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<br />10.4 TIDS ARTICLE STATES HONEYWELL'S TOTAL LIABILITY AND CUSTOMER'S SOLE REMEDY FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT BY THE HARDWARE
<br />MANUFACTURED AND PROVIDED BY HONEYWELL HEREUNDER.
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<br />11. SOFTWARE LICENSE
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<br />All software provided in connection with this Agreement shall be licensed and not sold. The end user of the software will be required to sign a license agreement with provisions limiting use of the software to the equipment provided under
<br />these specifications, limiting copying, preserving confidentiality, and prohibiting transfer to a third party. Licenses of this type are standard for computer-based equipment of the type covered by this Agreement. Customer shall be expected
<br />to grant Honeywell access to the end user for pwposes of obtaining the necessary software license.
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<br />tz. DISPUTE RESOLUTION
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<br />With the exception of any controversy or claim arising out of or related to the installation, monitoring, and/or maintenance of fire and/or security systems, the Parties agree that any controversy or claim between Honeywell and Customer
<br />arising out of or relating to this Agreement. or the breach thereo~ will be settled by arbitration in a neutral venue, conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. Any
<br />award rendered by the arbitrator will be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Any controversy or claim arising out of or related to the installation,
<br />monitoring, and/or maintenance of systems associated with security and/or the detection of, and/or reduction of risk of loss associated with fire will be resolved in a court of competent jurisdiction.
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<br />13. ACCEPTANCE
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<br />This proposal and the pages attached shall become an Agreement upon signature above by Honeywell and Customer. The terms and conditions are expressly limited to the provisions hereo~ including Honeywell's General Tenns and
<br />Conditions attached hereto, notwithstanding receipt o~ or acknowledgment by, Honeywell of any purchase order, specification, or other document issued by Customer. Any additional or different tenns set f1>rth or referenced in Customer's
<br />purchase order are hereby objected to by Honeywell and shall be deemed a material alteration of these terms and shall not be a part of any resulting order.
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<br />14. MISCELLANEOUS
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<br />14.1 This Agreement represents the entire Agreement between Customer and Honeywell for the Work described herein and supersedes all prior negotiations, representations or Agreements between the Parties related to the work described
<br />herein.
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<br />14.2 None of the provisions of this Agreement shall be modified, altered, changed or voided by any subsequent Purchase Order or other document unilaterally issued by Customer that relates to the subject matter of this Agreement. This
<br />Agreement may be amended only by written instnunent signed by both Parties.
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<br />14.3 This Agreement is governed by the law of the State where the work is to be performed.
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<br />14.4 Any provision or part of this Agreement held to be void or unenforceable under any laws or regulations will be deemed sbicken, and all remaining provisions will continue to be valid and binding upon Honeywell and Customer, who
<br />agree that this Agreement shall be reformed to replace such stricken provision or part thereofwith a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision.
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<br />14.5 Customer may not assign its rights or delegate its obligations under this Agreement. in whole or in part, without the prior written consent of Honeywell. Honeywell may assign its right to receive payment to a third party.
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<br />15. COVERAGE
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<br />15.1 Customer agrees to provide acc..s to all Equipment covered by this Agreement. Honeywell will be free to start and stop all primary equipment incidental to the operation of the mechanical, contro~ automation, and life safety
<br />system(s) as arranged with Customer's representative.
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<br />15.2 It is understood that the repair, replacement. and emergency service provisions apply only to the Equipment included in the attached List of Covered Equipment. Repair or replacement of non. maintainable parts of the system such as,
<br />but not limited to, ductwork, piping, sheU and tube (for boilers, evaporators, condensers, and chillers), unit cabinets, boiler refractory material, heat exchangers, insulating material, elecbical wiring, hydronic and pneUIl1atic piping, structural
<br />supports and other non-moving parts, is not included under this Agreement. Costs to repair or replace such non-maintainable parts will be the sole responsibility of Customer.
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<br />15.3 Honeywell will not reload software, nor make repairs or replacements necessitated by reason of negligence or misuse of the Equipment by persons other than Honeywell or its employees, or caused by lightning, elecbical stonn, or
<br />other violent weather or by any other cause beyond Honeywell's control. Honeywell will provide such services at Customer's request and at an additional charge. Customer is entitled to receive Honeywell's then current preferred-
<br />Customer labor rates for such services.
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<br />15.4 Honeywell may install diagnostic devices and/or software at Honeywell's expense to enhance system operation and support. Upon tennination of this Agreement. Honeywell may remove these devices and return the system to its
<br />original operation. Customer agrees to provide, at its sole expense, connection to the switched telephone network for the diagnostic devices and/or software.
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<br />15.5 Honeywell will review the Services delivered under this Agreement on an amma! basis, unless otherwise noted.
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<br />15.6 This Agreement assUIl1es that the systems and/or Equipment included in the attached List of Covered Equipment are in maintainable condition. If repairs are necessary upon initial inspection or initial ~easonal start-up, repair charges
<br />will be submitted for approval. Should these charg.. be declined, those non-maintainable items will be eliminated from coverage under this Agreement and the price a<ljusted accordingly.
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<br />15.7 In the event that the system or any equipment component thereof is altered, modified, changed or moved, this Agreement may be immediately adjusted or terminated, at Honeywell's sole option. HONE YWELL is not responsible for
<br />any damages resulting from such alterations, modifications, changes or movement
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<br />15.8 Honeywell is not responsible for maintaining a supply o~ furnishing and/or replacing lost or needed chlorolluorocarbon (CFC) based refrigerants not otherwise required under this Agreement. Customer is solely responsible for the
<br />cost of material and labor of any such refrigerant not otherwise provided for under this Agreement at current market rates.
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<br />15.9 Maintenance, repairs, and replacement of Equipment parts and components are limited to restoring to proper working condition. Honeywell is not obligated to provide replacement software. equipment components and/or parts that
<br />represent a significant betterment or capital improvement to Customer's system(s) hereunder.
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<br />15.10 Unless otherwise specified, Customer retains all responsibility for maintaining LANs, W ANs, leased lines and/or other communication mediums incidental or essential to the operation of the ~ystem(s) or Equipment found
<br />included in the attached List of Covered Equipment.
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<br />15.11 Customer will promptly notit)> Honeywell of any malfunction in the system(s) or Equipment covered under this Agreement that comes to Customer's attention.
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<br />16. TERMS OF PAYMENT
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<br />16.1 Subject to Honeywell's approval ofCustomer's credit. Customer will payor cause to be paid to Honeywell the full price for the Services as specified on the first page of this Agreement. Honeywell will submit arumal invoices to
<br />Customer in advance for Services to be performed during the subsequent billing period, and payment shall be due within twenty (20) days after Customer's receipt of each such invoice. Payments for Services past due more than five (5)
<br />days shall accrue interest from the due dete to the date of payment at the rate of one and one-half percent (1.5%) per month, compounded monthly, or the highest legal rate then allowed. Customer will pay all attorney and/or collection fees
<br />incurred by Honeywell in collecting any past due amOlD1ts.
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<br />16.2 fl:!!;! Adlustment. Honeywell may aruUJa1ly adjust the amounts charged for the Services provided.
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<br />17. TERMINATION
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<br />17.1 Customer may terminate this Agreement for cause if Honeywell defaults in the performance of any material term of this Agreement. or fails or neglects to carry forward the Services in accordance with this Agreement. after giving
<br />Honeywell written notice of its intent to tenninate. I~ within thirty (30) days following receipt of such notice, Honeywell fails to cure or perfonn its obligations, Customer may, by written notice to Honeywell, terminate this Agreement.
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<br />17.2 Honeywell may terminate this Agreement for cause (including, but not limited to, Customer's failure to make payments as agreed herein) after giving Customer written notice of its intent to tenninate. Ir, within thirty (30) days
<br />following receipt of such notice, Customer fails to make the payments then due, or otherwise fails to cure or perform its obligations, Honeywell may, by written notice to Customer, terminate this Agreementand recover from Customer
<br />payment for Services performed and for losses sustained for materials, tools, construction equipment and machinery, including but not limited to, reasonable overhead, profit and applicable damages.
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<br />17.3 Canc:eIIatIoD - This Agreement may be canceled at Honeywell's option in the event Honeywell equipment on Customer's premises is destroyed or substantially damaged. Likewise, this Agreement mll}' be canceled at Customer's
<br />option in the event Customer's premises are destroyed. In the event of such cancellation, neither party shall be liable for damages or subject to any penalty, except that Customer will remain liable for Services rendered to the date of
<br />cancellation.
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<br />18. DEFINITIONS
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<br />18.1 "Hazardous substance" includes all of the following, whether naturally occurring or manufactured, in quantities, conditions or concentrations that have, are alleged to have, or are believed to have an adverse effect on human health,
<br />bebitabiJity of a Site, or the environment: (a) any dangerous, hazardous or toxic pollutant. contaminant, chemica~ material or substance defined as hazardous or toxic or as a pollutant or contaminant under state or federal law, and (Ii) any
<br />petroleUIl1 product, nuclear fuel or material, carcinogen, asbestos, urea formaldehyde, foamed-in-place insulation, polychlorinated biphenyl (PCBs), and (c) any other chemical or biological material or organism, that has, is alleged to have,
<br />or is believed to have an adverse effect on hUIl1an health, habitability of a Site, or the environment.
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<br />18.2 "Mold" means any type or form offimgus or biological material or agent. including mold, mildew, moisture, yeast and mushrooms, and any mycotoxins, spores, scents, or by-products produced or released by any of the foregoing.
<br />This includes any related or any such conditions caused by third parties.
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<br />18.3 "Covered Equipment" means the equipment covered by the Services to be perfonned by Honeywell under this Agreement. and is limited to the equipment included in the respective work scope attachments.
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