and
the
re-installation
of
replacement
products. Customer shall not return Products
to Ilti without consent of Ilti and unless in
accordance with applicable Ilti’ return policies.
In the event that Ilti decides that a claim under
warranty is not valid, Customer will bear the
costs incurred by Ilti in handling and testing,
and the transport of Products returned.
(e)Any
indemnification
and
warranty
obligations of Ilti under an Agreement
are conditional upon (i) proper storage,
installation, use, operation, and maintenance
of Products, all in accordance with user
manuals,
warranty
policies
and
other
instructions or terms communicated by Ilti
to Customer; (ii) Customer keeping accurate
and complete records of operation and
maintenance during the warranty period and
providing Ilti access to those records; and (iii)
modification or repair of Products or Services
only as authorized by Ilti. Failure to meet these
conditions renders the warranty null and void.
Ilti will not be responsible for normal wear and
tear and environmental or stress testing. The
warranty provided in this section 9 does not
apply to damage or failure to perform arising
as a result of any Force Majeure or from any
abuse, misuse, abnormal use, improper power
supply, powers surges or fluctuations, corrosive
environments, neglect, exposure or any use or
installation in violation of the instructions or
restrictions prescribed by Ilti or any applicable
standard or code.
(f)Any
indemnification
and
warranty
obligation of Ilti under an Agreement will not
establish, by themselves, any liability to third
parties or the public. Nothing in an Agreement
will be construed to create any obligation,
standard of care or liability to persons or third
parties.
(g)If a recall, retrofit, update, withdrawal
or any other remedial action related to any
Product is required, Customer shall fully
cooperate and shall provide such assistance as
Ilti may require. Customer shall keep accurate
books and records to assure traceability of the
Products in the event of a Product recall or
any other remedial actions.
(h)SUBJECT
TO
THE
EXCLUSIONS
AND LIMITATIONS SET OUT IN THE
AGREEMENT,
AND
SUBJECT
TO
APPLICABLE LAW, SECTIONS 9, 11
AND 12(b), (c) and (d) STATE THE ENTIRE
LIABILITY OF ILTI AND ITS AFFILIATES
IN CONNECTION WITH DEFECTIVE
PRODUCTS OR DEFECTIVE SERVICES,
REGARDLESS OF WHEN THE DEFECT
ARISES, AND WHETHER A CLAIM,
HOWEVER DESCRIBED, IS BASED ON
CONTRACT, WARRANTY, INDEMNITY,
TORT
OR
EXTRA-CONTRACTUAL
LIABILITY (INCLUDING NEGLIGENCE),
STRICT
LIABILITY
OR
OTHERWISE,
AND
WILL
EXTEND
DIRECTLY
TO
CUSTOMER
ONLY
AND
NOT
TO
ANY
THIRD
PARTY,
INCLUDING
CUSTOMER’S
CUSTOMERS,
AGENTS
OR REPRESENTATIVES. ILTI EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES,
WHETHER
EXPRESS
OR
IMPLIED,
INCLUDING BUT NOT LIMITED TO ANY
WARRANTY AGAINST INFRINGEMENT
OR
IMPLIED
WARRANTIES
OF
MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. AN ESSENTIAL
PURPOSE OF THE LIMITED EXCLUSIVE
LIABILITIES AND REMEDIES UNDER THE
WARRANTY IS ALLOCATION OF RISKS
BETWEEN ILTI AND CUSTOMER, WHICH
ALLOCATION OF RISKS IS REFLECTED
IN THE PRICES.
10.
RIGHTS
IN
SOFTWARE,
DOCUMENTATION AND INTELLECTUAL
PROPERTY
(a)Subject to Customer’s fulfillment of all
obligations under the Agreement and these
Terms, the supply of Products and/or Services
(including software embedded in Products or
Services) includes a non-exclusive and non-
transferable limited license (without the right
to grant sublicenses) to Customer under any
intellectual property rights (including patents,
utility models, registered and unregistered
designs,
copyrights,
database
rights,
trademarks, domain names, trade secrets,
know-how, semiconductor IC topography
rights and all registrations, applications,
renewals, extensions, combinations, divisions,
continuations or reissues of any of the
foregoing, collectively: “IPR”) of Ilti, to the
limited extent that such IPR is embodied
or embedded in the Products or Services
purchased, to use or resell the Products
(including Documentation) as sold by Ilti, and/
or, for Services, to use the Services (including
Documentation) during the term of the
applicable Agreement in accordance with the
applicable Services description. No rights to
IPR are conferred to Customer or any third
party other than explicitly granted under the
Agreement or these Terms.
(b)Customer acknowledges that third parties
may own IPR related to Products or Services.
Customer shall reproduce, without any
amendments or changes, any proprietary
rights legends of Ilti or its third party suppliers
in any software or Documentation provided by
Ilti.
(c)Ilti will be free to use in any way or
form
any
ideas,
suggestions,
feedback
or recommendations by Customer to Ilti
regarding Products or Services (“Feedback”),
without payment of royalties or other
consideration to Customer. Ilti will own all
IPR in Feedback. Ilti is entitled to use output,
deliverables and creations resulting from the
performance of Services for its own publicity
or for promotional purposes.
11. INTELLECTUAL PROPERTY RIGHTS
INDEMNITY
(a)Customer shall promptly notify Ilti of
any third party claim alleging that any of
the Products and/or Services supplied to
Customer by Ilti infringes any third party IPR.
Upon such notice, Ilti may at its own option
and at its own expense either: (i) procure for
Customer the right to continue using such
Product and/or Services; or (ii) provide a
replacement non-infringing product for such
Product of equivalent functionality; or (iii)
modify such Product such that it is no longer
infringing; or (iv) remedy such Service; or (v)
make an appropriate refund or credit of monies
paid by Customer for that Product and/or
Services.
(b)In the event that a claim referred to under
section 11(a) results in any legal proceedings,
Customer shall give Ilti full authority, at the
option and cost of Ilti, to settle or conduct the
defence of such claim. Customer shall provide
Ilti with all assistance as Ilti may reasonably
require in connection with such defence of
such claim. Customer shall not enter into any
settlement in connection with any such claim,
nor incur any costs or expenses for the account
of Ilti without the prior consent of Ilti.
(c)Subject to the provisions of sections 11 and
12, Ilti will reimburse Customer in respect
of any final award of damages by a court of
competent jurisdiction holding that Products
and/or Services as supplied by Ilti under an
Agreement directly infringe any third party
IPR, provided that the infringement is held to
be directly and solely attributable to the use
by Customer of the Products and/or Service as
supplied by Ilti under the Agreement.
(d)Notwithstanding anything to the contrary
provided in the Agreement, Ilti will not be
liable for, and the obligations of Ilti set out in
this section 11 will not apply to: (i) any claim of
infringement of third party IPR resulting from
compliance with Customer’s design, drawings,
specifications or instructions; or (ii) use of any
Products, deliverables and/or Services other
than in accordance with its specifications
or any claim based on or resulting from any
modification or adaptation of a Product,
deliverables and/or Service made by or on
behalf of Customer; or (iii) any third party IPR
covering any assembly, circuit, combination,
method or process, in the manufacture, testing
or application in which such Products and/or
Services supplied by Ilti may have been used;
or (iv) any claim of infringement resulting from
compliance with an industry standard applying
to the Products or Services.
(e)With regard to any claim of infringement
covered by section 11 (d), Customer shall fully
indemnify Ilti against any award of damages
for any such infringement and shall reimburse
all costs incurred by Ilti in defending any
suit or proceeding for such infringement,
provided that Ilti gives Customer prompt
notice in writing of any such suit or proceeding
for infringement and, if so requested, full
authority to conduct the defence thereof.
(f)In the event that Ilti receives notice claiming
infringement of third party IPR in relation to
any Products and/or Services supplied or to
be supplied under an Agreement, Ilti may, in
order to limit or avoid liability, terminate the
Agreement, suspend or discontinue the supply
or performance to Customer of the Products
and/or Services or parts to which such notice
relates and Ilti will not be liable to Customer
by virtue of such termination, suspension or
discontinuation.
(g)Subject to the exclusions and limitations
set forth in section 12, the foregoing states the
entire liability of Ilti for infringement of third
party IPR in connection with the supply of
Products and/or Services.
12. LIMITATION OF LIABILITY
(a) THE LIABILITY OF ILTI AND ITS
AFFILIATES FOR ALL CLAIMS OF ANY
KIND ARISING FROM OR RELATED
TO THE PROVISION OF PRODUCTS
OR SERVICES TO CUSTOMER, OR
OTHERWISE UNDER AN AGREEMENT,
INCLUDING
ANY
INDEMNITIES,
PENALTIES OR LIQUIDATED DAMAGE
(“CLAIMS”),
WILL
BE
LIMITED
TO
A
MAXIMUM,
AGGREGATE
TOTAL
(“LIABILITY
CAP”)
OF
(I)
TWENTY
PERCENT
(20%)
OF
THE
TOTAL
PRICE PAID BY THE CUSTOMER FOR
PRODUCTS AND/OR SERVICES TO
WHICH SUCH CLAIMS RELATE, OR (II)
EUR 2,000,000, WHICHEVER IS LOWER.
FOR SERVICES THAT ARE PERFORMED
ON THE BASIS OF SPECIFIED PHASES,
TIME
PERIODS
OR
MILESTONES
(“MILESTONES”) AS MAY BE SPECIFIED
IN AN AGREEMENT, THE LIABILITY CAP
WILL FURTHER BE LIMITED TO TWENTY
PERCENT (20%) OF THE TOTAL PRICE
PER EACH SUCH MILESTONE FOR ALL
CLAIMS ARISING FROM OR RELATED
TO SUCH MILESTONE.
(b) Ilti will not under any circumstances be
liable for any lost profits, lost savings, loss
of data, loss of reputation, loss of goodwill,
indirect, incidental, punitive, special or
consequential damages, whether or not such
damages are based on tort, warranty, contract
or otherwise – even if Ilti has been advised, or
is aware, of the possibility of such damages.
(c) In order to be entitled to make a valid
Claim, Customer shall notify Ilti of any such
Claim within thirty (30) days of the date of the
event giving rise to the Claim, and any lawsuit
relating to a Claim must be filed within one (1)
year of the date of such notification. Claims
that are not brought or filed in accordance
with the preceding sentence will be null and
void.
(d) The limitations and exclusions of liability
will apply only to the extent permitted by
applicable mandatory law.
13. CONFIDENTIALITY
Customer shall maintain any technical,
commercial
and
financial
information,
including any Offer and (pricing) terms, other
data disclosed to Customer by Ilti, and any
Feedback, confidential and shall not disclose
such information to any third party and shall
not use any such information for any purpose
other than as agreed by the Parties and in
relation to the Offer and/or the Agreement.
14. EXPORT/IMPORT CONTROLS
(a) Certain transactions of Ilti may be subject to
export or import controls laws and regulations
that prohibit or restrict the (re)export or
transfer of certain items to certain countries,
entities or individuals, such as the laws and
regulations of the UN, EU and US (“Export
Regulations”). The (re)export or transfer of
Products and/or Services, as well as technical
assistance, training, investments, financing,
financial assistance, brokering and licensing
of technology, are subject in all respects to
the applicable Export Regulations and to
the jurisdiction of the relevant authorities
responsible for Export Regulations. If any such
(re-)export or transfer requires an export or
import license, or is otherwise prohibited or
restricted under Export Regulations, Ilti may,
in its sole discretion, suspend its obligations to
Customer until such license is granted or for
the duration of any restrictions or prohibitions,
or terminate (the relevant part of) the
Agreement without incurring any liability.
(b) Customer shall impose all export control
restrictions to any third party if the Products
and/or Services are (re)exported or transferred
to third parties. At the request of Ilti and if
required by applicable Export Regulations,
Customer shall inform Ilti on any (re)export
or transfer of the Products in order to comply
with Export Regulations and any other
regulatory responsibilities governing the sale
of the Products, including requirements on
the traceability of Products that may apply to
Ilti. Customer shall not provide any statement
or certification in support of restrictive trade
practices or boycotts.
15. ASSIGNMENT
(a) Customer may not assign an Agreement,
or any of its rights or obligations thereunder,
without the prior consent of Ilti.
(b) Ilti may delegate, assign, sell, novate or
subcontract in part or in whole its obligations
and rights (including receivables) under any
Agreement to any of its affiliates or any third
party without the prior consent of Customer
– and if such consent would be required
under applicable law, such consent is herewith
provided –, in which event Customer shall
cooperate with Ilti efforts, including providing
relevant information, executing documents
and making payments to accounts or third
parties as notified by Ilti.
16.
COMPLIANCE
WITH
LAWS;
ANTI-BRIBERY
(a) Customer shall at all times comply and
shall take all actions reasonably necessary to
ensure that its business partners shall comply,
with all applicable local and international laws
and regulations, including on anti-bribery and
anti-corruption and the Export Regulations
(and in particular with Italian Legislative
Decree 231/01 as amended from time to
time). Accordingly, Customer shall conduct its
business honestly and not engage in any act of
bribery or corruption.
(b) Should Ilti receive any indications about a
breach of the obligation under (a) Customer
shall cooperate and provide Ilti with all
information required to allow Ilti to verify such
indications, and if founded, section 18 will
apply.
17. HEALTH AND SAFETY
(a) The Parties shall comply with all applicable
legislation,
rules
and/or
regulations
on
the health and safety of workers and/or
employees, as well as health and safety of
the public in the vicinity. Customer shall
provide and shall procure that its employees,
agents, contractors or subcontractors provide
safe work surroundings for Personnel and
other representatives and shall take those
measures prescribed by law and any other
measures necessary for the prevention
of accidents at the site and to ensure the
