TERMS OF SERVICES

CAREFULLY READ THESE BRIGHTLAYER TERMS OF SERVICE. BY CLICKING THE “I ACCEPT” OR “ACCEPT” BUTTON, OR BY ACCESSING AND USING THE BRIGHTLAYER SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND REPRESENT THAT YOU ARE DULY AUTHORIZED TO ACCEPT THESE TERMS OF SERVICE ON BEHALF OF YOUR ORGANIZATION. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT CLICK THE “I ACCEPT” BUTTON OR OTHERWISE USE THE BRIGHTLAYER SERVICES. THESE TERMS OF SERVICE DO NOT APPLY TO THE PURCHASE, DELIVERY, OR OTHER MAINTENANCE OR SUPPORT SERVICES FOR EATON PRODUCTS WHICH SHALL BE GOVERNED BY THE TERMS OF YOUR SEPARATE PURCHASE AGREEMENT FOR SUCH EATON PRODUCTS.

These Terms of Service govern Your use of the Brightlayer Services however acquired, including via an authorized distributor or reseller of Eaton. These Terms of Service are by and between Eaton Corporation (“Licensor” or “Eaton”), and the entity (corporation, limited liability company, limited partnership, etc.) entering into these Terms of Service with Eaton (“You,” “Customer” or “Licensee”). If You acquired the Brightlayer Services through an Eaton reseller or distributor, these Terms of Service are by and between You and Eaton Corporation.

Definitions Terms not otherwise defined herein shall have the following meanings:
“Access Credentials” means the user identification name and password and/or other access keys or controls for the Brightlayer Services.
“Applicable Data Protection Law” means all applicable laws and regulations relating to the privacy, confidentiality, security or protection of Personal Data, including, without limitation, the European Union General Data Protection Regulation and the California Consumer Privacy Act.
“Authorized Users” means individuals authorized by You to use the Brightlayer Services 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 internet-based platform that is designed to be used in connection with the Eaton Products to provide Authorized Users with product consumption and maintenance information collected and transmitted to Eaton through Eaton Devices. Eaton or its suppliers host and provide the infrastructure necessary to host and operate the Brightlayer Services including all hardware, software, applications, data storage, and infrastructure. The Brightlayer Services also include the Documentation associated with the Brightlayer Services.
“Customer Data” means any information transmitted to the Brightlayer Services or stored to the Brightlayer Services by You or Your Authorized Users in connection with Your or Your Authorized Users’ use of the Brightlayer Services, including information necessary to set-up Customer’s account.
“Documentation” means 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.
“Eaton Devices” means internet-connected devices and sensors provided by Eaton that seamlessly collect and transmit information regarding Eaton Products to the Brightlayer Services. These Terms of Service do not govern the purchase, delivery, maintenance or support services for the Eaton Products or Eaton Devices.
“Eaton Products” means the specific Eaton products identified in the Order Form that are monitored by the Eaton Devices and for which the Brightlayer Services provide product usage and consumption information.
“Malicious Code” means (i) any code, program, or sub-program the knowing or intended purpose or effect of which is to damage or maliciously interfere with the operation of a computer system containing the code, program or sub-program, or to halt, disable, or interfere with the operation of the software, code, program, or sub-program, itself, or (ii) any device, method, or token that permits any person to circumvent without authorization the normal security of any software or system containing the code.
“Order Form” means the quote or order form that sets forth the specific Brightlayer Services that You are subscribing to, together with all other pertinent details of Your subscription including, but not limited to: the applicable Eaton Product(s), Subscription Term, permitted numbers of Authorized Users, pricing, and any other terms or restrictions.
“Personal Data” means any information provided by You to Eaton, or otherwise Processed by Eaton on Your behalf that identifies, either alone or in combination with other information, an individual or from which identification or contact information of an individual can be derived.
“Process, Processing, and Processed” means any operation or set of operations that is performed upon Personal Data or Operational Data, whether or not by automatic means, including, but not limited to, collection, recording, organization, storage, access, adaptation, alteration, retrieval, consultation, use, disclosure, dissemination, making available, alignment, combination, blocking, deletion, erasure, or destruction.
“Operational Data” means all information that is collected by Eaton, or to which Eaton has access that relates to You and Your Authorized Users’ use of the Brightlayer Services or Eaton Products. Operational Data includes, but is not limited to, operational information about the Eaton Products such as energy or product usage and consumption, warranty status, suggested maintenance and repair, usage recommendations and other information, Customer Data and the results generated through use of the Brightlayer Services, such as operational information associated with Your or Your Authorized Users’ access and use of the Brightlayer Services, including, without limitation application telemetry, IP addresses, IP configurations, stored sessions, open ports, Credentials, network metadata, and device operating system, status, version and configuration. Except in relation to the provision of the Brightlayer Services to You, any use of Operational Data will be masked or aggregated by Eaton so that You and Your Authorized Users are not identified as the original provider of such data.
“Subscription Term” means the length of Your subscription as set forth in the Order Form.
“Updates” means the release by Eaton of bug fixes, patches, error corrections, workarounds, and other enhancements to the Brightlayer Services during the Subscription Term. Updates shall be considered “Brightlayer Services” governed by these Terms of Service. Updates exclude new products for which Eaton generally charges a separate license fee or upgrade fee.
License Grant to You. Eaton hereby grants to You and Your Authorized Users, a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Brightlayer Services identified in Your Order Form for Your internal business purposes in connection with Your use of Eaton Products during the Subscription Term, subject to the terms of Your Order Form, the Documentation, and these Terms of Service. All rights not expressly granted to You are reserved to Eaton.
Ownership of data / License Grant to Eaton. Eaton and its cloud service suppliers will automatically collect and own Operational Data, and may use such Operational Data to monitor, analyze, develop, support or improve the performance of the Brightlayer Services.
You and Your Authorized Users own all Customer Data. You are solely responsible for: (i) the provision and use of Customer Data with the Brightlayer Services; (ii) the accuracy, quality and content of the Customer Data; (iii) assessing the Brightlayer Services suitability for Your intended use; and (iv) obtaining all necessary rights, consents and permissions. You will comply with all applicable laws, in its provision and use of Customer Data in connection with the Brightlayer Services. You grant to Eaton and its cloud service suppliers a worldwide, irrevocable, non-transferable, non-assignable (except as permitted under this Agreement), sub-licensable, non-exclusive license to access, retrieve, store, copy, display, distribute, transmit and otherwise use Customer Data associated with the Brightlayer Services as follows:
(a) in connection with maintaining, providing and/or making available the Brightlayer Services; and
(b) as reasonably required in order to cooperate with legitimate governmental requests, subpoenas or court orders provided that
Eaton gives You reasonable notice of the demand to allow You to seek a protective order or other appropriate remedy unless Eaton is legally prohibited from doing so. You and Your Authorized Users grant to Eaton and its cloud service suppliers a worldwide, perpetual, irrevocable license to use and commercialize any suggestions, enhancement, requests, recommendations, corrections or other feedback provided by You or Your Authorized Users relating to the Brightlayer Services.
Service Level. Eaton will use commercially reasonable efforts to make the Brightlayer Services accessible to You and Your Authorized Users, subject to the availability of third party infrastructure, required and emergency maintenance, availability of third party networks and communications facilities and force majeure events. The Brightlayer Services are hosted on a shared third-party infrastructure environment as set forth in Your Order Form.
The availability of the Brightlayer Services is 98 % or higher. Brightlayer Services availability is measured over 10 seconds intervals against the Brightlayer Services in each Data Storage Location region. The availability calculation is based on the number of minutes the Brightlayer Service is not available within a given month and excludes planned downtime.
Usage Restrictions. In addition to any other limitations set forth herein and in the Order Form, You agree (i) not to copy, download, modify or translate any software and/or database hosted as part of the Brightlayer Services in any manner not authorized by these Terms of Service; (ii) not to reverse engineer, decompile, or disassemble any software and/or database hosted as part of the Brightlayer Services, or otherwise attempt to discover the underlying source code of the Brightlayer Services except to the extent permitted by applicable law; (iii) not to tamper with, bypass or alter the security features of the Brightlayer Services or any of the hosted infrastructure, (iv) not to rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the Brightlayer Services or any features or functionality of the Brightlayer Services to any person or entity other than Your Authorized Users, or use the Brightlayer Services to run an outsourcing business; (v) interfere with or disrupt the integrity or performance of the Brightlayer Services or the data contained therein in any way, including but not limited to: (a) conducting penetration testing in multi-tenant environments; (b) conducting penetration tests in single-tenant environments without the Supplier’s prior written consent; (c) attempting to gain unauthorized access to the Brightlayer Services or their related systems or networks; or (d) storing or transmitting a virus or other Malicious Code through the Brightlayer Services; (vi) not to use the Brightlayer Services or Documentation in violation of any law, regulation, or rule including for any illegal, obscene or threatening purpose; (vii) not to use the Brightlayer Services to store or transmit infringing, libelous, offensive, unlawful or tortious material; (viii) not to use the Brightlayer Services or Documentation for purposes of competitive analysis, the development of a competing software product or service, or any purpose that is detrimental to Eaton or to its commercial disadvantage; (ix) not to disseminate performance-related information relating to the Brightlayer Services; and (x) not to store or process any personal data of the following types: information on a person’s racial or ethnic origin, political opinions, religious or philosophical convictions, union membership, health (HITECH - Health Information Technology for Economic and Clinical Health Act & HIPAA - Health Insurance Portability and Accountability Act), sex life, concerning bank or credit card accounts (PCI DSS - Payment Card Industry Data Security Standard) comprising but not limited to data according to Applicable Data Protection Law (e.g. GDPR Art. 9 No. 1).
You and Your Authorized Users will ensure that is usage of the Brightlayer Services does not exceed the usage terms set forth in this Agreement and will be liable for any excess usage at Eaton’s then current rates during the period in which usages exceeds the licensed amount.
In the case where You would like to let any of Your Agents use or access the Brightlayer Services, You remain responsible for any and all actions that the Authorized Agent conducts when accessing and using the Brightlayer Services. This includes the responsibility for and payment of any new services that the Agent may sign on Brightlayer – when he is given the user rights to do so.
Your Obligations; Customer Data.
1. Only Authorized Users may use the Brightlayer Services and solely for Your internal business purposes. All use of the Brightlayer Services by Your Authorized Users must comply with these Terms of Service. Your Authorized Users will be granted access to the Brightlayer Services through individual usernames and passwords. You will ensure that each Authorized User uses a unique username and password and that such usernames and passwords are not shared. You shall promptly notify Eaton if any Authorized User’s username or password has been or is suspected of being lost, stolen or compromised. You are liable for, and shall indemnify and hold Eaton and its officers, directors, employees, affiliates and agents harmless from any damages, claims or expenses arising from Your or Your Authorized Users’ breach of these Terms of Service (including the entirety of this Section 6 and any terms incorporated by reference into these Terms of Service) and for any use of the Brightlayer Services through Your Access Credentials. You shall implement appropriate security measures to safeguard Your Access Credentials.
2. You must maintain all hardware, software and network connectivity needed to connect to the Brightlayer Services, including but not limited to the minimum (system) requirements set forth in the Documentation, if any.
3. These Terms of Service govern Eaton’s collection and usage of Customer Data. You acknowledge and agree that Eaton may use the Customer Data and Operational Data to provide the Brightlayer Services to You and as otherwise set forth in these Term of Service and in the Eaton Privacy Policy in Appendix 1 of this Agreement. By submitting or transmitting Customer Data to the Brightlayer Services, You represent and warrant that You are the owner of, and have all necessary right and permissions in the Customer Data to permit Eaton to use the same in accordance with these Terms of Service without violating the rights of any third party.
4. For any EU Customers: You acknowledge and agree that Eaton or its subprocessors may transfer Personal Data outside of the EU for the purpose of providing the Brightlayer Services and fulfilling Eaton’s obligations to You under these Terms of Service. Eaton and its subprocessors will implement and maintain appropriate safeguards for the transfer of the Personal Data in accordance with Applicable Data Protection Law, which may include executing appropriate contractual clauses based on and conforming to the EU model clauses.
5. You agree to implement commercially reasonable actions and precautions to prevent the introduction and proliferation of Malicious Code in the Brightlayer Services.
6. You will reasonably cooperate with any investigations or audits by Eaton into service outages, security problems, connectivity issues with the Eaton Devices, and/or suspected breaches of these Terms of Service. You will not seek to block or otherwise interfere with such investigations or audits.
Eaton Security. Eaton shall implement and maintain appropriate technical, physical and organizational controls to secure the Brightlayer Services and to protect the security, confidentiality and integrity of the Customer Data. Eaton will also implement and maintain industry standard anti-virus and encryption software to prevent the introduction and proliferation of Malicious Code into the Brightlayer Services.
Intellectual Property Rights.
1. The Brightlayer Services and associated software and databases are owned by Eaton (and its licensors) and are protected by applicable intellectual property laws and regulations, including United States and international copyright laws. As between the parties hereto, Eaton retains all right, title and interest in and to the Brightlayer Services and any derivative works that are created and/or developed based, in whole or in part, on access to and use of the Brightlayer Services. Nothing herein shall operate to transfer or convey to You any rights in the Brightlayer Services and/or software or databases hosted as part of the Brightlayer Services. You agree to promptly notify Eaton if You become aware of, or suspect any unauthorized, access, use or misuse of the Brightlayer Services. Similarly, You retain all right, title and interest in and to Your Customer Data. To the extent You provide Eaton with any feedback, ideas, or technical improvement suggestions about the Brightlayer Services (“Feedback”), You acknowledge and agree that Eaton will be the owner of all such Feedback and may use and incorporate the Feedback into the Brightlayer Services without compensation or attribution to You. Further, You acknowledge and agree that Eaton shall have the right to anonymize and aggregate Operational Data and use it for Eaton’s own purposes including to analyze trends, perform market research, to improve the Brightlayer Services, and to develop other products and technologies and that Eaton will own all such anonymized Operational Data.
2. All trademarks on or related to the Brightlayer Services are the sole and exclusive property of Eaton and are protected by US and international trademark laws. Nothing in these Terms of Service shall give You any right, title, or interest in or to Eaton’s trademarks, nor give You any right to use Eaton’s trademarks for any purpose without the prior written approval of Eaton. You agree that You will do nothing inconsistent with Eaton’s ownership of its trademarks and will not register, nor attempt to register, any trade name or trademark which, in whole or in part, incorporates or is confusingly similar to any of Eaton’s trademarks.
Confidentiality
1. Each party, as a recipient (“Recipient”), agrees to use the disclosing party’s (“Discloser”) Confidential Information solely for the purposes of performing its obligations or exercising its rights under these Terms of Service. Recipient will not disclose Discloser’s Confidential Information to any third party other than its Authorized Recipients. As used herein, “Authorized Recipients” are a party’s and its affiliates’ officers, employees, agents and consultants who require access to the Confidential Information for the purpose set forth in these Terms of Service and who are bound by confidentiality obligations at least as stringent as those set forth herein. Recipient shall use commercially reasonable standards to protect the Confidential Information from disclosure using equal measures as it uses to protect its own Confidential Information of a similar nature.
2. The obligations set forth in this Section 9 shall survive until five (5) years from the termination or expiration of these Terms of Service except with regard to trade secret information which shall be protected for the statutory period, and Personal Data which shall be protected for so long as in Recipient’s possession.
3. “Confidential Information” refers to any proprietary information, software, data or know-how of the Discloser that is disclosed under these Terms of Service which is marked as confidential, or which a reasonable person would understand to be confidential based on the context of the disclosure or the nature of the information. For purposes of clarification, the Brightlayer Services and Documentation shall be Eaton’s Confidential Information and the Customer Data shall be Your Confidential Information except to the extent that it has been anonymized and aggregated by Eaton and is no longer be attributable to You or any Authorized User. Confidential Information does not include information which the Recipient may demonstrate through written evidence: (i) was already known to the Recipient prior to the time that it was disclosed by the Discloser; (ii) is or has entered the public domain through no breach of these Terms of Service by Recipient; (iii) has rightfully been received by Recipient from a third party without any breach of these Terms of Service; (iv) was approved for release by the written consent of the Discloser; (v) was independently developed by the Recipient without use of the Discloser’s Confidential Information; or (vi) was required to be disclosed pursuant to the order of a court or governmental agency of competent jurisdiction provided that the Discloser has, if permitted by law, been given reasonable notice of the order and the opportunity to contest the disclosure and any such disclosure is limited strictly to the Confidential Information which is the subject of such order.
Term & Termination; Suspension.
1. Term. These Terms of Service shall continue in full force and effect for the Subscription Term. You may terminate these Terms of Service as set forth in the Order Form or as otherwise described herein.
2. Termination or Suspension. Eaton may, at its option, terminate these Terms of Service for cause or suspend the Brightlayer Services if: (i) Eaton reasonably believes that the Brightlayer Services are being used in violation of law or the terms of these Terms of Service; (ii) Your use of the Brightlayer Services interferes with the normal operations of the Brightlayer Services or other customer’s use of the same; (iii) there is an attack on the Brightlayer Services or Your server(s), Your server is accessed or manipulated by a third party without Your consent, or there is another event for which Eaton reasonably believes suspension of the Brightlayer Services is necessary to protect the Eaton network or Eaton’s other customers; (iv) Your payment of any invoiced amount is overdue and You fail to pay the overdue amount within ten (10) days of Eaton’s written notice; (v) You breach any obligation relating to Eaton’s (or its suppliers’) intellectual property rights; (vi) You materially fail to comply with any other provision of these Terms of Service and do not remedy that failure within fifteen (15) days of Eaton’s notice to You describing the failure in reasonable detail, (vii) suspend the Brightlayer Services in order to comply with any law, regulation, government or court order, or (viii) prevent any degradation of the Brightlayer Services caused by You. Eaton will endeavor to give You advance notice of pending suspension or termination under this Section of at least twelve (12) hours unless Eaton determines, in Eaton’s reasonable commercial judgment, that a suspension on no or shorter notice is necessary to protect Eaton, its customers, or others. You may terminate this Agreement for Eaton’s material breach which remains uncured after the giving by You of not less than thirty (30) days’ prior written notice of the breach to Eaton.
3. Effect of Termination. Upon termination of these Terms of Service: (i) You will cease using the Brightlayer Services; (ii) each party shall use commercially reasonable efforts to return to destroy all Confidential Information in accordance with Section 10; and (iii) You will permanently delete from any hardware and storage device all downloads and backup copies of any Eaton information obtained from the Brightlayer Services. Upon request, You agree to provide Eaton with written certification by an authorized officer that all information from the Brightlayer Services has been removed and deleted from all of Your hardware and storage devices. Termination of these Terms of Service will not relieve a party from any accrued payment obligations. Eaton will not be liable to You for any claims or damages of any kind arising out of termination of these Terms of Service or suspension of Brightlayer Services in accordance with this Section 10.
Fees and Payment Terms.
1. Fees. Fees for the Brightlayer Services are payable as set forth in the Order Form (“Fees”). Eaton may increase the Fees for any renewal term by providing You with notice of the impending increase in fees not less than sixty (60) days prior to the commencement of such renewal term and the resulting increase in fees. Your continued receipt of the Brightlayer Services following such a fee increase will be considered acceptance of the fee increase. In the event that You do not agree to an increase in Fees, Your sole remedy will be to terminate these Terms of Service effective as of the date of the renewal increase upon no less than thirty (30) days’ written notice to Eaton.
2. Invoices. Invoices are due as set forth in the Order Form. Eaton may suspend the Brightlayer Services or terminate these Terms of Service for non-payment by You, as set forth in Section 10.
3. Taxes. You are responsible for the payment of all applicable local and federal sales, use, value added, personal property or other taxes and duties which may be levied or assessed in connection with Your use of the Brightlayer Services (excluding any taxes based on Eaton’s net income or property). If Eaton is required by law to collect taxes on the provision of the Brightlayer Services to You, You must pay Eaton the amount of the tax that is due or provide Eaton with satisfactory evidence of Your exemption from the tax.
Support Services. Throughout the Subscription Term, Eaton shall provide Support Services to You as provided in this Section 12. Eaton shall provide and install Updates on an as-needed basis to maintain the Brightlayer Services in conformance with its Documentation. All Updates shall be released in a manner designed to minimize any disruption to Your business. In addition to the release of Updates, Eaton shall also provide reasonable amounts of telephonic and/or email-based technical support for the Brightlayer Services during Eaton’s normal business hours of 8:00 a.m. to 5:00 p.m CET (CEST). Contact details for Your country can be found on Eaton.com. This Agreement does not include any onsite Software Support services. If onsite support is required to be performed by an Eaton authorized representative, additional charges, including but not limited to, hourly labor, travel, meals, lodging, and related expenses shall apply.
Representations and Warranties; Disclaimers.
1. Each Party represents and warrants that it has the full right and power to enter into and perform its obligations under this Agreement.
2. Eaton warrants that: (a) the Brightlayer Services will substantially perform in accordance with applicable Documentation; (b) it will use commercially reasonable efforts, in accordance with industry standard practices, to protect the Brightlayer Services from the introduction of Malicious Code; and (c) it will perform the Support Services in a professional and workmanlike manner in accordance with applicable industry standards. You shall notify Eaton of any non-compliance with the foregoing warranties within thirty (30) days after the event giving rise to the breach of warranty occurs. Upon receipt of a timely breach of warranty claim, as Your sole and exclusive remedy and Eaton’s sole obligation for a breach of the warranties in this Section 13.2, Eaton shall use commercially reasonable efforts to repair or replace any Brightlayer Services or reperform any Support Services that do not conform with the foregoing warranties.
3. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EATON DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. EATON DOES NOT REPRESENT THAT THE BRIGHTLAYER SERVICES WILL BE COMPLETELY SECURE OR WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF, OR ACCESS TO, THE BRIGHTLAYER SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE BRIGHTLAYER SERVICES WILL BE CORRECTED.
LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EATON BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST DATA, RELATING TO THE BRIGHTLAYER SERVICES OR THE PROVISION OR FAILURE TO PROVIDE THE BRIGHTLAYER SERVICES OR SUPPORT THEREFOR, WHETHER OR NOT DUE TO EATON’S NEGLIGENCE. EATON’S TOTAL, AGGREGATE LIABILITY FOR ANY DAMAGES OR CLAIMS ARISING UNDER THIS AGREEMENT OR RELATED TO THE BRIGHTLAYER SERVICES SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY YOU FOR ACCESS TO THE BRIGHTLAYER SERVICES UNDER THE APPLICABLE ORDER IN THE TWELE (12) MONTH PERIOD BEFORE THE CLAIM AROSE. The limitations of liability contemplated above shall not apply in the following cases: liability in accordance with any applicable product liability Law (Produkthaftungsgesetz) which cannot be excluded by law; wrongful intent; gross negligence on the part of the owners, legal representatives or executives of Eaton arising from or relating to Eaton’s performance under these Terms; fraud; or injury to life, limb or health; claims resulting from fraudulent concealment of a defect; in the event of non-compliance with an accepted guarantee and in the event of a breach of a material contractual obligation (an obligation without the fulfilment of which the proper performance of the contract would not be possible, and upon the compliance with which the other party regularly relies and is end to rely). In the case of a breach of a material contractual obligation, the liability shall however be limited to the typical foreseeable loss or damage.
Indemnification.
1. Eaton will indemnify, defend and hold You and Your Authorized Users harmless against any losses, damages, expenses or liabilities arising from claims that Your use of the Brightlayer Services infringes or misappropriates the intellectual property rights of a third party; provided that, Eaton shall not be required to indemnify You to the extent that the claim was caused by Your use of the Brightlayer Services in violation of these Terms of Service or due to Your unauthorized modifications or combinations of the Brightlayer Services with and into other technologies or services without Eaton’s written consent. If Eaton is obligated to indemnify You under this Section 15 or if it reasonably believes it may have liability under this Section 15, Eaton may, in addition to its other obligations hereunder: (a) obtain for You the right to continue using the Brightlayer Services on a non-infringing basis; or (b) modify the Brightlayer Services so they are no longer infringing but of equivalent or better functionality, performance and interoperability. If neither of the foregoing options are commercially feasible, Eaton may discontinue the provisioning of the Brightlayer Services; provided that, it will issue You a pro rata refund or credit for any prepaid fees with regard to periods after termination.
2. You must give Eaton prompt written notice of any claim for indemnification under this Section 15; provided that, the failure or delay in doing so will not excuse Eaton of its indemnification obligations except to the extent its ability to defend the claim is materially prejudiced by such failure or delay. Eaton shall thereafter have the sole right to control the investigation, defense, and settlement of the claim at its sole cost and expense. You shall reasonably cooperate with Eaton in the investigation, trial and defense of such claim and any appeal arising therefrom at Eaton’s expense.
3. Customer Indemnity. You will indemnify Eaton from any third party action against Eaton to the extent proximately based upon an allegation arising from: (i) any access to or use of Customer Data with the Cloud Services; or (ii) modification or use of the Cloud Services with any Customer applications, provided that Eaton (a) promptly notifies You of any such action; (b) gives You full authority, information, and assistance to defend such claim; and (c) gives You sole control of the defense of such claim and all negotiations for the compromise or settlement of such claim.
Export Regulation. You agree to abide by and to conform to any and all export regulations in force during these Terms of Service that are applicable to You or the Brightlayer Services provided, including but not limited to any export rules and regulations of the United States of America. You understand that these regulations may prohibit the export or re-export of Documentation, and any information or technical data related to the Brightlayer Services. The Brightlayer Services and the underlying information and technology may not be accessed, downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Libya, North Korea, Iran, Sudan, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
Modifications. Eaton reserves the right to change or modify the terms of these Terms of Service upon written notice to You. All such changes will: (a) be applied prospectively; and (b) will apply to all similarly situated users of the Brightlayer Services. If any changes to these Terms of Service are unacceptable to You, You may terminate Your access to the Brightlayer Services by providing ten (10) days’ written notice of termination to Eaton, delivered at any time within thirty (30) days of the effective date of the change. Continued use of the Brightlayer Services following the effective date of any changes constitutes Your acceptance of the changes but does not affect the foregoing right of termination. For purpose of this Section 17, the posting of an updated copy of these Terms of Service to the Brightlayer Services shall constitute written notice of the change(s) to these Terms of Service.
Miscellaneous.
1. Except as otherwise provided herein, notices under these Terms of Service will be deemed to be sufficiently given, effective on the date received, when delivered personally or by overnight express, or nationally recognized courier services, or three (3) business days after mailing when sent by certified or registered mail, postage prepaid. Notice required to be given to You hereunder will be sent to the address specified in the Order Form at the attention of Your designated contact person. Notice required to be given to Eaton should be sent to Your designated Eaton Sales Representative with a copy to Eaton at the address provided in the Order Form.
2. The Order Form together with these Terms of Service and any other terms and conditions incorporated into these Terms of Service by reference constitutes the complete agreement between Eaton and You regarding use of the Brightlayer Services and supersedes all previous communications between the parties relating to the subject matter herein.
3. You may not assign these Terms of Service or the license granted hereunder without Eaton’s prior written consent. Eaton’s failure to enforce any rights hereunder, irrespective of the length of time for which such failure continues, shall not constitute a waiver of those or any other rights.
4. These Terms of Services shall be governed by German law without reference to its conflicts of law principles and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). The parties consent and submit to exclusive personal jurisdiction, procedure and venue for legal disputes arising from or connected with this Agreement shall lie with the courts of Bonn, Germany. Arbitration processes are excluded.
5. Portions of the Brightlayer Services may utilize or include third party software, open source software, and other copyrighted material. Information for such third party or open source software will be available via a link accessible within the Brightlayer Services. Use of such third party or open source software is governed exclusively by their respective terms and not by these Terms of Service.
6. Except for payment obligations, neither party shall be held responsible for any delay or failure in its performance to the extent that such delay or failure is caused by causes beyond its reasonable control.
7. If any part of these Terms of Service is found unenforceable by a court of competent jurisdiction, such provision(s) will be ineffective to the extent of the court’s ruling and the remainder of these Terms of Service will remain in full force and effect. The waiver by a party of any breach of any provision of these Terms of Service will not operate or be construed as a waiver of any subsequent breach. The parties’ relationship is that of independent contractors. Neither party is an agent for the other, nor does either party have the right to bind the other to any agreement with a third party. The captions used in these Terms of Service are for convenience only and are not binding.