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GENERAL TERMS AND CONDITIONS
<br />(Solutions)
<br />Siemens Industry, Inc., Building Technologies Division Solutions (v.5/15)
<br />Article 1: General
<br />1.1 These General Terms and Conditions, including any
<br />supplemental terms (each a “Rider”), are attached to and made part
<br />of the Proposal or other document as the case may be including any
<br />change order, in which these General Terms and Conditions are
<br />incorporated (the “Document”), that when approved in writing by the
<br />Customer and accepted by an authorized representative of Siemens
<br />shall (a) constitute the entire, complete and exclusive contract
<br />between the parties (this “Agreement”) (i) to implement the work and
<br />services identified in the Scope of Work or Proposed Solution
<br />section of the Document (collectively, the "Work") to be provided by
<br />Siemens and (ii) for the physical equipment (“Equipment”), software
<br />owned or licensable by Siemens (“Software”), any related
<br />documentation (“Related Documentation”), deliverable Instruments
<br />(as defined in Section 2.2), and Work Product Deliverables (as
<br />defined in Section 2.1) identified in the Document to be provided by
<br />Siemens under the Agreement in accordance with the performance
<br />of the Work (collectively, the “Deliverables”) and (b) supersedes and
<br />cancels all prior proposals, agreements and understandings, written
<br />or oral, relating to the subject matter of this Agreement.
<br />1.2 Neither party may assign this Agreement or any rights or
<br />obligations hereunder without the prior written consent of the other
<br />except that either party may assign this Agreement to its affiliates
<br />and Siemens may grant a security interest in the proceeds to be paid
<br />to Siemens under this Agreement; assign proceeds of this
<br />Agreement; and/or use subcontractors in performance of the Work.
<br />1.3 The terms and conditions of this Agreement shall not be
<br />modified or rescinded except in writing signed by duly authorized
<br />officers or managers of Siemens and Customer.
<br />1.4 In the event of conflict between the other sections of the
<br />Document and these General Terms and Conditions, these General
<br />Terms and Conditions shall control. In the event of conflict between
<br />a Rider and any section of the Document or these General Terms
<br />and Conditions, the Rider shall control. Any differing or additional
<br />terms and conditions in any purchase order or other document are
<br />of no force and effect unless specifically accepted in writing by the
<br />parties.
<br />1.5 Nothing contained in this Agreement shall be construed to give
<br />any rights or benefits to anyone other than the Customer and
<br />Siemens without the express written consent of both parties. All
<br />provisions of this Agreement allocating responsibility or liability
<br />between the parties shall survive the completion of the Work and
<br />termination of this Agreement.
<br />1.6 Certain terms and conditions contained herein may not apply to
<br />the Work to be provided hereunder. It is the intent of the parties,
<br />however, that the interpretation to be given to the terms and
<br />conditions is to apply all terms and conditions unless clearly
<br />inapplicable given the type of Work included.
<br />1.7 This Agreement shall be governed by and enforced in
<br />accordance with the laws of the State of Illinois. Any litigation
<br />arising under this Agreement shall be brought in the State or
<br />Commonwealth in which the Work is provided to Customer. TO THE
<br />EXTENT PERMITTED BY LAW, THE PARTIES WAIVE ANY
<br />RIGHT TO A JURY TRIAL ON MATTERS ARISING OUT OF THIS
<br />AGREEMENT. Prior to either party initiating any action against the
<br />other party, the issues shall first be referred to each party’s senior
<br />management. Senior management of each party shall take
<br />reasonable steps to resolve the matter at issue. Any permitted
<br />action may be taken if the raised issue is not resolved within
<br />fourteen (14) days of its initial referral to senior management.
<br />1.8 If, during or within ninety (90) days after the term of this
<br />Agreement, Customer engages any Siemens employee who has
<br />performed work under this or any other agreement between
<br />Customer and Siemens, Customer shall pay Siemens an amount
<br />equal to the employee's latest annual salary.
<br />Article 2: License and Intellectual Property
<br />2.1 Any tangible form of a report or drawing specifically developed
<br />for, commissioned by and deliverable to the Customer in connection
<br />with Work performed by Siemens under this Agreement (“Work
<br />Product Deliverables”) shall become the Customer’s property upon
<br />receipt by the Customer and payment of any fees due Siemens
<br />under this Agreement. Siemens may retain file copies of such Work
<br />Product Deliverables.
<br />2.2 If any know-how, tools and related documentation owned or
<br />licensed by Siemens and used by Siemens to install or commission
<br />Equipment and Software for operation at the Site, including but not
<br />limited to tools for installing any Software, performing diagnostics on
<br />Equipment as installed at the Site as well as any reports, notes,
<br />calculations, data, drawings, estimates, specifications, manuals,
<br />documents, all computer programs, codes and computerized
<br />materials prepared by or for Siemens and used by Siemens to
<br />provide the Work (“Instruments”) are provided to the Customer
<br />under this Agreement, any such Instruments shall remain Siemens
<br />property, including the intellectual property conceived or developed
<br />by Siemens in the Instruments.
<br />2.3 In addition, all intellectual property: (i) that has been conceived or
<br />developed by an employee or subcontractor of Siemens before
<br />Siemens performs any Work under this Agreement; (ii) that is
<br />conceived or developed by such employee or subcontractor at any
<br />time wholly independently of Siemens performing the Work under this
<br />Agreement; or, (iii) if developed while performing the Work under this
<br />Agreement, where the development of intellectual property for the
<br />benefit of the Customer is not expressly identified as an item of Work
<br />to be provided to the Customer or where such Work comprised or
<br />corresponded to an update, improvement, configuration, or
<br />modification of Equipment or Software made in the ordinary course
<br />of business solely to allow such products to interface with any
<br />software and/or equipment and/or to operate at a site specified by
<br />Customer, (collectively, “Siemens Pre-existing Intellectual Property”)
<br />that may be included in scope provided to the Customer under this
<br />Agreement shall also remain Siemens’ property including the
<br />Siemens Pre-existing Intellectual Property included in the Work
<br />Product Deliverables. Siemens Pre-existing Intellectual Property is
<br />also included in all reports, notes, calculations, data, drawings,
<br />estimates, specifications, manuals, documents, all computer
<br />programs, codes and computerized materials prepared by or for
<br />Siemens.
<br />2.4 All Work Product Deliverables and any Instruments provided to
<br />the Customer are for the Customer’s use and only for the purposes
<br />disclosed to Siemens. Siemens hereby grants the Customer a
<br />royalty-free (once all payments due under this Agreement are paid
<br />to Siemens), non-transferable, perpetual, nonexclusive license to
<br />use any Siemens Pre-existing Intellectual Property solely as
<br />incorporated into the Work and Deliverables (including Work
<br />Product Deliverables and any Instruments provided to the Customer
<br />under this Agreement). Under such license, and following
<br />agreement to be bound to confidentiality provisions under this
<br />Agreement and/or in accordance with any separate confidentially
<br />agreement that may exist between the parties, Customer shall have
<br />a right to: (a) Use, in object code form only, the Software that is
<br />owned or licensed by Siemens or its affiliates and that is either
<br />separately deliverable for use in the Equipment or for use in a
<br />computer system owned by the Customer or delivered as firmware
<br />embedded in the Equipment (“Software Deliverables”); (b) Make
<br />and retain archival and emergency copies of such Software
<br />Deliverables (subject to any confidentiality provisions) except if the
<br />Software Deliverable is embedded in the Equipment; and, (c) Use
<br />all such Equipment, Work Product Deliverables, and such
<br />Instruments, provided however, the Equipment, Work Product
<br />Deliverables, and Instruments shall not be used or relied upon by
<br />any third-party, and such use shall be limited to the particular project
<br />and location for which the Work is provided.
<br />2.5 The Customer shall not transfer the Equipment, Software, Work
<br />Product Deliverables, or Instruments to others or use them or permit
<br />them to be used for any extension of the Work or any other project or
<br />purpose, without Siemens' prior express written consent.
<br />2.6 Any reuse of Equipment, Software, Work Product Deliverable,
<br />or such Instruments for other projects or locations without the
<br />written consent of Siemens, or use by any third party will be at the
<br />users risk and without liability to Siemens; and, the Customer shall
<br />indemnify, defend and hold Siemens harmless from any claims,
<br />losses or damages arising therefrom.
<br />2.7 In consideration of such license, the Customer agrees not to
<br />reverse engineer any Equipment or Software to reconstruct or
<br />discover any source code, object code, firmware, underlying ideas,
<br />or algorithms of such Equipment or Software even to the extent
<br />such restriction is allowable by law.
<br />DocuSign Envelope ID: 15027EFD-227A-4F40-AC0E-22DDC9A9A2B9
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