STANDARD TERMS AND CONDITIONS OF SALE FOR SERVICES
Siemens Standard Terms and Conditions of Sale for Services
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1. APPLICABLE TERMS. This Agreement governs the sale and performance of services provided by Siemens
(“Services”). The Standard Terms Addenda, these terms, any other applicable addenda, Siemens’ proposal, price quote,
purchase order or acknowledgement issued by Siemens form the parties’ final agreement (“Agreement”).
In the event of
any ambiguity or conflict between these documents, precedence shall apply in accordance with the order written in the
previous sentence.
Siemens’ proposal, offer or acceptance is conditioned on Buyer's acceptance of this Agreement. Any
additional or conflicting terms in Buyer’s request for proposal, specifications, purchase order or any other written or oral
communication are not binding on Siemens unless separately signed by Siemens. Siemens’ failure to object to Buyer’s
additional or conflicting terms does not operate as a waiver of the terms contained in this Agreement.
2. PRICING & PAYMENT. Prices and payment terms are: (i) as stated in Siemens’ proposal, or if none are stated; (ii)
Siemens’ standard rates in effect when Siemens receives Buyer’s purchase order; or if neither (i) nor (ii) apply, then Siemens’
standard rates in effect when the Services are performed.
(a) Payment - Unless stated in Siemens’ proposal, all payments are due net thirty (30) days from the invoice date in
United States Dollars.
(b) Credit Approval - All orders are subject to credit approval by Siemens. Siemens may modify, suspend or withdraw the
credit amount or payment terms at any time. If there is doubt as to Buyer’s financial condition, Siemens may withhold
performance of Services, require cash payments or advance payments, or require other satisfactory financial security
before performance of Services.
(c) Taxes - Unless stated in writing by Siemens, Siemens’ rates exclude charges for taxes, excises, fees, duties,
tariffs
charged on the importation of goods into the United States, or other government charges related to the Services. Buyer will
pay these amounts or reimburse Siemens. If Buyer claims a tax or other exemption or direct payment permit, Buyer will
provide a valid exemption certificate or permit and indemnify, defend and hold Siemens harmless from any taxes, costs and
penalties arising from same. Increases, changes (including in application), adjustments or surcharges which may be
incurred are for Buyer’s account.
(d) Late Payments– Late payments shall bear interest at an annual percentage rate of twelve percent (12%) or the highest
rate allowed by law, whichever is lower.
(e) Disputed Invoice - If Buyer disputes all or any portion of an invoice, it must first deliver written notice to Siemens of the
disputed amount and the basis for the dispute within twenty-one (21) days of receiving the invoice. Failure of Buyer to timely
notify Siemens of any dispute constitutes a waiver of Buyer’s claim. If Buyer only disputes a portion of the invoice Buyer must
pay the undisputed portion in accordance with Article 2(a). Upon resolution of the dispute in favor of Siemens, Buyer must pay
the invoice or the remainder of the invoice, plus any accrued interest on the late payment.
(f) Suspension/Termination Right - Siemens may suspend Services if an undisputed invoice is more than fifteen (15) days
past due. Siemens may terminate this Agreement if an undisputed invoice is more than thirty (30) days past due. Unless
otherwise prohibited by law, Siemens may also terminate this Agreement immediately in the event of a material adverse
change in the Buyer’s financial condition, including, but not limited to bankruptcy, insolvency, or liquidation.
3. RISK OF LOSS AND SCHEDULE. Services shall be performed at the location identified in the Agreement
(“Site”). Risk of loss of or damage to Buyer’s equipment, including “Equipment” (equipment, materials, components and
items of any kind for which Siemens is to provide Services under the Agreement), shall remain with Buyer at all times
during the performance of the Services hereunder. If Buyer procures or has procured property damage insurance
applicable to occurrences at the Site, Buyer shall obtain a waiver by the insurers of all subrogation rights against
Siemens.
Any performance or completion dates are estimated dates only. Siemens is not liable for any loss or expense incurred by
Buyer or Buyer's customers if Siemens fails to meet any such dates.
4. CANCELLATION. Except for Siemens right to terminate in accordance with Article 2 and Article 4, this
Agreement is non-cancellable during the Initial Term. Thereafter, either party may terminate this Agreement effective at
the end of the Initial Term or at the end of a renewal period by giving the other party at least sixty (60) days prior written
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notice of its intent to cancel the Agreement. Either party may terminate this Agreement for material breach of the other
party, provided that the breaching party has not remedied the breach or commenced to cure the breach within a
reasonable period, having due regard to the nature of the breach..
5. FORCE MAJEURE / DELAYS. If either party is unable to perform or suffers delay in performance, due to any
cause beyond its reasonable control (regardless of whether the cause was foreseeable), including without limitation acts
of God, inclement or unusually severe weather conditions, strikes, labor shortage or disturbance, fire, accident, war or civil
disturbance, delays of carriers, cyber-attacks, terrorist attacks, failure of normal sources of supply, or acts or inaction of
government, the time of performance will be extended by a period equal to the length of time it takes to overcome the
effect of the event. In addition, Siemens shall be entitled to be compensated by Buyer for reasonable and direct additional
costs incurred during such event. Siemens will notify Buyer within a reasonable time after becoming aware of any such
event. If there are force majeure delays exceeding 180 days in the aggregate, Siemens may terminate the Agreement.
For the avoidance of doubt, failure to pay shall not constitute a force majeure delay.
6. BUYER’S REQUIREMENTS. Siemens’ performance is contingent upon Buyer timely complying with and fulfilling
all of its obligations under this Agreement. These obligations include the Buyer supplying all necessary access to
Equipment, where applicable, and all required “Third Party Parts” (parts, components, equipment or materials provided by
Buyer or that exist in the Equipment which were not manufactured or supplied by Siemens or which were originally
supplied by Siemens and subsequently repaired, serviced or otherwise altered by any party not affiliated with Siemens),
documents, permits and approvals needed for Siemens to perform including, but not limited to, accurate technical
information and data, drawing and document approvals, and all necessary commercial documentation. Buyer shall
provide access to the Site as reasonably required by Siemens for the performance of the Services. Siemens may request
a change order for an equitable adjustment in prices and times for performance, as well as to adjust for any additional
costs or any delay resulting from the failure of Buyer, Buyer’s contractors, successors or assigns to meet these obligations
or any other obligations in this Agreement.
Buyer shall also maintain the Site in a safe condition, notify Siemens promptly of any site conditions requiring special
care, and provide Siemens with any available documents describing the quantity, nature, location and extent of such
conditions, including any Material Safety Data Sheets (MSDS) related to all hazardous materials at the Site which may
impact the Services.
7. INDEMNITY. Siemens and Buyer (each as an “Indemnitor”) shall indemnify, hold harmless and defend the other
(“Indemnitee”) from and against all third party claims alleging bodily injury, death or damage to a third party’s tangible
property, but only to the extent caused by the Indemnitor or its subcontractor’s negligent acts or omissions. If the injury or
damage is caused by the parties’ joint or contributory negligence, the loss and/or expenses shall be borne by each party
in proportion to its degree of negligence. No part of Buyer’s Site or property of Buyer (or Site Owner) is considered third
party property.
Indemnitee shall provide the Indemnitor with prompt written notice of any third party claims covered by this Article.
Indemnitor has the unrestricted right to select and hire counsel, and the exclusive right to conduct the legal defense
and/or settle the claim on the Indemnitee’s behalf. Indemnitee shall not make any admission(s) which might be prejudicial
to Indemnitor and shall not enter into a settlement without the express permission of Indemnitor.
8. WARRANTY. (a) Siemens warrants that it will perform the Services in a professional and workmanlike manner. If
the Services fail to meet the warranty standards set forth in this Article 8(a) within ninety (90) days from completion of the
Services (“Warranty Period”), and Buyer promptly reports such non-conformance to Siemens during the above mentioned
Warranty Period, Siemens shall at its own expense re-perform the relevant Services or, in Siemens’ sole discretion,
refund Buyer the pro rata portion of the fees paid to Siemens under this Agreement allocable to the nonconforming
Services (the “Warranty”).
(b) Conditions to the Warranties. The Warranties are conditioned on: (i) no repairs, modifications or alterations being
made to the Equipment” other than by Siemens or its authorized representatives; (ii) Buyer handling, using, storing,
installing, operating and maintaining the Equipment in compliance with any parameters or instructions in any
specifications attached to, or incorporated into this Agreement, (iii) or in the absence of such conditions, parameters or
instructions or to the extent not applicable, in accordance with the generally accepted industry standards applicable in the
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locale where the Services are being performed and having regard to the nature of the Services; (iv) Buyer discontinuing
use of the Equipment after it has, or should have had knowledge of any defect in the Equipment; (v) Buyer providing
Siemens with reasonable access to operating and maintenance data as requested by Siemens, (which may include
secure broadband connection). Without expense to Siemens, Buyer shall provide to Siemens and Siemens’
subcontractors and their respective employees and agents on a twenty four (24) hours a day, seven (7) days a week
basis, access to the Site, and each unit, including rights of way and easements required for safe access of such persons
and equipment, as well as, to the extent applicable, online access to the Site, including to an installed remote monitoring
system and to all units, as necessary to permit Siemens to perform the Services.; (vi) Equipment not having been
subjected to accident (including force majeure), alteration, abuse or misuse; and (vii) Buyer not being in default of any
payment obligation. Buyer shall provide, without cost to Siemens, access to the nonconformity by disassembling,
removing, replacing and reinstalling any Equipment, materials or structures to the extent necessary to permit Siemens to
perform its warranty obligations.
(c) Exclusions from Warranty Coverage. The Warranties do not apply to any Third Party Parts or Equipment or to
services not performed by Siemens pursuant to this Agreement. Siemens will have no liability to Buyer under any legal
theory for such Third Party Parts, Equipment, services or any related assignment of warranties.
(d) Warranty Notice. Buyer must provide written notice of any claims for breach of Warranty within the applicable
Warranty Period. Additionally, absent written notice within the Warranty Period, any use of the Equipment after expiration
of the Warranty Period is conclusive evidence that the Warranties have been satisfied.
(e) Remedies. Buyer's sole and exclusive remedies for breach of the Warranties are limited, at Siemens' discretion, to
re-performance of the non-conforming portion of the Services, within a reasonable time period, or refund of all or part of
the purchase price. The warranty on re-performed Services is limited to the remainder of the original Warranty Period.
Unless Siemens agrees otherwise in writing, Buyer will be responsible for any costs associated with: (i) transportation to
and from the Siemens factory or repair facility; and (ii) damage to Equipment components or parts resulting in whole or in
part from non-compliance by the Buyer with Article 8(b) or from their deteriorated condition.
(f) THE WARRANTIES IN THIS ARTICLE 8 ARE SIEMENS' SOLE AND EXCLUSIVE WARRANTIES AND ARE
SUBJECT TO THE LIMITS OF LIABILITY IN ARTICLE 9 BELOW. SIEMENS MAKES NO OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE.
9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
SIEMENS IS NOT LIABLE, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY, INDEMNITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR: LOSS OF USE, REVENUE,
SAVINGS, PROFIT, INTEREST, GOODWILL OR OPPORTUNITY, LOSS OF PRODUCTION, COSTS OF CAPITAL,
COSTS OF REPLACEMENT OR SUBSTITUTE USE OR PERFORMANCE, LOSS OF INFORMATION AND DATA,
LOSS OF POWER, VOLTAGE IRREGULARITIES OR FREQUENCY FLUCTUATION, CLAIMS ARISING FROM
BUYER'S THIRD PARTY CONTRACTS, OR FOR ANY TYPE OF INDIRECT, SPECIAL, LIQUIDATED, PUNITIVE,
EXEMPLARY, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY OTHER LOSS OR COST
OF A SIMILAR TYPE.
SIEMENS’ MAXIMUM LIABILITY UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER
BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), UNDER WARRANTY,
INDEMNITY OR OTHERWISE, SHALL NOT EXCEED THE TOTAL PRICE PAID TO SIEMENS UNDER THIS
AGREEMENT.
BUYER AGREES THAT THE EXCLUSIONS AND LIMITATIONS IN THIS ARTICLE 9 WILL PREVAIL OVER ANY
CONFLICTING TERMS AND CONDITIONS IN THIS AGREEMENT AND MUST BE GIVEN FULL FORCE AND EFFECT
WHETHER OR NOT ANY OR ALL SUCH REMEDIES ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL
PURPOSE. THESE LIMITATIONS OF LIABILITY ARE EFFECTIVE EVEN IF SIEMENS HAS BEEN ADVISED BY
BUYER OF THE POSSIBILITY OF SUCH DAMAGES. THE WAIVERS AND DISCLAIMERS OF LIABILITY, RELEASES
FROM LIABILITY AND LIMITATIONS ON LIABILITY EXPRESSED IN THIS ARTICLE 9 EXTEND TO SIEMENS’
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AFFILIATES, PARTNERS, PRINCIPALS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES,
SUBCONTRACTORS, AGENTS AND SUCCESSORS AND ASSIGNS OF SIEMENS.
FOR THE AVOIDANCE OF DOUBT, IN THE EVENT THAT PHYSICAL LOSS OR DAMAGE TO THE BUYER’S
PROPERTY RESULTS FROM THE FAILURE OF A PORTION OF THE SERVICES TO CONFORM TO ITS
RESPECTIVE WARRANTY DURING THE APPLICABLE WARRANTY PERIOD SIEMENS’ LIABILITY SHALL IN NO
CASE EXCEED SIEMENS’ OBLIGATION TO PERFORM THE REMEDIES SPECIFIED IN ARTICLE 8, AS APPLICABLE,
WHICH SIEMENS WOULD HAVE HAD TO PERFORM IF SUCH REMEDY HAD BEEN CARRIED OUT IMMEDIATELY
PRIOR TO THE OCCURRENCE OF THE PHYSICAL LOSS OR DAMAGE.
10. INTELLECTUAL PROPERTY.
Siemens will, at its own option and expense, defend or settle any suit or proceeding brought against Buyer based on an
allegation that any processes performed by Siemens in connection with the Services constitutes an infringement of any
Patent Cooperation Treaty (“PCT”) country member’s patent or misappropriation of a third party’s trade secret or copyright
in the country where the Buyer’s Site is located. Buyer will promptly give Siemens written notice of the suit or proceeding
and the authority, information, and assistance needed to defend the claims. Siemens shall have full and exclusive
authority to defend and settle such claim and will pay the damages and costs awarded against Siemens in any suit or
proceeding so defended. Buyer shall not make any admission(s) which might be prejudicial to Siemens and shall not
enter into a settlement without Siemens’ consent. If and to the extent any process performed by Siemens in connection
with the Services as a result of any suit or proceeding so defended is held to constitute infringement or its use by Buyer is
enjoined, Siemens will, at its option and expense, either: (i) procure for Buyer the right to continue using said process; (ii)
replace it with substantially equivalent non-infringing process; or (iii) modify the process so it’s use is non-infringing.
Siemens will have no duty or obligation under this Article 10 if the process is: (i) performed according to Buyer's design or
instructions and compliance therewith has caused Siemens to deviate from its normal course of performance; (ii) modified
by Buyer or its contractors after performance; or (iii) combined by Buyer or its contractors with devices, methods, systems
or processes not furnished hereunder and by reason of said design, instruction, modification, or combination a suit is
brought against Buyer. In addition, if by reason of such design, instruction, modification or combination, a suit or
proceeding is brought against Siemens, Buyer must protect Siemens in the same manner and to the same extent that
Siemens has agreed to protect Buyer under this Article 10.
THIS ARTICLE 10 IS AN EXCLUSIVE STATEMENT OF SIEMENS’ DUTIES AND BUYER’S REMEDIES RELATING TO
PATENTS, TRADE SECRETS AND COPYRIGHTS, AND DIRECT OR CONTRIBUTORY INFRINGEMENT THEREOF.
11. CONFIDENTIALITY.
(a) Both during and after the term of this Agreement, the parties will treat as confidential all information obtained from the
disclosing party and all information compiled or generated by the disclosing party under this Agreement for the receiving
party, including but not limited to business information, the quotation, the Agreement, processes and procedures, know-
how, methods and techniques employed by Siemens in connection with the Services, technical data, drawings, flow
charts, program listings, software code, and other software, plans and projections. Neither party may disclose or refer to
the Services to be performed under this Agreement in any manner that identifies the other party without advance written
permission. Except for security surveillance, the observing or recording of the Services or any part thereof, whether by
photographic, video or audio devices or in any other manner is prohibited. In the event any such prohibited observation or
recording occurs, Siemens may (in addition to any other legal or equitable rights and remedies) stop the Services until
Siemens has satisfied itself that the prohibited conduct has ceased, and in such event (a) the date of delivery or time for
performance will be extended by a period of time which Siemens determines necessary and (b) Buyer will reimburse
Siemens for Siemens’ and its Suppliers’ additional costs and expenses resulting from such delay, including but not limited
to any for demobilization or remobilization. Unless required by appropriate governmental authorities, neither party shall,
without the prior written consent of the other party, issue any public statement, press release, publicity hand-out or other
material relating to the Services performed on Buyer’s Site or Equipment. However, Siemens has the right to share
confidential information with its affiliate and subcontractors provided those recipients are subject to the same
confidentiality obligations set forth herein.
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(b) Nothing in this Agreement requires a party to treat as confidential any information which: (i) is or becomes generally
known to the public, without the fault of the receiving party; (ii) is disclosed to the receiving party, without obligation of
confidentiality, by a third party having the right to make such disclosure; (iii) was previously known to the receiving party,
without obligation of confidentiality, which fact can be demonstrated by means of documents which are in the possession
of the receiving party upon the date of this Agreement; or (iv) was independently developed by receiving party or its
representatives, as evidenced by written records, without the use of discloser’s confidential information, or (v) is required
to be disclosed by law, except to the extent eligible for special treatment under an appropriate protective order, provided
that the party required to disclose by law will promptly advise the originating party of any requirement to make such
disclosure to allow the originating party the opportunity to obtain a protective order and assist the originating party in so
doing.
(c) It is Siemens’ policy not to unlawfully or improperly receive or use confidential information, including trade secrets,
belonging to others. This policy precludes Siemens from obtaining, directly or indirectly from any employee, contractor, or
other individual rendering services to Siemens confidential information of a prior employer, client or any other person
which such employee, contractor, or individual is under an obligation not to disclose. Buyer agrees to abide by this policy.
(d) Siemens shall retain all intellectual property rights in the Services, works, Siemens’ documents, processes, Siemens’
confidential information, and any design information and/or documents made by (or on behalf of) Siemens. Upon receipt
of all fees, expenses and taxes due in respect of the relevant Services, Siemens grants to the Buyer a non-transferable,
non-exclusive, royalty-free license to copy, use and communicate Siemens’ documents for the sole purpose of operation
and maintenance of the facility upon which the Services have been performed.
12. COMPLIANCE WITH LAWS. The parties agree to comply with all applicable laws and regulations.
13. CHANGES IN SERVICES. No change will be made to the scope of Services unless Buyer and Siemens agree in
writing to the change and any resulting price, schedule or other contractual modifications. If any change to any law, rule,
regulation, order, code, standard or requirement impacts Siemens’ obligations or performance under this Agreement,
Siemens shall be entitled to a change order for an equitable adjustment in the price and time of performance.
14. NON-WAIVER. Any waiver by a party of strict compliance with this Agreement must be in writing, and any failure by
the parties to require strict compliance in one instance will not waive its right to insist on strict compliance thereafter.
15. MODIFICATION OF TERMS. These terms may only be modified by a written instrument signed by authorized
representatives of both parties.
16. ASSIGNMENT. Neither party may assign all or part of this Agreement, or any rights or obligations under this
Agreement without the prior written consent of the other; but either party may assign its rights and obligations, without
recourse or consent to, any parent, wholly owned subsidiary or affiliate or affiliate’s successor organization (whether as a
result of reorganization, restructuring or sale of substantially all of a party’s assets). However, Buyer shall not assign this
Agreement to a competitor of Siemens; an entity in litigation with Siemens; or an entity lacking the financial capability to satisfy
Buyer’s obligations. Any assignee expressly assumes the performance of any obligation assigned. Siemens may grant a
security interest in this Agreement and/or assign proceeds of this Agreement without Buyer’s consent.
17. APPLICABLE LAW AND JURISDICTION. This Agreement is are governed by and construed in accordance with
the laws of the State of Delaware, without regard to its conflict of laws principles. The application of the United Nations
Convention on Contracts for the International Sale of Goods is excluded. BOTH SIEMENS AND BUYER KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY ACTION OR PROCEEDING
RELATED IN ANY WAY TO THIS AGREEMENT. Each party agrees that claims and disputes arising out of this Agreement
must be decided exclusively in a federal or state court of competent jurisdiction located in a state in which either Buyer or
Siemens maintains its principal place of business. Each party submits to the personal jurisdiction of such courts for the
purpose of litigating any claims or disputes.
18. SEVERABILITY. If any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions
will not in any way be affected or impaired. A court may modify the invalid, illegal or unenforceable provision to reflect, as
closely as possible, the parties’ original intent.
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19. EXPORT/IMPORT COMPLIANCE. Buyer acknowledges that Siemens is required to comply with applicable
export/import laws and regulations relating to the sale, export, import, transfer, assignment, disposal and use of goods or
information provided in the performance of the Services, including any export/import license requirements. Buyer agrees that
such goods or information shall not at any time directly or indirectly be used, exported, imported, sold, transferred, assigned or
otherwise disposed of in a manner which will result in non-compliance with any export/import laws and regulations Siemens’
continuing performance hereunder is conditioned on compliance with such export/import laws and regulations at all times.
20. NUCLEAR. In the event the Services provided under the Agreement are to be performed at or in any manner in
connection with a nuclear installation, the following conditions shall apply:
A. Buyer’s Insurance
(1) If Buyer procures property damage insurance applicable to occurrences at the Site and third party non-nuclear
liability insurance, or either of such types of insurance, such insurance will name Siemens and its subcontractors as
additional insureds.
(2) Buyer shall have at its own cost, prior to the arrival of nuclear fuel at the Site, secured and shall thereafter
maintain in force protection against liability arising out of or resulting from a Nuclear Incident (as defined in the Atomic
Energy Act of 1954, as amended)
as required by the Nuclear Regulatory Commission; provided, however, that if the
nuclear liability protection system in effect on the date of the Agreement expires or is repealed, changed, or modified,
Buyer will, without cost to Siemens, maintain liability protection through government indemnity, limitation of liability,
and/or liability insurance which will not result in a material impairment of the protection afforded Siemens and its
subcontractors by such nuclear liability protection system which is in effect as of the date of the Agreement, taking into
account the availability of insurance, customary practice in the industry for plants of similar size and character, and
other relevant factors in light of then existing conditions. In any event, the protection provided pursuant to this Article
shall remain in effect until the decommissioning of the nuclear plant.
B. Waivers by Buyer: Neither Siemens, nor its subcontractors shall be liable for any loss of, damage to, or loss of
use of property or equipment wherever located, arising out of or resulting from a “Nuclear Incident.” Buyer waives and will
require its insurers to waive all rights of recovery against Siemens and its subcontractors on account of any such loss,
damage, or loss of use. All such waivers shall be full and unrestricted and in a form acceptable to Siemens.
In the event Buyer recovers damages from a third party based on losses at the Site resulting from the hazardous
properties of source, special nuclear or byproduct material (as defined in the Atomic Energy Act of 1954, as amended),
Buyer shall defend, indemnify and hold Siemens and its subcontractors harmless against claims by such third party which
are based on Buyer’s recovery of such damages. In addition, Buyer waives and will require its insurers to waive all rights
of recovery against Siemens and its subcontractors, for any and all costs or expenses arising out of or in connection with
the investigation and settlement of claims or the defense of suits for damage resulting from the nuclear energy hazard.
C. Third Party Property Protection: Buyer will indemnify and hold Siemens and its subcontractors harmless for any
liability arising out of loss of or damage to property at the Site which arises out of a Nuclear Incident. In addition, Buyer
shall obtain for the benefit of Siemens and its subcontractors, protection against liability for, arising out of, or resulting
from damage to any property or equipment located at the Site which is used or intended for use by Buyer in connection
with the operation of the nuclear power plant (including but not limited to fuel) and which is owned by parties other than
Buyer.
D. Decontamination: Buyer shall, without cost to Siemens, perform any required decontamination and health
physics necessary for, related to or resulting from Siemens performance of its contractual obligations. This includes but is
not limited to decontamination of any Siemens equipment or tools used in the performance thereof. Buyer shall provide
documentation demonstrating that components or parts being returned to Siemens after such decontamination meet the
requirements designated for unrestricted release as set forth in the United States Code of Federal Regulations, Title 10
Part 20.
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21. SURVIVAL. The Articles entitled “Intellectual Property,” “Limitation of Liability,” “Indemnity”, “Confidentiality,”
“Risk of Loss and Schedule,” “Export/Import Compliance,” and “Nuclear” survive any termination, expiration or
cancellation of this Agreement.
22. SITE SAFETY. Buyer shall comply with all federal, state, and local safety regulations and standards applicable to the
Site and to the Equipment on which Siemens will perform the Services. Siemens shall not be obligated to commence or
perform Services unless Buyer’s Site complies with all applicable safety requirements. In the event Buyer’s Site safety is non-
compliant, Siemens may suspend the Services until such time as Buyer corrects the non-compliance. To the extent Siemens
incurs additional time and expense as the result of Buyer’s non-compliance, Siemens shall be entitled to an equitable
adjustment in the schedule, price and other affected provisions of the Agreement.
23. ENVIRONMENTAL COMPLIANCE. To the extent that the performance of Services at the Site may involve the
generation of hazardous waste as such term is defined in the Resource Conservation and Recovery Act (42 U.S.C. 6901,
et seq.), the laws of the state in which the Site is located and the rules or regulations issued thereunder as are now in
effect or hereafter amended from time to time (such generated hazardous waste being herein referred to as “Hazardous
Waste”) shall apply.
Buyer shall at its expense and in accordance with all applicable federal, state and local laws, rules, regulations and
ordinances (i) furnish Siemens with containers for Hazardous Waste, (ii) designate a storage area at the Site proximate to
the Services where such containers are to be placed; and (iii) handle, store and dispose of Hazardous Waste.
Buyer shall
reimburse Siemens for additional costs, if any, incurred in complying with any such laws, regulations, rules and/or
ordinances.
Siemens shall have no responsibility or liability with regard to any Hazardous Waste which it does not know or have
reason to know will be generated or released in the performance of the Services, and Buyer shall indemnify and hold
Siemens harmless for all damages, losses, costs, liabilities, fines and penalties, (including reasonable attorneys’ fees)
related to pollution and environmental impairment arising from the Buyer’s property, the Equipment or the Services.
24. ASBESTOS
The terms “Asbestos” and “Presumed Asbestos Containing Material” shall have the meanings set forth in United States
Code of Federal Regulations Chapter 29 Section CFR 1926.1101 et seq., and “ACM” shall mean Asbestos and Asbestos
containing materials.
(1) The Buyer warrants and represents that, in any areas which may be accessed by Siemens or its Suppliers, any
ACM which is or is contained in thermal insulation or sprayed-on surfacing material is conspicuously and specifically
marked as ACM, and any other ACM is in a lawful condition.
(2) Prior to Siemens’ commencement of Services at any Site:
(a) The Buyer shall, at Buyer’s expense remove all thermal insulation, sprayed-on surfacing material, and/or
Presumed Asbestos Containing Material (any or all of the foregoing hereinafter “PACM”), and ACM which may be
disturbed during or removal of which is required for the performance of the Services; and,
(b) The Buyer shall ensure that any areas where any activities involving the abatement or removal of PACM
or ACM shall be conspicuously identified, posted and isolated, all as required by applicable law.
BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, IN PERFORMING THE SERVICES AND DISPATCHING
EMPLOYEES TO WORK AREAS, SIEMENS IS RELYING UPON THE AGREEMENTS, WARRANTIES, AND
REPRESENTATIONS MADE BY BUYER IN THIS ARTICLE 24. Without limiting its other rights and remedies, Siemens
(i) shall not be obligated to commence, and may stop any affected Services, unless and until it is fully satisfied that the
Buyer is in compliance with this Article 24, and (ii) shall be entitled to an equitable adjustment in the schedule, price and
other provisions of the Agreement resulting from Buyer’s non-compliance.
(3) In no event shall Siemens be obligated to install, disturb, handle, or remove any PACM.
(4) Siemens makes no representation that it is licensed to abate ACM.
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(5) Buyer shall defend, indemnify and hold Siemens harmless against any and all claims, demands, damages,
losses, liabilities, fines, penalties, costs or expenses, including without limitation any clean up or remedial measures
arising out of, connected with, or resulting from the Buyer’s failure to comply with the provisions of this Article 24.
25. THIRD PARTY PARTS
Buyer warrants that any and all Third Party Parts which may be the subject of any Services shall (a) be fully compatible
with the corresponding part, component, equipment or material of the Original Equipment Manufacturer (“OEM”) in terms
of form, fit, and function; (b) shall be timely provided to Siemens hereunder; and (c) shall be capable of installation in the
same manner and within the same time as the corresponding OEM part, component, equipment, or material.