br />maintenance, negligence or accident, by Customer or others; (iii)
<br />damaged because of any use of the Equipment after Customer has,
<br />or should have knowledge of any defect in the Equipment.
<br />7.4 Any claim under the limited warranties granted above must be
<br />made in writing to Siemens within thirty (30) days after discovery of
<br />the claimed defect unless discovered directly by Siemens. Such
<br />limited warranty only extends to Customer and not to any subsequent
<br />owner of the Equipment. As to the Equipment, Customer's sole and
<br />an exclusive remedy for any Equipment found to be defective during
<br />the warranty period is repair or replacement of the parts or
<br />components found to be defective.
<br />7.5 THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE
<br />ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES,
<br />STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT
<br />LIMITATION ALL EXPRESS OR IMPLIED WARRANTIES OF
<br />MERCHANTABILITY OR FITNESS FOR A PARTICULAR
<br />PURPOSE, QUALITY, CAPACITY, OR WORKMANSHIP, ALL
<br />EXPRESS OR IMPLIED WARRANTIES AGAINST THIRD PARTY
<br />INTELLECTUAL PROPERTY ( "IP') INFRINGEMENTS (INCLUDING
<br />PATENT, COPYRIGHT AND OTHER REGISTERED OR
<br />UNREGISTERED THIRD PARTY IP RIGHTS) OR DEFECTS,
<br />WHETHER HIDDEN OR APPARENT, AND EXPRESS OR IMPLIED
<br />WARRANTIES WITH RESPECT TO COMPLIANCE OF THE
<br />COVERED EQUIPMENT AND DELIVERABLES WITH THE
<br />REQUIREMENTS OF ANY LAW, REGULATION, SPECIFICATION
<br />OR CONTRACT RELATIVE THERETO, WHICH ARE HEREBY
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