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Unrestricted Siemens Industry, Inc.,Smart Infrastructure Remote Monitoring Only (04/19)
<br />in any suit or proceeding so defended. Buyer shall not make any
<br />admission(s) which might be prejudicial to Siemens and shall not
<br />enter into a settlement without Siemens’ consent. If and to the extent
<br />any process performed by Siemens in connection with the Services
<br />as a result of any suit or proceeding so defended is held to
<br />constitute infringement or its use by Buyer is enjoined, Siemens will,
<br />at its option and expense, either: (i) procure for Buyer the right to
<br />continue using said process; (ii) replace it with substantially
<br />equivalent non-infringing process; or (iii) modify the process so it’s
<br />use is non-infringing.
<br />12.2 Siemens will have no duty or obligation under this Article
<br />12 if the process is:(i) performed according to Buyer's design or
<br />instructions and compliance therewith has caused Siemens to
<br />deviate from its normal course of performance; (ii) modified by Buyer
<br />or its contractors after performance; or (iii) combined by Buyer or its
<br />contractors with devices,methods, systems or processes not
<br />furnished hereunder and by reason of said design, instruction,
<br />modification, or combination a suit is brought against Buyer.In
<br />addition, if by reason of such design, instruction, modification or
<br />combination, a suit or proceeding is brought against Siemens, Buyer
<br />must protect Siemens in the same manner and to the same extent
<br />that Siemens has agreed to protect Buyer under this Article 12.
<br />12.3 THIS ARTICLE 12 IS AN EXCLUSIVE STATEMENT OF
<br />SIEMENS’ DUTIES AND BUYER’S REMEDIES RELATING TO
<br />PATENTS, TRADE SECRETS AND COPYRIGHTS, AND DIRECT
<br />OR CONTRIBUTORY INFRINGEMENT THEREOF.
<br />Article 13: Confidentiality
<br />13.1 Both during and after the term of this Agreement, the
<br />parties will treat as confidential all information obtained from the
<br />disclosing party and all information compiled or generated by the
<br />disclosing party under this Agreement for the receiving party,
<br />including but not limited to business information, the quotation, the
<br />Agreement, processes and procedures,know-how, methods and
<br />techniques employed by Siemens in connection with the Services,
<br />technical data, drawings, flow charts, program listings, software
<br />code, and other software, plans and projections. Neither party may
<br />disclose or refer to the Services to be performed under this
<br />Agreement in any manner that identifies the other party without
<br />advance written permission. Except for security surveillance, the
<br />observing or recording of the Services or any part thereof, whether
<br />by photographic, video or audio devices or in any other manner is
<br />prohibited. In the event any such prohibited observation or
<br />recording occurs, Siemens may (in addition to any other legal or
<br />equitable rights and remedies) stop the Services until Siemens has
<br />satisfied itself that the prohibited conduct has ceased, and in such
<br />event (a) the date of delivery or time for performance will be
<br />extended by a period of time which Siemens determines necessary
<br />and (b) Buyer will reimburse Siemens for Siemens’and its Suppliers’
<br />additional costs and expenses resulting from such delay, including
<br />but not limited to any for demobilization or remobilization. Unless
<br />required by appropriate governmental authorities, neither party shall,
<br />without the prior written consent of the other party, issue any public
<br />statement, press release, publicity hand-out or other material
<br />relating to the Services. However, Siemens has the right to share
<br />confidential information with its affiliate and subcontractors provided
<br />those recipients are subject to the same confidentiality obligations
<br />set forth herein.
<br />13.2 Nothing in this Agreement requires a party to treat as
<br />confidential any information which: (i) is or becomes generally
<br />known to the public, without the fault of the receiving party; (ii) is
<br />disclosed to the receiving party, without obligation of confidentiality,
<br />by a third party having the right to make such disclosure; (iii) was
<br />previously known to the receiving party, without obligation of
<br />confidentiality, which fact can be demonstrated by means of
<br />documents which are in the possession of the receiving party upon
<br />the date of this Agreement; or (iv) was independently developed by
<br />receiving party or its representatives, as evidenced by written
<br />records, without the use of discloser’s confidential information, or (v)
<br />is required to be disclosed by law,except to the extent eligible for
<br />special treatment under an appropriate protective order, provided
<br />that the party required to disclose by law will promptly advise the
<br />originating party of any requirement to make such disclosure to
<br />allow the originating party the opportunity to obtain a protective
<br />order and assist the originating party in so doing.
<br />13.3 It is Siemens’ policy not to unlawfully or improperly receive
<br />or use confidential information, including trade secrets, belonging to
<br />others.This policy precludes Siemens from obtaining, directly or
<br />indirectly from any employee, contractor, or other individual
<br />rendering services to Siemens confidential information of a prior
<br />employer, client or any other person which such employee,
<br />contractor,or individual is under an obligation not to disclose. Buyer
<br />agrees to abide by this policy.
<br />13.4 Siemens shall retain all intellectual property rights in the
<br />Services, works, Siemens’ documents, processes, Siemens’
<br />confidential information, and any design information and/or
<br />documents made by (or on behalf of) Siemens. Upon receipt of all
<br />fees, expenses and taxes due in respect of the relevant Services,
<br />Siemens grants to the Buyer a non-transferable, non-exclusive,
<br />royalty-free license to copy, use and communicate Siemens’
<br />documents for the sole purpose of operation and maintenance of the
<br />facility upon which the Services have been performed.
<br />Article 14: Miscellaneous
<br />14.1 The parties agree to comply with all applicable laws and
<br />regulations.
<br />14.2 No change will be made to the scope of Services unless
<br />Buyer and Siemens agree in writing to the change and any resulting
<br />price, schedule or other contractual modifications. If any change to
<br />any law, rule, regulation, order, code, standard or requirement
<br />impacts Siemens’obligations or performance under this Agreement,
<br />Siemens shall be entitled to a change order for an equitable
<br />adjustment in the price and time of performance.
<br />14.3 Any waiver by a party of strict compliance with this Agreement
<br />must be in writing,and any failure by the parties to require strict
<br />compliance in one instance will not waive its right to insist on strict
<br />compliance thereafter.
<br />14.4 These terms may only be modified by a written instrument
<br />signed by authorized representatives of both parties.
<br />14.5 Neither party may assign all or part of this Agreement, or
<br />any rights or obligations under this Agreement without the prior
<br />written consent of the other; but either party may assign its rights
<br />and obligations, without recourse or consent to, any parent,wholly
<br />owned subsidiary or affiliate or affiliate’s successor organization
<br />(whether as a result of reorganization, restructuring or sale of
<br />substantially all of a party’s assets). However, Buyer shall not assign
<br />this Agreement to a competitor of Siemens;an entity in litigation with
<br />Siemens; or an entity lacking the financial capability to satisfy
<br />Buyer’s obligations. Any assignee expressly assumes the
<br />performance of any obligation assigned. Siemens may grant a
<br />security interest in this Agreement and/or assign proceeds of this
<br />Agreement without Buyer’s consent.
<br />14.6.This Agreement is are governed by and construed in
<br />accordance with the laws of the State of Delaware, without regard to
<br />its conflict of laws principles. TO THE EXTENT PERMITTED BY
<br />LAW, BOTH SIEMENS AND BUYER KNOWINGLY, VOLUNTARILY
<br />AND IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL IN
<br />ANY ACTION OR PROCEEDING RELATED IN ANY WAY TO THIS
<br />AGREEMENT. Each party agrees that claims and disputes arising
<br />out of this Agreement must be decided exclusively in a federal or
<br />state court of competent jurisdiction located in a state in which either
<br />Buyer or Siemens maintains its principal place of business. Each
<br />party submits to the personal jurisdiction of such courts for the
<br />purpose of litigating any claims or disputes.
<br />14.7 If any provision of this Agreement is held invalid, illegal or
<br />unenforceable, the remaining provisions will not in any way be
<br />affected or impaired. A court may modify the invalid, illegal or
<br />unenforceable provision to reflect,as closely as possible, the
<br />parties’ original intent.
<br />14.8 Buyer acknowledges that Siemens is required to comply
<br />with applicable export/import laws and regulations relating to the
<br />sale, export,import, transfer, assignment, disposal and use of goods
<br />or information provided in the performance of the Services, including
<br />any export/import license requirements. Buyer agrees that such
<br />goods or information shall not at any time directly or indirectly be
<br />used, exported, imported, sold, transferred, assigned or otherwise
<br />disposed of in a manner which will result in non-compliance with any
<br />export/import laws and regulations Siemens’ continuing performance
<br />hereunder is conditioned on compliance with such export/import
<br />laws and regulations at all times.
<br />14.9 The Articles entitled “Risk of Loss and Schedule,”
<br />“Indemnity”, “Liquidated Damages,” “Intellectual Property,”
<br />“Confidentiality,” and, 14.8, survive any termination, expiration or
<br />cancellation of this Agreement
<br />DocuSign Envelope ID: BD2BDCCB-A936-4D6E-9287-E4BE0191A7FE
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