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H. Warranties. All new products, including, but not limited to, parts, manufactured by <br />Engineer will be free from defects in material and workmanship for up to 1 year <br />following the date of installation by Engineer. During this warranty period, the <br />product will be promptly repaired or replaced, at Engineer's sole option. Warranty <br />repairs and replacements will be performed only by Engineer or its authorized <br />representative. Any unauthorized repair or replacement, including without limitation <br />opening up a monitor, will void this product warranty. This warranty is available to <br />Owner as the original purchaser of the product and only if it has been installed and <br />maintained by Engineer. This warranty does not apply to damage by catastrophes of <br />nature, fire, explosion, acts of God (including, but not limited to, lightning damage <br />and power surges), accidents, improper use or service other than by Engineer, <br />damage during transportation, or other similar causes; provided, however, such <br />causes are beyond Engineer's control <br />Liquidated Damages. Liquidated damages will be linked to Engineer uptime <br />performance per telemetry site per year. Engineer will achieve 95% telemetry <br />uptime for critical sites. Critical sites are defined as outfall, model and interceptor <br />nodes. All other nodes are non -critical. Engineer will achieve 85% telemetry <br />uptime for non -critical sites. A monthly report with the invoice will be submitted by <br />Engineer that shows telemetry node uptime. According to Attachment "D", the total <br />price for Monthly Services is $17,239.35 per month. If Engineer meets the <br />respective 85% non -critical node and 95% critical node uptime guarantee then this <br />amount will be billed in full each month. If the above uptime guarantee is not met, <br />then Engineer will only bill for the percentage of data that is available to the Owner. <br />However, Engineer will not be penalized if. <br />a. Any sensor site or associated equipment is removed at the direction of <br />Owner. <br />b. Any sensor site associated with line powered equipment has the electric <br />power disconnected by the Owner, electric company, or any other third <br />party. <br />c. Downtime is due to repairs or modifications executed by action of the <br />Owner, its employees, agents, contractors or invitees. <br />d. Downtime is due to events beyond the Engineer's control such as, but not <br />limited to, vandalism, construction by others that cut electric lines, unusually <br />heavy debris that destroys or otherwise disables sensor monitors, or acts of <br />God (e.g., lightning strikes, <br />All documents prepared or fumished by Engineer are instruments of service, and <br />Engineer retains an ownership and property interest (including the copyright and the <br />right of reuse) in such documents, whether or not the Project is completed. Owner <br />shall have a limited license to use the documents on the Project, extensions of the <br />Project, and for related uses of the Owner, subject to receipt by Engineer of full <br />payment for all services relating to preparation of the documents and subject to the <br />EJCDC E-520 Short Form of Agreement Between Owner and Engineer for Professional Services. <br />Copyright 02009 National Society of Professional Engineers for EJCDC. All rights reserved. <br />Page 5 <br />