MindConnect Hardware Terms
January 2018, APAC
1.
Subject Matter and Scope
1.1. Subject Matter. The following terms and conditions ("Terms")
govern the sale and use of MindConnect hardware devices including all
software (including firmware) installed on or provided with or in connection with such hardware and related support services (the “Product”). The
Product is further described in the applicable product sheet (the “Product
Sheet”) which is accessible at our document repository
www.mindsphere.io/terms. The Product Sheet and other documents
which describe and/or further govern the Product and which are referenced in the Order are collectively referred to as “Transaction Documents”.
1.2. Parties and Contract Formation. These Terms are agreed between
the Siemens entity (“we”, “us”, or “our”) and the contracting person or
entity (“you” or “your”) indicated in the order referencing these Terms,
which may be in the form of a document, an electronic form, or an online
instrument (“Order”). We are only obliged to provide you with the Product
if we accept your order of the Product through an Order. We and you are
referred to individually as a “Party” and collectively as the “Parties”. The
Order which has been accepted by us, the Terms and the Data Sheet
constitute together the Product purchase agreement (“Agreement”). All
references in these Terms to “Siemens” refer to Siemens AG and its affiliates including us and our affiliates.
2.
Use of the Product
2.1. Prerequisites. The transmission of data from devices, systems and
equipment (collectively hereinafter referred to as “Assets”) to the cloudbased platform known as MindSphere (“Platform”) through the Product
requires that the Asset be MindSphere enabled and that you have an
active account to access the Platform with onboarding information (e.g.
token, IDs) to connect the Product to the Platform (“Onboarding Information”). You acknowledge that the mere ownership and/or use of the
Product does not grant you or any third party any rights in relation to the
use of the Platform.
2.2. Responsibility for the use of the Product. You are solely responsible
for the use of the Product, regardless of whether the use is undertaken by
you, your employees, or any third party that buys, leases, or is otherwise
provided with a Product by you and all liabilities or other consequences
arising from such use. This does not apply to the extent a damage or
breach is caused by our violation of the terms of this Agreement. You will
ensure that the use of a Product by you, or your employees, or any third
party complies with your obligations under this Agreement. Should you
become aware of any violation of your obligations under this Agreement,
you will (i) immediately inform us thereof in reasonable detail, and (ii)
cease to use the Product, and (iii) ensure that the respective employees
and third parties cease to use the Product. You are solely responsible for
the content, integrity, security, accuracy, and timeliness of data being
transferred from a Product to the Platform and vice-versa from the Platform to a Product.
2.3. Your Rights to Use Software in the Product. We grant you the nonexclusive, non-transferable, royalty-free and, subject to these Terms,
perpetual right to install and use the software installed on or provided
with or in connection with the Product solely to configure and use the
Product in accordance with this Agreement, with the limited right to
transfer the right to use software as specified in this Section 2.3 solely to a
third party to which you provide the Product. This license excludes the
right to install or use the software for applications other than the Product.
2.4. Your Obligations when Using the Product. You are solely responsible for (i) properly configuring and using the Product, (ii) making sure that
a Product is able to connect to the Platform, (iii) regular monitoring of the
content, integrity, security, accuracy and timeliness of the data transmission (e.g. by monitoring such transmission over the Platform), (iv) the
security of a Product, and (v) the security of your and any third party
system or any data stored on such systems. You shall:
a)
comply with all applicable laws and regulations at all times when
using the Product, in particular by obtaining and maintaining at your
own expense all necessary permits and registrations, and not violate
any third party rights (including without limitation intellectual property rights);
b)
not translate, disassemble, decompile, reverse engineer or otherwise modify, tamper with, repair or attempt to discover the source
code of any software contained in the Product (unless required by
applicable laws or expressly permitted otherwise);
c)
not install additional software or hardware on a Product, unless
explicitly permitted by us or our affiliates;
d)
not create derivative works of, or based on, the Product or any
parts of the Product;
e)
not engage in any activity or modification or attempt to modify the
Product in such a way as to negatively impact on the performance
of the Platform;
f)
use the Product only to transmit data from Assets to the Platform;
g)
use the software installed on the Product only in connection with
your use of the Product;
h)
carefully store any Onboarding Information and protect them from
unauthorized access and only use Onboarding Information for the
Product for which it was created; and
i)
not use the Product to send data volumes to the Platform which
exceed the data volume you defined in the data model for the respective Product.
2.5. Security Obligations. You shall ensure that your use of the Product
will not: (i) constitute a threat to the security or functionality of the Platform; (ii) adversely impact the Platform, us or any third party; or (iii)
subject Siemens or any third party to liability. Further, you shall: (a) during
the use of the Product and before transferring data take all reasonable
precautions against security attacks, including appropriate measures to
prevent viruses, trojan horses or other programs that may damage the
Product or data that shall be transmitted through the Product; (b) not
interfere with or disrupt the integrity or performance of the Product or
other equipment or networks connected to the Platform, and in particular
not transmit any content containing viruses, trojan horses or other programs that may damage software through the Product; (c) not use the
Product in a way that could damage, disable, overburden, impair or compromise any of Siemens’ systems or their security or interfere with users
of the Platform; (d) not connect to the Product any Asset that does not
comply with state-of-the-art security policies (e.g., password protection,
virus protection, update and patch level).
2.6. Updates. Siemens may, at our sole discretion, make available software updates or security patches for the Product and will provide reasonable notice when such updates or security patches are available. Separate
terms and conditions may apply to the download or other installation of
such updates or security patches, but these Terms will apply to your use of
such update or security patch. A Product with older firmware may not be
able to be updated to the current version. A Product running with outdated firmware may not be able to transmit data to the Platform. As such,
you shall, and you shall ensure that future recipients of the Product shall
update the Product without undue delay after the publication of such
updates and patches for the Product. Data collected during an update
procedure may be lost. We disclaim all warranty and liability for such data
loss.
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3.
Third Parties
In case you provide a Product to or provide services in relation to your
Product to a third party you acknowledge and agree that any contractual
relationship regarding your Product and any related services is solely
between you and the third party and you shall:
a)
ensure that the underlying contract with the third party and between such third party and any future recipient of the Product (and
so forth) is consistent with and not less protective of Siemens than
this Agreement between you and us;
b)
advise the third party that if specific Onboarding Information attributed to a Product is passed on to another third party with access
to a MindAccess Developer Plan or MindAccess Developer Operator
Plan account on the Platform, then such other third party may conduct automatic remote updates of the Product after onboarding the
Product onto the Platform;
c)
ensure that the underlying contract with the third party fully disclaims our liability and releases us from any claims or damages in
connection with the passing of any Onboarding Information attributed to a Product to another third party; and
d)
ensure that the underlying contract with the third party will be
suspended or terminated, as the case may be, if the relevant third
party commits any of the acts that would allow us to suspend or
terminate the Agreement with you had you committed such acts.
4.
Proprietary Rights
4.1. Proprietary Rights in the Product. All right, title and interest in and
to the Product, including any know-how and any part and improvement
thereof and all intellectual property rights in or to the foregoing, other
than those rights expressly granted in this Agreement, shall remain wholly
vested in Siemens or its third party business partners and/or licensors. You
grant Siemens a worldwide, perpetual, irrevocable, transferable, sublicensable, fully paid, royalty-free license to use any suggestion, recommendation, feature request, or other feedback related to the Product
provided by or on your behalf.
4.2. Third Party Software. Insofar as the Product contains third party
software, including open source software (collectively “Third Party Software”), we will provide the applicable license conditions with the Product.
With respect to such Third Party Software, those license conditions shall
govern your use of such Third Party Software. Details regarding Third Party
Software contained in the Product are available in the documentation (e.g.
README_OSS).
5.
Fees, Payment Terms and Taxes
5.1. General. You agree to pay to us the purchase price specified for the
Product at the then current price. The purchase price is due upon receipt
of the invoice and payable within 30 days of the invoice date using one of
the payment method we support. Any overdue payment shall accrue
interest at the lower of (i) the rate of 2 % per month or (ii) the highest rate
legally permitted.
5.2. Taxes. All prices and payments relating to the Product are exclusive
of any applicable taxes, customs and import duties, levies, and charges of
any kind whatsoever. Any such taxes, customs and import duties, levies,
and charges that may be imposed on or paid by us shall be borne by you.
Any sums to be paid to us shall be net of any applicable taxes, duties and
levies that might be levied or withheld on payments made by you to us.
Should any such taxes, duties or levies be levied or withheld by you on
payments due to us, then you shall gross up the net payments to us by
such an amount necessary to ensure that we receive a net amount equal
to the full amount we would have received had such taxes, duties or levies
not been withheld. In any case, you are obligated to provide us promptly
with the official tax receipt, which confirms the tax payment on your
behalf.
5.3. Transfer of Title. Title in any part of the Product shall remain with
us until we have received full payment for that part of the Product. Upon
conclusion of the Agreement you authorize us, if applicable, to notify or
enter this retention of title into public registers, books or similar records
kept for this purpose by the competent authorities of the relevant countries and to fulfil all required formalities at your expense.
6.
Indemnification
You will indemnify, and hold Siemens and its suppliers and contractors and
each of their respective employees, officers, directors, and representatives
harmless from and against, and, at Siemens’ option, defend Siemens from
and against all claims, liabilities, losses, expenses, damages and costs,
including reasonable attorneys’ fees, resulting from or arising out of (i) any
violation of this Agreement by you or any other person you provided with
the Product, regardless of your knowledge; (ii) claims by any person you
provided with the Product; (iii) any use of the Product by you that impacts
the security of the Platform or causes any loss of data or content of Siemens or any third party; (iv) any violation of laws or rights of others by
your use of the Product; (v) your use of the Product for the operation of or
within a system that requires enhanced safety functionalities such as failsafe or fault-tolerant features to maintain a safe state where it is reasonably foreseeable that failure of the device or system could lead directly to
death, personal injury, or catastrophic property damage (“High Risk System”), if the functioning of a High Risk System depends on the proper
functioning of the Product, or a Product caused the High Risk system to
fail.
7.
Liability and Warranty
7.1. Transfer of Risk. The risk of damage to or loss of the Product shall
pass to you upon delivery. The Product shall be deemed delivered if and
when you fail to accept delivery without cause. In such case, the Product
can be stored and insured at your risk and expense, any payment shall
become due, and all other consequences of the delivery shall apply accordingly. The same consequences shall apply on the scheduled date of
delivery if the dispatch is postponed for reasons attributable to you.
7.2. Disclaimer of Liability. Subject to the following Section 7.3, we
disclaim all liability for all claims, damages and indemnities in relation to
the Product regardless of the form of action, whether in contract, tort
(including negligence) or otherwise. However, the exclusion or limitation
of liability in this Agreement shall not apply: (i) to the extent that liability
cannot be limited or excluded according to applicable law (Section 10.5);
(ii) in cases of willful misconduct; (iii) in cases of bodily injuries or death
caused by our negligence; (iv) in cases of fraud or fraudulent misrepresentation. Any limitations of liability set forth in this Agreement shall also
apply for the benefit of our suppliers, employees, directors, agents, business partners or any other person acting for us. Any and all or our liability
under this Agreement shall cease with the expiry of the defects liability
period of the Product.
7.3.
Warranty. THE FOLLOWING SHALL NOT BE DEFECTS:
(i)
NORMAL WEAR AND TEAR, NON-CONFORMITY RESULTING FROM
EXCESSIVE STRAIN;
(ii)
NON-CONFORMITY RESULTING FROM FAULTY OR NEGLIGENT
HANDLING; NON-COMPLIANCE WITH INSTRUCTIONS OR RECOMMENDATIONS IN OPERATION OR MAINTENANCE MANUALS AND
OTHER DOCUMENTS (E.G. USAGE OF NOT SPECIFIED OR DISABLED
HARDWARE INTERFACES);
(iii)
INSTALLATION, ERECTION, MODIFICATION, COMMISSIONING, PRECOMMISSIONING OR DE-COMMISSIONING, IN EACH CASE NOT
CARRIED OUT BY US;
(iv)
NON-REPRODUCIBLE SOFTWARE ERRORS; AND
(v)
DEFECTS WHICH DO NOT SIGNIFICANTLY IMPAIR THE USE OF THE
RESPECTIVE PRODUCT.
YOU SHALL IMMEDIATELY INSPECT THE PRODUCT UPON DELIVERY AND
SHALL NOTIFY US IN WRITING OF ANY DEFECTS WITHOUT UNDUE DELAY.
YOUR CLAIMS IN RESPECT OF DEFECTS ARE EXCLUDED FOR ANY APPARENT
DEFECTS, IF YOU FAIL TO DO SO. UPON SUCH WRITTEN NOTIFICATION, WE
SHALL, AT OUR SOLE DISCRETION, REMEDY THE DEFECT BY REPAIR, REPLACEMENT, OR RE-PERFORMANCE. WE MUST BE GIVEN A REASONABLE
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PERIOD OF TIME AND OPPORTUNITY TO REMEDY THE DEFECT. FOR THIS
PURPOSE, YOU SHALL GRANT US WORKING ACCESS TO THE NONCONFORMING PRODUCT, SHALL UNDERTAKE ANY NECESSARY DISASSEMBLY
AND REASSEMBLY, AND SHALL PROVIDE ACCESS TO OPERATION AND
MAINTENANCE DATA, WITH ONLY MATERIAL COSTS ARISING BY YOUR
MEASURES TO BE BORNE BY US.
UNLESS OTHERWISE AGREED, THE DEFECTS LIABILITY PERIOD FOR THE
PRODUCTS IS 12 MONTHS. IT STARTS AT THE DATE OF TRANSFER OF RISK.
TO THE EXTENT THAT LIABILITY CANNOT BE LIMITED OR EXCLUDED ACCORDING TO APPLICABLE LAW (SECTION 10.5), IN CASES OF WILLFUL
MISCONDUCT AND GROSS NEGLIGENCE, IN CASES OF BODILY INJURIES OR
DEATH CAUSED BY OUR NEGLIGENCE AND IN CASES OF FRAUD OR
FRAUDULENT MISREPRESENTATION THE STATUTORY LIMITATION PERIOD
APPLIES. FOR REPLACED OR REPAIRED PARTS OF THE PRODUCTS, THE
DEFECTS LIABILITY PERIOD IS 6 MONTHS FROM THE DATE OF REPLACEMENT OR REPAIR, IF THE ORIGINAL DEFECTS LIABILITY PERIOD FOR THE
PRODUCTS EXPIRES EARLIER. IN ANY EVENT, THE DEFECTS LIABILITY PERIOD SHALL END NO LATER THAN 24 MONTHS FROM THE BEGINNING OF
THE ORIGINAL DEFECTS LIABILITY PERIOD.
IF SOFTWARE IS DEFECTIVE, WE MAY, AT OUR SOLE DISCRETION, FULFILL
OUR DUTIES BY PROVIDING YOU WITH AN UPDATED VERSION OF THE
SOFTWARE IN WHICH THE DEFECT HAS BEEN REMEDIED IF SUCH UPDATED
VERSION IS REASONABLY AVAILABLE FROM US OR, IF WE ARE ONLY LICENSEE, FROM OUR LICENSOR, AND IF THIS FORM OF RE-PERFORMANCE DOES
NOT CONSIDERABLY DISADVANTAGE YOU. IF THE SOFTWARE HAS BEEN
MODIFIED OR INDIVIDUALLY DEVELOPED BY US, WE SHALL PROVIDE YOU
ADDITIONALLY WITH A WORKAROUND OR OTHER INTERIM CORRECTIVE
SOLUTION UNTIL AN UPDATED VERSION OF THE SOFTWARE IS PROVIDED,
IF SUCH WORKAROUND OR INTERIM SOLUTION IS FEASIBLE AT REASONABLE EXPENSE AND IF OTHERWISE YOUR BUSINESS OPERATIONS WOULD BE
SUBSTANTIALLY IMPEDED.
FOR THE AVOIDANCE OF DOUBT, UPDATES OR SECURITY PATCHES FOR
THE PRODUCT ARE MADE AVAILABLE AT OUR SOLE DISCRETION. WE DO
NOT WARRANT THAT UPDATES OR SECURITY PATCHES ARE MADE AVAILABLE AFTER YOU HAVE PURCHASED THE PRODUCT.
YOU SHALL USE ALL REASONABLE CARE IN EXAMINING THE PRODUCT,
BEFORE CLAIMING THE EXISTENCE OF A DEFECT. IF IT IS ESTABLISHED
THAT AN ALLEGED DEFECT DOES NOT EXIST OR THAT YOU DO NOT HAVE
THE ALLEGED CLAIMS, WE MAY CLAIM COMPENSATION FOR REMEDIAL
WORKS OR ERROR DIAGNOSIS, IN ACCORDANCE WITH OUR USUAL RATES
OF REMUNERATION, UNLESS YOU USED ALL REASONABLE CARE OR
WOULD HAVE MADE THE SAME MISTAKE EVEN IF YOU HAD USED ALL
REASONABLE CARE.
WE ARE NOT AWARE THAT THE PRODUCT VIOLATES ANY THIRD PARTY
RIGHTS IF USED IN ACCORDANCE WITH THE AGREEMENT.
8.
Delivery Times and Delay
8.1. Delivery Times. Any agreed dates in respect of the Product shall be
extended by a reasonable period of time if and to the extent that we are
delayed or impeded in the performance of your obligations by any third
party or by your failure to perform your obligations. This includes without
limitation the delivery of required documents (including necessary permits
and approvals), timely performance of any work to be undertaken by you
or any third party appointed by you, and compliance with the terms of
payment.
8.2. Delivery. We may, at our option, deliver the Product(s) in a number
of tranches unless the Agreement specifies that a single delivery must be
made.
9.
Export Regulations
9.1. If you transfer hardware and/or software and/or technology as well
as corresponding documentation and/or works and services, regardless of
the mode of provision, and/or including all kinds of technical support
provided by Siemens to a third party worldwide, you shall comply with all
applicable national and international (re-)export control regulations. In
any event you shall comply with the (re-)export control regulations of the
Federal Republic of Germany, of the European Union, and of the United
States of America.
9.2. If required to enable authorities or Siemens to conduct export
control or sanctions compliance checks, you, upon request by Siemens,
shall promptly provide Siemens with all information pertaining to a particular end customer, destination and particular intended use of the software
provided by Siemens, including information on you and your customers as
well as any export control restrictions existing.
9.3. You shall indemnify and hold harmless Siemens from and against
any claim, proceeding, action, fine, loss, cost and damages arising out of or
relating to any non-compliance with export control regulations by you, and
you shall compensate us for all losses and expenses resulting therefrom,
unless such non-compliance was not caused by your fault. This provision
does not imply a change in the statutory burden of proof.
10.
General Provisions
10.1. Assignment. This Agreement will extend to and be binding upon the
successors, legal representatives and permitted assigns of the Parties. This
Agreement as well as the rights granted therein may be assigned by us, in
whole or in part, to any of our affiliates that assume our obligations. You
shall not assign the Agreement or any of the rights granted therein without our prior written consent.
10.2. Order of Precedence; Applicable Versions. Unless explicitly set out
otherwise in this Agreement, if there is a conflict or inconsistency between
any documents, the documents shall prevail in the following descending
order of precedence: (i) the Order, (ii) the terms and conditions for Third
Party Software, (iii) the applicable Transaction Document; (iv) the Terms,
and (iv) other documents referenced in these Terms. The reference to a
document that refers to another document shall be deemed to include
also such other document. If a document is provided in different languages, the English language version of that document prevails.
10.3. Force Majeure. Neither Party shall be liable for any failure or delay
in its performance under the MMA due to any cause beyond its reasonable
control, including acts of God, earthquake, fire, flood, embargo, riot,
sabotage, attacks on IT systems by Third Parties (e.g., hacker attacks),
labor shortage or dispute, acts or omissions of civil or military authorities,
war, acts of sabotage or terrorism.
10.4. Dispute Resolution. All disputes arising out of or in connection with
this Agreement, including the formation, interpretation, amendment,
breach or termination thereof, shall be finally settled under the rules of
arbitration of the International Chamber of Commerce (ICC) by one or
more arbitrators appointed in accordance with such rules. The seat of
arbitration shall be Singapore. The language to be used in the arbitration
shall be English. Any orders for the production or disclosure of documents
shall be limited to the documents on which each Party specifically relies in
its submission(s). Nothing in this Section 10.4 shall restrict the right of the
Parties to seek interim relief intended to preserve the status quo or interim measures in any court of competent jurisdiction.
10.5. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of Singapore, without giving effect to
any choice-of-law rules that may require the application of the law of
another jurisdiction. The UN Convention on Contracts for the International
Sale of Goods shall not apply.
10.6. Notices. We may provide notice to you under this Agreement by
email. Notwithstanding the foregoing, notices of claims or notices regarding disputes shall always be in writing and be sent by facsimile or postal
mail to the contract address provided in the respective Order.
10.7. Validity and Enforceability. If any provision of the Agreement 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.
10.8. Publicity. Except as may be required by applicable law, neither
Party shall disclose the terms of the Agreement or issue a press release in
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connection with the subject matter hereof without the prior written
consent of the other Party, which shall not be unreasonably withheld.
Notwithstanding the foregoing, we shall be permitted to name you as our
customer on our websites, in company presentations, customer lists and in
other Siemens marketing materials and we and you shall have the limited
right to disclose the terms of the Agreement to their bona fide financial,
tax and legal advisors subject to appropriate confidentiality obligations.
Sections 10.5 of this document shall be replaced as follows:
10.9. Entire Agreement. The Agreement constitutes the full and complete
statement of the terms agreed between the Parties with respect to the
subject matter thereof and supersede any previous or contemporaneous
agreements, understandings or communications, whether written or
verbal, relating to its subject matter. The reference to a document that
refers to another document shall be deemed to also include such other
document. The Agreement may not be varied other than in writing executed by the duly authorized representatives of both Parties or via an
online mechanism, if so provided explicitly for such purpose by us. No
other terms and conditions shall apply.
Japan. These country specific provisions apply if both Parties are located in
Japan. In such case Section 7.2 Sentence 2 of this document shall be
replaced as follows:
10.10. Independent Contractors. For all purposes, the Parties will be
deemed to be independent contractors and nothing contained in the
Agreement will be deemed to constitute a joint venture, partnership,
employer-employee relationship or other agency relationship. Neither
Party is, nor will either Party hold itself out to be, vested with any power
or right to contractually bind or act on behalf of the other Party.
11.
Country Specific Provisions
11.1. Australia. If you are located in Australia, references to «the «the
applicable law (Section 10.5)» contained in Sections 7.2 and 7.3 shall be
replaced by references to «the applicable law specified in Section 10.5 and
subject to Section 7.4».
Section 2.4.b) of this document shall be replaced as follows:
b) not translate, disassemble, decompile, reverse engineer or otherwise
modify, tamper with, repair or attempt to discover the source code of any
software contained in the Product (unless expressly permitted under this
Agreement or the applicable Order or to the extent such disassembly,
decompilation and/or reverse engineering are expressly permitted under
the Copyright Act 1968 (Cth) for certain purposes, and are performed for
those purposes);
A new Section 7.4 is added as follows:
Non-Excludable Provisions. Nothing in this Agreement excludes, restricts
or modifies any right or remedy, or any guarantee, warranty or other term
or condition, implied or imposed by legislation that cannot lawfully be
excluded or limited, including, to the extent applicable under the Australian Consumer Law in the Competition and Consumer Act 2010 (Cth) (a
"Non-Excludable Provision"). To the maximum extent permitted by law,
our entire liability for breach of a Non-Excludable Provision in relation to
this Agreement is limited to (at our option): (a) in the case of goods, repairing or replacing those goods or paying the cost of having those goods
repaired or replaced or acquiring equivalent goods; and (b) in the case of
services, resupplying those services or paying the cost of having those
services resupplied.
11.2. India. These country specific provisions apply if both Parties are
located in India. In such case:
Sections 10.4 of this document shall be replaced as follows:
Dispute Resolution. All disputes arising out of or in connection with the
Agreement or an Order, including the formation, interpretation, amendment, breach or termination thereof, shall be finally settled under the
rules of arbitration of the International Chamber of Commerce (ICC) by
one or more arbitrators appointed in accordance with such rules. The seat
of arbitration shall be New Delhi, India. The language to be used in the
arbitration shall be English. Any orders for the production or disclosure of
documents shall be limited to the documents on which each Party specifically relies in its submission(s). Nothing in this Section 10.4 shall restrict
the right of the Parties to seek interim relief intended to preserve the
status quo or interim measures in any court of competent jurisdiction.
Applicable Law. The Agreement and the applicable Order shall be governed by and construed in accordance with the laws of India, without
giving effect to any choice-of-law rules that may require the application of
the law of another jurisdiction. The UN Convention on Contracts for the
International Sale of Goods shall not apply.
Scope of Limitations and Exclusions. The limitation and exclusion in this
Section 7.2 shall not apply: (i) to the extent that liability cannot be limited
or excluded according to the Applicable Law (Section 10.5); (ii) in cases of
our willful misconduct and gross negligence; (iii) in cases of bodily injuries
or death caused by our negligence; and (iv) in cases of our fraud or fraudulent misrepresentation.
South Korea. These country specific provisions apply if both Parties are
located in Korea. In such case Section 7.2 Sentence 2 of this document
shall be replaced as follows:
Scope of Limitations and Exclusions. The limitation and exclusion in this
Section 7.2 shall not apply: (i) to the extent that liability cannot be limited
or excluded according to applicable law (Section 10.5); (ii) in cases of
willful misconduct and gross negligence; (iii) in cases of bodily injuries or
death caused by our gross negligence; (iv) in cases of fraud or fraudulent
misrepresentation.
Taiwan. These country specific provisions apply if you are located in
Taiwan. In such case Section 7.2 Sentence 2 of this document shall be
replaced as follows:
Scope of Limitations and Exclusions. The limitation and exclusion in this
Section 7.2 shall not apply: (i) to the extent that liability cannot be limited
or excluded according to Applicable Law; (ii) to the extent that liability
cannot be limited or excluded according to applicable consumer protection or product liability laws; (iii) in cases of willful misconduct and gross
negligence; (iv) in cases of bodily injuries or death caused by our negligence; and (v) in cases of fraud or fraudulent misrepresentation.
UAE. These country specific provisions apply if either of the Parties are
located in the UAE. In such case the following sentences shall be added at
the end of Section 4.1:
To the extent that the applicable law does not recognize Siemens or its
third party business partners and/or licensors as the “owner” of the intellectual property rights in the Product, you hereby assign to Siemens or its
third party business partners and/or licensors the intellectual property
rights in the Product (including all present and future copyright, copyright
revivals and extensions) and waive any “moral rights” or any rights similar
to “moral rights” recognized under any applicable law. Such assignment
and waiver shall take effect upon the creation of each of the intellectual
property rights. If and to the extent that any or all of the provisions of this
Agreement, including without limitation, this Section 4.1 do not operate to
assign all intellectual property rights in the Product fully and effectively to
Siemens or its third party business partners and/or licensors, you hereby
irrevocably grant and agree to procure for Siemens or its third party business partners and/or licensors‘ benefit an irrevocable, exclusive, perpetual, assignable, worldwide, royalty free license (with rights to sublicense
through multiple tiers of sub-licensees) in and to such intellectual property
rights in the Product from the date of the creation of such rights.
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