|
ammo 6.1.J. - Page 6
<br /> �""■� SEf5US
<br /> lemon
<br /> If to Sensus:
<br /> Sensus USA Inc.
<br /> PO Box 487
<br /> Uniontown,PA 15401
<br /> Attn:Customer Service
<br /> For all notices other than Purchase Orders or routine customer service,please copy:
<br /> Sensus USA Inc.
<br /> 8601 Six Forks Road,Suite 700
<br /> Raleigh,NC 27615
<br /> Attn:General Counsel
<br /> 5. Software.
<br /> A. Software as a Service (SaaS). Sensus shall provide Customer with Software as a Service, as defined in Exhibit A, until this
<br /> Agreement has been terminated in accordance with its terms.
<br /> B. Sensus Analytics.Sensus shall provide Customer with the proprietary data analytics software and reporting tools as set forth
<br /> in Exhibit A("Sensus Analytics")until this Agreement has been terminated in accordance with its terms.
<br /> 6. Spectrum
<br /> A. Spectrum Lease. The parties previously entered into that certain Spectrum Lease Agreement with an effective date of August
<br /> 30,2012,as amended from time to time("Spectrum Lease").The parties agree that Section 6 of the Spectrum Lease is hereby
<br /> amended and restated in its entirety as follows:"This Lease will terminate(a)two months after Utility stops transmitting with
<br /> FlexNet equipment manufactured by Sensus;upon termination,revocation or expiration of the FCC License;(c)upon Utility's
<br /> breach of this Agreement or Utility's underlying agreement with Sensus;or(d)termination of that certain Advanced Metering
<br /> Infrastructure(AMI)Agreement dated as of ,2016,by and between the Utility and Sensus.
<br /> 7. General Terms and Conditions.
<br /> A. Payment. All payment and pricing is subject to the terms in Exhibit C.
<br /> B. Limitation of Liability.
<br /> i. Sensus' aggregate liability in any and all causes of action arising under, out of or in relation to this Agreement, its
<br /> negotiation,performance,breach or termination(collectively"Causes of Action")shall not exceed the greater of;(a)the
<br /> total amount paid by Customer directly to Sensus under this Agreement;or(b)ten thousand US dollars(USD 10,000.00).
<br /> This is so whether the Causes of Action are in tort,including,without limitation,negligence or strict liability,in contract,
<br /> under statute or otherwise. As separate and independent limitations on liability, Sensus' liability shall be limited to
<br /> direct damages. Sensus shall not be liable for;(i)any indirect, incidental, special or consequential damages; nor(ii)any
<br /> revenue or profits lost by Customer or its Affiliates from any End User(s), irrespective whether such lost revenue or
<br /> profits is categorized as direct damages or otherwise; nor(iii) any In/Out Costs; nor(iv) manual meter read costs and
<br /> expenses; nor (v) damages arising from maincase or bottom plate breakage caused by freezing temperatures, water
<br /> hammer conditions,or excessive water pressure.The limitations on liability set forth in this Agreement are fundamental
<br /> inducements to Sensus entering Into this Agreement. They apply unconditionally and in all respects. They are to be
<br /> interpreted broadly so as to give Sensus the maximum protection permitted under law. The forgoing sentences
<br /> notwithstanding, the provisions of this Section 7.B.i shall not limit Sensus' indemnification obligations pursuant to
<br /> Section 7.0 of this Agreement.
<br /> C. Indemnification.
<br /> i. Sensus shall, to the fullest extent allowed by law, with respect to the performance of this Agreement, defend with
<br /> counsel acceptable to Customer, indemnify, and hold Customer, its officers, employees, agents, and volunteers
<br /> ("Indemnitees"),harmless from and against any and all Third Party Claims of personal injury or tangible property damage
<br /> that arise out of,pertain to,or relate to the negligence,recklessness,or willful misconduct of Sensus,its subcontractor,
<br /> or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. Sensus
<br /> will bear all losses,costs,damages,expense and liability of every kind,nature and description,including attorneys'fees,
<br /> experts fees,court costs and disbursements,that arise out of, pertain to,or relate to such Third Party Claims,whether
<br /> directly or indirectly("Liability"). Such obligations to defend, hold harmless and indemnify the Customer shall not apply
<br /> to the extent that such liability is caused by the gross negligence or willful misconduct of the Customer.As used in this
<br /> Agreement,"Third Party Claims"means claims brought against Customer by a Person that is not Sensus. To avoid doubt,
<br /> "Third Party Claims" does not include disputes between the Parties. It is meant to cover only third party claims by
<br /> persons or entities other than Customer or Sensus. Sensus shall have the right to select counsel in such proceedings,
<br /> subject to Customer's reasonable approval, and control such proceedings and shall be responsible for the legal costs
<br /> thereof as well as any judgment rendered therein or settlement reached therein, provided, however,that Sensus shall
<br /> not settle any claim which may affect the Customer without Customer's prior written approval.
<br /> ii. To the extent required by law, with respect to third party claims against Sensus,Sensus waives any and all rights of any
<br /> type of express or implied indemnity against the Indemnitees. However, notwithstanding the foregoing, in accordance
<br /> REV:10-07-16 J5
<br /> CONFIDENTIAL®Page 3 of 30
<br /> ATTY/AGR.2016.295/Sensus USA Inc.-AMI Software Agreement
<br />
|