1 Scope and contract formation
1.1 Parties and scope. The terms and conditions contained in this ABB Ability™ Customer Agreement (this “ACA”) together with any Service Specific Terms, Order or other terms and conditions referred to in this ACA (together, the “Contract”) are agreed between the ABB entity (“ABB”, “we”, “us” or “our”) and the contracting entity (“Customer”, “you” or “your”) indicated in the Order. The Contract governs our provision and your use of the Services and Software (each as defined below).
1.2 Contract formation. The Contract comes into effect when you and us have entered into an Order referring to this ACA.
2 Provision of 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 use the Services, access the Portal for your internal business purposes. Where expressly set out in an Order or Service Specific Terms, you may permit third parties under contract with you to use the Services and access the Portal for (i) supporting your internal business purposes; or (ii) purposes of such third parties receiving a service from you.
2.2 Your account on the Portal. Your use of the Services or Software may require you to establish an account on the Portal. For purposes of 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. You are responsible for the accuracy and completeness of this information and 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). You will ensure that (i) the Users securely store and keep credentials (e.g. username, passwords, certificates, keys) confidential; (ii) 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 notify us immediately on discovering any attempted or actual unauthorized use of an account that is attributable to you 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.
2.3 Pilot Services. We may offer Services to you that are at a pilot, trial, evaluation or beta stage or are free of charge (“Pilot Services”). Pilot Services are subject to additional limitations as set out in this Section 2.3 which shall prevail over other provisions of this ACA. Pilot Services are free of charge, except as specified otherwise in the Order. You understand and acknowledge that Pilot Services may not have been fully tested or verified, may become unavailable, that their performance may be negatively affected, and/or that the Pilot Services may not meet industry practice security standards. Subject to the terms, conditions and restrictions set forth in the Contract, we grant you a limited, non-exclusive, non-transferable, non-assignable, fully revocable right to use the Pilot Services for your internal use for the purpose of reviewing, evaluating and testing the Pilot Services. You will not, nor will you permit any third party to, directly or indirectly use the Pilot Services in any way that could adversely impact production-, security- or safety-critical processes. We may, at our sole discretion, for any reason and at any time (i) modify the Pilot Services or features of the Pilot Services; (ii) provide upgrades, patches or maintenance; or (iii) terminate, limit, suspend or discontinue the Pilot Services or access to the Pilot Services. We provide the Pilot Services "as is" without any warranties and excluding all liability to the fullest extent permitted. Use of the Pilot Services is at your sole risk.
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 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 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 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
3.2 Security. We use commercially reasonable efforts to implement safeguards, including 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
4.1 General obligations when using Services. You will: (i) obtain and maintain all necessary licenses, permissions, filings and consents (which shall include consent of individuals where you provide Personal Data to us) which may be required regarding Your Content, software and other content, if any, provided by you; (ii) when using External Content, comply with the respective terms and conditions of use and the license terms and conditions in connection with External Content; (iii) promptly install the necessary Software and any updates or upgrades provided by us (in accordance with the respective specification and instructions) on your computer systems and/or mobile devices (as applicable); (iv) comply with any restrictions on permitted User types; (v) comply with our reasonable instructions regarding the proper use of the Services and/or Software as may be given in individual cases from time to time; (vi) ensure that all Users comply with the terms and conditions of the Acceptable Use Policy; and (vii) comply with the Laws, in particular when providing Your Content. You will not use the Services or Software in any application or situation where failure of the Services or Software could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage.
4.2 Cooperation and information obligations. You will 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. All amounts payable by you under the Contract are exclusive of amounts in respect of value added tax or other transaction levies as applicable ("VAT"). Where any taxable supply for VAT purposes is made under the Contract by us to you, you will, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
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 (i) providing, maintaining, protecting and improving the Services to you and your Affiliates; (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, where all such improvements and developments (including all resulting Intellectual Property Rights) being exclusively owned by 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. 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 and compensation to you.
6.5 Restrictions. You will not in whole or in part (i) (except as explicitly permitted in this ACA and Service Specific Terms) use the ABB Content in any manner, including for any third-party use including license, sublicense, sell, resell, lease, transfer, assign, distribute, display, broadcast, disclose, or otherwise commercially exploit or make it, or any portion thereof, available to any third party in any manner; (ii) modify, tamper with, repair or make derivative works based upon the ABB Content; (iii) copy, reproduce, publish, reverse engineer, attempt to derive the source code of, modify, disassemble, decompile or create derivative works of the ABB Content (except to the extent that applicable Laws prohibits reverse engineering restrictions, and then only as permitted by such laws); (iv) copy any ideas, features, functions or graphics of the ABB Content; (v) access or use the ABB Content in a way to avoid incurring fees or exceeding usage limits or quotas or to circumvent or render inoperative any usage restriction features contained in ABB Content; and/or (vi) remove, obscure, alter, or move ABB’s and its licensors’ proprietary notices. Use of the ABB Content other than specifically permitted in the Contract, is expressly prohibited.
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 relating to (i) the use of Your Data in the provision of the Services or otherwise in connection with the Contract; (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.
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 and hold us harmless from and against all costs, claims, demands, liabilities, expenses, damages or losses arising out of or in connection with any alleged or actual (i) infringement of any third party's Intellectual Property Rights; (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) violation of any other rights of a third party related to your breach of the Contract; and (iv) breach of Laws.
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 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 PROVIDED HEREIN, WE PROVIDE THE SERVICES AND SOFTWARE TO YOU WITHOUT WARRANTY AND 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 WARRANTIES AND REPRESENTATIONS WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES AND SOFTWARE INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICES OR SOFTWARE WILL BE SECURE, UNINTERRUPTED AVAILABLE, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR 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, THESE 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 LIMITED WARRANTIES.
10 Limitation of liability
10.1 Limited liability. Subject to Sections 10.2 and 10.3, our total aggregate liability, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with a Contract shall be limited to a sum equal to the charges paid for the specific Service or Software that giving rise to the claim in the 12 (twelve) months prior to the date on which the claim arose. With regard to Pilot Services, our liability shall be excluded to the largest extent possible under applicable Law.
10.2 Exclusions. We shall in no event be liable, whether in contract, tort (including negligence), for 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 or loss or corruption of data; (iii) costs of substitute goods or services; or (iv) any indirect, consequential, incidental, special, punitive damages or exemplary loss.
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 negligence; (ii) 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.
11.1 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 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 Section 1.2 above 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.
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 Services 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 and the ABB Portal as well as connection to the Platform 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 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 Switzerland 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. Any dispute, controversy or claim arising out of, or in relation to, the Contract, including the validity, invalidity, breach, or termination thereof, shall be resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution in force on the date on which the notice of arbitration is submitted in accordance with these rules. The number of arbitrators shall be three. The seat of the arbitration shall be Zurich. The arbitral proceedings shall be conducted in English.
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 result 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 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 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 Severance. 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. You shall comply in its business conduct with standards that are equivalent.
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.
16.11 Independent contractors. Each party is an independent contractor, nothing contained in this ACA or Contract shall form a joint-venture, partnership or agency, and neither party has the authority to bind the other party.
17 Definitions and interpretation
17.1 Definitions. In addition to the definitions above in this ACA, the following definitions apply:
"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;
"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;
"Order" means a document in electronic or physical form, an online form or other online instrument provided by us for ordering Services and/or Software, which refers to this ACA;
"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, accessible for you, 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 and the Service Specific Terms;
"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 Date" 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