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DocuSign Envelope ID: AD3C76OB- 8590- 44B6- 96E4- CA9154EB7FOF
<br />GENERAL TERMS AND CONDITIONS
<br />(SERVICE)
<br />EXPRESSLY DISCLAIMED.
<br />7.6 Customer hereby, for it and any parties claiming under it,
<br />releases and discharges Siemens from any liability arising out of all
<br />hazards covered by Customer's insurance. All claims against
<br />Siemens arising out of such hazards, including any right of
<br />subrogation by Customer's insurance carrier, are hereby waived by
<br />Customer.
<br />7.7 ANY IDEAS, SUGGESTIONS, RECOMMENDATIONS,
<br />FINANCIAL EVALUATIONS, FEASIBILITY STUDIES OR
<br />ECONOMIC ANALYSIS PREPARED BY SIEMENS UNDER THIS
<br />AGREEMENT WILL REPRESENT ITS BEST JUDGMENT BASED
<br />ON ITS EXPERIENCE AND THE AVAILABLE INFORMATION.
<br />CUSTOMER ACKNOWLEDGES THAT THE ENERGY MARKET IS
<br />VOLATILE AND SUBJECT TO FREQUENT PRICE AND
<br />REGULATORY CHANGES. THEREFORE, CUSTOMER FURTHER
<br />ACKNOWLEDGES THAT SIEMENS DOES NOT CONTROL
<br />FUTURE MARKET CONDITIONS OR THE ENERGY MARKET'S
<br />REGULATORY CLIMATE. NOTHING HEREIN SHALL BE
<br />CONSTRUED BY CUSTOMER AS A PREDICTION OF FUTURE
<br />ENERGY MARKET CONDITIONS OR ENERGY PRICES.
<br />ACCORDINGLY, SIEMENS DOES NOT PROVIDE CUSTOMER A
<br />GUARANTY OR WARRANTY OF THE RESULTS OF SIEMENS'
<br />RECOMMENDATIONS. CUSTOMER MAKES ANY AND ALL
<br />ENERGY PROCUREMENT AND RELATED
<br />DECISIONS. CUSTOMER ACKNOWLEDGES THAT ALL ENERGY
<br />PROCUREMENT AND RELATED DECISIONS ARE MADE AT
<br />CUSTOMER'S SOLE RISK.
<br />7.8 WITH RESPECT TO ANY LIABILITY (WARRANTY OR
<br />OTHERWISE) THAT SIEMENS MAY HAVE UNDER THIS
<br />AGREEMENT, IN NO EVENT SHALL SIEMENS BE LIABLE
<br />(INCLUDING WITHOUT LIMITATION, UNDER ANY THEORY IN
<br />TORTS) FOR ANY LOSS OF USE, REVENUE, ANTICIPATED
<br />PROFITS OR SPECIAL, INDIRECT, INCIDENTAL OR
<br />CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION
<br />LOST PROFITS AND /OR LOST BUSINESS OPPORTUNITIES)
<br />ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
<br />OR THE SERVICES WHETHER ARISING IN WARRANTY, TORT,
<br />CONTRACT, STRICT LIABILITY, OR ANY OTHER THEORY OF
<br />LIABILITY, WHETHER, FOR WARRANTY, LATE OR NON-
<br />DELIVERY OF ANY SERVICES, AND WHETHER SIEMENS HAS
<br />BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
<br />7.9 It is understood and agreed by and between the parties that
<br />Siemens is not an insurer and this Agreement is not intended to be
<br />an insurance policy or a substitute for an insurance policy.
<br />Insurance, if any, shall be obtained by Customer. Fees are based
<br />solely upon the value of the Services provided hereunder, and are
<br />unrelated to the value of Customer's property or the property of
<br />others on Customer's premises. Accordingly, Siemens' aggregate
<br />liability for any and all claims, losses or expenses (including
<br />attorney's fees) arising out of this Agreement, or out of any Services
<br />or goods furnished under this Agreement, whether based in
<br />contract, negligence, strict liability, agency, warranty, trespass,
<br />indemnity or any other theory of liability, shall be limited, as
<br />liquidated damages, to the greater of $1,000 or 10% of the total
<br />compensation received by Siemens from Customer under this
<br />Agreement.
<br />7.10 Siemens reserves the right to control the defense and settlement
<br />of any claim for which Siemens has an obligation under the warranty
<br />hereunder.
<br />7.11 The parties acknowledge that the price which Siemens has
<br />agreed to perform its Services and obligations under this Agreement
<br />is calculated based upon the foregoing limitations of liability, and that
<br />Siemens has expressly relied on, and would not have entered into this
<br />Agreement but for such limitations of liability.
<br />Article 8: Limitations of Maintenance or Service Obligations
<br />8.1 Unless agreed otherwise, Services do not include and Siemens is
<br />not responsible for: (a) service or provision of consumable supplies,
<br />including but not limited to batteries and halon cylinder charging; (b)
<br />Siemens Industry, Inc., Building Technologies Division
<br />For: Orange County
<br />reinstallation or relocation of Covered Equipment; (c) painting or
<br />refinishing of Covered Equipment or surrounding surfaces; (d)
<br />changes to Services; (e) parts, accessories, attachments or other
<br />devices added to Covered Equipment but not furnished by Siemens;
<br />(f) failure to continually provide suitable operating environment
<br />including, but not limited to, adequate space, ventilation, electrical
<br />power and protection from the elements; (g) the removal or
<br />reinstallation of replacement valves, dampers, waterflow and tamper
<br />switches, airflow stations, venting or draining systems, and any other
<br />permanently mounted integral pipe or air duct component; or (h) latent
<br />defects in the Covered Equipment that cannot be discovered through
<br />the standard provision of the Services. Siemens is not responsible for
<br />services performed on any Covered Equipment other than by
<br />Siemens or its agents.
<br />8.2 Siemens will not be responsible for the maintenance, repair or
<br />replacement of, or Services necessitated by reason of: (a) non -
<br />maintainable, non - replaceable or obsolete parts of the Covered
<br />Equipment, including but not limited to ductwork, shell and tubes, heat
<br />exchangers, coils, unit cabinets, casings, refractory material, electrical
<br />wiring, water and pneumatic piping, structural supports, cooling tower
<br />fill, slats and basins, etc. unless otherwise specifically stated in the
<br />Document; or (b) negligence, abuse, misuse, improper or inadequate
<br />repairs or modifications, improper operation, lack of operator
<br />maintenance or skill, failure to comply with manufacturer's operating and
<br />environmental requirements.
<br />8.3 Siemens is not responsible for repairs, replacements or services to
<br />Covered Equipment due to corrosion, erosion, improper or inadequate
<br />water treatment by others, electrolytic or chemical action, or reasons
<br />beyond its reasonable control.
<br />8.4 WHERE SERVICES INCLUDE EFFORTS BY SIEMENS TO
<br />HELP CUSTOMER TO ATTAIN REBATES AND /OR INCENTIVES
<br />FROM AVAILABLE SOURCES OR ENERGY /FUEL COST
<br />REDUCTION, CUSTOMER ACKNOWLEDGES THAT ANY
<br />REBATE /INCENTIVE OR ENERGY/ FUEL COST REDUCTION
<br />THAT MAY BE AVAILABLE TO CUSTOMER IS GRANTED BY A
<br />THIRD PARTY OUTSIDE THE CONTROL OF SIEMENS.
<br />CUSTOMER FURTHER ACKNOWLEDGES THAT WHILE
<br />SIEMENS WILL EITHER ASSIST CUSTOMER OR ENDEAVOR
<br />ITSELF TO OBTAIN ANY AND ALL REBATES /INCENTIVES OR
<br />ENERGY /FUEL COST REDUCTION AVAILABLE, SIEMENS DOES
<br />NOT GUARANTEE THAT IT WILL OBTAIN OR APPLY FOR ALL
<br />REBATES /INCENTIVES OR ENERGY/ FUEL COST REDUCTIONS
<br />THAT MAY BE AVAILABLE TO CUSTOMER.
<br />Article 9: License and Intellectual Property
<br />9.1 Any tangible form of a report or drawing specifically developed for,
<br />commissioned by and deliverable to the Customer in connection with
<br />Services performed by Siemens under this Agreement ( "Work Product
<br />Deliverables ") shall become the Customer's property upon receipt by
<br />the Customer and payment of any fees due Siemens under this
<br />Agreement. Siemens may retain file copies of such Work Product
<br />Deliverables.
<br />9.2 If any know -how, tools and related documentation owned or
<br />licensed by Siemens and used by Siemens to install or commission
<br />Equipment and Software for operation at the Site, including but not
<br />limited to tools for installing any Software, performing diagnostics on
<br />Equipment as installed at the Site as well as any reports, notes,
<br />calculations, data, drawings, estimates, specifications, manuals,
<br />documents, all computer programs, codes and computerized
<br />materials prepared by or for Siemens and used by Siemens to provide
<br />the Services ( "Instruments ") are provided to the Customer under this
<br />Agreement, any such Instruments shall remain Siemens property,
<br />including the intellectual property conceived or developed by Siemens
<br />in the Instruments.
<br />9.3 In addition, all intellectual property: (i) that has been conceived or
<br />developed by an employee or subcontractor of Siemens before
<br />Siemens performs any Services under this Agreement; (ii) that is
<br />conceived or developed by such employee or subcontractor at any time
<br />wholly independently of Siemens performing the Services under this
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