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M G E UPS SYSTEMS 801101001110011010 SCHEDULE C SERVICE AGREEMENT 7. Indemnification and Limitation of Liability: Except to the extent caused by the negligent acts or omissions or willful misconduct of Customer or outside third parties, and subject to the limitations stated herein, MGE agrees to indemnify, defend and hold harmless the Customer from and against direct losses, costs, damages, liability, and expense arising from injury to any person or damage to real or tangible personal property to the extent such is caused by the negligent acts or omissions or willful misconduct of MGE, its employees, or agents in the performance of this Agreement. IN NO EVENT SHALL MGE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, SPECULATIVE, REMOTE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS OR LOST REVENUES OF ANY KIND WHETHER OR NOT MGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR CONNECTED WITH THE SERVICES, EQUIPMENT, MATERIALS , OR ANY GOODS OR SERVICES PROVIDED HEREUNDER. IN THE EVENT A CLAIM ARISES FROM THE NEGLIGENCE OR MISCONDUCT OF MGE'S EMPLOYEES OR AGENTS, MGE'S ENTIRE LIABILITY FOR SUCH CLAIM SHALL BE LIMITED TO PROVEN DIRECT DAMAGES AND IN NO EVENT SHALL THE LIABILITY OF MGE FOR THE TOTAL OF ANY DAMAGES THE TOTAL AMOUNT DEFINED IN THE EQUIPMENT SCHEDULE REFERENCED HEREIN AND MADE PART HEREOF. This section shall survive any termination, cancellation or expiration of this Agreement; however, the indemnification obligations of this section shall only survive as to claims made hereunder on or before that date which is one year from any termination, cancellation or expiration of this Agreement. Customer agrees to notify MGE promptly of any claim against which MGE has agreed to indemnify, and cooperate in every reasonable way to facilitate the defense. Any failure to so notify or cooperate in a timely manner shall relieve MGE of its indemnification obligations to the extent it is prejudiced by such failure to communicate. MGE shall afford Customer, at Customer's own expense, an opportunity to participate on an equal basis with MGE in the defense or settlement of any such claim. 8 . Order of Precedence: The terms and conditions set forth in this Agreement and Schedule(s) shall supersede and replace in their entirety any and all terms and conditions set forth on the face or reverse side of any Purchase Order or other document presented by Customer, except for the specific terms of the Purchase Order setting forth the price and scope of work described herein. 9. Additional Terms: The additional terms attached in Schedule A are incorporated herein by reference and are made part of this Agreement. The additional terms can be downloaded at http://www.mgeups. com/usltnc/service. 10. Schedules: The attached Schedules are identified as Schedule A- Additional Terms, and Schedule B- Equipment Schedule(s). 11 . Preventative Maintenance: With respect to the Preventative Maintenance (PM) purchased under this Agreement, it shall be the Customer ' s responsibility to schedule the PM visits as stated in Section I ("Acceptance") of this Agreement. MGE shall attempt to complete the PM (for ITS modules, related equipment and for batteries) within ninety (90) days of the scheduled service date. The scheduled service date will be noted on the Equipment Schedule and vary from annual to semi-annual to quarterly visits depending on the service selected by the Customer. Should the Customer not permit any PM to be completed within ninety (90) days of the scheduled service date, MGE shall deem its obligation for that PM to have been met. MGE UPS SYST Is, Signature a 0y) Signature: Name: Name: A J Title: County Administrator Title: — �� I ' I 1E � LCAb Date: g13l/0/0 APPROVED AS TO FORMDate: ANIJ LEU'AL SIIFFTCIE C May 2005 — Rev A BY WILLIAM K . DEBRAAL ASSISTANT COUNTY ATTORNEY