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
health and safety of Personnel at the site.
Customer shall timely inform Personnel of
required safety precautions and advise Ilti
of all applicable site-specific health, safety,
security and environmental requirements
and procedures. Ilti has the right, but not the
obligation, to, from time to time, review and
inspect applicable health, safety, security and
environmental documentation, procedures
and conditions at the site.
(b) Customer shall ensure that no hazardous
materials are present at the site. If, in the
reasonable opinion of Ilti, the health, safety,
or security of Personnel or the site is, or may
be, imperiled by security risks, terrorist acts or
threats, the presence of or threat of exposure
to hazardous materials, or unsafe working
conditions, Ilti may, in addition to other rights
or remedies available to it, evacuate some or all
Personnel from the site (with the reasonable
assistance of Customer), suspend performance
of all or any part of an Agreement, and/or
remotely perform or supervise Services (if
possible) with no further liability to Customer.
(c) Conditions at a site that differ materially
from those disclosed by Customer, or
previously unknown physical conditions at site
that differ materially from those ordinarily
encountered and generally recognized as
inherent in work of the character provided for
in the Agreement, will be deemed a Variation.
18.
BREACH;
SUSPENSION;
TERMINATION
(a) In the event of (i) a breach by Customer
of any of the provisions of the Agreement
or these Terms, including any failure to pay
any amount as and when due; or (ii) in the
reasonable opinion of Ilti, the financial position
of the Customer (or a material change thereof)
is likely to affect Customer’s ability to perform
its obligations under the Agreement; or (iii)
any proceedings in insolvency, bankruptcy
(including
reorganization),
liquidation
or
winding up are instituted by or against
Customer, whether filed or instituted by
Customer (voluntarily or involuntarily), a
trustee or receiver is appointed over Customer,
or any assignment is made for the benefit of
creditors of Customer; or (iv) Customer ceases,
or threatens to cease, to carry on business, or
(v) the control over or ownership of Customer
changes, then Ilti may declare all amounts
outstanding by Customer immediately due
and payable and may set off any amount that
Ilti (or any of its affiliates) owes to Customer
under any agreement including any advance
payments or deposits made by Customer,
against amounts due pursuant to section 18(b).
In addition, Ilti may in its sole discretion by
notice to Customer with immediate effect
suspend or cancel any performance due from
Ilti (including production, delivery, installation
and commissioning of Products, obligations
under warranty and performance of Services)
or terminate the Agreement or any part
thereof, without any liability, and/or suspend or
cancel any credit terms offered to Customer.
Ilti may only use the right to terminate an
Agreement pursuant to this section if, in
respect of an event under (i) above that is
capable of being remedied, Customer fails to
remedy the breach within fourteen (14) days,
or in respect of an event under (ii), Customer
fails to provide Ilti with a bank guarantee or
other security to the satisfaction of Ilti within
fourteen (14) days.
(b) Customer shall indemnify, defend and
hold harmless Ilti and its affiliates, and their
officers,
directors,
agents,
employees,
successors, and assigns from and against, all
losses (including loss of profits or turnover),
liabilities, costs (including legal costs and costs
incurred in relation to unfinished products)
and expenses arising out of or in connection
with any of the following events: (i) a breach
by Customer of any of the provisions or
obligations of the Agreement or these Terms,
or the occurrence of any of the other events
set out in section 18(a); (ii) any claim by third
parties for any loss, damage or injury or death
caused or alleged to be caused by the negligent
use, application, or installation of Products,
or caused by any modification of Product or
integration of Product into other products
not authorized by Ilti, by Customer or its
contractors, agents, affiliates or customers to
whom it sold Product; or (iii) non-compliance
by Customer with section 7(b), in which event
costs will include the full replacement costs of
products, systems or other equipment.
(c) Upon (early) termination or expiration
of an Agreement, (i) all rights and licenses
granted to Customer under that Agreement
will immediately cease; (ii) Customer shall
return, delete (including from all hard disks
and memory) or destroy (and a duly appointed
officer shall certify to such destruction)
all information disclosed under section 13,
including software not embedded in Products,
and all copies thereof; (iii) return to Ilti, at
the costs of Customer, any Products of which
(legal) title has not passed to Customer (in
accordance with section 7) and any other
products, systems or equipment supplied
and/or used by Ilti in the performance of
the Services; and (iv) all reasonable costs
and expenses incurred by Ilti (including a
reasonable profit) for any activities related
to work performed by Ilti prior to such
termination will be considered due, payable
and non-refundable.
(d) In the event of a suspension that lasts for
more than two (2) months, the provisions of
section 18(c)(iv) will also be applicable to any
