Master Service Agreement
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INSIGHT MASTER SUBSCRIPTION AGREEMENT
Thank you for subscribing to Nederman Insight software. This Master Subscription Agreement (“MSA”) sets out the terms and details regarding your subscription (“Subscription”) to the Service (see definition below) and the application and content available to Licensees at www.insight.nederman.com and the Nederman Insight application for smart phone and/or tablet and as well as the use and transfer of, and your consent to the use and transfer of, certain information or data that will or may be collected, stored, recorded, and transmitted from and about the product or service supplied by Nederman (see definition below). This MSA is binding between the parties through a reference in and incorporated as an integral part of a Purchase Order or Contract entered into between the Parties (the “Order”),
For the purposes of this MSA, “Service” shall mean access to the software as a service as set out in the Order and any upgrades, updates, bug fixes or modified versions thereto (collectively “Updates”).
The Service is licensed by the company within the Nederman Group of companies party to the Order (“Nederman”) to Licensee (defined as the Customer, Buyer or Licensee specified in the Order) upon the condition that Licensee accepts all of the terms contained in this MSA and any additional limitations on the license set forth in the Order. If and to the extent of any conflict between the terms of this MSA and the Order, the provisions in the MSA shall apply unless expressly stated otherwise in the Order agreed between the Parties.
The Service may periodically be upgraded or changed. Licensee agrees that Nederman may Update the Service in whole or in part. Updates of the Service will be carried out in a way that has a minimum effect on the Licensee’s use of the Service, and Nederman will take commercially reasonable efforts to minimize interruptions in the Service.
License: Nederman hereby grants to the Licensee a limited-time, non-exclusive, non-transferable and non-sublicensable license to use and to enjoy the benefit of, for the Licensee’s internal business purposes only, the Service for which the Licensee has subscribed for, subject to the payment of applicable license fees.
Upon acceptance of this MSA and activation of the Service, the Service can be used for a period set out in the Order. At the conclusion of the applicable period, the Service may be de-activated automatically unless the Service period has been extended with a contract renewal.
The Licensee shall not disclose or provide the user names or password to third parties, and the Licensee shall exercise reasonable care in keeping the registration number or product authorisation key confidential.
General Limitations: Nederman and its licensors retains full ownership of all intellectual property rights in and pertaining to the Service. The Licensee acknowledges that the Service contains trade secrets and proprietary, sensitive and valuable information created and owned by Nederman, including but not limited to the content of the Service but also in the specific design, lay-out, interactive functionality and progression and structure of the Service and associated interface information. Except as otherwise expressly provided under this MSA, the Licensee specifically undertakes not to:
Proprietary Notices: The Licensee agrees to maintain and reproduce all trademarks, copyright, proprietary, and other notices on or within the Service in the same form and manner that such copyright and other proprietary notices are included by Nederman. The Licensee acknowledges that all intellectual property rights in the Service belong to Nederman, that rights in the Service are licensed (not sold), and that the Licensee has no rights in, or to, the Service other than the right to use it to facilitate the provision of the Service in accordance with the terms of this MSA.
Term and Termination: This MSA and the licenses granted herein shall remain effective until terminated or until it expires after a subscription period (initial term or renewal), as specified in the Order. This MSA terminates automatically in the case of expiry of services defined in the Order. If the Service is subject to automatic renewals detailed in the Order, either party may terminate this MSA at the end of any subscription period, by giving the other Party sixty (60) days written notice of termination. Nederman has the right to suspend the licensed rights to use the Service in the event that the Licensee breaches any of the terms and conditions of this MSA and without any refund of License fees until and unless the Licensee rectifies its breach to Nederman’s satisfaction. Nederman reserves the right to cancel the Licensee’s Subscription at any time if it fails to pay amounts owing when due, violates or breaches any terms of this MSA. If the Subscription is cancelled, the Licensee will still be responsible for payment of all outstanding balances accrued up to the cancellation date, including any fees described herein.
If the Licensee fails to comply with any provision of this MSA, this MSA and the Licensee’s rights will terminate immediately upon notice from Nederman. Upon termination of this MSA or upon its expiry, all rights granted under this MSA shall cease and the Licensee must cease all activities authorised by this MSA. The confidentiality obligations of the Licensee, and the restrictions and limitations imposed on the Licensee under “General Limitations” above, as well as all limitations of liability, disclaimers and restrictions of warranty shall however survive termination or expiry of this MSA.
Data and Data Collection. Upon the Licensee’s acceptance of this MSA the Service may collect, record and transmit equipment related data (“Data”), including data related to the equipment condition, monitoring, and activity or other data gathered by sensors on the equipment, such as but not limited to performance, accuracy, correct functionality etc. The type and amount of Data collected and transmitted will vary by equipment type.
Data Storage. For the provision of the Service Nederman or its designated third party will maintain the Data for the full valid Subscription period plus a period of six months. The retention period extends from the date of expiration of the Subscription period, during which time the Licensee will have the ability to view and retrieve the Data (retrieval of archived data may incur service fees). Data will be deleted from the Service after its six months retention period.
Data Sharing with Nederman. Nederman agrees and acknowledges that the Licensee owns any information and data about the equipment embedded with the Service that is generated through the Service when the Licensee subscribes to the Service. The Licensee therefore grants Nederman a royalty-free, worldwide, non-exclusive license (including the right to sub-license in order to fulfil this MSA) to: (i) access, use, store and otherwise process all Data for the purposes of providing the Service or other Nederman services; (ii) develop and improve the Service and (iii) use the Data as necessary for Nederman to defend itself against any claim made by the Licensee or any third party.
The Licensee understands and accepts that certain parts of the Service may be provided by Nederman’s affiliated companies within the Nederman Group or by Nederman’s third parties (such as data server providers), which may therefore also process Data in accordance with this MSA. Nederman will procure its affiliated companies and third parties involved in the Service for having reasonable industry level of data security measures in place.
The Data may not include personal information of individuals. However, login details, such as email addresses and usernames, first name and last name of the contact person for receiving email notifications relating to the equipment data, as part of the Service, may be processed in the Service. Such personal data may be processed by Nederman, in case GDPR (General Data Protection Regulation) applies, as a Controller, or otherwise assumes the applicable data user responsibilities as required by the applicable laws and regulations and always in compliance with the Nederman Group Privacy policy available at Nederman’s website. For the Licensee’s protection and for Nederman’s compliance purposes, Nederman procures in its contractual arrangements with its engaged third parties (data server providers etc) that such third parties accept obligations to comply with applicable data protection laws imposed on them, as well as the use of adequate technical security solutions required to protect the Data.
Limited Warranty: Subject to the limitations and conditions set forth herein, Nederman warrants that the Service will perform substantially in conformity to and in accordance with the functions described in the Order. Except for the foregoing, the Service is provided “AS IS”. The Licensee is aware about the fact that the specific equipment used in connection of the Service may sometimes limit the full theoretical functionality of the Service, as described by Nederman in informational material about the Service.
The Licensee’s sole and exclusive remedy and the maximum liability of Nederman under this limited warranty will be at Nederman’s option refund or a partial pro-rata refund of the Subscription fees paid for the License of the Service in respect of the applicable Subscription period in which the Service is not functioning in any respect, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to Nederman without undue delay after Licensee became aware of the error or defect. In no event does Nederman warrant that the Service are entirely error free or that the Licensee will be able to enjoy all of the benefits of the Service without any problems, errors or interruptions. Nederman does not warrant that the Service or network on which the Service is used will be completely free of vulnerability to intrusion or attack.
Restrictions on Limited Warranty: This limited warranty does not apply if the Service or any Nederman product connected to the Service (a) has been altered or tampered with, except by Nederman or its authorised representative, (b) has not been activated fully or correctly, or if it has been operated, repaired, or maintained other than in accordance with instructions supplied by Nederman, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; or (d) is licensed for beta, evaluation, testing or demonstration purposes. The Licensee is responsible for the day-to-day maintenance of any hardware equipment, including sensors and Nederman-approved products, connected to the Service and Nederman shall have no liability towards Licensee under this MSA in respect of errors or faulty Data resulted by faulty lack of maintenance or the like. Except as specified above, any additional warranty is hereby excluded.
Limitation of liability: Notwithstanding anything else in this MSA to the contrary, Nederman’s maximum aggregate liability to the Licensee, whether in contract, tort (including negligence), breach of warranty or otherwise, shall not exceed the Subscription fee for a twelve (12) months’ period prior to the relevant incident paid by the Licensee to Nederman. Nothing in this MSA however shall limit (i) any liability of Nederman to the Licensee for personal injury or death caused by its negligence, (ii) Nederman’s liability for fraudulent misrepresentation, or (iii) any liability of Nederman which cannot be excluded or limited by law.
Subject to (i), (ii) and (iii) above, in no other event will Nederman be liable for any lost revenue, lost profit, or lost or damaged data, business interruption, loss of capital, or for special, indirect, consequential, incidental, or punitive damages, howsoever arising, including, without limitation, in contract, tort (including negligence) or whether arising out of the use of or inability to use the Service, even if, in each case, Nederman has been advised of the possibility of such damages.
Governing Law and Dispute Resolution: This MSA is governed by and shall be construed in accordance with the substantive law applicable to the Order (and its appendices). Any dispute, controversy or claim arising out of or in connection with this MSA, or the breach, termination or invalidity thereof, shall be resolved in accordance with the dispute resolution clauses applicable to the Order (and its appendices).
If any provision of this MSA is found to be void or unenforceable, the remaining provisions of this MSA shall remain in full force and effect. Except as expressly provided herein, this MSA, the Order (and its appendices) constitute the entire agreement between the parties with respect to the license of the Service.
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