Terms of Use for Cloud-Based Digital Offer

 

ECOSTRUXURE RESOURCE ADVISOR

 

 

v.2025.04.11 (based on the following template: Feb. 10^th 2023 – BtoB (business to business) – US Law (SZ) )

PLEASE READ CAREFULLY THESE TERMS OF USE INCLUDING SUCH OTHER LEGAL DOCUMENTS INCORPORATED HEREIN BY REFERENCE (“TERMS OF USE") BEFORE USING OUR CLOUD-BASED DIGITAL OFFER: ECOSTRUXURE RESOURCE ADVISOR (“DIGITAL OFFER”), AS THESE ARE TERMS OF A LEGAL AGREEMENT BETWEEN YOU AND SCHNEIDER ELECTRIC WHICH DEFINES AND GOVERNS THE CONDITIONS AND RIGHTS TO ACCESS AND USE THE DIGITAL OFFER AND THE DATA COLLECTED AND PROCESSED THROUGH THE USE THEREOF.

THE INTENDED PURPOSE FOR WHICH THE DIGITAL OFFER IS MADE IS THAT IT IS USED ONLY BY PROFESSIONALS IN THEIR ORDINARY COURSE OF BUSINESS. YOU HAVE NO RIGHT NOR LICENSE TO USE THE DIGITAL OFFER IF YOU ARE NOT A PROFESSIONAL USING THE DIGITAL OFFER IN THE ORDINARY COURSE OF YOUR BUSINESS.

IF YOU ARE AN INDIVIDUAL PERSON ACCESSING OR USING THE DIGITAL OFFER ON BEHALF OF A CORPORATION, COMPANY OR ANY OTHER LEGAL ENTITY, YOU ARE AGREEING TO THESE TERMS OF USE ON BEHALF OF THAT CORPORATION, COMPANY OR OTHER LEGAL ENTITY AND DECLARE TO SCHNEIDER ELECTRIC THAT YOU HAVE THE AUTHORITY TO DO SO AND THEREBY BIND THAT CORPORATION, COMPANY OR OTHER LEGAL ENTITY TO THESE TERMS OF USE IN WHICH EVENT, "CUSTOMER", "YOU" AND "YOUR" WILL BE DEEMED TO REFER TO THAT CORPORATION, COMPANY OR OTHER LEGAL ENTITY.

IF YOU DO NOT ACCEPT THESE TERMS OF USE, YOU WILL NOT BE ABLE TO CREATE A USER ACCOUNT IN THE DIGITAL OFFER AND YOU WILL THEREFORE NOT BE ABLE TO MAKE USE OF THEDIGITAL OFFER.

 IF YOU AGREE WITH THESE TERMS OF USE, PLEASE CONFIRM YOUR AGREEMENT BY CHECKING THE CORRESPONDING TICK BOX ON THE REGISTRATION PAGE THAT IS MADE AVAILABLE TO YOU FOR THE PURPOSE OF CREATING A USER ACCOUNT IN THE DIGITAL OFFER.

THESE TERMS OF USE WILL ALSO APPLY TO YOU AND SHALL REMAIN ENFORCEABLE BETWEEN SCHNEIDER ELECTRIC AND YOU EVEN IF YOU HAVE ORDERED OR OTHERWISE SUBSCRIBED TO THE DIGITAL OFFER THROUGH AN AUTHORIZED SCHNEIDER ELECTRIC DISTRIBUTOR OR RESELLER OR A CERTIFIED SCHNEIDER ELECTRIC PARTNER.

1.            Definitions

For the purposes of these Terms of Use, the capitalized terms below shall have the meaning defined herein below:

"Affiliates": means with respect to either Schneider Electric or the Customer, any corporation, company or other legal entity that is directly or indirectly (i) controlling Schneider Electric or the Customer, or (ii) controlled by Schneider Electric or the Customer, or (iii) under common control with Schneider Electric or the Customer, and the term "control" shall, for the purpose of this definition, mean the direct or indirect control of at least 50% of the stock capital and/or of the voting rights.

"Application": means the software program hosted on or interfaced with the Cloud Platform, that is designed to provide the functions defined in the Documentation and to enable the use of the Services defined in the Services Description.  The Application includes any updated or upgraded version(s) to such software program if any is provided to Customer, when applicable, under and subject to the conditions defined in the Order Confirmation.

"Authorized User": means any employee or contractor acting under the authority or control and on behalf of the Customer when accessing the Cloud Platform and making use of the Digital Offer in accordance with these Terms of Use.

"Cloud Platform": means the cloud-based platform hosting or interfaced with the Application through which Customer Data and, as applicable, Customer’s Partners Data are created or otherwise processed as part of the Services in accordance with these Terms of Use.

"Customer" or "You": means each corporation, company or other legal entity carrying out a professional activity on behalf of which any Authorized User creates or is provided with a user account on the Cloud Platform or, as applicable, into the Application, to access and use the Digital Offer and, as applicable, the Services.

"Customer's Partners": means any third party with whom Customer has a business relationship and whose data is processed through Customer’s use or such party’s use of the Digital Offer and, as applicable, the Services.

"Customer Data": means all information, content and data proprietary or related to Customer, such as but not limited to text, sound, video or image files, and computer programs, that Customer or the Application  or, as applicable Schneider Electric for the performance of the Services, creates and/or, as applicable, uploads, downloads, collects, stores, uses, shares, modifies or otherwise processes through the Cloud Platform as a result of Customer's use of  the Application. Customer Data: (i) includes Prompts, as defined below, and (ii) may include Personal Data.

"Customer's Partners Data": means all information, content, and data, proprietary or related to Customer’s Partners, such as but not limited to text, sound, video or image files, and computer programs, that Customer or the Application or, as applicable Schneider Electric acting on behalf of Customer, creates and/or, as applicable, uploads, downloads, collects, stores, uses, shares, modifies or otherwise processes  through the Cloud Platform as a result of Customer's use of the Digital Offer in connection with Customer's provision of its own services to Customer’s Partners. Customer’s Partners Data may include Personal Data.

“Data Protection Laws”: means all applicable laws relating to the protection of Personal Data, privacy and electronic communications as amended from time to time after these Terms of Use have been entered into. Depending upon (i) the scope of the activities performed in connection with Customer Data or Customer’s Partners Data and/or (ii) the country or state where such activities are performed, these laws may include the European General Data Protection Regulation 2016/679 (“GDPR”), the California Data Protection Laws, the UK Data Protection Laws, the Data Protection Law(s) of the People’s Republic of China, the Data Protection Law(s) of Mexico, the Data Protection Law(s) of Switzerland, and the Data Protection Law(s) of any other relevant country.

“Data Controller” and “Data Processor”: have the meaning given by GDPR unless other Data Protection Laws apply, in which case, each of these terms will be interpreted in light of the closest equivalent term in the applicable Data Protection Laws.

“Digital Offer” means the cloud-based software solution consisting in the provision by Schneider Electric to the Customer of the right to use the Application hosted on or interfaced with the Cloud Platform and to receive the Services as the case may apply through Customer’s access to the Cloud Platform, subject to and in accordance with these Terms of Use.

“Documentation”: means the manual and any other materials, in any format whatsoever, describing the functions of the Digital Offer and, as applicable, the procedures or instructions relating to its use, which are made available to the Customer on Schneider Electric webpages presenting the Digital Offer or otherwise in the manner set out in the Order Confirmation.

"Intellectual Property Rights": means any and all rights of any kind and any type arising under statute, regulation, ordinance, common law, treaty, convention or otherwise, and including, without limitation any patents, utility models, moral rights, copyright and neighboring rights, trademarks and trade dress rights, mask work rights, service marks, right in domain names, designs rights, rights in computer software, database rights, rights in confidential information (including right in know-how and trade secrets) and any other intellectual property rights, in each case whether registered or not, including but not limited to applications and renewals, and all rights and forms of protection having equivalent or similar effect, recognized under the laws of any country.

“Order”: means any purchase order placed by Customer to Schneider Electric or any Schneider Electric Affiliate, in writing or electronically, for the purchase by Customer of a subscription to the Digital Offer or, as applicable, the purchase of the Services, either in pursuance of (i) a Schneider Electric Affiliate’s commercial proposal accepted by Customer, (ii) a Services Contract, or (iii) through the website(s) or online portals in case the Digital Offer and/or the Services can be subscribed to online, as the case may be as part of a broader scope of supplies and/or services.

“Order(s) Confirmation(s)”: means the confirmation for acceptance of Customer’s Order, issued by Schneider Electric or Schneider Electric Affiliate to Customer in writing or electronically. 

“Personal Data”: has the meaning given to this term under the GDPR unless other Data Protection Laws apply, in which case, this term will be interpreted in light of the closest equivalent term in the applicable Data Protection Laws.

"Schneider Electric": means Summit Energy Services, Inc., having a place of business at 10350 Ormsby Park Place, Suite 400, Louisville, KY 40223, which is a wholly owned subsidiary of Schneider Electric Industries SAS and hosts and maintains this Application and provides Customer access to this Application according to the Master Agreement.

“Schneider Electric Affiliate”: means any Affiliate of Schneider Electric, in any country whatsoever, which accepts Customer’s Order and therefore issues Order Confirmation.

"Services”: means the provision to Customer of the Digital Offer and any services provided by Schneider Electric or its Affiliates through Customer’s use of the Digital Offer.

"Services Contract": means the commercial agreement signed between Customer and Schneider Electric or any Schneider Electric Affiliate, under which the Services are provided to Customer as the case may be as part of a broader scope of services.

“Services Description": means the functional description of the applicable Services, as set forth in either or several of the following documents or instances: the Services Contract and/or the Order Confirmation, the web pages presenting the Digital Offer and/or, as applicable, the website(s) or online portals through which the Digital Offer and/or the Services can be subscribed to online, as such web pages, websites or portals may be updated from time to time by Schneider Electric or its relevant Affiliate. In case of any conflict between the description of the Services stated on such web pages, websites or portals on the one hand and in the Services Contract and/or the Order Confirmation on the other hand, the description stated in the Services Contract and/or the Order Confirmation shall prevail with respect only to the project under which Customer places the corresponding Order.

"Services Period": means the timeframe during which Customer may access and use the Services as set forth in either or several of the following documents or instances: the Services Contract and/or the Order Confirmation, the web pages presenting the Digital Offer and/or, as applicable, the website(s) or online portals through which  the Digital Offer and/or the Services can be subscribed to online, as such web pages, websites or portals may be updated from time to time by Schneider Electric or its relevant Affiliate. In case of any conflict between the Services Period stated on such web page, websites or portals on the one hand and in the Services Contract and/or the Order Confirmation on the other hand, the Services Period defined in the Services Contract and/or the Order Confirmation shall prevail with respect only to the project under which Customer places the corresponding Order.

“Standard Contractual Clauses”: means (i) the standard data protection clauses for the transfer of Personal Data outside the European Economic Area (“EEA”) approved by the European Commission in decision 2021/914/EU dated 4 June 2021 (Module One Controller to Controller, Module Two Controller to Processor and Module Three Processor to Processor as applicable) and (ii) the International Data Transfer Addendum to the EU Standard Contractual Clauses issued by the UK Information Commissioner version B1.0 and entered into force on 21 March 2022. Under the Standard Contractual Clauses, the Customer and its Affiliates are the Data Exporter; Schneider Electric and its Affiliates are the Data Importer. The data transfers are continuous. The details of the data transfers and other information pertaining to the annexes of the Standard Contractual Clauses are specified in Sections 7.3 and 7. 4 of these Terms of Use. Under Clause 9(a) of the Standard Contractual Clauses, Option 2 “General written authorization” is selected. Under Clause 7 of the Standard Contractual Clauses, the option is selected. Under Clause 11 of the Standard Contractual Clauses, the option is not selected. Under Clause 17 of the Standard Contractual Clauses, Option 1 and the laws of France are selected, unless Customer and Schneider Electric agree otherwise. Under Clause 18 of the Standard Contractual Clauses, the courts of France are selected, unless Customer and Schneider Electric agree otherwise. In case of transfer outside of Switzerland, if the Swiss Federal data protection law applies, any reference to the supervisory authority including in Clause 13 and Annex I.C of the Standard Contractual Clauses must be understood as a reference to the Swiss Federal data protection supervisory authority;  the applicable law under Clause 17 of the Standard Contractual Clauses must be understood as Swiss law; any reference to “Member State” must be understood as “Switzerland”; any reference to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation) must be understood as the Swiss Federal Data protection law.

2.             User Account

2.1 You need to create or request Schneider Electric to create on your behalf a user account on the Cloud Platform or, as applicable, in the Application (“User Account”) in order for you to access and use the Services.  To create Your User Account, You shall complete the online registration form made available by Schneider Electric  with the information required thereon and thereby provide Schneider Electric with profile information which include but may not be limited to Your company name, the name and email address of the individual person(s) You authorize to use the Digital Offer and the Services , it being understood that, depending upon the jurisdiction, such information may be considered as Personal Data and shall in such case be treated as such by each of You and Schneider Electric in compliance with these Terms of Use and any applicable Data Protection Laws.

2.2 When You or Schneider Electric create Your User Account, You agree (a) to use a unique password or change the one created for You by Schneider Electric  to a unique password that You do not use with any other online product or service; (b) to provide accurate, truthful, current and complete information; (c) to promptly update the information You provided to create Your User Account; (d) maintain the confidentiality and security of Your User Account by protecting Your identification information and password and restricting access to Your User Account; (e) promptly notify Schneider Electric if You discover or otherwise suspect any security breach related to Your User Account or any misuse thereof; and (f) take responsibility for all activities that occur under Your User Account and accept all risks of any authorized or unauthorized access thereto.

2.3 You may authorize Your Authorized Users to use Your User Account, access and make use of the Digital Offer and the Services on your behalf and only for the purposes described in these Terms of Use. You shall be responsible to ensure these Terms of Use are made available in a legible manner to each of Your Authorized Users before any of them can log to the Digital Offer and make use of the Services. You shall be fully responsible for the acts and omissions of Your Authorized Users, including for all activities that are made through the use of Your User Account, and Your Authorized Users’ compliance with these Terms of Use. You shall bear responsibility for all activities that are made through the use of Your User Account and for any resulting harm caused to You, Your Authorized Users, any third-party, the Digital Offer, the Services  and/or Schneider Electric or Schneider Electric Affiliates. Schneider Electric will have the right to rely upon any information received from any legal or individual person accessing and/or using Your User Account and Schneider Electric will incur no liability arising out of such reliance.

2.4 Unless earlier termination by Schneider Electric or by You of Your access to the Digital Offer and thereby the earlier termination of Your right to use the Services in accordance with these Terms of Use, Your User Account shall remain active, and the Services shall be provided to You as long as the last applicable Services Period has not expired and You pay the sums payable to Schneider Electric or Schneider Electric Affiliate for the Services in accordance with  the Order Confirmation. The foregoing shall apply unless You exercise the option to disable or cancel Your User Account or You elect not to renew the Services Period at any time before expiry of the then-current Services Period or You electronically terminate Your subscription to the Digital Offer or, as applicable, the Services if and when any such possibility shall be made available to You by Schneider Electric or its relevant Affiliate(s). Your User Account shall be automatically and immediately disabled upon expiration of the last applicable Services Period, with the effect that You shall automatically and immediately have the obligation to cease any access to and use of the Digital Offer and the applicable Services.  

The renewal or cancellation conditions of the Services Period shall be defined where the Services Period is defined.

2.5 While not obligated to perform investigations, Schneider Electric may investigate violations of these Terms of Use or misuse of the Digital Offer and cooperate with appropriate law enforcement authorities with respect to security threats, fraud, or other illegal, malicious, or inappropriate activity by You or any third-party through Your access to and/or Your use of the Digital Offer.

3.           License grant to the Digital Offer  

3.1 Subject to Your continued compliance with  these Terms of Use and, unless the Digital Offer is made available to You free of charge, Your full payment of the fees when due to acquire the right to access and use the Digital Offer, Schneider Electric grants to You a non-exclusive, non-transferable and limited license right to use the Application as part of the Services  for the time period and in the territory (worldwide unless geographically restricted) for which the Services are available to You according to the Order Confirmation, unless this license is earlier terminated in accordance with Section 13 of these Terms of Use. Your use of the Digital Offer must also comply with the Documentation and any other conditions agreed upon with You in the Services Contract or Order Confirmation.

3.2 Any right to receive the Application under any tangible form or media or to download and install the Application on any device, is expressly excluded, unless the Application is made available to You as a mobile application for installation on a mobile device.

To the extent applicable to the Digital Offer, the Application may only be used as part of the Services by the particular named user(s), in the particular location(s), on the particular device(s) and/or on the particular system(s) for which You have acquired the right to access and use the Digital Offer in accordance with these Terms of Use, as those named user(s), location(s), device(s) and/or system(s) are identified in  the Documentation, the Services Description or the Order Confirmation.

The Application will be made available to You in object code (machine-readable) form only and under no circumstances is Schneider Electric obligated to disclose or make available the source code of the Application to You.

3.3 These Terms of Use describe and govern Your right to use the Digital Offer as part of the Services. It is expressly agreed that these Terms of Use and any Order Confirmation will prevail over and supersede the terms and conditions contained in any purchase order or other document You may issue or submit in connection with Your use of the Digital Offer and such other terms and conditions are expressly rejected by Schneider Electric to the extent such other terms and conditions conflict with these Terms of Use.

3.4 Customer may not sublicense or otherwise grant the access and the right to use the Digital Offer and/or the Services to any Customer’s Partner, unless Schneider Electric or Schneider Electric Affiliate receiving Customer’s Order expressly authorizes Customer in writing through the Services Contract or the Order Confirmation to provide such access and right to use the Digital Offer and/or the Services to Customer’s Partners.

Customer hereby agrees that:

(i) the conditions defined under paragraphs (a) to (d) below shall apply to the provision by Customer to Customer’s Partners of the right to access and use the Digital Offer and the Services, and

(ii) Customer has the obligation to inform Customer’s Partners of such conditions and to obtain their express written agreement to such conditions under any purchase order or contract accepted or entered into between Customer and Customer’s Partners, and Customer shall indemnify and hold Schneider Electric and its Affiliates harmless against any damages resulting from Customer’s failure to provide such information and/or obtain Customer’s Partner’s agreement to such conditions:

(a) Customer shall not grant to Customer’s Partners more rights to the Digital Offer and, as applicable, to the Services than the rights granted to Customer under these Terms of Use and the rights granted by Customer to Customer’s Partners may not be granted for any period exceeding the Services Period applicable to Customer under the Services Contract or Order Confirmation;

(b) Customer’s Partner shall not be able to access the Digital Offer and, as applicable, the Services until Customer’s Partner creates its own User Account or requests Customer, and Customer agrees, to create on its behalf the User Account of Customer’s Partner; and

(c)  such User Account cannot be created, and Customer’s Partner will therefore not be able to make use of the Digital Offer and, as applicable, the Services, if Customer’s Partner does not accept these Terms of Use through the registration page or any other consent interface made available by Schneider Electric in relation to the Digital Offer and/or the Services; and

(d) Upon their acceptance by Customer’s Partner, these Terms of Use shall bind upon Customer’s Partner and shall be enforceable by Schneider Electric against Customer’s Partnerdirectly, irrespective whether Customer’s Partner places or not any order or enters or not into any contract with any Schneider Electric Affiliate in relation to the Digital Offer and/or the Services.

4.       Restrictions on use of the Digital Offer

4.1 Your use of the Digital Offer may be subject to certain restrictions set forth in these Terms of Use and other legal documents incorporated or referred to herein, which may include without limitation certain limitations on the scope of use, capacity, metrics, types and quantities of system resources, and/or duration of the Services. Your use of the Digital Offer in a manner inconsistent with such restrictions may adversely impact the performance of the Services, may result in additional charges to You and/or may result in suspension of the Services or termination of Your User Account in accordance with these Terms of Use. You agree that You will comply with such restrictions or technical limitations of the Digital Offer.

You acknowledge that You shall solely bear the cost of any toll charges applicable to Your access to the Digital Offer through the use of internet or telephone.

If technological measures are designed to prevent unlicensed or illegal use of the Digital Offer, You agree that Schneider Electric may use those measures and You agree to comply with any requirements regarding such technological measures and that You will not nor will You permit others to circumvent such measures. Such measures do not constitute a defect in the Digital Offer nor do they entitle You to any warranty rights.

4.2 In using the Digital Offer, You agree:

i. not to reverse engineer, decompile, disassemble, modify, adapt or translate any part of the Digital Offer such as but not limited to the Application, or create derivative works based on any part of the Digital Offer; further, in case of errors, bugs or defects in any part of the Digital Offer such as but not limited to the Application, only Schneider Electric or its designated Affiliate(s), to the exclusion of the Customer or any third-party not authorized by Schneider Electric, shall have the right to provide Customer with any correction or work-around thereof;

ii. not to perform or disclose any benchmark or performance tests of the Digital Offer without Schneider Electric's prior express written consent;

iii. not to perform or disclose any security testing of the Digital Offer or associated infrastructure without Schneider Electric's prior express written consent, such as but not limited to network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing;

iv. unless otherwise expressly permitted under these Terms of Use, You must not transfer, license, sublicense, rent, lease, sell, lend, distribute, host, outsource, disclose, permit timesharing or service bureau use, assign, or otherwise commercially exploit or make available the Digital Offer or any part thereof including without limitation any materials or programs pertaining to or otherwise comprised in the Application, to any third party without Schneider Electric's prior express written consent and such consent may be withheld in the sole discretion of Schneider Electric;

v. not to disrupt or interfere with the security of, or otherwise abuse, the Digital Offer and/or the web site(s) and/or any online portals or associated infrastructure proprietary to or authorized by Schneider Electric or its relevant Affiliate through which You are given access to the Digital Offer and/or the Services;

vi. not to disrupt or interfere with the access to the Digital Offer and/or the provision by Schneider Electric of the Services to any other customer or user thereof;

vii. not to upload, post, or otherwise transmit any virus or other harmful, disruptive or destructive files into the Digital Offer and/or the web site(s) and/or any online portals or associated infrastructure proprietary to or authorized by Schneider Electric or its relevant Affiliate through which you are given access to the Digital Offer and/or the Services;

viii. not to use or attempt to use the data of any other user of the Digital Offer and the Services, or create or use a false identity in accessing or using the Digital Offer and/or the web site(s) and/or any online portals or associated infrastructure proprietary to or authorized by Schneider Electric or its relevant Affiliate through which You are given access to the Digital Offer and/or the Services;

ix. not to transmit through or into the Digital Offer and/or the web site(s) and/or any online portals or associated infrastructure proprietary to or authorized by Schneider Electric or its relevant Affiliate through which You are given access to the Digital Offer and/or the Services, any spam mail, chain letters, junk mail or any other type of unsolicited mass e-mail to people or entities who have not agreed to be part of such mailings;

x. not advertise or offer to sell any goods or services through or into the Digital Offer and/or the web site(s) and/or any online portals or associated infrastructure proprietary to or authorized by Schneider Electric or its relevant Affiliate through which You are given access to the Digital Offer and/or the Services;

xi. not to use the Digital Offer and/or the web site(s) and/or any online portals or associated infrastructure proprietary to or authorized by Schneider Electric or its relevant Affiliate through which you are given access to the Digital Offer and/or the Services, to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy or Intellectual Property Rights where applicable) of Schneider Electric or any third party;

xii. not to use the Digital Offer and/or the web site(s) and/or any online portals or associated infrastructure proprietary to or authorized by Schneider Electric or its relevant Affiliate through which You are given access to the Digital Offer and/or the Services, to publish, post, distribute or disseminate any information or material which is obscene, defamatory, indecent or unlawful; and

xiii. not to use the Digital Offer and/or the web site(s) and/or any online portals or associated infrastructure proprietary to or authorized by Schneider Electric or its relevant Affiliate through which You are given access to the Digital Offer and/or the Services, to take any action which would cause Schneider Electric to be in violation of any law or regulation

4.3 Schneider Electric may make changes or updates to the Digital Offer (such as but not limited to infrastructure, technical configurations, application features), the Documentation and, as applicable, to the Services and the Services Description, at any time during the Services Period, including to reflect changes in technology, industry practices, and patterns of systems used to operate, deliver, support and/or maintain the Digital Offer and/or the Services. Furthermore, Schneider Electric may need at any time during the Services Period to change, update, add or remove functionalities or features of the Digital Offer and/or the Services, and/or to add or create new limitations to the Digital Offer and/or the Services or to suspend or stop providing the Services, (i) to comply with any legal obligation applicable to Schneider Electric or any order, injunction or decision by a court or other competent jurisdiction or any governmental or regulatory agency, or (ii) to prevent fraud, abuse or security threat of the Digital Offer and/or the Services, or (iii) where Schneider Electric is subject to any circumstances out of its control which creates hardship conditions for Schneider Electric to continue operating, delivering, supporting and/or maintaining the Digital Offer and/or the Services without modification, or (iv) where such modification, suspension or discontinuance is imposed to Schneider Electric by any of its third-party hosting service providers, third-party licensors or other third-parties operating, delivering, supporting and/or maintaining the Digital Offer and/or the Services on behalf of Schneider Electric, or (v) where such modification, suspension or discontinuance results from the modification, suspension or discontinuance of service to Schneider Electric from any of its third-party hosting service providers, third-party licensors or other third parties operating, supporting and/or maintaining the Digital Offer and/or the Services. Schneider Electric will make commercially reasonable efforts to inform You prior to implementing such change, update, addition, removal, limitation, suspension or discontinuance.  If a feature or functionality of the Digital Offer and/or the Services is removed or stopped, and unless otherwise required under the law governing these Terms of Use, Schneider Electric shall have no obligation to provide a functionally equivalent feature or functionality.  

4.4  From time to time and at its discretion, Schneider Electric may choose to design additional functionality or enhancements to existing functionality of the Digital Offer and the Services, either directly or through a subcontractor acting on its behalf. Schneider Electric will freely determine whether it includes any such additional or enhanced functionality in the Digital Offer and the Services and shall have no obligation to disclose or propose it to Customer unless otherwise agreed upon in writing between Schneider Electric and Customer.

5.       Price and payment for the Services

Unless the Order Confirmation or any separate agreement between Customer and Schneider Electric or Schneider Electric Affiliate specify that the Services are provided by Schneider Electric on a free of charge basis for whole or part of the Services Period, the Services shall be provided by Schneider Electric against payment by Customer of the fee amount(s) set forth in the Order Confirmation and, as the case may apply, on the web pages presenting the Digital Offer and/or the website(s) or online portals through which  the Services can be subscribed to online, as such pages may be updated from time to time by Schneider Electric or its relevant Affiliate. In case of any conflict between the fee amount(s) stated on such web pages, websites or portals and the fee amount(s) stated in the Order Confirmation, the latter shall prevail with respect only to the project under which Customer places the corresponding Order of Services.

Any revision of said fee amount(s) shall be applied to Services provided to Customer under any Order of Services placed by Customer after the date of validity of such revision.

Terms of payment and taxes applicable to the Services’ price(s) shall apply as defined in the Order Confirmation or, by default, in Schneider Electric Affiliate’s terms of sale applicable to the Order Confirmation.

6.      Customer Data

6.1 Rights to Customer Data.

6.1.1       Customer retains all rights, title, and interest in the Customer Data. Customer hereby grants to Schneider Electric a non-exclusive, perpetual, irrevocable, worldwide, free of charge and royalty-free license right and authorization (“License”) to use, host, store, upload, import, collect, create, translate, copy, modify, distribute modifications of, perform, create and display or distribute derivative works of, Customer Data for the purpose of and in conjunction only with the following limited purposes as further detailed here below which Customer considers compatible with its own data processing purposes:   

(a) providing the Services to Customer,

(b) improving and modifying the Digital Offer and/or the Services, and creating any new Schneider Electric products, services and solutions,

(c) generating business and/or sales between Customer and Schneider Electric or its Affiliates,

(d) conducting business management operations,

(e) allowing compliance and/or enforcement of legal requirements, and

(f) anonymizing and aggregating energy consumption and emission generation data for the purpose of providing non-identifiable benchmarking information to Customer as well as other customers of Schneider Electric.   

The License granted in this Section 6.1.1 includes the right for Schneider Electric to sublicense the same rights to its Affiliates and any third-party subcontractors providing all or part of the Services on behalf of Schneider Electric, in either case under Schneider Electric’s responsibility towards Customer in accordance with the provisions of these Terms of Use.

Any objection by Customer to the exercise by Schneider Electric or any Schneider Electric Affiliate of the License rights granted under this Section 6.1.1, may only be raised with respect to the purposes b) to c) in writing to Schneider Electric through any means made available to Customer.

For each use case listed above, Schneider Electric’s processing of the Customer Data shall respect all obligations under applicable Data Protection Legislation, including restrictions that apply when Schneider Electric is processing the data as a processor or sub-processor in accordance with Section 7.3 below.

For purposes of these Terms of Use, “providing” the Services as referred to under (a) above consists of:

• delivering the functional capabilities of the Digital Offer to Customer and its Authorized Users, including providing personalized user experience(s) of the Digital Offer;

• providing technical support and maintenance including preventing, detecting, investigating, mitigating and/or repairing issues in or with the Digital Offer; and

• providing any professional services (i) related to the Digital Offer such as but not limited to conducting operations and tasks related to the installation, configuration, set up and/or commissioning of the Digital Offer with or within Customer’s operating environment or any hosting environment agreed upon with Customer, or (ii) resulting from Customer’s use of the Digital Offer such as but not limited to the delivery to Customer of reports, analysis and any other type of deliverables created by Schneider Electric or its Affiliates in pursuance of Services Agreement(s).

For purposes of these Terms of Use, “improving, modifying and creating the Services” as referred to under (b) above, consists of:

• updating, upgrading, improving and/or modifying whole or part of the Digital Offer and/or the Services (“Improvement”), including tests executed for such purposes; and

• creating any new Schneider Electric product, service or solution, which may or may not be complementary or substitutable to the Digital Offer and/or the Services.

Schneider Electric will de-identify any data used for those purposes.

When Schneider Electric will propose, promote or provide any Improvement and/or any new Schneider Electric products, services or solutions to any third-party other than Customer whose Customer Data are used by Schneider Electric in accordance with the aforementioned limited purposes, Schneider Electric shall ensure that the Improvement and/or its new product, service or solution shall not contain any information enabling the identification of such Customer and/or such Customer’s equipment, utilities, processes, infrastructures, buildings, facilities or other assets in relation to which such Customer is using the Digital Offer and has subscribed to  the Services.

For purposes of these Terms of Use, “generating business and/or sales between Customer and Schneider Electric or its Affiliates” as referred to under (c) above consists of the following:

• identifying potential business opportunities at Schneider Electric with Customer; and

• as the case may be, submitting to Customer technical and/or commercial proposals to purchase a license or subscription to the Digital Offer, its updated, upgraded, improved or modified versions, or other Schneider Electric products, services or solutions and/or related professional services.

Such opportunities’ identification and, as applicable, such proposals may notably be based on (i) Schneider Electric’s analysis of Customer Data collected through Customer’s use of the Digital Offer, or (ii) professional services, such as but not limited to studies or audits, conducted or performed at Customer’s sites with Customer’s agreement or on Customer’s request.

For purposes of these Terms of Use, “conducting business management operations” as referred to under (d) above consists of the following, each being incident to delivery of the Services to Customer:

• billing and account management;

• internal business reporting and modeling (e.g., forecasting, revenue, capacity planning, product strategy);

• financial reporting; and

• corporate governance, including mergers, acquisitions and divestitures, or other corporate reorganization of Schneider Electric or any of its Affiliates.

 

For purposes of these Terms of Use, “allowing compliance and/or enforcement of legal requirements” as referred to under (e) above consists of the following, each being incident to delivery of the Services to Customer:

• compliance with any legal obligation applicable to Schneider Electric and/or any of its Affiliates or any order, injunction or decision by any court of competent jurisdiction or any governmental or regulatory agency.

• compliance with company policies and procedures, such as but not limited to anti-money laundering programs, security and incident response programs, intellectual property protection programs, corporate ethics and compliance hotlines; corporate audits, analysis and reporting.

• preventing or combatting fraud, abuse or security threats that may affect the Digital Offer, the Services, Schneider Electric and/or any of its Affiliates and their business continuity; protecting Schneider Electric and any of its Affiliates against disasters, injury, theft or legal liability, and as applicable, enabling Schneider Electric and its Affiliates to protect individuals or property; and

• enforcing or defending Schneider Electric's rights (or those of any of its Affiliates) under these Terms of Use such as but not limited in the frame of any litigation or other proceedings.

6.1.2       In case Customer’s Partners Data are used, uploaded, collected, stored, created, modified or otherwise processed on the Cloud Platform or in the Application by Customer such as but not limited to in connection with the relationship between Customer and a Customer Partner, Customer shall be solely and fully responsible to obtain from such Customer's Partneror other relevant third-party in relation to the Customer’s Partners Data the necessary approvals, consents, authorizations and, as applicable, licenses to perform any of the aforesaid actions and to grant to Schneider Electric the License defined in Section 6.1.1 above. Subject to this License, Schneider Electric acknowledges that, unless otherwise agreed between Customer and Customer’s Partners under their own responsibility, Customer’s Partners retain all rights to Customer’s Partners Data.  

Customer represents that Customer has and will keep in effect during its use of the Services, all the aforesaid approvals, consents, authorizations and licenses at no charge to Schneider Electric, its Affiliates and subcontractors.

Customer represents that Customer is not exceeding any specific entitlement or permitted use or violating applicable license agreements or applicable laws to grant the foregoing license rights. When applicable license agreements or applicable laws require specific arrangements, including obtaining an approval,  an authorization or a license from any competent authority, Customer, Customer’s Partners or a consent from any individual person, Customer shall obtain such approval, authorization or license and seek consent from any such individual persons, in accordance with applicable law and without infringement of any Intellectual Property Rights, using such methods which will either be made available by Schneider Electric within the Services or that will be decided and deployed by the Customer.

Customer agrees to indemnify and hold Schneider Electric and its Affiliates harmless from any third-party claims and any costs and other amounts that Schneider Electric or its Affiliates may incur or otherwise be subject to because of Customer's breach of this Section 6.1.2.

6.2 Security and back-ups.

6.2.1       Security of the Digital Offer. Customer acknowledges that Customer has reviewed the security features of the Digital Offer and, as applicable, the Services as such features are described by Schneider Electric with the Digital Offer and/or the Services or upon Customer’s request, and Customer has determined that they meet Customer's security needs including any specific requirement of security applicable in the field of activity of Customer or Customer’s Partners for which Customer is acting as service provider.

6.2.2       Data security. Customer is solely responsible for determining the requirements regarding security of Customer Data and Customer’s Partners Data. If the security features, procedures and/or controls offered by Schneider Electric with respect to the Digital Offer and the Services do not meet the requirements determined by Customer regarding security of Customer Data and Customer’s Partners Data, Customer should not use the Digital Offer and the Services. Schneider Electric does not accept any liability for any corruption, loss or theft of data caused by security breaches resulting from internet connectivity and/or the environment or systems used by Customer or Customer’s Partners to access and use the Digital Offer and the Services, such as but not limited to security breaches resulting from hackers, unlawful entry or unauthorized access. Schneider Electric shall not be responsible, and Customer is solely responsible at its own costs for the performance, the safety and integrity of back-ups of Customer Data and Customer’s Partners Data. Except to the extent that Schneider Electric and Customer have agreed on back-up or disaster recoveries, Customer acknowledges that the Digital Offer and the Services do not include any dedicated data back-up or disaster recovery plans and facilities and that Customer should ensure it maintains safe and regular backups of all Customer Data and Customer’s Partners Data as necessary to ensure the continuation of Customer’s business(es) in accordance with the needs of Customer, its Authorized User and/or as applicable Customer’s Partners. Though Schneider Electric, its Affiliates and/or its/their third-party hosting service providers may routinely undertake regular backups of the Services (which may include Customer Data and Customer’s Partners Data) for its/their own business continuity purposes, Customer acknowledges that such steps do not in any way make Schneider Electric, its Affiliates and/or said third-party hosting service providers responsible for ensuring that Customer Data and/or Customer’s Partners Data does not become inaccessible, damaged, or corrupted.

Except to the extent Schneider Electric has control or monitoring obligations under applicable laws with respect to Customer Data and/or Customer’s Partners Data hosted or otherwise processed as part of the Services, Customer acknowledges that Schneider Electric might not actively control or monitor the contents of any Customer Data or Customer’s Partners Data hosted or otherwise processed as part of the Services. Customer must ensure and is exclusively responsible for the accuracy, quality, integrity, and legality of Customer Data and Customer’s Partners Data.

6.2.3 Customer security program

Customer is solely responsible for the implementation and maintenance of a comprehensive security program that contains reasonable and appropriate security measures and safeguards to protect its computer network, systems, machines and data (“Customer’s Systems”) against any circumstance or event with the potential to adversely impact, compromise, damage, or disrupt Customer’s Systems or that may result in any unauthorized access, acquisition, loss, misuse, destruction, disclosure, and/or modification of Customer’s Systems,  including through malware, hacking, or similar attacks (“Cyber Threats”), and Customer agrees to regularly monitor its systems with respect to Cyber Threats.

6.2.4 Reporting a vulnerability

If Customer identifies or otherwise becomes aware of any vulnerabilities or other Cyber Threats relating to the Cloud Platform, the Services or the Application for which Schneider Electric has not released a patch or update, Customer shall promptly notify Schneider Electric of such vulnerability via the Schneider Electric ‘Report a Vulnerability’ page (https://www.se.com/ww/en/work/support/cybersecurity/report-a-vulnerability.jsp#Customers) and further provide Schneider Electric with any reasonably requested information relating to such vulnerability or other Cyber Threat(s) (collectively, “Cybersecurity Feedback”). Schneider Electric shall have a non-exclusive, perpetual and irrevocable right to use, display, reproduce, modify and distribute the Cybersecurity Feedback (including any confidential information or intellectual property contained therein) in whole or part, including to analyze and fix the vulnerability, to create patches or updates, and to otherwise modify the Cloud Platform, the Services or the Application, in any manner without restrictions, and without any obligation of attribution or compensation to Customer; provided, however, Schneider Electric shall not publicly disclose Customer’s name in connection with such Cybersecurity Feedback or the use thereof (unless Customer consents otherwise). By submitting Cybersecurity Feedback, Customer represents and warrants to Schneider Electric that Customer has all necessary rights in and to such Cybersecurity Feedback and all information it contains, including to grant the rights to Schneider Electric described herein, and that such Cybersecurity Feedback does not infringe any proprietary or other rights of third parties or contain any unlawful information.

6.3 Access to Customer Data, Return of Customer Data or transfer of Customer Data to a third-party

6.3.1. Customer may at any time during any Services Period request in writing that Schneider Electric (a) makes available to Customer (b) extracts and returns to Customer, or (c) transfers to a third-party all or part of the Customer Data (as well, as applicable per Customer’s request, Customer’s Partners Data) stored on the Cloud Platform and/or in the Application. These requests will be handled at Customer’s expense, except when applicable law provides otherwise. Following receipt of such request, Schneider Electric shall confirm the cost, if any, to be charged to the Customer. Subject to Customer’s agreement to the cost charged by Schneider Electric, Schneider Electric shall use technically and commercially reasonable efforts to (a) make available, or (b) extract and return, or (c) transfer such Customer Data and as applicable Customer’s Partners Data, in Schneider Electric’s standard format or any other format lawfully selected by Schneider Electric without unreasonable delay from receipt of such request. Where applicable and technically possible, and subject to an agreement between Customer and Schneider Electric, access or transfer can be done continuously or in real time.

For the purpose of this Section 6.3, except as required by law or except as otherwise agreed between Schneider Electric and Customer, Customer Data which are subject to access, return and transfer is limited to (i) data which is recorded intentionally by Customer in the Digital Offer and/or the Services, and (ii) data generated by the Digital Offer and/or the Services, to the exclusion of information, content and data which are derived or inferred. Derived or inferred information, content and data are those resulting from any software process implemented by Schneider Electric that substantially modifies the recorded or generated data. Customer shall not use the Customer Data obtained pursuant to a request made per this Section 6.3 to develop or cause or allow a third party to develop a product that competes with the Digital Offer or the Services from which the data originates.

Customer acknowledges and agrees that such access, extraction and return, or transfer by Schneider Electric may be subject to prior consent and/or limitations imposed to Schneider Electric by its third-party hosting service providers or third-party licensors.

When such access, extraction and return or transfer by Schneider Electric are subject to prior consent and/or limitations or specific regulatory requirements or standards imposed to Customer or Customer’s Partners, Customer shall represent that they have obtained all consents and approvals as well as provided to Schneider Electric all information required to proceed with such access, extraction and return or transfer in compliance with any such requirements or standards. Customer agrees to indemnify and hold Schneider Electric harmless from any third-party claims and any costs and other amounts that Schneider Electric may incur or otherwise be subject to because of Customer's breach of this Section 6.3.1.

This Section 6.3.1 applies without prejudice to the provisions of Section 7.3.9 related to Personal Data.

6.3.2 If the Digital Offer or the Services can connect with Schneider Electric's or a third party's Application Programming Interface (API), the use of these API may be subject to their own terms & conditions. Schneider Electric or its relevant Affiliate may request You to accept separate Schneider Electric’s API terms & conditions, and will request Your approval (i) before Schneider Electric grants access to Your Customer Data or Customer’s Partners Data through the use of Schneider Electric's or a third party's API, or (ii) before Schneider Electric generates, or allows the generation of, any technological measures such as but not limited to access tokens which, through the use of any API, allow access to Your Customer Data or Customer’s Partners Data.

6.4Persistence of the Services when Customer requests for return or transfer of Customer Data. Extraction and return or transfer by Schneider Electric of Customer Data and/or Customer’s Partners Data upon Customer’s request as defined in Section 6.3.1, shall not cause Customer’s User Account to be disabled: Customer's User Account shall remain active, and the Services shall be continued, until the Services Period expires or is earlier terminated. The provisions of Section 13 of these Terms of Use shall apply to the return of Customer Data and Customer’s Partners Data following the expiration or termination of the Services Period.

6.5Disclosure of Customer Data. Schneider Electric shall not disclose Customer Data and Customer’s Partners Data to any third party without Customer's prior express consent, except that Customer’s prior consent shall not be required (i) for disclosure by Schneider Electric to any of its Affiliates, suppliers or any third-party subcontractors acting on behalf of Schneider Electric and involved in the performance of the activities authorized under the License granted to Schneider Electric under Section 6.1 above, or (ii) when disclosure of Customer Data and/or Customer’s Partners Data is necessary for Schneider Electric to comply with any legal obligation applicable to Schneider Electric or  any order, injunction or decision by any court of competent jurisdiction or any governmental or other regulatory agency or authority, or to prevent fraud, abuse or security threat of the Digital Offer or the Services, or to enforce or defend Schneider Electric's rights under these Terms of Use such as but not limited in the frame of any litigation or other proceedings, or (iii) to the extent such disclosure is necessary to facilitate corporate governance, including mergers  acquisitions, divestitures or other corporate reorganization of Schneider Electric or any of its Affiliates that processes or has processed Customer Data and/or Customer’s Partners Data.

In case Customer is not entitled to allow Schneider Electric to disclose Customer Data or Customer’s Partners Data pursuant to the exceptions described in this Section 6.5, Customer shall be solely and fully responsible to obtain any necessary permissions or approvals from those legal or individual person(s) including as applicable Customer’s Partners, and from those authorities or other third parties, which have the right and authority to grant such permissions or approvals.

7. Personal Data and Privacy

7.1 Each of Schneider Electric and Customer will comply with its respective obligations under Data Protection Laws and must procure compliance with any such laws by its respective Affiliates, suppliers and users. Customer must ensure that all data processing activities it performs when using the Services and the Digital Offer comply with all applicable laws and regulations. Customer must obtain all required consents and make all required notifications for the performance of these Terms of Use, including with respect to the use of cookies and similar technologies by Customer or Customer’s Partners for their own purposes. Customer is responsible for any Personal Data that Customer or Customer’s Partners upload, download, collect, store, use, share, create, modify, delete or otherwise process with the Application and/or the Services.

7.2 If and to the extent that Schneider Electric processes Personal Data as Data Controller, Customer’s and Customer’s Partners Personal Data will be processed as described in privacy notices and policies made available by Schneider Electric and in Schneider Electric’s Data Privacy & Cookie Policy published on https://www.se.com/. You are advised to check these privacy notices and privacy policies. Schneider Electric will act as an independent controller and no joint controllership, or equivalence, over the data processing activity may be assumed between Schneider Electric, Customer and/or Customers’ Clients.

7.3 If and to the extent that Schneider Electric processes Personal Data as Data Processor, Customer acts as Data Controller with respect to any Personal Data comprised in Customer Data, except when Customer acts as Data Processor with respect to its Clients’ Personal Data, in which case Schneider Electric is a sub-processor.

7.3.1When Schneider Electric acts as a Data Processor or a sub-processor, Schneider Electric will process Personal Data only on documented instructions from Customer, including where required by Data Protection Laws with respect to transfers of Personal Data to third countries. Customer agrees that the Services Description, the Documentation and these Terms of Use constitute documented instructions. Customer’s instructions must comply with applicable laws and regulations including Data Protection Laws. Customer is responsible for the accuracy, quality and legality of Personal Data and of the data processing activity and for determining if the technical and organizational measures meet the Customer’s requirements. Schneider Electric will inform Customer if Schneider Electric or its sub-processors can no longer meet their obligations under this Section 7.3. Where required by Data Protection Laws, Schneider Electric will inform Customer if it believes that its instructions infringe Data Protection Laws.

7.3.2Schneider Electric will ensure that the personnel involved in processing Personal Data will be bound to maintain the confidentiality and security of Personal Data and to act on instructions from Customer.

7.3.3 To the extent Customer, in its use of the Services and the Application, does not have the ability to address a request from a data subject exercising their data protection rights, Schneider Electric, taking into consideration the nature of the processing activity, will provide reasonable assistance to Customer, at Customer cost, for the fulfillment of Customer’s obligations to address this request.

7.3.4 Schneider Electric will notify Customer without undue delay after becoming aware of a Personal Data breach and will assist Customer in addressing the breach as appropriate taking into consideration the circumstances of the breach, the nature of the processing activity and the information available to Schneider Electric.

7.3.5 Where required by Data Protection Laws, taking into consideration the nature of the data processing activity and the information available, Schneider Electric will assist Customer, at Customer cost, for the fulfillment of Customer’s obligations relating to security, data protection impact assessments and consultation of data protection authorities. 

7.3.6Unless agreed otherwise in writing between Schneider Electric and Customer, the details of the data processing are available at the following link: https://www.se.com/us/en/about-us/legal/data-privacy.jsp

7.3.7Customer authorizes the use of the following sub-processors:

i.Sub-processors listed at the following link: https://www.resourceadvisor.com/sub-processors/

ii.Schneider Electric Affiliates.

Customer agrees that Schneider Electric may involve other sub-processors provided that Customer is given a fifteen (15) calendar day prior written notice during which Customer may provide grounded objection to the use of a new sub-processor.  In case such an objection is made by Customer, Schneider Electric and Customer will attempt to find an alternative solution. If it appears not possible for Schneider Electric to continue providing the Services and Application at the same conditions without processing Personal Data by the objected-to sub-processor(s), then Schneider Electric or the Customer will have the right to terminate the Services in accordance with Section 13.1(b).

When engaging a sub-processor to carry-out specific data processing activities, Schneider Electric will do so by way of a written contract that provides in substance for the same data protection obligations as those binding upon Schneider Electric under these Terms of Use. Schneider Electric will ensure that the sub-processor complies with such obligations. Schneider Electric remains responsible towards Customer for the performance of the sub-processor’s obligations.

7.3.8Following a Customer’s request, at reasonable intervals or if there are indications of non-compliance and subject to confidentiality obligations, Schneider Electric will (i) provide Customer with information necessary to demonstrate compliance with Schneider Electric’s obligations under Data Protection Laws and (ii) allow for and contribute to audits on the compliance with such obligations, at Customer’s cost, subject to a thirty (30) calendar day prior written notice served to Schneider Electric. In deciding for a review of information or an audit, Customer will take into consideration certifications held by Schneider Electric. Audits may be conducted by Customer or an independent auditor bound by confidentiality, who is not a competitor of Schneider Electric and does not have a conflict of interest.

7.3.9At the end of the provision of the Services, Schneider Electric will, at the choice of Customer, delete all Personal Data processed on its behalf or on behalf of Customers’ Clients or return to Customer such Personal Data and delete existing copies unless any applicable laws and regulations require to continue storing it, in which case Schneider Electric will maintain confidentiality and security of such Personal Data in accordance with this Section 7.

7.4 Technical and organizational measures. Schneider Electric will implement technical and organizational measures to ensure a security level for the Personal Data which is appropriate and proportionate to the risk and which takes into consideration the state of technological developments and the cost of implementation. Such measures will address risks of accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Personal Data. Unless agreed otherwise in writing between Schneider Electric and Customer, the details of the technical and organizational measures are available at the following link: https://www.resourceadvisor.com/technical-and-organizational-measures/

7.5 Data transfers.   Schneider Electric operates globally. Its Affiliates, teams and suppliers involved in the provision of the Services and Application and the performance of these Terms of Use can be located in different geographies. The Standard Contractual Clauses will apply to Personal Data that is transferred outside of the EEA, the UK and Switzerland to a country not deemed as providing an adequate level of protection by competent institutions and authorities. The Standard Contractual Clauses at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX%3A32021D0914&locale=en are incorporated to these Terms of Use by reference.

7.6 CCPA/CPRA. For purposes of this Section, “California Privacy Laws” means collectively, the California Consumer Privacy Act of 2018 (CCPA, codified at Civil Code section 1798.100 et seq.) as amended by the California Privacy Rights Act (CPRA), and all applicable regulations issued by the California Attorney General and/or the California Privacy Protection Agency implementing CCPA and CPRA. Words used in the section shall have the meanings given to them in the California Privacy Laws.  To the extent the Customer Data or Customer’s Partners Data contain any “personal information” subject to the California Privacy Laws, Schneider Electric will process such personal information as a “service provider” or “contractor” in accordance with the following terms:

i. Schneider Electric shall not “sell” or “share” the personal information.

ii.Schneider Electric shall only process the personal information for the following Purposes: (1) to provide the services contemplated by these Terms of Use, (2) for the specific business purposes set forth in Section 6.1 above, to the extent permitted by the California Privacy Laws, and (3) for the following defined “business purposes” permitted by the California Privacy Laws: auditing, ensuring security and integrity, debugging, short term transient use (including as needed to create deidentified data sets for research), performing services, internal research, and undertaking activities to verify or maintain the quality or safety of the Schneider Electric’s products and services, and (4) for the other purposes explicitly permitted by the California Privacy Laws, namely retaining other service providers and/or subcontractors, for internal use to build or improve the quality of its products and services, to prevent, detect and investigate data security incidents or protect against malicious, deceptive, fraudulent or illegal conducts, and for the purposes enumerated in Civil Code section 1798.145(a)(1)-(7). 

iii.Schneider Electric shall not retain, use or disclose the personal information collected from Customer pursuant to these Terms of Use (1) for any purposes or commercial purpose other than the Purposes, including in the servicing of a different business, unless expressly permitted by the California Privacy Laws; (2) outside the direct business relationship between it and Customer unless expressly permitted by the California Privacy Laws.

iv.Schneider Electric shall comply with all sections of the California Privacy Laws applicable to it as a service provider or contractor.

v.Schneider Electric grants Customer the right to take reasonable and appropriate steps to ensure that it uses the personal information in a manner consistent with the Customer’s obligations under the California Privacy Laws.

vi.Schneider Electric shall notify Customer after it makes a determination that it can no longer meet its obligations under the California Privacy Laws.

vii.Schneider Electric grants Customer the right, upon notice, to take reasonable and appropriate steps to stop and remediate its unauthorized use of personal information.

viii.Customer shall notify Schneider Electric of any consumer request made pursuant to the CCPA that it must comply with and provide the information necessary for Schneider Electric to comply with the request.

ix.To the extent that Schneider Electric subcontracts with another person in providing services to Customer, Schneider Electric shall have a contract with the subcontractor that complies with the California Privacy Laws.

Customer and Schneider Electric further agree that, should the Regulations implementing the California Privacy Laws require additional mandatory terms for service provider contracts, this Section 7.6 shall automatically incorporate those terms by reference.

8.     Intellectual Property Rights

8.1 All right, title and interest in and to the Application, the Cloud Platform, the Services, any and all hardware, software and other items used by Schneider Electric or any Schneider Electric Affiliate to provide the Services as well as any technology or know-how embodied or otherwise implemented in the Application, the Cloud Platform, the Services and/or such other items, and all Intellectual Property Rights pertaining thereto, are and shall remain the full and sole property of Schneider Electric and/or, if applicable, its relevant Affiliate, third-party licensors or hosting infrastructure providers. No title to or ownership of any Intellectual Property Rights related to the Application, the Cloud Platform or the Services is transferred or shall be deemed to be conveyed to You or any third-party pursuant to these Terms of Use or under any business transaction performed between You and Schneider Electric or any Schneider Electric Affiliate in pursuance of the Services Contract or the Order Confirmation. Where the Application or, as applicable, the Services is made available through a Cloud Platform that is hosted or otherwise operated by a third-party licensor of Schneider Electric or any Schneider Electric Affiliate, You may be required to agree and accept such third-party licensor’s terms and conditions upon accessing said third-party licensor’s Cloud Platform.

All rights not explicitly granted to You under these Terms of Use regarding the Application, the Cloud Platform and the Services, are reserved by Schneider Electric.

8.2 All Intellectual Property Rights pertaining to any third-party software embedded or implemented in the Cloud Platform, the Application or the Services or otherwise provided to You with the Cloud Platform, the Application or the Services, shall remain vested in the relevant third party and there will be no deemed or implied transfer of ownership to You of such third-party proprietary rights.

8.3 All trademarks on the Application, the Cloud Platform, the Services and any and all hardware, software and other items used by Schneider Electric to provide the Services, are registered trademarks of Schneider Electric and/or its Affiliates or its licensors or are otherwise protected under any applicable Intellectual Property Rights, and may not be copied, reproduced or used, in whole or in part, without Schneider Electric's prior written permission. The same shall apply to all page headers, custom graphics, button icons and scripts displayed or otherwise available on the Application, the Cloud Platform, the Services and/or any and all hardware, software and other items used by Schneider Electric to provide the Services. No transfer or grant of rights under any such trademark, page headers, custom graphics, button icons and scripts or any related Intellectual Property Rights is made or implied by any provision of these Terms of Use, Your access to the Cloud Platform or Your use of the Services or the Application.

8.4 If any third-party software not provided by Schneider Electric or Schneider Electric Affiliates is necessary for Your use of the Digital Offer and/or the Services in Your environment, You shall be responsible for obtaining and complying with the license terms and conditions set forth by the third-party vendor(s) of such software. Schneider Electric shall in no event bear any liability in consequence of Your failure to comply with said license terms and conditions.

9.     Warranties and disclaimers of warranty

9.1 SCHNEIDER ELECTRIC AGREES TO PROVIDE THE SERVICES TO THE CUSTOMER USING A COMMERCIALLY REASONABLE LEVEL OF SKILL AND CARE, AND IN ACCORDANCE WITH THE THEN-CURRENT APPLICABLE SERVICES DESCRIPTION AND THE ORDER CONFIRMATION.

9.2 DURING A PERIOD OF NINETY (90) DAYS FROM THE EFFECTIVE DATE OF THE SUBSCRIPTION TO THE SERVICES BY CUSTOMER UNDER THE ORDER CONFIRMATION, SCHNEIDER ELECTRIC WARRANTS THAT THE SERVICES WILL SUBSTANTIALLY PERFORM THE FUNCTIONALITIES DESCRIBED IN THE THEN-CURRENT APPLICABLE SERVICES DESCRIPTION. THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND SCHNEIDER ELECTRIC'S ENTIRE LIABILITY FOR A BREACH OF THIS WARRANTY SHALL BE FOR SCHNEIDER ELECTRIC TO USE TECHNICALLY AND COMMERCIALLY REASONABLE EFFORTS TO PROVIDE A PATCHED VERSION OF THE APPLICATION OR A WORKAROUND RELATING TO THE USE OF THE SERVICES SUCH AS, IN PARTICULAR, AT SCHNEIDER ELECTRIC’S SOLE DISCRETION, THE USE OF THE SERVICES IN DOWNGRADED MODE. IN THE EVENT SCHNEIDER ELECTRIC IS UNABLE TO FIX OR RESTORE THE DEFECTIVE OR NON-COMPLIANT FUNCTIONALITIES OF THE SERVICES, THE CUSTOMER SHALL BE ENTITLED TO TERMINATE ITS APPLICABLE ORDER(S) OF SERVICES AND RECEIVE A PRO-RATED REFUND OF THE AMOUNTS, IF ANY, PAID IN ADVANCE BY THE CUSTOMER TO SCHNEIDER ELECTRIC IN ACCORDANCE WITH AND UNDER SAID APPLICABLE ORDER(S) FOR THE CORRESPONDING UNUSED PORTION OF THE SERVICES PERIOD TO THE SERVICES.

NOTWITHSTANDING THE FOREGOING, SCHNEIDER ELECTRIC DOES NOT WARRANT OR PROMISE THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL FAILURES OR DEFECTS OF THE SERVICES WILL BE CORRECTED.

THE CUSTOMER UNDERSTANDS THAT THE SERVICES MAY BE INTERRUPTED OR COMPLETELY UNAVAILABLE FOR PERIODS OF TIME DUE TO CERTAIN CAUSES WHICH MAY INCLUDE, WITHOUT LIMITATION, SCHEDULED OR UNSCHEDULED MAINTENANCE WORK OF THE APPLICATION AND/OR THE CLOUD PLATFORM. ONLY SCHEDULED MAINTENANCE WORKS WILL GIVE RISE TO PRIOR NOTIFICATION BY SCHNEIDER ELECTRIC.

ALTHOUGH SCHNEIDER ELECTRIC SHALL MAKE EVERY REASONABLE ENDEAVOR TO KEEP THE APPLICATION, THE CLOUD PLATFORM AND THE SERVICES FREE FROM VIRUSES OR OTHER CONTAMINATION FEATURES, DUE TO THE INHERENT RISKS OF TELECOMMUNICATION NETWORKS AND THE INTERNET, SCHNEIDER ELECTRIC CANNOT WARRANT THAT THE APPLICATION, THE CLOUD PLATFORM AND THE SERVICES SHALL BE FREE OF VULNERABILITIES OR CYBER THREATS OR PROTECTED AGAINST ALL VIRUSES OR OTHER CONTAMINATION FACTORS THAT MAY THREATEN THE SECURITY OR INTEGRITY OF THE DIGITAL OFFER, THE SERVICES, CUSTOMER DATA OR CUSTOMER’ S CLIENTS DATA.

 CUSTOMER ACKNOWLEDGES THAT ACCESS TO THE APPLICATION, THE CLOUD PLATFORM AND/OR USE OF THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND POTENTIAL FAILURE DUE TO THE INHERENT RISKS OF TELECOMMUNICATION NETWORKS AND THE INTERNET. SCHNEIDER ELECTRIC SHALL NOT BE RESPONSIBLE FOR ANY DELAY OR FAILURE IN THE SERVICES OR ANY LOSS OR DAMAGE RESULTING FROM THE AFORESAID LIMITATIONS, DELAYS AND POTENTIAL FAILURES.

9.3 WITHOUT PREJUDICE TO ANY STATUTORY WARRANTIES THAT CANNOT BE EXCLUDED AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW OR OTHERWISE, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OF THIRD- PARTY RIGHTS AND FITNESS OR ACCURACY FOR CUSTOMER'S PARTICULAR PURPOSE, REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS, ARE EXCLUDED REGARDING THE DIGITAL OFFER AND THE SERVICES.

10.   Limitations of liability

10.1 IN NO EVENT SHALL SCHNEIDER ELECTRIC NOR ITS AFFILIATES, LICENSORS OR CONTRACTORS INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE CLOUD PLATFORM, THE APPLICATION, THE SERVICES OR ANY COMPONENT THEREOF, BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF PROFITS OR CONTRACTS, LOSS OF ANTICIPATED SAVINGS, BUSINESS INTERRUPTION, LOSS OF AVAILABILITY OF OR CORRUPTION OR DAMAGE TO ANY DATA (INCLUDING CUSTOMER DATA OR CUSTOMER’s PARTNERS DATA), LOSS OF REPUTATION OR WASTE OF MANAGEMENT OR OFFICE TIME, ARISING OUT OF OR IN CONNECTION WITH THE CUSTOMER'S ACCESS TO OR INABILITY TO ACCESS THE CLOUD PLATFORM OR THE CUSTOMER'S USE OR INABILITY TO USE THE SERVICES OR ANY MATERIAL, DOCUMENT OR INFORMATION MADE AVAILABLE OR OTHERWISE PROVIDED TO YOU FROM THE CUSTOMER'S USE OF THE CLOUD PLATFORM, THE APPLICATION, THE SERVICES OR ANY COMPONENT THEREOF, WHETHER BASED ON CONTRACT, TORT, WARRANTY OR OTHER LEGAL GROUND AND EVEN IF SCHNEIDER ELECTRIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 EXCEPT IN CASE OF (i) SCHNEIDER ELECTRIC'S FRAUD OR FRAUDULENT MISREPRESENTATION, (ii) SCHNEIDER ELECTRIC'S WILFUL MISCONDUCT OR GROSS NEGLIGENCE (TO THE EXTENT LIABILITY FOR GROSS NEGLIGENCE CAN BE EXCLUDED UNDER APPLICABLE LAW), OR (iii) DEATH OR INJURY TO INDIVIDUAL PERSON(S), WHERE NO LIMITATION OF LIABILITY SHALL APPLY, SCHNEIDER ELECTRIC'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, THE CLOUD PLATFORM, THE APPLICATION, THE SERVICES OR ANY COMPONENT THEREOF, SHALL BE LIMITED TO AND SHALL IN NO EVENT EXCEED (I) THE AMOUNT PAID BY CUSTOMER TO SCHNEIDER ELECTRIC OR SCHNEIDER ELECTRIC AFFILIATE FOR THE SERVICES WITH respect TO WHICH LIABILITY IS CLAIMED OVER THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE LIABILITY CLAIM, OR (II) TWENTY-FIVE DOLLARS ($25 USD) IN THE CASE WHERE THE SERVICES ARE PROVIDED FREE OF CHARGE TO CUSTOMER BY SCHNEIDER ELECTRIC OR SCHNEIDER ELECTRIC AFFILIATE.

10.3 SCHNEIDER ELECTRIC SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGE, LOSS, PENALTY, SURCHARGES, INTEREST OR MONETARY LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE CUSTOMER’S ACCESS TO OR INABILITY TO ACCESS THE APPLICATION OR THE CLOUD PLATFORM OR THE CUSTOMER'S USE OR INABILITY TO USE THE SERVICES OR ANY MATERIAL, DOCUMENT OR INFORMATION MADE AVAILABLE OR OTHERWISE PROVIDED TO THE CUSTOMER FROM ITS USE OF THE SERVICES, THAT IS DUE TO (i) THE SUPPLY BY THE CUSTOMER OR ANY THIRD PARTY NOT BEING UNDER THE CONTROL OF SCHNEIDER ELECTRIC OF INCORRECT OR INCOMPLETE INFORMATION, (ii) THE FAILURE BY THE CUSTOMER OR ANY THIRD PARTY NOT BEING UNDER CONTROL OF SCHNEIDER ELECTRIC TO SUPPLY ANY REQUISITE INFORMATION REQUESTED BY SCHNEIDER ELECTRIC, (iii) ANY ACT, OMISSION, NON-PERFORMANCE OR DELAY ATTRIBUTABLE TO OR CAUSED BY THE CUSTOMER, ITS SUBCONTRACTORS, EMPLOYEES OR ANY OTHER THIRD PARTY BEING UNDER THE CUSTOMER'S CONTROL, OR (v) ANY MATTER OUTSIDE CONTROL OF SCHNEIDER ELECTRIC.

10.4 SCHNEIDER ELECTRIC'S LIABILITY ARISING OUT OF THESE TERMS OF USE IS REDUCED PROPORTIONALLY TO THE EXTENT TO WHICH THE ACT OR OMISSION OF YOU OR ANY OTHER THIRD PARTY CONTRIBUTED TO THE LOSS OR DAMAGE INCURRED.

10.5 SCHNEIDER ELECTRIC SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR THE USE OF ANY CUSTOMER DATA OR CUSTOMER’S PARTNERS DATA BY THE CUSTOMER OR ANY THIRD PARTY NOT BEING UNDER CONTROL OF SCHNEIDER ELECTRIC, SUCH AS BUT NOT LIMITED TO CUSTOMER DATA AND CUSTOMER’S PARTNERS DATA THAT ARE CREATED OR OTHERWISE PROCESSED AS PART OF THE SERVICES OR IN CONNECTION WITH THE CUSTOMER'S USE OF THE SERVICES. SCHNEIDER ELECTRIC SHALL ALSO NOT BE LIABLE FOR THE CONSEQUENCES OF ANY DECISION, ACT OR OMISSION, SUCH AS BUT NOT LIMITED TO THE ASSEMBLY, INSTALLATION OR MAINTENANCE OF ANY EQUIPMENT, UTILITY, PROCESS, INFRASTRUCTURE, BUILDING, FACILITY OR OTHER ASSET, THAT THE CUSTOMER OR ANY THIRD-PARTY MAY MAKE ON BASIS OF ANY CUSTOMER DATA OR CUSTOMER’S PARTNERS DATA.

10.6 IN CASE THE RIGHT TO ACCESS AND USE THE SERVICES WAS FURNISHED TO YOU BY ANY AUTHORIZED SCHNEIDER ELECTRIC DISTRIBUTOR OR RESELLER OR ANY SCHNEIDER ELECTRIC CERTIFIED PARTNER, WITH OR WITHOUT A THIRD-PARTY PRODUCT, SCHNEIDER ELECTRIC SHALL IN NO EVENT BE A PARTY TO ANY PURCHASE ORDER OR OTHER AGREEMENT BETWEEN YOU AND SUCH DISTRIBUTOR, RESELLER OR PARTNER AND SHALL NOT ASSUME OR OTHERWISE BEAR ANY LIABILITY THEREUNDER.

10.7 SCHNEIDER ELECTRIC SHALL NOT BEAR ANY LIABILITY AND MAKES NO REPRESENTATION, NOR PROVIDES ANY WARRANTY, THAT THE DIGITAL OFFER AND THE SERVICES WILL BE ACCESSIBLE, AVAILABLE OR APPROPRIATE FOR ANY OR ALL OF CURRENT OR POTENTIAL CUSTOMERS (INCLUDING YOU) IN ALL GEOGRAPHIC LOCATIONS IN THE WORLD.

10.8 THE EXCLUSIONS, LIMITATIONS AND DISCLAIMERS OF WARRANTY OR LIABILITY STATED IN THESE TERMS OF USE SHALL APPLY ONLY TO THE EXTENT PERMITTED BY THE LAW APPLICABLE TO THESE TERMS OF USE AND DO NOT AFFECT OR PREJUDICE STATUTORY RIGHTS WHICH, AS THE CASE MAY BE, BENEFIT YOU UNDER MANDATORY OR PUBLIC ORDER LAWS OR REGULATIONS APPLICABLE IN ANY COUNTRY FROM WHERE YOU WILL ACCESS AND/OR WHERE YOU WILL USE THE SERVICES.

11.   Indemnification

11.1 You shall defend, indemnify, and hold harmless Schneider Electric, its Affiliates and each of their respective officers, directors, employees, licensors, contractors, successors and assigns (“Schneider Electric Indemnitees”) from and against any and all claims, actions, suits, demands, proceedings, judgments, liabilities, losses, damages, costs and expenses (including without limitation reasonable attorneys' fees and court costs) brought or claimed against Schneider Electric Indemnitees by any third-party, arising from or related to: (i) any Customer Data or Customer’s Partners Data; (ii) any breach by You of any of Your obligations under these Terms of Use such as but not limited to any unauthorized access to the  Digital Offer and/or any unauthorized use of the Services; (iii) any misuse by You of the Digital Offer and/or the Services such as but not limited to Your use of the  Digital Offer and/or the Services in a manner contrary to the Documentation, the Services Description or any other instruction given to You by Schneider Electric, (iv) any failure by You to comply with any applicable law and/or regulation including without limitation any failure of You to obtain all legally required consents to upload and/or otherwise use Customer Data or Customer’s Partners Data in connection with Your use of the Digital Offer and/or the Services, (v) any use of the Digital Offer and/or the Services in combination with any equipment, software or solution not supplied, not specified or otherwise not approved by Schneider Electric; (vi) any modification or alteration of the Digital Offer and/or the Services by anyone other than Schneider Electric or its subcontractors without the written approval of Schneider Electric; and/or (vii) any claim that any information (including but not limited to Customer Data or Customer’s Partners Data), designs, specifications, instructions, software, service, data, hardware or material furnished or otherwise made available by Customer to Schneider Electric, its Affiliates or subcontractors in connection with or for the purpose of the provision of the Services or otherwise used or uploaded by Customer in connection with the Digital Offer and/or the Services, infringe(s) or misappropriate(s) the Intellectual Property Rights or other right or interest of any third party. The foregoing shall apply regardless of whether such damage is caused by the conduct of Customer and/or its Authorized Users or by the conduct of any third-party using Customer’s User Account.

11.2 Subject to the limitations set forth in Section 10, Schneider Electric will defend and indemnify You against a third party claim that the Digital Offer and/or the Services infringe any Intellectual Property Right enforceable in the jurisdiction where Schneider Electric has its registered office or principal place of business, or misappropriates any trade secret protected under the laws of such jurisdiction (the "Included Jurisdiction") hereinafter the "IP Claim", provided that (i) You notify Schneider Electric of the IP Claim in writing immediately upon Your awareness of such IP Claim; (ii) You give Schneider Electric sole authority and control of the defense of such IP Claim and all related settlement negotiations; and (iii) You provide the assistance, information and authority necessary in order for Schneider Electric to handle the defense and settlement of such IP Claim and perform its obligations under this Section 11.2. If the Digital Offer and/or the Services is held or believed by Schneider Electric to constitute an infringement or misappropriation as per this Section 11.2, then Schneider Electric will have the option, at its expense, to: (i) obtain for You the right to continue using the Digital Offer and/or as applicable, the Services; (ii) replace or modify the Digital Offer and/or, as applicable, the Services to make it/them non-infringing; or (iii) if in Schneider Electric's sole discretion, it is not economically or commercially reasonable to perform either (i) or (ii) above, then Schneider Electric may terminate Your right to access the Digital Offer and to use the Services and refund to You any amount for the Services You would have pre-paid to Schneider Electric or Schneider Electric Affiliate on a pro-rated basis for the corresponding unused portion of the Services Period. This Section 11.2. states Your sole and exclusive remedy against Schneider Electric and Schneider Electric's sole liability for any IP Claim under this Section 11.2.

11.3 To the extent permitted by law, Schneider Electric will have no liability to the Customer under Section 11.2. of these Terms of Use for any IP Claim that arises out of: (i) any Customer Data or Customer’s Partners Data; (ii) any breach by You of any of Your obligations under these Terms of Use such as but not limited to any unauthorized access to the  Digital Offer and/or any unauthorized use of the Services; (iii) any misuse by You of the Digital Offer and/or the Services such as but not limited to Your use of the Digital Offer and/or the Services in a manner contrary to the Documentation, the Services Description or any other instruction given to You by Schneider Electric; (iv) any failure by You to comply with any applicable law and/or regulation including without limitation any failure of You to obtain all legally required consents to upload and/or otherwise use the Customer Data or Customer’s Partners Data in connection with Your use of the Digital Offer and/or the Services; (v) any use of the Digital Offer and/or the Services in combination with any equipment, software or solution not supplied, specified or otherwise approved by Schneider Electric; (vi) any modification or alteration of the Digital Offer and/or the Services by anyone other than Schneider Electric or its subcontractors without the written approval of Schneider Electric; (vii) the access to the Digital Offer and/or the use of the Services by the Customer after notice by Schneider Electric or any appropriate authority to the Customer of the alleged or actual infringement or misappropriation of any third party's Intellectual Property Right by the Digital Offer and/or the Services, or (viii) Customer’s failure to use corrections or enhancements to the Digital Offer and/or the Services made available by Schneider Electric.

12.   Third-party websites and contents

12.1 In case the Digital Offer and/or the Services indicate the web address of or redirect Customer to third parties' websites or third parties' content, products, services or information, or enable Customer to transmit Customer Data or Customer’s Partners Data to third parties' websites, Customer shall bear all risks associated with its access to and use of such third parties' websites and third parties' contents, products, services and information. Schneider Electric does not control and is not responsible for such third parties' websites or any such third parties' content, products, services and information accessible from or provided through such websites. Any access to third parties' websites or any use of third parties' contents, products, services or information through Your access to the Digital Offer and/or Your use of the Services shall be subject to said third parties' own terms of use or other legal document which shall govern the relationship between You and said third parties with respect to such websites, contents products, services and information.

12.2 The Digital Offer includes an automated chatbot functionality referred to herein as “RA Copilot” and offered by a third party. Your access to the Digital Offer includes the ability to interact with RA Copilot. RA Copilot produces responses (“Responses”) to the inquiries You submit to RA Copilot (“Prompts”). Responses are generated by the third party artificial intelligence program. The following terms and conditions define and govern the conditions and rights to access and use RA Copilot. By using RA Copilot, you acknowledge and agree that:

i. RA Copilot is subject to these Terms of Use, including any restrictions or prohibitions therein. As an example, You may not submit information or questions to RA Copilot which contain content that violates applicable law or is otherwise prohibited by these Terms of Use, and You may not intentionally prompt RA Copilot to generate responses which you know (or reasonably should know) would infringe on the rights of others, or be obscene, defamatory, indecent, or unlawful.

ii. Prompts may be retained by Schneider Electric and used to improve the Digital Offer, including improvement of RA Copilot.

iii. In order to allow RA Copilot to provide responses to Prompts about Customer Data, applicable Customer Data is sent to the third party artificial intelligence program, but otherwise is not shared or transferred to any third parties.

iv. All Responses generated by RA Copilot are provided “AS-IS”, and Schneider Electric makes no warranties or representations whatsoever as to the sufficiency or accuracy of the Responses or as to the results to be obtained therefrom and assumes no responsibility arising from any use or misuse of the Responses.

13.   Term, suspension and termination

13.1 The legal agreement formed with Schneider Electric by Customer's acceptance of these Terms of Use is valid for the duration of the applicable Services Period specified in the Order Confirmation, including any renewals thereof, and shall expire upon expiration date of the Services Period in result, as the case may apply, of Customer’s written notice to Schneider Electric or its Affiliate having issued the Order Confirmation of Customer’s decision not to renew the Services Period. Said legal agreement shall also terminate: (a) upon electronic termination by Customer of its subscription to the Services if and when such possibility shall be made available to Customer by Schneider Electric or its relevant Affiliate on the Cloud Platform and/or the web site(s) and/or online portals through which Customer is given access to the Digital Offer and/or the Services, or (b) upon request for termination by Customer or Schneider Electric when Customer or Customer’s Partner acts as Data Controller and Schneider Electric acts as a Data Processor or a sub-processor on their behalf in accordance with Section 7.3 of these Terms of Use, and (i) Data Controller objects to the addition or change of one or more sub-processor(s) that Schneider Electric requires to process Personal Data on Data Controller's behalf, and (ii) Schneider Electric cannot continue to provide the Services without processing of Personal Data by the objected-to sub-processor(s). Termination in accordance with this Section 13.1 shall not trigger liability for either Customer or Schneider Electric and shall not give rise to any refund obligation to Customer of any kind.

13.2 Without prejudice to any other rights and remedies it may have under these Terms of Use, at law or otherwise, Schneider Electric reserves the right to suspend the Services (in whole or in part) at any time with immediate effect by written notice to the Customer if:

i. in Schneider Electric's reasonable judgment, the Digital Offer and/or the Services or any component thereof are about to suffer a threat to security or functionality; or

ii. Schneider Electric has requested but has not received from the Customer any information required to enable Schneider Electric to perform the Services; or

iii. if any sum payable by Customer to Schneider Electric or Schneider Electric Affiliate under the Order Confirmation is in arrears for more than thirty (30) calendar days after the due date; or

iv. the Customer violates the provisions of these Terms of Use and/or any documents expressly incorporated or referred to herein; or

v. the Customer has otherwise breached or failed to comply with any of its obligations under the Order Confirmation and has not cured such breach or failure within a period of thirty (30) calendar days from the date of receipt of a written notice from Schneider Electric or Schneider Electric Affiliate specifying the breach or failure and requiring its remedy.

In any such event of suspension of the Services, the Customer shall remain liable to pay the sums payable to Schneider Electric or Schneider Electric Affiliate(s) under the suspended Services and any resumption of the suspended Services shall be conditional upon the cause giving rise to the suspension of the Services being remedied and the Customer complying with such requirements as Schneider Electric may reasonably specify in its suspension notice to Customer.

Further, if the Customer shall fail to cure the cause giving rise to the suspension or to effect the remedial action required by Schneider Electric within such period of time as Schneider Electric shall specify in its suspension notice, Schneider Electric may, in addition to any other rights and remedies that Schneider Electric or Schneider Electric Affiliate(s) may have, terminate the Services permanently without Schneider Electric’s liability or refund obligation to Customer of any kind; termination of the Services by Schneider Electric shall be achieved by disabling Customer's User Account or by any other technical means that Schneider Electric shall reasonably determine to disable Customer's access to the Services.

13.3 Within thirty (30) calendar days from effective date of expiration or termination of Services in accordance with Sections 13.1 and 13.2 above, it shall be Customer's responsibility to make, as it may elect to do so, a request to Schneider Electric for the extraction and return or transfer to a third-party designated by Customer of whole or part of the Customer Data and Customer’s Partners Data in accordance with and subject to the conditions defined in these Terms of Use, notably the provisions of Section 6.3 which shall identically apply for the purposes of this Section 13.3. Customer acknowledges and agrees that such extraction and return or transfer by Schneider Electric may be subject to prior consent and/or limitations imposed to Schneider Electric by its third-party hosting service providers or third-party licensors.

When such extraction and return or transfer by Schneider Electric are subject to prior consent and/or limitations or specific regulatory requirements or standards imposed to Customer or Customer’s Partner, Customer shall represent that they have obtained all consents and approvals as well as provided to Schneider Electric all information required to proceed with such extraction and return or transfer in compliance with any such requirements or standards. Customer agrees to indemnify and hold Schneider Electric harmless from any third-party claims and any costs and other amounts that Schneider Electric may incur or otherwise be subject to because of Customer's breach of this Section 13.3.

Schneider Electric shall not bear any obligation to ensure that the extracted and returned or transferred Customer Data and Customer’s Partners Data are available to Customer under any specific format. Customer agrees that, after thirty (30) calendar days from the effective date of expiration or termination of Services, Schneider Electric shall be fully and automatically entitled to delete from the Cloud Platform and the Application any Customer Data and Customer’s Partners Data for which Schneider Electric does not receive Customer’s express request for extraction and return or transfer in accordance with the foregoing provisions, and Schneider Electric shall not bear any additional obligation to continue to hold, store, archive, extract and return or transfer any such remaining Customer Data and Customer’s Partners Data. Schneider Electric shall have no liability whatsoever for the deletion of any such remaining Customer Data and Customer’s Partners Data pursuant to these Terms of Use.

13.4 Expiration of the Services Period or termination of the Services shall automatically and immediately cause (i) termination of Customer's right to access and use the Services, and (ii) termination of the legal agreement which was formed with Schneider Electric by Customer's acceptance of these Terms of Use. Without prejudice to the foregoing, expiration or termination of the Services shall not affect any rights or remedies which may have accrued to Customer or Schneider Electric under these Terms of Use, at law or, if applicable, in equity, with respect to the Services provided before said expiration or termination.

13.5. Sub-section 2.5 of Section 2 "User Account", Section 8 “Intellectual Property Rights”, Section 9 “Warranties and Disclaimers of warranty”, Section 10 “Limitations of liability”, Section 11 “Indemnification”, Section 12 "Third-party websites and contents", Section14 “Export Control” and Section 16 "Applicable law and attribution of jurisdiction" of these Terms of Use, shall survive expiration of the Services Period or termination of the Services, in addition to any other provisions of these Terms of Use which by their nature are intended to survive.

14.    Export Control

The Digital Offer, the Services and/or other related information and deliverables, provided by Schneider Electric or Schneider Electric Affiliate in connection with the performance of, respectively, these Terms of Use or any Order Confirmation (hereinafter referred to as “Deliverables”), contain or may contain components and/or technologies from the United States of America (“US”), any member state of the European Union (“EU”) and/or other nations. You acknowledge and agree that the supply, assignment and/or usage of the Deliverables in pursuance of these Terms of Use or any Order Confirmation shall fully comply with related applicable US, EU and other international export control laws and/or regulations.

You are solely responsible for determining the existence and application of any such law or regulation to any proposed export by You or Your representatives of the Services or any service based or otherwise implementing Your right to access and use the Services and for performing any declaration or obtaining any required authorization in relation therewith. Unless applicable export license(s) has been obtained from the relevant authority, You agree that the Deliverables and any service based or otherwise implementing Your right to access and use the Services shall not (i) be re-sold, re-delivered, exported and/or re-exported to any destination and any party (such as but not limited to an individual, group and/or legal entity) restricted by the applicable export control laws and/or regulations; or (ii) be used for those purposes and fields restricted by the applicable export control laws and/or regulations. You also agree that the Deliverables and any service based or otherwise implementing Your right to access and use the Services will not be used either directly or indirectly in (i) any rocket systems or unmanned air vehicles; or (ii) any nuclear weapons delivery systems; or (iii) any design, development, production or use for any weapons which may include but not limited to chemical, biological or nuclear weapons.

In the event the aforementioned legal or regulatory obligations or restrictions are violated by You or any of Your representatives in relation to the export of the Deliverables or any service based or otherwise implementing Your right to access and use the Services, You shall indemnify and hold Schneider Electric, its Affiliates and each of their respective officers, directors, employees, licensors, contractors, successors and assigns harmless from any claims and compensate the same against any damages claimed by any third party (including but not limited to governmental and/or international authorities and/or organizations) against Schneider Electric as the result of any such violation by You or Your representative(s).

If necessary or advisable licenses, authorizations or approvals are not obtained, whether arising from inaction by any relevant government authority or otherwise, or if any such licenses, authorizations or approvals are denied or revoked, or if applicable export control laws and/or regulations would prohibit Schneider Electric or Schneider Electric Affiliate from fulfilling, respectively, these Terms of Use or any Order Confirmation, or would in its judgement otherwise expose Schneider Electric or Schneider Electric Affiliate to a risk of liability under the applicable export control laws and/or regulations if it would fulfill, respectively, these Terms of Use or any Order Confirmation, Schneider Electric and Schneider Electric Affiliate shall be excused from all obligations under, respectively, these Terms of Use and said Order Confirmation.

15.      Miscellaneous

15.1 Your rights or obligations under these Terms of Use may not be sold, sub-licensed, rented, assigned, delegated, transferred or otherwise conveyed by You or Your representatives without Schneider Electric's prior express written consent. Schneider Electric may assign, contribute or otherwise transfer its rights or obligations under these Terms of Use to any of its Affiliates or any third-party that succeeds in or acquires whole or part of the business or operations of Schneider Electric that relate to the Digital Offer and/or the Services at the time of the proposed assignment, contribution or transfer, whether by contract, operation of law, acquisition, merger, consolidation, sale of its outstanding shares or assets, or any other change of control or transaction, without Customer’s prior consent. These Terms of Use will bind and inure to the benefit of Schneider Electric and Customer and their permitted successors and assigns.

15.2 Schneider Electric is an independent contractor. Each of Schneider Electric and the Customer agrees that no partnership, joint venture, or agency relationship exists or is created by these Terms of Use between Schneider Electric and the Customer. Neither Schneider Electric nor the Customer is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of one another.

15.3 No third-party beneficiary relationship is created by these Terms of Use. These Terms of Use shall not be construed to confer any rights or remedies to any third party.

15.4 These Terms of Use constitute the entire agreement between Schneider Electric and the Customer in relation to the Customer's right to access to and use the Digital Offer and the Services, and such legal agreement replaces and supersedes any previous agreement or understanding, whether oral, electronic or written, in relation with the subject matter of these Terms of Use. The Customer agrees to waive to apply any of its own terms of purchase or license or services or other documents which subject matter is equivalent to these Terms of Use’s subject matter.

15.5 Should any provision of these Terms of Use be declared invalid or unenforceable by any competent court, such provision of these Terms of Use shall be amended by Schneider Electric to achieve as nearly as possible its inner intent, and all other provisions of these Terms of Use shall remain valid and in full force and effect.

15.6 All notices sent pursuant to these Terms of Use shall be in writing. Notices of a general purpose related to the Digital Offer and/or the Services by Schneider Electric to all Customers shall be given by means of a general information posted into the Digital Offer. Notices specifically addressed to You shall be given by Schneider Electric, at its election, by electronic mail to the electronic address on record in the information provided by You to create Your User Account or by written communication sent by first class mail or pre-paid post to the address of Your registered office or principal place of business. Any notice by You to Schneider Electric shall be in writing sent by first class mail or pre-paid post to the address of Schneider Electric's registered office or principal place of business and shall include the words: "Attention Schneider Electric Legal Department."

15.7 Schneider Electric's failure to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver by Schneider Electric of any right to enforce these Terms of Use, nor shall any course of conduct between Schneider Electric and the Customer or any third party be deemed to modify any provision of these Terms of Use.

15.8 Headings in these Terms of Use are just for ease of reference and will not affect its interpretation.

15.9 Words expressed in the singular include the plural and vice versa.

15.10 Schneider Electric reserves the right, at its sole discretion, to amend, add or remove any provision to or from these Terms of Use at any time. Any amendment, addition or removal to these Terms of Use will be posted by Schneider Electric in the Digital Offer or on any Schneider Electric’s web page related to the Digital Offer and/or the Services. It is the Customer's responsibility to check these Terms of Use prior to each use of the Digital Offer and, as applicable, the Services. The Customer's continued use of the Digital Offer and, as applicable, the Services after any amendment, addition or removal to these Terms of Use is posted by Schneider Electric, shall be deemed as the Customer's acceptance and agreement to the changed Terms of Use. Changes to these Terms of Use shall not apply with retroactive effect.

15.11 You agree to make all applicable records available for review by Schneider Electric during Your normal business hours so as to permit Schneider Electric (upon reasonable written notice to You) to verify Your compliance with these Terms of Use. Further, You agree that upon the request of Schneider Electric or its authorized representative, You will promptly document and certify in writing to Schneider Electric that Your and Your employees' use of the Digital Offer and the Services comply with these Terms of Use.

Schneider Electric may (upon reasonable written notice) inspect Your use of the Digital Offer and the Services during Your normal business hours to ensure Your compliance with these Terms of Use. If the results of any such review or inspection indicate Your unlicensed or non-compliant use of the Digital Offer or the Services or the underpayment by You of applicable license or other fees (if any) contractually due and payable to Schneider Electric, You shall: (i) immediately pay sufficient fees to cover Your use of the Digital Offer and/or as applicable the Services or such amounts of fees remaining due to Schneider Electric, and (ii) reimburse Schneider Electric for the cost of such review or inspection.

15.12 These Terms of Use are a separate document from Schneider Electric Affiliate’s general terms and conditions of sale applicable to the Order Confirmation. Without prejudice to the foregoing and unless otherwise expressly agreed between Customer and Schneider Electric Affiliate issuing the Order Confirmation, these Terms of Use shall automatically apply without deviation or amendment to the Digital Offer and the Services accessed and used by Customer in pursuance of the Order Confirmation. You agree that in case of conflict between the provisions of these Terms of Use on the one hand and on the other hand, the provisions of Schneider Electric Affiliate’s general terms and conditions of sale applicable to any Order Confirmation, these Terms of Use shall prevail to the sole extent of the point in conflict with the provisions of said general terms and conditions of sale which define or refer to the right to use the Digital Offer, the Intellectual Property Rights, the warranties and the liabilities related to the Digital Offer or the processing of Customer Data, and any other provisions that said general terms and conditions of sale expressly mention as being prevailed by these Terms of Use.

16.    Applicable law & Disputes

16.1 These Terms of Use and the Services shall be governed by and construed in accordance with the laws of the State of Massachusetts, to the exclusion of its conflict of law rules. In any country or, as applicable in any state, from where Customer will access and use the Digital Offer and the Services or where Customer or Schneider Electric Affiliate issuing the Order Confirmation has its registered office or principal place of establishment, public order laws or regulations and/or mandatory laws or regulations overriding the law governing these Terms of Use may impose statutory rights and/or obligations between Customer and Schneider Electric or Schneider Electric Affiliate  in relation with the supply, the access, the use of the Digital Offer, the Services and/or the processing of Customer Data or Customer’s Partners Data. These Terms of Use shall apply to the extent they do not affect or prejudice such statutory rights and obligations.

The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Use.

16.2 Any legal action or proceeding between Schneider Electric and Customer arising out or in connection with these Terms of Use, the Digital Offer and/or and the Services shall be brought exclusively in the federal or state courts having jurisdiction in the State of Massachusetts and Schneider Electric and Customer hereby submit to the personal jurisdiction and venue therein. Schneider Electric and Customer forever waive and agree not to assert any defense that is based upon an argument that the courts mentioned in this paragraph lack personal jurisdiction, that venue is improper or that the forum is inconvenient. SCHNEIDER ELECTRIC AND CUSTOMER HEREBY IRREVOCABLY WAIVE ANY RIGHT EACH MAY HAVE, AND AGREE NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THESE TERMS OF USE AND/OR THE SERVICES.

16.3 Customer acknowledges and accepts that Schneider Electric will be irreparably damaged and damages at law may be an inadequate remedy if Customer breaches any provision of these Terms of Use and such provision is not specifically enforced. Therefore, in the event of a breach or threatened breach by the Customer of these Terms of Use, Schneider Electric shall be entitled, in addition to all other rights or remedies, to (a) an injunction or other injunctive relief restraining such breach, without being required to show any actual damage or to post an injunction or other bond, and/or (b) a decree for specific performance of the applicable provision of these Terms of Use, to the extent permitted by applicable law in the country where Customer or Schneider Electric has its registered office or principal place of business and/or, as relevant in the context, where Customer will use the Digital Offer and the Services, on either federal or state level when applicable.

17.    Principles of Responsibility / Trust Charter

In the event Customer has concerns related to ethics, compliance or Schneider Electric’s Principles of Responsibility / Trust Charter, and/or any potential violations of these policies, Customer is welcome to make use of Schneider Electric’s GreenLine. The GreenLine is Schneider Electric’s global helpline fors external stakeholders. It is a confidential channel through which Customers can ask questions and raise concerns. Reports can be made using the link below: https://secure.ethicspoint.eu/domain/media/en/gui/104677/index.html

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