|
Elster AMCO Water LLC
<br /> General Terms and Conditions of Sale
<br /> Page 4 of 6
<br /> (b) Elster AMCO Water LLC shall have no obligation hereunder and this provision shall not apply to : (1 )
<br /> any
<br /> other equipment or processes, including Equipment or Processes which have been modified or combined with
<br /> other equipment or process not supplied by Elster AMCO Water LLC ; ( ii ) any Equipment or Process supplied
<br /> according to a design , other than an Elster AMCO Water LLC design , required by Purchaser , ( iii ) any products
<br /> manufactured by the Equipment or Process ; ( iv) any patent issued after the date hereof; or (v ) any
<br /> action
<br /> settled or otherwise terminated without the prior written consent of Elster AMCO Water LLC .
<br /> (c) If, in any such action , the Equipment Is held to constitute an Infringement, or the practice of any Process
<br /> using the Equipment is finally enjoined , Elster AMCO Water LLC shall , at Its option and its own
<br /> expense,
<br /> procure for Purchaser the right to continue using said Equipment, or modify or replace it with non - infringing
<br /> equipment or, with Purchaser' s assistance, modify the Process so that it becomes non- infringing ; or remove it
<br /> and refund the portion of the price allocable to the infringing Equipment . THE FOREGOING PARAGRAPHS STATE
<br /> THE ENTIRE LIABILITY OF Elster AMCO Water LLC AND EQUIPMENT MANUFACTURER FOR ANY PATENT
<br /> INFRINGEMENT.
<br /> (d) To the extent that said Equipment or any part thereof is modified by Purchaser, or combined by Purchaser
<br /> with equipment or processes not furnished hereunder ( except to the extent that Elster AMCO Water LLC is a
<br /> contributory infringer) or said Equipment or any part thereof is used by Purchaser to perform a process
<br /> not
<br /> furnished hereunder by Elster AMCO Water LLC or to produce an article, and by reason of said modification ,
<br /> combination , performance or production , an action is brought against Elster AMCO Water LLC , Purchaser
<br /> shall defend and Indemnify Elster AMCO Water LLC In the same manner and to the same extent that Elster
<br /> AMCO Water LLC would be obligated to indemnify Purchaser under this " Patent Indemnity" provision .
<br /> 11 . Limitation of Liability .
<br /> (a ) In no event shall Elster AMCO Water LLC , its suppliers or subcontractors be liable for special
<br />,
<br /> indirect, Incidental or consequential damages , whether in contract, warranty , tort, negligence, strict liability
<br /> or otherwise, including , but not limited to , loss of profits or revenue, loss of use of the Equipment
<br /> or any
<br /> associated equipment, cost of capital , cost of substitute equipment, facilities or services, downtime costs,
<br /> delays, and claims of customers of the Purchaser or other third parties for any damages . Elster AMCO Water
<br /> LLC's liability for any claim whether in contract, warranty, tort, negligence, strict liability, or otherwise for any
<br /> loss or damage arising out of, connected with,
<br /> ( b) or resulting from this Agreement or the performance or breach thereof, or from the design, manufacture,
<br /> sale, delivery, resale, repair, replacement, installation , technical direction of installation , inspection , operation
<br /> or use of any equipment covered by or furnished under this Agreement, or from any services rendered
<br /> in
<br /> connection therewith , shall in no case (except as provided In the section entitled " Patent Indemnity" ) exceed
<br /> one- half ( 1/2 ) of the purchase price allocable to the Equipment or part thereof or Services which gives rise to
<br /> the claim .
<br /> (c) All causes of action against Elster AMCO Water LLC arising out of or relating to this Agreement or the
<br /> performance or breach hereof shall expire unless brought within one year of the time of accrual thereof.
<br /> (d ) In no event, regardless of cause, shall Elster AMCO Water LLC be liable for penalties or penalty clauses of any
<br /> description or for Indemnification of Purchaser or others for costs, damages, or expenses arising out of or
<br /> related to the Equipment and/Services .
<br /> 12 . Laws and Regulations. Elster AMCO Water LLC does not assume any responsibility for compliance with
<br /> federal , state or local laws and regulations, except as expressly set forth herein , and compliance with any laws
<br /> and regulations relating to the operation or use of the Equipment or Software is the sole responsibility of the
<br /> Purchaser . All laws and regulations referenced herein shall be those in effect as of the Proposal date . In the
<br /> event of any subsequent revisions or changes thereto, Elster AMCO Water LLC assumes no responsibility for
<br /> compliance therewith . If Purchaser desires a modification as a result of any such change or revision , it shall be
<br /> treated as a change per Article 4 . Nothing contained herein shall be construed as Imposing responsibility or
<br /> liability upon Elster AMCO Water LLC for obtaining any permits, licenses or approvals from any
<br /> agency
<br /> required in connection with the supply, erection or operation of the Equipment . This Agreement shall
<br /> be
<br /> governed by the laws of the State of New York, but excluding the provisions of the United Nations Convention
<br /> on Contracts for the International Sale of Goods and excluding New York law with respect to conflicts of law .
<br /> Purchaser agrees that all causes of action against Elster AMCO Water LLC under this Agreement shall be
<br /> brought in the State Courts of the State of New York, or the U . S . District Court for the Southern District
<br />of
<br /> New York . If any provision hereof, partly or completely , shall be held invalid or unenforceable , such invalidity
<br /> or unenforceability shall not affect any other provision or portion hereof and these terms shall be construed
<br /> as if such invalid or unenforceable provision or portion thereof had never existed .
<br /> FR7224 Issue : 01 10/23/ 12 DCR12 -040
<br /> •
<br /> elster
<br />
|