|
<br />wind, lightning, transportation subsequent to delivery, or
<br />force majeure.
<br />(d) Inspection of altered Equipment, repair of damage or
<br />increase in service time caused by alterations not authorized
<br />by ltron, which alterations include, but are not limited to, any
<br />deviation from Itron's physical, mechanical or electrical
<br />Equipment design.
<br />(e) Repair of damage or increase in service time caused by the
<br />conversion from one Itron model to another or the
<br />installation or removal of an Itron feature whenever any of
<br />the foregoing was performed by other than Itron or its
<br />authorized agents.
<br />(f) Service time and materials associated with the
<br />rearrangement or relocation of Equipment.
<br />(g) Service time and materials associated with Licensed
<br />Software and/or Equipment nonperformance when used with
<br />an operating system or configuration not recommended by
<br />Itron.
<br />
<br />SECTION 5. RIGHTS AND OBLIGATIONS
<br />5.1 InfrinQement Indemnitv. ltron will defend End User against a
<br />claim that Equipment or Licensed Software supplied hereunder
<br />infringes a U.S. patent, copyright, trade secret or other proprietary
<br />property right or that the Equipment's operation pursuant to a
<br />current ltron release and modification level of any Licensed
<br />Software supplied by ltron infringes a U.S. patent, copyright, trade
<br />secret or other proprietary property right, and Itron will pay
<br />resulting costs, damages and attorney fees finally awarded,
<br />provided that:
<br />(a) End User promptly notifies ltron in writing of the claim; and
<br />(b) Itron has sole control of the defense and all related
<br />settlement negotiations.
<br />ltron's obligation under this Section is conditioned on End User's
<br />agreement that if the Equipment, or the operation thereof, or the
<br />Licensed Software, becomes, or in Itron's opinion is likely to
<br />become the subject of such a claim, End User will permit ltron, at
<br />ltron's option and expense, either to procure the right for End User
<br />to continue using the Equipment or Licensed Software or to
<br />replace or modify the same so that they become noninfringing;
<br />such replacements or modifications shall be functionally
<br />equivalent to the Equipment and Licensed Software; and if the
<br />foregoing alternatives are not available on terms which are
<br />reasonable in Itron's judgement, End User will return the
<br />Equipment or Licensed Software on written request to ltron. ltron
<br />shall refund to End User the End User's then book value of such
<br />returned Equipment and Licensed Software as depreciated.
<br />Itron has no liability for any claim based upon the combination,
<br />operation or use of any Equipment or Licensed Software supplied
<br />hereunder with equipment or software not approved by ltron, or
<br />based upon End User's alteration of the Equipment or modification
<br />of any Licensed Software supplied hereunder.
<br />The foregoing states the entire obligation of Itron and End User's
<br />sole and exclusive remedy with respect to infringement of patents,
<br />copyrights, trade secrets or other proprietary property.
<br />5.2 Limitation of Liabilitv. ITRON'S AGGREGATE LIABILITY FOR
<br />DAMAGES TO END USER SHALL NOT EXCEED THE
<br />AMOUNTS PAID BY END USER FOR THE EQUIPMENT AND
<br />LICENSED SOFTWARE INVOLVED IN SUCH CLAIM FOR
<br />DAMAGES. IN NO EVENT SHALL ITRON BE LIABLE,
<br />WHETHER IN CONTRACT, NEGLIGENCE, TORT, OR ON ANY
<br />OTHER BASIS, FOR COVER OR FOR INCIDENTAL, SPECIAL,
<br />CONSEQUENTIAL (INCLUDING LOSS OF DATA, REVENUE,
<br />
<br />4/27/99
<br />
<br />SAVINGS OR PROFITS) OR EXEMPLARY DAMAGES ARISING
<br />OUT OF OR IN CONNECTION WITH THE SALE,
<br />MAINTENANCE, USE, PERFORMANCE, FAILURE OR
<br />INTERRUPTION IN THE OPERATION OF THE EQUIPMENT,
<br />LICENSED SOFTWARE OR ANY ITRON SERVICES.
<br />5.3 Service After Warranty. The Equipment and Licensed Software
<br />are eligible for service under Itron's standard service agreement.
<br />The fee for service shall be at ltron's then prevailing rates. At End
<br />User's option, the service agreement may commence on the date
<br />of expiration of the initial warranty period for the Equipment and/or
<br />Licensed Software.
<br />5.4 Confidentialitv. Except as required by law or judicial or
<br />governmental order, Itron and End User agree to hold in strictest
<br />confidence all information and material which is related to the
<br />other party's business, which is designated as proprietary and
<br />confidential, or which is related to the performance by the other
<br />party of its obligations under this Agreement. Proprietary and
<br />confidential information includes, but is not limited to the terms of
<br />this Agreement, information related to research, development,
<br />pricing, trade secrets, customer lists, salaries or business affairs
<br />of the parties to this Agreement. Proprietary and confidential
<br />information shall not include any information that is: (i) known to
<br />the other prior to the effective date of this Agreement, and can be
<br />shown to have been so known by documentary evidence; or (ii)
<br />obtained by the other without restriction as to the further
<br />disclosure thereof from a source other than the party hereto
<br />having transferred such information hereunder through no breach
<br />of confidence by such source, and can be shown to be so
<br />obtained by documentary evidence; or (iii) in the public domain
<br />when received, or thereafter enters the public domain through no
<br />fault of the other; or (iv) independently developed by the other
<br />without reference to such proprietary or confidential information,
<br />and can be shown to be so developed by documentary evidence;
<br />or (v) required to be disclosed by third party subpoena, applicable
<br />law or any governmental authority having jurisdiction, provided
<br />that the recipient party gives the disclosing party advance written
<br />notice of such required disclosure and cooperates with the
<br />disclosing party to limit the scope and use of the information to be
<br />disclosed. The parties' obligations of confidentiality under this
<br />Agreement shall survive termination of this Agreement.
<br />5.5 EQuioment or Licensed Software Modification. Itron's obligations
<br />hereunder shall be void to the extent any Equipment or Licensed
<br />Software is adversely affected or causes damage in the event End
<br />User modifies the Equipment or Licensed Software or uses any
<br />attachment, feature, or device on the Equipment, without first
<br />obtaining Itron's written approval.
<br />5.6 Law Comoliance. In performing their duties and obligations under
<br />this Agreement, the parties will comply with all applicable laws,
<br />rules and regulations of governmental authorities having
<br />jurisdiction. End User shall take all steps reasonably necessary to
<br />prevent any use, disclosure or export of the Equipment, Licensed
<br />Software and Related Documentation not authorized or permitted
<br />by law or by this Agreement.
<br />5.7 U.S. Government Restricted Riqhts. If used or acquired by the
<br />U.S. Government, the U.S. Government acknowledges and
<br />agrees that (a) the Equipment, Licensed Software and Related
<br />Documentation constitute "commercial computer software" and/or
<br />"commercial computer software documentation" for purposes of
<br />48 C.F.R. 12.212 and 48C.F.R 227.7202-3, as applicable, and
<br />(b) the U.S. Government's rights are limited to those specifically
<br />granted pursuant to this Agreement.
<br />5.8 Term and Termination.
<br />
<br />2
<br />
|