AVEVA CLOUD SERVICES AGREEMENT
NOTICE: THIS IS A LEGALLY BINDING AGREEMENT BETWEEN the legal person or corporate entity receiving the benefit of this Agreement (THE “CUSTOMER” OR “YOU”) AND AVEVA SOFTWARE, LLC (“AVEVA”) (collectively, the “Parties” and each, a “Party”). PLEASE READ IT CAREFULLY.
IF YOU CLICK THE “I AGREE” BUTTON:
1. YOU AGREE THAT CUSTOMER WILL BE BOUND TO THE TERMS OF THIS CLOUD SERVICES TERMS AND CONDITIONS (THE “AGREEMENT”);
2. YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER; AND
3. YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND AGREED TO THE TERMS OF THIS AGREEMENT. ALTERNATIVELY, BY USING THE PRODUCTS, YOU CONFIRM THAT CUSTOMER AGREES TO BE BOUND BY THESE TERMS.
IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT CLICK “I AGREE” AND DO NOT USE THE PRODUCTS.
IF A SYSTEM INTEGRATOR, CONTRACTOR, CONSULTANT, OR ANY OTHER PARTY USES THE CLOUD SERVICES ON YOUR BEHALF PRIOR TO YOUR USE OF THE CLOUD SERVICES, SUCH PARTY WILL BE DEEMED TO BE YOUR AGENT ACTING ON YOUR BEHALF, AND YOU WILL BE DEEMED TO HAVE ACCEPTED ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT AS IF YOU HAD USED THE CLOUD SERVICES YOURSELF.
AVEVA CLOUD SERVICES TERMS AND CONDITIONS
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NO RIGHT TO ACCESS, USE, OR LICENSE THE PRODUCTS IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY PRODUCTS THAT CUSTOMER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF SUCH PRODUCTS.
This Agreement consists of the following: (i) the terms and conditions set forth in the AVEVA General Terms and Conditions (“GTCs”); (ii) the AVEVA Cloud Services Addendum; and (iii) the AVEVA Data Processing Addendum (as applicable); and (v) any Transaction Documents executed by the Parties and entered into in accordance with the GTCs.
AVEVA GENERAL TERMS AND CONDITIONS
1.1. Definitions. The following capitalized terms used in this Agreement shall have the respective meanings specified below or as otherwise set forth in this Agreement:
“Addenda” means two or more Addendum.
“Addendum” means any of the following: Cloud Services Addendum and Data Processing Addendum (if applicable).
“Affiliates” means, as to any entity, any other entity that, directly or indirectly, Controls, is Controlled by or is under common Control with such entity. To avoid misunderstanding, for AVEVA “Affiliates” means any direct or indirect wholly-owned subsidiary of AVEVA Group plc.
“Agreement” has the meaning set forth in the Preamble.
"Applicable DP Legislation" has the meaning set forth in the Data Processing Addendum.
“AVEVA” has the meaning set forth in the Preamble.
“AVEVA Indemnitees” has the meaning set forth in Section 9.3 (Indemnification by Customer).
“Confidential Information” has the meaning set forth in Section 5.1 (Confidential Information).
“Control” means, with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract or otherwise.
“Customer” has the meaning set forth in the Preamble.
“Currency”. Except where otherwise specified, all dollar amounts are expressed in United States dollars (US$).
“Customer Content” means all software, data (including any Personal Data), information, text, images, audio, video, photographs, non-AVEVA or third-party applications, and other content and material, in any format, provided by Customer, any of Customer’s users, or on behalf of Customer that is stored in, or run on or through, the Products.
“Disclosing Party” has the meaning set forth in Section 5.1 (Confidential Information).
“Documentation” has the meaning set forth in the applicable Addenda or Schedules, as applicable and as the context may require.
“Effective Date” means the date that Customer accepts this Agreement by clicking the “Agree” button or checking the “Agree” box.
“Export Control Laws” means any laws that control, restrict, or impose licensing requirements on export, re-export or transfer of goods, software, technology, or services, issued or adopted by any government, state or regulatory authority of any country in which obligations under this Agreement are to be performed, or in which AVEVA or any of its Affiliates are incorporated or operate, including without limitation the United States of America, the United Kingdom, and the European Union or of any of its Member States.
“Force Majeure” has the meaning set forth in Section 15.3 (Force Majeure).
“GTCs” has the meaning set forth in the Preamble.
“Hosting Services” shall mean the hosting of software, by AVEVA for Customer pursuant to this Agreement through a cloud infrastructure provided by AVEVA or by a third party on behalf of AVEVA.
“Initial Term” has the meaning set forth in Section 10.1 (Term of GTCs).
“Intellectual Property Rights” means any patent rights, copyrights, trademarks, trade secrets, moral rights, and other proprietary or intellectual property rights worldwide.
“Order Form” means the document issued by AVEVA or an authorized AVEVA distributor or authorized AVEVA reseller in hard or electronic copy which, among other things, may identify (i) the particular Products ordered by or for Customer, (ii) the location of the designated Device(s) or Named Users, (iii) the duration or term of the rights to access and use the Products granted to Customer, (iv) the Product fees and any applicable Software support fees owed by Customer and/or (v) the payment schedule.
“Party” and “Parties” have the meaning set forth in the Preamble.
"Personal Data" has the meaning set forth in the Data Processing Addendum.
“Product” means the SaaS Product or Hosting Services, as applicable, that is provided to Customer by AVEVA pursuant to a Transaction Document or on an evaluation basis or as a free trial as set forth in Section 2.2 (Evaluation of Products and Free Products).
“Receiving Party” has the meaning set forth in Section 5.1 (Confidential Information).
“Renewal Term” has the meaning set forth in Section 10.1 (Term of GTCs).
“SaaS Product” means the subscription-based, hosted software-as-a-service product that is provided to Customer by AVEVA pursuant to an Order Form.
“Sanctions Laws” means any economic, financial, trade or other, sanction, restriction, embargo, import or export ban, prohibition on transfer of funds or assets or on performing services, or equivalent measure imposed by any government, state or regulatory authority of any country in which obligations under this Agreement are to be performed, or in which AVEVA or any of its Affiliates are incorporated or operate, including without limitation the United States of America, the United Kingdom, and the European Union or of any of its Member States.
“Schedule” means the SaaS Product Schedule (as applicable) or Hosting Product Schedule (as applicable) specified in an applicable Transaction Document.
“Streamlined Rules” has the meaning set forth in Section 15.10 (Binding Arbitration).
“TD Effective Date” has the meaning set forth in Section 10.2 (Transaction Document Term).
“TD Term” has the meaning set forth in Section 10.2 (Transaction Document Term).
“Term” has the meaning set forth in Section 10.1 (Term of GTCs).
“Third-Party Products” means products (including any software-as-a-service products) and software of a third-party vendor supplied by AVEVA or incorporated by AVEVA into its Products.
“Trade Control Laws” means Export Control Laws and Sanctions Laws.
“Transaction Document” or “TD” means any Order Form entered into pursuant to this Agreement and any schedules or other attachments thereto.
“$” shall mean lawful money of the United States.
2. USE OF PRODUCTS.
2.1. Right to Use. In accordance with the terms of the Agreement, AVEVA will deliver and make the Products listed in the Transaction Document available to Customer through AVEVA Connect. Customer has the right to use the Products as set forth in the Transaction Document and this Agreement.
2.2. Evaluation of Products and Free Products. If a Product is provided by AVEVA on an evaluation basis or as a free trial, then subject to Customer’s compliance with this Agreement, AVEVA grants to Customer a nonexclusive, worldwide, non-transferable, nonsublicensable, limited, revocable right during the applicable evaluation or free trial term to use the Product solely for evaluating whether Customer wishes to purchase a commercial right to access and use such Product. Notwithstanding anything to the contrary in this Agreement, AVEVA does not provide maintenance and support, warranties, service levels and applicable credits, indemnification, with respect to such Products.
2.3. Transaction Documents. Customer may purchase Products from time to time by entering into Transaction Documents. Depending on which Products Customer purchases in the Transaction Documents, Customer may be subject to additional terms included in the Addenda, which are hereby incorporated into and made a part of this Agreement. Customer shall comply with any of the applicable Addenda, as indicated on the relevant Transaction Document.
3. PAYMENTS AND TAXES.
3.1. Payment. Upon credit approval, unless otherwise agreed in the applicable Transaction Document, Customer shall pay all fees specified in the applicable invoice for the Products and Support Services within thirty (30) days from the invoice date. Customer shall pay a late charge of 1.5% per month on all payments which are not paid when due.
3.2. Taxes. Fees and other charges described in the Agreement do not include taxes. Unless otherwise agreed in the applicable Transaction Document, Customer will pay any sales, value-added or other similar taxes imposed by applicable law based on the Products and Support Services that Customer ordered, except for taxes based on AVEVA’s income. If AVEVA is required to pay taxes (other than taxes based on AVEVA’s income), Customer shall reimburse AVEVA for such amounts. If Customer is required by law to make any tax withholding from amounts paid or payable to AVEVA under the Agreement, (i) the amount paid or payable shall be increased to the extent necessary to ensure that AVEVA receives a net amount equal to the amount that it would have received had no taxes been withheld and (ii) Customer shall provide proof of such withholding to AVEVA.
3.3. Customer will provide proof of any exemption from sales taxes to AVEVA at least fifteen (15) Business Days before the due date for paying an invoice. If AVEVA does not collect the required sales from Customer but is subsequently required to remit the sales taxes to any taxing authority, Customer will promptly reimburse AVEVA for the sales taxes, including any accrued penalty or interest charges if the failure to timely collect and remit was not due to the fault of AVEVA.
3.4 Each party is responsible for its own income taxes or taxes based on gross revenues or gross receipts.
3.5. Non-Refundable Fees. Customer acknowledges and agrees that orders placed by Customer for Products and Support Services will be non-cancellable and the fees paid are non-refundable unless otherwise expressly stated in the Agreement.
4. INTELLECTUAL PROPERTY RIGHTS.
4.1. AVEVA Ownership. All Intellectual Property Rights in and to the Products, design contributions, related knowledge or processes, and any update, upgrade, modification, enhancement or derivative works of the foregoing, regardless of whether or not solely created by AVEVA or jointly with the Customer, shall belong to, and vest in, AVEVA or, as applicable, its licensors. All rights not expressly granted to Customer are reserved to AVEVA or, as applicable, its licensors.
4.2. Rights to Customer Content. Customer retains all right, title, and interest in and to the Customer Content. During the Term, Customer hereby grants to AVEVA and its Affiliates a global, royalty-free, irrevocable, sub-licensable, non-exclusive license to use, copy, distribute, modify, display, and perform the Customer Content as necessary for AVEVA to perform its obligations under the Agreement and to provide the Products.
4.3. Non-Assertion of Rights. Customer covenants, on behalf of itself and its successors and assigns, not to assert against AVEVA, its Affiliates or licensors, any rights, or any claims of any rights, in any Products and Documentation, and Customer hereby voluntarily waives any right to demand from AVEVA, its Affiliates or licensors any rights to any Products and Documentation, except the rights which are expressly granted to Customer under the Agreement.
4.4. Suggestions and Residual Knowledge. AVEVA shall have all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to, and the unrestricted royalty-free right to use and incorporate into the Products, any suggestions, enhancement requests, recommendations or other feedback provided by Customer, relating to the Products. Furthermore, Customer acknowledges and agrees that AVEVA is free to use its general knowledge, skills and experience, and any ideas, concepts, know-how and techniques, related to or derived from the performance of the Agreement.
4.5. AVEVA Trademarks. Unless otherwise expressly stated in this Agreement, AVEVA retains all goodwill in and Customer has no rights in any trademark owned by AVEVA, whether registered or unregistered, including but not limited to the following: AVEVA, the AVEVA logo, Wonderware and InTouch. A list of AVEVA trademarks can be found at https://sw.aveva.com/legal/trademarks
5.1. Confidential Information. From time to time, either Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”), whether orally or in physical form, confidential or proprietary information of or in the possession of the Disclosing Party (including confidential or proprietary information of a third party that is in the possession of the Disclosing Party) in connection with the Agreement. The term “Confidential Information” means any and all information in any form that Disclosing Party provides to Receiving Party in the course of the Agreement and that either (i) has been marked as confidential; or (ii) is of such nature that a reasonable person would consider confidential under like circumstances. For the avoidance of doubt, Confidential Information includes any Products and any information pertaining to such Products (including, but not limited to, any user manuals, mathematical techniques, correlations, concepts, designs, specifications, listings, and other Documentation, whether or not embedded on a device or another form of media). Notwithstanding the foregoing, Confidential Information shall not include any information, however designated, which the Receiving Party can show (a) is or has become generally available to the public without breach of the Agreement by the Receiving Party, (b) became known to the Receiving Party prior to disclosure to the Receiving Party by the Disclosing Party, (c) was received from a third party without breach of any nondisclosure obligations to the Disclosing Party or otherwise in violation of the Disclosing Party’s rights, or (d) was developed by the Receiving Party independently of any Confidential Information received from the Disclosing Party.
5.2. Confidentiality Obligations. Each Party or third party whose Confidential Information has been disclosed retains ownership of its Confidential Information. Each Party agrees to (i) protect the Confidential Information received from the Disclosing Party in the same manner as it protects the confidentiality of its own proprietary and confidential materials but in no event with less than reasonable care; and (ii) use the Confidential Information received from the Disclosing Party solely for the purpose of the Agreement. Upon termination of the Agreement or upon written request submitted by the Disclosing Party, whichever comes first, the Receiving Party shall return or destroy, at the Disclosing Party’s choice, all of the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, AVEVA shall not be required to return or destroy any such Confidential Information if such return or destruction is impracticable or technically infeasible. Except with respect to its Affiliates, employees, contractors, or agents who need to know Confidential Information in order to support the performance of such Party’s obligations related to the Agreement, and who are contractually bound by confidentiality obligations that are at least as protective as those contained in the Agreement, neither Party shall, disclose to any person any Confidential Information received from the Disclosing Party without the Disclosing Party’s prior written consent. The Receiving Party will be responsible for any breach of this Section 5 (Confidentiality) by its Affiliates, employees, contractors, and agents and any third party to whom it discloses Confidential Information in accordance with this Section 5 (Confidentiality). For Confidential Information that does not constitute a “trade secret” under applicable law, these confidentiality obligations will expire three (3) years after the termination or expiration of the Agreement. For Confidential Information that constitutes a “trade secret” under applicable law, these confidentiality obligations will continue until such information ceases to constitute a “trade secret” under such applicable law. However, the Receiving Party may disclose Confidential Information pursuant to an order of a court or governmental agency, provided, that, if permitted by applicable law, the Receiving Party shall first notify the Disclosing Party of such order and afford the Disclosing Party the opportunity to seek a protective order relating to such disclosure. Notwithstanding anything to the contrary contained in this Agreement, Customer authorizes AVEVA to collect, use, disclose, and modify in perpetuity information or data (including, but not limited to, general usage information and measurements) that is provided by Customer in connection with the use or receipt of the Products (or generated or created in the course of AVEVA providing the Products) for the purposes of developing, improving, optimizing, and delivering Products; provided, however, that any disclosure of such data shall only include information or data that AVEVA develops or derives from such collected data or information (but such disclosure will not include the actual underlying Confidential Information of Customer).
5.3. Press Releases and Client List Reference. Neither Party shall issue any press release concerning the other Party’s work without the other Party’s consent. Notwithstanding the foregoing, AVEVA may identify Customer as a client of AVEVA and use Customer’s name and logo and release an announcement regarding the award of the Agreement and AVEVA is hereby granted a license for the term of the Agreement to use Customer’s name and logo for this purpose from time to time as needed. AVEVA may generally describe the nature of the work in AVEVA’s promotional materials, presentations, case studies, qualification statements, and proposals to current and prospective clients.
6. CUSTOMER CONTENT, DATA PROTECTION AND SECURITY.
6.1. Customer Content. Customer is responsible for the Customer Content and entering it into the Products. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content, and for obtaining all rights related to Customer Content required in connection with the performance, receipt or use of the Products.
6.2 Data Protection. Customer will collect and maintain any Personal Data contained in the Customer Content in compliance with Applicable DP Legislation and its obligations set out in the Data Processing Addendum (if applicable). Customer will ensure that it has the necessary rights and permissions (including consents if required) to enter any Personal Data as Customer Content into the Products, and for AVEVA to process such Personal Data on its behalf.
6.3. Security. Customer will maintain reasonable security standards for the use of the Products by users. Customer is solely responsible for determining the suitability of the Products for Customer’s business processes and for complying with all applicable legal requirements regarding Customer Content and its use of the Products. Customer will provide reasonable assistance required in connection with the provision of the Products and the support by AVEVA. Customer acknowledges and agrees that Customer’s reasonable assistance is a necessary precondition for AVEVA’s correct performance of its obligations under the Agreement. Customer bears all consequences and costs resulting from breach of its duties.
7. DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THE AGREEMENT (INCLUDING ANY APPLICABLE SCHEDULES AND/OR ANY APPLICABLE ADDENDA), AVEVA AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, OR STATEMENTS, WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AVEVA, ITS DEALERS, DISTRIBUTORS OR AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES SET FORTH IN THE AGREEMENT AND CUSTOMER MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. AVEVA DOES NOT WARRANT THAT THE PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE PRODUCTS WILL OPERATE IN COMBINATIONS OTHER THAN AS SPECIFIED IN AVEVA’S DOCUMENTATION (AS APPLICABLE), THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE PRODUCTS WILL PROTECT AGAINST ALL POSSIBLE SECURITY THREATS, INTERNET THREATS OR OTHER THREATS OR INTERRUPTIONS. THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND MAY BE SUBJECT TO TRANSMISSION ERRORS, DELIVERY FAILURES, DELAYS AND OTHER LIMITATIONS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
8. LIMITATION OF LIABILITY.
8.1. CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL AVEVA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, PROFITS, REVENUE, LOSS, CORRUPTION OR DESTRUCTION OF DATA, BUSINESS INTERRUPTION, OR DOWNTIME), REGARDLESS OF THE CAUSE OF ACTION OR BASIS OF LIABILITY (WHETHER IN CONTRACT, TORT, INDEMNITY, OR OTHERWISE), AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. Damages Cap. Notwithstanding anything to the contrary herein, the aggregate liability of AVEVA to Customer for any loss or damage arising under or in relation to the Agreement, regardless of the basis of liability (whether arising out of liability under breach of contract, tort (including but not limited to negligence), misrepresentation, breach of statutory duty, breach of warranty or claims by third parties arising from any breach of the Agreement) shall not exceed the fees paid by Customer pursuant to the applicable Transaction Document for the specific Product giving rise to such liability in the twelve (12) month period preceding the date of the incident giving rise to the claim. The provisions of this Section 8 allocate the risks between AVEVA and Customer, and AVEVA’s pricing reflects this allocation of risk and the limitation of liability specified herein. Notwithstanding the foregoing, the limitations on amounts of damages set forth in this Section 8.2 shall not apply to AVEVA’s intentional misconduct, fraud, or fraudulent misrepresentation, or to the extent prohibited by applicable law.
9.1. Indemnification by AVEVA. AVEVA shall defend, indemnify, and hold harmless Customer against claims brought against Customer by any third party alleging that Customer’s use of the Products, in accordance with the terms and conditions of the Agreement, constitutes an infringement or misappropriation of a patent, copyright, or trade secret of a third party. AVEVA will pay damages finally awarded to the third party (or the amount of any settlement AVEVA enters into) with respect to such claims. This obligation of AVEVA shall not apply if the alleged infringement or misappropriation results from: (a) use of the Products in conjunction or combination with any other software, services, or any product, data, item, or apparatus that AVEVA did not provide (including any Third-Party Products); (b) anything Customer provides or designs including configurations, instructions, or specifications (including any Products that were provided pursuant to Customer’s designs, drawings, or specifications); (c) a modification of a Product other than with AVEVA’s prior written consent; (d) Customer’s failure to use the latest release or version of a Product (including any corrections or enhancements) where such use would have prevented the infringement or misappropriation claim; or (e) any use, storage, distribution, reproduction, or maintenance not permitted by the Agreement. If AVEVA believes, in its reasonable opinion, that a claim under this Section 9.1 could or is likely to be made, AVEVA may cease to offer or deliver such Products without being in breach of the Agreement.
9.2. Infringement Remedies. In the event a claim under Section 9.1 is made and such Product is held to infringe or misappropriate a third-party’s patent, copyright, or trade secret, then AVEVA may, at its sole option and expense: (a) procure for Customer the right to continue using the Product under the terms of the Agreement or (b) replace or modify the Product to be non-infringing without a material decrease in functionality. If these options are not reasonably available, AVEVA or Customer may terminate the Agreement upon written notice to the other and Customer shall immediately cease using or shall return the infringing Product. The provisions of this Section 9.2 state the sole, exclusive, and entire liability of AVEVA to Customer, and is Customer’s sole remedy, with respect to third-party claims covered by Section 9.1.
9.3. Indemnification by Customer. Customer shall defend, indemnify, and hold harmless AVEVA and its Affiliates (and each of their licensors) and each of their respective officers, directors, contractors, agents, and employees (“AVEVA Indemnitees”) against claims brought against AVEVA Indemnitees by any third party arising from or related to: (a) any use of the Products by Customer in violation of the Agreement or any applicable law or regulation; (b) any Customer Content; and (c) an allegation that the Customer Content or other material provided by Customer, or use of the Products by Customer in violation of the Agreement or applicable law or regulation, violates, infringes, or misappropriates the Intellectual Property Rights of a third party or is in breach of the Applicable DP Legislation. The foregoing shall apply regardless of whether such damage is caused by the conduct of Customer and/or its named users or by the conduct of a third party using Customer’s access credentials.
9.4. Indemnification Requirements. The indemnification obligations under this Section 9 are conditioned on: (a) the Party against whom a third-party claim is brought timely notifying the other Party in writing of any such claim, provided however that a Party’s failure to provide or delay in providing such notice shall not relieve a Party of its obligations under this Section 9 except to the extent such failure or delay prejudices the defense; (b) the Party who is obligated to defend a claim having the right to fully control the defense of such claim; (c) the Party against whom a third-party claim is brought reasonably cooperating in the defense of such claim; and (d) Customer complying with AVEVA’s direction to cease any use of the Products which in AVEVA’s reasonable opinion, is likely to constitute an infringement or misappropriation. Any settlement of any claim shall not include a financial or specific performance obligation on or admission of liability by the Party against whom the claim is brought, provided however that AVEVA may settle any claim on a basis requiring AVEVA to substitute for the Products any alternative substantially equivalent non-infringing products. AVEVA shall not be responsible for any settlement made without its consent. The Party against whom a third-party claim is brought may appear, at its own expense, through counsel reasonably acceptable to the Party obligated to defend claims. Neither Party shall undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation that is prejudicial to the other Party’s rights.
10. TERM AND TERMINATION.
10.1. Term of GTCs. The initial term of these GTCs begins on the Effective Date and shall continue thereafter for five (5) years unless terminated earlier by a Party pursuant to these GTCs (including, but not limited to, this Section 10 (Term and Termination)) (the “Initial Term”). The GTCs will auto-renew for one (1) year periods following the Initial Term (each, a “Renewal Term”) until either Party provides notice of intention to not renew sixty (60) days before the end of the then current Initial Term or Renewal Term. The Initial Term and each Renewal Term shall collectively be referred to as the “Term”.
10.2. Transaction Document Term. The initial term of each Transaction Document shall commence on the effective date specified in the Transaction Document (the “TD Effective Date”) and continue thereafter until: (a) the end of the term of the Transaction Document as specified in the Transaction Document; (b) if specified in the Transaction Document, delivery of the Products in accordance with the Transaction Document; or (c) earlier termination by either Party in accordance with this Section 10 (Term and Termination) (the “TD Term”).
10.3. Evaluation Term. If Customer is using the Product on an evaluation basis or as a free trial, then the term for such Product will be specified in the Transaction Document. If no such term is specified, the term shall be forty-five (45) days from the date the Product is delivered.
10.4. Termination for Material Breach. Either Party may terminate these GTCs or a Transaction Document for cause if the other Party commits a material breach of this Agreement or Transaction Document (including, without limitation, a delay in Customer’s payment of any money due under this Agreement or any Transaction Document) and fails to cure such breach within thirty (30) days (or with respect to Customer’s payment failure, within ten (10) days) of receipt of a notice of default from the non-defaulting Party.
10.5. Termination for Financial Deterioration. Either Party may terminate this Agreement or a Transaction Document immediately if the other Party files for bankruptcy, ceases or threatens to cease carrying on business, becomes insolvent, or makes an appointment, assignment or novation for the benefit of creditors.
10.6. Effect of Termination. If these GTCs are terminated prior to the completion of one (1) or more Transaction Documents, then the Transaction Documents that are not terminated shall continue to be governed by the GTCs for the remainder of the applicable TD Term.
For as long as any Transaction Document remains in effect, AVEVA will maintain, at its sole cost and expense, comprehensive general liability and property damage insurance in an amount not less than $1 million USD in the aggregate. Additionally, AVEVA will maintain, at its sole cost and expense, workers’ compensation insurance in accordance with statutory requirements.
12. THIRD-PARTY PRODUCTS.
12.1. Third-Party Products. Unless otherwise agreed in writing by AVEVA, if Third-Party Products are supplied by AVEVA to Customer, such Third-Party Products are provided on a “pass-through” basis only and are subject to the terms and conditions of the third-party vendor, including but not limited to warranties, licenses, indemnities, limitation of liability, prices and changes thereto.
AVEVA provides its standard e-training for Products. Any fees required for such training will be set forth in the applicable Transaction Document.
14. TRADE CONTROL.
14.1. The Customer will not, directly or indirectly, export, re-export, transfer or otherwise make available, or use the Product to any person or in any manner, or be involved in any act, that could result in AVEVA or its Affiliates being in violation of, or being subject to negative consequences under, Trade Control Laws.
14.2. AVEVA shall have the right to suspend its obligations under, or terminate, this Agreement with immediate effect in the event that:
14.2.1. AVEVA determines that, in its reasonable opinion, the Customer has breached or is likely to breach Section 14.1; or
14.2.2. the Customer or the Product becomes subject to Trade Control Laws and, as a result, AVEVA determines that, in its reasonable opinion, the continued performance of its obligations under this Agreement could result in AVEVA or its Affiliates being in violation of, or being subject to negative consequences under, Trade Control Laws.
15.1. Assignment. The Agreement shall extend to and be binding upon the Parties to the Agreement, their successors, and assigns, provided, however, that neither Party shall assign or transfer the Agreement (including any Transaction Document) without the other Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing limitation, AVEVA may assign or transfer the Agreement, in whole or in part, without obtaining the consent of Customer, to a parent company or subsidiary or in connection with the transfer or sale of its entire business or in the event of a merger, divestiture, internal reorganization or consolidation with another company.
15.2. Independent Contractor. AVEVA is an independent contractor, and each Party agrees that no partnership, joint venture, agency, fiduciary, or employment relationship exists between the Parties.
15.3. Force Majeure. Except for Customer’s payment obligations, neither Party shall be liable for delays caused by conditions beyond their reasonable control, (“Force Majeure”), provided notice thereof is given to the other Party as soon as practicable. All such Force Majeure conditions preventing performance shall entitle the Party hindered in the performance of its obligations under the Agreement to an extension of the date of delivery of the Products by a period of time equal to the period of delay incurred as a result of the Force Majeure or to any other period as the Parties may agree in writing.
15.4. Waiver. The waiver (whether express or implied) by either Party of a breach or default of any of the provisions of the Agreement (including any Transaction Document) by the other Party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other Party.
15.5. Notices. All notices and other communications required or permitted under the Agreement will be in writing and delivered by confirmed transmission, by courier or overnight delivery service with written verification of receipt, or by registered or certified mail, return receipt requested, postage prepaid, and in each instance will be deemed given upon receipt. All such notices, approvals, consents and other communications will be sent to the addresses set forth on the Transaction Document or to such other address as may be specified in writing by either Party to the other in accordance with this Section 15.5.
15.6. Invalidity and Severability. If any provision of the Agreement (including any Transaction Document) shall be found by any court to be invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of the Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
15.7. Negotiated Terms. The Parties agree that the terms and conditions of the Agreement are the result of negotiations between the Parties and that the Agreement shall not be construed in favor of or against either Party by reason of the extent to which such Party or its professional advisors participated in the preparation of the Agreement.
15.8. Survival of Provisions. The provisions of the Agreement that by their nature survive expiration or termination of the Agreement will survive expiration or termination of the Agreement, including, but not limited to, the following Sections: 3 (Payments and Invoicing), 4 (Intellectual Property Rights), 5 (Confidentiality), 7 (Disclaimer of Warranties), 8 (Limitation of Liability), 9.3 (Indemnification by Customer), 10 (Term and Termination), 12 (Third-Party Products), and 15 (Miscellaneous).
15.9. Governing Law and Jurisdiction. The validity of the Agreement and the rights, obligations and relations of the Parties under the Agreement and in any dispute between them will be construed and determined under and in accordance with the substantive laws of the State of Texas, without regard to such state’s principles of conflicts of law. If a court must enter or enforce an arbitration award or the binding arbitration provision set forth in Section 15.10 (Binding Arbitration) is deemed invalid or ineffective, then each Party irrevocably agrees to submit to the exclusive jurisdiction of (and waives any objection to the venue of) the federal or state courts located in Harris County, Texas to enter or enforce such award or to determine such claim or matter arising out of or in connection with this Agreement, as applicable. To the extent otherwise applicable, the Parties hereto agree that the United Nations Convention on the International Sale of Goods will not apply to this Agreement.
15.10. Binding Arbitration. Any controversy or claim arising out of or relating to the Agreement, including any breach of the Agreement, shall be determined by final and binding arbitration administered by JAMS under its Streamlined Arbitration Rules and Procedures (“Streamlined Rules”). The award rendered by the arbitrator shall be final, non-reviewable, and non-appealable and binding on the Parties and may be entered and enforced in any court having jurisdiction. There shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof appointed by JAMS in accordance with the Streamlined Rules, which arbitrator shall have substantial experience in resolving business disputes involving similar products or services. The place of arbitration shall be Harris County, Texas. The arbitrator will have no authority to award punitive, consequential, liquidated, or other damages waived, disclaimed, or otherwise prohibited by the Agreement and the award shall not exceed the applicable limitation of liability set forth in the Agreement. Neither Party has the right to act as a class representative or participate as a member of a class with respect to any arbitrated controversy or claim arising out of or relating to the Agreement (including any breach of the Agreement).
15.11. Waiver of Jury Trial. Each Party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any proceedings relating to the Agreement or any performance or failure to perform of any obligation under the Agreement.
15.12. Waiver of Right to Class Action. Each Party waives, to the fullest extent permitted by applicable law, any right it may have to participate in a class action in respect of any proceedings relating to the Agreement or any performance or failure to perform of any obligation under the Agreement. Each Party may only bring a claim against the other in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
15.13. Ethical Trading Policy. Customer shall comply with AVEVA’s then-current ethical trading policy located at www.aveva.com/policies/ethical/en, which shall be incorporated herein by reference.
15.14. Third-Party Beneficiary. Except as expressly set forth in the Agreement, the Parties do not intend to create rights for any person as a third-party beneficiary of the Agreement.
15.15. Entire Agreement; Amendments; Execution. The Agreement constitutes the entire agreement between the Parties relating to its subject matter and supersedes all prior or contemporaneous representations, understandings or agreements whether written or oral, relating to its subject matter. The Agreement will prevail over any additional, conflicting, or inconsistent terms and conditions that may be contained in any purchase order or other document furnished by Customer to AVEVA. Any signed General Terms and Conditions and accompanying addenda executed between the Parties on or after 1 January 2019 will prevail over any additional, conflicting, or inconsistent terms and conditions in this Agreement, and will prevail over any purchase order or other document furnished by Customer to AVEVA.. The Agreement may be amended or modified only by a writing that is signed by or on behalf of both Parties.
AVEVA CLOUD SERVICES ADDENDUM
This AVEVA Cloud Services Addendum (the “Cloud Services Addendum”) supplements and is hereby incorporated into and made a part of those certain AVEVA General Terms and Conditions, by and between AVEVA and Customer (the “GTCs”), to which this Cloud Services Addendum is included. Capitalized terms used in this Cloud Services Addendum without definition shall have the same meanings ascribed to them in the GTCs.
1.1 “Acceptable Use Policy” or “AUP” means the then-current acceptable use policy of AVEVA, which is currently located at https://sw.aveva.com/legal/usage-policy/, as may be updated, modified, supplemented, or otherwise amended from time to time.
1.2 “Account Administrator” means the Representative(s) set out in the Transaction Document, which, in the management of the Product, has the exclusive right to grant access or use to any Users of the Product on behalf of Customer.
1.3 “Account Information” means any information about Customer, its Affiliates, and any Users which Customer or any User provides to AVEVA, or AVEVA collects, in connection with the creation or administration of their accounts (including, but not limited to, any Billing Metrics, Usage Credentials or Usage Metrics).
1.4 “Available Minutes” means the total number of minutes during a calendar month.
1.5 “AVEVA Connect” shall mean: AVEVA's platform for managing user subscriptions and accessing the Hosting Services.
1.6 “Best-fit Storage” means an algorithm that may be used together with the Data Acquisition Rate. Best-fit Storage combined with a Data Acquisition Rate of sixty (60) seconds means that regardless of the number of values submitted for a Data Point, only the minimum set of values required to give a good representation of the Data Point for that sixty (60) seconds are stored. The minimum set of values may include, but is not limited to the First, Last, Minimum, Maximum, and Mean value for the Data Point. Best-fit Storage may be set forth in a Transaction Document as applicable to the Product purchased.
1.7 “Billing Metrics” means any information collected, processed, or stored by or on behalf of AVEVA for the purposes of computing fees for a Product.
1.8 “Credits” means the virtual credits purchased by Customer which may be redeemed directly to use the Software or to create a License File allowing access and use of the Software. At the start of the TD Term, Credits, either for Cloud SaaS or On-Premises Software as set forth in the Product Rate Plan, will be allotted to Customer for use throughout the entire TD Term. Any unused Credits remaining at the end of the TD Term may not be carried forward to any other term or otherwise. Credits designated for Cloud SaaS are not inter-changeable with Credits designated for On-Premises Software.
1.9 “Credit Access Period” means a period defined in the Transaction Document during which a User may access multiple instances of the Product from multiple devices, and it will count as a single access for the purpose of Credit Charging. Each Credit Access Period consumes the number of Credits shown against the Services in the Subscription Table. Where Customer wishes the Services to be used by multiple Users, the same applies per additional User.
1.10 “Credit Weighting” The number of Credits required for a single User to utilize a Product during a Credit Access Period.
1.11 “Customer Submission” means any software, data (including Personal Data), information, text, image, audio, video, photograph, or other content or material, in any format, that Customer or a User posts, uploads, or otherwise submits (or is posted, uploaded, or submitted on Customer’s or a User’s behalf) to community opened areas or developer or blog forums.
1.12 “Daily Active Users” or “DAU” refers to the total number of Users that have been identified by AVEVA as accessing the Product during a calendar day, as measured in Coordinated Universal Time (UTC).
1.13 “Data Acquisition Rate” means the fastest rate at which the Product will store values for a single Data Point. This is expressed in terms of the duration between successive values stored by the Product. Values submitted that exceed the Data Acquisition Rate may not be stored by the Product. Data Acquisition Rates may be set forth in a Transaction Document as applicable to the Product purchased.
1.14 "Data Controller" has the meaning set forth in the Data Processing Addendum.
1.15 “Data Point” means a discrete unit of information – usually representing a value from a sensor or other device - that is being monitored over time and published and/or stored by the Product. Data Points may be set forth in a Transaction Document as applicable to the Product purchased.
1.16 "Data Processor" has the meaning set forth in the Data Processing Addendum.
1.17 “Data Source” means a piece of equipment or other system that is providing one or more Data Points to the Product and is being represented and managed as an inbound connection to the Product. Data Sources may be set forth in a Transaction Document as applicable to the Product purchased.
1.18 “Documentation” means the technical documentation, program specifications, operations manuals, and other documentation as are available on the Product (or through AVEVA Connect for such Product), which may be updated, modified, supplemented, or otherwise amended by AVEVA from time to time.
1.19 “Downtime” means the total number of minutes during a calendar month that the Cloud Services are unavailable to Customer when such unavailability is solely caused by Cloud Services errors or other factors within AVEVA’s reasonable control. Downtime does not include Emergency Downtime, Scheduled Downtime, and General Unavailability.
1.20 “Edge Device” is a host (whether an on-premises hardware device or a virtualized container or environment) for which AVEVA does not have any responsibility for maintaining or over which AVEVA does not exert control.
1.21 “Emergency Downtime” means those times when AVEVA or a third party becomes aware of a security or other vulnerability that AVEVA deems to require prompt remediation and, as a result, the Cloud Services are temporarily made unavailable in order for AVEVA to remediate the security or other vulnerability.
1.22 “Excess Usage” has the meaning set forth in Section 4.2(e).
1.23 “General Unavailability” means network outages, infrastructure outages, unavailability caused by a third party or Customer’s hardware or software, or unavailability caused by the acts or omissions of Customer or its employees, subcontractors, or agents, including events outside of AVEVA’s direct control, such as downtime as a result of the failure or lack of availability of third-party cloud services upon which the Services depend.
1.24 “Goods” means all products, equipment, materials, spare parts, hardware, supplies, and accessories for which support has been purchased under the applicable Transaction Document.
1.25 “High Risk Use” has the meaning set forth in Section 11.
1.26 “License File” means a Software license file used by Software applications which contains registration information that allows the User to open and access the Software.
1.27 “Monthly Active Users” or “MAU” means the total number of Users that have been identified by AVEVA as accessing the Product during a calendar month, as measured in Coordinated Universal Time (UTC).
1.28 “Named User” means a unique, named individual who has logged-in or otherwise accessed the Product. Uniqueness of an individual is determined through a combination of (i) the credentials or other identifying information provided during any login sequence and (ii) the internet address, network address, equipment identifier, International Mobile Equipment Identity or other item that identifies the device being used to access the Product.
1.29 “Permitted Third Party” means any third party (including Affiliates of the Customer) specifically identified in a Transaction Document as a permitted user of any of the Products listed in such Transaction Document and has issued a Permitted Third-Party Undertaking Letter to AVEVA (if requested by AVEVA).
1.30 “Permitted Third-Party Undertaking Letter” means a letter, commitment, or agreement, in form and substance satisfactory to AVEVA in its sole discretion, requiring such third party to comply with all terms and conditions contained in the Agreement (and to be responsible for any non-compliance).
1.31 “Production Account” means accounts that can be used for active production.
1.32 “Product Rate Plan” means that document that provides a Customer with the agreed list of offers and their associated Credit rates. Each time a Customer accesses the Product, Credits will be deducted from the total number of Credits shown in the Customer’s credit balance in AVEVA Connect. The Product Rate Plan will be used to track the usage of offers against the Order’s Credits. The Product Rate Plan may change depending upon the Products that the Customer chooses throughout the course of the TD Term. Such changes will be shown in the AVEVA Connect Platform.
1.34 “Release Notes” shall mean electronic notification sent by AVEVA at the launch of a new software product or a product update or technical modification of a product.
1.35 “Representatives” means any employees, officers, representatives, or advisers of a Party.
1.36 “Reward Credits” means, either: (a) Credits that AVEVA may offer to Customer at a discount to the then-current Credit rates, or (b) Credits that AVEVA may offer at no cost to Customer, each of which may be offered to Customer at AVEVA’s sole discretion.
1.37 “Sales Partner Account” means an account, and all applications subscribed within, which is provided for the sole purpose of supporting the development and sale of AVEVA Cloud Solutions. Sales Partner Accounts cannot be used in production and no user can be invited into the account unless providing feedback or reviewing demonstration, training, or other activity in the support of promoting AVEVA Cloud Solutions.
1.38 “Scheduled Downtime” means the period of time when the Cloud Services are unavailable because of network changes, hardware or maintenance activity or upgrades.
1.39 “Service Credit” has the meaning set forth in Section 6.2.
1.40 “Service Level” means any service level for a Product that is set forth in a Schedule for such Product.
1.41 “Uptime Commitment” has the meaning set forth in Section 6.1.
1.42 “Third-Party Content” means (i) all data and information submitted to AVEVA by or on behalf of Customer, (ii) obtained, developed or produced in connection with the provision, receipt or use of the Product, or (iii) to which AVEVA has access in connection with the provision of the Product.
1.43 “Top-Up Credits” means additional Credits purchased by Customer during the course of the TD Term to remedy an account that is overdrawn in Credit usage or to supplement Customer’s Credit usage.
1.44 “Uptime” means the time period during a calendar month in which the Cloud Services are available for Customer’s use. In order to determine if AVEVA met the Uptime Commitment for a calendar month, the Uptime percentage will be calculated as follows: (Available Minutes – Downtime) / (Available Minutes * 100).
1.45 “Usage Metrics” means any information or data that is reasonably necessary to understand, aggregate, compute, measure, or support Customer’s use of the Products.
1.46 “User Credentials” means the username and password of each User as provided by AVEVA to a Customer to use the applicable Product and any associated User identifiers.
1.47 “User” has the meaning set forth in Section 3.1.
2. TRANSACTION DOCUMENTS.
2.1. From time to time, AVEVA and Customer may enter into Transaction Documents whereby AVEVA provides Products to Customer. Each Transaction Document shall constitute a contract between AVEVA and Customer separate and distinct from any other Transaction Document. Each Transaction Document shall be deemed to incorporate the terms of the GTCs (whether or not stated on the face of the Transaction Document).
3. USE OF PRODUCTS.
3.1. Use of Products. During the TD Term and subject to Customer’s compliance with all terms and conditions of the Agreement (including payment of any applicable fees), AVEVA grants to Customer a personal, non-exclusive, non-transferable limited right to access and use the Products and Documentation, through AVEVA Connect, solely for the internal business operations of Customer and subject to any usage restrictions set forth for such Product in the Agreement (including any Transaction Documents or applicable Schedule). Customer shall not make such Product accessible or available for use by Affiliates or Permitted Third Parties unless expressly permitted in the Transaction Document; provided, however, that Customer will always be liable for any acts or omissions of Users, Affiliates, and Permitted Third Parties (including for any non-compliance with terms of the Agreement). Customer may allow Account Administrator, employees, contractors, and agents authorized by Customer, as applicable, to use the Products on Customer’s behalf in accordance with the Agreement and the Transaction Document(the “Users”) provided any third party Users are listed as Permitted Third-Parties in the applicable Transaction Documents. For a Product that is specifically designed to allow Customer’s clients, agents, customers, suppliers or other third parties to access the Product in order to interact with Customer, such third parties will be considered “Users” subject to the terms of the Agreement and the Transaction Document. Customer shall cause the Users to comply with the Agreement and shall be responsible for the acts and omissions of the Users. Following the expiration or termination of the TD Term, Customer shall not be able to access or use the Product or Documentation. Notwithstanding the foregoing, AVEVA recognizes and agrees that certain users of the Products may be OEM customers of AVEVA (an “OEM Customer”). In such instance, AVEVA understands that such OEM Customer may make the Product available to the OEM Customer’s third-party customers. AVEVA consents to such use of the Product 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.
3.2. Restrictions on Use.
3.2.1 Copy Restrictions. Copyright laws and international treaties protect the Product, including the Documentation. Unauthorized copying of the Product, the Documentation or any part thereof, is expressly prohibited. All titles, trademarks, and copyright and restricted rights notices will be reproduced in such copies.
3.2.2 Use Restrictions. The Agreement only gives Customer some rights to use and access the Product and AVEVA and its licensors reserve all other rights. Customer does not acquire any rights, express or implied, other than those expressly granted in the Agreement. Unless applicable law gives Customer more rights despite this limitation, Customer may use the Product only as expressly permitted in the Agreement. In doing so, Customer agrees that it will comply with any technical limitations in the Product that only allow Customer to use the Product in certain ways. Customer agrees that it will not, nor will Customer permit others to:
(a) reverse engineer, reproduce, decompile, recompile, disassemble, merge, modify, adapt or translate the Product or any component thereof (including Documentation), or create derivative works based on the Product (including Documentation), except and only to the extent that (a) applicable law expressly permits, despite this limitation, (b) AVEVA gives it prior written consent, or (c) the Documentation accompanying the Product expressly permits;
(b) incorporate the Product into any other software program or software-as-a-service product not provided by AVEVA, except (a) for incorporation of such Product with application program interfaces that AVEVA makes publicly available for such Product or (b) to the extent permitted to customize the Product in accordance with the accompanying Documentation;
(c) remove, obliterate, destroy, minimize, block or modify any logos, trademarks, copyright, digital watermarks, or other notices of AVEVA or its licensors that are included in the Product, except as may be permitted when using application program interfaces that AVEVA makes publicly available for such Product;
(d) work around any technical limitations in the Product;
(e) make more copies of the Product than as allowed in the Agreement or by applicable law, despite this limitation;
(f) publish (or otherwise make available) the Product, including any application programming interfaces included in the Product, or any programs or materials resulting from the Product (excluding Customer Content);
(g) transfer, sublicense, rent, lease, sell, lend, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, make available, or assign the Product or any part thereof (including any materials or programs, such as underlying software programs) to any other person or entity (except as expressly permitted by the Agreement);
(h) transfer the Product to another location or to other equipment without the prior written consent of AVEVA (except as otherwise expressly permitted pursuant to the Agreement);
(i) use the Product to store or transmit infringing, libelous, or otherwise unlawful or tortious material (or to store or transmit material in violation of law or third-party privacy rights);
(j) use the Product in a way intended to access or use the underlying infrastructure or to avoid incurring fees or exceed usage limitations;
(k) perform or disclose any of the following security testing of the Product 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;
(l) use or access the Product in a manner not permitted by (or otherwise inconsistent with) the Documentation; or
(m) use the Product to build or support, directly or indirectly, products or services competitive to the Product or any other products or services of AVEVA.
3.3. Acceptable Use Policy. Customer shall comply with the Acceptable Use Policy and shall not use or permit the use of the Product in a manner that violates the Acceptable Use Policy, which is incorporated herein by reference.
3.4. Customer Submissions. Any Customer Submissions will be governed by the terms of the Apache License Version 2.0, unless Customer requests and AVEVA consents in writing to another license supported by AVEVA.
4. PROVISION OF PRODUCTS.
4.1. Provision of Product. AVEVA will provide the Products through AVEVA Connect substantially in accordance with the Agreement.
4.2. Subscription Models. AVEVA may offer to Customer various subscription models for the Product. The terms and conditions relating to the applicable subscription models are as follows:
(a) Named User Model. If the Product has been subscribed to on a Named User Model basis, then Customer’s access to and use of the Product shall be limited to the number of (and specified) Named Users set forth in the Transaction Document.
(b) Monthly Active User Model. If the Product has been subscribed to on a Monthly Active User Model basis, then during any calendar month (as measured in Coordinated Universal Time (UTC), Customer’s access to and use of the Product shall be limited to and not exceed the number of Monthly Active Users set forth in the Transaction Document.
(c) Daily Active User Model. If the Product has been subscribed to on a Daily Active User Model basis, then during any calendar day (as measured in Coordinated Universal Time (UTC)), Customer’s access to and use of the Product shall be limited to and not exceed the number of Daily Active Users set forth in the Transaction Document.
(d) Hourly Usage Model. If the Product has been subscribed to on an Hourly Usage Model basis, then Customer’s access to and use of the Product shall be limited to and shall not exceed the number of hours set forth in the Transaction Document.
(e) Credit Based Subscription Model. If the Product has been subscribed to on a Credit Based Subscription Model basis, then then Customer’s access to and use of the Product shall be limited to and shall not exceed the number of Credits set forth in the Transaction Document. Customer will purchase Credits at the start of the initial term and on each renewal term. The Customer’s rights to use such Credits will expire at the end of the initial term and any renewal term on which the Credits were purchased. Where Customer purchases Top-up Credits, such Top-up Credits will be purchased at the agreed rate and will expire at the end of the initial term or renewal term, as applicable. AVEVA may, but is not required, to send notifications to the Account Administrator in connection with the following events:
· One month before Customer’s projected usage will have consumed all remaining Credits.
· One week before Customer’s projected usage will have consumed all remaining Credits.
· When all credits have been consumed.
Where the Customer’s use of the Product exceeds the number of Credits (an “Overdraft”) the Customer will be required to purchase additional Credits in the form of Top-Up Credits to remedy the account being overdrawn, within forty-five (45) days of any Overdraft. AVEVA reserves the right to limit or deny access to future consumption of Credits if Customer fails to correct an Overdraft in accordance with this Section.
4.3. Hosting. Subject to Section 14 of this Cloud Services Addendum and Section 2.6.2 of the Data Processing Addendum, unless a specific hosting region is specified in an applicable Transaction Document for a Product, AVEVA shall host and provide the Product from such center(s) and location(s) as AVEVA may determine (including as may be necessary for any redundancy or backup purposes).
4.4. Disclaimer of third-party products and Services. The Product may enable Customer to access, use, or purchase third-party products and/or services from third parties (including through external websites). Any access, use, or purchase of such third-party products or services (including, but not limited to, any content, data, information, pictures, or other materials available or provided through such third-party products or services) will be solely at Customer’s own risk and AVEVA disclaims all liability or obligation relating to the same. Any contract entered into, and any transactions completed, relating to or in connection with such third-party products or services is between Customer and the relevant third party, not AVEVA.
4.5. Modifications or Discontinuance of Content. At any time, AVEVA may modify or discontinue any of the following that is made available or accessible through a Product (other than Customer Content, unless such Customer Content violates the Agreement): software, machine images, data (including, but not limited to, engineering data, models, samples, libraries, and standards), information, text, audio, video, images, or other content or material contained in the Product, Documentation, application programming interfaces, sample code, software, libraries, command line tools, proofs of concept, templates, and other related technology. However, modifications will not compromise the material functionality of the Product.
4.6. Modifications or Discontinuance of Products. At any time, AVEVA may modify or update the features, specifications, or functionality of any Product and/or any Documentation, in whole or in part. However, modifications will not compromise the material functionality of the Product. AVEVA will use their best efforts to notify Customers of any such modifications through Release Notes. AVEVA reserves the right to “end of life” any Product in accordance with its then-current end of life policy, which is located at https://www.aveva.com/en/legal/policies-compliance/
4.7. Collection of Usage and Billing Metrics. AVEVA and its licensors may collect, and process Usage Metrics, Billing Metrics and other information relating to the provision or use of the Products (i) for AVEVA’s own internal purposes, (ii) in order to ensure Customer’s compliance with the Agreement and (iii) to prevent fraud.
5. SECURITY MEASURES AND DATA PRIVACY.
5.1. Security Measures. AVEVA will implement commercially reasonable measures to secure and protect the Products, including against accidental or unlawful loss, access, or disclosure in accordance with Section 2.5 of the Data Processing Addendum.
5.3. Customer Security Requirements. Customer acknowledges and agrees that Customer has reviewed the security features and responsibilities as described in the Agreement (including in the Data Processing Addendum and the applicable Documentation) and has determined that such features and responsibilities meet Customer’s needs. Customer is solely responsible for determining the appropriate procedures and controls regarding security of the Customer Content and for the implementation of any such procedures and controls.
6. SERVICE LEVEL COMMITMENT
6.1. Service Levels. During the TD Term, the Uptime for a respective Product type (the “Uptime Commitment”) will be as specified at https://www.aveva.com/en/legal/trust/servicelevel/
6.2. If AVEVA does not meet the Uptime Commitment then, subject to Customer’s compliance with Section 6.3, Customer will receive a credit toward the cost of such Product as set forth in Section 6.3 (the “Service Credit”). The Uptime Commitment does not include: (a) non-availability due to scheduled or emergency maintenance of the application services or AVEVA Connect; (b) instances where AVEVA has taken Type A, B, C, or D Product, as the case may be, offline due to the security interests of its business or its customers; and (c) the availability and/or uptime of any third-party software not managed or controlled by AVEVA that is provisioned by Customer to Edge Devices. AVEVA may change or discontinue Service Levels from time to time but will provide ninety (90) days’ prior notice to Customer before any material change to a Service Level. If the Customer objects to the change in case of a potential service degradation, reduced availability to operation critical systems or discontinuance of Service Levels, then AVEVA shall use its best efforts to address the objection through one of the following options (to be selected at AVEVA’s sole discretion):
(i) AVEVA will take the corrective steps or actions requested by the Customer or
(ii) AVEVA will abort its plans based on the Customer’s feedback.
(iii) If AVEVA is unable to address the objection through such means set forth in (i) or (ii) above, AVEVA may cease to provide, or the Customer may agree not to use (temporarily or permanently), the particular aspect of the Service or Product.
6.3. Service Credits.
6.3.1. The following Service Credits are Customer’s sole and exclusive remedy if AVEVA fails to meet the Uptime Commitment. Any Service Credit payable to Customer will be issued to Customer in the calendar month following the calendar month in which the service level failure occurred.
6.3.2. If the calendar month Uptime percentage is above the applicable Product Service Level minus two percent (2%) but less than the applicable Product Service Level, then subject to Customer’s compliance with Section 6.4, Customer will receive a one-time credit of ten percent (10%) of the monthly fees for the affected Product due for the calendar month in which the Uptime failure occurred.
6.3.3. If the calendar month Uptime percentage is above the applicable Product Service Level minus five percent (5%) but less than the applicable Product Service Level minus two percent (2%), then subject to Customer’s compliance with Section 6.4, Customer will receive a one-time credit of twenty percent (20%) of the monthly fees for the affected Product due for the calendar month in which the Uptime failure occurred.
6.3.4. If the calendar month Uptime percentage is less than applicable Product Service Level minus five (5%) then, subject to Customer’s compliance with Section 6.4, Customer will receive a one-time credit of fifty percent (50%) of the monthly fees for the affected Product due for the calendar month in which the Uptime failure occurred. The maximum available Service Credit for failure to meet the Uptime Commitment for any given calendar month is fifty percent (50%) of the monthly fees for the affected Product for the applicable calendar month on Customer’s next invoice.
6.4. Customer Obligations. In order to receive a Service Credit, Customer must notify AVEVA via email at [email protected] within thirty (30) days of the end of the calendar month in which AVEVA failed to meet the Uptime Commitment. The notification must describe such failure in sufficient detail, to be determined in AVEVA’s reasonable discretion, and include the dates and times of any Downtime in order for AVEVA to confirm such failure. If Customer does not send timely and proper notice as set forth in this Section 6.3, then Customer waives its right to receive the Service Credit for the calendar month in which AVEVA failed to meet the Uptime Commitment.
7. CUSTOMER OBLIGATIONS AND CONTENT.
7.1. Customer Content. Customer shall obtain all rights related to Customer Content required in connection with the performance, receipt or use of the Products and hereby grants all necessary rights and permissions to enable AVEVA, its Affiliates, its subcontractors, and its Sub-processors to host, use, copy, provide, store, distribute, transmit, process, modify, display, and perform the Customer Content using the Products or to fulfil AVEVA’s obligations under the Agreement, including, without limitation, making necessary disclosures and obtaining all licenses, permits, approvals, or consents required in connection with any Personal Data or regulated content in the Customer Content. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content. Without prejudice to the Data Processing Addendum, Customer is responsible for (a) any security vulnerabilities, and the consequences of such vulnerabilities, arising from Customer Content, including any viruses, Trojan horses, worms or other harmful programming routines contained in Customer Content, and (b) any use by Customer or Customer’s Users of the Products in a manner that is inconsistent with the Agreement. To the extent Customer discloses or transmits Customer Content to a third party (including by allowing a third party to access Customer Content as a User), AVEVA is no longer responsible for the security, integrity or confidentiality of such content outside of AVEVA’s control.
7.2. Provision of Information. In order to use or access the Product, Customer must provide details as specified by AVEVA during the registration process for at least one Account Administrator. The Account Administrator can then register for User Credentials for Users for their access to the Product. User Credentials are personal, and Customer may not sell, transfer, sublicense, or otherwise assign them to any other person or entity.
7.3. Specific Customer Responsibilities. Customer is solely responsible for Customer’s and Users’ use of the Products and shall: (a) make all Users aware of and ensure Users’ compliance with the terms of the Agreement and indemnify AVEVA for any such non-compliance by Users; (b) be liable for any fees for Users who the Account Administrator has registered to the Products; (c) not allow any User Credentials to be used by more than one individual User unless it has been reassigned in its entirety to another individual, in which case the prior User shall no longer have any right to use or access the Products; (d) ensure that the use and access of the Products and provision and submission of any Customer Content or Customer Submission does not violate any AVEVA policy, applicable law, or the Agreement, including the AUP; (e) provide any reasonably necessary information and cooperation for AVEVA to provide the Products; (f) be responsible and liable for all activities of Users and for any use of Customer’s User Credentials and shall ensure that the User Credentials are kept confidential and secure (AVEVA will not be responsible for any unauthorized access through Customer’s User Credentials); (g) ensure that Customer Content is compatible with the application program interfaces; (h) ensure that Customer’s network and systems comply with relevant specifications and requirements that may be provided by AVEVA from time to time; (i) be solely responsible for Customer Submissions, including the accuracy, legality, reliability, integrity, and quality of such Customer Submissions; (j) be solely responsible for procuring and maintaining any systems, network connections, and telecommunications links necessary to access any Products (including any application program interfaces); and (k) use commercially reasonable efforts to prevent any unauthorized use of or access to the Products (and upon becoming aware of such unauthorized use or access, promptly notify AVEVA of such use or access).
7.4. No Special or Specific Data. Unless otherwise specified in the applicable Transaction Document or Schedule for a particular Product, Customer Content may not include any sensitive or special categories of personal data that imposes specific data security, data protection obligations, or governmental regulations on AVEVA, including, but not limited to: (i) the Health Insurance Portability and Accountability Act of 1996 (HIPAA); (ii) Gramm-Leach-Bliley Act of 1999 (GLB); (iii) all applicable laws and non-governmental standards protecting payment data (including Payment Card Industry Data Security Standard (PCI-DSS) and Payment Application Data Security Standard (PA-DSS)); (iv) all laws concerning the protection, transport, storage, use and processing of sensitive or special categories of personal data (including under the EU General Data Protection Regulation); and (v) all applicable laws similar to those laws listed in subsections (i) through (iv) above.
7.5. Return of Customer Content During TD Term. Without prejudice to the Data Processing Addendum, Customer may request in writing during the TD Term that AVEVA return to Customer any Customer Content stored on the Product. Following receipt of such request, AVEVA will (at Customer’s expense) use commercially reasonable efforts to return (in AVEVA’s standard format or any other format selected by AVEVA) such Customer Content within sixty (60) days after receipt of such request.
7.6. Return of Customer Content Following Expiration or Termination. Without prejudice to the Data Processing Addendum, upon Customer’s request before the sixtieth (60th) day after the expiration or termination of the applicable Transaction Document, AVEVA will return (in AVEVA’s standard format or any other format selected by AVEVA) or remove Customer Content from the Products, except where required to retain such Customer Content in accordance with applicable law. AVEVA may charge for certain activities performed at Customer’s request (such as delivering Customer Content in a specific format). Following the sixtieth (60th) day after the expiration or termination of the applicable Transaction Document, AVEVA shall have no obligation to continue to hold, export, store, or return Customer Content (and AVEVA will have no liability for deletion of any Customer Content in accordance with the Agreement).
7.7. Customer Content. Without limiting the generality of the definition of ‘Customer Content’ in the GTCs, the Parties acknowledge and agree that “Customer Content” shall not be deemed to include the Products, the software agents, applications and tools that AVEVA makes available to Customer for download, the AVEVA products and services, the AVEVA Intellectual Property Rights, and any and all derivative works of the foregoing. However, “Customer Content” shall be deemed to include any Third-Party Content that is brought by Customer into the Products by Customer’s (or any User’s) use of the Products.
7.8. Legal and Regulatory Requirements. Customer acknowledges and agrees that Customer is solely responsible for Customer’s compliance with any laws, rules, and regulations. Customer is solely responsible for ensuring that the Product meets any requirements (whether technical, functional, legal, or otherwise) that are necessary for Customer to fulfill its compliance obligations. If the Product does not meet Customer’s requirements, then Customer should not use the Product.
7.9. Data Retention System. Customer acknowledges and agrees that the Product is not intended to act as a document or data retention system for Customer. The Product has limited capacity to store Customer’s data (including the Customer Content) and Customer must store and backup such data (including the Customer Content) in a separate system. Customer is also responsible for any individual’s personal information or any information Customer considers confidential that is included in the Customer Content.
8. SUSPENSION OF PRODUCTS.
8.1. Suspension Rights. AVEVA may immediately suspend Customer’s or any User’s right to access or use all or any part of a Product upon notice to Customer if, in AVEVA’s reasonable opinion, the use of or access to such Product (i) poses a security risk to AVEVA or others or impacts the functionality of the Product, (ii) adversely impacts AVEVA’s or its licensor’s systems or the Product, (iii) is in breach of applicable laws, (v) adversely impacts the access to or use by AVEVA’s other customers of such Product, or (v) is in breach or violation of the Agreement. If AVEVA suspends Customer’s or User’s right to access or use all or any part of a Product, then AVEVA will use reasonable efforts to provide advance notice to Customer to the extent practicable.
8.2. Restoration of Product. If AVEVA suspends any right to access or use the Product in accordance with Section 8.1, then AVEVA will use commercially reasonable efforts to restore such access or use as soon as practicable after Customer has resolved the problem or incident giving rise to such suspension.
8.3. Material Breach of Agreement. Any incident or problem that would permit AVEVA to suspend any use or access rights pursuant to Section 8.1 shall be deemed to be a material breach of the Agreement.
9. TEST ACCOUNTS AND CONSIGNMENT ACCOUNTS.
9.1. Test Accounts: Test accounts and all applications subscribed within, are provided solely for enabling feedback and validation of solutions. Test accounts cannot be used in production and no user can be invited into the Test account except to provide feedback or validation testing.
9.2. Consignment Accounts: Consignment accounts and all applications subscribed within, are provided for the sole purpose of supporting the development and sale of AVEVA Cloud solutions. Consignment accounts cannot be used in production and no user can be invited into the consignment account except to provide feedback or review demonstration, training, or other activity in the support of promoting AVEVA Cloud solutions.
Customer acknowledges and agrees that in no circumstance will AVEVA be liable for (i) investments, expenditures, or commitments related to the access or use of a Product, (ii) AVEVA’s reliance on any information provided by an individual, entity, or other organization using Customer’s account and password (or any User account and password), or (iii) temporary unavailability of all or parts of a Product which shall be subject to agreed Service Levels.
11. HIGH RISK USE AND INDUSTRY AND CATEGORICAL RESTRICTIONS.
11.1. High Risk Use. THE FOLLOWING CLAUSE APPLIES ONLY TO PRODUCTS UTILIZING MICROSOFT’S SQL SERVER. The Software is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. Unless AVEVA gives its prior written consent and is consulted regarding the specific deployment, system set-up and Software support plan, Customer has no right to use (and must not use) the Software in any application or situation where the failure of the Software 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 Software 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.
11.2. Industry and Categorical Restrictions. THE FOLLOWING CLAUSE APPLIES ONLY TO AVEVA’S BOCAD AND FABTROL PRODUCTS. Customer shall not use the Software in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or medical life support devices unless Customer has provided full details of such proposed use to AVEVA and has received prior written approval for such use from AVEVA. In addition to Customer’s indemnification obligations set forth in Section 9.3 (Indemnification by Customer) of the GTCs, if Customer does not provide such details and receive such prior written approval, then Customer will indemnify, defend, and hold harmless AVEVA and its Affiliates for any claims or liability that results from or is related to Customer’s use of the Software in such areas.
12. AUDITS AND VERIFICATION.
12.1. Record Keeping. As part of the Products AVEVA maintains records of Users and from where they logged on. These records are maintained as Confidential Information.
12.2. Audit Right. AVEVA has the right to review and analyze such records to perform the necessary audits to verify Customer’s compliance with the terms of this Agreement. Any reasonable and actual costs incurred by AVEVA for such audit shall be paid by Customer if the audit results indicate usage in excess of the permitted quantities or levels, underpayment of any fees, or breach of the Agreement.
12.3. Compliance Certificate. Within thirty (30) days of receipt of AVEVA’s written request, Customer shall provide AVEVA with a signed certification of compliance with the Product usage conditions; provided, however, that AVEVA shall not request more than one compliance certificate annually.
13. SUPPORT SERVICES AND MAINTENANCE.
AVEVA will maintain and support the Product in accordance with AVEVA’s then-current maintenance and support policies.
13.1. Maintenance Schedules: AVEVA shall use commercially reasonable efforts to provide Customers with notice of any Scheduled Downtime and Emergency Downtown as set forth below:
AVEVA will endeavor to provide prior notice of any service impacting Emergency Downtime as is reasonably practicable.
14. SUBCONTRACTORS AND DATA CENTERS.
Subject to Section 2.7 of the Data Processing Addendum, AVEVA reserves the right to contract with third-party subcontractors or Affiliates to provide all or part of the Product on behalf of AVEVA and AVEVA may change or replace such subcontractors or Affiliates at any time in its sole discretion. Customer understands and agrees that AVEVA, its Affiliates, and its subcontractors may perform certain aspects of the Product, 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 acknowledges and agrees that use of the Product may result in the Customer’s data (including, but not limited to, any Customer Content) being collected, transferred, processed, and/or used in any area of the world, subject to Section 2.6 of the Data Processing Addendum.
15. DISCLAIMER OF WARRANTIES.
2.1. DISCLAIMER OF ALL OTHER WARRANTIES. FOR THE AVOIDANCE OF DOUBT, THE DISCLAIMER OF WARRANTIES SET FORTH IN SECTION 7 (DISCLAIMER OF WARRANTIES) OF THE GTCS IS INCORPORATED INTO THIS CLOUD SERVICES ADDENDUM BY REFERENCE.
16. ADDITIONAL INDEMNIFICATION.
In addition to Customer’s indemnification obligations set forth in Section 9.3 (Indemnification by Customer) of the GTCs, Customer shall defend, indemnify, and hold harmless AVEVA and its Affiliates against claims brought against AVEVA by any third party arising from or related to Customer’s use of or access to Third-Party Products; AVEVA’s use of or access to Customer’s software, machines, equipment, systems, information technology environment, or premises in connection with the provision of any support services; and Customer’s use of the Product in connection with any High Risk Use.
Notwithstanding the notice provisions contained in Section 15.5 (Notices) of the GTCs, any notices or other communications required or permitted to be provided pursuant to this Agreement may be provided by AVEVA to Customer (i) on the AVEVA portal for the Product or (ii) by electronic mail to Customer’s email address on record in AVEVA’s account information records.
AVEVA DATA PROCESSING ADDENDUM
1.1. References to Personal Data, Data Subject, Data Controller, Data Processor, Processing, or Personal Data Breach shall be as defined in equivalent or substantially the same definitions under the Applicable DP Legislation.
1.2. “Applicable DP Legislation” means any applicable laws and regulation in any relevant jurisdiction relating to the data protection, data privacy, use or processing of any Personal Data under this Agreement that apply to a Party, including where applicable: (i) EU Regulation 2018/1725 ("GDPR"); (ii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing such applicable laws and regulation, in each case, as updated, amended or replaced from time to time and (iii) the GDPR as incorporated into law in the United Kingdom pursuant to Section 3 of the European Union (Withdrawal) Act 2018, the Data Protection Act 2018, the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419), or any other statute or statutory provision which modifies, consolidates, re-enacts or supersedes the GDPR following the cessation of application of European Union law to the United Kingdom as a result of the withdrawal of the United Kingdom from the European Union.
1.3. “Customer Personal Data” shall mean the Personal Data that is uploaded into the Products as Customer Content, or which is otherwise Processed by AVEVA as a Data Processor on behalf of Customer or one of its Affiliates as a Data Controller.
1.4. “EU Standard Contractual Clauses” shall mean the standard contractual clauses for the transfer of Personal Data from the European Union to processors established in third countries (controller-to-processor transfers), adopted by the European Commission Decision, or by any reasonable authority in the United Kingdom (in respect of data in the United Kingdom) such other clauses approved under the Applicable DP Legislation from time to time.
1.5. “Sub-processor” means any third party engaged by AVEVA (including any AVEVA Affiliate) to process Customer Personal Data on behalf of Customer.
2. DATA PROTECTION.
This AVEVA Data Processing Addendum (“Data Processing Addendum”) shall only apply to the extent the Applicable DP Legislation applies to Products and services rendered pursuant to the Agreement. To the extent the Applicable DP Legislation applies, then this Addendum shall form a part of and become incorporated therein with the terms and conditions of the Agreement.
2.1. Both Parties will comply with their respective obligations under the Applicable DP Legislation as relevant to this Agreement (and where an Affiliate of a Party is the Data Controller or Data Processor, such Party shall procure that its Affiliate complies with the Applicable DP Legislation). This Data Processing Addendum is in addition to, and does not relieve, remove or replace, a Party's obligations under the Applicable DP Legislation.
2.2. The Parties acknowledge that for the purposes of the Applicable DP Legislation, the Customer is the Data Controller and AVEVA is the Data Processor in respect of the Customer Personal Data. Customer shall not require AVEVA to undertake or engage in any processing activity regarding any Personal Data provided by Customer that requires, or would result in the capacity of a Data Controller in respect of the Personal Data. The following sets out the details of the Customer Personal Data and Processing to be undertaken by AVEVA on behalf of Customer.
Processing by AVEVA
Processing by AVEVA
Processing of the Customer Personal Data pursuant to provision of the Products, Services and Support Services.
Processing by AVEVA
Nature of processing
Transfer, storage, hosting and such other processing activities that are required to provide and support the Products, and as otherwise set out in this Agreement or specified by the Customer.
Processing by AVEVA
Purpose of processing
The provision of Products, Services and Support Services to the Customer.
Processing by AVEVA
Duration of the processing
The duration of the TD Term, or as required to make the relevant Customer Personal Data available to Customer, or such other period as required by applicable law including Applicable DP Legislation, whichever is longer.
Processing by AVEVA
As necessary for performance of obligations under the Agreement or as required by applicable law including Applicable DP Legislation, whichever is longer.
Processing by AVEVA
Types of Personal Data
The Customer Personal Data (as defined above) which may include but not be limited to name, email address, phone number and job title.
Processing by AVEVA
Categories of Data Subject
The Customer’s customers, employees, suppliers and related third parties.
2.3. Without prejudice to the generality of Section 2.1 the Customer will ensure that it (or its Affiliate) has a legal basis for Processing, including all necessary and appropriate consents and notices, to enable the lawful transfer of the Personal Data to AVEVA for the duration and purposes of this Agreement.
2.4. AVEVA shall process the Customer Personal Data only on the written instructions of the Customer (as detailed in Section 2.2 above and this Agreement) unless AVEVA is otherwise required by applicable laws including Applicable DP Legislation (in which case such Processing shall be carried out upon notice to Customer, where permitted by applicable law). Confirming acceptance to these terms shall constitute the Customer’s written instructions for AVEVA to undertake the Processing detailed in this Agreement and Section 2.2. AVEVA shall not publish, disclose or divulge any Customer Personal Data to any third party (save for Sub-processors appointed pursuant to section 2.7 herein) without the Customer’s prior written consent (such approval not to be unreasonably withheld or delayed), unless communication is required by Applicable DP Legislation or by any court or other authority of competent jurisdiction, provided that and to the extent lawfully permitted before making such communication AVEVA provides notice to the Customer and such communication must not reference the Customer (unless legally required to do so).
2.5. AVEVA shall ensure that it has in place appropriate technical and organizational measures, to protect against unauthorized or unlawful Processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate and proportionate to the harm that might result from the same, having regard to the state of technological development and the cost of implementing any measures which shall include the measures set out in Appendix A of this Data Processing Addendum.
2.6. AVEVA shall, in relation to any Customer Personal Data Processed in connection with the performance by AVEVA of its obligations under this Agreement:
2.6.1. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
2.6.2. where required under the Applicable DP Legislation, only transfer any Personal Data outside of the country or economic area (as applicable) of residence of the data subjects provided:
22.214.171.124. (i) the Customer has given its prior written consent where required by the Applicable DP Legislation. By signing and entering into the Agreement with AVEVA which incorporates this Data Processing Addendum, the Customer will provide consent to transfer Personal Data outside of the country or economic area of residence of the data subject provided;
126.96.36.199. (ii) the transfer is to a country in which AVEVA’s Affiliates or a third-party sub-processor (appointed pursuant to section 2.7 herein) operate in; or (iii) where necessary for any redundancy or backup purposes on the basis that AVEVA notifies the Customer of any such additional geographical location not identified in the Transaction Document;
188.8.131.52. Customer may object in writing to a proposed transfer of Customer Personal Data pursuant to clauses 184.108.40.206(ii) or (iii), and shall describe its reasons for the objection, and may request corrective steps to be taken;
220.127.116.11. if the Customer objects to the transfer of Customer Personal Data, AVEVA shall use it best efforts to address the objection through one of the following options (to be selected at AVEVA’s sole discretion): (i) AVEVA will abort its plans to transfer the Customer Personal Data; or (ii) AVEVA will take the corrective steps requested by the Customer in its objection (which removes the Customer’s objection) and proceed to transfer the Customer Personal Data. If AVEVA is unable to address the objection through such means, AVEVA may cease to provide, or the Customer may agree not to use (temporarily or permanently), the particular aspect of the Service or Product that would involve the transfer of the Customer Personal Data. Termination rights, as applicable and agreed in this Agreement, shall apply accordingly; and
18.104.22.168. Customer acknowledges that AVEVA and its Sub processors may maintain data processing operations in countries that are outside of the country or economic area of residence of the data subject. To the extent that AVEVA processes on behalf of Customer any Customer Personal Data subject to the GDPR in a country that has not received a finding of adequacy by the European Commission, AVEVA agrees to process such data as a “data importer” in compliance with the Standard Contractual Clauses (with Customer and/or its Affiliates as the “data exporter”),
2.6.3. taking into account the nature of the Processing and the information available to AVEVA, assist the Customer, at the Customer's cost, in responding to any request from a Data Subject under Applicable DP Legislation and in ensuring compliance with its obligations under the Applicable DP Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators, as applicable;
2.6.4. notify the Customer without undue delay on becoming aware of a Personal Data Breach;
2.6.5. On termination of the Agreement, delete or return Customer Personal Data and copies thereof to the Customer unless required by applicable law including Applicable DP Legislation to continue to store the Customer Personal Data (in which case AVEVA shall retain the same as required by applicable law and its confidentiality obligation under this Agreement) for the Retention Period; and
2.6.6. makes available to the Customer all information necessary to demonstrate AVEVA’s compliance with its obligations under this Section 2.6 and subject to AVEVA’s reasonable security procedures, business and operational requirements and AVEVA’s confidentiality obligations, allow for audits, including inspections, conducted by the Customer its supervisory authority or regulator, at Customer’s own cost and expense, upon Customer giving AVEVA prior written notice of no less than thirty (30) days of its intent to conducts such audit or inspection. For the avoidance of doubt, such audit and inspection shall only be for the purposes of determining AVEVA’s compliance with its obligations under this Data Processing Addendum.
2.7. The Customer hereby consents to AVEVA appointing third-party sub-processors of Customer Personal Data under this Agreement (“Sub-processors”), provided that:
2.7.1. (i) The Customer has provided its prior written consent for appointment of such Sub-processor; or (ii) Sub-processor is an Affiliate of AVEVA or identified AVEVA’s list of Sub-processors as specified at https://www.aveva.com/en/legal/trust/data-processing/
and as updated by AVEVA from time to time and notified to the Customer;
2.7.2. The Customer may object in writing to use of a Sub-processor, and shall describe its reasons for the objection, and may request corrective steps to be taken;
2.7.3. If the Customer objects to the use of a Sub-processor, AVEVA shall use it best efforts to address the objection through one of the following options (to be selected at AVEVA’s sole discretion): (i) AVEVA will abort its plans to use the Sub-processor for the processing of Customer Personal Data; or (ii) AVEVA will take the corrective steps requested by the Customer in its objection (which removes the Customer’s objection) and proceed to use the Sub-processor for the processing of Customer Personal Data. If AVEVA is unable to address the objection through such means, AVEVA may cease to provide, or the Customer may agree not to use (temporarily or permanently), the particular aspect of the Service or Product that would involve the use the Sub-processor for the processing of Customer Personal Data. Termination rights, as applicable and agreed in this Agreement, shall apply accordingly; and
2.7.4. AVEVA has entered into, or (as the case may be) will enter into with the third-party sub-processor a written agreement incorporating terms which are substantially similar to those set out in this Data Processing Addendum. AVEVA acknowledges and agrees that it remains liable to the Customer for any breach of the terms of this Data Processing Addendum by any Sub-processor.
Appendix A (Information Security of Customer Personal Data)
AVEVA shall exercise reasonable efforts to implement the following measures in connection with information security of Customer Personal Data:
a) backing-up the Customer Personal Data at regular intervals;
b) ensuring that AVEVA is able, at all times, to restore lost or damaged Customer Personal Data from the latest back-up;
c) not using the Customer Personal Data except as required for the performance of its obligations under the Agreement;
d) upon Customer’s written request, grant Customer access to annual SAE18 SOC 2/ISAE3402 SOC (Type II) reports in respect of specific Software supplied under the Agreement (where stated to be available for that Software in the applicable Transaction Document or Software Schedule) addressing data security requirements stated in this Data Processing Addendum;
e) complying with information management procedures and safeguards based on Good Industry Practice, including those concerning the security of the Customer Personal Data For the purpose of this Data Processing Addendum, “Good Industry Practice” means that degree of skill, care and prudence which would ordinarily be expected of a skilled and experienced supplier of software products and services of the same or a similar nature to the Products, Services and Support Services;
f) maintaining and enforcing safeguards against the destruction, loss, or alteration of Customer Personal Data that are no less rigorous than those maintained by AVEVA for its own information of a similar nature or that otherwise comply with Good Industry Practice;
g) in the event of any destruction, loss, or reduction in the accessibility or usability of Customer Personal Data, which is caused by AVEVA, at AVEVA’s own cost, restoring such data using Good Industry Practice data restoration techniques;
h) taking all necessary precautions, in accordance with Good Industry Practice, to prevent any Malicious Code (as defined in the Software and Support Addendum) affecting the Products or Services and the Customer Personal Data, including but not limited to using the latest versions of anti-virus software (including latest definitions and updates) available from an industry accepted anti-virus software vendor to check for and delete Malicious Code;
i) notifying the Customer as soon as practicable upon becoming aware of any Security Incident and providing the Customer with a detailed description of the Security Incident, the type of Customer Personal Data that is the subject of the Security Incident, the identity of any affected individuals and all other information and cooperation which the Customer may reasonably request. For the purpose of this Data Processing Addendum, “Security Incident” shall mean any incident resulting in loss, destruction or material alteration of Customer Personal Data, or unauthorized third-party access to Customer Personal Data;
j) taking immediate action, at AVEVA’s own cost, to investigate any Security Incident, to identify, prevent and mitigate the effects of such Security Incident and, with the Customer’s prior agreement, to carry out any recovery or other action necessary to remedy the Security Incident. AVEVA must ensure that any such recovery or other action does not compromise any technical information or artefacts (including, for example, logs) which would reasonably be required by the Customer to understand the Security Incident, mitigate its effects and/or prevent its recurrence;
k) not issuing, publishing or otherwise making available to any third party any press release or other communication concerning a Security Incident without the Customer's prior approval (such approval not to be unreasonably withheld or delayed), unless communication is required by Applicable DP Legislation or by any court or other authority of competent jurisdiction provided that before making such communication AVEVA to the extent lawful provides notice to the Customer that it will be making such communication and such communication must not reference the Customer (unless legally required to do so);
l) use of data centres where Customer Personal Data is stored, accessed or otherwise processed, in accordance with Good Industry Practice;
m) keeping any Customer Personal Data in electronic form logically separated from any information, data or material of any third party;
n) ensuring that access to the Products, Services and Customer Personal Data by AVEVA’s personnel is restricted on a strict need to know basis and that all AVEVA’s personnel who are granted such access have completed appropriate security training; and
o) performing continuous service improvement and continuous monitoring of the Services including but not limited to conducting annual ethical hacking and penetration testing of the security of AVEVA’s systems used in connection with the provision of the Products and Services and promptly rectifying any security vulnerabilities identified by such testing.