User Manual

16-6
Siemens Switzerland Ltd www.siemens.com/gamma 2019
Building Technologies Division
Appendix
Ordering information
9.6 If Siemens carries out remedial work and it is ultimately not esta-
blished that there was a Defect, the Customer shall pay Siemens
for such remedial work including error diagnosis.
9.7 Any other liability of Siemens and rights and remedies of the
Customer in case of defects of the Supplies, other than those
expressly stipulated in this Clause 9 or , in case Siemens failed at
least three times in remedying the defect, in Clause 15.2b) shall
be excluded. All warranties, representations, conditions, and all
other terms of any kind whatsoever implied by statute or law are,
to the fullest extent permitted by applicable law, excluded from
this Contract.
10. Intellectual Property Rights
10.1 If a third party asserts legitimate claims against the Customer
that the Supplies infringe an IPR owned by such third party, then
subject to the following provisions of this Clause 10, Siemens
shall, at its option and expense, either
a) obtain a right to use the relevant IPR in connection with the
Supplies; or
b) modify the Supplies so as not to infringe the relevant IPR; or
c) replace the infringing part of the Supplies. If, in the opinion
of Siemens, none of the foregoing is reasonably possible,
Siemens shall take back the relevant part of the Supplies and
reimburse the price for such part.
10.2 Siemens‘ obligations in Clause 10.1 are subject to the following
conditions:
a) The Customer has immediately notified Siemens in writing of
the third party’s claim and furnished Siemens with a copy of
each communication, notice or other action relating to the
alleged infringement,
b) the Customer does not acknowledge an infringement and pro-
vides Siemens with the authority, information and assistance
reasonably required by Siemens to defend or settle such claim,
and
c) Siemens is given sole control of the defence (including the
right to select counsel), and the sole right to settle such claim.
If the Customer ceases to use the Supplies or any relevant portion
thereof, it shall notify the third party in writing that its cessation
to use is not an admission of IPR infringement.
10.3 Any claims of the Customer shall be excluded if the Customer
(including its agents, employees or contractors) is responsible
for the IPR infringement, which shall include without limitation
if the IPR infringement was caused by specific demands of the
Customer, by use of the Supplies for a purpose or in a manner
not foreseeable by Siemens, by a modification of the Supplies by
the Customer, or by use of the Supplies in connection with other
equipment.
10.4 This Clause 10 sets forth Siemens’ entire liability for infringement
of third party IPRs. Any other rights and remedies of the Custo-
mer shall be excluded.
11. Liability
Unless explicitly stipulated in this Contract, this Clause 11 shall
exclusively govern the liability of Siemens for damages, costs
and expenditures, regardless of the legal theory upon which it
is based, including, but not limited to liability in Contract, in tort
(including negligence), misrepresentation, indemnity, under
warranty or otherwise.
11.1 Siemens shall be liable for bodily injuries and for intentional acts
or omissions pursuant to the applicable law.
11.2 Siemens shall in no event be liable, whether pursuant to any
indemnity or in contract, tort (including negligence and statutory
duty) or otherwise for loss of profit or revenue, loss of produc-
tion, interruption of operations or loss of use, cost of capital,
loss of interest, loss of information and/or data, for claims arising
from Customer’s contracts with third parties, or for any indirect
or consequential damage.
11.3 Siemens’ total liability, whether pursuant to any indemnity or in
contract, tort (including negligence and breach of statutory duty)
or otherwise arising by reason of or in connection with the Con-
tract shall not exceed 20% of the Contract Price per event and
shall, under any circumstances, be limited in aggregate to 100%
of the Contract Price.
11.4 Any limitations of liability set forth in this Contract shall also ap-
ply for the benefit of Siemens’ subcontractors, employees, agents
or any other person acting for Siemens.
11.5 Any and all liability of Siemens under this Contract shall cease
with the expiry of the defects liability period of the Supplies.
11.6 Any rights and remedies of the Customer against Siemens that
are not expressly stipulated in the Contract shall be excluded.
12. Assignment
12.1 The Customer may not assign this Contract or any part thereof
without Siemens’ prior written approval.
12.2 Siemens may assign the Contract or any part of it to an affiliated
company (“Affiliate”), being any legal entity (“Company”) which
directly or indirectly is controlled by Siemens, controls Siemens
or is controlled by a Company which directly or indirectly controls
Siemens.
12.3 Siemens shall further be entitled to assign the whole Contract
or a part of it to any third party, in the event of a sale or other
transfer of the business or a part of the business of Siemens to a
third party.
13. Confidentiality
13.1 The parties shall use any documents, know-how, data or other in-
formation provided by the other party („Information“) exclusively
for the purpose of this Contract and keep the same confidential
subject to the following. The parties may disclose Information
to employees of the receiving party and to third parties who
reasonably need to know such Information for the purpose of the
Contract provided such employees and third parties are bound
by equivalent confidentiality obligations. The party disclosing
Information shall be held liable for a breach of such obligations
by its employees or a third party.
13.2 This confidentiality obligation shall not apply to Information
which
a) is or becomes part of the public domain other than by fault of
the receiving party;
b) is disclosed to the receiving party in good faith by a third party
who is entitled to make such disclosure;
c) is developed independently by the receiving party without
reliance on Information;
d) was known to the receiving party prior to its disclosure by the
other party; or
e) is required to be disclosed by law (subject to the receiving
party’s obligation to notify the disclosing party in a timely
manner of such requirement).
13.3 This confidentiality obligation shall survive the expiration or
termination of this Contract.
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