Service & Maintenance Agreement - Siemens

SIEMENS General Conditions of Service and Maintenance
SIEMENS PT E LTD (RC No. 199605166D) Revised Version
(EFFECTIVE FROM 01/07/2011)
10.6 The Customer acknowledges that any discoveries, inventions, patents,
designs or other rights arising directly or indirectly out of or in the
per for mance of t his Agreement are the property of Sie mens.
10.7 T he Custom er's obligations un de r this claus e 10 sha ll survive t he t er mination
of this Agreement.
10.8 The Customer is responsible for the security of its proprietary and other
classified information. The Customer undertakes to indemnify Siemens
against all claims brought by any party for loss or damage to suc h information
howsoev er caused.
10.9 Other than as specifically provided for in this Agreement, nothing in this
Agree ment as signs , transf ers or grant s a licence t o a Party over or in relat ion
t o pr e-existing intellec t ual proper ty rights ow ned by t he ot her Par ty, Siemens’
supplier or a third party.
10.10 Each Party agrees not to, and shall ensure that its employees, agents and
advisors do not, disclose to third parties, any confidential or proprietary
information arising or disclosed pursuant to this Agreement (including
information not generally known to the public, such as without limitation
technical, development, marketing, sales, operating, performance, cost,
know-how, business and process information or computer programming
techniques), exc ept : (i) with t he pr ior w ritt en per miss ion of t he Par t y t o wh om
such information belongs; (ii) as required by applicable law or regulation or
pursuant to a court order or direction of any government authority or
regulatory body or stock exchange; or (iii) where the information is already
known to, or obtained by independent means, or independently dev eloped, by
the recipient, or is already in the public domain through no fault of the
r ec ipient.
11 Li abili ty of Parties
11.1 The Customer shall keep Siemens, its personnel and agents fully and
eff ectiv ely ind emnified ag ainst any loss of or dam age to any property or injury
t o or death of any person caused by any negligent act or omission or breach
of this Agreement by the Customer, its employees, agents or servants, and
shall pay t o Siemens all reasonable costs, charges and losses sustained or
incurr ed by Siem e ns as a result of Siem ens bein g prev ented or delay ed f r om
performing its obligations under this Agreement by reason of any act or
omission of t he Custom er, it s em ployees, agents or serv ants.
11.2 Except as expressly provided in this Agreement, all terms, conditions,
warranties, undertakings or representations whether express, implied,
stat utory or ot herwis e relating in any way to t he Servic es or to t his Agreement
are excluded. Wit hout limit ing the generality of t he f oregoing, Siemens shall
not be under any liability to the Customer for any loss of profit (actual or
anticipated), loss of use, loss of production (including loss of hydrocarbons),
loss of contracts, loss of opportunit ies, loss of revenue, cost of capit al, costs
of replacement, loss of goodwill, loss of reputation, loss of information or
data, loss from any third party contracts, loss due to business interruption,
loss of interest, loss of power, cost of purchased or replacement power,
contractual claims from third parties or any indirect, incidental, special or
consequential losses or damages arising from or in connection with its
performance or non-performance under this Agreement and whether based
upon contr act, t ort, or any ot her legal t heory. This Clause 11.2 s hall apply to
the benefit of Siemens’ personnel, Siemens’ affiliates and Siemens’ sub-
11.3 Notwithstanding any other provision of this Agreement Siemens’ total
cum ulativ e liab il it y for any act or o mission, whet her in contr act, t ort (including
negligence or strict liability) or any other legal or equitable theory during the
Term of this Agreement shall not exceed in the aggregate, 10% of the Fee
payable under this Agreement dur ing the preceding one ( 1) y ear. T his Claus e
11. 3 shall apply t o t he benef it of Siemens’ personnel, Siemens’ af filiates and
Siemens’ sub-contractors.
12 Warranties
12.1 Siemens warrants that:
a. it will provide the Services in a proper, workmanlike and professional
manner at all times;
b. it will exercise the reasonable standards of skill, care and diligence in
the performanc e of the Ser v ices;
c. it will ret ain a s uff icient numb er of pers onnel with the expertise requ ir ed
to prov ide the Serv ices; and
d. its personnel possess the required skills and experience required to
prov ide t he Servic es.
12.2 The above warrant ies s hall not replace or s upersede the warrant y ap plicable
to t he Equipment as specif ied in any s ale and purchas e agr eeme nt.
13 For ce Majeure
13.1 Siem ens s h all not be liable to t he Cus t omer or be dee m ed t o be in brea c h of
the Agreement by reason of any delay in performing, or any failure to
perf orm, any of Siemens’ obligations in relat ion to the Serv ices, if the delay or
failure was due to force majeure. For the purposes of this clause, force
majeure shall mean any unforeseen event beyond the reasonable control of
Siem ens s uch as, but not limited to any act of God, act of gov ernment or any
authorities, hostilities between nations, war, riot, civil commotions, civil war,
insurrection, blockades, import or export regulations or embargoes,
rainstorms, national emergency, earthquake, fires, explosion, flooding,
hurricane or other except ional weather conditions or nat ural disast er, act s of
terrorism, accidents, sabotages, strikes, shortages in material or supply,
infectious diseases, epidemics, as well as travel restrictions or travel
warnings due to any s uch event s . If any delay in per forming, or any failure t o
perform the Agreement is caused by the delay of a subcontractor of Siemens,
and is beyond the control and without the fault or gross negligence of
Siem ens, Siem ens shall incur no liabilit y for such delay.
13.2 If such delay or failure cont inues for at least one (1) month, the other party
may t er minate this Agreement im mediat ely wit h w rit ten not ic e. I n suc h event,
the Customer shall pay Siemens a reasonable sum in relation to Services
alr eady rendered and costs and ex pens es inc ur red prior t o term inat ion.
14 Termi nation and/or Suspension of Services
14.1 In addition to Siemens’ right to terminate the Agreement under Clause 7.3,
Siemens shall be entitled to (i) terminate the Agreement or suspend any
further Services under the Agreement without any liability to the Customer,
and (ii) demand that the Fee, Additional Charges or balance thereof shall
become immediately due and payable notwithstanding any previous
agreement or arrangement to the contrary, and (iii) retain any security given
or monies paid by the Customer and apply the said security or monies
against the assessed loss and damages, if any, suffered by Siemens, in the
event that :
a. the C ust omer is in breach of the Agreement; or
b. the Customer makes any voluntary arrangement with its creditors or
(being an individual or firm) becomes bankrupt or (being a company)
goes int o liquidat ion (ot herwise t han for t he purposes of amalgamation
or reconstruction) or has an order made or resolution passed for such
winding-up or s hal l otherwis e bec ome insolv ent or make such propos al,
assignment or arrangement for the benefit of its creditors or have a
receiver or manager appointed over its affairs or have an application
made to court for the appointment of a judicial manager or be placed
under a judic ial management order; or
c. an encumbrancer takes possession of, or a receiver is appointed over,
any of t he property or assets of t he Cus tom er; or
d. the Customer c eases, or threatens to ceas e, to carry on busines s ; or
e. there is a change in control of the Customer which in the reasonable
opinion of Siemens adversely affects the posit ion, rights or interests of
the Customer. (For the pur pos e of this sub-claus e, c ontrol” mean s the
ability to direct the affairs of another whether by virtue of Agreement,
ownership of s hares, or ot her wise hows oe ver); or
f. in the reasonable opinion of Siemens, there occurs a material change in
the financial position of the Customer which is likely to affect the
Cus t o mer ’s ability to perform it s obligations under t he Agr eem ent; or
g. Siemens reasonably apprehends that any of the events mentioned
above is about to occur in relation to the Customer and notifies the
Cust omer acc ordingly.
14.2 Terminat ion of the Agreement by S iemens shall not discharge t he Cust omer
fr om any ex ist ing obligat ion accr ued due on or p rior to the dat e of t er minat ion.
14.3 The right s and remedies grant ed t o Siemens pursua nt t o t he Agreement are
in addition to, and shall not limit or affect, any other rights or remedies
available at law or in equity.
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