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MGE
<br /> UPS SYSTEMS
<br /> PRODUCT AND SERVICE AGREEMENT
<br /> Notwithstanding the foregoing, THE WARRANTIES STATED HEREIN ARE EXPRESSLY IN LIEU OF
<br /> ANY OTHER WARRANTY, EXPRESS OR IMPLIED OR REPRESENTATIONS INCLUDING, WITHOUT
<br /> LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
<br /> PARTICULAR PURPOSE AND CUSTOMER AGREES TO HOLD MGE HARMLESS FROM ANY
<br /> DAMAGES THAT ARISE FROM SERVICES PERFORMED IN STRICT ACCORDANCE WITH THE
<br /> CUSTOMER ' S SPECIFICATIONS. Any "Buy-out" parts and/or materials (defined herein as any Non-MGE
<br /> manufactured parts and/or material(s)), shall be warranted under the manufacturer' s warranty terms and
<br /> conditions as it may apply, and MGE disclaims any additional warranties, as may be referenced herein or made
<br /> part hereof.
<br /> 10. Indemnification: Except to the extent caused by the negligent acts or omissions or willful misconduct of
<br /> Customer or outside third parties, and subject to the limitations stated herein, MGE agrees to indemnify,
<br /> defend and hold harmless the Customer from and against direct losses, costs, damages, liability, and expense
<br /> arising from injury to any person or damage to real or tangible personal property to the extent such is caused
<br /> by the negligent acts or omissions or willful misconduct of MGE, its employees, or agents in the performance
<br /> of this Agreement. The indemnification obligations of this section shall only survive as to claims made
<br /> hereunder on or before that date which is one year from any termination, cancellation or expiration of this
<br /> Agreement. Customer agrees to notify MGE promptly of any claim against which MGE has agreed to
<br /> indemnify, and cooperate in every reasonable way to facilitate the defense. Any failure to so notify or
<br /> cooperate in a timely manner shall relieve MGE of its indemnification obligations to the extent it is prejudiced
<br /> by such failure to communicate. MGE shall afford Customer, at Customer' s own expense, an opportunity to
<br /> participate on an equal basis with MGE in the defense or settlement of any such claim.
<br /> 11 . Limitation of Liability: EXCEPT FOR THE OBLIGATION TO INDEMNIFY FOR THIRD PARTY
<br /> CLAIMS, MGE SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT,
<br /> SPECULATIVE, REMOTE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO,
<br /> LOST PROFITS, LOST SAVINGS OR LOST REVENUES OF ANY KIND WHETHER OR NOT MGE
<br /> HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR
<br /> CONNECTED WITH THE SERVICES, PRODUCTS SOLD, EQUIPMENT, MATERIALS, OR ANY
<br /> GOODS OR SERVICES PROVIDED HEREUNDER OR FROM THE PERFORMANCE OR BREACH
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<br /> This section shall survive any termination, cancellation or
<br /> expiration of this Agreement. wo
<br /> 12. Order of Precedence: The terms and conditions set forth in this Agreement and Schedule(s) shall supersede
<br /> and replace in their entirety any and all terms and conditions set forth on the face or reverse side of any
<br /> Purchase Order or other document presented by Customer, except for the specific terms of the Purchase Order
<br /> setting forth the price and scope of work described herein.
<br /> 13 . Additional Terms for Service: The attached Schedules are identified as Schedule A- Additional Terms, and
<br /> Schedule B- Equipment Schedule(s).The additional terms attached in Schedule A are incorporated herein by
<br /> reference, made part hereof, and can be downloaded at htry II II i_;_r, r Cun? Ilk r iris.
<br /> 14. Preventative Maintenance: With respect to the Preventative Maintenance (PM) purchased under this
<br /> Agreement, it shall be the Customer' s responsibility to schedule the PM visits as stated in Section 1
<br /> ("Acceptance") of this Agreement. MGE shall attempt to complete the PM (for UPS modules, related
<br /> equipment and for batteries) within ninety (90) days of the scheduled service date. The scheduled service date
<br /> will be noted on the Equipment Schedule and vary from annual to semi-annual to quarterly visits depending on
<br /> the service selected by the Customer. Should the Customer not permit any PM to be completed within ninety
<br /> (90) days of the scheduled service date, MGE shall deem its obligation for that PM to have been met.
<br /> QF-7200-00 Rev C 2007
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