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<br />Siemens Industry, Inc. July 2, 2019 Page 23
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<br />emergency Services performed at Customer's request, if inspection does not reveal any deficiency covered by this Agreement; (b) Services performed
<br />other than during SIEMENS ' normal working hours; and (c) Service performed on equipment not covered by this Agreement.
<br />5.3 SIEMENS shall invoice Customer as provided in this Agreement, or if not expressly provided, then on an annual basis prior to the Start Date
<br />and annually thereafter on the anniversary of such Start Date. Invoices are due and payable within 30 calendar days of receipt by Customer or as
<br />otherwise set forth in this Agreement. If any payment is not received when due, SIEMENS may deem Customer to be in breach hereof and may
<br />enforce any remedies available to it hereunder or at law, including without limitation, acceleration of payments and suspension or termination of
<br />Services at any time and without notice, and shall be entitled to compensation for Services previously performed and costs reasonably incurred in
<br />connection with the suspension or termination. In the event that any payment due hereunder is not paid when due, Customer agreest to pay, upon
<br />demand, as a late charge, one and one-half percent (1.5%) of the amount of the payment per month, limited by the maximum rate permitted by
<br />law of each overdue amount under this Agreement. Customer shall reimburse SIEMENS’ costs and expenses (including reasonable attorneys' and
<br />witnesses' fees) incurred for collection under this Agreement. If Customer disputes any portion or all of an invoice, it shall notify SIEMENS in writing
<br />of the amount in dispute and the reason for its disagreement within 21 days of receipt of the invoice. The undisputed portion shall be paid when due,
<br />and interest on any unpaid portion shall accrue as aforesaid, from the date due until paid, to the extent that such amounts are finally determined to
<br />be payable to SIEMENS.
<br />5.4 Except to the extent expressly agreed in this Agreement, SIEMENS’ fees do not include any taxes, excises, fees, duties, permits or other
<br />government charges related to the Services. Customer shall pay such amounts or reimburse SIEMENS for any amounts it pays. If Customer claims
<br />a tax exemption or direct payment permit, it shall provide SIEMENS with a valid exemption certificate or permit and indemnify, defend and hold
<br />SIEMENS harmless from any taxes, costs and penalties arising out of same.
<br />5.5 Unless agreed otherwise, the pricing for each year after the Initial Term of the Agreement and each year of each renewal of the
<br />Agreement shall be determined as the immediate prior year price plus a price escalator based upon the U.S. Department of Labor, Bureau of
<br />Labor Statistics Urban Consumer Price Index-All Urban Consumers U.S. All items, 1982– 1984=100 (“CPI-U”). In addition, each renewal
<br />term pricing shall be adjusted for any additions or deletions to Services selected for the renewal term. The price escalator shall be the latest
<br />semi-annual CPI-U identified above published prior to each annual anniversary. This escalator shall be applicable to each annual term,
<br />whether a renewal term or an annual term after the first year of the Initial Term.
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<br />Article 6: Changes; Delays; Excused Performance
<br />6.1 As the Services are performed, conditions may change or circumstances outside SIEMENS’ reasonable control (such as changes of law) may
<br />develop which require SIEMENS to expend additional costs, effort or time to complete the Services, in which case SIEMENS shall notify Customer
<br />and an equitable adjustment made to the compensation and time for performance. In the event conditions or circumstances require Services to be
<br />suspended or terminated, SIEMENS shall be compensated for Services performed and for costs reasonable incurred in connection with the
<br />suspension or termination.
<br />6.2 SIEMENS shall not be responsible for loss, delay, injury, damage or failure of performance that may be caused by circumstances beyond its
<br />control, including but not limited to acts or omissions by Customer or its employees, agents or contractors, Acts of God, war, civil commotion, acts
<br />or omissions of government authorities, fire, theft, corrosion, flood, water damage, lightning, freeze-ups, strikes, lockouts, differences with
<br />workmen, riots, explosions, quarantine restrictions, delays in transportation, or shortage of vehicles, fuel, labor or materials. In the event of any
<br />such circumstances, SIEMENS shall be excused from performance of the Services and the time for performance shall be extended by a period
<br />equal to the time lost plus a reasonable recovery period and the compensation equitably adjusted to compensate for additional costs SIEMENS
<br />incurs due to such circumstances.
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<br />Article 7: Warranties; Disclaimers; Limitation of Liability
<br />7.1 Labor in performing the Services is warranted to be free from defects in workmanship for 90 days after the Services are performed. All labor
<br />provided by SIEMENS hereunder found to be defective and otherwise qualifying under this warranty shall be re-performed by SIEMENS. Such re-
<br />performance hereunder shall not interrupt or prolong the terms of this warranty. In the event that any such re-performance fails to cure such
<br />defects, then Customer’s exclusive remedy against SIEMENS for damages from any cause whatsoever, whether in contract or tort, shall not
<br />exceed an amount equal to the limitation set forth in Section 7.5 herein.
<br />7.2 THE EXPRESS LIMITED WARRANTY PROVIDED ABOVE IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, STATUTORY,
<br />EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
<br />FITNESS FOR A PARTICULAR PURPOSE, QUALITY, CAPACITY, OR WORKMANSHIP, ALL EXPRESS OR IMPLIED WARRANTIES
<br />AGAINST PATENT INFRINGEMENTS OR DEFECTS, WHETHER HIDDEN OR APPARENT, AND EXPRESS OR IMPLIED WARRANTIES
<br />WITH RESPECT TO COMPLIANCE OF THE COVERED EQUIPMENT WITH THE REQUIREMENTS OF ANY LAW, REGULATION,
<br />SPECIFICATION OR CONTRACT RELATIVE THERETO, WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
<br />7.3 Customer hereby, for it and any parties claiming under it, releases and discharges SIEMENS from any liability arising out of all hazards
<br />covered by Customer’s insurance, and all claims against SIEMENS arising out of such hazards, including any right of subrogation by
<br />Customer’s insurance carrier, are hereby waived by Customer.
<br />7.4 ANY IDEAS, SUGGESTIONS, RECOMMENDATIONS, FINANCIAL EVALUATIONS, FEASIBILITY STUDIES OR ECONOMIC
<br />ANALYSIS PREPARED BY SIEMENS UNDER THIS AGREEMENT WILL REPRESENT ITS BEST JUDGMENT BASED ON ITS
<br />EXPERIENCE AND THE AVAILABLE INFORMATION. CUSTOMER ACKNOWLEDGES THAT THE ENERGY MARKET IS VOLATILE AND
<br />SUBJECT TO FREQUENT PRICE AND REGULATORY CHANGES. THEREFORE, CUSTOMER FURTHER ACKNOWLEDGES THAT
<br />SIEMENS DOES NOT CONTROL FUTURE MARKET CONDITIONS OR THE ENERGY MARKET'S REGULATORY CLIMATE. NOTHING
<br />HEREIN SHALL BE CONSTRUED BY THE CUSTOMER AS A PREDICTION OF FUTURE ENERGY MARKET CONDITIONS OR ENERGY
<br />PRICES. ACCORDINGLY, SIEMENS DOES NOT PROVIDE CUSTOMER A GUARANTY OR WARRANTY OF THE RESULTS OF SIEMENS’
<br />RECOMMENDATIONS. CUSTOMER MAKES ANY AND ALL ENERGY PROCUREMENT AND RELATED DECISIONS. CUSTOMER
<br />ACKNOWLEDGES THAT ALL ENERGY PROCUREMENT AND RELATED DECISIONS ARE MADE AT THE CUSTOMER’S SOLE RISK .
<br />7.5 WITH RESPECT TO ANY LIABILITY (WARRANTY OR OTHERWISE) THAT SIEMENS MAY HAVE UNDER THE AGREEMENT, IN NO
<br />EVENT SHALL SIEMENS BE LIABLE (INCLUDING WITHOUT LIMITATION, UNDER ANY THEORY IN TORTS) FOR ANY LOSS OF USE,
<br />REVENUE, ANTICIPATED PROFITS OR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
<br />LIMITATION LOST PROFITS AND/OR LOST BUSINESS OPPORTUNITIES) ARISING OUT OF OR IN CONNECTION WITH THE
<br />AGREEMENT OR THE SERVICES WHETHER ARISING IN WARRANTY, TORT, CONTRACT , STRICT LIABILITY, OR ANY OTHER THEORY
<br />OF LIABILITY, WHETHER, FOR WARRANTY, LATE OR NON-DELIVERY OF ANY SERVICES, AND WHETHER SIEMENS HAS BEEN
<br />ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; and, in any event, SIEMENS’ aggregate liability for any and all claims, losses or
<br />expenses (including attorneys fees) arising out of this Agreement, or out of any Services furnished under this Agreement, whether based in
<br />contract, negligence, strict liability, agency, warranty, trespass, indemnity or any other theory of liability, shall be limited, as liquidated
<br />DocuSign Envelope ID: A9E76943-AF44-4034-A933-05655779889A
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