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GENERAL TERMS AND CONDITIONS
<br />(Solutions)
<br />Siemens Industry, Inc., Building Technologies Division Solutions (v.5/15)
<br />information, insurance policy number, passport number, taxpayer
<br />identification number, account number, credit card number or any
<br />other financial information.
<br />4.6 SIEMENS HEREBY DISCLAIMS ANY AND ALL LIABILITY
<br />FOR DAMAGES, INJURY OR LOSS ARISING OUT OF
<br />DISCLOSURE OR DISSEMINATION OF PERSONALLY
<br />IDENTIFIABLE INFORMATION THAT WAS STORED IN
<br />VIOLATION OF PARAGRAPH 4.5 OF THIS ARTICLE,
<br />4.7 To the extent permitted by law, Customer shall indemnify,
<br />defend and hold Siemens harmless from any claims, losses or
<br />damages arising out of disclosure or dissemination of Personally
<br />Identifiable Information that was stored in violation of paragraph 4.5
<br />of this Article.
<br />Article 5: Compensation
<br />5.1 Siemens shall be compensated for the Work at its prevailing
<br />rates and reimbursed for costs and expenses (plus reasonable profit
<br />and overhead) incurred in its performance of the Work. All other
<br />work, including but not limited to the following, shall be separately
<br />billed or surcharged on a time and materials basis: (a) emergency
<br />work performed at Customer’s request, if inspection does not reveal
<br />any deficiency covered by the Agreement; (b) work performed other
<br />than during Siemens' normal working hours; and, (c) work
<br />performed on equipment not covered by the Agreement.
<br />5.2 Siemens may invoice Customer on a monthly or other progress
<br />billing basis. Invoices are due and payable upon receipt or as
<br />otherwise set forth in the Agreement. If any payment is not received
<br />when due, Siemens may deem Customer to be in breach hereof
<br />and may enforce any remedies available to it hereunder or at law,
<br />including without limitation, acceleration of payments and
<br />suspension or termination of the Work at any time and without notice
<br />and shall be entitled to compensation for the Work previously
<br />performed and for costs reasonably incurred in connection with the
<br />suspension or termination. In the event any payment due hereunder
<br />is not made when due, the Customer agrees to pay, on demand, as
<br />a late charge, one and one-half percent (1.5%) of the amount of the
<br />payment per month, limited by the maximum rate permitted by law,
<br />of each overdue amount (including accelerated balances) under the
<br />Agreement, Customer shall reimburse Siemens for Siemens' costs
<br />and expenses (including reasonable attorneys' and witnesses' fees)
<br />incurred for collection under this Agreement. In the event of a
<br />dispute by Customer regarding any portion or all of an invoiced
<br />amount, it shall notify Siemens in writing of the amount in dispute
<br />and the reason for its disagreement within 21 days of receipt of the
<br />invoice, the undisputed portion shall be paid when due, and interest
<br />on the disputed, unpaid portion shall accrue as aforesaid, from the
<br />date due until the date of payment, to the extent that such amounts
<br />are finally determined to be payable to Siemens.
<br />5.3 Except to the extent expressly agreed in writing, Siemens' fees
<br />do not include any taxes, excises, fees, duties or other government
<br />charges related to the Work, and Customer shall pay such amounts
<br />or reimburse Siemens for any amounts it pays. If Customer claims a
<br />tax exemption or direct payment permit, it shall provide Siemens with
<br />a valid exemption certificate or permit and indemnify, defend and
<br />hold Siemens harmless from any taxes, costs and penalties arising
<br />out of same.
<br />Article 6: Changes; Delays; Excused Performance
<br />6.1 As the Work is performed, conditions may change or
<br />circumstances outside Siemens’ reasonable control (such as
<br />changes of law) may develop which require Siemens to expend
<br />additional costs, effort or time to complete the Work, in which case
<br />Siemens shall notify Customer and an equitable adjustment made to
<br />the compensation and time for performance. In the event conditions
<br />or circumstances require the Work to be suspended or terminated,
<br />Siemens shall be compensated for the Work performed and for costs
<br />reasonable incurred in connection with the suspension or
<br />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 Work and the time for
<br />performance shall be extended by a period equal to the time lost plus
<br />a reasonable recovery period and the compensation equitably
<br />adjusted to compensate for additional costs Siemens incurs due to
<br />such circumstances
<br />Article 7: Warranty; Disclaimers; Insurance; Allocation of Risk
<br />7.1 (a) Until one year from either the date the Equipment is
<br />installed or the date of first beneficial use, whichever first occurs, all
<br />Equipment manufactured by Siemens or bearing its nameplate will
<br />be free from defects in material and workmanship arising from
<br />normal use and service.
<br />(b) Labor for all Work under this Agreement is warranted to be free
<br />from defects for one year after the earlier of the date the Work is
<br />substantially completed or the date of first beneficial use.
<br />(c) To the extent that Software is a Deliverable as part of the Work
<br />for use in the Equipment or in a computer owned by the Customer,
<br />Customer agrees to take delivery of any such Software subject to (i)
<br />any applicable Siemens or third party end-user license agreement
<br />(“EULA”) accompanying such Software, or (ii), if no EULA
<br />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
<br />this Agreement. For all other Equipment, Siemens hereby assigns
<br />to 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 />7.2 (a) The limited warranties set forth in Section 7.1 will be void as
<br />to, and shall not apply to, any Work, Equipment or Software (i)
<br />repaired, altered or improperly installed by any person other than
<br />Siemens or its authorized representative; (ii) Equipment subjected
<br />to unreasonable or improper use or storage, used beyond rated
<br />conditions, operated other than per Siemens' or the manufacturer's
<br />instructions, or otherwise subjected to improper maintenance,
<br />negligence or accident; (iii) damaged because of any use of the
<br />Work after Customer has, or should have, knowledge of any defect
<br />in the Work; or (iv) Equipment not manufactured, fabricated and
<br />assembled by Siemens or not bearing Siemens' nameplate.
<br />However, Siemens assigns to Customer, without recourse, any and
<br />all assignable warranties available from any manufacturer, supplier,
<br />or subcontractor of such Equipment and will assist Customer in
<br />enforcement of such assigned warranties.
<br />(b) Any claim under the limited warranty 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
<br />subsequent owner of the Equipment. Customer’s sole and
<br />exclusive remedy for any Work not conforming with this limited
<br />warranty is limited to, at Siemens’ option, (i) repair or replacement of
<br />defective components of covered Equipment, or (ii) reperformance
<br />of the defective portion of the Work
<br />(c) Siemens shall not be required to repair or replace more than
<br />the component(s) of the Equipment actually found to be defective.
<br />Siemens' warranty liability shall not exceed the purchase price of
<br />such component(s) Repaired or replaced Equipment will be
<br />warranted hereunder only for the remaining portion of the original
<br />warranty period.
<br />7.3 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 ANY WARRANTY OF MERCHANTABILITY OR
<br />FITNESS FOR A PARTICULAR PURPOSE, QUALITY, CAPACITY
<br />OR WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES
<br />AGAINST THIRD PARTY INTELLECTUAL PROPERTY (“IP”)
<br />INFRINGEMENTS (INCLUDING PATENT, COPYRIGHT AND
<br />OTHER REGISTERED OR UNREGISTERED THIRD PARTY IP
<br />RIGHTS) OR DEFECTS, WHETHER HIDDEN OR APPARENT,
<br />AND EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO
<br />COMPLIANCE OF THE EQUIPMENT AND DELIVERABLES WITH
<br />DocuSign Envelope ID: 15027EFD-227A-4F40-AC0E-22DDC9A9A2B9
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