Catalog

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usa.siemens.com/hvac
9. LIMITATION OF LIABILITY. NEITHER SIEMENS, NOR ITS SUPPLIERS, SHALL BE LIABLE, WHETHER IN CONTRACT, WARRANTY, FAILURE OF A
REMEDY TO ACHIEVE ITS INTENDED OR ESSENTIAL PURPOSES, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR ANY OTHER
LEGAL THEORY, FOR LOSS OF USE, REVENUE, SAVINGS OR PROFIT, OR FOR COSTS OF CAPITAL OR OF SUBSTITUTE USE OR PERFORMANCE,
OR FOR INDIRECT, SPECIAL, LIQUIDATED, PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL, DAMAGES, OR FOR ANY
OTHER LOSS OR COST OF A SIMILAR TYPE, OR FOR CLAIMS BY BUYER FOR DAMAGES OF BUYER’S CUSTOMERS. SIEMENS’ MAXIMUM LIABILITY
UNDER THIS CONTRACT SHALL BE THE ACTUAL PURCHASE PRICE RECEIVED BY SIEMENS FOR THE PRODUCT AT ISSUE OR ONE MILLION
DOLLARS, WHICHEVER IS LESS. BUYER AGREES THAT THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS ARTICLE ARE SEPARATE AND
INDEPENDENT FROM ANY REMEDIES WHICH BUYER MAY HAVE HEREUNDER AND SHALL BE GIVEN FULL FORCE AND EFFECT WHETHER OR
NOT ANY OR ALL SUCH REMEDIES SHALL BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY
ARE EFFECTIVE EVEN IF SIEMENS HAS BEEN ADVISED BY THE BUYER OF THE POSSIBILITY OF SUCH DAMAGES.
10. PATENT AND COPYRIGHT INFRINGEMENT Siemens will, at its own expense, defend or at its option settle any suit or proceeding brought
against Buyer in so far as it is based on an allegation that any Product (including parts thereof), or use thereof for its intended purpose,
constitutes an infringement of any United States patent or copyright, if Siemens is promptly provided notice and given authority, information,
and assistance in a timely manner for the defense of said suit or proceeding. Siemens will pay the damages and costs awarded in any suit
or proceeding so defended. Siemens will not be responsible for any settlement of such suit or proceeding made without its prior written
consent. In case the Product, or any part thereof, as a result of any suit or proceeding so defended is held to constitute infringement
or its use by Buyer is enjoined, Siemens will, at its option and its own expense, either: (a) procure for Buyer the right to continue using
said Product; (b) replace it with substantially equivalent non-infringing Product; or (c) modify the Product so it becomes non-infringing.
Siemens will have no duty or obligation to Buyer under this Article to the extent that the Product is (a) supplied according to Buyer’s design
or instructions wherein compliance therewith has caused Siemens to deviate from its normal course of performance, (b) modified by
Buyer or its contractors after delivery, (c) combined by Buyer or its contractors with devices, methods, systems or processes not furnished
hereunder and by reason of said design, instruction, modification, or combination a suit is brought against Buyer. In addition, if by reason
of such design, instruction, modification or combination, a suit or proceeding is brought against Siemens, Buyer shall protect Siemens in
the same manner and to the same extent that Siemens hereinabove agreed to protect Buyer. THIS ARTICLE IS AN EXCLUSIVE STATEMENT
OF ALL THE DUTIES OF THE PARTIES RELATING TO PATENTS AND COPYRIGHTS, AND DIRECT OR CONTRIBUTORY PATENT OR COPYRIGHT
AND OF ALL THE REMEDIES OF BUYER RELATING TO ANY CLAIMS, SUITS, OR PROCEEDINGS INVOLVING PATENTS AND COPYRIGHTS.
11. Compliance with Laws. Buyer agrees to comply with all applicable laws and regulations relating to the purchase, resale, exportation,
transfer, assignment, disposal or use of the Products.
12. Changes in Work. Siemens shall not implement any changes in the scope of work unless Buyer and Siemens agree in writing to the
details of the change and any resulting price, schedule or other contractual modifications. Any change to any law, rule, regulation, order,
code, standard or requirement which requires any change hereunder shall entitle Siemens to an equitable adjustment in the prices and
any time of performance.
13. Non-waiver of Default. Each shipment made hereunder shall be considered a separate transaction. In the event of any default by Buyer,
Siemens may decline to make further shipments. If Siemens elects to continue to make shipments, Siemens’ actions shall not constitute a
waiver of any default by Buyer or in any way affect Siemens’ legal remedies for any such default. Any waiver of Siemens to require strict
compliance shall not be deemed a waiver of Siemens’ right to insist upon strict compliance thereafter.
14. Final Written Agreement; Modification of Terms. These terms, together with any quotation, purchase order or acknowledgement
issued or signed by Siemens, comprise the complete and exclusive agreement between the parties (the “Agreement”) and supersede any
terms contained in Buyer’s documents, unless separately signed by Siemens. These terms may only be modified by a written instrument
signed by authorized representatives of both parties.
15. Assignment. Neither party may assign the Agreement, in whole or in part, nor any rights or obligations hereunder without the prior
written consent of the other; provided however that Siemens may assign its rights and obligations under these terms to its affiliates and
Siemens may grant a security interest in the Agreement and/or assign proceeds of the Agreement without Buyer’s consent.
16. Applicable Law and Jurisdiction. These terms are governed and construed in accordance with the laws of the State of Delaware, without
regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods
is excluded. BUYER WAIVES ALL RIGHTS TO A JURY TRIAL IN ANY ACTION OR PROCEEDING RELATED IN ANY WAY TO THESE TERMS.
17. Severability. If any provision of these terms is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired, and such provision will be deemed to be restated to reflect the original
intentions of the parties as nearly as possible in accordance with applicable law.
18. Export Compliance. Buyer acknowledges that Siemens is required to comply with applicable export laws and regulations relating to
the sale, exportation, transfer, assignment, disposal, and usage of the Products provided under this Agreement, including any export
license requirements. Buyer agrees that such Products shall not at any time directly or indirectly be used, exported, sold, transferred,
assigned or otherwise disposed of in a manner which will result in non-compliance with such applicable export laws and regulations. It is
a condition of the continuing performance by Siemens of its obligations hereunder that compliance with such export laws and regulations
be maintained at all times. BUYER AGREES TO INDEMNIFY AND HOLD SIEMENS HARMLESS FROM ANY AND ALL COSTS, LIABILITITES,
PENALTIES, SANCTIONS AND FINES RELATED TO NONCOMPLIANCE WITH APPLICABLE EXPORT LAWS AND REGULATIONS.
19. Returns. All returns require written authorization that can be obtained by contacting the Siemens Customer Support. All returned goods
that are unused must be in the original package, be the current revision of product, be in sellable condition as a new product, and be
returned within 90 days from date of sales. A proper Return Material Authorization (“RMA”) number must be acquired for all returned
goods. Only goods returned with a completed RMA form and a copy of the original purchase order will be considered for credit. Unless
stated otherwise in writing, all returned goods, except those due to shipping errors by Siemens, are subject to a 15% restocking charge.
Returned goods must be sent freight pre-paid.