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circumvent such precautions and illegally gain access to the Cloud Service and Customer Data. Accordingly, Itron does not guarantee
<br /> the privacy, security or authenticity of any information stored in connection with or transmitted to or from any Cloud Service.
<br /> g. Federal Communications Commission ("FCC") Licensed Facilities.
<br /> Customer acknowledges and agrees that Itron maintains the exclusive right to operate and control any Federal Communications
<br /> Commission ("FCC") licensed facilities involved in the provision of services, including the transmitter and other components that
<br /> produce RF energy (e.g. Itron Cell Control Units, Endpoints, etc.). Itron will make all decisions regarding any FCC licenses used to
<br /> implement the Cloud Services provided for by this Agreement, including the preparation and filing of applications with the FCC.
<br /> 4. Payment Terms and Taxes.
<br /> The following terms shall apply to any equipment, services or software purchased by Customer directly from Itron. For invoices not
<br /> paid within 30 days of the invoice date, in addition to other remedies to which ltron may be entitled, Itron may charge Customer a late
<br /> fee of one percent per month applied against overdue amounts. Customer shall also be responsible for collection costs associated with
<br /> late payment, if any, including reasonable attorneys' fees. No endorsement or statement on any check or payment or in any letter
<br /> accompanying a check or payment or elsewhere shall be construed as an accord or satisfaction. Unless otherwise indicated on
<br /> Attachment A, Customer shall pay all amounts owing under this Agreement in U.S. Dollars. The prices set forth on Attachment A do
<br /> not include taxes. Customer will be responsible for and pay all applicable sales, use, excise, value-added and other taxes associated
<br /> with the provision of products or services by Itron, excluding taxes on Itron's income generally. If Customer is a tax exempt entity, or
<br /> pays taxes directly to the state, Customer will provide Itron with a copy of its Tax Exemption Certificate or Direct Pay Permit, as
<br /> applicable, upon execution of this Agreement.
<br /> 5. Changes.
<br /> Changes to the products or services ordered by Customer pursuant to this Agreement, including the purchase of additional quantities or
<br /> entirely new products or services, may be made at Itron's then-current pricing by purchase order or Change Order(in a form acceptable
<br /> to Itron), provided that any such purchase order must first be accepted by Itron.
<br /> 6. Confidentiality.
<br /> With respect to any information supplied in connection with this Agreement and designated by either Party as confidential, or which the
<br /> recipient should reasonably believe to be confidential based on its subject matter or the circumstances, the recipient agrees to protect
<br /> the confidential information in a reasonable and appropriate manner, and to use and reproduce the confidential information only as
<br /> necessary to realize the benefits of or perform its obligations under this Agreement and for no other purpose. The obligations in this
<br /> Section will not apply to information that is: (i) publicly known; (ii) already known to the recipient; (iii) lawfully disclosed by a third party;
<br /> (iv) independently developed; or (v) disclosed pursuant to a legal requirement or order. The recipient may disclose the confidential
<br /> information on a need-to-know basis to its contractor's, agents and affiliates who agree to confidentiality and non-use terms that are
<br /> substantially similar to these terms. The parties acknowledge and agree that any software provided by Itron in connection with this
<br /> Agreement shall be considered the confidential information of Itron.
<br /> 7. IP Ownership
<br /> Between Itron and Customer, all patents, copyrights, mask works, trade secrets, trademarks and other proprietary rights in or related to
<br /> any product, software or deliverable provided by Itron pursuant to this Agreement are and will remain the exclusive property of Itron.
<br /> Any modification or improvement to an Itron product or deliverable that is based on Customer's feedback shall be the exclusive property
<br /> of Itron. Customer will not take any action that jeopardizes Itron's proprietary rights nor will it acquire any right in any such product,
<br /> software or deliverable or Itron's confidential information other than rights granted in this Agreement.
<br /> 8. Indemnification
<br /> a. General Indemnity.
<br /> ltron will defend Customer from any third party claim for (i) wrongful death of or bodily injury, to the extent caused by Itron's gross
<br /> negligence or intentional torts, or(ii) physical damage to tangible personal property, to the extent caused by Itron's gross negligence or
<br /> intentional torts, and will pay costs and damages awarded against Customer in any such claim that are specifically attributable to Itron's
<br /> gross negligence or intentional torts or those costs and damages agreed to by Itron in a monetary settlement of such claim.
<br /> b. Infringement Indemnity.
<br /> Itron will defend at its own expense any action brought against Customer by an unaffiliated third party to the extent that the action is
<br /> based upon a claim that any product manufactured, software licensed or service provided by Itron hereunder directly infringes any U.S.
<br /> patent (issued as of the Effective Date) or any copyright or trademark, and Itron will pay those costs and damages awarded against
<br /> Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to by Itron in a
<br /> monetary settlement of such action. The foregoing indemnity does not apply to products not manufactured by Itron or software licensed
<br /> by third parties.
<br /> c. Conditions to Infringement Indemnity.
<br /> Itron's infringement indemnity obligations under this Section are conditioned on Customer's agreement that if the applicable product or
<br /> service, becomes, or in Itron's opinion is likely to become, the subject of such a claim, Customer will permit Itron, at Itron's option and
<br /> expense, either to procure the right for Customer to continue using the affected product or service or to replace or modify the same so
<br /> that it becomes non-infringing. Such replacements or modifications will be functionally equivalent to the replaced product or service. If
<br /> the foregoing alternatives are not available on terms that are reasonable in Itron's judgment, Itron shall have the right to require
<br /> Customer to cease using the affected product or service in which case Itron will refund to Customer the depreciated value of the
<br /> affected product or service.
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