Brightlayer End User License Agreement for Product Software

Last Updated: April 7, 2025

CAREFULLY READ THIS END USER LICENSE AGREEMENT FOR PRODUCT SOFTWARE.  BY INSTALLING AND USING THIS PRODUCT SOFTWARE, YOU AGREE TO BE BOUND BY THIS END USER LICENSE AGREEMENT AND REPRESENT THAT YOU ARE DULY AUTHORIZED TO ACCEPT THIS END USER LICENSE AGREEMENT ON BEHALF OF YOUR ORGANIZATION. IF YOU DO NOT AGREE TO THE TERMS OF THIS END USER LICENSE AGREEMENT, DO NOT USE THE PRODUCT SOFTWARE. EXCEPT AS EXPRESSLY STATED HEREIN, THIS END USER LICENSE AGREEMENT DOES NOT APPLY TO THE PURCHASE, DELIVERY, OR OTHER MAINTENANCE OR SUPPORT SERVICES FOR OTHER EATON PRODUCTS OR SERVICES, INCLUDING EATON HARDWARE, WHICH SHALL BE GOVERNED BY THE TERMS OF YOUR SEPARATE PURCHASE AGREEMENT FOR SUCH EATON PRODUCTS AND SERVICES.

This End User License Agreement (the “Agreement”) governs Your access to and use of Product Software (defined below), however acquired, including via Channel Partner (as defined herein) of Eaton.  This Agreement is by and between Eaton Corporation and the entity (corporation, limited liability company, limited partnership, etc.) that activates the license for the Product Software or directs or requests such license activation on its behalf (“You,” or “Your”). For the purposes of this Agreement, any reference to “Eaton” shall include the Contracting Entity, its holding company, its affiliates and subsidiaries. 

1. Definitions. Terms not otherwise defined herein shall have the following meanings:

“Aggregate Data” means aggregated and anonymized Customer Data.

“Channel Partner” means an authorized distributor or reseller of the Product Software.

“Documentation” means user manuals, online help files, technical manuals, and other materials published or otherwise made available by Eaton which describe the Product Software and its uses, features, specifications, and/or technical requirements.

“Eaton Hardware” means the Eaton product provided by Eaton to You, which may include Product Software within it.                                     

“Effective Date” means the date upon which You activate the license for the Product Software.

“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 the content available on the Product Software, including all information, text, graphics, images, hyperlinks, illustrations, designs, icons, photographs, documents, products, computer programs, services and written and other materials.

“Order” means the quote, order form, purchase order, or similar document that sets forth the specific Product Software stock keeping unit (“SKU(s)”) that You are ordering, together with all other pertinent details of Your order, such as pricing, and any other terms or restrictions.

“Product Software” means the software described in the applicable Order and provided by Eaton to You, which includes any applications, firmware and/or platforms and all modifications, improvements, or Updates to the software, each as provided to You from time to time.

“Term” means the duration Eaton permits You to access and use the Product Software based on the SKU(s) for the Product Software You purchased.

“Update” or “Updates” has the meaning ascribed thereto in the Support Schedule.

2. Grant and Scope of License.

2.1 License. Subject to Your compliance with the terms of this Agreement and the Documentation, Eaton hereby grants to You, for the Term, a limited, non-exclusive, non-transferable, non-sub-licensable, and revocable license to access and use the Product Software and Materials, which are provided to You for Your own internal business purposes, solely for Your use in connection with the Eaton Hardware on which the Product Software is installed or to which it pertains as described in the Documentation, or non-Eaton hardware as authorized in the Documentation (“Authorized Hardware”), and solely as permitted by this Agreement.

2.2 Copies. 

(a) Unless otherwise permitted by Eaton, You shall not make more than (i) one (1) copy of the Product Software and (ii) one (1) copy of the Documentation for use by You in connection with the authorized use of the Product Software, and each such copy is to be made solely for backup and/or archival purposes. You shall account for and number any such copy. All titles, trademarks, copyright and restricted rights or proprietary notices included in the Product Software shall not be removed and must be reproduced in such copy.

(b)  You may print, and download extracts, of any page(s) of the Materials solely for internal business purposes. Any use of Materials on any other website or networked computer environment for any purpose is prohibited. Any unauthorized use of any Materials contained on the Product Software 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.

2.3 Changes. Eaton reserves the right, without notice to You, to update, change, and discontinue (temporarily or permanently) any feature or component of the Product Software. Alternatively, Eaton may require you to install an update to the Product Software. By continuing to use the Product Software You accept the Updates and changes to the Product Software including any changes to or removal of features or components. 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 feature or component of the Product Software.

2.4 Discontinuance. Eaton may discontinue the Product Software upon written notice, including by publicly posting such notice on Eaton’s website, subject to the Software Guidelines for Life-Cycle Management available at the End of Life Policy page and fully incorporated herein by reference.

2.5 Evaluations.  From time to time, Eaton may make certain Product Software available for use at no charge or for a fee on a trial, evaluation, or beta basis, as identified on the applicable Order (“Evaluations”).  For such Evaluations, the Product Software may have limited features, functions, and other technical limitations.  Notwithstanding anything to the contrary in this Agreement or any Order, Eaton does not provide warranties, service level commitments, or indemnification for Evaluations. Eaton is not obligated to provide maintenance and support for Evaluations unless agreed in an Order accepted by Eaton.

2.6 Channel Partners. This Agreement will govern your use of Product Software purchased through a Channel Partner.  However, Your payment obligations for Product Software will be with the Channel Partner, and not Eaton.  Any terms agreed to between You and the Channel Partner that are in addition to this Agreement are solely between You and the Channel Partner.  No agreement between You and a Channel Partner is binding on Eaton or will have any force or effect with respect to the rights in or the operation, use or provision of, the Product Software.

3. Usage Restrictions. In addition to any other limitations set forth herein and in an Order, You agree not to: (i) copy (except as expressly permitted by this agreement), reproduce, distribute, republish, download, display, post or transmit the whole or any part of the Product Software or Materials in any form or by any means, except as expressly permitted in this Agreement; (ii) reverse engineer, decompile, or disassemble the Product Software, or otherwise attempt to discover the underlying source code of the Product Software except to the extent permitted by applicable law; (iii) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit or provide access to or use of the Product Software, whether in whole or in part, or any content displayed on the Product Software, to any other person or entity, including any of Your subcontractors, independent contractors, affiliates, or service providers, without Eaton’s express permission; (iv) use the Product Software or Documentation in violation of any law or regulation, or use or access the Product Software in any manner or for any purpose that infringes, misappropriates, or violates the intellectual property right or any other right of any third party (v) use the Product Software or Documentation for purposes of competitive analysis, the development of a competing software product or service, the development of derivative works, or any purpose that is detrimental to Eaton or to its commercial disadvantage; (vi) damage, destroy, disable, impair, interfere with or disrupt, or otherwise impede or harm in any manner, the integrity or performance of the Product Software or the data contained therein; (vii) remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; (viii) access or use the Product Software in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; and (ix) otherwise access or use the Product Software beyond the scope of the authorization granted under Section 2.1.

Eaton 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 Product Software or to Your downloading of any material posted on it, or any website linked to it.

4. Additional Obligations.

4.1 You acknowledge that the Product Software contains valuable trade secret and proprietary information of Eaton. You shall comply in full with all federal, state, local, and foreign laws, rules, and regulations in connection with Your access to, and use of, the Product Software, including those related to cybersecurity and piracy, data protection, privacy, international communications and the transmission of technical or personal data.  The Product Software may be accessed and used only in a form and manner approved by Eaton in its sole discretion, and only in accordance with the terms and conditions of this Agreement. 

4.2 You may be required to register to use the Product Software. If so, You must have a valid account with a username and password (“Credentials”). You may register for such Credentials in accordance with the direction(s) provided with the Product Software or by an authorized Eaton representative. The date You activate your license for the Product Software shall be the Effective Date of this Agreement. You are responsible for maintaining the confidentiality of Your Credentials, and for ensuring that each set of Credentials is only used by employees granted access to the Product Software on Your behalf. You are liable for all transactions and other activities carried out under Your account. You agree to use reasonable endeavours to prevent any unauthorized access to, or use of, the Product Software, Your Credentials, and Your account and immediately notify Eaton of any unauthorized access to or use of the Product Software, Your Credentials, or Your account or any other breach of security in relation to the Product Software known to You by email or by phone to the relevant contact information provided in the “contact us” section below. 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 or use. If Eaton suspends or terminates Your account under this Agreement, You acknowledge that all information and content associated with such account will no longer be available to You.

4.3 Full use of the Product Software is dependent upon Your use of a device with Internet access and, where applicable, the purchase of Eaton Hardware in which it is installed or to which the Product Software pertains as described in the Documentation. In order for the Product Software to operate fully, Your Eaton Hardware or other Authorized Hardware 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. The maintenance and security of this equipment may affect the performance of the Product Software 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 Product Software. Internet transmissions are never completely private or secure. Any message or information You send using the Product Software may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.

5. Collection and Use of Information; Security.

5.1 You agree that Eaton has, and hereby grant to Eaton, 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 information or content provided by You (“Customer Data”) for the purpose of operating and/or marketing the Product Software or any related services rendered by Eaton and as otherwise set forth in this Agreement and in the then-current version of the Eaton Privacy Notice (the “Privacy Notice”).  The Privacy Notice is fully incorporated herein by reference. This license includes any right of publicity rights that may be present in the Customer Data.  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 this Agreement without violating the rights of any third party.

5.2 By using the Product Software, You agree to us collecting and using anonymised technical information about the devices You use the Product Software on and related software, hardware and peripherals (collectively, the “Operational Data”) for our business purposes, including, without limitation, to improve our products and services, and to provide any services to You, to develop new products, service, and technologies, to perform market research, and for commercialization and quality improvement initiatives.

5.3 Without limiting the foregoing, the Product Software may make use of location data, which may be sent from Your Eaton Hardware, Authorized Hardware, devices or other software. Where applicable, You can turn off this functionality at any time by turning off the location services settings for the Product Software on the Eaton Hardware device. If You use the Product Software without turning off the location services settings, 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.

5.4 Following industry standard best practices, Eaton has created detailed guidance to assist in minimizing cybersecurity risks. The current version of these guidelines can be found here. 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 Product Software 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 Product Software or the related Eaton Product other than by Eaton, or failure by You to maintain industry standard security measures. . You are responsible for obtaining (at Your expense) assurances from third-party suppliers with respect to cybersecurity for third party equipment/product.

6. Intellectual Property Rights.

6.1 The Product Software is 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 (and its licensors) retains all right, title and interest in and to the Product Software and any derivative works that are created and/or developed based, in whole or in part, on access to and use of the Product Software. Nothing herein shall operate to transfer or convey to You any rights in the Product Software. 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 Product Software (“Feedback”), You acknowledge and agree that Eaton will be the owner of all such Feedback and may use and incorporate the Feedback into the Product Software without compensation or attribution to You. Further, You acknowledge and agree that Eaton owns and will retain all right, title, and interest in and to the Operational Data.

6.2 All trademarks on or related to the Product Software are the sole and exclusive property of Eaton and are protected by US and international trademark laws. Nothing in this Agreement 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.

7. Confidentiality.

7.1 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 this Agreement.  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 this Agreement 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.

7.2 If the Recipient or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Recipient shall: (a) promptly, and prior to such disclosure, notify the Discloser in writing of such requirement so that the Discloser can seek a protective order or other remedy or waive its rights under Section 7.1; and (b) provide reasonable assistance to the Discloser, at the Discloser's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Discloser waives compliance or, after providing the notice and assistance required under this Section 7.2, the Recipient remains required by Law to disclose any Confidential Information, the Recipient shall disclose only that portion of the Confidential Information that the Recipient is legally required to disclose and, on the Discloser's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

7.3 The obligations set forth in this Section 7 shall survive until five (5) years from the termination or expiration of this Agreement 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.

7.4 “Confidential Information” refers to any proprietary information, software, data or know-how of the Discloser that is disclosed under this Agreement 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 Product Software, Documentation, Operational Data 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, and except with respect to any personal data contained therein, the use and disclosure of which is addressed and subject to Eaton’s Privacy Notice. 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 this Agreement by Recipient; (iii) has rightfully been received by Recipient  from a third party without any breach of this Agreement; (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.

8. Term & Termination; Suspension.

8.1 Term. This Agreement and the license granted hereunder, shall come into force on the activation of Your Product Software license and shall continue in full force and effect for the Term unless this Agreement is terminated as described herein.

8.2 Termination or Suspension. 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 Product Software or parts thereof, if (i) 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 Product Software, (ii) You breach any obligation relating to Eaton’s (or its suppliers’) intellectual property rights, (iii) Eaton reasonably believes that You are, have been, or are likely to be involved in any fraudulent, misleading, or unlawful activities, or (iv) in order to comply with any law, regulation, government or court order. If You use multiple accounts, Eaton may take action against all Your accounts.

8.3 Termination for Material Breach. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.  For the avoidance of doubt, any unauthorized use, copying, modification, reverse engineering, disclosure, distribution or sublicensing of the Intellectual Property Rights in the Product Software, Documentation, or Materials 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.

8.4 Termination for Bankruptcy. Either party may terminate this Agreement if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

8.5 Effect of Termination. 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 Product Software, Documentation and Materials; (iii) You must immediately delete, remove and cease access to the Product Software, Documentation, and Materials from all Eaton Hardware or Authorized Hardware on which the Product Software has been installed and all copies of the Product Software, Documentation and Materials 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 Eaton Hardware or Authorized Hardware and remove the Product Software, Documentation and Materials, and cease providing You with access to the Product Software, Documentation and Materials.

8.6 Disclaimer. Eaton will not be liable to You for any claims or damages of any kind arising out of termination or suspension in accordance with this Section 8.

8.7 Survival. Sections 1, 3, 5-9, 11-14, and 16-21 shall survive termination or expiration of this Agreement.

9. Fees and Payment Terms.

The payment terms below only apply when you purchase Product Software directly from Eaton and only to the extent these terms do not conflict with an Order accepted by Eaton.  When you purchase from a Channel Partner, the payment terms are between You and the Channel Partner.

9.1 Fees. You agree to pay all fees, charges and taxes for the Product Software (collectively, “Fees”), within thirty (30) days from the date on the applicable invoice. Eaton reserves the right to change the amount of, or basis for determining, any Fees, and to institute new Fees, effective upon prior notice to You.

9.2 Non-Payment; Late Payments. Eaton may suspend your license to the Product Software or terminate this Agreement for non-payment by You, as set forth in Section 8.  You may be subject to payment of a late fee of 1.5% per month, or as otherwise set forth in the applicable Order, or the maximum rate permitted under applicable Law, whichever is lower.  You agree to compensate Eaton for all costs of collection incurred by Eaton for past due sums, including without limitation, collection agency fees, reasonable attorneys’ fees and court costs.

9.3 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 Product Software (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 Product Software 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.     

10. Support Services.

10.1 For Perpetual Licenses. If You purchased perpetual licenses, You must purchase a support and maintenance plan to receive support services for the Product Software. Such support and maintenance plan may only be purchased in twelve (12) month increments. Subject to Your payment in full for such support services, Eaton will provide You with Eaton’s standard customer support services in accordance with the Eaton support schedule then in effect and fully incorporated herein by reference (“Support Schedule”). 

10.2 For Subscriptions. Subscription fees include support services and Eaton will provide You with Eaton’s standard customer support services in accordance with the Support Schedule for the Term of your subscription.

10.3 Eaton may amend the Support Schedule from time to time in its sole discretion by providing prior notice to you, which may be provided via email.

11. Warranties and Disclaimer.

11.1 You undertake, represent and warrant that:

(a)  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 Product Software or results from Your obligations under this Agreement. Without limiting the foregoing, You shall comply with all contracting and procurement regulations associated with the Product Software;

(b)  You have full power and authority to enter into this Agreement; and

(c) You shall make no representations, warranties, or guarantees on behalf of Eaton.

11.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT SOFTWARE, THE DOCUMENTATION, THE MATERIALS AND ANY OTHER INFORMATION AND ANY SERVICES PERFORMED OR PROVIDED BY OR IN CONNECTION WITH THE PRODUCT SOFTWARE 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 PRODUCT SOFTWARE, THE DOCUMENTATION, THE MATERIALS AND ANY OTHER INFORMATION AND ANY SERVICES PERFORMED OR PROVIDED BY OR IN CONNECTION WITH THE PRODUCT SOFTWARE, WHETHER 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 PRODUCT SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PRODUCT SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, TIMELY, SECURE, OR THAT DEFECTS OR ERRORS IN THE PRODUCT SOFTWARE  WILL BE CORRECTED, OR THAT THE PRODUCT SOFTWARE WILL BE COMPATIBLE WITH ANY SYSTEM, OR THAT THE PRODUCT SOFTWARE WILL BE FREE FROM WORMS, VIRUSES, MALWARE, TROJAN HORSES, OR OTHER HARMFUL OR DISABLING COMPONENTS.

11.3 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 PRODUCT SOFTWARE, DOCUMENTATION, MATERIALS OR ANY RELATED GOODS OR SERVICES. IF YOU ARE DISSATISFIED WITH THE PRODUCT SOFTWARE, DOCUMENTATION, MATERIALS AND/OR ANY RELATED GOODS OR SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE PRODUCT SOFTWARE.

12. LIMITATION OF 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 product software OR THE PROVISION OR FAILURE TO PROVIDE THE product software 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 product software SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY YOU FOR THE product software IN THE TWELVE (12) MONTH PERIOD BEFORE THE CLAIM AROSE. THE FOREGOING LIMITATIONS AND DISCLAIMERS APPLY TO DAMAGES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

13. Indemnification.

13.1 Eaton Indemnification. Eaton will indemnify, defend and hold You and Your Authorized Users harmless against any losses, damages, expenses or liabilities arising from claims specifically alleging that Your use of the Product Software 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 Product Software in violation of this Agreement or the Documentation, or due to unauthorized modifications or combinations of the Product Software with and into other technologies or services without Eaton’s written consent. If Eaton is obligated to indemnify You under this Section 13 or if it reasonably believes it may have liability under this Section 13, Eaton may, in addition to its other obligations hereunder: (a) obtain for You the right to continue using the allegedly infringing Product Software on a non-infringing basis; or (b) modify or replace the allegedly infringing Product Software so it is no longer infringing but maintain materially equivalent or better functionality, performance and interoperability. If neither of the foregoing options are commercially feasible, Eaton may discontinue the  allegedly infringing Product Software and terminate the applicable Order; provided that, it will issue You a pro rata refund or credit for any prepaid fees for the allegedly infringing Product Software for the remainder of the Term or, for Product Software subject to a perpetual license, fees paid for the Product Software, depreciated on a straight line basis, assuming a useful life of five (5) years. 

13.2 Customer Indemnification. 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 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 person from use of the Product Software in violation of this Agreement; (c) any materials or information (including any documents, data, specifications, software, content or technology) provided by You or on Your behalf, including Eaton’s compliance with any specifications or directions provided by You or on Your behalf to the extent prepared without any contribution by Eaton, (d) violation or non-compliance with any applicable law, rule, guidelines, acts, decrees, orders or regulations; (e) use, alteration or export of the Product Software (or any component thereof); (f) the use of the Product Software by You or any person using Your account; or (g) Your negligence or more culpable acts or omissions (including recklessness or willful misconduct) in connection with this Agreement.

13.3 Indemnification Procedure. The party seeking indemnification (“Indemnitee”) must give the other party (“Indemnitor”) prompt written notice of any claim for indemnification under this Section 13; provided that, the failure or delay in doing so will not excuse Indemnitor of its indemnification obligations except to the extent its ability to defend the claim is materially prejudiced by such failure or delay. Indemnitor shall thereafter promptly assume control of the investigation, defense, and settlement of the claim, and shall employ counsel of its own choice to handle and defend the same, at its sole cost and expense. Indemnitee shall reasonably cooperate with Indemnitor in the investigation, trial and defense of such claim and any appeal arising therefrom at Indemnitor’s expense. Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.  Indemnitor shall not settle any claim on any terms in any manner that adversely affects the rights of any Indemnitee without Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed.

13.4 Exclusive Remedy. This Section 13 states Eaton’s sole obligation, and Your sole and exclusive remedy with respect to infringement of proprietary and Intellectual Property Rights.

14. Export Regulation.

You agree to abide by and to conform to any and all export rules and regulations in force during this Agreement that are applicable to You or the Product Software provided, including but not limited to any export rules and regulations of the United States of America.  You understand that these rules and regulations may prohibit the export or re-export of Documentation, and any underlying information and technology or technical data related to the Product Software. 

15. Modifications.

Eaton reserves the right to change or modify the terms of this Agreement upon prior written notice to You, which may be provided via email. All such changes will: (a) be applied prospectively; and (b) will apply to all similarly situated users of the Product Software. If any changes to this Agreement are unacceptable to You, Your sole and exclusive remedy is to terminate your access to the Product Software 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 Product Software following the effective date of any changes or clicking “ACCEPT” or a similar button constitutes Your acceptance of the changes but does not affect the foregoing right of termination.

16. Audits. 

16.1 Eaton or its designee (including its accountants and auditors) may, in Eaton’s sole discretion, inspect and audit Your use of the Product Software under this Agreement at any time during the Term and for one (1) year following the termination or earlier expiration of the Term.  All audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with Your business operations. You shall make available all such books, records, equipment, information and personnel, and provide all such cooperation and assistance as may be requested by or on behalf of Eaton with respect to such audit.

16.2 If the audit determines that Your use of the Product Software exceeded the usage permitted by this Agreement or the Order, You shall pay to Eaton all amounts due for such excess use of the Product Software, plus interest on such amounts, as calculated pursuant to Section 9.2.  If the audit determines that such excess use equals or exceeds five percent (5%) of Your permitted level of use, You shall also pay to Eaton all costs incurred by Eaton in conducting the audit.  You shall make all payments required under this Section 16.2 within thirty (30) days of written notification of the audit results.

17. For Consumers in California.

17.1 For the purpose of this Section 17, a “Consumer” means a natural person who buys any goods or services for personal, family, or household use, and not for the purposes of resale or business use.

17.2 If you are a Consumer who resides in California and have any questions or complaints about the use of the Eaton provided Product Software, You may 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. Links.

The Product Software 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 judgment about whether to use any such independent sites, including whether to buy any products or services offered by them.

19. Miscellaneous.

19.1 Except as otherwise provided herein, notices under this Agreement 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 at the attention of Your designated contact person or to the applicable Channel Partner.  Notice required to be given to Eaton should be sent in accordance with the instructions in Section 20.

19.2 The Order, and any Eaton Selling Policy attached thereto, and this Agreement and any other terms and conditions incorporated into this Agreement by reference constitutes the complete agreement between Eaton and You regarding use of the Product Software and supersedes all previous communications between the parties relating to the subject matter herein. Except for Section 9 (Fees & Payment Terms), in the event of a conflict between the terms of this Agreement and any Order or Eaton Selling Policy, the following order of precedence shall govern: (i) this Agreement, (ii) the Eaton Selling Policy, and (iii) the applicable Order.  No terms or conditions stated in a purchase order or any other ordering documentation (excluding an Order) submitted by You shall be incorporated into or form any part of this Agreement, and all such terms and conditions are hereby rejected and shall be null and void.   

19.3 You may not assign this Agreement or the license granted hereunder by operation of law or otherwise without Eaton’s prior written consent.  For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving You (regardless of whether You are a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Eaton’s prior written consent is required. No assignment, delegation, or transfer will relieve You of any of Your obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 19.3 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.

19.4 No waiver by Eaton of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by Eaton.  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. 

19.5 Choice of Law.

(a) For Sales in North America. These Terms of Service shall be governed by the laws of the State of Ohio without reference to its conflicts of law principles.  Each party hereby consents to the exclusive personal jurisdiction, procedure and venue of the federal and state courts located in Cuyahoga County, Ohio. The parties expressly exclude the United Nations Conventions on Contracts for the International Sale of Goods from application to these Terms of Service and dispute resolution processes. 

(b) For Sales in Brazil.  This Agreement shall be governed by Brazilian law. The Parties elect the court of the District of Porto Feliz, State of São Paulo, to resolve any doubts, conflicts, or disputes related to this contract, to the exclusion of any other, however privileged it may be or may become.

(c) For Sales in All Other Regions. These Terms of Service and any dispute or non-contractual obligation arising out of, or in connection with, it shall be governed by, and construed in accordance with, the laws of Ireland. You agree that the courts of Ireland are to have exclusive jurisdiction to settle any dispute (including claims for set off and counterclaims), claims, actions, suits or other proceedings which may arise in connection with the creation, validity, effect, interpretation or performance of, or the legal relationships established by, these Terms of Service or otherwise arising in connection with these Terms of Service and for such purposes irrevocably submit to the jurisdiction of the Irish courts. Notwithstanding the foregoing, any dispute or non-contractual obligation arising out of, or in connection with these Terms of Service, may be resolved by arbitration in accordance with the UNCITRAL Arbitration Rules. The parties shall seek to jointly appoint a single arbitrator. If they fail to reach an agreement to the name of the arbitrator within a period of fifteen (15) Business Days from the time when either party proposes the name of an arbitrator to the other party, then either party may apply to the Chairman of the Chartered Institute of Arbitrators in Ireland to nominate an arbitrator and that nominated person shall be the sole arbitrator for the purposes of these Terms of Service (the “Arbitrator”). The Arbitrator shall take its decision under Irish law and not in equity, and the decision of the Arbitrator shall be final and binding (save for fraud or manifest error). The place of arbitration shall be Dublin and the language of the arbitration shall be English.

19.6 Portions of the Product Software may utilize or include third party software, open source software, third party equipment or devices that connect and exchange data over the internet such as internet-of-things devices, and other copyrighted material (“Third Party Materials”). Use of such Third Party Materials is governed exclusively by their respective terms and not by this Agreement.  The Third Party Materials are not licensed or warranted under this Agreement, but are instead subject to the applicable license agreements, terms of service, or similar terms provided or made available by such third parties (“Third Party Terms”).  You agree that (a) Your use of Third Party Materials will at all times comply with the appliable Third Party Terms, and (b) Eaton has the right to export and import Customer Data to and from such Third Party Materials for purposes of delivering the Product Software purchased by You.  You understand and agree that the availability of the Product Software, or certain features and functions thereof, is dependent on the corresponding availability of Third Party Materials.  Eaton will not be liable to You or any third party in the event that changes in the Third Party Materials cause the unavailability of the Product Software, or any feature or function thereof.  Eaton does not make any representations or warranties regarding any such Third Party Materials, and Eaton does not provide maintenance and support, service level commitments, or indemnification for Third Party Materials. 

19.7 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, including (i) acts of god; (ii) flood, fire, earthquake, pandemics, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities (“Force Majeure”).

19.8 You agree that Eaton may reference You as a user of the Product Software in marketing materials and in sales presentations. Eaton may use Your name and logo in connection with such activities. You agree to participate in case studies and act as a reference, to the extent requested by Eaton.

19.9 If any part of this Agreement 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 this Agreement will remain in full force and effect. The waiver by a party of any breach of any provision of this Agreement must be in writing and will not operate or be construed as a waiver of any subsequent breach. The captions used in this Agreement are for convenience only and are not binding.

19.10 The relationship between the parties is that of independent contractors.  Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

19.11 You acknowledge and agree that a breach or threatened breach by You of any of Your obligations under Section 3, Section 4, or Section 9 would cause Eaton irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Eaton will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

19.12 When permitted by applicable law, Eaton and You each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.  Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

19.13 In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its actual attorneys' fees and court costs from the non-prevailing party.

19.14 This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

19.15 No action arising under or in connection with this Agreement or any Order, regardless of the form, may be brought by You more than one (1) year after the cause of action arose.

20. Dispute Resolution.

20.1 The parties will attempt to resolve all disputes, claims, or controversies arising under or related to this Agreement or its subject matter or any right or obligation created by this Agreement (“Dispute”) through good faith negotiations conducted by executives of the parties. The party asserting the Dispute will give notice to the other party describing the Dispute in reasonable detail.  If the parties are unable to resolve the Dispute within 30 days following the initiation of such negotiations, then the Dispute will be resolved in accordance with Section 20.2.

20.2 For Disputes in North America.  Notwithstanding anything contained in this Agreement to the contrary, all disputes arising under this Agreement which cannot be resolved under Section 20.1, will, before the institution of legal proceedings (except legal proceedings which seek equitable relief), be submitted to non-binding mediation among the parties and a mediator to be jointly selected by the parties.  A party seeking to resolve a dispute hereunder shall notify the other party, in writing, that it wishes to begin the mediation process.  Upon receipt of such written notice, the parties shall attempt to mutually select a mediator.  If the parties are unable to agree on a mediator within ten days, each party shall, within two days, submit a proposed mediator, and the proposed mediators designated by the parties shall, within seven days, select a mediator.  The mediation process shall be deemed initiated upon the receipt of the aforementioned written notice by the receiving party. The parties agree to forebear from instituting legal proceedings (except legal proceedings which seek injunctive or other equitable relief) for a period of 60 days following the initiation of mediation.  If a dispute is not resolved by mediation within such 60-day period, then the parties may exercise their rights to pursue any and all legal remedies which may be available to them under this Agreement and applicable law.

20.3 For Disputes in Brazil.  Notwithstanding anything contained in this Agreement to the contrary, all disputes or non-contractual obligations arising out of, or in connection with these Terms of Service which cannot be resolved under Section 20.1, shall be submitted to the exclusive jurisdiction of court of the District of Porto Feliz, São Paulo, Brazil. The parties hereby irrevocably submit to the jurisdiction of such courts and waive any objection to the venue or jurisdiction of such courts, including any objection based on the grounds of forum non conveniens.

20.4 For Disputes in All Other Regions. Notwithstanding anything contained in this Agreement to the contrary, all disputes or non-contractual obligation arising out of, or in connection with these Terms of Service which cannot be resolved under Section 20.1, may be resolved by arbitration in accordance with the UNCITRAL Arbitration Rules. The parties shall seek to jointly appoint a single arbitrator. If they fail to reach an agreement to the name of the arbitrator within a period of fifteen (15) business days from the time when either party proposes the name of an arbitrator to the other party, then either party may apply to the Chairman of the Chartered Institute of Arbitrators in Ireland to nominate an arbitrator and that nominated person shall be the sole arbitrator for the purposes of these Terms of Service (the “Arbitrator”). The Arbitrator shall take its decision under Irish law and not in equity, and the decision of the Arbitrator shall be final and binding (save for fraud or manifest error). The place of arbitration shall be Dublin, Ireland and the language of the arbitration shall be English

21. Legal Notices to Eaton.

All legal notices pertaining to this Agreement must be directed to Eaton at:

Eaton
Attn: Digital Law
1000 Eaton Boulevard
Mail Code 4N
Cleveland, OH 44122
with a copy to BLlegal@eaton.com