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Unrestricted Siemens Industry, Inc.,Smart Infrastructure Remote Monitoring Only (04/19)
<br />(d)Notify Siemens of any alterations, remodeling, or
<br />any stock, fixture or structural changes, and to perform and bear the
<br />cost of changes in the System required as a result of such changes;
<br />(e)Operate, maintain, repair, service, and/or assure
<br />the proper operation of the System and any other property (including
<br />but not limited to any refinishing arising from same), equipment,
<br />system or device to which the System may be attached or
<br />connected in accordance with all manufacturers’ and installers’
<br />recommendations;
<br />(f)Protect the System from tampering, vandalism,
<br />disturbance, damage,misuse, abuse, removal or other actions
<br />which may interfere with the proper operation of the System;
<br />(g)Carefully and properly test and set the System
<br />immediately prior to closing the Monitored Site, understanding
<br />particularly that the sensitivity and area of coverage of space
<br />protection devices may change, that Siemens is unable to detect
<br />such changes,and that “walk tests” in the area of such coverage are
<br />necessary to assure that adequate sensitivity is maintained;
<br />(h)Turn off or remove from the Monitored Site anything
<br />which does or may interfere with the effectiveness of the System; and,
<br />(i)Furnish telephone or network service connecting the
<br />Monitored Site to Siemens monitoring facilities.
<br />6.2 Buyer understands that calls made to Siemens in
<br />connection with signals or access to the Monitored Site may be
<br />recorded by Siemens. Buyer, for itself, its agents, and employees
<br />consents to such recording.
<br />6.3 Buyer shall use reasonable efforts to prevent false
<br />alarms. In the event of any false alarm (not caused by the
<br />negligence or willful misconduct of Siemens), taxes, fees or other
<br />charges of any police or fire department, or any other governmental
<br />body are the sole responsibilities of the Buyer. Buyer agrees to pay
<br />Siemens to reprogram the system if necessary to comply with any
<br />area code, telephone numbering or other changes. Buyer shall
<br />directly pay or,to the extent paid by Siemens, reimburse Siemens,
<br />for any false alarm fine, penalty or fee assessed against Siemens by
<br />any governmental or municipal agency as a result of such false
<br />alarms and, in addition, pay a processing fee of ten percent of each
<br />invoice that Siemens submits to the Buyer for such false alarms.
<br />6.4 Buyer acknowledges that the technical and pricing
<br />information contained in this Agreement is confidential and proprietary
<br />to Siemens and agrees not to disclose it or otherwise make it available
<br />to others without Siemens express written consent.
<br />Article 7: Termination
<br />7.1 Except for Siemens right to terminate in accordance with
<br />Articles 2.2, 2.6 and this Article 6, this Agreement is non-cancellable
<br />during the Initial Term. Thereafter, either party may terminate this
<br />Agreement effective at the end of the Initial Term or at the end of a
<br />renewal period by giving the other party at least sixty (60)days prior
<br />written notice of its intent to cancel the Agreement. Either party may
<br />terminate this Agreement for material breach of the other party,
<br />provided that the breaching party has not remedied the breach or
<br />commenced to cure the breach within a reasonable period, having
<br />due regard to the nature of the breach.
<br />7.2 Siemens reserves the right to terminate the
<br />Services at any time after seven (7) days written notice, upon the
<br />happening of any of the following: (a) Buyer does not follow proper
<br />operation or maintenance procedures or does not use the System
<br />properly; (b) Buyer fails to comply with any of the terms of this
<br />Agreement. In addition, Siemens shall have the right to terminate
<br />the Services immediately if: (a) Siemens is unable either to secure
<br />or to retain the wire connections or privileges necessary for the
<br />transmission of signals between the Monitored Site, Siemens'
<br />monitoring facility and the municipal fire or police department; or (b)
<br />the monitoring facility, connecting wires, or systems within Siemens'
<br />premises are destroyed by fire or other catastrophe, or so
<br />substantially damaged that it is impractical to continue service. The
<br />Services may be terminated immediately by Buyer if the Monitored
<br />Site is destroyed or so damaged as to be unusable for its pre-
<br />damage use provided that it pays any unpaid balance of the charges
<br />accrued hereunder for Services rendered prior to the effective date
<br />of termination.
<br />7.3 In the event of termination of the Services for any
<br />reason, to the extent applicable to the Service, Buyer authorizes
<br />Siemens to make the necessary arrangements with the telephone
<br />company to disconnect the telephone service between the
<br />Monitored Site and the monitoring.
<br />Article 8: Insurance
<br />Insurance, if any, covering personal injury and property loss or
<br />damage on any of Buyer’s premises shall be obtained by Buyer.
<br />Buyer agrees to proceed exclusively against Buyer’s insurer to
<br />recover any damages.
<br />Article 9: Indemnity
<br />9.1 Buyer agrees to indemnify, defend and hold
<br />harmless Siemens from any and all such claims and lawsuits
<br />including the payment of all damages, expenses,costs, and attorney
<br />fees incurred by Siemens, its employees and agents, from and
<br />against all claims, lawsuits and losses, by persons not a party to this
<br />Agreement, against Siemens for failure of the Services in any
<br />respect, whether due or alleged to be due to malfunction or non-
<br />function of the System, or by the negligence, active or passive, of
<br />Siemens, or in the event that Siemens notifies the local police or fire
<br />department,as the case may be. Siemens does not represent or
<br />warrant that the Work will not be compromised,interrupted or
<br />circumvented; that the Work will prevent any loss from any cause; or
<br />that the Work will in all cases provide the protection for which it is
<br />performed, installed or intended (collectively “Protections”). Buyer
<br />acknowledges and agrees that it assumes all risk of loss or damage
<br />to its facilities and sites including the contents thereon, and that
<br />Siemens has neither made representations nor warranties, nor has
<br />Buyer relied on any representation or warranties, express or implied
<br />regarding said Protections.IT IS UNDERSTOOD AND AGREED
<br />BY AND BETWEEN THE PARTIES THAT SIEMENS IS NOT AN
<br />INSURER AND THIS AGREEMENT IS NOT INTENDED TO BE AN
<br />INSURANCE POLICY OR A SUBSTITUTE FOR AN INSURANCE
<br />POLICY.SIEMENS EXPRESSLY EXCLUDES AND DISCLAIMS
<br />ALL WARRANTIES,STATUTORY,EXPRESS, OR IMPLIED,
<br />INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
<br />MERCHANTABILITY OR FITNESS FOR A PARTICULAR
<br />PURPOSE. SIEMENS MAKES NO WARRANTY,EXPRESS OR
<br />IMPLIED, THAT SERVICES PROVIDED HEREUNDER WILL
<br />PREVENT ANY LOSS, OR WILL IN ALL CASES PROVIDE THE
<br />PROTECTION FOR WHICH IT IS INTENDED. THE EXPRESS
<br />EXCLUSION OF WARRANTIES IS AS SET FORTH IN THIS
<br />AGREEMENT.
<br />9.2 Buyer hereby, for it and any parties claiming under it,
<br />releases and discharges Siemens from any liability arising out of all
<br />hazards covered by Buyer’s insurance, and all claims against
<br />Siemens arising out of such hazards, including any right of
<br />subrogation by Buyer’s insurance carrier, are hereby waived by
<br />Buyer, and Buyer shall promptly so notify its insurance carrier.
<br />Article 10: Liquidated Damages
<br />From the nature of the Services, it is impractical and extremely
<br />difficult to fix the actual damages, if any, which may proximately
<br />result from the failure of Siemens to perform any of its obligations
<br />hereunder. If Siemens is found liable for loss or damage due to a
<br />failure on the part of Siemens, in any respect, its liability related to
<br />Services shall be limited in the aggregate for the term of the
<br />Agreement to the sum of Two Thousand Five Hundred ($2500.00)
<br />Dollars as liquidated damages.Such limit of liability is not a penalty
<br />and this limited liability shall be complete and exclusive. The
<br />provisions of this paragraph shall apply in the event loss or damage,
<br />irrespective of cause or origin, results directly or indirectly from the
<br />performance or nonperformance of the obligations set forth by this
<br />Agreement or from negligence, active or otherwise, of Siemens its
<br />agents or employees. The parties acknowledge that the price which
<br />Siemens has agreed to perform the Services and obligations is
<br />calculated based upon the foregoing liquidated damages as
<br />limitations of liability, and that Siemens has expressly relied on, and
<br />would not have entered into this Agreement but for such limitations
<br />of liability.
<br />Article 11: Authorization to Notify Authorities
<br />If applicable,Buyer hereby authorizes and directs Siemens, as its
<br />agent, to direct the local police department, or fire department as the
<br />case may be, having jurisdiction to investigate the Monitored Site to
<br />the extent that the Scope indicates that the situation may require
<br />such notification to be made by Siemens.
<br />Article 12: Intellectual Property
<br />12.1 Siemens will, at its own option and expense, defend or
<br />settle any suit or proceeding brought against Buyer based on an
<br />allegation that any processes performed by Siemens in connection
<br />with the Services constitutes an infringement of any Patent
<br />Cooperation Treaty (“PCT”) country member’s patent or
<br />misappropriation of a third party’s trade secret or copyright in the
<br />country where the Buyer’s Site is located.Buyer will promptly give
<br />Siemens written notice of the suit or proceeding and the authority,
<br />information, and assistance needed to defend the claims. Siemens
<br />shall have full and exclusive authority to defend and settle such
<br />claim and will pay the damages and costs awarded against Siemens
<br />DocuSign Envelope ID: BD2BDCCB-A936-4D6E-9287-E4BE0191A7FE
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