General Terms and Conditions - Digital Services
Effective 04/01/2022
Capitalized words in these Shibaura Machine Company, America General Terms and Conditions (these "General Terms") that are not otherwise defined herein shall have the same meaning given in the Master Services Agreement (“MSA”). These General Terms, together with the MSA and applicable SOWs (collectively, the “Agreement”) are the only terms that govern Shibaura’s provision to Customer of the Software-as-a-Service and other applications for monitoring and optimization of machine services (collectively, the “Services”). Any additional, different or contrary terms included in Customer’s purchase order or other documentation are hereby rejected and shall be of no effect. Shibaura’s provision of Services hereunder is expressly conditioned upon Customer’s assent to the terms of this Agreement. Shibaura and Customer may be referred to herein collectively as the "Parties" or individually as a "Party."
- Definitions.
- “Data” means all measured and collected items coming from system administrators, users, machines, operators, and auxiliary equipment. For example, Data may include but is not limited to actual machine status, configured fleet, customer sites, devices, downtime reasons, fault codes, machine parameters, machine definitions, operators, quality test results, service technicians, service sessions, quality of service and other items collected.
- “Customer System Data” means any and all Data, information and other data of any kind collected, downloaded, transmitted, submitted, posted or otherwise received from Customer and their products and systems, including any aggregated or derivative data.
- “Documentation” means Shibaura’s user manuals, handbooks, and installation guides relating to the Software-as-a-Service and/or Services provided by Shibaura to Customer either electronically or in hardcopy form.
- "Software-as-a-Service" means a suite of web applications that are delivered as a subscription, as further described in the applicable Statement of Work between the Parties (“SOW”).
- "Updates" means any updates, bug fixes, patches, or other error corrections to the Software-as-a-Service and/or Services that, in the sole discretion of Shibaura, Shibaura and/or its licensors generally makes available free of charge to all licensees of the Services.
- License.
- License Grant. Subject to and conditioned on Customer's payment of Fees and compliance with all the terms and conditions of this Agreement, Shibaura hereby grants Customer a non-exclusive, revocable, non-sublicensable, and non-transferable license during the Term to: (i) use the Services in the United States solely for Customer’s internal business purposes, as set forth in the applicable SOW; and (ii) use and make a reasonable number of copies of the Documentation solely for Customers’ internal business purposes in connection with Customer’s use of the Services.
- Use Restrictions. Customer shall not use the Services or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Services or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or the Documentation; or (v) use the Services 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.
- Reservation of Rights. Shibaura 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 the Services and/or Documentation.
- Customer System Data. Customer is and shall remain the sole and exclusive owner of all Customer System Data. Customer hereby grants to Shibaura a limited, non-exclusive, non-transferable, non-sublicensable license to use the Customer System Data solely as necessary to provide the Services for Customer’s benefit as provided in this Agreement. Except for the limited license provided in this Section, nothing contained in this Agreement shall be construed as granting Shibaura or any third party any right, title or interest in or to any Customer System Data, whether by implication, estoppel or otherwise.
- Customer Responsibilities. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its employees using the Services, and any act or omission by an employee that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall take reasonable efforts to make all employees using the Services aware of this Agreement's provisions as applicable to such employees’ use of the Services, and shall cause its employees to comply with such provisions.
- Support; Suspension of Services.
- This Agreement entitles Customer to receive support from Shibaura for the Services, including any Updates, as set forth in the applicable SOW.
- Shibaura may suspend the Services in any one of the following cases: (i) when it is unavoidable due to maintenance or installation work for telecommunications facilities at Shibaura’s premises; (ii) when it is unavoidable to remedy errors in telecommunication facilities at Shibaura’s premises; (iii) when the Services cannot be provided because of suspension of telecommunication services by telecommunications circuit facility providers or internet access providers to whom Shibaura is connected; (iv) when an illegal connection from Customer or third party is detected and there is no other means to prevent it; (v) when Shibaura is required to do so for the public interest or as required by law; or (vi) when and for so long as Customer fails to pay any amounts due hereunder in a timely manner. Customer will be notified of the date and duration of such suspension in advance except in emergency situations.
- Fees and Payment.
- Fees. Customer shall pay Shibaura the subscription fee amount ("Fees") set forth in the applicable SOW without offset or deduction. Customer shall make all payments hereunder in US dollars either within thirty (30) days of the date of Shibaura’s invoice or before the due date set forth in the applicable SOW, if applicable. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (i) Shibaura 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; and (ii) Customer shall reimburse Shibaura for all costs incurred by Shibaura in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees.
- Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Shibaura's income.
- Confidential Information. From time to time during the Term, Shibaura may disclose or make available to Customer information including, but not limited to information about its business affairs, products and services, confidential intellectual property, trade secrets, third-party confidential information, Documentation, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, as proven by documentary evidence, at the time of disclosure is: (a) in the public domain; (b) known to Customer at the time of disclosure; (c) rightfully obtained by Customer on a non-confidential basis from a third party; or (d) independently developed by Customer without use of or reference to Confidential Information. Customer shall not disclose Shibaura’s Confidential Information to any person or entity, except to Customer’s employees who have a need to know the Confidential Information for Customer to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, Customer may disclose Confidential Information to the limited extent required to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that Customer shall first have given written notice to Shibaura and made a reasonable effort to obtain a protective order. On the expiration or termination of the Agreement, Customer shall promptly return to Shibaura all copies, whether in written, electronic, or other form or media, of Shibaura’s Confidential Information, or destroy all such copies and certify in writing to Shibaura that such Confidential Information has been destroyed. Customer’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and shall survive the termination of this Agreement.
- Intellectual Property Ownership. Customer acknowledges that, as between Customer and Shibaura, Shibaura and/or its licensors exclusively own all right, title, and interest, including all intellectual property rights, in and to the Software and Documentation.
- Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THE APPLICABLE SOW, THE SERVICES AND DOCUMENTATION ARE PROVIDED "AS IS" AND SHIBAURA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SHIBAURA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SHIBAURA MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES AND/OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY PRODUCTS, MACHINERY, SYSTEMS OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- Indemnification. Customer shall indemnify, hold harmless, and, at Shibaura's option, defend Shibaura from and against any and all losses, damages, liabilities, and costs (including attorneys' fees) incurred by Shibaura resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) arising out of or relating to Customer's, or any of Customer’s employees: (i) negligence or willful misconduct; (ii) use of the Services or Documentation in a manner not authorized or contemplated by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Shibaura or authorized by Shibaura in writing; (iv) modifications to the Services not made by Shibaura; or (v) use of any version other than the most current version of the Services or Documentation delivered to Customer, provided that Customer may not settle any Third-Party Claim against Shibaura unless such settlement completely and forever releases Shibaura from all liability with respect to such Third-Party Claim or unless Shibaura consents to such settlement, and further provided that Shibaura will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Limitations of Liability. IN NO EVENT SHALL SHIBAURA BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY SOW ENTERED INTO HEREUNDER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT PRODUCTS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SHIBAURA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT SHALL SHIBAURA'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR ANY SOW ENTERED INTO HEREUNDER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE AMOUNT OF ONE (1) MONTH’S FEES FOR SERVICES PROVIDED BY SHIBAURA UNDER THE APPLICABLE SOW GIVING RISE TO THE CLAIM.
Shibaura will not be liable if Customer or any third party suffers damage resulting from the following causes: (i) damages caused by the Services being unable to operate normally because of a third party intrusion; (ii) damage caused by an error or fault of hardware, software, or the network for which Shibaura is not responsible or at fault; (iii) damage caused by Customer’s operational mistake in use of the Services, or by any operated as instructed by Customer; (iv) damages caused by device errors installed or managed by any party other than Shibaura; (v) damage caused by errors in services or networks of Customer connecting to the Services; (vi) damage caused by software viruses and illegal access to Customer’s computer systems, including, without limitation, hacking; or (vii) damage caused by any fault, access failure, and performance degradation for which Customer’s internet access provider is responsible.
- Term and Termination.
- Term. The initial term of this Agreement begins on the Effective Date set forth in the MSA and, unless terminated earlier pursuant to any of the Agreement's express provisions, will continue in effect until one (1) year from such date (the "Initial Term"). This Agreement will automatically renew for additional successive one (1) year terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”). Either Party may terminate this Agreement by providing written notice of non-renewal to the other Party at least ninety (90) days prior to the expiration of the Initial Term or then-current Renewal Term, at which time this Agreement shall terminate at the end of the Initial Term or such Renewal Term.
- Termination. In addition to any other express termination right set forth in this Agreement:
- Shibaura may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Shibaura's delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(b) or Section 6;
- either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
- either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) 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; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) 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.
- Effect of Termination. Upon termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Customer's obligations under Section 6, Customer shall cease using the Services and delete, destroy, or return all copies of the Documentation and certify in writing to Shibaura that the Documentation has been deleted or destroyed. No termination will affect Customer's obligation to pay all Fees that may have become due before such termination, or entitle Customer to any refund.
- Survival. This Section 11(d) and Sections 1 (Definitions), 5 (Fees and Payment), 6 (Confidential Information), 7 (Intellectual Property Ownership), 8 (Warranty Disclaimer), 9 (Indemnification), 10 (Limitations of Liability), and 12 (Miscellaneous) shall survive the termination of this Agreement.
- Miscellaneous.
- Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related SOWs and/or other attachments, exhibits or appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the MSA (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid).
- Force Majeure. In no event shall Shibaura be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Shibaura's reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, epidemics, pandemics or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; and (vii) shortage of adequate power, communications or transportation facilities.
- Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving.
- Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Governing Law; Jurisdiction.
- This Agreement and any matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Illinois.
- Any suit, action or proceeding arising out of or relating to this Agreement, the purchase and sale of the Services, and the relationship of the Parties shall be instituted in a state or federal court located in the County of Cook, State of Illinois, and Customer irrevocably consents and waives all objections to the exclusive jurisdiction and venue of such courts in any such suit, action or proceeding. In the event Shibaura brings any proceeding to enforce its rights hereunder including for any breach of any of the provisions of this Agreement, Shibaura will be entitled in such proceeding to recover its reasonable attorneys' fees together with the costs and expenses of such proceeding. CUSTOMER AND SHIBAURA HEREBY AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY DISPUTE CONCERNING THIS AGREEMENT AND/OR THE SERVICES.
- Any dispute or other action arising out of or relating to this Agreement must be brought by Customer within one (1) year of the date the event giving rise to the cause of action occurred or it shall be forever barred.
- Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Shibaura. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
- Export Regulation. The Software-as-a-Service and/or Services may be subject to U.S. export control laws, including the Export Control Reform Act and its associated regulations. Subject to the terms of this Agreement, Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software-as-a-Service and/or Services available outside the US.
- Equitable Relief. Notwithstanding Section 12(f)(ii) herein, Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 6 or Section 2(b) would cause Shibaura irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Shibaura will be entitled to equitable relief from any court with jurisdiction, without any requirement to post a bond or other security, or to prove actual damages. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.