BERNTSEN INTERNATIONAL INC.
INFRAMARKER END USER LICENSE AGREEMENT
This is an agreement between you (“Customer”) and Berntsen International, Inc. (“Berntsen”) and governs Customer’s use of Berntsen’s InfraMarker Solution. Customer agrees to be bound by the terms of this agreement (the “Agreement”).
- Scope of this Agreement. This Agreement governs Customer’s initial purchase and any future purchases that reference this Agreement. This Agreement governs (a) Berntsen’s InfraMarker marking tags, read-writer equipment, and other equipment that may be purchased from Berntsen (“Equipment”); (b) Berntsen’s InfraMarker (“Software”); (c) hosted or cloud based solutions (“Hosted Services”) and (d) any technical, educational, or product support provided by Berntsen (“Support”) (collectively Equipment, Software, Hosted Services, and Support constitute “Product”). Unless otherwise specified, terms of this Agreement apply to all Products.
- Orders. Berntsen’s Product ordering documentation (“Order”) will specify Customer’s authorized scope of use for the Product which may include (a) number and type of tags; (b) number and type of authorized users; (c) storage or capacity for Hosted Services; (d) numbers of licenses, copies, or instances for Software; or (e) hours or other units of Support.
- Fees. In addition to the price(s) specified in an Order, the amount of any present or future tax applicable to the sale, purchase, manufacture, delivery, use, handling, or consumption of products or services hereunder, or any cost associated with the transfer of monetary funds shall be paid by Customer.
- Remittances shall be as directed by Berntsen.
- Customer agrees that payment to a bank or depository designated by Berntsen shall not constitute payment in full or a final settlement of Customer’s account until accepted as such by Berntsen notwithstanding any language to the contrary on Customer’s check, draft, or other order.
- If Customer fails to make any payment in accordance with the terms of this Agreement or any Order, Berntsen may at its sole option defer or decline to make any shipment or suspend any Software license, Hosted Service, or Support hereunder except upon receipt of security satisfactory to Berntsen or cash payment in advance of delivery, or Berntsen may terminate this Agreement, in which event all remaining unpaid amounts arising from any Order will immediately become due and payable.
- In making payments, Customer acknowledges that it is not relying on future availability of any Products beyond the current license term or subscription term or any Product upgrades or feature enhancements.
- A service charge of eighteen percent (18%) per annum is applicable to unpaid invoices or Orders from the due dates thereof. Customer agrees to pay Berntsen’s cost of collection, if any, on overdue payments, including reasonable attorney’s fees.
- Software Terms. The Software is licensed, not sold. Berntsen grants Customer a nonexclusive, non-sublicenseable, nontransferable right to use the Software during the applicable license term detailed in the Order so long as Customer complies with the terms of this Agreement. Customer’s license will end upon any termination of this Agreement even if no expiration date is specified in the Order.
- Customer acknowledges that: (a) as between Berntsen and Customer, all Intellectual Property Rights in the Software are owned by Berntsen and its licensors (if any); (b) this Agreement in no way conveys any right or interest in any of such Intellectual Property Rights in and to the Software other than the limited right and license granted above; (c) the Software contains works and materials protected by the patent and copyright laws of the United States; and (d) Berntsen asserts that the Software embodies valuable confidential and secret information of Berntsen and/or its licensors (if any), the development of which required the expenditure of significant time and resources. For purposes of this paragraph, “Intellectual Property Rights” means any and all now known or hereafter existing rights associated with intangible property, including without limitation registered and unregistered United States and foreign copyrights, trade dress, trade names, corporate names, logos, inventions, patents, patent applications, software, know-how, and all other forms of intellectual property and proprietary rights of every kind and nature throughout the universe and however designated.
- Customer shall not copy, alter, reverse engineer, disassemble, decompile, or translate the Software, except as otherwise expressly permitted by law. Customer shall use the Software only in accordance with its intended purpose and, specifically, Customer shall not use the Software in a way that damages the Software or transmits harmful software to Berntsen. Customer shall allow the Software to be used only by its employees and authorized agents, shall record the identity of all users, and shall assure that the Software is used by them only in accordance with this Agreement.
- Unless otherwise specified in an Order, for each Software license that Customer purchases, Customer may install one production instance of the Software on systems owned or operated by Customer. The Customer may use the Software to select and grant permission to any holder of an InfraMarker License to perform InfraMarker related asset identification and location work input into and retrieve data from InfraMarker enabled Tags; add photo, video, voice, and text comments related to the location and basic identifying characteristics of each infrastructure resource for which the Software is used; and edit the geo-position of the asset accurately.
- Hosted Services. Subject to the terms and conditions of this Agreement, Berntsen grants Customer a non-exclusive right to access and use the Hosted Services during the applicable Subscription Term (as defined in the Order) in accordance with this Agreement. Customer acknowledges that the Hosted Services are online, subscription-based products and that Berntsen may make changes to the Hosted Services from time to time.
- Subscription Terms and Renewals. Hosted Services are provided on a subscription basis for a set term specified in an Order. Except as otherwise specified in the Order, all subscriptions will automatically renew for additional one year periods (and Customer will be charged at the then-current rates) unless Customer cancels the subscription by written notice thirty (30) days prior to the end of the current term. If Customer does not renew a subscription, the subscription will terminate at the end of the then-current subscription, but Customer will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
- Customer must ensure that all authorized users keep their user IDs and passwords for the Hosted Services strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. Customer is responsible for any and all actions taken using Customer accounts and passwords, and Customer agrees to immediately notify Berntsen of any unauthorized use of which Customer becomes aware.
- Applicable storage limits associated with a particular Hosted Service are as defined in the Order.
- Customer must ensure that Customer use of Customer Data and Hosted Services is at all times compliant with all applicable local, state, federal, and international laws and regulations. “Customer Data” means any data, content, code, video, images, or other materials of any type that Customer uploads, submits or otherwise transmits to or through Hosted Services. Customer represents and warrants that: (i) Customer has obtained all necessary rights, releases, and permissions to upload its data to the Hosted Services and to provide its data to Berntsen and to grant the rights granted to Berntsen in this Agreement and (ii) data and its transfer to and use by Berntsen as authorized by Customer under this Agreement does not violate any laws or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection, and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Berntsen assumes no responsibility or liability for Customer Data, and Customer shall be solely responsible for Customer’s data and the consequences of using, disclosing, storing, or transmitting it. Customer shall use the Hosted Services only in accordance with its intended purpose and, specifically, Customer shall not use the Hosted Services in a way that damages the Hosted Services or transmits harmful software to or through the Hosted Service.
- Sensitive Data. Customer will not submit to the Hosted Services (or use the Hosted Services to collect any personally identifiable information, except as necessary for the establishment of its own account with Berntsen, or any other information subject to regulation or protection under specific laws. For the purposes of this paragraph, the location of geolocation of Equipment is not personally identifiable information.
- Indemnity for Customer Data. Customer will defend, indemnify, and hold harmless Berntsen from and against any loss, cost, liability, or damage, including attorneys’ fees, for which Berntsen becomes liable arising from or relating to any claim relating to Customer’s data, including but not limited to any claim brought by a third party alleging that Customer use of the Hosted Services in breach of this Agreement infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Berntsen at Customer expense.
- Removals and Suspension. Berntsen has no obligation to monitor any content uploaded to the Hosted Services. Nonetheless, if Berntsen deems such action necessary based on Customer’s violation of this Agreement or in response to takedown requests, then Berntsen may (1) remove Customer Data from the Hosted Services or (2) suspend Customer access to the Hosted Services. Berntsen will generally alert Customer when Berntsen takes such action and give Customer a reasonable opportunity to cure Customer breach, but if Berntsen determines that Customer actions endanger the operation of the Hosted Service or other users, Berntsen may suspend Customer access immediately without notice. Customer will continue to be charged for the Hosted Service during any suspension period. Berntsen has no liability to Customer for removing or deleting Customer’s data from or suspending Customer access to any Hosted Services as described in this section.
- Deletion at End of Subscription Term. Berntsen may remove or delete Customer’s data after sixty (60) days following the termination of Customer Subscription Term.
- Support and Maintenance. Support, including any on site or remote start up, training, and maintenance will be provided during the support term specified in the Order provided that Customer is in compliance with all terms and conditions of this Agreement. Berntsen’s support practices may be modified by Berntsen from time to time to reflect process improvements or changing practices. The terms and conditions for Support Services are set forth at https://www.inframarker.com/TermsConditions and are hereby incorporated by reference in this Agreement. Support and maintenance for Software includes access to New Releases, if and when available. Customer may use any New Releases that Berntsen provides to Customer during a valid Support term in the same way that Customer uses Software, and New Releases are included in the definition of Software in that case. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that Berntsen makes generally commercially available. Berntsen will provide training services purchased in an Order in accordance with the Order. Berntsen shall retain all right, title, and interest in and to any materials, deliverables, modifications, derivative works, or developments related to any training services provided (“Training Materials”). Any Training Materials provided to Customer may be used only in connection with the Products subject to the same use restrictions for the Products. Support is further conditioned upon the following: (i) Customer making reasonable efforts to resolve the problem after communication with Berntsen; (ii) Customer’s provision to Berntsen of sufficient information and resources to replicate the issue as applicable; (iii) Customer’s provision to Berntsen of sufficient information and resources to correct the problem; and (iv) Customer’s procurement and installation and maintenance of all hardware and software necessary to access the InfraMarker Solution. Customer shall provide reasonable access to appropriate Customer personnel during Berntsen’s response related to the Support. Berntsen shall have no obligation to provide Support to the extent any problem with the InfraMarker Products is due to (i) the InfraMarker Products being altered, damaged or modified by Customer or Customer’s agents without the consent of Berntsen; (ii) an InfraMarker Product that is not the then-current release; (iii) Customer’s negligence, hardware malfunction, unsupported hardware or operating system versions, or other causes beyond the reasonable control of Berntsen; (iv) a failure that cannot be reproduced by Berntsen technicians; (or (v) Customer using hardware or software that is not supported by Berntsen.
- Data. For purposes of this Section, “Customer Confidential Data” means Customer Data that 1) could be used to identify the Customer or 2) refers to a particular item of infrastructure that is identifiable as belonging to Customer. Berntsen’s rights in Customer Data that comes into Berntsen’s possession as a result of the Customer’s use of the Software or Hosted Services shall be complete and without exception and may be used by Berntsen for any lawful purpose including identifying geolocation of tags and the public name of a tag. Berntsen agrees not to disclose Customer Confidential Data. Unless otherwise agreed in writing by Customer and Berntsen, Geo-Location Data attached to a resource shall be maintained by the Customer in a format available to the public in read-only unencrypted format accessible to standard readers similar to the Equipment purchased by Customer. Subject to the terms of this Agreement, Customer hereby grants to Berntsen a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Customer Data, and (b) for Hosted Services that enable Customer to share Customer Data or interact with other people, to distribute and publicly perform and display Customer Data as Customer (or Customer Authorized Users) directs or enables through the Hosted Service. Berntsen may also access Customer account data in order to respond to Customer support requests.
- Privacy. Berntsen may from time to time implement password protection, anti-copying subroutines, or other anti-piracy or security measures for the Software and Hosted Services, and Customer shall cooperate with any such reasonable measures. “Confidential Information” means material, data, systems, and other information concerning the Intellectual Property Rights of Berntsen and its licensor(s) (if any) that may not be accessible or known to the general public, including without limitation any information concerning technical details of the operation of the Software. Customer agrees (i) to maintain all Confidential Information in confidence and agrees not to disclose or otherwise make available such Confidential Information to any third party without the prior written permission of Berntsen or its licensor(s) (if any); and (ii) to use the Confidential Information only for purposes outlined in this Agreement.
- Security. Berntsen implements security procedures to help protect Customer Data from security attacks. However, Customer understands that use of the Products necessarily involves transmission of Customer Data over networks that are not owned, operated or controlled by Berntsen, and Berntsen is not responsible for any of Customer Data lost, altered, intercepted or stored across such networks. Berntsen cannot guarantee that security procedures will be error-free, that transmissions of Customer Data will always be secure or that unauthorized third parties will never be able to defeat security measures. As such Berntsen makes no representations or warranties regarding the security of Customer Data.
- Ownership and Feedback. Products, other than Equipment, are made available on a limited license or access basis, and no ownership right is conveyed to Customer, irrespective of the use of terms such as “purchase” or “sale”. Berntsen and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products, their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Berntsen, including without limitation as they may incorporate Feedback (“Berntsen Technology”). From time to time, Customer may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Berntsen, including sharing customer modification or in the course of receiving Support and Maintenance (“Feedback”). Berntsen may in connection with any of its products or services freely use, copy, disclose, license, distribute, and exploit any Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise. No Feedback will be considered Customer’s proprietary information, and nothing in this Agreement limits Berntsen's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
- No Warranty. Berntsen warrants that all products sold hereunder shall be free from defects in materials and workmanship and shall conform to the description and specifications on the face product invoice or Order. Berntsen MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING THAT OF MERCHANT ABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, EXCEPT FOR APPLICABLE PRODUCT WARRANTIES PUBLISHED AND SO DESIGNATED BY Berntsen. Customer shall notify Berntsen immediately of any defective product or products not meeting specifications. Berntsen will be given a reasonable opportunity to inspect the goods prior to return. No product may be returned by Customer until after receipt by Customer of written shipping instructions. CUSTOMER’S REMEDY AND Berntsen’S LIABILITY SHALL BE LIMITED SOLELY TO REPLACEMENT AT ORIGINAL POINT OF DELIVERY, REPAIR OF, OR REFUNDING THE PURCHASE PRICE OF ANY DEFECTIVE PRODUCT OR PRODUCTS NOT MEETING SPECIFICATIONS, AT Berntsen’S OPTION, LESS ANY SHIPPING, HANDLING, OR WIRE TRANSFER FEES. Berntsen SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES, OR EXPENSES FOR BREACH OF WARRANTY OR FOR NEGLIGENCE, ANY COURSE OF DEALING BETWEEN THE PARTIES TO THE CONTRARY NOTWITHSTANDING. ANY CLAIM FOR BREACH OF WARRANTY OR NEGLIGENCE, FAILURE OR DELAY IN DELIVERY, OR OTHERWISE SHALL BE DEEMED WAIVED BY BUYER UNLESS PRESENTED IN WRITING TO Berntsen WITHIN SIXTY (60) DAYS FROM DATE OF DELIVERY UNLESS MODIFIED BY THE GENERAL PRICE DATA TERMS FOR THE APPLICABLE PRODUCT. THE PRICE STATED FOR THE PRODUCT IS A CONSIDERATION IN LIMITING Berntsen’s LIABILITY.
Notwithstanding the foregoing, the Software and Hosted Services are provided “as is.” Berntsen MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR HOSTED SERVICES AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND CORRESPONDENCE WITH SAMPLE OR DESCRIPTION EXCEPT TO THE EXTENT SUCH DISCLAIMER IS VOID OR PROHIBITED BY LAW. Customer acknowledges that errors may exist or occur in any Software or Hosted Services, that Berntsen makes no warranty that the Software or Hosted Services will operate uninterrupted or be error-free, and that Berntsen assumes no responsibility for obsolescence of the Software or Hosted Services. Berntsen further expressly disclaims any warranty to Customer’s authorized users or to any third party.
- Damages. The liability of Berntsen and/or its licensor(s) (if any) for direct damages under this Agreement shall be limited to the refund of the pro-rated subscription fee for the current term. Except as otherwise expressly provided herein, neither Berntsen nor its licensor(s) (if any) shall be liable for any indirect, punitive, exemplary, special, incidental, or consequential damages, including without limitation damages for lost profits, business interruption, personal injury, property damage, loss of data, or the disclosure of confidential information, or for errors or omissions contained within the software, even if Berntsen and/or its licensor(s) (if any) have been advised of the possibility of such damages. Berntsen SHALL NOT BE LIABLE IN ANY EVENT FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR FAILURE OR DELAY IN PERFORMANCE OR DELIVERY DUE TO ANY CAUSE WHATSOEVER.
- Force Majeure. Berntsen shall not be liable for any failure or delay in delivery due in whole or in part to fires, floods, accidents, riots, demonstrations, acts of God, declared or undeclared war, strikes or other labor difficulties, shortage or unavailability of fuel, power, raw materials or supplies, production breakdowns, delay or failure of usual sources of transportation, requirements or requests of any government or subdivision thereof or acts, demands, orders, or interpositions of any government or any subdivision thereof or agent thereof which makes performance commercially impracticable or any other cause beyond Berntsen’s control. Under any such circumstances, Berntsen shall have such additional time within which to perform this Agreement as may be reasonably necessary and may, without liability for any failure to perform the contract, allocate its available supply among any or all Customers, including subsidiaries, affiliates, and departments of Berntsen, in such a manner as Berntsen, in its sole discretion, may select.
- Non-Competition. The Customer represents and warrants that it is not now developing a competing product to the Products and agrees not to develop or participate in the development of any such competing product while this agreement is in force. Without limiting the foregoing, the Customer specifically agrees not to use the binary executables, its algorithms, file formats, manuals, or any information derived from the Products in any competing product. The Customer shall take reasonable measures to protect Berntsen's and its licensors’ intellectual property by limiting disclosure to and access by competing organizations. Except as otherwise expressly permitted in this Agreement or an Order, Customer will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service Customer provides to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit Customer’s use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.
- Breach. Customer specifically agrees that, in the event of a material breach by Customer of its obligations under Section 14 of this Agreement, (i) Berntsen or its licensor(s) (if any) shall be entitled to an injunction or similar equitable relief ordering the cessation of such breach immediately upon request to a court of competent jurisdiction without having to show anything other than the fact of such breach, and (ii) the Customer will not argue in any such proceeding either that such breach will not cause irreparable harm to Berntsen or its licensor(s) (if any) or that Berntsen or its licensor(s) (if any) can be adequately compensated for such harm by money damages or other remedies other than injunctive relief, and any such arguments by Customer shall not be considered by the court. Nothing contained in this section shall be construed as agreement by Customer that Berntsen or its licensors are entitled to damages or to any remedy other than that expressly provided for by the foregoing.
- Termination. Berntsen may terminate this Agreement if in Berntsen’s sole judgment the Customer fails to comply with any of the terms and conditions of this Agreement or the payment terms of any Order. No refund or other reimbursement shall be made in such event. Customer may terminate this agreement at the end of the Subscription Term. During a multi-year Subscription Term, Customer may cancel at the end of the then current billing cycle, provided however, Customer will be assessed a cancelation fee equal to twenty percent (20%) of the fees set forth in the Order for each of the remaining years on the Subscription Term.
- Upon termination of this Agreement, and provided that Customer is not in breach of its obligations under this Agreement or has failed to pay all sums then owing to Berntsen, Customer is responsible for backing up the Customer Data on its own system. Data will be available to the Customer until this Agreement is terminated. Berntsen may provide Customer with additional time to back up the data at a fee agreed upon by the parties.
- The following Sections survive termination of this agreement: Section 3 (Fees), Section 4 (Software Terms), Section 5 (Hosted Services), Section 6 (Support and Maintenance), Section 7 (Data), Section 8 (Privacy), Section 9 (Security), Section 10 (Ownership and Feedback), Section 11 (Warranty), Section 12 (Damages), Section 14 (Non-Competition), Section 15 (Breach), and Section 19 (Miscellaneous).
- Changes to this Agreement. Berntsen may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces Customer’s rights, Berntsen will use reasonable efforts to notify Customer (by, for example, sending an email to the billing or technical contact designated in the applicable Order or in the Product itself). If Berntsen modifies the Agreement during a Subscription Term, unless otherwise agreed upon, the modified version will be effective upon the next renewal. If Customer objects to the updated Agreement, Customer, as its exclusive remedy may choose not to renew, including cancelling any terms set to auto-renew. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
- Waiver. No waiver by Berntsen of any breach of any provisions hereof shall constitute a waiver of any other breach or of such provision. Berntsen’s failure to object to provisions contained in any communication from Customer shall not be deemed an acceptance of such provisions or as a waiver of the provisions of this Agreement.
- Dispute Resolution. If a dispute arises from or relates to this Agreement, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation with a mediator agreed upon by the parties before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
- Miscellaneous.
- Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if Customer is an entity, this Agreement and each Order is entered into by an agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
- This Agreement (including the Order) any attachments or addendum thereto represent the entire agreement between the parties, and it supersedes any prior proposal, representation, or understanding between the parties. If there is a conflict between any terms and conditions set forth in this Agreement and any purchase order or other Customer communication this Agreement shall control.
- Berntsen expressly rejects the terms of any purchase order or other document prepared by Customer.
- In the event any provision of this agreement is found to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired and a valid, legal and enforceable provision of similar intent and economic impact shall be substituted therefore.
- Customer may not assign this Agreement without Berntsen’s prior written consent. Berntsen will not unreasonably withhold Berntsen consent if the assignee agrees to be bound by the terms and conditions of this Agreement. Berntsen may assign its rights and obligations under this Agreement (in whole or in part) without Customer consent.
- This agreement will be governed by the laws in force in the State of Wisconsin, without regard to its choice of law rules. Customer expressly agrees to submit to the jurisdiction of any state or federal court sitting in Dane County, Wisconsin, and agrees that venue is proper in Dane County, Wisconsin.
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