AVEVA Cloud Services Agreement

AVEVA CLOUD SERVICES AGREEMENT

This AVEVA Cloud Services Agreement (the “Agreement”)  is between AVEVA (“AVEVA”)  and the individual or entity that has clicked the “I Accept” or “I Agree” button located next to the link containing this Cloud Services Agreement or that has executed or otherwise agreed to this Agreement (“Customer”).  This Agreement sets forth the terms and conditions which govern Customer’s use of the AVEVA cloud services.

1. Definitions

(a)  “Customer Data” means all information, content, and data, including all text, sound, software or files that are provided to AVEVA by Customer and/or Customer’s End Users in connection with the use of the Services. Customer Data may include information, content, and data that Customer and/or Customer’s End Users (i)  upload to the Services, and/or (ii)  create and/or modify using the Services.

(b)  “Order Form” means an AVEVA quote order or other ordering document agreed to in writing (i)  by the parties under this Agreement, or (ii)  by Customer and an AVEVA Channel Partner provided that AVEVA has accepted such Order Form in writing.

(c)  “Services” means one or more of the cloud services or features made available to Customer under this Agreement by AVEVA.

(d)  “Services Description” means the functional descriptions of the applicable Services found at https://sw.aveva.com/legal/service-description/, as may be amended from time to time by AVEVA.

(e)  “Services Period” means the timeframe set forth in the Order Form (or if no such timeframe is specified in the Order Form, then a one (1)  year period)  during which Customer may access and use the Services. 

(f)  “Software Program” refers to the software products owned or licensed by AVEVA to which AVEVA grants Customer access as part of the Services (including any program updates provided as part of the Services).

(g)  “Third Party Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of AVEVA and made available to Customer through, within, or in conjunction with Customer’s use of, the Services.  

2. Right to Use the Services

(a)  For the duration of the Services Period and subject to Customer’s payment of the amounts required in the Order Form, and except as otherwise set forth in this Agreement or the applicable Order Form, Customer shall have the non-exclusive, non-assignable, limited right to access and use the Services described in the Order Form solely for Customer’s internal business operations.

(b)  Customer may allow its employees, agents, and contractors working on Customer’s behalf and for the benefit of Customer (collectively “End Users”)  to use the Services for the purpose described in Section 2(a)  above.  Customer shall be fully responsible for its End Users’ acts and omissions including without limitation its End Users’ compliance with this Agreement and the Order Form.

(c)  The Services may enable Customer to link to, transmit Customer Data to, or otherwise access, third party websites, content, products, services, and information of third parties.  AVEVA does not control and is not responsible for such websites or any such content, products, services and information accessible from or provided through such websites.  Customer bears all risks associated with access to and use of such websites and third party content, products, services and information.

(d)  Customer shall obtain at Customer’s sole expense any rights and consents from third parties necessary for Customer Data that Customer uses with the Services, including such rights and consents as necessary for AVEVA to perform the Services under this Agreement.

3. Restrictions on Use

(a)  Customer’s use of the Services may be subject to certain restrictions set forth in this Agreement, the Services Description and/or the Order Form, which may include without limitation certain limitations on the scope of use, capacity, types and quantities of system resources, and/or duration of the Services.  Customer’s use of the Services in a manner inconsistent with such restrictions may adversely impact the performance of the Services, may result in additional fees to Customer, and/or may result in suspension or termination of the Services. 

(b)  This Agreement only gives Customer some rights to use the Services.  As between AVEVA and Customer, AVEVA or its licensors own and reserve all right, title and interest in and to the Services and all hardware, software and other items used to provide the Services, other than the access rights explicitly granted to Customer in Section 2 above.  No title to or ownership of any proprietary rights related to the Services is transferred to Customer or any End User pursuant to this Agreement or any transaction contemplated by this Agreement.  All rights not explicitly granted to Customer are reserved by AVEVA. In the event that Customer makes suggestions, improvements or modifications to AVEVA regarding any features, functionality or performance that AVEVA adopts for any of its products including the Services, such features, functionality or performance shall be deemed to be automatically assigned under this Agreement to, and shall become the sole and exclusive property of, AVEVA.

(c)  Customer agrees that it will comply with any technical limitations of the Services and that it will not, nor will Customer cause or permit others to:

(i)  reverse engineer, decompile, disassemble, modify, adapt or translate any part of the Services, or create derivative works based on any part of the Services, except and only to the extent that applicable law expressly permits, despite this limitation or except and only to the extent that AVEVA gives it prior written consent;

(ii)  remove, obliterate, destroy, minimize, block or modify any logos, trademarks, copyright, digital watermarks, or other notices of AVEVA or its licensors;

(iii)  work around any technical limitations in the Services or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to AVEVA;

(iv)  publish or otherwise make available any of the programs or materials resulting from the Services (excluding Customer Data); 

(v)  perform or disclose any benchmark or performance tests of the Services without AVEVA’s prior written consent;

(vi)  perform  or  disclose  any  of  the  following  security  testing  of  the  Services  or  associated infrastructure without AVEVA’s prior written consent:  network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and

(vii)  transfer, license, sublicense, rent, lease, sell, lend, distribute, host, outsource, disclose, permit timesharing or service bureau use, assign, or otherwise commercially exploit or make the Services or any part thereof including without limitation any materials or programs (including the Software Programs)  available through or in connection with such Services, or any rights or duties under this Agreement, to any other person or entity without the prior written consent of AVEVA and such consent may be withheld in the sole discretion of AVEVA.

Notwithstanding the foregoing, AVEVA recognizes and agrees that certain users of the Services may be OEM customers of AVEVA (an “OEM Customer”).  In such instance, AVEVA understands that such OEM Customer may make the Services available to the OEM Customer’s third party customers.  AVEVA consents to such use of the Services by the OEM Customer provided the OEM Customer abides by AVEVA’s separate conditions and procedures relating to operating as an OEM Customer of AVEVA. 

(d)  The Services are not fault-tolerant and are not guaranteed to be error free or to operate uninterrupted. Unless AVEVA gives its prior written consent, Customer has no right to use (and must not use)  the Services in connection with any application or situation where the failure of the Services could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”).  High Risk Use does not include utilization of the Services for administrative purposes, to store configuration data, engineering and/or configuration tools, or other applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. Customer agrees to indemnify and hold harmless AVEVA from any third-party claim arising out of Customer’s use of the Services in connection with any High Risk Use.

(e)  AVEVA may make changes or updates to the Services (such as infrastructure, security, technical configurations, application features, etc.)  during the Services Period, including to reflect changes in technology, industry practices, and patterns of system use.  Furthermore, AVEVA may (at its discretion)  change, discontinue, add, modify, re-price or remove features or functionality from the Services from time to time.  The Services Descriptions are also subject to change at AVEVA’s discretion.

(f)  Customer understands and agrees that AVEVA, its affiliates, and its subcontractors may perform certain aspects of the Services, such as (but not limited to)  service administration, hosting, support, and/or disaster recovery, from data centers and other facilities located throughout the world.  As such, Customer recognizes and agrees that use of the Services may result in the Customer Data being collected, transferred, processed, and/or used in any area of the world.  AVEVA reserves the right to contract with third party subcontractors to provide all or part of the Services on behalf of AVEVA and AVEVA may change or replace such subcontractors at any time in its sole discretion.

(g)  Customer is responsible for identifying and authenticating all End Users, for approving access by such End Users to the Services, and for controlling against unauthorized access by End Users.  It is Customer’s responsibility to maintain the confidentiality of its and its End Users’ account information and passwords and Customer agrees to accept responsibility for all activities that occur under Customer’s account.  AVEVA will have the right to rely upon any information received from any person/entity using Customer’s account and password and AVEVA will incur no liability arising out of such reliance.  AVEVA is not responsible for any harm caused by Customer’s End Users, including individuals who were not authorized to have access to the Services. 

(h)  In addition to the foregoing restrictions, Customer agrees not to use or permit use of the Services in a manner that violates the AVEVA Acceptable Use Policy found at  https://sw.aveva.com/legal/usage-policy/, which is incorporated herein by this reference.

Customer Data

(a)  Customer retains all right, title, and interest in the Customer Data. During the Services Period, Customer grants AVEVA a non-exclusive, irrevocable, worldwide, royalty-free, paid-up, transferable, sub-licensable license and approval to use, import, distribute, modify and distribute modifications of, perform, create and distribute derivative works of, copy, and display the Customer Data for the purpose of and in conjunction with providing the Services.  The license granted in this Section 4(a)  includes the right of AVEVA to sublicense its subsidiaries and affiliates and any third parties subcontractors providing all or part of the Services on behalf of AVEVA to perform the foregoing.  Customer represents that Customer has and will keep in effect during Customer's use of the Services, all licenses and approvals necessary to grant AVEVA and its subsidiaries, affiliates, and subcontractors these rights and that they will be provided at no charge to AVEVA.  Customer is responsible for complying with the terms of any such license agreements including entitlements and permitted uses. Customer represents that by adding, creating, installing, uploading, or transferring the Customer Data for use in conjunction with the Services, Customer is not exceeding any specified entitlement or permitted use or violating applicable license agreements or applicable laws. Customer agrees to indemnify and hold harmless AVEVA from any third-party claims and any costs and other amounts that AVEVA may incur or otherwise be subject to because of Customer's breach of this Section 4(a).

(b)  Customer may at any time (subject to Section 9(b))  request in writing return of its Customer Data that is stored on the Services at the time of such request.  Upon AVEVA’s receipt of Customer’s written request to return such Customer Data, AVEVA shall use commercially reasonable efforts to return such Customer Data to Customer within thirty (30)  days after receipt of the request.  The Customer Data will be returned to Customer in AVEVA’s standard format or such other format as AVEVA may reasonably choose.

(c)  Customer is solely responsible for all Customer Data, including selection, creation, design, usage, licensing, maintenance, testing, backup, and support.  Customer acknowledges and agrees that the Services are not intended to act as a document/data retention system for Customer.  The Services have limited capacity to store Customer’s Customer Data. Customer is also responsible for any individual’s personal information or any information Customer considers confidential that is included in the Customer Data. The laws of some jurisdictions may require the consent of individuals prior to including their personal information in the Customer Data or require compliance with laws, rules, and regulations.  Customer agrees to comply with all applicable laws, to obtain all necessary consents (including those related to the collection, use, processing, transfer and disclosure of personal information), and make all necessary disclosures before including personal information in the Customer Data and using such personal information in connection with the Services.  Customer represents that it will not include any personal information in the Customer Data, if in doing so Customer could not fulfill any of its obligations stated herein.

(d)  Customer acknowledges that this Agreement and the Order Form describe the Services and available options Customer may order and any such Services that Customer orders meet Customer requirements, including requirements for Customer to meet its responsibility for processing any personal information.  Customer acknowledges that Customer has reviewed the security features and responsibilities as described in the applicable Services Descriptions and has determined that they meet Customer’s security needs. Customer is solely responsible for determining the appropriate procedures and controls regarding security of Customer’s Customer Data and for the implementation of any such procedures and controls.  If the current security, procedures, and/or controls offered by AVEVA with respect to the Services do not meet Customer’s requirements, then Customer should not use the Services.  Customer acknowledges that since the Services use a public Internet environment, AVEVA cannot commit to particular confidentiality obligations regarding any Customer Data or Customer confidential information that Customer adds to or uses in connection with the Services.  AVEVA assumes no confidentiality obligations regarding Customer Data, regardless of the terms in the Agreement or any separate confidentiality agreement between Customer and AVEVA.  Furthermore, while AVEVA uses commercially reasonable efforts to provide a safe and secure environment for the transmission and storage of Customer Data, AVEVA accepts no liability for any security breaches, including without limitation security breaches resulting from computer hackers, unlawful entry, unauthorized access, and/or theft. 

(e)  In performing the Services, AVEVA will comply with the AVEVA Cloud Services Privacy Statement, which is available here and incorporated herein by reference.  The AVEVA Cloud Services Privacy Statement is subject to change at AVEVA’s discretion.

(f)  Customer is and shall remain the data controller of the Customer Data it uploads or provides as part of the Services.  AVEVA is a service provider to Customer and AVEVA has the role of data processor. Customer understands and agrees that AVEVA has no control or influence over the content of the Customer Data processed by AVEVA and that AVEVA performs the Services on behalf of Customer.  AVEVA does not own or otherwise act as data controller of the Customer Data.  It is Customer’s responsibility to verify that the security and privacy protections offered by the Services are adequate and in compliance with all applicable laws governing the type of data included in the Customer Data which is uploaded in or provided to the Services.

5. Limited Warranty; Disclaimer of Warranties

(a)  AVEVA warrants that it will use commercially reasonable efforts to provide the Services using reasonable care and skill and according to the then-current applicable Services Descriptions. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND AVEVA’S ENTIRE LIABILITY FOR A BREACH OF THIS WARRANTY SHALL BE FOR AVEVA TO USE COMMERCIALLY REASONABLE EFFORTS TO MODIFY THE SERVICES TO SUBSTANTIALLY ACHIEVE THE FUNCTIONALITY DESCRIBED IN THE THEN-CURRENT APPLICABLE SERVICES DESCRIPTIONS AND IF AVEVA IS UNABLE TO RESTORE SUCH FUNCTIONALITY, CUSTOMER SHALL BE ENTITLED TO TERMINATE THE APPLICABLE ORDER FORM AND RECEIVE A PRO-RATED REFUND OF THE FEES PAID TO AVEVA UNDER THE APPLICABLE ORDER FORM FOR THE CORRESPONDING REMAINING PORTION OF THE SERVICES PERIOD. 

NOTWITHSTANDING THE FOREGOING, AVEVA DOES NOT PROMISE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS, THAT THE SERVICES WILL BE COMPLETELY SECURE, OR THAT AVEVA WILL CURE ALL DEFECTS.  CUSTOMER UNDERSTANDS THAT THE SERVICES MAY BE INTERRUPTED OR COMPLETELY UNAVAILABLE FOR PERIODS OF TIME DUE TO CERTAIN CAUSES WHICH MAY INCLUDE, WITHOUT LIMITATION, MAINTENANCE WORK.  CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, CONFIDENTIAL INFORMATION, CUSTOMER DATA, AND/OR PROPERTY. CUSTOMER IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOSEN. 

(b)  EXCEPT AS PROVIDED IN SECTION 5(A)  ABOVE AND SUBJECT TO ANY STATUTORY WARRANTIES THAT CANNOT BE EXCLUDED, AVEVA MAKES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE SERVICES, THE SOFTWARE PROGRAMS, ANY OTHER COMPONENTS OF THE SERVICES, AND/OR CUSTOMER’S USE THEREOF INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE MINIMUM PERIOD REQUIRED BY LAW. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. CUSTOMER MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.

(c)  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AVEVA, ITS DEALERS, DISTRIBUTORS, CHANNEL PARTNERS, OR AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES GIVEN IN THIS SECTION, AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.

6. Payment Obligations

Customer agrees to pay all fees set forth on the Orders Form.  All fees payable to AVEVA are due within 30 days from the invoice date.  Once placed, Customer’s order is non-cancelable and the sums paid nonrefundable, except as provided in this Agreement or the applicable Order Form.  Customer shall be responsible for and shall pay any sales, value-added or other similar taxes imposed by applicable law that AVEVA must pay based on the Services ordered by Customer, except for taxes based on AVEVA’s income.  Fees for Services listed in an Order Form are exclusive of taxes and expenses.

7. Term

This Agreement is valid for the duration of the applicable Services Period specified in the Order Form which this Agreement accompanies, including any renewals thereof.  After expiration of the initial Services Period, the Services shall automatically renew for consecutive one (1)  year terms unless either party provides the other party with written notice of its intention not to renew no later than thirty (30)  days prior to the end of the then current term. 

8. Limitation of Liability

IN NO EVENT SHALL AVEVA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LIABILITIES, OR ANY LOSS OF REVENUE, PROFITS, GOODWILL, REPUTATION, SAVINGS, DATA, OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES.  AVEVA’S MAXIMUM CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO (I)  THIS AGREEMENT, (II)  THE SERVICES, (III)  USE OR INABILITY TO USE THE SERVICES, (IV)  UNAUTHORIZED ACCESS TO, ALTERATION OF, OR DELETION, DAMAGE, DESTRUCTION OR LOSS OF CUSTOMER’S CONTENT, DATA, OR TRANSMISSIONS TO THIRD PARTIES, (V)  AND/OR ANY OTHER MATTER RELATING TO THE SERVICES, WHETHER IN CONTRACT, TORT, WARRANTY, INDEMNIFICATION, DEFENSE, STRICT LIABILITY OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO AVEVA BY CUSTOMER FOR THE APPLICABLE SERVICES DURING THE TWELVE (12)  MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 

9. Termination and Suspension

(a)  Services provided under this Agreement shall be provided for the Services Period defined in Customer’s Order Form, unless earlier suspended or terminated in accordance with this Agreement or the Order Form.  Upon expiration or termination of the Services Period, Customer will no longer be allowed to access or use the Services. 

(b)  Notwithstanding the foregoing, at any time within sixty (60)  days after the termination or expiration of the Services Period, Customer may request AVEVA in writing to return Customer Data that may be stored on or otherwise existing in the Services at the time of the request.  Upon AVEVA’s receipt of such request, AVEVA shall within a reasonable time return a copy of the Customer Data stored on the Services at the time of the request to Customer in AVEVA’s standard format or such other format as AVEVA may reasonably choose.  At the end of such sixty (60)  day period, and except as may be required by law, AVEVA may delete or otherwise render inaccessible any of the Customer Data that remains in the Services.  Customer agrees that AVEVA shall have no additional obligation to continue to hold, export or return Customer Data and that AVEVA will have no liability whatsoever for deletion of Customer Data pursuant to these terms.

(c)  AVEVA may immediately suspend or terminate on a temporary basis Customer’s access to or use of the Services if Customer violates any provision of this Agreement or the Order Form, or if (in AVEVA’s reasonable judgment)  the Services or any component thereof are about to suffer a threat to security or functionality.  AVEVA will use reasonable efforts to provide advance notice to Customer of such suspension or termination.   If any cause for the temporary suspension/termination is not cured by Customer to AVEVA’s satisfaction within thirty (30)  days after AVEVA’s written notice thereof, then AVEVA may, in addition to any other rights and remedies that AVEVA may have, terminate the Services permanently without liability or refund to Customer of any kind. 

(d)  Either party may terminate this Agreement and/or any applicable Services in the event the other party breaches any of the terms of this Agreement and fails to cure such breach within thirty (30)  days after receiving written notice thereof.  In the event of a breach by Customer, Customer’s use of the Services may be suspended during the applicable cure period. 

(e)  Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, disclaimers, indemnity, payment and others which by their nature are intended to survive.

10. Indemnification

(a)  Customer shall defend, indemnify, and hold harmless AVEVA, its parent, subsidiaries, and affiliates, and each of the foregoing’s officers, directors, members, managers, employees, agents, licensors, contractors, successors and assigns from and against any and all claims, actions, suits, demands, proceedings, judgments, liabilities, losses, damages, costs and expenses (including without limitation reasonable attorneys’ fees and court costs)  arising from or related to (i)  a claim that any information, design, specification, instruction, software, service, data, hardware, or material furnished by Customer or otherwise used by Customer in connection with the Services infringes or misappropriates any patent, copyright, trade secret and/or any other intellectual property right of any third party; (ii)  any violation of this Agreement, including but not limited to the Acceptable Use Policy; and/or (iii)  any failure by Customer to comply with any applicable law, rule and/or regulation (including without limitation any failure of Customer to obtain all necessary consents to upload and/or otherwise use the Customer Data in connection with the Services).

(b)  AVEVA will defend Customer against any third party claim that the Software Program(s)  infringe a registered patent, registered trademark, or copyright of a third party, or misappropriate a trade secret (to the extent that such misappropriation is not the result of Customer’s actions)  (“IP Claim” and will indemnify Customer for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to by AVEVA in settlement. These obligations are given upon the condition that Customer promptly notify AVEVA of any IP Claim and cooperate fully with AVEVA and permit AVEVA to control completely the defense, settlement, and compromise of any such IP Claim.  To the extent permitted by law, AVEVA will have no liability to Customer under this Section 10(b)  for any IP Claim that arises out of: (a)  any unauthorized use, reproduction, or distribution of the Services by Customer; (b)  use of the Services in combination with any other software or equipment not supplied by AVEVA; or (c)  any modification or alteration of the Services by anyone other than AVEVA without the written approval of AVEVA. In the event of an IP Claim pursuant to this Section 10(b AVEVA may (at AVEVA’s option and expense)  : (i)  obtain for Customer the right to continue using the Services; (ii)  modify the Services to make it non-infringing; or (iii)  if subsections (i)  and (ii)  are not commercially viable (as determined by AVEVA in its sole discretion terminate this Agreement and refund Customer on a pro-rated basis any fees pre-paid to AVEVA for the corresponding unused period of the Services.  This Section 10(b)  states Customer’s sole and exclusive remedy against, and AVEVA’s sole liability to, the Customer for any claim of infringement/misappropriation.

11. Use Information

AVEVA may (i)  compile Use Information, (ii)  make such Use Information publicly available provided that such Use Information does not incorporate Customer Data in a form that identifies Customer or any individual, and (iii)  use such Use Information for AVEVA’s internal business purposes including without limitation for security and operations management, to create statistical analyses, for research and development purposes, to study customer behaviors and usage of the Services, to enhance the AVEVA product offerings, and to provide more targeted applications and communications to AVEVA’s customers.  AVEVA retains all right, title and interest (including without limitation all intellectual property rights)  in and to the Use Information.  “Use Information” shall mean (A)  compiled statistical and other information (including without limitation metadata)  related to the performance, operation and use of the Services, and/or (B)  data from the Services in aggregated form.  For purposes of clarification, (i)  the parties agree that any metadata produced as a result of Customer’s and Customer’s End Users’ use of the Services shall be considered Use Information and may be used by AVEVA for AVEVA’s internal business purposes, and (ii)  any raw data relating to the operation of Customer’s equipment that is uploaded to the Services shall be considered Customer Data and may be used by AVEVA as provided in Section 4(a)  hereof. 

12. Export

Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services.  Customer agrees to comply fully with all applicable international and national export laws and regulations, including without limitation the U.S. Export Administration Regulations and the Office of Foreign Asset Control Regulations and “deemed  export” and “deemed  re-export” regulations, as well as end-use and destination restrictions issued by the U.S. and foreign governments to assure that neither the Services nor any direct product thereof are (i)  exported, directly or indirectly, in violation of export laws; or (ii)  are intended to be used for any purposes prohibited by the export laws.  Customer agrees that no data, information, software  programs  and/or  materials  resulting  from  Services (or direct product thereof)  will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

13. Governing Law and Dispute Resolution

This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles, the U.N. Convention on Contracts for the International Sale of Goods, and The Uniform Computer Information Transactions Act.  All disputes, claims or controversies arising out of or relating to this Agreement that are not resolved by the parties’ good faith attempt to negotiate a resolution will be submitted to final and binding arbitration before JAMS/Endispute, or its successor, in Orange County, California, USA, pursuant to the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq.  The arbitration will be conducted in accordance with the provisions of JAMS/Endispute’s Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration.  The parties will cooperate with JAMS/Endispute and each other in selecting a single arbitrator who will be a former judge or justice with substantial experiences in resolving business disputes with particular experience in resolving disputes involving computer software and cloud computing.  The costs of arbitration will be shared equally by the parties.  The provisions of this Section may be enforced by any court of competent jurisdiction. THE ARBITRATOR IS NOT EMPOWERED TO AWARD DAMAGES IN EXCESS OF THE COMPENSATORY DAMAGES (INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPERT WITNESS FEES)  OR IN EXCESS OF THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH IN THIS AGREEMENT, AND EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO RECOVER SUCH DAMAGES (INCLUDING, WITHOUT LIMITATION, PUNITIVE DAMAGES IN ANY FORUM. THE ARBITRATOR WILL BE REQUIRED TO FOLLOW THE APPLICABLE LAW AS SET FORTH IN THE GOVERNING LAW SECTION OF THIS AGREEMENT AND FOLLOW THE TERMS OF THIS AGREEMENT. The arbitrator may award equitable relief in those circumstances where monetary damages would be inadequate, such as a party’s violation of any confidential information provisions hereof. The successful or prevailing party will be entitled to recover its reasonable attorneys’ fees, expert witness fees and other costs of arbitration, in addition to such other relief to which it may be entitled.

14. Assignment

Customer may not assign this Agreement, in whole or in part, without AVEVA’s prior written consent. Any attempt to assign this Agreement without such consent will be null and void.  AVEVA may assign this Agreement in its sole discretion.  Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's permitted successors and assigns.

15. Miscellaneous

(a)  AVEVA is an independent contractor.  AVEVA and Customer agree that no partnership, joint venture, or agency relationship exists between AVEVA and Customer.  Each party will be responsible for paying its own employees, including employment related taxes and insurance.

(b)  If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of this Agreement will be amended to achieve as nearly as possible the intent of the parties, and the remainder of this Agreement will remain in full force and effect.  The waiver by either party of a breach of any provision of this Agreement in one instance shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.

(c)  Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. The party claiming force majeure will use reasonable efforts to mitigate the effect of a force majeure event.  This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the Services.

(d)  All notices required to be sent hereunder will be in writing.  Any notices to AVEVA shall be sent to the AVEVA address shown on the relevant Order Form.  AVEVA may give notices applicable to the general customer base for the Services by means of a general notice on the AVEVA portal for the Services, and notices specific to Customer by electronic mail to Customer’s e-mail address on record in the AVEVA’s account information or by written communication sent by first class mail or pre-paid post to Customer’s address on record in AVEVA’s account information.

(e)  Except for actions for nonpayment or breach of AVEVA’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two (2)  years after the cause of action has accrued.

(f)  Customer remains solely responsible for Customer’s regulatory compliance in connection with Customer’s use of the Services. Customer is responsible for ensuring that the Services meet any technical requirements that result from Customer’s regulatory obligations.  If the Services do not meet such technical requirements, Customer should not use the Services.

(g)  AVEVA may audit Customer’s use of the Services (e.g., through use of software tools or otherwise)  to assess whether Customer’s use of the Services is in accordance with this Agreement and the applicable Order Form.  Customer agrees to cooperate with AVEVA’s audit and provide reasonable assistance and access to information without charge to AVEVA.   Any such audit shall not unreasonably interfere with Customer’s normal business operations.  Customer agrees to pay within thirty (30)  days of written notification any fees applicable to Customer’s use of the Services in excess of Customer’s rights.  If Customer does not pay, AVEVA can end Customer’s Services and/or Customer’s Order Form.

(h)  No third party beneficiary relationships are created by this Agreement. 

(i)  A breach of any of the terms contained in this Agreement may result in irreparable and continuing damage to AVEVA for which there may be no adequate remedy at law.  Accordingly, Customer acknowledges and agrees that AVEVA is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate.

(j)  This Agreement (which includes the Order Form associated with this Agreement)  constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements, written or oral, concerning the subject matter of this Agreement.  This Agreement may not be modified or amended except through a writing signed by an authorized representative of AVEVA or as otherwise provided below.  Customer acknowledges and agrees that the terms of this Agreement may be modified or amended by AVEVA from time to time and that Customer’s continued use of the Services after a modification or amendment shall constitute acceptance and agreement to the modified terms.  Any changes or modifications made to this Agreement by AVEVA will be posted at the link: AVEVA Cloud Services Agreement.  Customer should check this link prior to each use of the Services to determine whether changes to the Agreement have been made by AVEVA.  In the event AVEVA revises this Agreement in any material respect and Customer does not agree with such changes, Customer shall have the right to terminate this Agreement for convenience within ten (10)  days after the effective date of such changes.  Upon such termination, AVEVA shall pay to Customer a prorated refund of any prepaid fees paid by Customer for the Services for the unused portion of the then current term.

(k)  It is expressly agreed that the terms of this Agreement and the Order Form will supersede the terms in any purchasing document submitted by Customer; and the terms of any such Customer purchasing document are expressly rejected.