TERMS AND CONDITIONS FOR SOFTWARE OFFERINGS

The terms and conditions set forth herein govern your access to and use of Software Offerings (as defined below) available on Brightlayer Services (as defined below) and constitute an agreement (“This Agreement”) between Eaton Corporation, an Ohio corporation, having a place of business at 1000 Eaton Blvd., Cleveland, OH 44122 (“Eaton,” “we,” “us,” or “our”), and you, a corporation, company or other legal person that creates an Account (as defined below) (“you” or “your”).

By selecting the “I Agree” or similar option presented with these terms and conditions, or by using any of the Software Offerings, you agree to these terms and conditions. Your right to use the Software Offerings is expressly conditioned on acceptance of these terms and conditions.

1.     DEFINITIONS

1.1    In this Agreement the following expressions shall have the following meanings:

“Account” means the account you create to access and use the Software Offerings available on the Brightlayer Services.

“Account Information”  means information about you that you provide to us in connection with the creation or administration of your Account. Account Information includes and may not be limited to names, usernames, phone numbers, email addresses and billing information associated with your Account.

“Authorized Users” means individuals authorized by you to use the Account solely on your behalf, which may include, employees, temporary employees, and contractors but no other third parties without Eaton’s prior written consent.

“Brightlayer Services” means the Eaton Brightlayer internet-based platform that is designed to be used in connection with Eaton Products to provide Authorized Users with product consumption and maintenance information collected and transmitted to Eaton through Eaton Devices.  Eaton hosts and provides the infrastructure necessary to host and operate the Brightlayer Services including all hardware, software, applications, data storage, and infrastructure. The Brightlayer Services also include user manuals, online help files, technical manuals, and other materials published by Eaton which describe the Brightlayer Services and its uses, features, specifications, and/or technical requirements.

“Software Offerings”  means software products including firmware, libraries, software-as-a-service solutions, computer applications, mobile applications, cloud-based applications, and application programming interface, as well as services related to such software products.   

“Documentation” means any tutorials, user guides, developer guides, and other technical and operations manuals and specifications related to the Software Offerings.

“Eaton Devices” means internet-connected devices and sensors provided by or authorized by Eaton that collect and transmit Machine Data regarding Eaton Products to the Brightlayer Services.

“Eaton Products” means specific products provided by or authorized by Eaton that are monitored by the Eaton Devices and for which the Brightlayer Services provide product usage and consumption information.

“Intellectual Property Rights” means any ideas (whether or not patentable), inventions, discoveries, processes, works of authorship, marks, names, know-how, and any and all rights in such materials throughout the world, whether existing under statute, common law or equity, now or hereinafter recognized, including but not limited to (i) patents, designs, inventor’s certificates, utility models, copyrights, moral rights, trade secrets, mask works, trade names and marks, service marks, trade dress, domain names, confidential information and know-how; (ii) any application or right to apply for any of the rights referred to in section (i); and (iii) all renewals, extensions, and restorations, now or hereafter in force and effect for any of the rights referred to in section (i).

“Materials” means texts, graphics, images, hyperlinks, illustrations, designs, icons, photographs, documents, and other written materials related to Software Offerings.

“Machine Data”  means any digital information collected or created by the Software Offerings, including information measured or sensed by the Eaton Devices regarding the Eaton Products’ environment, usage or energy consumption, the Eaton Products’ model and serial number, health and maintenance status, and other technical or diagnostic information of the Eaton Products.  Machine Data does not include any personal identifiable information.

2.    GRANT AND SCOPE OF LICENSE

2.1    In consideration of you agreeing to abide by this Agreement as well as any end user license agreement (“EULA”), terms of service, sales/subscription agreement, service level agreement, order form and other applicable supplemental terms accompanying the Software Offerings, Eaton hereby grants to you, a limited, non-exclusive, non-transferable, non-sub-licensable, and revocable license to access and use the Software Offerings solely for your own internal business purposes.  In the event any EULA, terms of service, sales/subscription agreement, service level agreement, order form and other applicable supplemental terms applicable supplemental terms that accompany the Software Offerings conflict with any provisions of this Agreement, such applicable supplemental terms control regarding such Software Offerings.  

2.2    Subject to the limited rights expressly granted above, Eaton and its licensors or suppliers reserve all right, title and interest in and to the Software Offerings, its underlying technology and all Intellectual Property Rights therein. You acknowledge that no licenses or rights are granted to you by implication or otherwise in respect of the Software Offerings, other than those expressly set forth in this Agreement. You agree not to remove, change or obscure any Intellectual Property Rights notices incorporated in or accompanying the Software Offerings. You agree to abide by all applicable national and international laws in connection with the use of the Software Offerings, including those related to cybersecurity and piracy, data protection, privacy, international communications and the transmission of technical or personal data.

3.    Account

3.1.    To access and use the Software Offerings available on the Brightlayer Services, you may be required to have one valid Account with a username and password (“Credentials”).  You may register for such Credentials at the direction(s) provided with the Software Offerings or by an authorized Eaton representative. The date of registration shall be the effective date of this Agreement.  Unless otherwise permitted, you may create only one Account and may be required to restrict each Account to only one Authorized User at a time.

3.2   You are responsible for maintaining the confidentiality of your Credentials.  You are responsible for ensuring that your Credentials are only used by an Authorized User granted access to the Software Offerings on your behalf, and you shall not sell, transfer, or sublicense your Account or your Credentials to any other entity. You are liable for all transactions and other activities carried out under your Credentials. You agree to promptly notify Eaton if any password is lost, stolen, disclosed to an unauthorized party, or otherwise may have been compromised. You agree to immediately notify Eaton of any unauthorized use of your Account or any other breach of security in relation to the Software Offerings known to you. Eaton shall have no liability for any loss or damage arising from your failure to comply with these requirements or any other losses arising from such unauthorized access. If Eaton suspends or terminates your Account under this Agreement, you acknowledge that all information and content associated with your Account may no longer be available to you. 

3.3    Eaton is entitled, at any time and without notice or liability to you, to suspend or terminate your Account, for any legitimate reason, including, without limitation, if (i) you use false data for the purpose of creating your Account; (ii) you breach these terms and conditions; or (iii) you violate any applicable laws or regulations in the access to or use of the Software Offerings. Termination of your Account shall not waive or affect any other right or remedies to which Eaton may be entitled at law or, if applicable, in equity, with respect to any of the foregoing events.

4     Fees and auto-renewal

4.1    Where applicable, Eaton may charge you fees for access to and use of the Software Offerings as prescribed in any EULA, terms of service, sales/subscription agreement, service level agreement, or any other applicable supplemental terms that accompany such Software Offerings. You agree to pay all fees and charges, within the agreed upon billing period, including taxes, incurred through your account at the rates in effect for the billing period in which such fees and charges are incurred, including but not limited to, charges for any products or services offered for sale through the Software Offerings by Eaton (such fees, charges and taxes shall collectively be referred to as “Fees”). Eaton reserves the right to change the amount of, or basis for determining, any Fees, and to institute new Fees, effective upon notice to you or publication on the Brightlayer Services. 

4.2    Unless otherwise prescribed in any EULA, terms of service, sales/subscription agreement, service level agreement, or any other applicable supplemental terms that accompany the Software Offerings, in the event you choose subscription of the Software Offerings for a fixed term, you agree that your subscription of such Software Offerings shall automatically renew for another fixed term at the end of the then-current term, and you authorize Eaton to charge you for the then-current Fees for the renewal subscription of the Software Offerings.  You must terminate your subscription in accordance with the applicable supplemental terms before the renewal date to avoid being billed for the renewal.

4.3    Unless otherwise prescribed in any EULA, terms of service, sales/subscription agreement, service level agreement, or any other applicable supplemental terms that accompany the Software Offerings, in the event you choose subscription of the Software Offerings for a fixed term which can only be renewed by your express selection of renewal before the end of the then-current term, you agree that your failure to renew the subscription will result in automatic termination of your access to and use of the Software Offerings upon the expiration of the then-current term of your subscription.  Eaton shall not be responsible for any loss or damage that you may suffer related to or arising out of such termination of your access and use.  It is your responsibility to timely back up your data and take any other actions as necessary to ensure continuity of your operation.

5    Maintenance and updates

5.1    From time to time, Eaton may apply corrections of substantial defects, security patches, bug fixes or other maintenance to the Software Offerings (“Maintenance”). Eaton will use reasonable efforts to provide you with prior notice of scheduled Maintenance (except for emergency) and you agree to comply with any maintenance requirements notified to you.  

5.2    Eaton reserves its right to update, change, suspend or discontinue any of the Software Offerings or update, change or remove functionality or features of any of the Software Offerings from time to time.  Eaton will notify you of any material change to, suspension or discontinuation of the Software Offerings.  Appendix A includes Eaton’s General Guidelines for Software Life-Cycle Management.

5.3    By continuing to use the Software Offerings you accept Eaton’s updates and changes to the Software Offerings. You agree that your obligations are neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written comments made by us with respect to future functionality or features. Eaton is not liable to you or to any third party for any update, change, suspension, discontinuance of any Software Offerings or update, change or removal of any functionality or features of the Software Offerings.  The provisions of this Agreement shall govern any updates or changes provided by Eaton, unless such updates or changes are accompanied by, or references, a separate license agreement in which case the terms of that license agreement shall prevail.

6    TRANSFER AND ASSIGNMENT RESTRICTIONS

6.1    You agree not to sell, resell, assign, lease, sub-license, encumber or otherwise transfer your interest in this Agreement or in the Software Offerings and/or Documentation, in whole or in part, or allow any other person or entity, including any of your parent or subsidiaries or other subsidiaries of your parent, to copy, distribute, or otherwise transfer the Software Offerings without the prior written consent of Eaton.

6.2    You may transfer the Software Offerings directly to a third party only in connection with the sale of the Eaton product in which it is installed or to which the Software Offerings pertains as described by Eaton in the Documentation. In the event of such a sale, you may not keep any copies of the Software Offerings or any portion thereof and you undertake to ensure the third party to whom you transfer the Software Offerings is made aware of, agrees to and complies with all of the provisions of this Agreement. Any transfer of the Software Offerings is deemed to be a transfer with the sale of the Eaton product and is subject to the provisions of this Agreement. 

7    RESTRICTED USES

7.1    In relation to the Software Offerings, you warrant, represent and undertake that you shall:

(i)     only use the Software Offerings with the license key, if the Software Offerings is subject to the use of a license key; 

(ii)    not use the Software Offerings with any other unauthorized third party hardware or software;

(iii)    not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Software Offerings, whether in whole or in part, or any content displayed on the Software Offerings;

(iv)    not copy (except as expressly permitted by this Agreement), enhance, decompile, modify, make derivative works of, disassemble, reverse compile or reverse engineer, attempt to derive the source of code of any part of the Software Offerings;

(v)    not copy (except as expressly permitted by this Agreement), reproduce, distribute, republish, download, display, post or transmit the whole or any part of the Software Offerings in any form or by any means, except as expressly permitted in this Agreement;

(vi)     not use any part of the Software Offerings to establish any independent data files, databases, compendiums or any other reference materials except to the extent such foregoing restriction is prohibited by applicable laws or applicable open source license to, and only to, any open source software component that is incorporated into the Software Offerings (if any). Any attempt to do so is a violation of the rights of Eaton;

(vii)    not access or view Software Offerings to build a similar or competitive product or service to the Software Offerings;

(viii)    not provide false data including false names, addresses, contact details and fraudulent credit card/debit card details;

(ix)    not enter into fraudulent or deceptive interactions or transactions with Eaton (which shall include entering into interactions or transactions purportedly on behalf of a third party where you have no authority to bind that third party or you are pretending to be a third party);

(x)    not use the Software Offerings in any way that is unlawful, fraudulent or deceptive, or has any unlawful, fraudulent or deceptive purpose or effect;

(xi)    not use the Software Offerings except in conjunction with the operation of Eaton products to which the Software Offerings pertains or other products described by Eaton in the Documentation;

(xii)    not sell any products or services purchased through Eaton, without Eaton’s express permission;

(xiii)    not intercept communications transmitted by way of a telecommunications system and/or information society service;

(xiv)    not to distribute, or otherwise provide to any third party any registration code algorithms, registration codes, or encryption keys, where applicable, used by or in connection with the Software Offerings without the prior written consent of Eaton;

(xv)    not attempt to create any registration codes or passwords, where applicable, to allow unauthorized activation of the Software Offerings, nor shall you assist others in doing so;

(xvi)    not use any registration code algorithms, registration codes or encryption keys, where applicable, that have not been purchased from Eaton or an authorized representative of Eaton;

(xvii)    not execute any form of network monitoring which will intercept data not intended for you;

(xviii)    not install the Software Offerings on multiple devices or in multiple locations without purchasing a separate license from Eaton or a third party authorized by Eaton;

(xix)     use the Software Offerings at all times in compliance with all applicable laws, rules and regulations and strictly in accordance with this Agreement;

(xx)    not use the Software Offerings to transmit, or procure the sending of, any unsolicited or unauthorized advertising, promotional material, chain letters, mass mailings or any other form of similar solicitation (spam) or of any material that is illegal, offensive, abusive, indecent, defamatory, obscene, menacing or in breach of proprietary rights, confidence, privacy or any other right, or is injurious to third parties.

(xxi)    not attempt to gain unauthorized access to the Software Offerings, its facilities and/or services or any accounts, databases, computer systems, servers and networks connected to the Software Offerings and the server on which our site is stored. You shall not attack the Software Offerings via a denial-of-service attack. You will not misuse the Software Offerings by knowingly or recklessly introducing viruses, Trojans, worms, logic bombs, harmful data or other materials which is malicious or harmful;

(xxii)    not use the Software Offerings to harvest or otherwise collect by any means any program material or any information whatsoever (including without limitation email addresses or other personal details of other users);

(xxiii)    provide Eaton with accurate and complete information and acknowledge that Eaton’s ability to deliver the Software Offerings is dependent upon your cooperation, as well as the accuracy and completeness of any information you provide to Eaton. Eaton shall not be liable for any costs, expenses or liabilities resulting from your failure to cooperate or to provide such information;

(xxiv)    not access the Software Offerings through the use of any mechanism other than through the use of an authorized connection;

(xxv)    not use any automated technology such as a robot, spider or scraper, to access, scrape or data mine the Software Offerings;

(xxvi)    not modify the paper or digital copies of any Materials you print or download in any way, and you must not use any illustrations, photographs, video or audio sequences, or any graphics separately from any accompanying text;

(xxvii)    not, without Eaton’s prior express written permission, “mirror”, screen-scrape or frame by any other similar method, any Materials contained on this Software Offerings on any other server;

(xxviii)    not use any part of the Materials for commercial purposes without obtaining permission from our licensors or us. If you are in breach of these terms of use, your right to use the Software Offerings will cease immediately and you must, at our option, return or destroy any copies of the Materials you have made;

(xxix)    use reasonable endeavours to prevent any unauthorized access to, or use of, the Software Offerings and, in the event of any such unauthorized access or use, immediately without delay notify Eaton in writing by email or by phone to the relevant contact information provided in the “contact us” section below.

7.2     By breaching this Clause, you could potentially commit a criminal offence. We will report any such breach to the relevant law enforcement authorities, and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use the Software Offerings will cease immediately.

7.3     We will not be liable for any loss or damage caused by a distributed denial of service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Software Offerings or to your downloading of any material posted on it, or any website linked to it.

8    DATA PROTECTION

8.1    For the purposes of this Clause, personal data, data processor and data controller shall have the meanings given to them in the General Data Protection Regulation (the “GDPR”). You agree to comply with your obligations as a controller in respect to any processing of personal data and Eaton agrees to comply with its respective obligations under GDPR.

8.2    Eaton is the data controller in relation to any personal data which you have provided to it in order to receive its services. For information on the use of any personal data which you have provided to Eaton, you are advised to check relevant privacy notices and privacy policies made available to you by Eaton.

8.3    Eaton will at all times take all appropriate technical and organisational measures against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. Although Eaton has undertaken these measures and the requirements set out in GDPR, Eaton cannot guarantee that your personal data is secure when it is sent or transferred by unsecured means.

9    LOCATION DATA

9.1    The Software Offerings may make use of location data sent from your devices. Where applicable, you can turn off this functionality at any time by turning off the location services settings for the Software Offerings on the device. If you use the Software Offerings, you consent to us and our affiliates' and licensees' transmission, collection, retention, maintenance, processing and use of your location data and queries to provide and improve location-based and road traffic-based products and services.

9.2    You may stop us collecting such data at any time by turning off the location services settings on your device.

10    NECESSARY EQUIPMENT

10.1    Full use of the Software Offerings may be dependent upon your use of a device with Internet access and the purchase of Eaton Hardware in which it is installed or to which the Software Offerings pertains as described in the Documentation.

10.2    In order for the Software Offerings to operate fully, your device may need to be connected to certain wireless and/or communication based technologies. There may be delays, limitations and other problems inherent in the use of the Internet and wireless and/or communication based technologies. Eaton is not responsible for any delays, failures or other damages resulting from such problems and/or the costs/charges associated with internet data usage.

10.3    The maintenance and security of necessary equipment may affect the performance of the Software Offerings and it is your responsibility to ensure the equipment’s functionality is compatible and for making all arrangements necessary for you to have access to the Software Offerings.

10.4    Internet transmissions are never completely private or secure. Any message or information you send using the Software Offerings may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.

11    THIRD PARTY SOFTWARE

11.1    The Software Offerings may contain components (including open source software components) that are owned by third parties (“Third Party Licensors”) and are provided with, incorporated into, linked to, or embedded in, the Software Offerings pursuant to license arrangements between Eaton and any such third parties. Third Party Licensor components in the Software Offerings are not licensed or warranted under the terms of this Agreement, but are instead subject to any license arrangements between Eaton and any such third parties.

11.2    You agree not to modify, delete or obfuscate any copyright or other Intellectual Property Rights notices of Third Party Licensors contained in the Software Offerings.

11.3    To the extent there are any conflicts between the terms of this Agreement and any license arrangement between Eaton and any such Third Party Licensor corresponding to Third Party Licensor components or additional obligations by such Third Party Licensors that are not set forth in this Agreement, the terms of the license arrangement between Eaton and any such Third Party Licensor or the corresponding open source license will prevail.

12    OPEN SOURCE SOFTWARE

12.1    The Software Offerings may contain certain components owned by Eaton that are provided with, incorporated into, linked to, or embedded in the Software Offerings that are subject to open source licenses (“Eaton Open Source Components”). To the extent there are any conflicts between the terms of this Agreement and any open license corresponding to Eaton Open Source Components or additional obligations by any such open source license that are not set forth in this Agreement, the terms of the open source license shall prevail.

13    SUPPORT SERVICES

13.1    Eaton or its suppliers and distributors may, in their sole discretion, provide you with support services related to the Software Offerings (the “Support Services”). Use of Support Services is governed by the terms and conditions for the applicable service offering (if any), the policies and programmes described in the Documentation, and/or other Eaton-provided Materials.

13.2    Any additional supplemental Materials provided to you as part of the Support Services shall be considered part of the Software Offerings, as applicable, and subject to the provisions of this Agreement.

14    DISCLAIMER OF WARRANTY

14.1    To the extent permitted by applicable law, you expressly acknowledge and agree that use of the Software Offerings is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort of the Software Offerings is with you.

14.2    To the fullest extent permitted by applicable law, the Software Offerings, the Material and any information and any services performed or provided by or in connection with the Software Offerings are provided on an “as is” and “as available” basis, with all bugs and faults and without warranty of any kind. Eaton, its affiliates, subsidiaries, and authorized representatives hereby disclaim all warranties and conditions of any kind with respect to the Software Offerings and any services, either express, implied, statutory, or otherwise, including, but without limitation, any implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, security, completeness, timeliness, accuracy, quiet enjoyment, title, freedom from computer viruses, and of non-infringement of third party rights. Neither Eaton, nor any of its affiliates or subsidiaries, warrant that the functions or services contained in, accessed from, performed by, displayed on, linked to/from, or provided by, the Software Offerings will meet your requirements, that the operation of the Software Offerings or services will be uninterrupted, error-free, timely, secure, or that defects or errors in the Software Offerings or services will be corrected, or that the Software Offerings will be compatible with any system, or that the Software Offerings will be free from worms, viruses, malware, Trojan horses, or other harmful or disabling components.

14.3    No oral or written information or advice given by Eaton, its affiliates, subsidiaries, or any of their respective authorized representatives shall create a warranty. You assume the entire cost of any and all necessary repairs in the event you experience any loss or damage arising from the use of the Software Offerings or any related goods or services. If you are dissatisfied with the Software Offerings and/or any related goods or services, your sole and exclusive remedy is to discontinue using the Software Offerings.

15    LIMITATION OF LIABILITY

15.1    Nothing in this agreement shall exclude or limit Eaton’s liability for death or personal injury resulting from its negligence or of its officers, representatives, agents, affiliates, employees or any other liability which may not be limited or excluded under applicable law. In no event shall Eaton nor any of its officers or other representatives be liable for any loss or damages arising out of or in connection with your use, inability to use or reliance on any facilities, services, products and/or content offered through or from the Software Offerings, including, but not limited to, direct loss, loss of data, work stoppage, service interruption, computer failure, system failure, device damage or malfunction, loss of income, profit or opportunity, loss of or damage to property and claims of third parties or for any indirect or consequential loss whatsoever, even if Eaton has been advised of the possibility of such loss or damages, or such loss or damages were reasonably foreseeable.

15.2    To the fullest extent permitted by law, Eaton, its affiliates, suppliers, licensors, and any other party involved in creating, producing or delivering the Software Offerings makes no warranties, either express or implied, about the Software Offerings. The Software Offerings is provided "as is” and “as available”. 

15.3    Except for your indemnification obligations explicitly prescribed in this agreement, in no event will the aggregate liability (whether arising out of liability under breach of contract, tort (including but not limited to negligence), misrepresentation, breach of statutory duty, breach of warranty or claims by third parties arising from any breach of this agreement) of Eaton or its employees or agents to you or to any third party for damages, direct or otherwise, arising out of or in connection with this agreement exceed the lower of $100 (one hundred United States dollars) or the cost of the Software Offerings, regardless of the cause or form of action, and whether such claims are grounded in contract, tort, strict liability or any other legal theory, notwithstanding any failure of essential purpose of any limited remedy.

15.4    Nothing in this agreement shall exclude or limit your liability for any failure to pay any fees due hereunder or for any breach, misuse or infringement of Eaton’s Intellectual Property Rights.

15.5    If you use the Software Offerings for commercial, business or resale purpose we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.

15.6    Each provision of this Clause excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or the other of these provisions is held inapplicable or unenforceable and shall remain in force notwithstanding the termination of this agreement, howsoever arising.

16    INDEMNIFICATION

16.1    You agree to indemnify, defend, and hold harmless Eaton, including its officers, directors, employees, affiliates, subsidiaries, agents, licensors, authorized representatives, attorneys, business partners, and respective successors and assigns (the “Indemnified Parties”) from and against any and all claims, demands, actions, liabilities, judgments, awards, losses, damages, costs and expenses (including reasonable legal fees, costs of defence, and direct, indirect, punitive, special, individual, consequential, or exemplary damages), Eaton or any of the Indemnified Parties suffer in relation to, arising from, or from the purpose of avoiding, any claim or demand from a third party that relates to your: (a) breach or violation of this Agreement; (b) infringement, misappropriation or any violation of the rights of any other party from use of the Software Offerings in violation of this Agreement; (c) violation or non-compliance with any applicable law, rule, guidelines, acts, decrees, orders or regulations; (d) use, alteration or export of the Software Offerings (or any component thereof) in violation of this Agreement; and (e) the use of the Software Offerings by you or any person using your account.

16.2    Eaton and its affiliates reserve the right to assume the exclusive defence and control of any claims or actions subject to indemnification by you and all negotiations for its settlement or compromise, and you agree to fully cooperate with Eaton and its affiliates upon request by Eaton.

17    AMENDMENTS TO THIS AGREEMENT

17.1    Eaton reserves the right to amend, modify, update or substitute any of the provisions of this Agreement at any time. Any such amendment, modification, update or substitution shall be notified to you either by email or when you next login to your Software Offerings account or published on our website, at Eaton’s discretion. You have the right to withdraw from this Agreement if you do not accept any amendments, modifications, updates or substitution of any of the provisions of this Agreement and in such an event you must cease all access and use of the Software Offerings immediately. By continuing to use the Software Offerings after Eaton posts or otherwise notifies you of any changes, you accept and agree to the terms and conditions, as modified. 

18    FOR AUTHORIZED PARTIES IN CALIFORNIA

18.1    In compliance with California Civil Code §1789.3, if you reside in California you have the right to contact Eaton with any complaints or to seek additional information. You may email Eaton at dataprotection@eaton.com.

18.2    If you reside in California and have any questions or complaints about the use of the Eaton provided Software Offerings you may also contact: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs through writing at 400 R Street, Suite 1080, Sacramento, CA 95814, or by telephone at (916) 445-1254 or (800) 952-5210. Hearing impaired persons may call (916) 928-1227 or (800) 326-2297 via TTY device. For further details, please visit https://www.dca.ca.gov/about_us/contactus.shtml. 

18.3    You acknowledge and agree that this Clause shall only apply to you if you are resident in California.

19    ENFORCEMENT RIGHTS

19.1    Eaton are not obligated to monitor the access or use of the Software Offerings, but Eaton reserves the right to do so for the purpose of operating the Software Offerings, to ensure compliance with these terms, and to comply with applicable law or other legal requirements. Eaton may consult with and disclose unlawful conduct to law enforcement authorities; and pursuant to valid legal process, Eaton may cooperate with law enforcement authorities as part of an investigation and/or to prosecute users who violate the law. In addition to any of its other rights or remedies, Eaton reserves the right to suspend or terminate your access to all or a portion of your Software Offerings account, without any liability, if Eaton reasonably suspects that your use of the Software Offerings is harming or threatening to harm Eaton’s systems, or in Eaton’s reasonable opinion you have violated your responsibilities. Eaton reserves the right to investigate any violation of these terms and any conduct that affects the Software Offerings.

20    CONFIDENTIAL INFORMATION

20.1    All information provided via the Software Offerings is Eaton’s confidential information. You agree to protect Eaton’s confidential information, using the same degree of care used to protect your own confidential or proprietary information, but in any case, using no less than a reasonable degree of care.

20.2    You agree to only use Eaton’s confidential information for the purposes of obtaining the benefit set out in this Agreement and for no other purpose. You agree not to use or disclose Eaton’s confidential information without the prior written consent of Eaton, except to share it with your employees who have a need to know the information and are bound by a duty of confidentiality covering the information that is at least as restrictive as the obligations in this Agreement. You agree not to otherwise disclose such information to any third party without the prior written consent of Eaton.  You shall be liable to Eaton for any breach of the confidentiality obligations in this Clause of this Agreement by your employees.

20.3    Except for personally identifiable information/personal data, the use and disclosure of which is addressed in the Privacy Statement for the Software Offerings, any and all information and content provided by you to Eaton is provided on a non-proprietary and non-confidential basis, regardless of whether the information or content is marked or otherwise identified as confidential or proprietary. You agree that Eaton has a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display any provided information or content for the purpose of operating and/or marketing the services or any related services rendered by Eaton. This license includes any right of publicity rights that may be present in the provided information or content.

20.4    The provisions of this Clause shall survive the expiration or termination of this Agreement.

21    INTELLECTUAL PROPERTY RIGHTS

21.1    This Agreement does not transfer any Intellectual Property Rights from Eaton to you. Except for the express licenses granted herein, all right, title and interest (including Intellectual Property Rights) in and to any intellectual property owned, created or independently developed by Eaton, including, but not limited to, the Software Offerings and any derivative work, customisation, modification or enhancement thereof (including all Intellectual Property Rights in any of the foregoing), whether developed prior to, during, or after this Agreement, will remain solely with Eaton and its licensors. Eaton grants no implied licenses hereunder.

21.2    You may provide suggestions, comments or other feedback (“Feedback”) relating to the Software Offerings. Your Feedback, even if designated as confidential, shall not, absent a separate written agreement, create any confidentiality obligation for Eaton. Eaton shall be free to use, disclose, reproduce, license or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

21.3    You may print off one copy, and may download extracts, of any page(s) of the Materials solely for internal business purposes only. Any paper or digital copies of any Materials which you have printed off or downloaded in any way must not be modified, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.

21.4    Unless otherwise noted, all Materials are copyrights, trademarks, trade dress and/or other intellectual properties owned by, controlled by or licensed to Eaton or third parties (hereinafter, the “Third-Party Providers”).

21.5    Except as stated herein, and to the extent permitted by law, none of the Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior express written permission of Eaton or the Third-Party Provider.

21.6    Any use of these Materials on any other website or networked computer environment for any purpose is prohibited. Any unauthorized use of any Materials contained on this Software Offerings may violate copyright, trademark, and other laws, including but not limited to laws of privacy and publicity, and may result in severe civil and criminal penalties.

21.7    You hereby agree that Machine Data may be collected, used, transmitted to Eaton, and that Eaton may process and maintain Machine Data for any purpose, and process, for example to support, improve and enhance the Eaton Products and our other products and services.  Furthermore, you agree to take necessary steps to grant Eaton the rights and permissions granted herein.  To the extent you own any Intellectual Property Rights in and to the Machine Data, you hereby grants Eaton a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, transferable and sublicensable right to use, disclose, and exploit the Machine Data for any purpose, including publication and licensing to third parties, as long Eaton does not do so in a manner that reveals your identity to unaffiliated third parties (except that transfers to service providers who process Machine Data on Eaton’s behalf under a duty of confidentiality are permitted). 

22    TERMINATION OR SUSPENSION

22.1    This Agreement and the license granted hereunder, shall come into force on the creation of your Account and shall continue in full force and effect unless this Agreement is terminated in accordance with its terms.

22.2    Eaton reserves the right, in its sole discretion and without notice to you, to suspend, terminate, modify or delete an account or access to the Software Offerings or parts thereof, if you are, or Eaton reasonably suspects that you are, failing to comply with any of the provisions of this Agreement or for any actual or suspected illegal or improper use of the Software Offerings. If you use multiple accounts, if Eaton does take action against you, you may have action taken against all your accounts.

22.3    For the avoidance of doubt, any wilful unauthorized use, copying, modification, reverse engineering, disclosure, distribution or sublicensing of the Intellectual Property Rights in the Software Offerings or any related methods, algorithms, techniques or processes by you, your employees, agents, representatives, officers or directors will be deemed a material breach of this Agreement that cannot be cured, and termination may be immediate.

22.4    Upon termination for any reason:

(i)    all rights and licenses granted to you under this Agreement shall cease;

(ii)    you must cease all activities authorized by this Agreement, including your use of the Software Offerings;

(iii)    you must immediately delete, remove and cease access to the Software Offerings from all devices on which the Software Offerings has been installed and all copies of the Software Offerings then in your possession, custody or control. Eaton may also require that you provide it with evidence of compliance with this provision;

(iv)    you must immediately return or destroy all confidential information of Eaton in your possession, provided that you shall not be required to delete Eaton’s confidential information that is and remains stored solely on backup storage pursuant to your standard backup retention procedures if only persons of advanced information technology knowledge and ability would be able to locate and access such information (but such information shall nonetheless remain subject to confidentiality obligations contained herein);

(v)    we may remotely access your devices and remove the Software Offerings from them and cease providing you with access to the Software Offerings.

23    LINKS

23.1    The Software Offerings and its Documentation may contain links to third party websites, services and/or display advertisements for third parties (together, “Third Party Links and Ads”). Such Third Party Links and Ads are not under Eaton’s control. Eaton disclaims all liability and responsibility for any Third Party Links and Ads and you acknowledge and agree that Eaton is not responsible or liable for: (a) the availability or accuracy of such Third Party Links and Ads; or (b) the contents, products or services on or available from such Third Party Links and Ads. Your use of Third Party Links and Ads is at your own risk and is subject to the terms and conditions of the applicable third party. Eaton provides Third Party Links and Ads for your convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Links and Ads. You will need to make your own independent judgement about whether to use any such independent sites, including whether to buy any products or services offered by them.

24    REPRESENTATIONS, WARRANTIES, COVENANTS AND DISCLAIMERS

24.1    You undertake, represent and warrant that:

(i)    you shall comply, at your own expense, with all applicable present or future laws, statutes, instruments, regulations, orders, directives, enactments, including any amendment, extension or replacement thereof which is in force from time to time and which in any way relates to this Agreement and/or the provision of the Software Offerings or results from your obligations under this Agreement. Without limiting the foregoing, you shall comply with all contracting and procurement regulations associated with the Software Offerings;

(ii)    you have full power and authority to enter into this Agreement;

(iii)    you shall conduct your business in a manner that reflects favourably at all times on the Software Offerings and the name and goodwill of Eaton;

(iv)    you shall make no representations, warranties, or guarantees on behalf of Eaton;

(v)    you shall from refrain from amending or varying this Agreement.

24.2    Eaton makes no representations or warranties of any kind regarding the Software Offerings, the Material, information or any other matter, either express or implied, including, but not limited to implied warranties of fitness for a particular purpose, merchantability, title, accuracy/freedom from error, non-infringement or otherwise. You are not authorized to make any warranty commitment on Eaton’s behalf, whether written or oral. You understand that the Software Offerings and its Documentation may include hyperlinks to other websites or content or resources. Eaton has no control over any websites or resources which are provided by companies or persons other than Eaton. You acknowledge and agree that Eaton is not responsible whatsoever for any harm suffered by you on or in any way due to any third party websites or resources, even where they are accessed from or referred or linked to such sites by the Software Offerings or its Documentation. You acknowledge and agree that Eaton is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such websites or resources. You acknowledge and agree that Eaton is not liable for any loss or damage which may be incurred as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.

25    FORCE MAJEURE

25.1    Notwithstanding anything else contained in this Agreement, Eaton shall not be liable for any delay in providing the Software Offerings or support for the Software Offerings if such delay arises from or is attributable to acts, events or omissions beyond its reasonable control, including (but not limited to) pandemics, epidemics or endemics, nuclear accident, acts of God, war or terrorist activity, riot, civil commotion, malicious damages (excluding malicious damage involving your employees or your sub-contractors), compliance with any law or governmental order or regulation, accident, industrial action by employees of any provider of electrical power, breakdown of plant or machinery, fire, flood or storm (a “Force Majeure Event”) subject to Eaton promptly notifying you in writing of the reasons for the delay and the expected duration of the delay.

25.2    The performance of Eaton shall be suspended during the period that the Force Majeure Event persists and Eaton shall be granted an extension of time for performance equal to the period of the delay arising as a result of the Force Majeure Event.

25.3    If a Force Majeure Event continues for more than sixty (60) calendar days, Eaton may terminate this Agreement immediately by notice in writing and neither shall be liable to the other by reason of this termination.

26    MISCELLANEOUS 

26.1    If a term is found unenforceable or invalid, that term will be enforced to the maximum extent permissible and the remaining provisions of the Agreement will remain in full force and effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign or transfer any of your rights under this Agreement, and any such attempt will be void. Eaton may freely assign or transfer its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Software Offerings. Subject to the foregoing, this Agreement will bind and ensure to the benefit of the parties, their successors and permitted assigns. Eaton’s failure to enforce a term of this Agreement is not a waiver of its right to do so later. No failure or delay by Eaton or its affiliates to exercise any right or enforce any obligation shall impair or be construed as a waiver or ongoing waiver of that or any other right or power. Waiving one breach will not be construed to waive any succeeding breach. All waivers must be in writing and signed by the party waiving rights.

27    REGULATORY MATTERS

27.1    The Software Offerings, Documentation and Materials as well as parts of any of these (e.g., new versions, releases, updates, upgrades, patches, fixed or correction of the Software Offerings) are subject to export laws of various countries, including, without limitation, the laws of the United States, the EU and Ireland (“Export Laws”). You agree that you will not submit the Software Offerings, Documentation or other Materials or parts of any of these to any government agency for licensing consideration or other regulatory approval without the prior written consent of Eaton, and that you will not export, re-export or import any Software Offerings, Documentation and/or Materials to countries, persons or entities prohibited by any applicable Export Law. You represent and warrant that you are not located within an embargoed nation and that you are not otherwise prohibited under the Export Laws from receiving access to or using the Software Offerings, Documentation or other Materials. In that context, you are responsible for complying with all applicable Export Laws. If Eaton wants to deliver and/or grant access to the Software Offerings, Documentation, Materials, or parts of any of these directly to you, you will support Eaton in obtaining any required authorization, approval or other consent from the competent authorities, by providing any necessary or useful declarations or other necessary or useful information, e.g., end user certificates, as may be requested by Eaton. You acknowledge that the delivery of and/or granting of access to the Software Offerings, Documentation and Materials as well as parts of any of these may be subject to the prior obtaining of export or import authorisations or both from the competent authorities and that this process may (i) considerably delay or prevent the delivery of and/or granting of access to the Software Offerings, Documentation and Materials or part of any of these, (ii) impact Eaton’s ability to provide services and (iii)) lead to Eaton having to limit, suspend or terminate your access to any services.

27.2    Eaton assumes no responsibility or liability:

(i)    For any delay caused in the delivery and/or granting of access to the Software Offerings, Documentation and Materials or parts of any of these due to export or import authorizations or both having to be obtained from the competent authorities;

(ii)    If any required authorization, approval or other consent for the delivery of and/or granting of access to Software Offerings, Documentation and Materials or parts of these cannot be obtained from the competent authorities; and

(iii)    If the delivery of and/or granting of access to the Software Offerings, Documentation and Materials or parts of any of these is prevented due to applicable Export Laws; and

(iv)    If access to any services has to be limited, suspended or terminated due to applicable Export Laws.

27.3    Eaton may terminate this Agreement with thirty (30) days’ prior written notice if Eaton may not deliver or grant access to the Software Offerings, Documentation and Materials to you due to an embargo or other comparable trade sanction, which is expected to be in place for six (6) months or longer.

27.4    If the Software Offerings are licensed to agencies of the U.S. Government, the Software Offerings are a "commercial item" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in 48 C.F.R. § 12.212, and is provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, all U.S. Government End Users acquire the Software Offerings with only those rights set forth herein. Contractor/manufacturer is Eaton Corporation, 1000 Eaton Boulevard, Cleveland, Ohio 44122.

28    GOVERNING LAW AND JURISDICTION

28.1    To the extent not prohibited by law, You agree that this Agreement and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by, and construed in accordance with, the substantive law of the State of Ohio applicable to contracts wholly made and to be performed within the State of Ohio, and to irrevocably submit to the sole and exclusive jurisdiction of the courts of Ohio or the Federal courts of the Northern District of Ohio, and to irrevocably consent to the exercise of personal jurisdiction by such courts and waive any right to plead, claim or allege that Ohio is an inconvenient forum.

29    Cybersecurity

29.1    You agree to comply with Eaton Assemblies Cybersecurity Hardening Guidelines at www.eaton.com/assemblies-security (“Cybersecurity Guidelines”). Eaton is not responsible for a breach of data or electronic system security caused by any third party equipment/product or modification made to the Software Offerings or related Eaton product other than by Eaton, including, but not limited to, a system intrusion or interference, virus or malicious code attack, loss of data, data theft, misuse, unauthorized access to confidential, personal, and sensitive information and/or non-public personal information, hacking incident or any acts of data ransom, caused by any third-party equipment/product, modification made to the Software Offerings or the related Eaton Product other than by Eaton, or failure by You to comply with the Cybersecurity Guidelines. Eaton may revise the Cybersecurity Guidelines at any time without prior notice. You are responsible for obtaining (at your expense) assurances from third-party suppliers with respect to cybersecurity for third party equipment/product. You are responsible to ensure all users of the Software Offerings or the related Eaton Product is made aware of and complies with the Cybersecurity Guidelines.

30    AGREEMENT

30.1    This Agreement (and any associated order form or other agreements referenced herein) constitutes the entire and exclusive agreement between you and Eaton with respect to the subject matter of this Agreement, and supersedes and replaces any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of this Agreement.

31    CONTACT US

Any questions regarding this Agreement should be directed to Eaton at:

Eaton

Attn: IP Law Group

1000 Eaton Boulevard

Mail Code 4N

Cleveland, OH 44122

Eaton

Attn: Global Data Protection and Privacy Office

1000 Eaton Boulevard

Cleveland, OH 44122

Email: dataprotection@eaton.com

Appendix A: General Guidelines for Software Life-Cycle Management

Overview

Eaton is committed to delivering the most innovative and cost-effective software to our customers.  Therefore, Eaton may, at its own discretion, choose to discontinue software or versions of software and related services periodically for a variety of reasons, including:

·         new and improved feature sets;

·         market or customer changes;

·         technological innovations;

·         low customer demand for the software;

·         software obsolescence; and

·         security issues.

At Eaton’s sole discretion, software and related services may be discontinued regardless of the delivery method, including on-premises software, hosted software, and software as a service.  These Guidelines for Software Life-Cycle Management aim to help customers or partners to better manage their software end-of-life transitions and to understand the role that Eaton can play in helping to migrate to alternative Eaton software.

Definitions

Software Versioning: Eaton may adopt specific software versioning rules.  For example, Eaton may use a four-digit number in W.X.Y-Z format, where the letter W represents a Major Release, the letter X represents a Minor Release, the letter Y represents a Maintenance Release, and the letter Z represents a Patch.  As an example, 2.0.0 is a Major Release (new software version), 2.3.0 is a Minor Release, 2.3.1 is a Maintenance Release to 2.3.0, and 2.3.1-1 is the first Patch of 2.3.1. 

End of Life Process: A process that guides the final business operations associated with the software life cycle. The End of Life Process consists of a series of technical and business milestones and activities that, once completed, make a software obsolete. Once obsolete, the software may not be sold, manufactured, improved, repaired, maintained, or supported. 

End of Version Availability:  The date on which Eaton no longer makes available a specific version of a software product, but continues to make available new versions of the software product for sale.  Eaton may continue to provide software maintenance, installation and configuration assistance, technical support and other support services for the specific version.

End of Support: The date on which Eaton no longer offers for sale or maintains a specific version of an Eaton software, but may offer commercially reasonable technical support. Customers must update the software to the latest version to address any defects or vulnerabilities.

End of Life:  The date on which Eaton ceases to provide software maintenance, installation and configuration assistance, technical support and other support services for the specified software version.  Current Patches for the version of the Eaton software reaching End of Life may remain available.

Major Release: A Major Release of software supported by Eaton implements major architecture changes and/or major user interface (UI) changes, adds major new features and functionality improving overall software performance, efficiency and/or usability, and/or designated by Eaton as a replacement for a software.  A Major Release may or may not require a license upgrade as defined by Eaton.

Minor Release: A Minor Release for an existing software includes incremental functionality addition, user experience improvement, moderate administration or UI changes, and bug fixes.

Maintenance Release: A Maintenance Release for an existing software includes bug fixes and vulnerability fixes.

Patch: A set of changes to a software or its supporting data designed to address a known defect or a vulnerability issue.

Guidelines

Eaton reserves its right to treat each software line independently or agree to new or different terms with customers or partners.  Eaton also reserves its right to change these guidelines at any time without notice. The general Guidelines for Software Life-cycle Management are as follows:

1.       Eaton will use commercially reasonable effort to provide its customer notice of the affected software's End of Version Availability date.

2.       End of Life determinations will be made on a software-by-software basis at the sole discretion of Eaton. Eaton will use commercially reasonable effort to provide its customer a notice of the affected software's End of Life determination. 

3.       Eaton will at its own discretion provide support for the current Major Release and the two previous Major Releases.  Eaton will generally provide issue resolution in the latest version of the software. Any issue resolution will be resolved at Eaton’s sole discretion but are typically evaluated in terms of their severity. Customers may need to update to the current version of the software to obtain resolution of a specific issue. A Patch may be made available at Eaton’s discretion to address a specific issue and must be applied to resolve the issue. 

4.       For software products that require a valid support or subscription entitlement to obtain support, a customer must be able to provide evidence of a valid and continuous support or subscription entitlement from the initial purchase date in order to obtain support.  Issue resolution or enhancement requests will be provided at Eaton’s sole discretion and may require one or more software version upgrades to obtain, unless otherwise prescribed in an agreement with Eaton.

5.       Custom support contracts may be available to customers on a case-by-case basis. For software or software versions that are in the End of Life phase, Eaton may continue to provide limited support to a customer pursuant to the customer’s active subscription or support contract.  Eaton may choose not to offer new support contracts or renew existing support contracts for such software or software versions after the End of Life date. 

Any questions arising in the interpretation of these guidelines or the application of these guidelines shall be determined by Eaton in its sole discretion.