Crown InfoLink® Master Software as a Service Agreement
This Crown InfoLink Master Software as a Service Agreement is entered into by and between Crown Equipment Corporation (“Crown”) and Customer as defined in the Quotation, which is defined below and incorporated herein by reference. Unless defined herein, capitalized terms have the meanings set forth In Section XI below.
PLEASE READ ALL THE TERMS OF THIS AGREEMENT COMPLETELY AND CAREFULLY BEFORE SIGNING THE QUOTATION AND/OR USING CROWN’S INFOLINK® SOFTWARE AND SERVICES. CUSTOMER’S EXECUTION OF THE QUOTATION CONSTITUTES ITS ACCEPTANCE OF THIS AGREEMENT, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR CUSTOMER’S USE OF THE INFOLINK® SOFTWARE AND SERVICES.
WHEREAS, Customer desires to obtain from Crown a non-exclusive license to use the InfoLink® Application Software and Services identified in the Quotation; and
WHEREAS, Crown desires to provide Customer with access and use of such Software and Services.
NOW, THEREFORE, In consideration of the mutual covenants and promises contained herein, the parties hereto agree as follows:
I. PAYMENT TERMS
A. General. Customer shall pay Crown the Fees for the Software and Services in the amount set forth in the applicable Quotation. Unless otherwise stated in the Quotation, Crown shall invoice monthly for the Software and Services provided under this Agreement. All undisputed invoices shall be due and payable within thirty (30) days after the date of Crown’s invoice. In all cases, the monthly Fees will be paid by Customer to Crown except to the extent of the amount Customer disputes. In the event of an invoicing dispute, Customer shall provide Crown with written notice of the disputed amount and the facts supporting the disputed amount within thirty (30) days after receipt of invoice, and the parties shall work in good faith to promptly resolve the dispute. In the event Customer is renting InfoLink® Modules as part of this Agreement, Customer understands Crown’s invoices are due within thirty (30) days after the date of Crown’s invoice regardless of whether the InfoLink® system is functional, provided that any delay in system implementation caused by Crown will extend the time payment is due through the period of the delayed implementation.
B. Taxes. The Fees stated in the quotation are exclusive of all federal, state, or local sales, use, excise, value added or other applicable taxes, (other than taxes based on Crown’s net income), tariffs or duties, payment of which shall be Customer’s sole responsibility. Any such taxes, tariffs or duties assessed against Customer or required to be collected in connection with this Agreement shall be added as a line item on Crown’s invoice.
C. Monitoring. Crown shall routinely monitor Customer’s Use of the Software. In the event Crown determines Customer has registered more units than Customer has acquired Licenses under the applicable Quotation, Crown shall invoice Customer for the excess usage and Customer shall immediately pay such invoices. Additionally, Customer shall execute additional Quotations to cover such increased usage.
II. LICENSE GRANT; RESTRICTIONS
A. Rights Granted. Crown hereby grants a non-exclusive, non-transferrable, terminable, limited license to Customer for the License Period to Use the Software in a hosted environment and to receive Services as set forth in the Quotation, subject to the terms and conditions of this Agreement. Customer’s Use of the Software and Services is limited to the number of licenses set forth in the applicable Quotation, regardless of the manner in which the Software and Services are provided. Crown owns and reserves all rights, including Intellectual Property Rights, in and to the Software, Services, and Crown’s Confidential Information, and any improvements, modifications or enhancements on any of the foregoing. It is acknowledged that the foregoing contain the valuable proprietary material of Crown or its licensors. Customer agrees that it shall not acquire any rights in the Software, Services, or Crown’s Confidential Information other than as set forth in this Agreement.
B. Restrictions. In addition to other restrictions set forth in this Agreement, Customer may not (a) make the Software, Services, or Crown’s Confidential Information available for use by others in any service bureau or similar arrangement; (b) distribute, sublicense, transfer (by operation of law or otherwise), sell, rent, or lend the Software, Services, or Crown’s Confidential Information to any third party; c) disassemble or reverse engineer the Software or Services; (d) modify the Software or Services or create derivative works based on the foregoing; e) remove or alter any marks or proprietary notices or labels contained in the Software or Services; f) use the Software or Services in any manner that violates the Intellectual Property Rights of Crown or any third party, or that violates international, federal, state, or local law or regulation; g) make any copies of the Software or Services; or h) use the Software or Services in any other way which is inconsistent with the terms of this Agreement.
A. Access. Customer Data will be transferred from the Customer’s facility to Crown either by a cellular access point or through Customer’s existing wireless network connection to the Internet. Customer will access the Software and Customer Data via the Website, which will require a username and password to log-in. Customer’s employees will be granted access to the Website through individual usernames and passwords. Customer will only allow its employees whose duties so require to access and use the Website. Customer will ensure that each employee uses a unique username and password and that such usernames and passwords are not shared. Customer shall promptly notify Crown if any employee’s username or password has been or is suspected of being compromised. If Customer is having problems accessing the Website, Customer shall contact Crown, and Crown will use commercially reasonable efforts to assist Customer in promptly resolving the interruption.
B. Customer Data. All Customer Data is and shall remain the property of Customer. Crown’s then-current InfoLInk® Data Retention Policy (the “Data Retention Policy”) as posted on www.crown.com is incorporated herein by reference herein and specifically applies to Crown’s retention of the Customer Data. If the Data Retention Policy changes in a material way, a notice will be posted on the www.crown.com website, and such changes shall become effective upon being posted. Crown’s right to use Customer Data shall be limited to a) the use reasonably necessary to perform its obligations and b) the de-identification of the Customer Data and aggregation of the de-identified Customer Data with other customers’ de-identified data for the purpose of performing analytics, improving Crown’s products and services, and for the other business needs of Crown. Crown, solely, shall own all work product developed through de-identifying and aggregating Customer Data. Customer shall have no rights in such work product. Crown’s rights under this Section III.B.(b) shall survive termination or expiration of this Agreement.
C. Interruption Credit. If Customer’s access to the Website is interrupted and not restored within two business days after Customer notified Crown in writing of such interruption, Customer shall be entitled to an Interruption Credit, subject to the Exclusions. The Interruption Credit shall be calculated by taking the Fees for the month during which the interruption of two or more business days occurred and multiplying the Fees by the ratio of days access to the Website is interrupted by the total days in the month (Fees x (Days of the Month in which there is an Interruption/Total Days in the Month)). Interruptions that are due to the Exclusions shall not be used in calculating an Interruption Credit. CROWN’S LIABILITY FOR SUCH INTERRUPTION SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ASSOCIATED WITH THE MONTH IN WHICH THE INTERRUPTION OCCURRED. THE INTERRUPTION CREDIT SHALL CONSTITUTE CUSTOMER’S SOLE REMEDY AND CROWN’S SOLE OBLIGATION FOR A SERVICE INTERRUPTION OR OTHER UNAVAILABILITY OF THE WEBSITE.
D. Reimbursement. Customer shall reimburse Crown for any costs, whether internal or external, related to production of electronically stored information pursuant to a subpoena or other order of a court where Crown is not a party to the lawsuit.
E. Cloud Option. Crown may choose to have a third party cloud provider host the data in lieu of hosting the data at Crown. If Crown chooses to use a third party cloud provider, Crown will use commercially reasonable efforts to ensure that the security of such third party cloud provider will be comparable to those security measures used by Crown.
IV. SOFTWARE SUPPORT
A. Software Support. This Agreement includes provision of reasonable amounts of technical support for the Software and Crown’s Hardware. Crown will use commercially reasonable efforts to assist Customer with reported problems relating to the Software and Crown’s Hardware via phone. Customer can contact Crown at (419) 629-3771. Software Support consists of problem analysis, and if necessary, Crown shall use commercially reasonable efforts to correct errors in the Software. In addition, Software Support includes furnishing Customer with Updates that Crown, in its sole discretion, deems to be logical improvements to the then-current version of Software licensed by Customer, and which Crown does not generally separately price or market.
B. Exclusions to Software Support. Software Support does not include support for (i) the firmware contained in the InfoLink® Module unless the module is being rented as part of this Agreement; (ii) the unit to which the InfoLink® Module is attached; (iii) Customer’s Hardware; or (iv) Customer’s wireless network. Crown will not be responsible for solving any problems that are not inherent in the Software or Crown’s Hardware. Crown does not agree to accept or perform requests for enhancements except as provided for in a separate agreement. Problems rooted in Customer’s Hardware or other software programs are not covered by this Agreement. This Agreement does not include onsite Software Support. If onsite support is required to be performed by a Crown authorized representative, additional charges, including but not limited to, hourly labor, travel, meals, lodging, and related expenses shall apply.
C. Software Support Availability and Response. Crown and/or its authorized representative shall respond to requests for Software Support during normal business hours: Monday through Friday, 8:00am to 5:00pm (Eastern Standard Time) with the exception of the following holidays as observed by Crown; New Year’s Day, Good Friday, Memorial Day, the Fourth of July, Labor Day, Thanksgiving and the day after, Christmas Eve, and Christmas. Crown reserves the right to revise the list of holidays without notice. Software Support is not available outside of the hours stated above. Crown reserves the right to bypass the InfoLink® Module while troubleshooting the Software.
D. Patch Releases. Crown may provide and apply Patch Releases and Updates at any time and without notice.
V. REPRESENTATIONS AND WARRANTIES; INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY; DISCLAIMERS
A. Performance; No Viruses. Crown warrants that the Software will substantially perform in accordance with applicable specifications when operated in the intended environment during the License Period. Further, Crown warrants that Crown will use commercially reasonable efforts, in accordance with standard software industry practice, to ensure that the Software does not contain a Trojan horse, virus, or other contaminant, including codes or instructions, which are intended to delete, damage or disable Customer’s computer systems. Customer shall notify Crown for any non-compliance with the warranties in Section V.A. within thirty (30) days after the event giving rise to the breach of warranty occurs. Upon receipt of a timely breach of warranty claim, Crown shall use commercially reasonable efforts to repair or replace any Software that does not conform with the foregoing warranties, and that shall be Customer’s sole and exclusive remedy and Crown’s sole obligation for a breach of the warranties in this Section V.A.
B. Services. Crown warrants that the Services shall be provided in a professional and workmanlike manner. If Customer believes in good faith that Crown has breached this warranty, Customer shall promptly notify Crown of any such breach within thirty (30) days after the occurrence of such breach of warranty, and Crown shall promptly re-perform the Services. The foregoing shall be Customer’s sole and exclusive remedy and Crown’s sole obligation for a breach of warranty hereunder.
C. Compliance with Law. Crown warrants that the Software and Services provided under this Agreement shall comply with all relevant laws.
1. Infringement Indemnification. Subject to Section V.D.2. below, Crown shall indemnify, defend, and hold harmless Customer from any claims made by an unrelated third party that the Software infringes upon the U.S. Intellectual Property Rights of such third party. Customer shall promptly notify Crown of any such claims and agrees to provide reasonable assistance in connection with such claims. Crown agrees not to make any admission of liability or other statement or enter into any settlement or other agreement, the terms of which would bind Customer without Customer’s consent, though Crown can settle a claim involving payment of money damages for which Crown has accepted responsibility without Customer’s consent. Nothing in this provision shall be deemed to prevent Crown from settling any lawsuit or dispute which requires Customer to cease using the affected Software.
2. Non-Applicability of Infringement Indemnification. The indemnity in Sections V.D.1. of this Agreement shall not apply:
a) to any modifications to the Software made by or on behalf of Customer (except for, by, or with the prior written approval of, Crown) to the extent that the infringement claim results from the modification including, but not limited to, modifying, moving, reconfiguring, or similar event, any apparatus that the Software is installed upon;
b) to the extent that Customer’s failure to notify Crown of the infringement claim in a timely manner results in prejudice to Crown;
c) use of the Software other than in accordance with documentation provided by Crown or other than for Customer’s internal use; or
d) the combination of Software with materials not supplied by Crown.
e) to any infringement due to installation of InfoLink Modules being placed on equipment that has not been approved by Crown or installation completed by someone other than a member of Crown’s authorized dealer network.
3. Additional Obligations Regarding Non-Infringement. In the event any infringement claim is made against Customer, or if Crown reasonably believes than an infringement claim is likely to occur, Crown shall, at its own expense and at its own discretion, choose among the following options:
a) make reasonable attempts to procure for Customer the right to continue using the allegedly infringing Software with the same rights and benefits provided in this Agreement;
b) modify or replace the infringing part of the allegedly infringing Software with software of comparable functionality, so as to avoid the infringement or alleged infringement and implement such modified or replacement Software; or
c) cancel Customer’s License for the Software and terminate this Agreement and provide Customer with a pro-rata refund of any prepaid and unused Fees for any cancelled Licenses.
4. This Section IV.D. constitutes Customer’s sole remedy and Crown’s sole obligation for infringement or claim of infringement pursuant to this Agreement.
E. Disclaimer. THE WARRANTIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED WHETHER FOR SOFTWARE OR SERVICES. CROWN EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHILE CROWN HAS BACKUP AND DISASTER RECOVERY PROGRAMS IN PLACE, CROWN DISCLAIMS ALL WARRANTIES WITH REGARD TO ANY DATA LOSS FOR ANY REASON. CROWN WILL NOT BE RESPONSIBLE UNDER THIS AGREEMENT AND DISCLAIMS ALL WARRANTIES IF (I) THE SOFTWARE IS NOT USED AS INTENDED OR (II) THE DEFECT OR LIABILITY IS CAUSED BY CUSTOMER OR THIRD PARTY SOFTWARE (OTHER THAN THIRD PARTY SOFTWARE PROVIDED OR RECOMMENDED BY CROWN). CROWN DOES NOT WARRANT THAT THE SOFTWARE WILL (A) ACHIEVE SPECIFIC RESULTS, (B) OPERATE WITHOUT INTERRUPTION, OR (C) BE ERROR FREE. DUE TO THE CONTINUAL DEVELOPMENT OF TECHNIQUES FOR INTRUDING UPON AND ATTACKING NETWORKS, CROWN DOES NOT WARRANT THAT THE SOFTWARE OR ANY EQUIPMENT, SYSTEM, OR NETWORK ON WHICH THE SOFTWARE IS USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK.
A. Indemnity from Crown to Customer. For Services performed on Customer’s premises, Crown agrees to indemnify and hold harmless Customer from and against any claim, loss, cost, damage, or expense, including reasonable attorney’s fees, resulting from personal injury, including death, or damage to property directly caused by Crown’s (including its employees, agents, and servants) negligence or willful misconduct; except that this agreement to indemnify and hold harmless Customer shall not apply to any claim, loss, cost, damage, or expense arising out of personal injury, death, or damage to property caused by Customer’s (including its employees, agents, and servants) negligence or willful misconduct.
B. Indemnity from Customer to Crown. Customer agrees to indemnify and hold harmless Crown from and against any claim, loss, cost, damage, or expense, including reasonable attorney’s fees, resulting from: (1) personal injury, including death, or damage to property directly caused by Customer’s (including its employees, agents, and servants) negligence or willful misconduct; or (2) Customer’s possession, use, or operation of any piece of equipment which an InfoLink® Module is installed upon; and (3) arising from Customer’s violation of the confidentiality and use restrictions with respect to the Software and Services provided hereunder, except that this agreement to indemnify and hold harmless Crown shall not apply to any claim, loss, cost, damage, or expense arising out of personal injury, death, or damage to property caused by Crown’s (including its employees, agents, and servants) negligence or willful misconduct.
A. Non-Disclosure. Each party will use the other’s Confidential Information only to perform its obligations and exercise its rights hereunder, and for the purposes of and as permitted by, this Agreement. Except as permitted herein, neither party will use the other’s Confidential Information for the benefit of any third party. Each party will maintain the confidentiality of the other’s Confidential Information in the same manner in which it protects its own information of like kind, but in no event will either party take less than reasonable precautions to prevent the unauthorized use or disclosure of the other’s Confidential Information. Each party is permitted to disclose Confidential Information to its employees and authorized subcontractors on a need to know basis only, provided that all such subcontractors have written confidentiality obligations to that party.
1. The confidentiality provisions of this Agreement do not apply to information that is entirely in the public domain; was known to the party prior to access to the information; was received lawfully from a third party through no breach of any obligation of confidentiality owed to the other party; or is created by that party’s employees independently of the other party’s Confidential Information.
2. Nothing in this Agreement will be deemed to prevent either party from disclosing any Confidential Information received hereunder pursuant to any regulatory, self-regulatory, or supervisory authority having appropriate jurisdiction, any applicable law, regulation, or court order; provided that (1) such disclosure will be limited to the minimum acceptable level of disclosure; (2) that such party, unless prohibited, will notify the other party of the imminent disclosure as soon as is practicable and in all event with sufficient prior notice to allow that party to seek a protective order or otherwise object; and (3) that the disclosing party will minimize or prevent such disclosure to the maximum extent allowed under applicable law, regulation, or court order.
3. Each party will promptly inform the other party of any actual or suspected breach of the confidentiality provisions of this Agreement by it (including by its subcontractors and agents) upon becoming aware of such actual or suspected breach and agrees to reasonably cooperate with the other party in the incident response process.
C. Survival. The provisions of this Section VII will survive termination of this Agreement for a period of five (5) years (except that Confidential Information relating to the Software and Services shall continue indefinitely) and will inure to the benefit of each parties and their successors and permitted assigns.
VIII. LIMITATIONS ON LIABILITY
A. Aggregate Liability. Except as otherwise provided, both party’s aggregate liability under this Agreement, whether arising from negligence, breach of contract or otherwise, shall be limited to the immediately preceding twelve (12) months of Fees charged.
B. Inherently Dangerous Use. CROWN SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM UNINTENDED, UNAUTHORIZED, OR INHERENTLY DANGEROUS USE OF EITHER THE SOFTWARE OR THIRD PARTY SOFTWARE LICENSED HEREUNDER OR IN CONNECTION HEREWITH AND CROWN DISCLAIMS ALL LIABILITY TO THE FULLEST EXTENT OF THE LAW POSSIBLE FOR ANY DAMAGES RESULTING THEREFROM.
C. Consequential and Incidental Damages. Neither party shall be liable to the other or any third party, even if they have been advised of the possibility of such damages, for any SPECIAL, INCIDENTIAL, INDIRECT OR CONSEQUENTIAL loss or damages, including without limitation loss of business or profits, loss of good will, work stoppage, data loss, computer failure or malfunction, attorney’s fees, court costs, interest or other exemplary or punitive damages whether arising from negligence, breach of contract or otherwise.
D. Exceptions to Limitations on Liability and Damages. The limitation of liability and damages provisions in this Agreement shall not apply to damages resulting from breaches of Sections I.C. (Monitoring), II. (License Grant; Restrictions), V.D.1 (Infringement Indemnification), VI. (Indemnification), IX.C.1. (Effect of Termination), Fees invoiced and unpaid, Customer damage to or costs associated with repossession of the InfoLink® Modules, gross negligence, or willful misconduct.
IX. TERM AND TERMINATION
A. Term. This Agreement shall begin on the Effective Date and shall remain in full force and effect unless and until it has expired or been terminated pursuant to the terms of this Section IX.
1. Either party shall have the right to terminate this Agreement immediately in the event of a breach by the other party of Sections II (License Grant, Restrictions) or VII (Confidentiality), or if the other party ceases conducting business in the normal course, admits insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization.
2. Other than as set forth in Section IX.B.1. of this Agreement, either party shall have the right to terminate this Agreement immediately if the other party materially breaches any provision of this Agreement and fails to cure within thirty (30) days of written notice.
3. Notwithstanding Crown’s termination right provided herein, if Customer has defaulted on its payment obligations or otherwise breached its obligations under this Agreement, Crown may, in its sole discretion, suspend Customer’s access to the Software and/or Services. Crown will also have the right, in its reasonable determination, to temporarily suspend Customer’s access to the Software and/or Services or a portion thereof, if Crown believes continued Use may result in harm to the Software and/or Services, other Crown customers, or the rights of third parties. During such period of suspension, Customer may have to put the InfoLink® system in bypass if they cannot add new operators to the Software. The remedies specified herein shall be in addition to, and not in lieu of, any other rights or remedies available to Crown at law or in equity.
C. Effect of Termination.
1. Payment upon Termination. Unless otherwise agreed in the Quotation, upon termination of this Agreement Customer shall immediately pay all outstanding amounts due and owing under this Agreement for equipment rented pursuant to Schedule 1, and for Software provided and Services performed prior to the effective date of termination and for any amounts set forth in the Quotation(s) for any remaining portion of the Contract Term, unless termination is by Customer for Crown’s material, uncured breach. In the event of a termination by Customer for Crown’s material, uncured breach, Customer shall be entitled to a pro-rata refund of any prepaid and unused Fees.
2. License and Right on Termination. Customer’s license and right to Use the Software and any of Crown’s Confidential Information shall automatically terminate upon termination of this Agreement. Customer shall destroy or return, as requested by Crown, all copies of Software and/or Crown’s Intellectual Property/Confidential Information within Customer’s possession or control and attest in writing as to the same.
3. Access to Customer Data Following Termination.
a) No Breach of Sections II or VII of the Agreement. Except in the case of breach of Sections II (License Grant; Restrictions) or VII (Confidentiality) of this Agreement by Customer, Crown shall have no obligation to provide Customer with Customer Data beyond the access to Customer Data permitted through the Website. Customer is granted thirty (30) days following termination to access such Customer Data through the Website. During such time period, the terms and conditions of this Agreement continue to apply to Customer’s use of the Software and Services. Crown shall have no obligation to maintain or make available such Customer Data beyond this thirty (30) day period. During this time, Customer may request a copy of its Customer Data in a preferred format of delivery (subject to availability from Crown). For any such requests, Customer will be obligated to pay Crown its applicable fee then in effect for delivery of the Customer Data based on the type of media requested for delivery.
b) Breach of Sections II or VII of the Agreement. In the case of a breach of Sections II (License Grant; Restrictions) or VII (Confidentiality) of this Agreement by Customer, Customer shall have thirty (30) days to request delivery of Customer Data. For any such requests, Customer will be obligated to pay Crown its applicable fee then in effect for delivery of the Customer Data based on the type of media requested for delivery (subject to availability from Crown). Crown will not be obligated to comply with any requests received after the thirty (30) day period set forth in this provision.
A. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provisions will be enforced to the extent it is not in violation of law or is not otherwise unenforceable, and all other provisions and requirements of this Agreement will remain in full force and effect.
B. Force Majeure. Except for Customer’s payment obligations, neither party will be responsible for any delay or failure in performance of its obligations under this Agreement that is caused directly by events, occurrences, or causes beyond its reasonable control, including, without limitation, acts of God, unavailability of third party software, riots, acts of war, acts of terror, earthquakes, fire, and explosions.
C. Waiver. Any waiver of a provision of this Agreement or of a party’s right or remedy under this Agreement must be in writing and signed by the party to be effective. Failure or delay by a party to enforce its rights or remedies under this Agreement at any time will not be deemed a waiver and will not affect the validity of this Agreement or prejudice such party’s right to take subsequent actions except as explicitly provided herein.
D. Relationship of Parties. Crown and Customer are independent parties. Nothing in this Agreement shall be construed as making either party an employee, agent, or legal representative of the other.
E. Notices. All notices under this Agreement must be in writing and sent either by hand delivery; certified mail, return receipt requested; overnight courier; or by facsimile (with a confirming copy by certified mail or overnight courier) and will be effective when received by such party at the location(s) listed in the applicable Quotation and/or the corporate headquarters for said party.
F. No Third Party Beneficiaries. There are no third party beneficiaries of this Agreement.
G. No Assignment. Neither party may assign this Agreement without the other party’s prior express written consent. Any attempted assignment without such consent will be void including, but not limited to, a change in corporate structure via merger, consolidation, acquisition of stock or assets, or other business combination. Crown may utilize subcontractors to perform its obligations hereunder.
H. Survival. All provisions of this Agreement relating to Intellectual Property Rights, confidentiality, ownership, indemnification, limitations of liability, and any other subject that would, by its nature, be deemed to survive termination of this Agreement, will survive the termination of this Agreement.
I. U.S. Government Restricted Rights. The Software and documentation are provided as Commercial Computer Software or restricted computer software. Use, duplication, or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in 48 C.F.R. Section 12.212 or 48 C.F.R. 227.2702, as applicable or successor provisions. The manufacturer is Crown Equipment Corporation, 44 S. Washington St., New Bremen, OH 45869 USA.
J. U.S. Export Restrictions. Customer will fully comply with all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations and Executive Orders (“Export Controls”). Customer warrants that it is not a person, company, or destination restricted or prohibited by Export Controls (“Restricted Person”). Customer will not, directly or indirectly, export, re-export, divert, or transfer the Software, any portion thereof, or any materials, items, or technology relating to Crown’s business or related technical data, or any direct product thereof to any Restricted Person.
K. Entire Agreement and Amendment. This Agreement and the applicable Quotation and any referenced policies represent the entire agreement between the parties with respect to its subject matter and supersedes all prior oral or written representations, agreements, or other communications relating to the subject matter of this Agreement. This Agreement may not be amended or modified except by written agreement signed by each party’s authorized representative. No terms or conditions of either party’s invoice, purchase order, or other administrative document (other than the Quotation) will be effective as a modification of the terms and conditions of this Agreement, regardless of the other party’s failure to object to such form. The Quotation may be signed in counterparts and have the same effect as a single executed document.
L. Third Party Software. Portions of the Software may utilize or include third party software, open source software, and other copyrighted material. Information for such third party software will be available via a link accessible via Use of the Software. Use of such third party software is governed exclusively by its respective terms and not by this Agreement.
N. Exclusions. For users outside of the United States, Canada, or Mexico: Any person who is not a party to this Agreement shall not be entitled to enforce any terms of the same under the Contracts (Rights of Third Parties) Act 1999. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to this Agreement nor to any dispute arising out of this Agreement. The Uniform Computers Information Transactions Act does not apply to this Agreement.
O. Choice of Law; Waiver of Jury Trial; Waiver of Class Action. This Agreement shall be governed under the laws of the State of Ohio (without regard to its conflicts of law provisions). This Agreement has been written in the English language and Customer waives any rights it may have under the law of its country or province to have this Agreement written in any other language. Each party may avail itself of all available equitable and legal remedies in the event of a breach of Sections II and/or VII hereof. Each Party hereby waives its right to a trial by jury in any action or proceeding arising out of this Agreement or the transactions relating to its subject matter.
P. Conflicting Terms. Each Quotation as well as Schedule 1 to this Agreement shall be part of and governed by the terms and conditions of this Agreement. If there is a conflict between this Agreement and any Quotation and/or Schedule 1, the terms of this Agreement shall control unless otherwise expressly provided for herein.
A. “Agreement” means this Master Software as a Service Agreement including, if applicable, Schedule 1 as well as the Quotation.
B. “Confidential Information” means confidential or proprietary information of a party which is disclosed in oral, written, or any other form to the other party. This includes trade secrets, business and financial data, customer information and lists, the Software and any associated documentation, databases, and any passwords/other identification words/codes used to access/use the Software. Confidential Information may also include, but is not limited to, technical know-how, technical specifications, software code, manners of conducting business and operations, strategic business plans, systems, results of testing, consumer information, nonpublic personal information (as defined by the Gramm-Leach Bliley Act), personal information, account information, product information, concepts, and compilations of data. Any information which by its very nature would reasonably be deemed to be Confidential Information shall be treated as Confidential Information.
C. “Contract Term” means the License Period set forth in the applicable Quotation. Customer may have more than one Quotation in place under the terms of this Agreement at any given time. The Contract Term for any Quotation shall start when the Licenses acquired under such Quotation have been made available for Use or would have been available if not for Customer caused delays.
D. “Customer Data” means Customer data that is collected, transferred, or processed by the Software and includes the necessary information to set up Customer’s account.
E. “Effective Date” means the date the Quotation referencing this Master Software as a Service Agreement is executed.
F. “Exclusions” means Customer’s access to the Website is interrupted not due to the fault of Crown, including, without limitation, interruptions caused by internet service providers, an event of force majeure, scheduled maintenance or updates, or outages in power supply.
G. “Fees” means the fees payable by Customer to Crown under this Agreement for access to the Software and Services provided, as specified in the Quotation(s).
H. “Go-Live” means the process of installing the InfoLink® Modules on the equipment, if necessary, ensuring that they are operating in accordance with applicable specifications, and that the Customer Data collected by the InfoLink® Module is being transferred to Crown.
I. “Hardware” means any computer hardware, the database server, application server, network routers, and any other equipment or devices necessary to Use and/or access the Software.
J. “InfoLink® Modules” means the module installed on the Customer’s equipment that is collecting, sending, and receiving Customer Data.
K. “Intellectual Property Rights” means patent of any type, design rights, utility models or other similar invention rights, copyrights, mask work rights, trade secret or confidentiality rights, trademarks, trade names and service marks, and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired, and including any modifications, improvements, or Updates to the foregoing.
L. “License” means the right to Use the Software granted to Customer pursuant to this Agreement.
M. “License Period” means the term of the license granted herein to Customer as set forth in any applicable Quotation.
N. “Project Management” means the steps necessary to implement the InfoLink® Software and Services. These steps include, but are not limited to, (1) gathering information related to Customer’s operators, training, certifications, equipment, and wireless network settings; (2) creating Customer’s account and loading Customer’s Data to an InfoLink® database; (3) installing InfoLink® Modules, when necessary, to Customer’s equipment; and (4) training and assisting with the Go-Live, whether remotely or on Customer’s premises.
O. “Quotation” means the quotation issued by Crown to Customer for the acquisition of Software, Services and InfoLink® modules, as applicable. The Quotation shall include the License Period, applicable quantities, pricing, InfoLink® package selected, reference to Schedule 1 if applicable, Customer location, and any other relevant terms and conditions that may be agreed by the parties in writing. Customer may have more than one Quotation in place under the terms of this Agreement at any given time.
P. “Schedule 1” means the InfoLink® Module Rental and Support Schedule attached hereto and applicable if so stated in the Quotation. Upon expiration of the Quotation or its earlier termination, Customer must return any InfoLink® Modules rented under this Agreement.
Q. “Services” means any services provided by Crown to Customer under this Agreement including, but not limited to, Project Management, Software Support, and hosting the Customer Data.
R. “Software” means the executable code version of the computer programs designated on the applicable Quotation which is accessible from servers operated by or on behalf of Crown in a software-as-a-service (SaaS) model, and any Updates, thereto, and all related documentation for such items.
S. “Software Support” means the terms and conditions related to support of the Software as detailed in Section IV herein.
T. “Updates” means software that enhances functionality that exists in a Customer’s then-current version of the Software for which Customer has a License. Updates do not include software that adds functionality (e.g. upgrades, new products, or products that Crown separately prices or markets) that is separate and independent of functionality that exists in Customer’s then-current version of the Software for which Customer has a License.
U. “Use” means accessing and/or running the Software in accordance with the terms of this Agreement and in the regular course of Customer’s business.
V. “Website” means a website provided by Crown where Customer may access and use the Software and Customer Data.
InfoLink® Module Rental and Support Schedule
I. InfoLink® Module Support. If Customer is renting InfoLink® Modules under this Schedule to the Agreement, is current on its payment of Fees, and except as provided herein to the contrary, Crown shall be responsible for repair or replacement of such InfoLink® Module so as to ensure that the InfoLink® Modules performs in accordance with the applicable documentation. While in Customer’s possession, custody or control, Customer shall use the InfoLink® Modules in a careful manner and in accordance with the applicable documentation, and shall protect the InfoLink® Modules from damage or destruction (including, without limitation, damage or destruction from extreme temperatures or other weather conditions) or theft. Customer shall inform its employees on proper use of the InfoLink® Module. Crown will not be responsible for repair or replacement of any InfoLink® Module that has been damaged, destroyed or broken while in Customer’s possession, custody, or control. In such event, Customer shall pay for the repair or replacement of the damaged or broken InfoLink® Module.
II. Return of the InfoLink® Modules. Upon expiration or the earlier termination of this Agreement, Customer shall return at Customer’s cost all InfoLink® Modules rented hereunder, in the same condition as received, normal wear and tear excepted. In the event Customer has lost any InfoLink® Modules hereunder or they are damaged or broken, Customer shall pay to Crown the full replacement cost of such InfoLink® Modules.
III. Modules Included. A list of InfoLink® Modules, by serial number and Customer location, that Customer is renting from Crown will be set forth in the Go-Live paperwork provided by Crown.
IV. Transfer. Customer may not transfer any rented InfoLink® Modules from one physical address to another or from one piece of equipment to another without the prior written consent of Crown, which consent shall not be unreasonably withheld.
V. Title. Crown retains all right, title and interest in and to the InfoLink® Modules. Customer shall not represent to third parties that it owns the InfoLink® Modules. Customer agrees to execute such additional documents as reasonably required by Crown to confirm Crown’s ownership of the InfoLink® Module.