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Last Updated: April 7, 2025
CAREFULLY READ THESE TERMS OF SERVICE FOR BRIGHTLAYER CLOUD SERVICES. BY ACCESSING AND USING THE BRIGHTLAYER CLOUD 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 USE THE BRIGHTLAYER CLOUD SERVICES. EXCEPT AS EXPRESSLY STATED HEREIN, THESE TERMS OF SERVICE DO NOT APPLY TO THE PURCHASE, DELIVERY, OR OTHER MAINTENANCE OR SUPPORT SERVICES FOR OTHER EATON PRODUCTS OR SERVICES, WHICH SHALL BE GOVERNED BY THE TERMS OF YOUR SEPARATE PURCHASE AGREEMENT FOR SUCH EATON PRODUCTS AND SERVICES.
These Terms of Service govern Your use of the Brightlayer Cloud Services however acquired, including via Channel Partner (as such term is defined herein) of Eaton. These Terms of Service are by and between Eaton Corporation (“Eaton”), and the entity (corporation, limited liability company, limited partnership, etc.) or a natural person (acting in their individual capacity) that activates the subscription for the Brightlayer Cloud Services or directs or requests such subscription activation on its behalf (“You” or “Your”). For purposes of these Terms of Service, any reference to “Eaton” shall include Eaton Corporation, its holding company, its affiliates and subsidiaries.
1. 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 Cloud Services.
“Aggregate Data” means aggregated and anonymized Customer Data.
“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 Cloud Services solely on Your behalf, which may include, employees, temporary employees, and independent contractors but no other third parties without Eaton’s prior written consent.
“Brightlayer Cloud Services” means the internet-based Brightlayer software services described in the applicable Order. The Brightlayer Cloud Services also include the Documentation associated with the Brightlayer Cloud Services and all modifications, improvements or Updates to the Brightlayer Cloud Services, each as provided to You from time to time.
“Channel Partner” means an authorized distributor or reseller of the Brightlayer Cloud Services.
“Customer Data” means any information transmitted to the Brightlayer Cloud Services or otherwise uploaded or stored to the Brightlayer Cloud Services by You or Your Authorized Users in connection with Your or Your Authorized Users’ use of the Brightlayer Cloud Services, including information necessary to set up Your account.
“Documentation” means user manuals, online help files, technical manuals, and other materials made available by Eaton which describe the Brightlayer Cloud Services and its uses, features, specifications, and/or technical requirements.
“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” means the quote, order form, purchase order or similar document that sets forth the specific Brightlayer Cloud Services stock keeping unit (“SKU(s)”) that You are subscribing to, together with all other pertinent details of your subscription, such as 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 Cloud Services. Operational Data includes, but is not limited to, operational information such as energy and product usage and consumption, usage recommendations and other information, Customer Data, and the results generated through use of the Brightlayer Cloud Services (such as operational information associated with Your or Your Authorized Users’ access and use of the Brightlayer Cloud 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 Cloud 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 to the Brightlayer Cloud Services based on the SKU(s) for the Brightlayer Cloud Services to which you subscribe.
“Update” or “Updates” has the meaning ascribed thereto in the Support Schedule.
2. Brightlayer Cloud Services.
2.1 Access Rights. Eaton hereby grants to You and Your Authorized Users during the Subscription Term, a revocable, non-exclusive, non-transferable, non-sublicensable, limited right and license to (a) access and use the Brightlayer Cloud Services identified in your Order for Your internal business purposes and (b) use the Documentation in connection with such rights, subject to the terms of, and You and Your Authorized Users’ compliance with, the Order, the Documentation, and these Terms of Service. All rights not expressly granted to You are reserved to Eaton.
2.2 Use of Operational Data and Aggregate Data. Eaton and its cloud service suppliers may automatically collect Operational Data, and may use such Operational Data and Aggregate Data to monitor, analyze, develop, support, or improve the performance of the Brightlayer Cloud Services and otherwise for Eaton’s business purposes, including, without limitation, for monitoring, analyzing, developing and supporting the Brightlayer Cloud Services; to perform market research; to improve Eaton’s products and services; for algorithm development and verification; and to develop other products, services and technologies; and for commercialization and quality improvement initiatives.
2.3 Service Levels. Eaton will use commercially reasonable efforts to make Brightlayer Cloud Services accessible to You and Your Authorized Users. For Brightlayer Cloud Services defined as in-scope Cloud Offerings in Schedule A to Eaton’s Service Level Addendum, Eaton will use commercially reasonable efforts to make the Cloud Offerings accessible to You and Your Authorized Users in accordance with the service levels available at slas for brightlayer cloud services and fully incorporated herein by reference. Eaton may amend the service levels from time to time in its sole discretion by providing prior notice to you, which may be provided via email, and such updates shall become effective on the date set forth in such notice.
2.4 Changes; Discontinuance. Eaton reserves the right, in its sole discretion, to make any changes to the Brightlayer Cloud Services and Documentation that it deems necessary or useful, including to: (a) maintain or enhance: (i) the quality or delivery of Eaton’s products and services to its customers; (ii) the competitive strength of or market for Eaton’s products and services; or (iii) the cost efficiency or performance of the Brightlayer Cloud Services; or (b) to comply with applicable law. Eaton may discontinue the Brightlayer Cloud Services upon written notice, including by publicly posting such notice on Eaton’s website, subject to Eaton’s then-current Software Guidelines for Life-Cycle Management available at end of life policy and fully incorporated herein by reference.
2.5 Evaluations. From time to time, Eaton may make certain Brightlayer Cloud Services 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 Brightlayer Cloud Services may have limited features, functions, and other technical limitations. Notwithstanding anything to the contrary in these Terms of Service 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. These Terms of Service will govern your use of Brightlayer Cloud Service purchased through a Channel Partner. However, Your payment obligations for Brightlayer Cloud Services will be with the Channel Partner, and not Eaton. Any terms agreed to between You and the Channel Partner that are in addition to these Terms of Service 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 Brightlayer Cloud Services.
3. Usage Restrictions. In addition to any other limitations set forth herein and in the Order, You agree not to: (i) copy, download, modify, or translate any software and/or database hosted as part of the Brightlayer Cloud Services in any manner not authorized by these Terms of Service; (ii) reverse engineer, decompile, or disassemble any software and/or database hosted as part of the Brightlayer Cloud Services, or otherwise attempt to discover the underlying source code of the Brightlayer Cloud Services except to the extent permitted by applicable law; (iii) tamper with, bypass or alter the security features of the Brightlayer Cloud Services or any of the hosted infrastructure, (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the Brightlayer Cloud Services or any features or functionality of the Brightlayer Cloud Services to any person or entity other than Your Authorized Users, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service, or use the Brightlayer Cloud Services to run an outsourcing business; (v) use the Brightlayer Cloud Services or Documentation in violation of any law, regulation, or rule including for any illegal, obscene or threatening purpose or use or access the Brightlayer Cloud Services in any manner or for any purpose that infringes, misappropriates, or violates the intellectual property right or any other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of any data of any other Eaton customer); (vi) use the Brightlayer Cloud Services 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; (vii) damage, destroy, disable, impair, interfere with or disrupt, or otherwise impede or harm in any manner, the integrity or performance of the Brightlayer Cloud Services or the data contained therein; (viii) use the Brightlayer Cloud Services to store or transmit infringing, libelous, offensive, unlawful or tortious or otherwise harmful material; (ix) disseminate performance-related information relating to the Brightlayer Cloud Services; (x) use the Brightlayer Cloud Services to store or process any personal data; (xi) remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; (x) except where expressly permitted by the Documentation, access or use the Brightlayer Cloud Services 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 (xi) otherwise access or use the Brightlayer Cloud Services beyond the scope of the authorization granted under Section 2.1.
You ensure that Your and Your Authorized Users’ usage of the Brightlayer Cloud Services does not exceed the usage terms set forth in these Terms of Service and the applicable Order and shall be liable for any excess usage at Eaton’s then current rates during the period in which usages exceeds the licensed amount. You remain responsible for actions of Your Authorized Users in their accessing and using the Brightlayer Cloud Services and for payment of any new services added by Your Authorized Users.
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 access to or use of the Brightlayer Cloud Services or to Your downloading of any material posted on it, or any website linked to it.
4. Your Obligations; Customer Data.
4.1 Only Authorized Users may use the Brightlayer Cloud Services and solely for Your internal business purposes. All use of the Brightlayer Cloud Services by Your Authorized Users must comply with these Terms of Service. Your Authorized Users will be granted access to the Brightlayer Cloud 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 or if You become aware of or suspect any unauthorized, access, use, or misuse of the Brightlayer Cloud Services. You are liable for, and shall defend, 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 4 and any terms incorporated by reference into these Terms of Service) and for any use of the Brightlayer Cloud Services through Your or Your Authorized Users’ Access Credentials. You shall implement appropriate security measures to safeguard Your and Your Authorized Users’ Access Credentials, and You are responsible for the use of the Brightlayer Cloud Services by any person who gains access to the Brightlayer Cloud Services, directly or indirectly, by or through the use of Your or Your Authorized Users’ access credentials, with or without Your knowledge or consent.
4.2 You must maintain all hardware, software, and network connectivity needed to connect to and receive the Brightlayer Cloud Services, including but not limited to the minimum (system) requirements set forth in the Documentation, if any.
4.3 You own all Customer Data. You are responsible for: (i) the provision and use of Customer Data with the Brightlayer Cloud Services; (ii) the accuracy, quality, legality and content of the Customer Data; (iii) assessing the Brightlayer Cloud Services suitability for Your intended use; and (iv) obtaining all necessary rights, consents and permissions necessary for Eaton and its cloud service suppliers to access and use Customer Data. You will comply with all applicable laws, in Your provision and use of Customer Data in connection with the Brightlayer Cloud Service. You hereby grant to Eaton and its cloud service suppliers a worldwide, irrevocable, non-transferable, non-assignable (except as permitted under these Terms of Service), sub-licensable, non-exclusive license to access, retrieve, store, copy, display, distribute, transmit, create derivative works from, and otherwise use Customer Data associated with the Brightlayer Cloud Services as follows:
(a) In connection with maintaining, providing, and/or making available the Brightlayer Cloud Services; and
(b) As reasonably required 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 acknowledge and agree that Eaton is not responsible for backing up any Customer Data provided in connection with the Brightlayer Cloud Services.
4.4 These Terms of Service govern Eaton’s collection and usage of Customer Data. You acknowledge and agree that Eaton may use the Customer Data to provide the Brightlayer Cloud Services to You and as otherwise set forth in these Terms of Service and in the then-current version of the Eaton Privacy Notice available at: privacy notice and fully incorporated herein by reference (the “Privacy Notice”). By submitting or transmitting Customer Data to the Brightlayer Cloud 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.
4.5 For any EU or China Customers: You acknowledge and agree that Eaton or its subprocessors may transfer Personal Data, Customer Data, and Operational Data outside of the EU or China for the purpose of providing the Brightlayer Cloud 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 such Personal Data, Customer Data, and Operational Data in accordance with applicable laws, including Applicable Data Protection Law, which may include without limitation executing appropriate contractual clauses based on and conforming to the EU or China model clauses.
4.6 You agree to implement commercially reasonable actions and precautions to prevent the introduction and proliferation of viruses and Malicious Code in the Brightlayer Cloud Services.
4.7 You agree to reasonably cooperate with any investigations or audits by Eaton into service outages, security problems, connectivity issues, and/or Your compliance with these Terms of Service. You agree not to seek to block or otherwise interfere with such investigations or audits.
5. Security. Eaton will implement and maintain appropriate technical, physical and organizational controls designed to (i) secure the Brightlayer Cloud Services and (ii) protect the security, confidentiality, and integrity of Your Customer Data. Such controls will include a commercially reasonable business continuity and disaster recovery plan, and Eaton will conduct tests of this plan at least annually. Eaton will also implement and maintain industry standard anti-virus and encryption software.
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: www.eaton.com/assemblies-security. 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 Brightlayer Cloud Services, unless authorized 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 Brightlayer Cloud Services not authorized 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/products.
6. Intellectual Property Rights.
6.1 The Brightlayer Cloud 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 (and its licensors) retains all right, title and interest in and to the Brightlayer Cloud 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 Cloud Services. Nothing herein shall operate to transfer or convey to You any rights in the Brightlayer Cloud Services and/or software or databases hosted as part of the Brightlayer Cloud 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 Cloud 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 Cloud Services 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 and Aggregate Data.
6.2 All trademarks on or related to Brightlayer Cloud 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.
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 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.
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 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.
7.4 “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 Cloud Services, Documentation, Operational Data, and Aggregate 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 or any Authorized User, 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 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.
8. Term & Termination; Suspension.
8.1 Term. These Terms of Service shall continue in full force and effect for the Subscription Term unless these Terms of Service are terminated as described herein.
8.2 Termination or Suspension. Eaton may, at its option, terminate these Terms of Service for cause or suspend the Brightlayer Cloud Services if: (i) Eaton reasonably believes that the Brightlayer Cloud Services are being used in violation of law or the terms of these Terms of Service; (ii) Your or Your Authorized Users’ use of the Brightlayer Cloud Services interferes with the normal operations of the Brightlayer Cloud Services or other customers’ use of the same; (iii) there is an attack on the Brightlayer Cloud 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 Cloud 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 or Your Authorized User(s) breach any obligation relating to Eaton's (or its suppliers’) intellectual property rights; (vi) Eaton reasonably believes that You or Your Authorized User(s) are, have been, or are likely to be involved in any fraudulent, misleading, or unlawful activities; (vii) in order to comply with any law, regulation, government or court order, or (viii) prevent any degradation of the Brightlayer Cloud Services. 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.
8.3 Termination for Material Breach. Either party may terminate these Terms of Service, effective on written notice to the other party, if the other party materially breaches these Terms of Service, 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 Brightlayer Cloud Services or any related Documentation, methods, algorithms, techniques or processes by You, Your employees, agents, representatives, officers or directors will be deemed a material breach of these Terms of Service that cannot be cured, and termination may be immediate.
8.4 Termination for Bankruptcy. Either party may terminate these Terms of Service 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 of these Terms of Service: (i) You will cease using the Brightlayer Cloud Services, and all rights, licenses, consents, and authorizations to access and use the Brightlayer Cloud Services will automatically terminate; (ii) if Eaton terminates these Terms of Service pursuant to Section 8.2 or 8.3, all fees that would have become payable had these Terms of Service remained in effect until expiration of the applicable Subscription Term will become immediately due and payable, and You shall pay such Fees, together with all previously accrued but not yet paid Fees, on receipt of Eaton’s invoice therefor; (iii) if You terminate these Terms of Service pursuant to Section 8.3, You will be relieved of any obligation to pay fees attributable to the period after the effective date of such termination; (iv) You will permanently delete or destroy Eaton’s Confidential information (including any downloads and backup copies of Eaton information obtained from the Brightlayer Cloud Services), provided that You may retain Eaton’s Confidential Information in your backups, archives, and disaster recovery systems until such Confidential Information is deleted in its ordinary course and otherwise as required by applicable law. Upon request, You agree to provide Eaton with written certification by an authorized officer that all information from the Brightlayer Cloud Services has been removed and deleted from all of Your hardware and storage devices.
8.6 Return of Customer Data. At any time prior to termination or expiration of these Terms of Service, You may request that Eaton continue to retain Customer Data for a period to be agreed by the Parties in writing, provided You pay in full all fees due to Eaton as of the effective date of such termination or expiration. To the extent Eaton agrees to retain Customer Data, such Customer Data shall be retained at Eaton’s then-standard rates for such data storage, or if such rates are not in effect, such reasonable prevailing industry standards rates as may be agreed to by the parties in writing.
8.7 Disclaimer. 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 Cloud Services in accordance with this Section 8.
8.8 Survival. Sections 1, 2.2, 3, 4.3-4.7, 6-9, 11-14, 16, and 18-21 shall survive termination or expiration of these Terms of Service.
9. Fees and Payment Terms.
The payment terms below only apply when You purchase Brightlayer Cloud Services 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 Brightlayer Cloud Services (collectively, “Fees”), within thirty (30) days from the date on the applicable invoice. At time of renewal of Your Subscription Term, Eaton reserves the right to change the amount of, or basis for determining, any Fees, and to institute new Fees, effective upon renewal of the Subscription Term or otherwise upon prior notice to You.
9.2 Non-Payment; Late Payments. Eaton may suspend the Brightlayer Cloud Services or terminate these Terms of Service 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 Brightlayer Cloud 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 Cloud 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.
10. Support Services.
The Brightlayer Cloud Services include Eaton’s standard customer support services in accordance with the Eaton support schedule then in effect and available at support schedule and fully incorporated herein by reference (“Support Schedule”). 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 these Terms of Service and/or the provision of the Brightlayer Cloud Services or results from Your obligations under these Terms of Service. Without limiting the foregoing, You shall comply with all contracting and procurement regulations associated with the Brightlayer Cloud Services;
(b) You have full power and authority to enter into these Terms of Service; and
(c) You shall make no representations, warranties, or guarantees on behalf of Eaton.
11.2 ALL BRIGHTLAYER CLOUD SERVICES ARE PROVIDE “AS AVAILABLE” AND “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EATON DISCLAIMS ALL 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, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EATON DOES NOT REPRESENT THAT THE BRIGHTLAYER CLOUD SERVICES WILL BE COMPLETELY SECURE OR WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE SYSTEM OR OTHER SERVICES, OR THAT THE OPERATION OF, OR ACCESS TO, THE BRIGHTLAYER CLOUD SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE BRIGHTLAYER CLOUD SERVICES WILL BE CORRECTED.
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 BRIGHTLAYER CLOUD SERVICES. IF YOU ARE DISSATISFIED WITH THE BRIGHTLAYER CLOUD SERVICES, DOCUMENTATION, AND/OR ANY RELATED GOODS OR SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE BRIGHTLAYER CLOUD SERVICES.
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 BRIGHTLAYER CLOUD SERVICES OR THE PROVISION OR FAILURE TO PROVIDE THE BRIGHTLAYER CLOUD SERVICES OR SUPPORT THEREFOR, WHETHER OR NOT DUE TO EATON’S NEGLIGENCE. EATON’S TOTAL, AGGREGATE LIABILITY FOR ANY DAMAGES OR CLAIMS ARISING UNDER THESE TERMS OF SERVICE OR RELATED TO THE BRIGHTLAYER CLOUD SERVICES SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY YOU FOR ACCESS TO THE BRIGHTLAYER CLOUD SERVICES UNDER THE APPLICABLE ORDER 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 Brightlayer Cloud 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 Cloud Services in violation of these Terms of Service or the Documentation, or due to unauthorized modifications or combinations of the Brightlayer Cloud Services 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 Brightlayer Cloud Services on a non-infringing basis; or (b) modify or replace the allegedly infringing Brightlayer Cloud Services so they are 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 provisioning of the allegedly infringing Brightlayer Cloud Services 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 Brightlayer Cloud Service for the remainder of Your Subscription Term.
13.2 Customer Indemnification. You shall indemnify, defend, and hold Eaton, its Affiliates, and each of its and their respective officers, directors, employees, agents, licensors, authorized representatives, attorneys, business partners, and successors and assigns from and against any losses, damages, expenses or liabilities resulting from any claim by a third party that arises out of or results from (a) Customer Data, including processing of any Customer Data by or on behalf of Eaton in accordance with these Terms of Service, (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of You or Your Authorized Users, including Eaton’s compliance with any specifications or directions provided by or on behalf of You or Your Authorized Users to the extent prepared without any contribution by Eaton, (c) any use, alteration, or export of the Brightlayer Cloud Services in violation of these Terms of Service; (d) use of the Brightlayer Cloud Services by You, any Authorized User, or any other person using Your account; (e) breach or violation of these Terms of Service; (f) infringement, misappropriation, or violation of the rights of any other person from use of the Brightlayer Cloud Services in violation of these Terms of Service; (g) violation or non-compliance with any applicable law, rule, guidelines, acts, decrees, orders or regulations; or (h) negligence or more culpable acts or omissions (including recklessness or willful misconduct) by You, any Authorized User, or any third party on behalf of You or any Authorized User in connection with these Terms of Service.
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 these Terms of Service that are applicable to You or the Brightlayer Cloud Services 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 Brightlayer Cloud Services.
15. Modifications. Eaton reserves the right to change or modify the terms of these Terms of Service upon prior 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 Brightlayer Cloud Services. If any changes to these Terms of Service are unacceptable to You, Your sole and exclusive remedy is to terminate Your access to the Brightlayer Cloud 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 Cloud Services following the effective date of any changes or clicking an “I 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 Brightlayer Cloud Services under these Terms of Service at any time during the Subscription Term and for one (1) year following the termination or earlier expiration of the Subscription 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 Brightlayer Cloud Services exceeded the usage permitted by these Terms of Service or the Order, You shall pay to Eaton all amounts due for such excess use of the Brightlayer Cloud Services, 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 Brightlayer Cloud Services, 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 Brightlayer Cloud Services 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 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 at the attention of Your designated contact person or to the email associated with Your Access Credentials. 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, 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 Cloud Services 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 these Terms of Service and any Order or Eaton Selling Policy, the following order of precedence shall govern: (i) these Terms of Service, (ii) the Eaton Selling Policy, and (iii) the applicable Order, and (iii) the Eaton Selling Policy. 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 these Terms of Service, and all such terms or conditions are hereby rejected and shall be null and void.
19.3 You may not assign these Terms of Service 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 these Terms of Service 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 these Terms of Service. Any purported assignment, delegation, or transfer in violation of this Section 19.3 is void. these Terms of Service are 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 Brightlayer Cloud Services 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 these Terms of Service. The Third Party Materials are not licensed or warranted under these Terms of Service, 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 Brightlayer Cloud Services purchased by You. You understand and agree that the availability of the Brightlayer Cloud Services, 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 Brightlayer Cloud Services, 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 these Terms of Service; (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 Brightlayer Cloud Services 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 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 must be in writing and will not operate or be construed as a waiver of any subsequent breach. The captions used in these Terms of Service are for convenience only and are not binding.
19.10 The relationship between the parties is that of independent contractors. Nothing contained in these Terms of Service 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 4.1, 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 Where 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 these Terms of Service 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 these Terms of Service, the prevailing party is entitled to recover its actual attorneys' fees and court costs from the non-prevailing party.
19.14 These Terms of Service are 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 these Terms of Service.
19.15 No action arising under or in connection with these Terms of Service 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 these Terms of Service or its subject matter or any right or obligation created by these Terms of Service (“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 these Terms of Service 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 these Terms of Service must be directed to Eaton at:
Eaton
Attn: Digital Law Group
1000 Eaton Boulevard
Mail Code 4N
Cleveland, OH 44122
with a copy to BLlegal@eaton.com
