|
GENERAL TERMS AND CONDITIONS
<br />(Solutions)
<br />Siemens Industry, Inc., Building Technologies Division Solutions (v.5/15)
<br />THE REQUIREMENTS OF ANY LAW, REGULATION,
<br />SPECIFICATION OR CONTRACT RELATIVE THERETO, WHICH
<br />ARE HEREBY EXPRESSLY DISCLAIMED. SIEMENS MAKES NO
<br />WARRANTY, EXPRESS OR IMPLIED, THAT ANY EQUIPMENT
<br />PROVIDED HEREUNDER WILL PREVENT ANY LOSS, OR WILL
<br />IN ALL CASES PROVIDE THE PROTECTION FOR WHICH IT IS
<br />INSTALLED OR INTENDED. The limited express warranties and
<br />representation set forth in this Agreement may only be modified or
<br />supplemented in a writing signed by a duly authorized signatory of
<br />Siemens.
<br />7.4 Siemens shall maintain the following insurance while performing
<br />the Work:
<br />Workers' Compensation Statutory
<br /> Employers' Liability $1,000,000 each accident
<br /> Commercial General $1,000,000 per occurrence and
<br /> Liability $5,000,000 in the aggregate
<br /> Automobile Liability $1,000,000 per occurrence/aggregate
<br />7.5 Risk of loss of materials and Equipment furnished by Siemens
<br />shall pass to Customer upon delivery to Customer’s premises, and
<br />Customer shall be responsible for protecting and insuring them
<br />against theft and damage.
<br />7.6 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
<br />LIMITATION LOST PROFITS AND/OR LOST BUSINESS
<br />OPPORTUNITIES) ARISING OUT OF OR IN CONNECTION WITH
<br />THIS AGREEMENT OR THE WORK WHETHER ARISING IN
<br />WARRANTY, TORT, CONTRACT , STRICT LIABILITY, OR ANY
<br />OTHER THEORY OF LIABILITY, WHETHER, FOR WARRANTY,
<br />LATE OR NON-DELIVERY OF ANY WORK, AND WHETHER
<br />SIEMENS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
<br />DAMAGES. Siemens reserves the right to control the defense and
<br />settlement of any claim for which Siemens has an obligation to
<br />indemnify hereunder.
<br />7.7 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. Pricing
<br />for the Work is based solely upon the value of the Work provided
<br />hereunder, and are unrelated to the value of Customer’s property
<br />or the property of others on Customer’s premises. Accordingly,
<br />Siemens’ aggregate liability for any and all claims, losses or
<br />expenses (including attorneys fees) arising out of this Agreement,
<br />or out of any Work or goods furnished under this Agreement,
<br />whether based in contract, negligence, strict liability, agency,
<br />warranty, trespass, indemnity or any other theory of liability, shall
<br />be limited to the lesser of $1,000,000 or the total compensation
<br />received by Siemens from Customer under this Agreement;
<br />EXCEPT FOR SUCH CLAIMS, LOSSES OR EXPENSES
<br />ARISING FROM, OR CAUSED BY, THE FAILURE OF A
<br />SIEMENS INSTALLED FLS SYSTEM TO OPERATE PROPERLY.
<br />IN SUCH EVENT, CUSTOMER’S SOLE REMEDY FOR A
<br />DEFECTIVE NON-CONFORMING FLS SYSTEM PROVIDED
<br />HEREUNDER SHALL BE IN ACCORDANCE WITH THE
<br />WARRANTY TERMS CONTAINED HEREIN.
<br />7.8 The parties acknowledge that the price which Siemens has
<br />agreed to perform its Work and obligations under this Agreement is
<br />calculated based upon the foregoing limitations of liability, and that
<br />Siemens has expressly relied on, and would not have entered into
<br />this Agreement but for such limitations of liability.
<br />Article 8: Hazardous Materials Provisions
<br />8.1 The Work does not include directly or indirectly performing or
<br />arranging for the detection, monitoring, handling, storage, removal,
<br />transportation, disposal or treatment of Oil or Hazardous Materials.
<br />Except as disclosed pursuant to Section 8.3, Customer represents
<br />that there is no asbestos or any other hazardous or toxic materials,
<br />as defined in the Comprehensive Environmental Response,
<br />Compensation and Liability Act of 1980, as amended, the
<br />regulations promulgated thereunder, and other applicable federal,
<br />state or local law ("Hazardous Materials"), present at Customer’s
<br />locations where Work is performed. Siemens will notify Customer
<br />immediately if it discovers or suspects the presence of any
<br />Hazardous Material. All Work has been priced and agreed to by
<br />Siemens in reliance on Customer’s representations as set forth in
<br />this Section 8.1. The presence of Hazardous Materials constitutes a
<br />change in the Proposed Solution equivalent to a change order
<br />whose terms must be agreed to by Siemens before its obligations
<br />hereunder will continue.
<br />8.2 Customer shall be solely responsible for testing, abating,
<br />encapsulating, removing, remedying or neutralizing such Hazardous
<br />Materials, and for the costs thereof. Even if an appropriate change
<br />order has been entered into pursuant to Section 8.1 above,
<br />Siemens will continue to have the right to stop the Work until the job
<br />site is free from Hazardous Materials. In such event, Siemens will
<br />receive an equitable extension of time to complete its Work, and
<br />compensation for delays caused by Hazardous Materials
<br />remediation. In no event shall Siemens be required or construed to
<br />take title, ownership or responsibility for such Oil or Hazardous
<br />Materials. Customer shall sign any required waste manifests in
<br />conformance with all government regulations, listing Customer as the
<br />generator of the waste.
<br />8.3 Customer warrants that, prior to the execution of the Agreement,
<br />it has notified Siemens in writing of any and all Hazardous Materials
<br />present, potentially present or likely to become present at
<br />Customer’s locations and has provided a copy of any jobsite safety
<br />policies, including but not limited to lock-out and tag procedures,
<br />laboratory procedures, chemical hygiene plan, material safety data
<br />sheets or other items covered or required to be disclosed or
<br />maintained by federal, state, or local laws, regulations or
<br />ordinances.
<br />8.4 For separate consideration of $10 and other good and valuable
<br />consideration, the receipt and adequacy of which are hereby
<br />acknowledge, Customer shall indemnify, defend and hold Siemens
<br />harmless from and against any damages, losses, costs, liabilities or
<br />expenses (including attorneys’ fees) arising out of any Oil or
<br />Hazardous Materials or from Customer’s breach of, or failure to
<br />perform its obligations under, Sections 8.1, 8.2 or 8.3.
<br />Article 9: Import / Export Indemnity
<br />9.1 Customer acknowledges that Siemens is required to comply
<br />with applicable export laws and regulations relating to the sale,
<br />exportation, transfer, assignment, disposal and usage of the Work
<br />or Equipment or services provided under the Contract, including
<br />any export license requirements. Customer agrees that such
<br />Work or Equipment or Software shall not at any time directly or
<br />indirectly be used, exported, sold, transferred, assigned or
<br />otherwise disposed of in a manner which will result in non-
<br />compliance with such applicable export laws and regulations. It
<br />shall be a condition of the continuing performance by Siemens of
<br />its obligations hereunder that compliance with such export laws
<br />and regulations be maintained at all times. CUSTOMER AGREES
<br />TO INDEMNIFY AND HOLD SIEMENS HARMLESS FROM ANY
<br />AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS AND
<br />FINES RELATED TO NON-COMPLIANCE WITH APPLICABLE
<br />EXPORT LAWS AND REGULATIONS.
<br />Article 10: Small Business Concern
<br />SIEMENS shall adhere to FAR 52.219-8 regarding the “Utilization
<br />of Small Business Concerns”, as part of its Commercial Small
<br />Business Subcontracting Agreement with the federal government.
<br />SIEMENS’ policy is to offer small business concerns, including
<br />small disadvantaged businesses, women owned small-
<br />businesses, HUBZone small businesses, veteran owned small
<br />businesses and service disabled veteran owned small businesses,
<br />the “maximum practical opportunity” to participate in performing
<br />contracts let by any commercial entity, local government or federal
<br />agency, including subcontracts for subsystems, assemblies,
<br />components, and related services for major systems.
<br />DocuSign Envelope ID: 15027EFD-227A-4F40-AC0E-22DDC9A9A2B9
|