BUSINESS INTELLIGENCE TERMS AND CONDITIONS
These Business Intelligence Terms and Conditions (the “Agreement”) govern your (“your,” “you,” “customer”) use of certain visualization software (the “Software”) of a certain third party business intelligence software provider (“BI Provider”) and related services made available by Crown Equipment Corporation (“Crown”). By using or accessing the Software, you agree to the following terms and conditions:
1. Description of Software. The Software is a hosted service that provides users with access to analysis and visualizations (“Visualizations”). The Software is owned and operated by BI Provider and may be accessed by you through Crown’s web portal. You acknowledge and agree that BI Provider is not a party to this Agreement and that you shall have no rights under the End User License Agreement (“EULA”), which can be found at https://data.crown.com/BIEULA except as described herein. The Software is described more fully in the then-current version of any supporting product help and technical specifications documentation provided by Crown to you or otherwise made available by BI Provider.
2. Use of Software.
2.1 Crown hereby authorizes you, as a sublicensee of Crown, to use the Software as instructed by Crown and in accordance with any documentation provided to you, subject to your timely payment of the fees to Crown as described in the applicable quotation and your compliance with the terms and conditions of this Agreement.
2.2 Crown will make Visualizations available to your uniquely identified user(s) of the Software who will interact with the Visualizations on your behalf, solely for your internal business purposes (each, a “User”). Crown will procure unique login credentials for each named User, in accordance with the number of User licenses specified in the applicable quotation. Only those Users who are provided unique login credentials may use the Software. You shall be solely responsible for all acts and omissions related to your Users’ use of the Software and the acts and omissions of all of your other employees, contractors or other agents.
2.3 Your User(s) are hereby granted, subject to payment of the fees as described in the applicable quotation and your and your Users’ compliance with the obligations herein, a limited, non-exclusive, non-transferable, non-sublicensable, right during the term of the license specified in the applicable quotation, to use the Software to (a) copy, print or download a de minimus number of Visualizations solely via the functionality provided (“Reproducible Content”) and (b) reproduce, use and adapt such Reproducible Content, in combination with content and materials belonging or licensed to you, in order to distribute, display or otherwise make available such material to your internal end-users for internal business purposes only, provided that in each case any embedded copyright notices are retained and Crown receives appropriate attribution for the Reproducible Content used.
3. Your Obligations.
3.1 You acknowledge that you have read and understand the EULA, as may be updated, modified or amended by BI Provider from time to time, and agree that, as a sublicensee, you undertake and assume all applicable obligations under the EULA, including without limitation: all license restrictions, BI Provider ownership rights, protection of Confidential Information, export compliance, and compliance with the general provisions of the EULA. It is Your obligation to monitor the EULA (the link to the EULA is as referenced in Section 1) from time to time to check for any updates, modifications, or amendments that may have been made to the EULA by the BI Provider or otherwise.
3.2 You are responsible for procuring and maintaining all hardware, system software, devices, networks and telecommunications or other connectivity required to access the Software, and You are responsible for all costs associated therewith.
3.3 You shall: (i) ensure the security of each User’s authentication credentials and (ii) not permit an individual other than the User(s) uniquely associated with particular authentication credentials issued by Crown to use such credentials to gain access to the Software. You shall immediately notify Crown in writing (a) upon any loss, use or unauthorized disclosure, or other compromise of a User’s authentication credentials; or (b) if a User is no longer employed or associated with You such that his or her access to the Visualizations should be terminated.
3.4 You agree that you will not, nor will your User(s), upload or otherwise publish any of your own or their own data onto the Software. All data on the Software must originate from Crown’s InfoLink® and/or FleetStats® platform.
3.5 YOU AND YOUR USERS HAVE NO DIRECT RELATIONSHIP WITH BI PROVIDER, AND BI PROVIDER SHALL HAVE NO WARRANTY, SUPPORT, OR OTHER OBLIGATIONS OR LIABILITY TO YOU AND YOUR USERS WHATSOEVER. YOU AND YOUR USERS WILL DEAL DIRECTLY WITH CROWN.
4.1 Crown may terminate this Agreement at any time upon giving You fifteen (15) days written notice of the same. Crown may also deactivate any authentication credentials for any User or otherwise limit or terminate your or any User’s access to the Software or this Agreement at any time for any reason if BI Provider requires Crown to do so or if Crown’s right to use the Software and/or Crown’s license to the Software otherwise terminates. In the event any of the foregoing occur, Crown will refund you, on a prorated basis, for any prepaid fees made by you.
4.2 You may terminate this Agreement (including all related quotations): (a) if Crown fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) if Crown ceases operation without a successor; or (c) if Crown seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against Crown (and not dismissed within sixty (60) days).
4.3 Unless otherwise specified herein, termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
5. No Warranty. CROWN PROVIDES THE SOFTWARE “AS IS”. CROWN DOES NOT PROVIDE ANY WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE.
6. Indemnification. You shall indemnify, defend, and hold Crown and its shareholders, directors, officers, employees, agents, predecessors, successors, affiliates, and assigns, from and against any claim, damages, liabilities, expenses, and costs, including reasonable attorney’s fees (“Claims”) (including any Claims by BI Provider) resulting from or relating to your and/or your User(s), or your employees, contractors, or other agent’s under your control, use of the Software. You may not settle any such Claim relating to the Software without Crown’s prior written consent, which shall not be unreasonably withheld.
7. Limitation of Liability. IN NO EVENT SHALL CROWN BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR COSTS OF COVER), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. CROWN’S DAMAGES ARISING OUT OF THIS AGREEMENT AND YOUR USE OF THE SOFTWARE SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY YOU TO CROWN HEREUNDER IN THE TWELVE MONTHS PRECEDING THE APPLICABLE CLAIM FOR DAMAGES.
8. Crown Audit Rights. Crown may audit your use of the Software and compliance with this Agreement. If such audits disclose that you or your User(s) have accessed or permitted access to or use of the Software in a manner that is not permitted under this Agreement, then you shall be liable for the reasonable costs of the audit in addition to any other fees, damages and penalties Crown may be entitled to under applicable law.
9. Change in Software Provider. As of the effective date of this Agreement, the BI Provider is Tableau Software, LLC. However, Crown may choose, in its sole discretion, to utilize visualization software from a different provider in the future. In such a case, as a sublicensee, you will be deemed to have agreed to undertake and assume all applicable obligations under the new provider’s EULA, which will be made available at the link referenced in Section 1 of this Agreement. This Agreement will continue in full force and effect with respect to the new provider’s software, unless Crown elects to require you to sign new Business Intelligence Terms and Conditions relating to such software. Crown shall notify You no later than fifteen (15) days before Crown changes providers. Following the expiration of the fifteen (15) day period, Your access to the current BI Provider’s Visualizations will cease.