PLEASE READ ALL THE TERMS OF THIS AGREEMENT COMPLETELY AND CAREFULLY. THE EARLIER OF CUSTOMER’S EXECUTION OF A QUOTATION, ISSUANCE OF A PURCHASE ORDER, OR USE OF THE INFOLINK APPLICATION CONSTITUTES CUSTOMER’S ACCEPTANCE OF THIS AGREEMENT AND UPON ACCEPTANCE CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR CUSTOMER’S USE OF THE INFOLINK APPLICATION AND RELATED SERVICES.
This Crown InfoLink Master Software as a Service Agreement is entered into by and between Crown Equipment Corporation (“Crown”) and the customer identified in a Quotation (“Customer”) as of the Effective Date. Unless defined herein, capitalized terms have the meanings set forth in Section XI below. In consideration of the mutual covenants and promises contained herein, the parties agree as follows:
I. ACCESS RIGHTS; RESTRICTIONS.
A. Access Rights. Crown hereby provides Customer, on a non-exclusive, non-transferrable, terminable, and limited basis, access to and use of the InfoLink Application and agrees to perform the Services, in each case as designated in the applicable Quotation(s), during the Quotation Term, subject to the terms and conditions of this Agreement. Customer’s use of the InfoLink Application is limited to the number of InfoLink Modules set forth in the applicable Quotation(s) or as otherwise contemplated in Section II.C. Crown owns and reserves all rights, including Intellectual Property Rights, in and to the InfoLink Application, Services (including but not limited to the processes used to generate reports, presentations, information, analyses, and/or recommendations in connection with the Services), InfoLink Modules, Crown’s Hardware, and Crown’s Confidential Information, and any Updates, improvements, modifications or enhancements to any of the foregoing. Customer acknowledges and agrees that the foregoing contains the valuable proprietary material of Crown or its licensors, and that it shall not acquire any rights in the foregoing other than as set forth in this Agreement.
B. Restrictions. In addition to other restrictions set forth in this Agreement, Customer will not and will not permit any third party to: (a) make the InfoLink Application, Website, Services, or Crown’s Confidential Information available for use by others, except as expressly permitted in this Agreement; (b) distribute, transfer (by operation of law or otherwise), sell, rent, or lend the InfoLink Application, Services, or Crown’s Confidential Information to any third party; (c) disassemble, decompile or reverse engineer the InfoLink Application or Services; (d) modify, adapt or alter the InfoLink Application, Services, InfoLink Modules, or Crown’s Hardware or create derivative works based on the foregoing; (e) remove or alter any marks or proprietary notices or labels contained in the InfoLink Application, Services, InfoLink Modules, or Crown’s Hardware; (f) use the InfoLink Application, Services, InfoLink Modules, or Crown’s Hardware 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 InfoLink Application or Services; or (h) use the InfoLink Application, Services, InfoLink Modules, or Crown’s Hardware in any other way which is inconsistent with the terms of this Agreement.
II. PAYMENT TERMS
A. General. Customer shall pay Crown the Fees in the amount set forth in the applicable Quotation(s). Unless otherwise stated in the applicable Quotation, Crown shall invoice monthly and all invoices shall be due and payable within thirty (30) days after the date of each invoice. In the event Customer is renting InfoLink® Modules, payment is due regardless of whether the InfoLink Application 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(s) 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 InfoLink Application. In the event Crown determines at any time that Customer has registered more InfoLink Modules than Customer has been invoiced for, 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.
III. HOSTING; USE OF INFOLINK APPLICATION
A. Access to the Website. 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 InfoLink Application 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 it, 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. The following Crown policies shall apply to Customer Data:
1. Crown’s then-current InfoLink® Data Retention Policy (the “Data Retention Policy”) as posted on https://www.crown.com/en-us/infolink-data-retention-policy.html is incorporated herein by reference and specifically applies to Crown’s retention of the Customer Data.
2. Crown’s then-current Data Use Policy (the “Data Use Policy”) as posted on https://www.crown.com/en-us/data-use-policy.html is incorporated herein by reference and specifically applies to Crown’s use of the Customer Data. Crown, solely, shall own all work product developed through de-identifying and aggregating Customer Data, as described and permitted in the Data Use Policy. Customer shall have no rights in such work product.
3. Crown’s then current InfoLink® Privacy Policy (the “Privacy Policy”) as posted on https://www.crown.com/en-us/privacy-policy.html and/or the Website is incorporated herein by reference and specifically applies to Crown’s use of personal data.
If the Data Retention Policy, Data Use Policy and/or Privacy Policy change in a material way, a notice will be posted on the crown.com website and/or on the Website, and such changes shall become effective upon being posted.
Crown’s rights under this Section III.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. Third-Party Cloud Hosting Option. Crown may choose to have a third-party cloud provider host the Customer Data. If Crown chooses to use a third-party cloud provider, Crown will use commercially reasonable efforts to ensure that the security of any such third-party cloud provider hosting the Customer Data will be comparable to those security measures used by Crown.
IV. INFOLINK APPLICATION SUPPORT
A. InfoLink Application Support. This Agreement includes provision of reasonable amounts of technical support for the InfoLink Application and Crown’s Hardware. Crown will use commercially reasonable efforts to assist Customer with reported problems relating to the InfoLink Application and Crown’s Hardware via phone. Customer can contact Crown at (419) 629-3771. InfoLink Application Support consists of problem analysis, and if necessary, Crown shall use commercially reasonable efforts to correct errors in the InfoLink Application. In addition, InfoLink Application Support includes furnishing Customer with Updates at any time without notice that Crown, in its sole discretion, deems to be logical improvements to the then-current version of InfoLink Application that supports the access to the platform by the Customer, and which Crown does not generally separately price or market. InfoLink Application Support may require, and Crown reserves the right, to bypass the InfoLink Module while troubleshooting the InfoLink Application.
B. Exclusions to InfoLink Application Support. InfoLink Application 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 InfoLink Application 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 InfoLink Application 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. InfoLink Application Support Availability and Response. Crown and/or its authorized representative shall respond to requests for InfoLink Application Support during Crown’s normal eastern time zone business hours with the exception of holidays observed by Crown.
V. REPRESENTATIONS AND WARRANTIES; INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY; DISCLAIMERS
A. Performance; No Viruses. Crown warrants that the InfoLink Application will substantially perform in accordance with applicable specifications when operated in the intended environment during the Contract Term. Further, Crown warrants that Crown will use commercially reasonable efforts, in accordance with standard software industry practice, to ensure that the InfoLink Application 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 foregoing warranties 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 InfoLink Application 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 InfoLink Application provided under this Agreement shall comply with all applicable laws. Customer (i) shall comply with all applicable laws; (ii) where required, shall install, configure, and maintain the InfoLink Modules and/or Hardware pursuant to Crown’s instructions; (iii) acknowledges the provision of the Services or use of the InfoLink Application does not alleviate or replace any such obligations; and (iv) acknowledges Crown shall not be liable for Customer’s failure to comply with the foregoing. Each party agrees to timely and reasonably cooperate with the other party and/or any applicable governmental authorities in the event any such authority makes an inquiry or investigates a party’s obligations related to this Agreement.
D. Non-Infringement.
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 InfoLink Application 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 Section shall be deemed to prevent Crown from settling any lawsuit or dispute which requires Customer to cease using the affected InfoLink Application.
2. Non-Applicability of Infringement Indemnification. The indemnity in Section V.D.1. of this Agreement shall not apply:
a) to any modifications to the InfoLink Application made by or on behalf of Customer (except with Crown’s written approval) to the extent that the infringement claim results from the modification including, but not limited to, modifying, moving, reconfiguring, or any similar activity or event, any apparatus that the InfoLink Application 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 InfoLink Application other than in accordance with documentation provided by Crown or other than for Customer’s internal use;
d) the combination of the InfoLink Application with materials not supplied by Crown; or
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 InfoLink Application with the same rights and benefits provided in this Agreement;
b) modify or replace the infringing part of the allegedly infringing InfoLink Application with software of comparable functionality, so as to avoid the infringement or alleged infringement and implement such modified or replacement InfoLink Application; or
c) cancel Customer’s access to the InfoLink Application, terminate this Agreement and provide Customer with a pro-rata refund of any prepaid and unused Fees as determined in Crown’s sole discretion.
4. This Section V.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 THE INFOLINK APPLICATION 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 LIABILITIES AND WARRANTIES FOR ANY FAILURE TO INFORM CUSTOMER OF ANY PARTICULAR FINDING OR WHERE APPLICABLE, ANY PROPOSED RECOMMENDATION, OR IF (I) THE INFOLINK APPLICATION 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 INFOLINK APPLICATION OR SERVICES 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 INFOLINK APPLICATION OR ANY EQUIPMENT, SYSTEM, OR NETWORK ON WHICH THE INFOLINK APPLICATION IS USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK.
VI. INDEMNIFICATION. Customer agrees to indemnify, defend, and hold harmless Crown from and against any claim, loss, cost, damage, or expense, including reasonable attorneys’ 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; (2) Customer’s (including its employees, agents, and servants) possession, use, or operation of any piece of equipment which an InfoLink Module is installed upon; and (3) arising from Customer’s breach of Sections I, V.C., or VII, except that this agreement to indemnify, defend, 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.
VII. CONFIDENTIALITY
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.
B. Exceptions.
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, or pursuant to any applicable law, regulation, or court order; provided that, in all cases (1) such disclosure will be limited to the minimum acceptable level of disclosure; (2) such party, unless prohibited, will notify the other party of the imminent disclosure as soon as is practicable and in all events with sufficient prior notice to allow that party to seek a protective order or otherwise object; and (3) 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 InfoLink Application shall continue indefinitely) and will inure to the benefit of each party and their successors and permitted assigns.
VIII. LIMITATIONS ON LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW FOR ALL CLAIMS, LOSSES, COSTS, DAMAGES, OR ANY EXPENSES (COLLECTIVELY, “CLAIMS”) WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, OR OTHERWISE AND WHETHER OR NOT SUCH CLAIMS WERE FORESEEABLE: (A) CROWN SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, LIQUIDATED, OR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS OR PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ATTORNEYS’ FEES, COURT COSTS, INTEREST, OR THE LIKE; (B) CROWN SHALL NOT BE LIABLE FOR ANY CLAIMS ARISING FROM THE UNINTENDED, UNAUTHORIZED, OR INHERENTLY DANGEROUS USE OF THE INFOLINK APPLICATION, SERVICES, OR EQUIPMENT AN INFOLINK MODULE IS INSTALLED UPON; OR (C) EXCEPT WITH RESPECT TO CROWN’S INDEMNIFICATION OBLIGATIONS FOR INTELLECTUAL PROPERTY INFRINGEMENT UNDER SECTION V.D, CROWN’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES RECEIVED FROM CUSTOMER IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THERE SHALL BE ONLY ONE AGGREGATE LIABILITY CAP UNDER THIS AGREEMENT EVEN IF THERE ARE MULTIPLE CLAIMS; EACH CLAIM SHALL REDUCE THE AMOUNT AVAILABLE IN THE AGGREGATE LIABILITY CAP.
IX. TERM AND TERMINATION
A. Contract Term. This Agreement shall begin on the Effective Date and shall remain in full force and effect unless and until it has been terminated pursuant to the terms of this Section IX. Notwithstanding the foregoing, for as long as any Quotation is in effect at the time of termination of this Agreement, this Agreement shall continue in effect with respect to such Quotation(s). Termination of this Agreement shall not operate to terminate any Quotation (unless such Quotation is also terminated in accordance with the terms hereof), and termination of any Quotation shall not be deemed to terminate this Agreement or any other Quotation (unless terminated in accordance with their terms). Each Quotation Term shall automatically renew on a month-to-month basis unless and until it has been terminated upon written notice to the non-terminating party.
B. Termination.
1. Either party shall have the right to terminate this Agreement and/or any or all Quotation(s) immediately in the event of a breach by the other party of Sections I.B. or VII, 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 the applicable Quotation(s) if the other party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days of written notice from the terminating party. For clarity, the effect of a breach and the corresponding termination rights shall be assessed on a Quotation-by-Quotation basis. A breach that impacts a Quotation does not give the party a right to terminate other Quotations that are not directly impacted by the breach.
3. Notwithstanding Crown’s termination rights provided herein, if Customer has breached its obligations under this Agreement, Crown may, in its sole discretion, suspend Customer’s access to the InfoLink Application and/or Services. Further, Crown will have the right, in its reasonable determination, to temporarily suspend Customer’s access to the InfoLink Application and/or Services or a portion thereof, if Crown believes continued use may result in harm to the InfoLink Application and/or Services, other Crown customers, or the rights of third parties. During such period of suspension, the InfoLink Application may need to be put in bypass. 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. Except in the case where termination is made by Customer in accordance with Section IX.B.1 or IX.B.2, upon termination of this Agreement and/or any or all Quotation(s), Customer shall immediately pay: (a) all outstanding amounts due and owing under this Agreement or the applicable Quotations and (b) all amounts set forth in the applicable Quotation(s) for any remaining portion of the applicable Quotation Term(s). In the event of a termination by Customer in accordance with Section IX.B.1 or IX.B.2, Customer shall be entitled to a pro-rata refund of any prepaid and unused Fees under the applicable Quotation(s).
2. Right to Access and Use on Termination. Upon termination, Customer’s right to access and use of the InfoLink Application and any of Crown’s Confidential Information shall automatically terminate with respect to the scope of such termination. Customer shall destroy or return, as requested by Crown, all copies of the InfoLink Application (if applicable) 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. Within thirty (30) days of termination, Customer may, by written notice to Crown, request access to the Website to retrieve Customer Data. If Customer makes such request, Crown will provide such access at no cost to Customer for at least fourteen (14) days for the sole purpose of retrieving Customer Data. The terms and conditions of this Agreement continue to apply during such access period. Any additional requests from Customer within such thirty (30) days of termination, including but not limited to, requests for copies of or access to the Customer Data, may be subject to additional Fees. If Customer fails to make any such request or Customer fails to timely access the Customer Data as described in this Section, Crown will not be obligated to provide Customer any Customer Data and/or access to the Website.
X. GENERAL
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, pandemic, epidemic, or other public health crisis, unavailability of third-party software, cyber security events, denial of service (DoS) events, or any event that renders the Website unavailable, supply chain issues, labor disruptions, riots, acts of war, acts of terror, earthquakes, fire, or other natural disasters, or 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; 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. Customer may not assign this Agreement without Crown’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. For clarity, Crown may utilize its affiliates, authorized dealer network, or other 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 their nature, be deemed to survive termination of this Agreement, will survive the termination of this Agreement.
I. U.S. Government Restricted Rights. The InfoLink Application 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 InfoLink Application, 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, the applicable Quotation(s), Schedule 1, and any referenced documents, agreements, or policies herein represent the entire agreement between the parties with respect to its subject matter and supersede 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 Customer’s, including but not limited to those set forth in a purchase order, or any other document, will be effective and are hereby disclaimed. This Agreement or any Quotation may be signed in counterparts and have the same effect as a single executed document.
L. Third-Party Software. Portions of the InfoLink Application 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 InfoLink Application. Use of such third-party software is governed exclusively by its respective terms and not by this Agreement.
M. 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.
N. 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 I.B and/or VII.
O. Conflicting Terms. If there is a conflict between this Agreement and any Quotation and/or Schedule 1, the terms of the Quotation shall control unless otherwise expressly provided for therein.
XI. DEFINITIONS
A. “Agreement” means this Crown InfoLink Master Software as a Service Agreement.
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 InfoLink Application and any associated documentation, databases, and any passwords/other identification words/codes used to access/use the InfoLink Application. 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 term in which this Agreement remains in force as described in Section IX.A. above.
D. “Customer Data” means Customer data, including without limitation, personal data, that is collected, transferred, or processed to, from, or by the InfoLink Application and includes the necessary information to set up Customer’s account.
E. “Effective Date” means the date the initial Quotation is accepted by Crown. For clarity, Customer’s issuance of a purchase order shall merely constitute acknowledgment of the terms and conditions of the applicable Quotation(s) and this Agreement, subject to Crown’s final acceptance.
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, Customer’s Hardware, an event of force majeure, scheduled maintenance or Updates, or outages in power supply.
G. “Fees” means without limitation, the fees set forth in the Quotation(s), including the monthly subscription fees payable by Customer to Crown under this Agreement for access to the InfoLink Application, fees for Services, and fees for the InfoLink Modules, as specified in the Quotation(s).
H. “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 InfoLink Application.
I. “InfoLink Application” means the Infolink software-as-a-service application (SaaS), including without limitation any third-party software incorporated therein to use in connection with the InfoLink SaaS, and any Updates thereto, and all related documentation for such items.
J. “InfoLink Application Support” means the support of the InfoLink Application as detailed in Section IV herein.
K. “InfoLink Modules” means the module installed on the Customer’s equipment that is collecting, sending, and receiving Customer Data.
L. “Intellectual Property Rights” means patents 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.
M. “Project Management” means the steps necessary to implement the InfoLink Application. 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; and (3) training and assisting with the implementation, deployment, and use of the InfoLink Application, whether remotely or on Customer’s premises.
N. “Quotation” means Crown’s quotation(s) for access and use of the InfoLink Application, and the acquisition of Services and InfoLink Modules, as applicable during the Quotation Term and any other relevant terms and conditions that may be agreed by the parties. Customer may have more than one Quotation in place under the terms of this Agreement at any given time. All Quotations are invitatio ad offerendum and subject to Crown’s final acceptance.
O. “Quotation Term” means the term length as set forth in any applicable Quotation. The Quotation Term for any Quotation shall start thirty days after receipt of hardware by Customer.
P. “Schedule 1” means the InfoLink Module Rental and Support Schedule attached hereto and applicable if rentals are contemplated in a Quotation(s). Upon expiration or termination of any applicable Quotation, Customer must return any InfoLink Modules rented thereunder.
Q. “Services” means any services related to the InfoLink Application provided by Crown to Customer under this Agreement rendered by Crown using Crown’s facilities and equipment in the United States, including, but not limited to, Project Management, InfoLink Application Support, and hosting the Customer Data. Customer may engage Crown to provide these, or any additional related or ancillary services, described in any applicable Quotation for the Fees set forth therein.
R. “Updates” means software that enhances, patches, or repairs functionality that exists in Customer’s then-current version of the InfoLink Application. 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 InfoLink Application for which Customer has access.
S. “Website” means the website provided by Crown where Customer may access and use the InfoLink Application and Customer Data.
Schedule 1
InfoLink Module Rental and Support
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 Modules so as to ensure that the InfoLink Modules perform 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 or any Quotation, Customer shall return at Customer’s cost all InfoLink Modules rented thereunder, in the same condition as received, normal wear and tear excepted. In the event Customer has lost any InfoLink Modules 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 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 Modules.
VI. Payment: In the event Customer is renting InfoLink® Modules, payment is due regardless of whether the InfoLink Application is functional.
Updated 01/06/2024