Unisphere agrees to indemnify and hold Siemens harmless from and against all valid claims and judicial or governmental determinations that the Products as delivered by Unisphere under this Agreement infringe or misappropriate any patent right, copyright, trade secret, or trademark. Unisphere shall assume the defense of any such claim of infringement or misappropriation brought against Siemens by counsel retained at Unisphere's own expense, provided that Siemens promptly notifies Unisphere in writing of such claim or the commencement of any such suit, action, proceeding or threat covered by this Article. Unisphere shall maintain sole and exclusive control of the defense and settlement of any such claim and Siemens shall cooperate in the defense and/or settlement of such claim. In no event shall Siemens consent to any judgment or decree or do any other act in compromise of any such claim without first obtaining Unisphere's written consent, in Unisphere's sole discretion.
Unisphere undertakes to repair or at its sole option replace with a functional equivalent Unit(s) free of charge any Unit(s) returned to Unisphere which is shown to be defective for causes within its stated warranty cover. Those returned Unit(s), which in Unisphere's opinion are beyond economic repair, shall be replaced by a functional equivalent. Unisphere will dispatch the repaired Unit(s) to Siemens within twenty (20) working days of receipt of the faulty Product (or purchase order number if later). If Unisphere is unable to repair the failed Unit(s) within the stated period, Unisphere shall provide a functional equivalent. If Unisphere is unable to provide a functional equivalent, then Unisphere will telephone or fax Siemens an estimated dispatch date which shall be within a 16 week timeframe and will give a credit note of 15% of the commercial invoice value of the delayed Product. Nevertheless such credit note will not limit other rights Siemens may have resulting out of such failure of performance. Where a request for repair has been made and there has been no Unit(s) received by Unisphere within 45 Business days of the request, the original request will be closed and Siemens will need to place a new request if still required.
Unisphere shall acknowledge Siemens' purchase orders in writing within ten (10) business days after receipt otherwise such orders shall be deemed accepted. Unisphere's acknowledgment shall note any exceptions regarding matters such as the items ordered, configuration, and Product pricing. Unisphere shall also confirm the requested delivery date or offer an alternative delivery date, within the agreed upon lead times as set forth in Section 8.4 hereof. In no event shall any order be binding on Unisphere until Siemens' order and Unisphere's acknowledgment are in agreement as to the items ordered, configuration, pricing, delivery dates, and all other terms listed in Section 7.1 hereof.
Unisphere s sole obligation under the hardware and software Product warranties and the service warranties shall be to provide the remedies described in this Section. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SECTION 13.1, SECTION 13.2 AND SECTION 13.3 HEREOF, UNISPHERE DISCLAIMS ANY AND ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS WELL AS ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
Unisphere agrees to provide for product management and program management sufficient qualified employees on a full-time basis, as it deems necessary to the success of the Development Project. This will be mutually agreed by both Parties.
Unisphere may copy, modify, reprint, and repackage the Software Documentation and distribute it to End Users in conjunction with the licensing of the Licensed Software. The Software Documentation may be branded under Unisphere trademarks in accordance with Section 3.2 herein. Siemens agrees to provide Unisphere with an electronic version of the Software Documentation in both pdf and Microsoft Word formats. Software Documentation shall be distributed to Distributors and End Users only in hard copy or pdf format.
Unisphere is entitled to grant to the End-User a non-exclusive right to use the Licensed Software as integrated into the Unisphere Product provided that the End-User shall be bound by the terms and conditions set forth in the end user license agreement in accordance with Section 2.6
Unisphere shall maintain and cause all End-Users to maintain, reproduce and include in all copies of the Licensed Software all notices and legends (including copyright and trademark notices) included in the Licensed Software as received from Siemens, unless otherwise agreed in writing by the parties.
Unisphere shall in any case use all reasonable efforts to safeguard Siemens' proprietary rights and the proprietary rights of Siemens' licensor(s) with regard to the Licensed Software and the Software Documentation.
Unisphere shall answer all reasonable requests of Siemens without undue delay whether an End-User of the Licensed Software has been properly sublicensed by Unisphere or may allegedly infringe Siemens' proprietary rights.
