Terms & Conditions 1/5
SiGREEN Terms of Use
1. SCOPE
1.1. Parties involved. These terms (“SiGREEN Terms” or “Terms”) govern access to and use of the SiGREEN platform including its individual features and functionalities (jointly and individually “SiGREEN” or “Platform”) by the customer that accepted these SiGREEN Terms (“Customer”). These SiGREEN Terms may be accepted in course of the electronic registration process with SiGREEN. In the registration process, Customer will be prompted to accept these Terms by clicking a button. Clicking the button, accessing, or using SiGREEN indicates that Customer has read, understood, and accepted these Terms. If Customer does not accept these Terms, Customer shall refrain from registering with and using SiGREEN. The person executing the registration process represents and warrants that (1) it has the power and authority to accept these SiGREEN Terms on behalf of the Customer and (2) it has all necessary legal authority to bind Customer to these Terms. The SiGREEN Terms incorporate by reference the Acceptable Use Policy.
1.2. Contract Formation. Siemens is only obliged to provide Customer with access to the Platform if Siemens accepts registration. Each registration, upon acceptance by us, shall be binding on the Parties.
1.3. Out of Scope. Unless agreed in any other terms or agreement between the Parties, these SiGREEN Terms do not apply to (i) the provision of any services, including software, that are either or not provided to Customer by Siemens, even if they interoperate with SiGREEN; (ii) the transmission of data or software to and from the exit of the wide area network of the data centers used by Siemens to provide the Platform; and (iii) any hardware intended for the connection of devices, systems, or other equipment to the Platform. Customer is responsible for securing and maintaining an internet connection and suitable connectivity to the Platform at Customer’s own expense.
1.4. Definitions. Capitalized terms shall have the meaning ascribed to them in Section 16 or elsewhere in these Terms.
2. PROVISION OF THE PLATFORM
2.1. Platform Standards. The Platform provides access to a user interface and a dashboard to visualize the carbon footprint of Customer’s products. It allows to interact and to share the information about the product carbon footprint with other users registered with the Platform. Siemens provides the Platform materially in accordance with the described features and functionalities. Siemens will use commercially reasonable efforts to make the Platform available to Customer subject to operational requirements including maintenance and security. The Platform is available to Customer whenever its user interface is accessible by logging on to the output of the wide area network of the data center Siemens uses to provide the Platform.
2.2. Use of Messaging Functionalities. Customer may use the Platform to send messages to other users of SiGREEN or third parties. Customer is solely responsible for any such messages and their content provided. Messages may be blocked, delayed, or prevented from being delivered by destination servers and other reasons outside of Siemens’ control, and there is no warranty that notifications will reach their intended destination in a given timeframe.
2.3. Demos; Previews. Siemens may grant Customer access to a SiGREEN environment identified as being ‘demo’, ‘test’, ‘evaluation’, ‘beta’ (“Demos”), or to features or services offered as part of SiGREEN prior to their general release that are labeled as or otherwise communicated to Customer as ‘preview’, ‘prerelease’, ‘early access’, or ‘non-general release’ or similar (“Previews”). Such Demos and Previews are provided “AS IS” without warranty, indemnity, support, or other commitments. Siemens may change, limit, suspend, or terminate any Demos and Previews at any time. Customer acknowledges that Demos and Previews are not ready for productive use and Customer will only use Demos and Previews for internal test and eval-uation purposes, and not for production or other commercial purposes. Section 9 shall remain unaf-fected.
2.4. Security. Siemens maintains a formal security program that is designed to protect against threats or hazards to the security of Customer’s Content and prevent unauthorized access to Customer’s Content. Providers of Siemens’ cloud infrastructure are required to (i) implement and maintain a security program that complies, inter alia, with ISO 27001 or a successor standard (if any) that is substantially equivalent to ISO 27001 and that is designed to provide at least the same level of protection as evidenced by the certification of the providers under ISO 27001 and (ii) have the adequacy of their security measures annually verified by independent auditors. The Platform (i) employs firewalls, antimalware and corresponding management processes designed to protect service delivery from malware and (ii) is operated under a security governance model aligned with ISO 27001. This Section contains Siemens’ entire obligation regarding the security of Customer’s Content and the Platform.
2.5. Changes to the Platform. Siemens provides the Platform in a multiuser environment and must therefore reserve the right to modify and discontinue the Platform. In particular, Siemens may degrade the functionality of the Platform or discontinue the Platform in case of (i) legal requirements; (ii) changes in the Platform imposed by Siemens’ subcontractors and/or suppliers; (iii) the termination of Siemens’ relationship with a provider of software and/or services used by us which are material for the provision of the Platform; (iv) lack of customer acceptance; and/or (v) security risks. Siemens will notify Customer of any material degradation of functionality or the discontinuation of the Platform and the effective date at least 80 days prior to such change. Siemens will not maintain prior versions of the Platform. Updates, upgrades and/or changes that will increase materially the functionalities of the Platform may be subject to charges. Siemens will notify Customer of any such charges, the applicable terms and conditions, and the effective date at least 90 days prior to such change and Customer may opt to subscribe to these functionalities or – in case the Platform is affected in its entirety – terminate the registration and access to the Platform.
2.6. Changes to these Terms. Any change to these Terms will be communicated to Customer via the Platform or by other electronic means at least two months before they take effect. The changes shall only take effect if Customer has accepted them. The changes shall be deemed to be accepted if (1) Customer has not objected to the changes before the proposed date on which they take effect and (2) the changes are necessary in order to restore conformity of the contractual provisions with a changed legal situation because one of the provisions of these Terms no longer conforms to the legal situation due to a change in law or becomes ineffective or may no longer be used due to a legally binding decision. Where Siemens intends to introduce changes to these Terms on the basis of deemed acceptance, Customer shall also be entitled to terminate its registration with SiGREEN without notice. Siemens shall inform Customer of the legal consequences in the communication regarding a change of these Terms.
3. USE OF SiGREEN
3.1. Use Rights. Siemens grants Customer a nonexclusive, nontransferable, limited right to access and use SiGREEN for Customer’s internal business purposes, solely in accordance with these SiGREEN Terms.
3.2. General Use Restrictions. Except as authorized in these Terms, Customer will not, and will not permit any person or entity to, (i) resell, transfer, sublicense, publish, loan, or lease the Platform, or use the Platform for the benefit of any third party without the prior written consent of Siemens, (ii) modify, alter, tamper with, repair, or create derivative works of the Platform, (iii) reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code of the Platform, (iv) use the Platform in a manner that could subject the Platform to any open source software license that conflicts with these Terms or that does not otherwise apply to the Platform, (v) use the Platform for the purpose of developing or enhancing any product or service that is competitive with the Platform, or (vi) remove any proprietary notices or legends contained in or affixed to the Platform. The restrictions set out in this Section do not apply to the extent they conflict with mandatory applicable law.
3.3. Reservation of Rights and Rights to Feedback. All rights, title, and interest in and to the Platform, including any knowhow and any part and improvement thereof, and all intellectual property rights in or to the foregoing shall remain wholly vested in Siemens, its business partners, and/or licensors. Customer grants Siemens a worldwide, perpetual, irrevocable, unlimited, transferable, sub-licensable, fully paid, royalty-free license to use any suggestion, recommendation, feature request, or other feedback provided by Customer or on Customer’s behalf related to the Platform.
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4. OTHER RESPONSIBILITIES
4.1. General Responsibilities. Customer shall be responsible that Customer’s use of the Platform complies with the Laws at all times. Customer shall (i) obtain, at its own expense, any rights, consents and permits from vendors of software and services (including data connectivity) used by Customer in connection with the Platform which are necessary for Siemens and its subcontractors to provide the Platform and (ii) always keep up to date any software which is necessary for the access and use of the Platform by installing updates and patches as they become available. Customer shall remain responsible for the security of its systems and of on-premises hardware and software. Prior to downloading any information or data or otherwise using the Platform, Customer will ensure that it has established appropriate security measures and virus scanners for Customer’s own protection and to prevent viruses on the Platform.
4.2. Responsibility for Users. Customer will ensure that all Users comply with Customer’s obligations under these Terms. If Customer becomes aware of any violation of its obligations under these Terms by a User or any unauthorized access to the account of a User, Customer will immediately notify Siemens and terminate the User’s access to the Platform. Customer is responsible for any act or failure to act by any User or any person using or accessing the account of a User in connection with these Terms.
4.3. Furthermore, Customer must ensure that any User will not:
· reproduce, download, frame, mirror, or create derivative works from the Platform;
· decompile, disassemble, translate, or reverse engineer or otherwise attempt to discover the source code of the Platform;
· access or use the Platform in order to build any competing product or service, copying its features or user interface;
· copy, license, sub-license, sell, resell, rent, loan, lease, transfer, assign, distribute, disclose, cause or permit publication or otherwise make available the Platform to any third party, or use the Platform on a service bureau basis;
· access or use the Platform in violation of the Acceptable Use Policy or any law or regulation;
· remove, obscure or alter any trademarks, brand names, or other proprietary notices appearing on or contained within the Third Party Service, application interfaces (APIs) or the Platform or infringe industrial property rights, copyrights or any other proprietary rights in any other way;
· use or access the Platform other than as expressly permitted by these Terms;
· harm other persons or infringe their personal rights;
· upload to the Platform any of Customer’s Content that is subject to a license that, as a condition of use, access, and/or modification of such content, requires that any Siemens’ or Siemens’ business partners’ software or service provided by Siemens and interacting with or hosted alongside Customer’s Content:
o are disclosed or distributed in source code form;
o are licensed to recipients for the purpose of making derivative works; o are licensed at no charge;
o are licensed at no charge;
o are not used for commercial purposes; or o are otherwise encumbered in any manner; or
· endanger the stability and/or integrity of the Platform.
Customer’s obligations set forth in this Section 4.3. shall apply to the benefit of Siemens’ subcontractors and suppliers.
4.4. Third Party Services. The Platform may contain Third Party Services which may be subject to additional or different terms, licenses rights or require certain notices by their providers or licensors, which Siemens must pass on to Customer as Customer’s provider or licensor and to which Customer agrees to abide (“Third Party Terms”). With respect to Customer’s use of such Third Party Services, the Third Party Terms shall always prevail. Customer acknowledges and agrees that: (i) any contractual relationship regarding the use of a Third Party Service is solely between the Customer and the provider of the Third Party Service; (ii) Siemens is under no obligation to test, validate or otherwise review Third Party Service; and (iii) Siemens does not assume any obligation or responsibility with regard to the use of Third Party Service or its support.
4.5. Credentials Customer shall: (i) carefully store and protect Customer’s credentials from unauthorized access and use; (ii) not gain access to the Platform by any means other than Customer’s user account or other means permitted by Siemens; (iii) not circumvent or disclose the authentication or security of the account, the Platform or any host or network related to the Platform; (iv) not use a false identity or credentials of another person or entity to gain access to the Platform; and (v) ensure that any credentials are used only by the individual who was granted the credentials. Siemens may change access credentials if Siemens determines in its reasonable discretion that a change is necessary.
5. CUSTOMER’S CONTENT
5.1. Customer’s Content. Customer is solely responsible for the development, content, management, use, and quality of the Content and how Customer acquires and shares Customer’s Content. This includes: (i) the transfer or copying of Customer’s Content to data centers outside Customer’s country of residence in compliance with Laws; (ii) taking steps to maintain legally required or otherwise appropriate security and protection, including backup and archiving, of Customer’s Content; (iii) any document retention or archiving obligations resulting from Laws or company policies; and (iv) ensuring that Customer’s Content can be used by Siemens and other users as permitted under these Terms without violating Laws or rights of others. Customer shall properly handle any notices and claims sent to Customer claiming that Customer’s Content violates rights of third parties or Laws. Siemens will not delete any of Customer’s Content unless such deletion is required by a governmental body, to avoid or limit the liability of Siemens or any third party, or to protect the security of Siemens’ systems. Customer agrees that Siemens will not create, maintain or implement backups of Customer’s Content and Customer is solely responsible for all backup, archiving and data retention of Customer’s Content.
5.2. Information Obligations. Customer will provide information or other materials related to Customer’s Content that Siemens reasonably request to verify Customer’s compliance with these Terms. If Customer becomes aware of any of the following actual or potential events Customer shall promptly provide Siemens with reasonable information and assistance regarding their mitigation and resolution: (i) unauthorized use of Customer’s Account; (ii) loss or theft of Customer’s Account credentials; (iii) circumstances or incidents affecting the security of the Platform; or (iv) measures by authorities or court decisions specifically relating to Customer’s use of the Platform which may affect the Platform.
5.3. Rights in Customer’s Content. Siemens will not acquire any rights, title, or interest in or to Customer’s Content, except as granted under these Terms. Subject to Section 12, Siemens and its business partners have a worldwide, non-exclusive, transferable, sub-licensable, royalty-free right to use, host, store, transmit, display, modify, and reproduce Customer’s Content for the purpose of technically providing the Platform.
6. LIMITED WARRANTY
6.1. Conformance with Platform Standards. Siemens warrants that the Platform will be provided as set forth in Section 2.1. If the Platform fails to perform as warranted hereunder, to the extent permissible under Applicable Law, Siemens’ sole obligation and Customer’s exclusive remedy will be to use commercially reasonable efforts to restore the non-conforming Platform so that it conforms to the warranty.
6.2. Although we take commercially reasonable efforts to keep the Platform free of viruses and protect it against attacks as set forth under Section 2.3, Siemens does not guarantee freedom from viruses and assume no liability for damages resulting from attacks on the Platform.
6.3. Limitations. SECTION 6.1 SETS OUT THE EXCLUSIVE WARRANTY FROM US AND IT REPLACES ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF NONINFRINGEMENT, OR ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, SIEMENS DOES NOT WARRANT THAT THE PLATFORM WILL BE FAIL-SAFE, FAULT-TOLERANT, UNINTERRUPTED, ERROR FREE, FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING CUSTOMER’S CONTENT, OR THIRD PARTY SERVICES AND THIRD PARTY’S CONTENT WILL BE SECURE, ACCURATE, COMPLETE, OR NOT OTHERWISE LOST OR DAMAGED. THE WARRANTY EXCLUDES DEMOS AND PREVIEWS. THIS SECTION 6.3. DOES NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
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8. INDEMNIFICATION
8.1.Indemnification by Siemens. Siemens will indemnify and defend, at its expense, any action brought against Customer to the extent that it is based on a claim that Customer’s use of the Platform as authorized under these Terms infringes any copyright, any trade secret, or a patent or trademark issued or registered by the United States, Japan, or a member of the European Patent Organization, and will pay all damages finally awarded against Customer by a court of competent jurisdiction or agreed in a settlement, provided that Customer gives Siemens (i) prompt written notice of the claim, (ii) all requested information and reasonable assistance related to the claim and (iii) sole authority to defend or settle the claim. Siemens will not admit liability or incur obligations on Customer’s behalf without Customer’s prior written consent, which will not be unreasonably withheld.
8.2. Injunction. If a permanent injunction is obtained against Customer’s use of the Platform due to an infringement claim, Siemens may, at its sole option, obtain for Customer the right to continue using the Platform, or replace or modify the Platform to become non-infringing. If such remedies are not reasonably available, (i) any applicable licenses to the Platform will automatically terminate; and (ii) Customer will immediately cease to use the Platform. Siemens may, in its sole discretion, provide any of the foregoing remedies to mitigate infringement prior to the issuance of an injunction.
8.3. Exceptions. Notwithstanding anything to the contrary in this Agreement, Siemens will not have any liability or indemnification obligation to Customer to the extent that an infringement claim arises out of (i) use of the Platform in combination with Customer’s Content, equipment, or products not provided by Siemens, (ii) any adjustment, modification, or configuration of the Platform not made by Siemens, (iii) instructions, assistance, or specifications provided by Customer, or (iv) the use of Demos and Previews.
8.4. Sole and Exclusive Remedy. Section 8 sets forth the sole and exclusive remedy available to Customer against Siemens for infringement of intellectual property rights under these Terms.
8.5. Indemnity by Customer. Customer will indemnify Siemens, Siemens’ suppliers and contractors, and each of their respective employees, officers, directors, and representatives from and against, and, at Siemens’ option, defend Siemens from, any claims, damages, liabilities, losses, costs and expenses (including reasonable attorney’s fees) arising from or in connection with: (i) Customer’s Content; (ii) any violation of Laws or rights of others such as but not limited to any infringement, misappropriation or violation of any copyright, patent, trade secret, trademark or other intellectual property rights of a third party by the use of the Platform by Customer or a third party to which Customer facilitates or permit access to the Platform, including Users; (iii) any breach by Customer of these Terms; (iv) any breach of the Acceptable Use Policy by Customer or a third party to which Customer facilitates or permits access to the Platform, including Users; (v) operation, combination, or use of the Platform in conjunction with any of Customer’s Content and/or in conjunction with any Third Party Service, materials, or services; (vi) Siemens compliance with designs, plans, or specifications provided to Siemens by Customer or on Customer’s behalf; and (vii) any claims by any User or any third party to which Customer facilitates or permits access to the Platform. For the avoidance of doubt, with regard to the indemnification as stipulated in Section 8.5. (i), (ii), (iii) and (iv) Siemens’ subcontractor, suppliers and contractors shall be regarded as a third party beneficiary with a direct claim against Customer.
9. LIMITATION OF LIABILITY
9.1. Limitation. UNLESS OTHERWISE PROVIDED FOR IN THESE TERMS, CUSTOMER SHALL HAVE NO CLAIM FOR DAMAGES BASED ON WHATEVER LEGAL REASON, INCLUDING INFRINGEMENT OF DUTIES ARISING IN CONNECTION WITH CONTRACT OR TORT. ANY AND ALL LIABILITY IN CONNECTION WITH THE USE OF THE PLATFORM AND FOR DEFECTS IN TITLE RELATED THERETO SHALL BE EXCLUDED.
9.2. Disclaimer. IN NO EVENT WILL SIEMENS BE LIABLE FOR ANY AMOUNTS FOR LOSS OF PRODUCTION, INTERRUP-TION OF OPERATIONS, CONTRACTUAL CLAIMS AGAINST CUSTOMER BY ANY THIRD PARTY, DAMAGE TO PROPERTY, LOSS OR CORRUPTION OF CUSTOMER’S CONTENT OR OTHER DATA, LOSS OF USE, LOSS OF INTEREST, INCOME, PROFIT OR SAVINGS, COSTS ASSOCIATED WITH DATA RECOVERY OR RE-CREATION, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAM-AGES, EVEN IF SIEMENS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, AND ALL SUCH DAMAGES ARE EXPRESSLY DISCLAIMED.
9.3. Limitation on Claims. Any claims against Siemens shall be brought no later than 12 months after the event giving rise to the respective claim. Thereafter all claims arising out of that event against Siemens shall be barred.
9.4. Scope of Limitations and Exclusions. The limitation and exclusion in this Section 9 shall not apply: (i) to the extent that liability cannot be limited or excluded according to Applicable Law; (ii) in cases of willful misconduct and gross negligence; (iii) in cases of bodily injuries or death caused by Siemens’ negligence; and (iv) in cases of fraud or fraudulent misrepresentation. In cases of gross negligence, liability is limited to the amount of foreseeable loss that would have been prevented through the exercise of due care.
9.5. Beneficiaries. Any limitations and exclusions of liability shall also apply to the benefit of any employees, officers, directors, representatives, suppliers, subcontractors, and any person used by Siemens in performing any of Siemens’ obligations.
10. SUSPENSION
Siemens may suspend or limit Users’ use of the Platform, or portion thereof, immediately if
· Siemens reasonably determines that there is a material breach of these Terms by Customer or a third party to which Customer facilitates or permits access to the Platform, including Users, or a security incident or threat to the security of the Platform in connection with Customer’s access to or use of the Platform;
· Customer or a third party to which Customer facilitates or permits access to the Platform, including Users, fail to cooperate with any reasonable investigation by Siemens or involved subcontractors and/or suppliers of a reasonable suspected material breach of these Terms, provided the suspension or restriction is necessary to prevent a serious damage; • there is an unusual spike or increase in Customer’s use of the Platform that impacts Siemens or involved subcontractors and/or suppliers’ ability to provide the Platform; as the result of any Excusing Event;
· the suspension is necessary to prevent or mitigate damage or disruption to the Platform e.g. due to missing protection mechanism of Customer against threads which is Customer’s responsibility;
· if such suspension or limitation is required by Laws, a court decision, or a request from a governmental body;
· the use of the Platform by Customer or a third party to which Customer facilitates or permits access to the Platform, including Users, subjects Siemens, Siemens’ Affiliates or any third party to liability.
Failure to comply with Sections 3, 4, and 13 of these Terms or the Acceptable Use Policy constitute material breaches. In addition, Siemens may throttle or terminate computing jobs that Siemens determines degrade the performance of the Platform. Siemens will have no liability for any damages, liabilities, or losses from a suspension.
We shall inform Customer at Siemens’ earliest convenience about any such suspension.
11. TERMINATION
11.1. Term. The term of these Terms shall be unlimited.
11.2. Termination for Convenience. Either Party may at any time terminate the agreement based on these Terms, access to, and use of the Platform with 30 days’ notice.
11.3. Termination for Cause. Either Party may terminate the agreement based on these Terms, access to, and use of the Platform for cause in the event of the other Party’s material breach if such breach remains uncured for a period of 30 days from receipt of notice specifying the breach by the other Party. Events that entitle Siemens to terminate Customer’s access to, and use of the Platform and/or the agreement based on these Terms for cause include: (i) acts or omissions that entitle Siemens to a suspension or limitation pursuant to Section 10 that remain uncured for a continuous period of 60 days; (ii) Siemens’ obligation to comply with Laws or requests of a governmental body; (iii) a change in control of Customer or Customer’s Affiliates that, according to Siemens’ reasonable opinion, adversely affects Siemens’ position, rights, or interests; and (iv) Customer’s ceasing to operate in the ordinary course, making an assignment for the benefit of creditors or similar disposition of Customer’s assets, or becoming the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.
11.4. Effect of Termination. On termination for any reason, subject to Section 11.4, Customer shall immediately cease using the Platform. Any terms and conditions of these Terms, which by their nature should survive a termination or expiry, shall survive and continue in full force and effect after such termination or expiry.
11.5. Post-Termination Phase. After termination, Siemens will remove Customer’s Content from the Platform. However, upon Customer’s request made within 30 days following the termination date, Siemens will assist Customer in transitioning certain parts of Customer’s Content to an alternate technology for additional fees and under separately agreed terms, to the same extent that Siemens makes such services generally available to all customers. Customer acknowledges that some of Customer’s Content may be retained by Siemens as part of Siemens’ disaster recovery backup of the Platform until deletion of such files in accordance with Siemens’ policies.
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12. CONFIDENTIALITY
12.1. Confidentiality Obligations. Each Party shall treat Confidential Information disclosed by the other Party or its Affiliates as confidential, only use it in connection with the Platform or as otherwise permitted under these Terms, and not disclose such Confidential Information to anyone except to those Users, employees, Affiliates, clients, business partners and advisors, and the respective employees of such Affiliates, business partners and advisors who need to know that information for implementation of these Terms and who are bound to appropriate confidentiality obligations or as explicitly specified in the respective Specification Documents.
12.2. Compelled Disclosure. Siemens will not disclose Confidential Information and/or any of Customer’s Content to any third party except (i) as instructed by Customer, (ii) as permitted in these Terms, or (iii) as required by Laws or governmental order. Should any third party (including governmental bodies) contact us with a request to disclose Confidential Information or any of Customer’s Content, Siemens will redirect such third party to request that data directly from Customer and may provide Customer’s basic contact information unless Siemens is prohibited from doing so by Laws or governmental order. If Siemens is compelled to disclose Confidential Information or any of Customer’s Content to any third party, Siemens will promptly notify Customer and provide a copy of the request unless we are prohibited from doing so by Laws or governmental order. Siemens may further disclose Confidential Information or Customer’s Content to third parties in order to report to them potential violations of Laws, or in case of a security incident and/or vulnerability in connection with Customer’s use of the Platform.
13. EXPORT CONTROL AND SANCTIONS COMPLIANCE
13.1. Export Regulations. Customer shall comply with all applicable sanctions, embargoes and (re-)export control regulations, and, in any event, with those of the European Union, the United States of America and the jurisdiction in which the Platform is made available to Customer (collectively “Export Regulations”).
13.2. Customer’s Obligation. Customer shall not, unless permitted by the Export Regulations or respective governmental licenses or approvals, (i) access or use the Platform from any location prohibited by or subject to comprehensive sanctions or license requirements according to the Export Regulations; (ii) grant access to, transfer or otherwise make available the Platform to any individual or entity designated on a sanctioned party list of the Export Regulations; (iii) use the Platform for any purpose prohibited by the Export Regulations (e.g. use in connection with armaments, nuclear technology or weapons); (iv) upload to the Platform any content unless it is non-controlled (e.g. in the EU: AL = N; in the U.S.: ECCN = N or EAR99).
13.3. Pass-through Obligation. Customer shall provide any User with all information necessary to ensure compliance with the Export Regulations. Customer shall (i) be responsible for the use of the Platform by any User; (ii) procure to pass on all of Customer’s obligations under these Terms to each User; (iii) ensure that all Users comply with Customer’s obligations under these Terms. Should Customer become aware of any violation of its obligations under these Terms, Customer shall immediately terminate the relevant User’s access to the Platform.
13.4. Information Obligation. If required to enable authorities or Siemens to conduct export control checks, Customer, upon request by Siemens, shall promptly provide Siemens with all information pertaining to User(s), the intended use and the location of use of the Platform.
13.5. Right to Withhold Performance. Siemens shall not be obliged to fulfill its obligations under these Terms if such fulfillment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions. Customer acknowledges that Siemens may be obliged under the Export Regulations to limit or suspend access by Customer and/or User(s) to the Platform.
14. DATA
14.1. Security and Data Privacy. Each party will comply with applicable data privacy laws governing the protection of personal data in relation to their respective obligations under these SiGREEN Terms. Where Siemens acts as processor of personal data provided by User, the Data Privacy Terms available at https://www.siemens.com/dpt/sw, including the technical and organizational measures described therein, apply to the use of the Platform, and are incorporated herein by reference.
14.2. Data Center Locations. Customer’s Content at rest will be stored within data centers located in the European Union.
14.3. Systems Information. Siemens and its Affiliates and their subcontractors may collect and derive information, statistics, and metrics regarding usage, operation, support, and maintenance of the Platform (collectively, “Systems Information”), and may use Systems Information to support, maintain, monitor, operate, develop, and improve its products and services or enforce its rights, provided that any Systems Information derived from Customer Content is aggregated with other information so that the original Customer Content is not identifiable. Siemens may disclose Systems Information to a Siemens-authorized solution partner solely to the extent reasonably required for such partner to fulfill its support obligations to Customer. To determine unauthorized use of Software licenses, Siemens reserves the right to embed a reporting mechanism in Software.
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15. GENERAL PROVISIONS
15.1. Assignment. These Terms will extend to and be binding upon the successors and permitted assignees of the Parties. Siemens may assign these Terms or any right granted thereunder or individual orders to any of Siemens’ Affiliates that assume Siemens obligations. Customer shall not assign the agreement under these Terms, in whole or in part, or any of the rights granted thereunder without Siemens’ prior written consent.
15.2. Force Majeure. Neither Party shall be liable for any failure or delay in its performance under these Terms due to any cause beyond its reasonable control, including acts of God, acts of any governmental body, earthquake, pandemic, epidemic, fire, flood, embargo, riot, sabotage, attacks on IT systems by third parties (e.g., hacker attacks), labor shortage or dispute, acts or omissions of civil or military authorities, war, or terrorism.
15.3. Dispute Resolution. All disputes arising out of or in connection with these Terms, including the formation, interpretation, amendment, breach, or termination thereof, shall be finally settled under the rules of arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with such rules. The seat of arbitration shall be Zurich, Switzerland. The language to be used in the arbitration shall be English. Any orders for the production or disclosure of documents shall be limited to the documents on which each Party specifically relies in its submission(s). Nothing in this Section 15.4 shall restrict the right of the Parties to seek interim relief intended to preserve the status quo or interim measures in any court of competent jurisdiction.
15.4. Applicable Law. These Terms shall be governed by and construed in accordance with the Laws of Switzerland, without giving effect to any choice-of-law rules that may require the application of the law of another jurisdiction. The UN Convention on Contracts for the International Sale of Goods shall not apply.
15.5. Notices. Siemens may provide notice to Customer under these Terms by: (i) posting a notice on Customer’s Account or (ii) sending a message to the email address provided to Siemens as part of the registration process to SiGREEN or then associated with Customer’s Account. It is Customer’s responsibility to regularly visit Customer’s Account and to keep Customer’s email address current. If Customer does not comply with such obligation or if Customer’s receipt of a notice fails because of technical issues related to equipment or services which are under Customer’s or Customer’s subcontractors’ control, notices shall be deemed to have been provided to Customer two days following the date of such notice. Notices to Siemens shall be sent to the email address provided in the Platform.
15.6. Validity and Enforceability. If any provision of these Terms is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired, and such provision will be deemed to be restated to reflect the original intentions of the Parties as nearly as possible in accordance with Applicable Law.
15.7. Entire Agreement. These Terms constitute the full and complete statement of the terms agreed between the Parties with respect to the subject matter thereof and supersedes any previous or contemporaneous agreements, understandings, or communications, whether written or verbal, relating to its subject matter. The reference to a document that refers to another document shall be deemed to also include such other document, unless otherwise stated therein. No other terms and conditions shall apply.
15.8. Independent Contractors. For all purposes, the Parties will be deemed to be independent contractors, and nothing contained in these Terms will be deemed to constitute a joint venture, partnership, employer-employee relationship or other agency relationship. Neither Party is, nor will either Party hold itself out to be, vested with any power or right to contractually bind or act on behalf of the other Party.
16. DEFINITIONS
16.1. “Account” means one or more web-based accounts, individually or collectively, enabling access to and use of the Platform through a unique URL (i.e., web-address) assigned by Siemens.
16.2. “Affiliate“ means a corporation or other legal entity, directly or indirectly, owned or controlled by, or owning or controlling or under common control with one of the Parties where “control” shall mean to have, directly or indirectly, the power to direct or cause the direction of the management and policies of a corporation or other entity.
16.3. “Confidential Information” means any information disclosed by a Party or its Affiliate to the other Party under or in connection with these Terms and which is – when disclosed – identified as “Confidential” or consists of information that, by its nature or context, is sufficient to put the receiving Party on notice of its confidential nature. In addition, any information, data, and materials obtained by Customer in connection with these Terms or Customer’s access to and use of the Platform, including the performance and availability of the Platform, information regarding Siemens’, Siemens’ business partners’, or other Platform users’ business strategies and practices, content, methodologies, trade secrets, know-how, pricing, technology, software, application programming interfaces, application programming interface signatures, product plans, and information regarding Siemens’ employees, clients, vendors, and consultants, are deemed to be Confidential Information. Confidential Information does not include information that: (i) is generally available to the public without breach of these Terms and without any wrongdoing; (ii) is or becomes available to the recipient from a source other than the Party who discloses the Confidential Information, provided that the recipient has no reason to believe that such source is itself bound by a confidentiality obligation or that such source has obtained the information through any wrongful or tortious conduct; (iii) was lawfully in the recipient’s possession prior to receipt from the other Party without a corresponding obligation of confidentiality; (iv) is independently developed by the recipient without the use of, or reference to, Confidential Information; or (v) has been released by the disclosing Party for non-confidential use.
16.4. “Customer’s Content” means any information or data that is entered, uploaded onto, stored, or used on the Platform in connection with any User’s use of the Platform under Customer’s Account.
16.5. “Excusing Event” shall mean any of:
· Customer’s acts or omissions or those of a third party for which Customer is responsible, including failure to supply accurate, complete, and timely information when requested;
· A force majeure event;
· Routine maintenance and planned downtimes of the Platform, any other scheduled downtime agreed to by the Parties or emergency or unscheduled maintenance of the Platform;
· Defects in Third Party Services or loss of license rights or restrictions imposed by third party licensors with respect to Third Party Services;
· Unavailability of necessary technology or other resources on commercially reasonable terms;
· Issues including configuration issues with any operating system, database, application, network, hardware, infrastructure, or other code or materials not provided by Siemens;
· Any act or omission of a third party that is not caused by Siemens (for example, hacking, denial of service attacks and the introduction of malware including viruses);
· Compliance with any applicable law or requests of governmental entities that adversely affects Siemens’ ability to provide the Platform.
16.6. “Laws” means any law, rule, regulation, norm, or directive including, without limitation, industry or company specific regulations, co-determination rights of the works council, data privacy, telecommunication, energy law, IT security law, export control, sanctions, and regulation pertaining to the protection of classified information.
16.7. “Party” means either Customer or Siemens, depending on the context.
16.8. “Third Party Service” shall mean open-source software, other software, and functionalities owned by third parties that Siemens uses or makes available to Customer in connection with the Platform.
16.9. “User” means an individual who has access credentials to Customer’s Account, including individuals of third parties, or who is otherwise authorized by Customer to access Customer’s Account. Access to Customer’s Account includes access to Customer’s Content, and/or the Platform.