This Inventory Batch Tracker Subscription Agreement (“Agreement”), including the proposal or order form (“Order”) which by this reference is incorporated herein, describes the basis on which Contemporary Analysis, LLC (“CAN”) provides the Inventory Batch Tracker application and services (“Batch Tracker”) to the entity identified on the Order (together with its affiliates “Customer”). CAN and Customer may be referred to collectively as the “Parties” or individually as a “Party.”
BY ACCESSING OR USING TO BATCH TRACKER OR CLICKING ON AN “ACCEPT” BUTTON, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY.
CAN RESERVES THE RIGHT TO MODIFY THIS AGREEMENT FROM TIME TO TIME BY POSTING AN UPDATED VERSION OF THIS AGREEMENT ON THE BATCH TRACKER WEBSITE. CUSTOMER IS RESPONSIBLE FOR REGULARLY REVIEWING THIS AGREEMENT. CONTINUED USE OF THE BATCH TRACKER APPLICATION AND SERVICES AFTER SUCH CHANGE WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH REVISED TERMS.
- “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use Batch Tracker under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to Batch Tracker has been purchased hereunder.
- “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through Batch Tracker.
- “Manufacturing Location” means one contiguous manufacturing site, as specifically listed on an Order.
- ACCESS AND USE OF BATCH TRACKER.
- Access. Subject to and conditioned on Customer’s payment of all Fees and compliance with all terms and conditions of this Agreement, CAN grants Customer a limited, non-exclusive, non-transferable right for Authorized Users to access and use Batch Tracker and any accompanying documentation during the Term for Customer’s internal use only and only for the number of named Manufacturing Locations listed on an Order. CAN shall provide to Customer the necessary passwords and network links or connections to allow Customer to access Batch Tracker. The total number of named Manufacturing Locations will not exceed the number set forth on the Order, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
- Authorized Users. Customer agrees that each Authorized User shall be bound by this Agreement. Customer is responsible for protecting Authorized User passwords, and for any damage caused by unauthorized access to Batch Tracker or Customer Data through any of the Authorized User Customer shall be authorized to access and use Batch Tracker via compatible web browsers operating on compatible computer systems residing at its locations, accessed through its own internet service provider, all in an appropriate, careful and proper manner and in compliance with all documentation, laws and regulations. These computer systems shall be selected, maintained, and controlled solely by Customer.
- Use Restrictions. Customer shall not use Batch Tracker for any purposes beyond the scope of the access granted in this Agreement, including at any Manufacturing Location not specifically authorized in an Order. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of Batch Tracker or its documentation, in whole or in part; (ii) rent, lease, lend, sell, resell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available Batch Tracker or its documentation; (iii) distribute or disclose any part of the Batch Tracker services or application in any medium; (iv) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of Batch Tracker, in whole or in part; (v) remove any proprietary notices from Batch Tracker or its documentation; or (vi) reverse engineer or access Batch Tracker or its documentation in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics, or (c) copy any ideas, features, functions or graphics of Batch Tracker or its documentation; (vii) use Batch Tracker or its documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (viii) import or export Batch Tracker in violation of United States or other applicable import or export law; or (ix) use Batch Tracker to provide consulting or other services to third parties.
- Additional Restrictions. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) use Batch Tracker to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of Batch Tracker or the data contained therein; or (iii) attempt to gain unauthorized access to Batch Tracker or related systems or networks. Customer may not access Batch Tracker if Customer is a direct competitor of CAN, except with CAN’s prior written consent. In addition, Customer may not access Batch Tracker for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
- Reservation of Rights. CAN reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to Batch Tracker or its documentation or any other intellectual property of CAN.
- Support. CAN’s support and maintenance obligations for Batch Tracker, if any, will be set forth in an Order.
- Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, CAN may monitor Customer’s use of Batch Tracker and collect and compile data and information related to Customer’s use of Batch Tracker in an aggregate and anonymized manner (“Aggregated Statistics”). As between CAN and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by CAN. Customer acknowledges that CAN may compile Aggregated Statistics based on Customer Data input into Batch Tracker. Customer agrees that CAN may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
- PROPRIETARY RIGHTS.
- Batch Tracker. Customer acknowledges that, as between CAN and Customer, CAN owns all rights, title, interest, ownership and proprietary rights in and to Batch Tracker and its documentation. CAN’s rights include, but are not limited to, Batch Tracker, its documentation and any patent rights, copyrights, trademark rights, trade secret rights, and any other intellectual property right recognized in any country or jurisdiction in the world, as well as the content and related services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to Batch Tracker. Batch Tracker and its documentation are protected both by United States law and international treaty provisions. Batch Tracker may include third party Please read the accompanying documentation for further information.
- Customer Data. CAN acknowledges that, as between CAN and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer is solely responsible for the accuracy and completeness of Customer Data. Customer hereby grants to CAN a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for CAN to provide Batch Tracker, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
- PAYMENT TERMS.
- Fees. Customer shall pay CAN the fees (“Fees”) as set forth on the Order without offset or deduction and all Fees applicable to a Renewal Term. Customer shall make all payments hereunder in U.S. dollars on or before the due date. CAN shall notify Customer of the Fees applicable for any Renewal Term at least thirty (30) days prior to such Renewal Term.
- Failure to Pay. If Customer fails to make any payment when due, without limiting CAN’s other rights and remedies: (i) CAN may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse CAN for all reasonable costs incurred by CAN in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) CAN may suspend Customer’s and its Authorized Users’ access to any portion or all of Batch Tracker until such amounts are paid in full and a reinstatement fee is paid.
- Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is solely responsible for the payment of any sales, use and excise taxes, fees, tariffs or other such levies resulting from Customer’s access to or use of Batch Tracker.
- TERM AND TERMINATION.
- Subscription Term; Renewal. The effective date of this Agreement is the earlier of (i) the first day on which Customer accesses Batch Tracker or (ii) the date the Order is executed by Customer. Unless earlier terminated, this Agreement will remain in effect for an initial subscription term of one (1) year from the effective date (“Initial Term”). This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
- Termination. CAN may terminate this Agreement immediately if Customer (i) fails to comply with any provision of this Agreement; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Additional Remedies. If Customer breaches any of this Agreement, CAN may immediately suspend access, or the access of any Authorized User, to Batch Tracker without notice, and condition reinstatement of access on payment of a reinstatement fee. In addition, Customer will indemnify, defend and hold CAN and its affiliates, agents, officers and employees harmless from any damages suffered as a result of or related to any breach, or any negligent or willful act by Customer or an Authorized User.
- Effect of Expiration or Termination. Upon expiration or termination of this Agreement, Customer shall immediately discontinue use of Batch Tracker and its documentation and shall delete, destroy, or return all copies of Batch Tracker and its documentation. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
- Customer Data and Transition. CAN will maintain Customer Data for no more than thirty (30) days following termination. During such thirty (30) day period, CAN will provide Customer access to its database to extract the Customer Data. If Customer requires access to or storage of Customer Data after such thirty (30) day period, Customer shall pay CAN an access fee of $1,000 per month, payable in advance. CAN will provide other disengagement services as Customer may request on reasonable terms and in exchange for reasonable fees as the Parties may mutually agree.
- NO WARRANTY. THE BATCH TRACKER APPLICATION AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CAN DOES NOT WARRANT THAT THE BATCH TRACKER APPLICATION AND SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE IN COMBINATION WITH OTHER SOFTWARE, BE SECURE OR BE UNINTERRUPTED OR ERROR-FREE.
- Limitation of Liability.In no event shall CAN be liable for any lost revenue, profit, or data, or for special, indirect, consequential, incidental, or punitive damages however caused and regardless of the theory of liability, arising out of the use of or inability to use THE BATCH TRACKER APPLICATION AND SERVICES, including losses resulting from loss, misappropriation or unauthorized access to or modification of CUSTOMER data, or from mistakes, omissions, or delays in transmission of information, or from interruptions in telecommunications connections to THE BATCH TRACKER APPLICATION AND SERVICES, viruses or failures of performance, or from the impact of The BATCH TRACKER APPLICATION AND SERVICES on any system, even if CAN HAS been advised of the possibility of such damages. In no event shall CAN’S total AGGREGATE liability to CUSTOMER, whether in contract, tort (including negligence), or otherwise, exceed the AMOUNT OF ANY LICENSE FEE paid by CUSTOMER TO CAN FOR THE BATCH TRACKER APPLICATIONS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- This Agreement and any dispute arising from or relating to it shall be governed by and construed and enforced in accordance with Nebraska law, without reference to conflicts of laws principles, and excluding the UN Convention on Contracts for the International Sale of Goods. Any legal action or proceeding shall be instituted in a state or federal court in Douglas County, Nebraska, USA. Customer and CAN agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Customer, but may be assigned by CAN without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. The waiver by CAN of a breach of this Agreement or a failure to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach or as a waiver of any other right. If any provision of this Agreement is held to be unenforceable or overbroad for any reason, it will be modified rather than voided, if possible, in order to achieve the intent of the Parties to the extent necessary to make the provision enforceable under applicable law, and enforced as amended. In any event, all other provisions of this Agreement will be deemed valid and enforceable to the full extent. This Agreement constitutes the complete agreement between the Parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement including any purchase order or ordering document. This Agreement may not be modified or amended except in writing and signed.
Version 1.0; December 1, 2018