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<br />Siemens Industry, Inc. July 2, 2019 Page 24
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<br />damages, to the greater of $1,000 or 10% of the total compensation received by SIEMENS from Customer under this Agreement. SIEMENS
<br />reserves the right to control the defense and settlement of any claim for which SIEMENS has an obligation under the warranty hereunder. The
<br />parties acknowledge that the price which SIEMENS has agreed to perform its Services and obligations under this Agreement is calculated based
<br />upon the foregoing limitations of liability, and that SIEMENS has expressly relied on, and would not have entered into this Agreement but for such
<br />limitations of liability.
<br />7.6 It is understood and agreed by and between the parties that SIEMENS is not an insurer and this Agreement is not intended to be an
<br />insurance policy or a substitute for an insurance policy. Insurance, if any, shall be obtained by Customer. Fees are based solely upon the
<br />value of the Services, and are unrelated to the value of Customer’s property or the property of others on Customer’s premises.
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<br />Article 8: Limitations of Maintenance or Service Obligations
<br />8.1 SIEMENS will not be responsible for the maintenance, repair or replacement of, or Services necessitated by reason of: (a) non-maintainable,
<br />non-replaceable or obsolete parts of the Equipment, including but not limited to ductwork, shell and tubes, heat exchangers, coils, unit cabinets,
<br />casings, refractory material, electrical wiring, water and pneumatic piping, structural supports, cooling tower fill, slats and basins, etc. unless otherwise
<br />specifically stated herein; or (b) negligence, abuse, misuse, improper or inadequate repairs or modifications, improper operation, lack of operator
<br />maintenance or skill, failure to comply with manufacturer's operating and environmental requirements, Acts of God, or other reasons beyond its control.
<br />SIEMENS assumes no responsibility for any service performed on any Covered Equipment other than by SIEMENS or its agents.
<br />8.2 SIEMENS shall not be responsible for loss, delay, injury or damage that may be caused by circumstances beyond its control, including but not
<br />restricted to acts or omissions by Customer or its employees or agents, Acts of God, war, civil commotion, acts of government, fire, theft, corrosion,
<br />flood, water damage, lightning, freeze-ups, computer viruses, program or system hackers, strikes, lockouts, differences with workmen, riots,
<br />explosions, quarantine restrictions, delays in transportation, or shortage of vehicles, fuel, labor or materials.
<br />8.3 SIEMENS is not responsible for repairs, replacements or services to Equipment due to corrosion, erosion, improper or inadequate water
<br />treatment by others, electrolytic or chemical action, or reasons beyond its reasonable control.
<br />8.4 SIEMENS shall not be responsible for the removal or reinstallation of replacement valves, dampers, waterflow and tamper switches, airflow
<br />stations, and any other permanently mounted integral pipe or air duct component. Additionally, SIEMENS shall not be responsible for any venting or
<br />draining of systems.
<br />8.5 WHERE SERVICES INCLUDE EFFORTS BY SIEMENS TO HELP CUSTOMER TO ATTAIN REBATES AND/OR INCENTIVES FROM
<br />AVAILABLE SOURCES OR ENERGY/FUEL COST REDUCTION, CUSTOMER ACKNOWLEDGES THAT ANY REBATE/INCENTIVE OR
<br />ENERGY/ FUEL COST REDUCTION THAT MAY BE AVAILABLE TO CUSTOMER IS GRANTED BY A THIRD PARTY OUTSIDE THE
<br />CONTROL OF SIEMENS. CUSTOMER FURTHER ACKNOWLEDGES THAT WHILE SIEMENS WILL EITHER ASSIST CUSTOMER OR
<br />ENDEAVOR ITSELF TO OBTAIN ANY AND ALL REBATES/INCENTIVES OR ENERGY/ FUEL COST REDUCTION AVAILABLE, SIEMENS
<br />DOES NOT GUARANTEE THAT IT WILL OBTAIN OR APPLY FOR ALL REBATES/INCENTIVES OR ENERGY/ FUEL COST REDUCTIONS
<br />THAT MAY BE AVAILABLE TO CUSTOMER. FURTHER, CUSTOMER HEREBY RELEASES SIEMENS FROM ANY AND ALL LIABILITY TO
<br />CUSTOMER OR ANY THIRD PARTY ARISING FROM SIEMENS’ FAILURE TO OBTAIN OR APPLY FOR ANY REBATE/ INCENTIVE OR
<br />ENERGY/ FUEL COST REDUCTION THAT COULD IN ANY WAY BE OBTAINED BY CUSTOMER.
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<br />Article 9: Hazardous Materials Provisions
<br />9.1 The Services does not include directly or indirectly performing or arranging for the detection, monitoring, handling, storage, removal,
<br />transportation, disposal or treatment of Oil or Hazardous Materials. Except as disclosed pursuant to this Article, Customer represents that, to its
<br />best knowledge, there is no asbestos or any other hazardous or toxic materials, as defined in the Comprehensive Environmental Response,
<br />Compensation and Liability Act of 1980, as amended, the regulations promulgated thereunder, and other applicable federal, state or local law
<br />("Hazardous Materials"), present at Customer's Sites where the Services are performed. SIEMENS will notify Customer immediately if it discovers
<br />or suspects the presence of any Hazardous Material. All Services have been priced and agreed to by SIEMENS in reliance on Customer's
<br />representations as set forth in this Article. The presence of Hazardous Materials constitutes a change in this Agreement whose terms must be
<br />agreed upon by SIEMENS before its obligations hereunder shall continue.
<br />9.2 Customer is solely responsible for testing, abating, encapsulating, removing, remedying or neutralizing such Hazardous Materials, and for the
<br />costs thereof. Customer is responsible for the proper disposal of all Hazardous Materials and Oil that at any time are present at the Services site in
<br />accordance with all applicable federal, state, and local laws, regulations, and ordinances. Even if change order has been entered into pursuant to
<br />this Article, SIEMENS shall have the right to stop the Services until the site is free from Hazardous Materials. In such event, SIEMENS shall
<br />receive an equitable extension of time to complete the Services, and compensation for delays caused by Hazardous Materials remediation. In no
<br />event shall SIEMENS be required or construed to take title, ownership or responsibility for such Oil or Hazardous Materials. Customer shall sign any
<br />required waste manifests in conformance with all government regulations, listing Customer as the generator of the waste.
<br />9.3 Customer warrants that, prior to the execution of this Agreement, it shall notify SIEMENS in writing of any and all Hazardous Materials which
<br />to Customer’s best knowledge are present, potentially present or likely to become present at the Services site and shall provide a copy of any site
<br />safety policies, including but not limited to lock-out and tag procedures, chemical hygiene plan, MSDSs or other items required to be disclosed or
<br />maintained by federal, state, or local laws, regulations or ordinances.
<br />9.4 Customer shall to the extent permitted by applicable law, indemnify, defend and hold SIEMENS harmless from and against any damages,
<br />losses, costs, liabilities or expenses (including attorneys’ fees) arising out of any Oil or Hazardous Materials or from Customer's breach of, or
<br />failure to perform its obligations under this Article. Provided however, no section of the Agreement is intended to create a waiver of Customer’s
<br />rights or privileges as a sovereign entity.
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<br />Article 10: Import / Export Indemnity
<br />10.1 Customer acknowledges that SIEMENS is required to comply with applicable export laws and regulations relating to the sale, exportation,
<br />transfer, assignment, disposal and usage of the Covered Equipment or Services provided under the Contract, including any export license
<br />requirements. Customer agrees that such Covered Equipment or Services shall not at any time directly or indirectly be used, exported, sold,
<br />transferred, assigned or otherwise disposed of in a manner which will result in non-compliance with such applicable export laws and
<br />regulations. It shall be a condition of the continuing performance by SIEMENS of its obligations hereunder that compliance with such export
<br />laws and regulations be maintained at all times. CUSTOMER AGREES TO INDEMNIFY AND HOLD SIEMENS HARMLESS FROM ANY AND
<br />ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS AND FINES RELATED TO NON-COMPLIANCE WITH APPLICABLE EXPORT LAWS
<br />AND REGULATIONS. Provided however, no section of the Agreement is intended to create a waiver of Customer’s rights or privileges as a
<br />sovereign entity.
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<br />DocuSign Envelope ID: A9E76943-AF44-4034-A933-05655779889A
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