Dematic Supplier Portal End User License Agreement

IMPORTANT—READ CAREFULLY:  You represent that you are acting on behalf of your employer and are authorized to accept these terms and conditions on behalf of you and on your employer’s behalf (either you and/or your employer being hereinafter referred to as “you” and/or “Licensee”).  You agree that you have read and understand this Agreement.  This Dematic Supplier Portal End User License Agreement ("Agreement") is a legal agreement between you and Dematic Corp. for the Internet-based access to and use of the Dematic Supplier Portal, which includes any associated documentation, software, media and Portal Materials (as such term is defined below), and any upgrades, enhancements, updates, releases and modifications thereto (collectively, the "Portal"). 

BY CLICKING THE “ACCEPT” BUTTON BELOW OR OTHERWISE ACCESSING OR USING THE PORTAL, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THE TERMS OF THE AGREEMENT SHALL APPLY TO ANY AND ALL ACCESS TO AND USES OF THE PORTAL.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE PORTAL.

1.  GENERAL

1.1   This Agreement governs the access to and use of Dematic Corp. (“Licensor” or “Dematic”) Portal by Licensee.

1.2  Acceptance of this Agreement and/or access to or use by Licensee of the Portal shall be an acknowledgment of and acceptance by Licensee of these terms and conditions.

1.3  This Agreement shall be governed by and interpreted in accordance with the laws of the State of Michigan without regard to its conflicts-of-law principles or the United Nations Convention on Contracts for the International Sale of Goods.  In any dispute hereunder, the same shall be tried by a judge, and the parties waive their rights to a jury trial.  It is expressly agreed that exclusive jurisdiction for any disputes arising out of or in any way related to the use of the Portal or this Agreement shall be in the Kent County Circuit Court, Grand Rapids, Michigan.

1.4  This Agreement, in addition to any agreement entered into between your employer and Dematic relating to the subject matter hereof, represents the entire understanding between the parties concerning the use of the Portal and integrates by its terms all previous agreements and understandings, oral or written, between the parties.

1.5  If any of the provisions in this Agreement shall for any reason be declared or held invalid, illegal, or unenforceable, in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

1.6  Dematic is not responsible for providing any equipment or communications services necessary to access and use the Portal through the Internet, or for any charges associated with such access or use.

2.  LICENSE

2.1  Provided that the Licensee is and remains in compliance with the terms and conditions of this Agreement, Licensor hereby grants to Licensee, pursuant to the terms and conditions of this Agreement, a revocable, nonexclusive, nontransferable, single site, non-assignable license to access and use the Portal on behalf of your employer for internal business purposes, in object code only.  No rights to source code whatsoever are being transferred.

2.2  Your right to access and use the Portal includes the limited right to access, view and display certain content, such as reports, videos, trainings, standards and other data, specifically made available to Licensee by Licensor via the Portal (collectively, the “Portal Materials”). If Licensor’s authorized representative grants you express, written permission with respect to certain Portal Materials, you may make a reasonable number of copies of such Portal Materials solely for the purpose of your employer conducting business with Dematic and solely for your employer’s internal business use.  In no event, shall you grant access to or disclose the Portal Materials to any individual or entity outside of your organization.  If requested by Licensor via the Portal, you agree to acknolwedge receipt of the Portal Materials and respond to any requests and/or notifications sent by Licensor via the Portal.  By accessing and/or downloading the Portal Materials, you agree that you have receieved and reviewed the Portal Materials. 

2.3  No title to or ownership of the Portal is transferred to the Licensee.   Licensee acknowledges and agrees that the Portal, including, without limitation, the related software and technology, related documentation, tools and Portal Materials and any releases, updates, modifications, upgrades and enhancements thereto, shall remain the sole and exclusive property of Licensor, and that the Licensor retains all right, title and interest in and to such items, including, but not limited to, all rights under copyright, patent, trademark, trade secret and other intellectual property laws. 

2.4  No rights or licenses to the Portal, other than those granted in this section, are granted, whether expressly, by implication, or estoppel, or otherwise.

2.5  Licensee agrees to use the Portal only on behalf of your employer and for the sole purpose of your employer conducting business with Dematic.  Under no circumstances shall Licensee (i) permit any other person or entity to access or use the Portal, or (ii) access or use the Portal for any other purpose than for your employer conducting business with Dematic.

2.6  Licensee agrees that each of the terms and conditions of this Section 2 are material and that failure of Licensee to comply with these terms and conditions shall constitute sufficient cause for Licensor to terminate this Agreement immediately.  The presence of this Subsection 2.6 shall not be relevant in determining the materiality of any other provision or breach of this Agreement by either Party.

2.7  Your feedback on the Portal is welcomed, but you agree that (i) by submitting unsolicited ideas to us, you automatically forfeit your right to any intellectual property rights in those ideas; and (ii) unsolicited ideas submitted to us or any of our employees or representatives automatically become the property of Licensor.

2.8    Licensor hereby reserves any and all rights not expressly and explicitly granted in this Agreement, including, but not limited to, Licensor’s right to license the Portal to any third party. You further acknowledge and agree that Licensor retains the right to use and modify the Portal for any purpose in Licensor’s sole discretion.

3.  LICENSEE DATA; PERMISSIONS AND LICENSE GRANTED BY USER TO DEMATIC

3.1  By accessing and/or using this Portal, you acknowledge and agree that any Licensee Data (defined below) entered, uploaded or transmitted by you to Dematic may be stored in any manner that Dematic deems fits and may be used by Dematic, its affiliates, licensors and designated agents for any purpose it deems fit, including but not limited to provide the Portal and its related services, quality control, conducting business and/or product development. For purposes of this Agreement, “Licensee Data” means any documents, drawings, pictures, videos, data or other information entered or uploaded into the Portal or otherwise transmitted through the Portal by Licensee.  Licensee Data does not include any personal data or personal information related to Licensee, which shall be governed by the terms of Section 4 below.

3.2  By using this Portal, you expressly grant Dematic a perpetual, irrevocable, non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to access, use, copy, modify and reproduce any Licensee Data you provide and/or to create derivative works of the same, unless otherwise expressly agreed to by Dematic in writing.

3.3  Licensee agrees that it shall be solely responsible and liable for: (i) the content of the Licensee Data; (ii) entering Licensee Data into the Portal and uploading Licensee Data into the Portal; (iii) all activities that occur under Licensee’s account; and (iv) acquiring any and all permissions, rights and/or authorizations necessary for use by you and Dematic of the Licensee Data as contemplated by this Agreement.  Licensee agrees that all information Licensee enters into the Portal shall be accurate, truthful and not misleading. Licensee agrees to notify Licensor immediately in writing (email is sufficient) if the information provided becomes or is discovered to be inaccurate, untruthful or misleading.

3.4    You acknowledge that the license granted by Dematic to Licensee herein may be surrendered by you at any time in writing by notifying Dematic Corp., Attn. Quality Department - Dematic Supplier Portal Administrator, 507 Plymouth Drive Ave. NE, Grand Rapids, MI 49505, with a copy to Dematic Corp., Attn. Legal Department, 507 Plymouth Drive Ave. NE, Grand Rapids, MI 49505.  Surrender shall be effective upon receipt of the written notification by Dematic’s Legal Department.  Dematic may revoke, terminate and/or suspend your license and/or access to the Portal at any time, for any reason, without notice.

4.  PRIVACY

4.1   You acknolwedge that Dematic collects, stores, uses and otherwise processes information, including personal, technical, analytical and related information, gathered periodically and automatically, as part of your use of the Portal.  For example, Dematic collects your name, company name, email address, job position and phone number in order to provide you with access to and use of the Portal as set forth herein.  Dematic also collects usage information, for example, information about the version of the Portal that you are using, when you log in and log out, and the date and time of install, upgrade or uninstall.  This information can also include information in or about the content you provide, such as the location of a recording, message, or image or the date a message was created. With respect to any personal information/personal data Dematic processes under this Agreement and/or in relation to the Portal, the terms and conditions of our Privacy Policy shall apply.  Our Privacy Policy is located at: http://www.dematic.com/en-us/legal/privacy-policy/.  Please review our Privacy Policy carefully to understand our privacy practices. 

5.  CONFIDENTIALITY

5.1  Licensee acknowledges that the Portal, including the Portal Materials, related software, related documentation and any new releases, updates, upgrades, modifications and/or enhancements thereto, comprise confidential know-how and confidential information of Licensor and may incorporate trade secrets which are the exclusive property of Licensor and/or Licensor’s other suppliers and/or Licensor’s other customers, and Licensee agrees to treat such items as the confidential and proprietary information of the Licensor.  Licensee agrees that it shall hold such information in strict trust and shall not disclose such information to any third party except to its employer who requires such information during the course of its participation of conducting business with Dematic.  The obligations set forth in this section shall survive termination of this Agreement.

6.  NON-INFRINGEMENT

6.1  You represent and warrant that any information provided by you, including any Licensee Data and personal information/personal data, shall not infringe on or misappropriate any third-party intellectual property, proprietary or privacy rights and that you are authorized to share such information with Dematic and that such information shall be truthful, accurate and not misleading.

7  RESTRICTIONS ON USE

7.1  Licensee may not assign, license, lease, or otherwise transfer its rights under this Agreement without the prior written authorization of Licensor.  Licensee shall not authorize or permit access or use of the Portal by persons other than you.

7.2  Licensee shall not sell, lease, assign, transfer, sublicense, disseminate, modify, translate, duplicate, reproduce or copy the Portal (or permit any of the foregoing) or any information contained therein or disclose the Portal or any information pertaining thereto to any other party without the prior written consent of the Licensor.  Licensee shall not use the Portal in any time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party.

7.3  Licensee shall not decompile or reverse assemble the Portal or analyze or otherwise examine it for reverse engineering of the Portal or otherwise attempt to create or perceive the source code from the Portal.  Licensee shall not use the Portal to develop or enhance other software products, or to make any derivative works of the Portal.

7.4  Licensee agrees to access and use the Portal only pursuant to the terms of this Agreement.

7.5  Licensee agrees that it will not make or have made any copies of any component of the Portal and Licensee shall not access the Portal for the purpose of developing, or assisting in the developing of, a competitive product or service, or for copying its features or user interface.

7.6  You represent and warrant that you are authorized by your employer to access and use this Portal at your place of employment and that you have all rights, authorizations and permissions necessary with respect to any Licensee Data and personal data that you share with Dematic and/or transmit, enter and/or upload to the Portal.  You represent and warrant that you shall not impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity, and that you shall maintain the confidentiality of any user ID and password that you have to access the Portal.

7.7  You shall not remove or alter any trademark, trade name, product name, logo, copyright or other proprietary notices, legends, symbols and/or labels in or on the Portal.  This Agreement does not authorize you to use Dematic’s name or any of its trademarks, or Dematic’s product or Portal names.

7.8  You shall undertake all measures necessary to ensure that your use of the Portal complies in all respects with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities having jurisdiction over the parties.

8.  PREREQUISITE SOFTWARE

8.1  The Portal includes or is distributed with certain third party software ("Third Party Software”).  From time to time, upgrades or releases may include additional Third Party Software.  Any additional license terms applicable to Licensee's use of such Third Party Software will be provided with any such upgrades and/or releases.  Licensor’s obligation for Third Party Software shall be limited to conveying and transferring to Licensee, to the extent possible, the license, interest, rights and/or warranties which Licensor has obtained, if any, from the Third Party Software manufacturer.

8.2  Licensee agrees to abide by the terms of licenses to programs and software developed by third parties and supplied by Licensor upon which Licensor’s Portal is dependent for operation and use.  

9.  WARRANTY DISCLAIMER

9.1 LICENSOR DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT THE PORTAL WILL BE ERROR FREE, BUG-FREE, VIRUS-FREE OR THAT ALL ERRORS WILL BE CORRECTED.  LICENSOR IS PROVIDING THE PORTAL AND SERVICES HEREUNDER ON AN “AS IS” BASIS AND to the fullest extent PERMITTED under applicable law, LICENSOR expressly disclaims all warranties of any kind or nature, and MAKES NO WARRANTIES, REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR IN LAW INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY, SYSTEM INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS, WHETHER LATENT OR PATENT .  NO WARRANTY IS MADE BY DEMATIC ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. 

10.  EXCLUSIONS OF REMEDIES; LIMITATION OF LIABILITY

10.1  Licensor shall not be liable for, and Licensee hereby assumes the risk of and shall indemnify and hold harmless Licensor from and against any claim, injury, loss, damage, or expense (including attorney’s fees), either direct or indirect, whether incurred, made or suffered by Licensee or any third party, in connection with or in any way arising out of the furnishing, performance, access to or use of the Portal and/or any Licensee Data. 

10.2  IN NO EVENT WHATSOEVER SHALL LICENSOR BE LIABLE TO LICENSEE OR TO THIRD PARTIES FOR ANY CLAIM, INJURY, LOSS, DAMAGE OR EXPENSE (INCLUDING ATTORNEY’S FEES) CAUSED, IN WHOLE OR IN PART, BY THE ACCESS TO OR USE OF THE PORTAL OR FOR ANY LOST OR DAMAGED DATA, LOST REVENUES, LOST PROFITS, BUSINESS INTERRUPTION, LOST SAVINGS OR OTHER DIRECT OR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCURRED BY ANY PERSON, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS.

10.3 YOUR sole remedy for any claims in connection with this AGREEMENT is to discontinue using the PORTAL. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above EXCLUSIONS AND/OR limitations may not apply to you.

11.  TERM AND TERMINATION

11.1  This license is effective and this Agreement shall commence from the earlier of the date that you accept the terms of this Agreement or you access the Portal and shall continue until terminated in accordance with the terms of this Agreement.

11.2  Licensor may terminate this Agreement immediately upon written notice if Licensee fails to comply with any of the terms and conditions of this Agreement or immediately in the event that Licensee’s employer no longer participates in the Portal and/or ceases to conduct business with Dematic..

11.3  Upon termination of this Agreement, Licensee shall immediately cease using the Portal and shall delete the Portal, including any documentation related to the Portal, from any device on which it is installed, stored or accessed, including, without limitation, any mobile device. Licensee shall certify such action in writing to Licensor within one (1) month of the termination date.

12.  GOVERNMENT RIGHTS.

12.1  The Portal shall be deemed “commercial computer software” and “commercial computer software documentation” pursuant to DFAR Section 227.7202 and FAR Section 12.212 (and any successor sections).  The use of the Portal including, but not limited to, its reproduction and display, by the United States of America and/or any of its instrumentalities, regardless of form (collectively “Government”), shall be governed by this Agreement.  Under no circumstance shall Licensor be obligated to comply with any government requirements regarding cost or pricing data or cost accounting requirements.  For any Licensee use of the Portal that would require compliance by Licensor with Government requirements or in any manner affect Licensor’s rights in the Portal, Licensee must notify Licensor of such Government requirements and obtain a waiver or exemption from such requirements for the benefit of Licensor before any Government access to the Portal.

13.  EXPORT CONTROLS.

13.1  You shall comply with all applicable laws in your storage, processing or use of the Portal.  These include, but are not limited to, the following: (i) anti-corruption and anti-bribery laws and regulations, including the U.S. Foreign Corrupt Practices Act; (ii) all applicable export laws and regulations, including all U.S. export laws or regulations; You may not export or allow the export or re-export of the Portal in violation of any such laws, restrictions or regulations; (iii) all applicable anti-money laundering laws; (iv) all applicable privacy and data protection laws; (v) all applicable anti-trust and fair completion laws; and (vi) all laws prohibiting any form of fraud.

14. MISCELLANEOUS

14.1  The failure of Licensor to require performance of any provision hereof shall in no manner affect the right at a later time to enforce such provision.

14.2  Licensee may not assign its rights under this Agreement without the prior written consent of Licensor.  Any such assignment in violation of this provision shall be void and of no effect.  This Agreement shall be binding on and inure to the benefit of Licensee, its successors, permitted assigns and legal representatives.  Sections 1, 2.3 – 2.8, 3.1 – 3.3 and 4 through 14, inclusive, shall survive termination or expiration of this Agreement for any reason.

14.3  Licensee acknowledges that remedies at law may be inadequate to provide Licensor with full compensation in the event of any material breach of the Agreement by the Licensee, and that Licensor shall therefore be entitled to injunctive relief in the event of any material breach.

1. The export of certain information, software and documentation may, e.g. due to its nature or intended use or final destination, be subject to authorization. The User shall strictly conform with the export regulations for information, software and documentation, in particular with those of the EU as well as the individual EU member states and the USA. Dematic shall label information, software and documentation in relation to German and EU export control lists and U.S. Commerce Control List. 

2. The User shall particularly check and verify that ##the information, software and documentation shall not be used for any purpose related to armaments, nuclear technology or weapons; 

• no undertaking or person listed in the U.S. Denied Persons List (DPL) shall receive commodities, software or technology of U.S. origin; 

• no undertaking or person named in the U.S. Warning List, U.S. Entity List or U.S. Specially Designated National List shall receive items of U.S. origin without a license; and 

• no undertaking or person named in the Specially Designated Terrorists List, Foreign Terrorist Organizations List, Specially Designated Global Terrorists List or in the Terrorists List of the EU shall receive goods;

• no military consignees shall be supplied; 

• the early warning instructions of the respective German authorities shall be observed. 

3. Access to software, documentation and information on the Dematic Web Site shall only take place if such conforms with the above checks and guarantees. Where the User does not comply with the above, Dematic shall not be obliged to perform. 

4. Upon request Dematic shall inform the User of the relevant contact points for further information. 

For collection, use and processing of personally identifiable data of the User of the Dematic Web Site, Dematic shall comply with applicable laws on data privacy protection according to the law of August 2, 2002 and the Dematic Web Site Data Protection Privacy Policy, which is available per hyperlink on the Dematic Web Site and/or on www.Dematic.com.

1. Any supplementary agreement requires the written form. 

2. The place of jurisdiction shall be Luxembourg, if the User is a merchant in terms of the Luxembourg Commercial Code. 

3. The individual pages of the Dematic Web Site are operated and administered by Dematic Holding S.à r.l. The pages comply with the law of Luxembourg. Dematic makes no representation that information, software and/or documentation on the Dematic Web Site are appropriate or available for viewing or downloading at locations outside Luxembourg. If Users access Dematic Web Site from outside Luxembourg, they are exclusively responsible for compliance with all applicable local laws. Access to Dematic Web Site's information, software and/or documentation from countries where such content is unlawful is prohibited. In this case and where User seeks to do business with Dematic, the User should contact the Dematic representative for the particular country for country specific business. 

4. These Terms of Use shall be governed by - and all disputes relating to or in connection with these Terms of Use or their subject matter shall be resolved in accordance with - the laws of Luxembourg, to the exclusion of its conflict of laws rules. The application of the United Nations Convention on Contracts for the International Sales of Goods (CISG) of 11 April 1980 is excluded. 

Date: February, 2018

This notice provides information about how Dematic and its subsidiaries and affiliates (“Dematic”) gather and process data using the Dematic Supplier Portal. Personal data is subject to regulatory protocols and is only collected in the Supplier Portal to the extent that it is necessary for doing business with Dematic. Data subjects will need to aware of the following provisions in-relation to data security. 

When anyone logs into the Supplier Portal, you agree to Dematic’s Supplier Portal License Agreement Terms & Conditions which includes permission for us as data controllers to collect and store personal data. Personal data, contained in your business contact information, which includes your Full Name, Company Name, E-mail, Phone Number, and Job Position will be collected and stored in secure electronic files. We will store this information as long as you elect to participate in the Dematic Supplier Portal for the purposes of providing you with support, documentation, quality results, and training purposes, thereafter it will be destroyed. Additionally, we collect data in-relation your company, which could include your company’s quality assessments results, scorecards, PPAPs, performance information, among other things. It is deemed understood that all business data; contact information and personal data is provided with the consent that it will be used to provide legitimate business services by Dematic. Should Dematic as the data controller need to release the data to a data processor or any third party, then Dematic will do so only to fulfil the needs of its contractual obligations and/or if Dematic is lawfully required to do so. In such circumstances, the data will be released with clear instructions to the data processor and/or third party about the remit for the use of the data and instructions for security and destruction of the data. Should you require further clarity or have any enquiries to Dematic directly.

In accordance with cyber essential regulations, we have taken extensive technical and operational security precautions to ensure that the data (including personal data) we store is protected against unauthorized access and misuse. Our security precautions are reviewed regularly and adapted in line with the latest technologies. The transmission of data is encrypted.

Transparency is very important to Dematic and as such we can provide you with access to your personal data that is held by Dematic to the extent required by law in your home country. In accordance with our legal obligation, we will be happy to inform you whether we have stored your personal data – and if so, what personal data have stored and why. If you wish to receive this information, please send us a written request. You may request correction or deletion of your personal data, except where retention is required by your contractual relationship with Dematic, in the context of a legal dispute, or as otherwise required by applicable in law. If your request for access, correction or deletion is denied, the reason for the denial will be communicated to you in writing. The Supplier Portal system is cookie-free webpage with no connection with any social media. This website, however, does use a web tracking tool used for analyzing its web traffic and number of visits.

You may withdraw consent to the processing and/or storage of your personal data or submit questions, complaints and/or objections to the processing and/or storage of your personal data by sending a request in writing to: Dematic Data Privacy & Protection Program Administrator, 2727 Paces Ferry Rd., SE, Atlanta, GA, 30339 or by email at Compliance@Dematic.com. You may also surrendered any license granted by you hereunder at any time in writing by notifying Dematic Corp., Attn. Supplier Quality, 507 Plymouth Drive Ave. NE, Grand Rapids, MI 49505, with a copy to Dematic Corp., Attn. Legal Department, 507 Plymouth Drive Ave. NE, Grand Rapids, MI 49505.

Dematic reserves the right to modify this Notice by posting changes to the Supplier Portal. If you submit additional personal data following the effective date of a modified Notice, your personal data will be handled in accordance with the Notice in effect at that time. All changes will comply with the legislative and regulatory regime relating to data management.