|
<br />
<br />Siemens Industry, Inc. July 2, 2019 Page 22
<br />
<br />3.8 All reports and drawings specifically prepared for and deliverable to Customer pursuant to this Agreement (“Deliverables”) shall become
<br />Customer's property upon full payment to SIEMENS. SIEMENS may retain file copies of such Deliverables. All other reports, notes, calculations,
<br />data, drawings, estimates, specifications, manuals, other documents and all computer programs, codes and computerized materials prepared by or
<br />for SIEMENS are instruments of SIEMENS’ work (“Instruments”) and shall remain SIEMENS property. Siemens conveys no license to software
<br />unless otherwise expressly provided in this Agreement. All Deliverables and Instruments provided to Customer are for Permitted Users’ use only
<br />for the purposes disclosed to SIEMENS, and Customer shall not transfer them to others or use them or permit them to be used for any extension of
<br />the Services or any other purpose, without SIEMENS’ express written consent. Any reuse of Deliverables or Instruments for other projects or
<br />locations without the written consent of SIEMENS, or use by any party other than Permitted Users, will be at Permitted Users’ sole risk and
<br />without liability to SIEMENS; and, in addition to any other rights SIEMENS may have, Customer shall, to the extent permitted by applicable law
<br />indemnify, defend and hold SIEMENS harmless from any claims, losses or damages arising therefrom. No section of the Agreement is
<br />intended to create a waiver of Customer’s rights or privileges as a sovereign entity.
<br />3.9 Customer acknowledges that SIEMENS, in the normal conduct of its business, may use concepts, skills and know-how developed while
<br />performing other contracts. Customer acknowledges the benefit which may accrue to it though this practice, and accordingly agrees that
<br />anything in this Agreement notwithstanding Siemens may continue, without payment of a royalty, this practice of using concepts, skills and
<br />know-how developed while performing this Agreement.
<br />3.10 Where Services include energy consulting, any estimates of probable construction or implementation costs, financial evaluations, feasibility
<br />studies or economic analyses prepared by SIEMENS, the documents prepared for the Customer will represent SIEMENS’ best judgment
<br />based on SIEMENS’ experience and the information reasonably available to SIEMENS at the time that the Services are performed. Customer
<br />acknowledges that SIEMENS does not control: (a) the costs of labor, materials, equipment or services furnished by others; (b) overall market
<br />conditions; or, (c) contractors' methods of determining prices. Accordingly, Customer acknowledges that proposals, bids or actual costs may
<br />differ from opinions, evaluations or studies submitted by SIEMENS as part of the Services provided hereunder.
<br />3.11 Where Services include EMC, SIEMENS will have a disaster recovery plan and a disaster contingency plan.
<br />
<br />Article 4: Responsibilities of Customer
<br />4.1 Customer, without cost to SIEMENS, shall:
<br />(a) Designate a contact person with authority to make decisions for Customer regarding the Services and provide SIEMENS with information
<br />sufficient to contact such person in an emergency. If such representative cannot be reached, any request for Services received from a person
<br />located at Customer's site will be deemed authorized by Customer, and SIEMENS will, in its reasonable discretion, act accordingly;
<br />(b) Provide or arrange without cost all reasonable provisions, means and access for SIEMENS to any site and the equipment where Services are
<br />to be performed;
<br />(c) Permit SIEMENS to control and/or operate all controls, systems, apparatus, equipment and machinery necessary to perform the Services;
<br />(d) Furnish SIEMENS with all available information pertinent to the Services;
<br />(e) Obtain and furnish to SIEMENS all approvals, permits and consents from government authorities and others as may be required for
<br />performance of the Services except for those SIEMENS has expressly agreed in writing to obtain;
<br />(f) Maintain the Services site in a safe condition; notify SIEMENS promptly of any site conditions requiring special care; and provide SIEMENS
<br />with any available documents describing the quantity, nature, location and extent of such conditions;
<br />(g) Comply with all laws and provide any notices required to be given to any government authorities in connection with the Services, except such
<br />notices SIEMENS has expressly agreed in this Agreement to give;
<br />(h) Provide SIEMENS with Material Safety Data Sheets (MSDS) conforming to OSHA requirements related to all Hazardous Materials at the site
<br />which may impact the Services;
<br />(i) Furnish to SIEMENS any contingency plans related to the site;
<br />(j) Furnish the specified operating environment, including without limitation, suitable, clean, stable, properly conditioned electrical power and
<br />other utilities;
<br />(k) Maintain all Covered Equipment in good working order in compliance with all applicable laws and service, repair and replace all Covered
<br />Equipment as necessary; and,
<br />(l) Perform inspections and tests as indicated in the Life Safety System Logbook and record same in the Life Safety System logbook.
<br />4.2 Customer acknowledges that the technical and pricing information herein is proprietary to SIEMENS and agrees not to disclose or otherwise
<br />make it available to others, subject to the provisions of Section 11(h) of the Agreement.
<br />4.3 Customer acknowledges that it is now and shall be at all times in control of the Services site. SIEMENS shall not have any responsibility, duty
<br />or authority to direct, supervise or oversee any employees or contractors of Customer or their work or to provide the means, methods or sequence of
<br />their work or to stop their work. SIEMENS’ work and/or presence at a site shall not relieve others of their responsibility to Customer or to others.
<br />Except as expressly provided herein, SIEMENS is not responsible for the adequacy of the health, safety or security programs or precautions related
<br />to Customer's or it other contractors’ activities or operations; the work of any other person or entity; or Customer's site conditions. SIEMENS is not
<br />responsible for inspecting, observing, reporting or correcting health or safety conditions or deficiencies of Customer or others at Customer's site. So
<br />as not to discourage SIEMENS from voluntarily addressing such issues, in the event SIEMENS does make observations, reports, suggestions or
<br />otherwise regarding such issues, SIEMENS shall not be liable or responsible for same.
<br />4.4 Except as expressly stated in this Agreement, Customer is solely responsible for any removal, replacement or refinishing of the building
<br />structure or finishes that may be required to perform or gain access to the Services.
<br />4.5 Customer alone shall act to protect life and property from the time a partial or full system failure occurs until SIEMENS notifies Customer
<br />that such system is operational or the emergency has been cleared. Customer's actions shall include all appropriate interim safety precautions
<br />(such as a manual "fire watch"). SIEMENS shall have no obligation to provide guards, fire watch personnel, or other services following a
<br />system failure, except Services as are specifically provided for in this Agreement.
<br />4.6 Customer shall not attach to the system or Covered Equipment any device that interferes with the Services or the proper operation of the
<br />system or Covered Equipment.
<br />
<br />Article 5: Compensation
<br />5.1 Annual Fee(s) shall be adjusted for each year after the final year of the Initial Term pursuant to the agreed Price Adjustment hereto and
<br />incorporated herein. Unless otherwise agreed in writing, this Agreement is not cancelable and the annual fee is not refundable except as provided
<br />herein.
<br />5.2 Payments to be made under this Agreement will provide for, and be in consideration of, only Services specifically included under the Proposed
<br />Solution. All other Services, including but not limited to the following, shall be separately billed or surcharged on a time and materials basis: (a)
<br />DocuSign Envelope ID: A9E76943-AF44-4034-A933-05655779889A
|