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Elster AMCO Water LLC
<br /> General Terms and Conditions of Sale
<br /> (W Page 4 of 6
<br /> (b) Elster AMCO Water LLC shall have no obligation hereunder and this provision shall not apply to: (i) any
<br /> other equipment or processes including Equipment or Processes which have been modified or combined with
<br /> other-equip nme t or=process not-supplied by Elster AMCO Water LLC; (ii) any Equipment or Process su lied
<br /> according to a design, other than an Elster AMCO Water LLC design, required by Purchaser (iii) an pp
<br /> r
<br /> manufactured by the Equipment or Process; (iv) any patent issued after the date hereof;or v) any act otn
<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 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 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 /> 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 or any
<br /> associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs,
<br /> (W 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 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 agency
<br /> required in connection with the supply, erection or operation of the Equipment. This Agreement shall 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 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 /> FR722-A
<br /> Issue: 01 10/23/12
<br /> DCR12-040
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