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.

Frequently Asked Questions