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<br />Unrestricted
<br />5.1 Unless otherwise agreed in writing, SIEMENS shall be compensated for
<br />the Work at its prevailing rates and reimbursed for costs and expenses (plus
<br />reasonable profit and overhead)incurred in its performance of the Work.
<br />5.2 SIEMENS may invoice CLIENT on a monthly or other progress billing
<br />basis. Invoices are due and payable upon receipt or as otherwise set forth in the
<br />Agreement. If any payment is not received when due, SIEMENS may deem CLIENT
<br />to be in breach hereof and may enforce any remedies available to it hereunder or at
<br />law, including without limitation, acceleration of payments and suspension or
<br />termination of the Work at any time and without notice and shall be entitled to
<br />compensation for the Work previously performed and for costs reasonably incurred in
<br />connection with the suspension or termination. Any amount not paid within sixty (60)
<br />days of the date due shall accrue interest from the date due, until paid, at the rate of
<br />ten percent (10%) per annum. CLIENT shall reimburse SIEMENS for SIEMENS'
<br />costs and expenses (including reasonable attorneys' and witnesses' fees) incurred for
<br />collection under this Agreement. In the event of a dispute by CLIENT regarding any
<br />portion or all of an invoiced amount, it shall notify SIEMENS in writing of the amount
<br />in dispute and the reason for its disagreement within 21 days of receipt of the invoice,
<br />the undisputed portion shall be paid when due, and interest on the disputed, unpaid
<br />portion shall accrue as aforesaid, from the date due until the date of payment, to the
<br />extent that such amounts are finally determined to be payable to SIEMENS.
<br />5.3 Except to the extent expressly agreed in writing, SIEMENS' fees do not
<br />include any taxes, excises, fees, duties or other government charges related to the
<br />Work, and CLIENT shall pay such amounts or reimburse SIEMENS for any amounts it
<br />pays. If CLIENT claims a tax exemption or direct payment permit, it shall provide
<br />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 />Article 6: Warranty, Insurance and Allocation of Risk
<br />6.1 (a) Until one year from either the date the Equipment is installed or the
<br />date of first beneficial use, whichever first occurs, all Equipment manufactured by
<br />SIEMENS or bearing its nameplate will be free from defects in material and
<br />workmanship arising from normal use and service.
<br />(b) Labor for all Services under this Agreement is warranted to be free from
<br />defects for one year after the earlier of the date the Services are substantially
<br />completed or the date of first beneficial use.
<br />(c) Equipment will not fail to function because of errors in processing,
<br />providing or receiving date or time data involving dates between January 1, 1999
<br />and March 31, 2001, provided other products and software, including the
<br />computer workstation, with which the system interacts properly exchange date
<br />and time data with the system.
<br />6.2 (a) The limited warranties set forth in Section 6.1 will be void as to, and
<br />shall not apply to, any Work (i) repaired, altered or improperly installed by any person
<br />other than SIEMENS or its authorized representative; (ii) subjected to unreasonable
<br />or improper use or storage, used beyond rated conditions, operated other than per
<br />SIEMENS' or the manufacturer's instructions, or otherwise subjected to improper
<br />maintenance, negligence or accident; (iii) damaged because of any use of the Work
<br />after CLIENT has, or should have, knowledge of any defect in the Work; or (iv)
<br />Equipment not manufactured, fabricated and assembled by SIEMENS or not bearing
<br />SIEMENS' nameplate. However, SIEMENS assigns to CLIENT, without recourse,
<br />any and all assignable warranties available from any manufacturer, supplier, or
<br />subcontractor of such Equipment and will assist CLIENT in enforcement of such
<br />assigned warranties.
<br />(b) Any claim under the limited warranty granted above must be made in
<br />writing to SIEMENS within thirty (30) days after discovery of the claimed defect, or
<br />with respect only to the warranty set forth in Subsection 4.1(c) prior to April 1, 2001,
<br />unless discovered directly by SIEMENS. Such limited warranty only extends to
<br />CLIENT and not to any subsequent owner of the Equipment. CLIENT's sole and
<br />exclusive remedy for any Equipment or Services not conforming with this limited
<br />warranty is limited to, at SIEMENS’ option, (i) repair or replacement of defective
<br />components of covered Equipment, or (ii) reperformance of the defective portion of
<br />the Services, or (iii) to the extent previously paid, the issuance of a credit or refund
<br />for the original purchase price of such defective component or potion of the
<br />Equipment or Services.
<br />(c) SIEMENS shall not be required to repair or replace more than the
<br />component(s) of the Equipment actually found to be defective. SIEMENS'
<br />warranty liability shall not exceed the purchase price of such item. Repaired
<br />or replaced Equipment will be warranted hereunder only for the remaining
<br />portion of the original warranty period.
<br />6.3 THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE ARE IN
<br />LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, STATUTORY, EXPRESS,
<br />OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
<br />MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE
<br />HEREBY EXPRESSLY DISCLAIMED. SIEMENS MAKES NO WARRANTY,
<br />EXPRESS OR IMPLIED, THAT ANY EQUIPMENT PROVIDED HEREUNDER WILL
<br />PREVENT ANY LOSS, OR WILL IN ALL CASES PROVIDE THE PROTECTION
<br />FOR WHICH IT IS INSTALLED OR INTENDED. THE LIMITED EXPRESS
<br />WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS AGREEMENT
<br />MAY ONLY BE MODIFIED OR SUPPLEMENTED IN A WRITING SIGNED BY A
<br />DULY AUTHORIZED CORPORATE OFFICER OF SIEMENS.
<br />6.4 SIEMENS shall maintain the following insurance while performing the Work:
<br />Workers' Compensation Statutory
<br />Employers' Liability $1,000,000 each accident
<br />Commercial General Liability $1,000,000 per occurrence and
<br /> $5,000,000 in the aggregate
<br />Automobile Liability $1,000,000 per occurrence/aggregate
<br />6.5 Risk of loss of materials and Equipment furnished by SIEMENS shall pass
<br />to CLIENT upon delivery to CLIENT's premises, and CLIENT shall be responsible for
<br />protecting and insuring them against theft and damage. However, until SIEMENS is
<br />paid in full, SIEMENS shall retain title for security purposes only and the right to
<br />repossess the materials and Equipment.
<br />6.6 SIEMENS will indemnify CLIENT from and against losses, claims,
<br />expenses and damages (including reasonable attorney's fees) for personal injury or
<br />physical damage to property, but not loss of use of the property resulting from such
<br />damage or from damage to any work performed hereunder. Such indemnification
<br />shall be solely to the extent caused by or arising directly from SIEMENS' or its
<br />employees', consultants' or agents' negligent acts or omissions or willful misconduct
<br />in connection with its performance of Services hereunder. SIEMENS' obligations
<br />under this indemnity provision shall not extend to claims, losses, expenses and
<br />damages arising out of or in any way attributable to the negligence of CLIENT or its
<br />agents, consultants or employees other than SIEMENS. SIEMENS' liability to
<br />CLIENT or any third party under this Section 6.6 or otherwise under the Agreement
<br />is expressly limited to, and SIEMENS shall not be liable other than for the direct
<br />losses, claims, expenses and damages arising as aforesaid. Neither party shall in
<br />any event be responsible under this Agreement for incidental, consequential,
<br />punitive, exemplary or special damages, including without limitation lost profits
<br />and/or lost business opportunities, whether arising in warranty, late or non-delivery of
<br />any Work, tort, contract or strict liability, and regardless of whether SIEMENS has
<br />been advised of the possibility of such damages. SIEMENS reserves the right to
<br />control the defense and settlement of any claim for which SIEMENS has an
<br />obligation to indemnify hereunder. The parties acknowledge that the price which
<br />SIEMENS has agreed to perform its Work and obligations under this Agreement is
<br />calculated based upon the foregoing limitations of liability, and that SIEMENS has
<br />expressly relied on, and would not have entered into this Agreement but for such
<br />limitations of liability.
<br />Article 7: Hazardous Materials Provisions
<br />7.1 The Work does not include directly or indirectly performing or arranging for the
<br />detection, monitoring, handling, storage, removal, transportation, disposal or treatment
<br />of Oil or Hazardous Materials. Except as disclosed pursuant to Section 7.3, CLIENT
<br />represents that there is no asbestos or any other hazardous or toxic materials, as
<br />defined in the Comprehensive Environmental Response, Compensation and Liability
<br />Act of 1980, as amended, the regulations promulgated thereunder, and other
<br />applicable federal, state or local law ("Hazardous Materials"), present at CLIENT's
<br />locations where Services are performed. SIEMENS will notify CLIENT immediately if
<br />it discovers or suspects the presence of any Hazardous Material. All Services have
<br />been priced and agreed to by SIEMENS in reliance on CLIENT's representations as
<br />set forth in this Section 7.1 The presence of Hazardous Materials constitutes a
<br />change in the Proposed Solution equivalent to a change order whose terms must be
<br />agreed to by SIEMENS before its obligations hereunder will continue.
<br />7.2 CLIENT shall be solely responsible for testing, abating, encapsulating,
<br />removing, remedying or neutralizing such Hazardous Materials, and for the costs
<br />thereof. Even if an appropriate change order has been entered into pursuant to
<br />Section 7.1 above, SIEMENS will continue to have the right to stop providing
<br />Services until the job site is free from Hazardous Materials. In such event, SIEMENS
<br />will receive an equitable extension of time to complete its Services, and
<br />compensation for delays caused by Hazardous Materials remediation. In no event
<br />shall SIEMENS be required or construed to take title, ownership or responsibility for
<br />such Oil or Hazardous Materials. CLIENT shall sign any required waste manifests in
<br />conformance with all government regulations, listing CLIENT as the generator of the
<br />waste.
<br />7.3 CLIENT warrants that, prior to the execution of the Agreement, it has notified
<br />SIEMENS in writing of any and all Hazardous Materials present, potentially present
<br />or likely to become present at CLIENT's locations and has provided a copy of any
<br />jobsite safety policies, including but not limited to lock-out and tag procedures,
<br />laboratory procedures, chemical hygiene plan, material safety data sheets or other
<br />items covered or required to be disclosed or maintained by federal, state, or local
<br />laws, regulations or ordinances.
<br />7.4 For separate consideration of $10 and other good and valuable
<br />consideration, the receipt and adequacy of which are hereby acknowledge, CLIENT
<br />shall indemnify, defend and hold SIEMENS harmless from and against any
<br />damages, losses, costs, liabilities or expenses (including attorneys’ fees) arising out
<br />of any Oil or Hazardous Materials or from CLIENT's breach of, or failure to perform
<br />its obligations under, Sections 7.1, 7.2 or 7.3.
<br />DocuSign Envelope ID: 090A9D1C-0F59-42BA-BA43-AB22DEC4ECCA
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