1 Scope and contract formation
2 Portal Access, Services and Software
2.1 Services and access to the Portal. Subject to the terms of the Contract we grant you a non-exclusive, non-transferable, non-sublicensable, time-limited and revocable right to access and use (a) the Services and (b) the Portal for purposes of accessing and using the Services, in each case for your personal or internal business purposes. To the extent expressly set out in an Order or STC, you may permit Users to use the Services and access the Portal in connection with your permitted use thereof, provided that all such Users must comply with all applicable terms of the Contract, and you shall remain primarily responsible for all Users' compliance with such terms.
2.2 Your account on the Portal**** ; Electronic Communications. Your use of the Services or Software may require you to establish an account on the Portal. For purposes of creating and administrating the account, you may be further required to provide contact information (for example name, business telephone number, address, email and user IDs) and other information as described in the Contract and/or the registration form provided on the Portal ("Account Information"). You agree to ensure that all Account Information provided to us is and remains current, complete and accurate. You further acknowledge that you are for any and all activities that occur under an account that is attributable to you (including, for the avoidance of doubt, activities by third party users, whether authorized or otherwise). You will, and will ensure that any other User of the Portal or Services will (i) securely store and keep all account credentials (e.g. username, passwords, certificates, keys) confidential; (ii) ensure that the credentials that are allocated to a specified User are only used by such User; and (iii) the account is only used in relation to the Services and in such a way so as not to impair or compromise the stability or security of the Platform, the Portal or the Services. You must notify us immediately on discovering any attempted or actual unauthorized use of an account or credentials or other breach of security with respect to the Platform, Portal or Services, and immediately follow our instructions when we are asking you to change a User's access credentials. We reserve the right to change a User's access credentials if we are of the opinion that such change is necessary for security reasons. We will not be liable for any loss or damage arising from your failure to comply with this Section 2.2 or any activities that occur under any User account.
In addition, you understand that (i) Account Information is governed by the Data Protection Notice, to the extent applicable, and (ii) we may on a periodic basis send email-based communications to you notifying you of certain Service-related updates and information. You consent to receive electronic communications from us and acknowledge that if you do not wish to receive such electronic communications, you must terminate your Portal access.
2.5 Changes to the Services or Software. We may make any reasonable changes to the Services and/or Software from time to time that do not materially adversely affect the nature, quality or security of the Services and/or the Software. We may change the Services and/or Software, even if such change does materially adversely affect its nature, quality or security, or discontinue a Service and/or the provision of the Software only if (i) necessary to comply with any applicable Laws or safety or security requirements; or (ii) there are material changes caused by a subcontractor or the termination of a material subcontractor relationship. We will notify you of any change with a material adverse effect or of any discontinuation of a Service and/or provision of a Software. In such case, you may terminate the affected Service within 30 (thirty) days following notification with 30 (thirty) days written notice and we will refund you any prepaid amounts for the respective Service on a pro-rata basis for the remainder of the Service term. Such refund is your sole and exclusive remedy. By continuing to use a changed Service and/or Software despite the notification and beyond the 30 days termination period, you agree to the respective change. It is in our sole discretion whether we maintain providing prior versions of a Service and/or Software for a certain time period and we will notify you if we do maintain providing prior versions of the Service and/or Software.
2.6 ABB Software. Subject to the terms and conditions of the Contract, where we provide ABB Soft-ware to you as part of the Services, we hereby grant you a non-exclusive, non-transferable, time limited license to use the ABB Software for the Service period set out in the Order for your personal or internal business purposes of receiving the Services. We may remotely install updates or up-grades to the ABB Software with or without notice. Updates or upgrades shall be governed by the terms and conditions of the Contract unless such updates or upgrades are accompanied by a separate license provided by us in which case the terms and conditions of such separate license will take precedence over other documents forming the Contract with regards to any conflicting terms. Notwithstanding the foregoing, except to the extent specifically set out otherwise in the Order or STC, we are not obliged to provide any updates or upgrades to the ABB Software.
2.7 Third Party Software. Except to extent explicitly specified otherwise in the STC or the Order, for all Third Party Software, the terms and conditions of use of the third party licensor apply exclusively and you acknowledge and agree that (i) any contractual relationship related to your use of such Third Party Software is solely between you and the provider of such Third Party Software; (ii) it is your own responsibility to assess the accuracy of using such Third Party Software; and (iii) we make no warranties and will have no responsibility or liability related to your use of such Third Party Software, to the extent permitted by applicable Laws.
3 Data protection and security
3.2 License verification. Devices on which ABB Software is installed may automatically provide information to us to enable verification that it is properly licensed. Such information includes information about the ABB Software, the user account, product ID information, a machine ID, and the internet protocol address of the device. By using the ABB Software, you consent to the transmission of such information and our use of such information in accordance with the Contract.
3.3 Security. We have established and maintain a formal information and cybersecurity program which includes commercially reasonable technical and organizational measures, in order to establish an appropriate level of security and to protect Your Content against security breaches, accidental or unlawful destruction, loss, alteration, and unauthorized disclosure of, or access to Your Content. Except to the extent explicitly specified otherwise in the STC, it is your responsibility to (i) provide and continuously ensure a secure remote connection; and (ii) establish and maintain the security of your systems, hardware and software, in particular those that directly or indirectly connect to the Services, the Software, the Portal or the Platform. In addition and except as explicitly specified otherwise in an Order and/ or STC, you will without undue delay, completely and accurately implement any software updates or upgrades provided by the respective vendors and/or by us, as applicable.
4 Your responsibilities
4.2 Cooperation and information obligations. You will reasonably co-operate with us in all matters relating to the Services and/ or the Software and provide us with such information and materials as we may reasonably require in order to provide the Services and/or the Software, to perform maintenance or bug fixing, as well as in order to verify your compliance with the Contract. In addition, to your information obligations related to your use of the Portal as set out in Section 2.2, you will inform us without undue delay upon becoming aware of any circumstances that may or do affect the security of the Services and/or the Platform.
4.3 Monitoring of usage and remote connection. The provision of Services and/or the Software may require us to monitor your usage of the Services, Portal and Software as well as the establishment of a remote connection between the Portal and certain systems. Except to the extent explicitly specified otherwise in the STC or the Order, you will (i) establish and maintain such remote connection with appropriate connectivity; (ii) permit us, our employees, our Affiliates, agents, consultants and/or subcontractors, to remotely access and monitor your usage of certain systems owned, controlled or operated by or on behalf of you, as necessary for us to provide the Services; and (iii) install and maintain any hardware, software, or other equipment necessary to establish and maintain the monitoring and/or remote connection.
5 Charges and payment
5.1 Payment terms. In consideration for the provision of the Services and/or the Software, you will pay the charges as set out in the Order. You will pay all invoiced amounts due under the Contract within 30 (thirty) days from the date of the invoice in full without any set-off, deduction or with-holding. Late payment interest of 1.5% per months or, if such rate is not permitted, the highest rate permitted under applicable Law will be charged in case of late or incomplete payment.
5.2 Taxes and customs. You are responsible for the payment of (i) any value added tax, sales tax, customs fee or other transaction levies as applicable; and (ii) any withholding taxes that are paid by ABB arising from international transactions, if any. Subject to the foregoing, we will be solely responsible for all taxes based on our income.
6 Proprietary rights
6.1 Your Content. We will not acquire any right, title and interest in Your Content other than the rights you grant to us under the Contract. During the term of the Contract, you will have the abil-ity and the right to access and extract some or all of Your Content if and to the extent specified in the STC or the Order.
6.2 ABB Content. As between the parties, all right, title and interest, including all Intellectual Property Rights, in and to the ABB Content are and remain exclusively with us, our Affiliates or our licensors. You have no rights in and to the ABB Content, other than those expressly granted pursuant to the Contract.
6.3 Our use of Your Content. We, our Affiliates and our subcontractors have the right to collect, store, aggregate, analyze or otherwise use Your Content for purposes of (i) providing and maintaining the Services and/or the ABB Software to you; (ii) preventing, detecting and repairing problems related to the security and/or the operation of the Portal, the Platform, the Services and/or the ABB Software; (iii) improving and developing existing services, technologies, products and/or software and developing new services, technologies, products and/ or software.
For the avoidance of doubt, all such improvements and developments (including all resulting Intellectual Property Rights) are ex-clusively owned by us and to the extent any rights therein vest in you, you hereby irrevocably assign all such rights to us. In addition, we have the right to use Your Content for benchmarking purposes if and to the extent it is anonymized or non-confidential.
6.4 Feedback. During the term of a Contract, you may provide feedback or suggestions related to the Services, the Software, the Portal or the Platform to us. We and our Affiliates are entitled to use such feedback and suggestions, even if they should be marked confidential (see Section 14.1), without any restrictions and any compensation to you.
7 Intellectual property infringement
7.1 Defense and indemnity. If any third party makes a claim against you that the Services or the ABB Software infringe a third party's copyrights, patents or trademarks (a " Claim"), we will defend you against such Claim and pay the amounts finally awarded by a court against you or included in a settlement approved by us, provided that you will (i) give written notice of the Claim to us without undue delay, specifying the nature of the Claim in reasonable detail; (ii) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of us; and (iii) allow us to control and reasonably cooperate with us in the defense and settlement of the Claim.
7.2 Effect of Claim. If a Claim is made or, in our reasonable belief, is likely to be asserted, we may, at no cost to you: (i) procure for you the right to continue to use the ABB Software, or continue to take the benefit of any Services, that are affected by the Claim in accordance with the terms of the Contract; or (ii) modify or replace the infringing ABB Software or re-perform the applicable Services so that it becomes non-infringing (provided that the modified or replaced ABB Software or the re-performed Services, provide substantially the same performance and functionality and do not adversely affect the use of the Services or ABB Software); or (iii) if the remedies set forth in Sections 7.2(i) and 7.2(ii) are not commercially feasible, as determined by us in our sole discretion, terminate the applicable Order, in whole or in part, and pay you a pro rata refund of the fees paid by you for the infringing Service or ABB Software.
7.3 Exceptions. We have no liability or obligation related to any Claim if and to the extent the Claim arises out of or relate to (i) the use of Your Content; (ii) a modification of the Services and/or Software created by or at the direction of you or a third party; (iii) use of the Services or ABB Software other than in accordance with the terms of the Contract; (iv) use of the Services or ABB Software in combination with any other hardware, software or other materials, where absent such combination, the affected Service or ABB Software would not be the subject of a Claim; (v) use of a version of the ABB Software for which we have provided updates or upgrades and you have not or not without undue delay, completely and accurately updated or upgraded the ABB Software; or (vi) any Third-Party Software.
7.4 Sole and exclusive remedy. This Section 7 states the sole, exclusive and entire liability of us to you and your sole and exclusive remedy with respect to any claim or allegation of infringement or misappropriation of any third party Intellectual Property Right.
8 Warranty and indemnity by you
8.1 Warranty. You represent and warrant that the use by us of Your Content or your grant of any license or right under the Contract, will not infringe the Intellectual Property Rights or other rights of any person.
8.2 Indemnity. You will indemnify, defend and hold harmless ABB and our Affiliates, suppliers, licensors, subcontractors as well as our and their respective directors, officers, employees and representatives, from and against all costs, claims, demands, liabilities, expenses, damages or losses (including without limitation reasonable attorneys' fees) arising out of or in connection with (i) your use of or reliance on any ABB Content; (ii) violation of any third party's rights related to Your Content or its use by us, our Affiliates and/or our subcontractors in accordance with the Contract; (iii) your breach of the Contract; and (iv) breach of Laws, in each case except to the extent such claim results from our gross negligence or willful misconduct. We will provide notice to you without undue delay of any such claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses. In any event, you shall not settle any such claim without our prior written approval.
9 Warranties by us
9.1 Services warranty. We warrant that we (i) provide the Services or make the Services available to you using commercially reasonable care and skill and in accordance with the description set out in the Order and the STC in all material respects; and (ii) will apply commercially reasonable measures to maintain availability of the Services; however, subject to unavailability or temporary disruption of the Services due to operational measures (such as scheduled or emergency maintenance), security measures, connectivity or data transmission failure, unlawful or unauthorized acts of third par-ties, or other reasons that are beyond our control. If you allege that a Service is not performed consistent with this services warranty, you must notify us without undue delay, after becoming aware of the defect or having the possibility to gain knowledge of the defect but in no event later than 14 days thereafter, in writing about the defect in reasonable detail and, if we are able, by application of commercially reasonable effort, to reproduce and verify the defect, we will use commercially reasonable efforts to rectify the defect or, if the defect is of the nature of unavailability of Services, restore the Services which were not performed as warranted.
9.2 Software warranty. We warrant that the ABB Software will perform in accordance with the description set out in the Order and/or the STC in all material respects for a period of three (3) months following delivery of the ABB Software to you. If you allege that the ABB Software does not perform consistent with this ABB Software warranty, you must without undue delay, and in any event prior to the end of the ABB Software warranty period specified above in this Section 9.2, notify us in writing about the defect in reasonable detail and, if we are able, by application of commercially reasonable effort, to reproduce and verify the defect, we will use commercially reasonable efforts to provide corrections of, or avoidance procedures for documented deviations from this ABB Software warranty. Warranties related to any Third Party Software, if any, are specified in the agreement between you and the provider of such Third Party Software. We do not provide any warranty related to Third Party Software.
9.3 Limitations. The warranties set out in this Section 9 shall not apply: (i) if the ABB Software is not used in the contemplated environment, or in accordance with its specification or the Contract; (ii) if the Services or the ABB Software has been installed, implemented, customized, modified, enhanced or altered by you or any third party; (iii) if you are not using the most recent version of the ABB Software and the defect has been remedied in the newer version; (iv) to any error or defect caused by you, any third party, or any Third Party Software, or Force Majeure according to Section 16.1; or (v) to any error or defect arising as a result of drawings, designs or specifications provided by you. Product descriptions shall not be deemed warranties unless separately agreed in writing.
9.4 DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, WE PROVIDE THE ABB CONTENT OR THIRD PARTY SOFTWARE, SERVICES OR SOFTWARE TO YOU ON AN "AS-IS" BASIS WITHOUT WARRANTY OF ANY KIND, WITHOUT MAINTENANCE OR ANY SUPPORT SERVICES AND SOLELY FOR THE PURPOSE CONTEMPLATED IN THE CONTRACT. EXCEPT AS EXPRESSLY SPECIFIED IN THE CONTRACT, WE MAKE NO REPRESENTATIONS OR OTHER WARRANTIES OF ANY KIND, AND WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE ABB CONTENT OR THIRD PARTY SOFTWARE, SERVICES OR SOFTWARE INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICES OR SOFTWARE WILL BE SECURE, UNINTERRUPTED AVAILABLE, ERROR FREE OR FREE OF HARMFUL COMPONENTS, , ANY INFORMATION THAT MAY BE OBTAINED THROUGH THE ABB CONTENT OR THIRD PARTY SOFTWARE WILL BE ACCURATE OR RELIABLE, ANY ERRORS IN THE SITE OR SERVICE WILL BE CORRECTED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT PERMITTED BY LAW, THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 9 ARE YOUR EXCLUSIVE WARRANTIES AND THE REMEDIES SET OUT IN SECTIONS 9.1 AND 9.2 ARE THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH TO THE RELEVANT WARRANTIES.
**YOU EXPRESSLY AGREE THAT ANY MATERIAL DOWNLOADED, VIEWED OR OTHERWISE OBTAINED THROUGH THE USE OF THE ABB CONTENT OR THIRD PARTY SOFTWARE IS DOWNLOADED, VIEWED OR USED AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEMS AND NETWORKS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD, VIEWING OR USE OF ANY SUCH MATERIAL.
10 Limitation of liability
10.2 Exclusions. We shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with a Contract, and even if we have been advised of the possibility of such damages, for (i) loss of profits, sales or business, agreements or contracts, anticipated savings, revenue, or damage to goodwill; (ii) business interruption, loss of production, loss of use or loss or corruption of data; (iii) costs of substitute goods, materials or services; or (iv) any indirect, consequential, incidental, special, punitive damages or exemplary loss.
10.3 Scope of limitations and exclusions. The limitations and exclusions of liability also apply to the benefit of our Affiliates, suppliers, licensors, subcontractors as well as our and their directors, officers, employees and representatives. You may not assert any claim for breach or non-performance under a Contract against us, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, unless you have given us written notice of the claim within 1 (one) year after you first knew or reasonably should have known of the facts giving rise to such claim. For the provision of Pilot Services Section 2.3 applies. The limitation and exclusions to our liability in Sections 10.1 and 10.2 do not apply for: (i) death or personal injury caused by our acts or omissions; (ii) gross negligence, willful misconduct, fraud or fraudulent misrepresentation; or (iii) any other liability which cannot be limited or excluded by applicable Laws. The limitations and exclusions of liability also apply to the benefit of our Affiliates, suppliers, licensors, subcontractors as well as our and their directors, officers, employees and representatives.
We may suspend the Services in whole or in part if we determine that your use of the Services (i) poses a security risk to the Services, the Platform and/or the Portal and/or any third party; (ii) may adversely impact the performance of the Services, the Software, Platform and/or the Portal; (iii) is in violation of the Laws or poses a risk that we are or will be in violation of the Laws; (iv) may subject us or any third party to liability. In addition, we may suspend the Services under the circumstances specified in the Acceptable Use Policy and if you fail to pay any amount due under the Contract on the due dat