1 Scope and contract formation
2 Portal Access, Services and Software
2.1 Services. Subject to the terms, conditions and restrictions 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 your personal or internal business purposes, in each case only for noncommercial use. To the extent expressly set out in an Order or Service Specific Terms, 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, address, email and user IDs) and other information as described in the Contract ("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 responsible 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. 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) 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 at least 90 days prior to the effective date of such change or discontinuation. In such case, you may terminate the respective Service with 30 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. 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, conditions and restrictions of the Contract, where we provide ABB Software 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 non-commercial internal business use for purposes of receiving the Services provided by us under the Contract. We may remotely install updates or upgrades 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 take precedence over other documents forming the Contract with regard to any conflicting terms. Notwithstanding the foregoing, except to the extent specifically set out otherwise in the Order or Service Specific Terms, we are not obliged to provide any updates or upgrades to the Software.
2.7 Third Party Software. For all Third Party Software, the terms and conditions of use of the third party licensor apply exclusively. 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 Law.
3 Data protection and security
3.1 Data protection. Each party shall comply with all applicable Laws related to the protection of Personal Data that apply to their respective performance and processing under the Contract. We and our Affiliates may, wherever we or they do business, store and otherwise process your and your representatives', employees' and Users' contact information (for example name, telephone, address, email and user IDs), including Account Information, in accordance with the Data Protection Notice for the purposes disclosed in that notice, including but not limited to providing the Services and Software and performing the Contract.
3.2 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 protection of Your Content against accidental or unlawful destruction, loss, alteration, and unauthorized disclosure of, or access to Your Content.
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 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 2.4, you will promptly inform us upon becoming aware of any circumstances that may or do affect the security of the Services and/or the Platform.
4.3 Remote connection and security. The provision of Services may require the establishment of a remote connection between the Portal and certain Customer systems (including mobile devices) if and as described in the Service Specific Terms or the Order. You will (i) establish and maintain such remote connection with appropriate connectivity; (ii) permit us, our employees, agents, consultants and/or subcontractors, to remotely access certain systems (including mobile devices) owned, controlled or operated by or on behalf of you, as necessary for us to provide the Services; (iii) maintain adequate security protection on the remote connection as well as your systems, devices and hardware that directly or indirectly connect to the Services, the Software, the Portal or the Platform; and (iv) install and maintain any hardware, software, or other equipment necessary to establish and maintain the remote connection. You are responsible for the security of your system, hardware and software, and, except as explicitly specified otherwise in an Order, you will promptly implement any software updates or upgrades provided by the respective vendors and/or by us, as applicable.
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 withholding by wire transfer into the specified recipient account. Late payment interest of 1.5% per months will be charged in case of late 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. We, our Affiliates and our Subcontractors have the right to use Your Content for the purpose of providing the Services.
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 or our licensors. You have no rights in and to the ABB Content, other than those expressly granted pursuant to the Contract.
6.3 Usage Data. We, our Affiliates and our Subcontractors have the right to collect, monitor, store, use, extract, compile, synthesize, aggregate, analyze or otherwise process Usage Data for purposes of (i) providing, maintaining, protecting and improving the Services 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; and (iii) improving and developing existing services, technologies and products and developing new services, technologies and products. For the avoidance of doubt, all such improvements and developments (including all resulting Intellectual Property Rights) are and shall be exclusively owned by us and to the extent any rights therein vest in you, you hereby irrevocably assign all such rights to us.
6.4 Feedback. During the course of the Services, you may provide feedback or suggestions related to the Services, the Software, the Portal or the Platform to us. You hereby irrevocably assign to us, and we exclusively own, all rights, title and interest, including all Intellectual Property Rights, in such feedback and suggestions. We and our Affiliates are entitled to use such feedback and suggestions, even if it should be marked confidential, without restrictions or 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, if used in accordance with the terms of the Contract, 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) promptly give written notice of the Claim to us, 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 Exceptions. We have no liability or obligation related to any claim of infringement of Intellectual Property Rights if and to the extent the claim arises out of or relates to (i) the use of Your Content; (ii) a modification 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 updated or upgraded the ABB Software; or (vi) any Third-Party Software or External Content.
7.3 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) require you to discontinue use of the infringing ABB Software or Service immediately and procure for you the right to continue to use the infringing 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 7.3(i) and 7.3(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.
7.4 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 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 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 any External Content you have been using 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 Limited Warranties
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 Service Specific Terms in all material respects; and (ii) 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 parties, or other reasons that are beyond our control. If you allege that a Service is not performed consistent with this Services warranty, you must promptly notify us and we will use commercially reasonable efforts to re-instate 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 Service Specific Terms in all material respects for a period of three (3) months following delivery of the ABB Software to you. You must notify us in writing of any claim under this Software warranty prior to the end of the ABB Software warranty period specified above in this Section 9.2 and 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 8 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; or (v) to any error or defect arising as a result of drawings, designs or specifications provided by you.
9.4 DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, WE
PROVIDE THE ABB CONTENT OR THIRD PARTY 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
WARRANTIES OF ANY KIND, AND WE DISCLAIM ALL OTHER WARRANTIES AND
REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH
RESPECT TO THE ABB CONTENT OR THIRD PARTY 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 WITH RESPECT TO THE ABB CONTENT OR THIRD PARTY SOFTWARE AND
THE REMEDIES SET OUT IN SECTIONS 9.1 AND 9.2 ARE THE SOLE AND EXCLUSIVE
REMEDY FOR ANY BREACH OF THE RELEVANT WARRANTY.
**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
10.3 Scope of limitations and exclusions. 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.
SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OF CERTAIN WARRANTIES OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE LIMITATIONS AND EXCLUSIONS SET FORTH IN SECTIONS 9 AND 10 ABOVE MAY NOT APPLY TO YOU.
11.1 We may suspend the Services in whole or in part if we reasonably 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 date for payment. We will suspend the Services only to the extent reasonably necessary. Unless we believe an immediate suspension is required, we will use commercially reasonable efforts to provide reasonable notice before suspending a Service.
12 Term and termination
12.1 Term. A Contract will enter into effect as described in the applicable Order and will remain in effect for a period as set out in the Order or as terminated earlier in accordance with the Order or Sections 12.2, 12.3 or 12.4 below.
12.2 Termination without cause. Either party may terminate a Contract without cause if and as set out in the Order.
12.3 Termination for cause by each party. Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party is in material breach of the Contract and, where the breach is by its nature curable, a breach is not cured within 30 (thirty) days following notification of the breach by the non-breaching party. If the breach is not capable of cure, the non-breaching party may terminate the Contract with immediate effect upon first notice of the breach.
12.4 Termination for cause by us. Without limiting our other rights or remedies, we may also terminate the Contract (in whole or in part) with immediate effect by giving written notice to you if (i) you fail to pay any amount due under the Contract on the due date for payment and remain in default not less than 14 (fourteen) days after being notified to make such payment; (ii) there is a change in the Laws in one or more countries applicable to the performance of the Service that would render the continued performance of the Service illegal, impractical or would otherwise have a material impact (including a cost impact) on the provision of the Services, or (iii) you are in breach of the Acceptable Use Policy or the license terms.
12.5 Effect of termination or expiration. Upon termination or expiration of the Contract for any reason: (i) you will immediately cease using the ABB Content and Third Party Software and, where a Software license terminates or expires, uninstall all affected Software from your computer systems, and cease use of such Software; (ii) we may disconnect your access to the Services, the ABB Portal as well as connection to the Platform or your access to any other ABB Content or Third Party Software on or after the effective date of termination or expiration; and (iii) the accrued rights, remedies, obligations and liabilities of the parties as at termination or expiration shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiration.
12.6 Post-termination support. You are responsible to export Your Content prior to the effective date of termination or expiration of the Contract in accordance with the methods described in the Order or the Service Specific Terms. After expiration of such period we may delete Your Content. Where you require support to retrieve Your Content, we may agree to provide you with additional support which shall be charged on a time and materials basis at our standard rates as in force at the time the support is to be provided or on such other rates as agreed between the parties.
13 Export control
13.1 Neither party shall export, directly or indirectly, any technical data acquired from the other party under the Contract (or any products, including software, incorporating any such data) in breach of any applicable export control laws, including United States export laws, to any country for which the government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.
13.2 Each party undertakes contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above and, if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any export control Laws.
14.1 Confidentiality. Each party agrees that it shall not at any time disclose to any person non-public information of the other party, including technical or commercial knowhow, specifications, inventions, processes, source code, product plans, marketing plans or initiatives or any other information or data which are designated at the time of disclosure to the Recipient as confidential or are of a confidential nature and have been disclosed to such party (the "Recipient") by the other party (the "Discloser") or its agent and any other confidential information concerning Discloser's business or its products which the Recipient may obtain, except as permitted by Section 14.3.
14.2 Exceptions. Confidential information does not include any particular information that the Recipient can reasonably demonstrate (i) was in the possession of, or was rightfully known by, the Recipient without an obligation to maintain its confidentiality prior to receipt from the Discloser; (ii) was or has become generally available to the public other than as a result of disclosure by the Recipient or its agents; or (iii) was independently developed by the Recipient without use of or reference to any confidential information of the Discloser.
14.3 Permitted disclosure. The Recipient may disclose the Discloser's confidential information (i) to such of its and its Affiliates, employees, agents, professional advisers or subcontractors as need to know the same in connection with the Contract and provided the Recipient takes reasonable measures to ensure that such employees, agents or subcontractors comply with this Section 14; and (ii) as may be required by Laws, a court of competent jurisdiction or any governmental or regulatory authority, provided that the Recipient takes best efforts to limit such disclosure and to obtain confidential treatment or a protective order, notifies the Discloser (where legally permissible to do so) reasonably in advance to enable it to participate in such effort.
14.4 Duration. For 3 (three) years after the initial disclosure, the Recipient agrees to apply reasonable safeguards against the unauthorized disclosure of the Discloser's confidential information in accordance with good industry practice, or in the same manner and to the same degree that it protects its own confidential and proprietary information -- whichever standard is higher.
15 Governing Law and Jurisdiction
15.1 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the substantive laws of the State of New York excluding both its conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980).
15.2 Jurisdiction; BINDING ARBITRATION. The Federal Arbitration Act
applies to this Contract. Except for small claims court cases that
qualify, any dispute that in any way relates to or arises out of this
Contract or Portal, Software or Services you receive from us will be
resolved by one or more neutral arbitrators before the American
Arbitration Association ("AAA"). You can also bring any issues you may
have to the Better Business Bureau ("BBB"), attention of federal,
state, or local government agencies, and if the law allows, they can
seek relief against us for you. UNLESS YOU AND US AGREE OTHERWISE, THE
ARBITRATION WILL TAKE PLACE IN NEW YORK, NY OR IF NECESSARY THE STATE OF
YOUR SERVICE JURISDICTION. For claims over $10,000, the AAA's
arbitration rules will apply; in such cases, the loser can ask for a
panel of three new arbitrators to review the award. For claims of
$10,000 or less, the party bringing the claim can choose either the
AAA's rules or, alternatively, can bring an individual action in small
claims court. You can get procedures, rules and fee information from the
AAA (www.adr.org) or fromus. For claims of $10,000 or less, you can
choose whether you would like the arbitration carried out based only on
documents submitted to the arbitrator, or by a hearing in--person or by
YOU FURTHER AGREE TO ARBITRATION ON AN INDIVIDUAL BASIS. IN ANY DISPUTE, NEITHER YOU NOR ABB WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
16 General Provisions
16.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control, including: (i) acts of God, flood, fire, earthquake or other natural disaster; (ii) epidemic or pandemic; (iii) terrorist attack, civil war, cyber-attacks, riots, war, threat of or preparation for war, armed conflict, sanctions or embargos; (iv) Laws or action taken by a government or public authority; and (v) any labor or trade dispute, strikes, industrial action or lockouts;
16.2 Assignment. We may assign or otherwise transfer the Contract or all or any of our rights and obligations under the Contract to an Affiliate or successor-in-interest. You shall not, without our prior written consent, assign or otherwise transfer any or all of your rights or obligations under the Contract.
16.3 Subcontracting. We are permitted to appoint and use Affiliates and other third parties to perform our obligations or any portion thereof.
16.4 Entire agreement. The Contract constitutes the entire agreement between the parties in relation to its subject matter. It replaces and supersedes all prior agreements, draft agreements, statements, representations and undertakings of any nature made by or on behalf of the parties, whether oral or written, in relation to that subject matter. The parties agree that the Customer's standard or pre-printed purchase terms and conditions shall not apply.
16.6 No waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy; or prevent or restrict the further exercise of that or any other right or remedy.
16.7 Severability. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted but not affect the validity and enforceability of the rest of the Contract.
16.8 Code of conduct and anti-bribery law. We maintain a set of codes of conduct and guidelines related to our, our employees' and our subcontractors' business conduct, including anti-bribery, anti-corruption and conflict of interest. We also require our suppliers to comply with such codes of conduct or have equivalent codes of conduct for their companies, employees and subcontractors, accessible at http://new.abb.com/about/integrity/standards/abb-code-of-conduct.
16.9 Notices. Any notice given to a party under or in connection with the Contract shall be in writing and shall be (i) delivered by hand or courier or by pre-paid registered first-class post or special delivery to the address specified in the Order; or (ii) sent by email to the email address specified in the Order. We may in addition provide notices by email or other electronic notification forms available in the used systems to the address then associated to your account on the Portal.
16.10 Third party beneficiaries. No one other than a party to the Contract shall be a beneficiary of the Contract or shall have any right to enforce any of its terms, unless specified in the Contract.
17 Definitions and interpretation
"ABB Content" means the Services, ABB Software, the Platform, the Portal as well as ABB Device Data (including all tools, software, hardware, materials, data, content, application program interfaces provided by us or our Affiliates as part of or in relation to the Services) or other ABB intellectual property;
"ABB Device" means an ABB branded device which generates or gathers data through embedded sensors or otherwise, where such data is accessed, stored or processed by the Services;
"ABB Device Data" means any information or data generated or gathered (whether automatically or not) by an ABB Device or ABB Software in connection with the Services hereunder and which relates to the operation and working of such ABB Device, for example device diagnostics data;
"ABB Software" means all computer programs (which may include mobile applications) provided (or given access to) by us under the Contract as part of or in connection with the Services, including any modifications, updates, upgrades, new versions or releases and derivative works as well as any related documentation, but excluding Third Party Software;
"Acceptable Use Policy" means the ABB Ability acceptable use policy, available at www.abb.com/smartsensor/legal or as provided separately and as may be updated by us from time to time;
"Account Information" has the meaning set out in Section 2.2.
"Affiliate" means any entity, whether incorporated or not, which presently or in the future, directly or indirectly controls, is controlled by, or is under common control with a party, by virtue of a controlling interest of 50% or more of the voting rights or the capital, or by means of controlling the constitution of the board and the voting at board meetings;
"Discloser" has the meaning set out in Section 13.1;
"External Content" has the meaning set out in Section 2.4;
"Intellectual Property Rights" means (a) inventions, patents, utility models, copyrights, moral rights, mask work rights, database rights and rights in trademarks, trade names, designs, know-how, and invention disclosures (whether registered or unregistered); (b) applications for registration, and the right to apply for registration, for any of these rights; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world;
"Laws" means any applicable legislation, regulations, codes of practice, guidance and other requirements of any relevant government, governmental or regulatory agency, authority, or other relevant body, as amended or re-enacted;
"Personal Data" means any data or information of an identified or identifiable natural person;
"Platform" means our and our Affiliates industrial internet platform which includes both edge and cloud infrastructure upon or via which ABB Ability solutions (including all or part of the Services hereunder) operate;
"Portal" means an online portal at the web address notified to you by us at the beginning of the Services (or such other web address as may be notified to the you by us from time to time);
"Recipient" has the meaning set out in Section 15.1;
"Service Specific Terms" means the documents describing and/or further governing the Services and/or Software which are referenced in the Order;
"Services" means the services to be provided or to be made available by us to you as described or referred to in an Order;
"Software" means ABB Software and Third Party Software;
"Third Party Software" means any computer program (which may include mobile applications), including proprietary, freeware and open source software, that is either licensed (i) to us from a third party, identified in an Order as Third Party Software and sublicensed to you for use as part of the Services under separate terms and conditions, or (ii) by you from third parties;
"Usage Data" means any information and data other than ABB Device Data, that we measure in connection with your use of the Services or Software;
"User" means an individual who is legitimately authorized to access or receive the Services, use the Software and/or access the Portal through your account.
"Your Content" means any information, data, material and software that is provided by or on behalf of you through or in connection with the use of the Services or Software; Your Content excludes ABB Device Data.
Any phrase introduced by the terms "e.g.", "including", "include", "in particular", "such as" or any similar expression, shall be construed as illustrative and shall not introduce an exhaustive list of phrases nor limit the sense of the words preceding those terms.
17.3 Order of precedence