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6.1.J. - Page 7 r..
<br /> sEn5us
<br /> with California Civil Code Section 1668,nothing in this Agreement shall be construed to exempt the Customer from its
<br /> own fraud, willful injury to the person or property of another, or violation of law. Nothing herein contained in this
<br /> Agreement shall be construed to require Sensus to indemnify Indemnitees against any responsibility or liability in
<br /> contravention of California Civil Code Section 2782.8.
<br /> iii. The Parties expressly agree that any reasonable payment,attorney's fee,cost or expense Customer incurs or makes to or
<br /> on behalf of an injured employee under the Customer's self-administered workers' compensation is included as a
<br /> Liability and such claim is considered as a Third-Party Claim for the purposes of this section only if such employee was
<br /> injured as a direct result of Sensus'negligence or malfunction of equipment provided by Sensus,
<br /> iv. Further, without restricting the generality of the foregoing, Sensus agrees to, at its expense, defend and/or settle any
<br /> claim made by a third party against Customer alleging that the Sensus AMI System infringes such third party's United
<br /> States patent,copyright,trademark or trade secret(an"IP Claim"),and pay those amounts finally awarded by a court of
<br /> competent jurisdiction against Customer(including damages, interest, losses, costs and expenses including attorneys'
<br /> fees)or payable pursuant to a settlement agreed to by Sensus with respect to such IP Claim, provided that Customer
<br /> provides Sensus with(i)prompt written notice of the IP Claim within thirty(30)days of receiving the IP Claim at the City
<br /> Clerk's office of Customer,except that any failure to provide this notice promptly only relieves Sensus of its responsibility
<br /> pursuant to this Section to the extent its defense is materially prejudiced by the delay, (ii)sole control over the defense
<br /> and settlement of the IP Claim, provided that Sensus will not admit fault by Customer or agree to any settlement that
<br /> would impose obligations or restrictions on Customer (other than payment of sums which would be paid by Sensus
<br /> under this Section)without Customer's prior written consent,not to be unreasonably withheld,delayed or conditioned,
<br /> and Customer;and(iii)all assistance,information and authority reasonably requested by Sensus for the defense and/or
<br /> settlement of the IP Claim. Sensus shall have no obligation with respect to any claim arising out of w)compliance by
<br /> Sensus with any custom designs, specifications, or instructions provided by Customer, provided, however, that this
<br /> exception shall not apply if Sensus incorporates Customer design requests into the AMI system it makes generally
<br /> available to customers;(x)any unauthorized use,distribution or display of the AMI System,including any use of the AMI
<br /> System other than the Permitted Use;(y)any change, modifications,or alteration to the AMI System not authorized or
<br /> made by Sensus; or (z) any combination of the AMI System with any third party hardware, software, service or
<br /> technology if such claim would not have arisen but for such combination and if such combination is made by Customer.
<br /> If Sensus,in its sole discretion,believes an IP Claim or an adverse judgment in connection with an IP Claim is likely,then
<br /> Sensus may,at its expense,(a)obtain a license from such third party claimant that allows for continued operation of the
<br /> AMI System, (b)modify or replace the AMI System so as to be non-infringing,or(c)if neither(a) nor(b) is available to
<br /> Sensus at a commercially reasonable terms,terminate this Agreement upon written notice to Customer.THIS SECTION
<br /> STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND SENSUS' ENTIRE LIABILITY TO CUSTOMER FOR ANY IP CLAIM.
<br /> v. The Parties expressly agree that this Term C "Indemnification" shall survive the expiration or termination of this
<br /> Agreement.
<br /> D. Termination. Either party may terminate this Agreement earlier if the other party commits a material breach of this
<br /> Agreement and such material breach is not cured within forty-five (45)days of written notice by the other party. Upon any
<br /> expiration or termination of this Agreement,Sensus'and Customer's obligations hereunder shall cease and the software as a
<br /> service and spectrum Lease shall immediately cease. After the first year of the Term of this Agreement, Customer may
<br /> terminate this Agreement for any reason by providing ninety(90)day's notice to Sensus.
<br /> E. Force Majeure. If either party becomes unable,either wholly or in part,by an event of Force Majeure,to fulfill its obligations
<br /> under this Agreement,the obligations affected by the event of Force Majeure will be suspended during the continuance of
<br /> that inability. The party affected by the force majeure will take reasonable steps to mitigate the Force Majeure.
<br /> F. Intellectual Property. No Intellectual Property is assigned to Customer hereunder.Sensus shall own or continue to own all
<br /> Intellectual Property used,created,and/or derived in the course of performing this Agreement. To the extent,if any,that any
<br /> ownership interest in and to such Intellectual Property does not automatically vest in Sensus by virtue of this Agreement or
<br /> otherwise,and instead vests in Customer,Customer agrees to grant and assign and hereby does grant and assign to Sensus all
<br /> right, title, and interest that Customer may have in and to such Intellectual Property. Customer agrees not to reverse
<br /> engineer any Equipment purchased or provided hereunder. For clarity,all End User data,including all meter reading,interval,
<br /> alarm,and customer specific data,Is and shall remain the property of Customer. Notwithstanding the foregoing,Sensus may
<br /> aggregate and de-identify the End User data for internal use by Sensus(the"Aggregated and Anonymous Data"),and Sensus
<br /> shall own all right,title and interest in and to such Aggregated and Anonymous Data.
<br /> i. Confidentiality. Both parties shall(and shall cause their employees and contractors to)keep all Confidential Information
<br /> strictly confidential and shall not disclose it to any third party,except to the extent reasonably required to perform and
<br /> enforce this Agreement or as required under applicable law, court order or regulation. The Confidential Information
<br /> may be transmitted orally, in writing, electronically or otherwise observed by either party, Notwithstanding the
<br /> foregoing,"Confidential Information"shall not include;(I)any information that is in the public domain other than due to
<br /> Recipient's breach of this Agreement;(ii)any information in the possession of the Recipient without restriction prior to
<br /> disclosure by the Discloser; or(iii) any information independently developed by the Recipient without reliance on the
<br /> information disclosed hereunder by the Discloser;or(iv)any information required to be disclosed by the receiving party
<br /> REV:10-07-16 JS
<br /> CONFIDENTIAL PI Page 4 of 30
<br /> ATTY/AGR.2016.295/Sensus USA Inc. -AMI Software Agreement
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