End User License Agreement (EULA)
Appendix 1 is the documents describing fees, initial services, Customization, duration etc.
BB means Blackbird ApS, Danish Company Register number 37 19 24 22
BB Partner means official sales and service representative of BB (acting in representatives own name)
Customer/User means customer who has entered this EULA
EULA means this End User License Agreement, including any amendments to this EULA from time to time
Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affected, including failures of the internet, any public telecommunications network, mobile network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars
Party and/or parties means BB or User or BB and User
Services and Support means any Services and Support that BB or BB Partners provides to the User
Software means software cloud application developed by BB which User has access to
Factbird™ Digital/Analog, the box is collecting data and transmits the timestamped values to a recognized international Cloud Service Provider (i.e. Amazon, Microsoft) via the mobile network
The Blackbird Cloud Service, is an intelligent application, using a recognized international Cloud Service Provider (i.e. Amazon, Microsoft) responsible for receiving and processing data from all Factbirds (installed anywhere in the world). For each point of installation of Factbird™, it is also detecting and correlating stop causes and/or video (video is Customer´s choice), as well as managing master data and user rights. It is a standard application which is used by all Blackbird customers
The Blackbird User Interface, is the web based user interface, designed for smartphones, tablets and PC´s. The application is used for close to real-time visualization of line performance, static and dynamic statistics and is used by the line operators to enter stop causes and operational comments
Factbird™ View (Customers choice), is the box responsible for video processing before timestamped video is streamed to the cloud database. Factbird™ View requires internet access over WIFI or Ethernet. The type of camera is customer and application specific.
Upgrade means all improvements in the Software that are made generally available for BB´s users
Use of Factbird™ Out of Scope means activities other than monitoring and analyzing a process by using Factbird™ hardware and Blackbird software.
Subject to the terms and conditions of this EULA, BB hereby grants User a non-exclusive, non-transferable right to use the software for User´s own internal business operations. User is granted rights to Services and Maintenance/Upgrades as described in item 3 and 4.
3. Services and Support
Service and Support provided by BB partner:
First line of support (e-mail and phone) including
“Get started” Support - start up of use of Factbird™.
Hotline support – Basic technical and operational support/ first contact for any trouble shooting.
The Service and Support provided by BB partner is provided in English or in local language by e-mail, phone and on-site during normal working days between 9.00 and 16.30 local time.
Service and Support provided by BB:
Advanced support (e-mail and phone – in English during normal Danish working days from 9.00 to 16.30 Danish time).
In case BB is obliged to provide First line of support, the Support will be provided by e-mail and phone in English during normal Danish working days from 9.00 to 16.30 Danish time.
Storage of data, access to data and ownership of data:
Storage of data will be provided by a recognized international Cloud Service Provider (i.e Amazon, Micorsoft). BB will store data for a 3 years period unless agreed differently. As for Video BB will store data for a one month period unless agreed differently.
Ownership of data and access to data: A customer owns the data collected by using the customer’s Factbird™ and the customer can download a copy of the data at any time and for any reason, by using Download function on the Blackbird software.
4. Maintenance and upgrades
During the term of the EULA BB will maintain and upgrade the Software. Maintenance and Upgrades will be free of charges unless BB notifies User that User will be charged for Maintenance and/or Upgrades – in which case User can select not to receive Maintenance and/or Upgrade but continue with the License already in use.
5. Fees, payments and period
For each license granted to User BB will charge a License Fee per month for each license as agreed in Appendix 1.
The standard License period is minimum 1 year unless agreed differently but no shorter than 3 months.
With effect from January 1st each year BB has the right to adjust the License Fee. Adjustments will be communicated to User with 3 months notice.
BB will invoice the License Fee to User yearly at the beginning of each yearly cycle, unless agreed differently but never more often than quarterly. The invoice is due 30 days from invoice date to BB bank indicated on the invoice.
Initial License period will be automatically renewed for successive License periods unless either party terminates the license by notice to the other party.
Together with license Customer will purchase or lease or rent one or more Hardware units.
As for Customization ( i.e. Customization of Software on Users request) etc. not included in this EULA the Parties have prepared a Service Order – Appendix 1 to this EULA. User will pay separately directly to BB for Customization etc. specified in Appendix 1. Invoicing of Customization etc. will be agreed separately.
If agreed between BB and BB partner, BB partner will invoice License Fee, Hardware and Customization fees to user as agreed with User.
6. IP Rights and Source Code
The software, including without limitation, its object code and source code, whether provided to User or not, is the sole property of BB. User may not exercise any rights, title and interest and the Software including without limitation all intellectual property rights in and to the Software, except to the extent of the limited Software use license granted to User in this EULA. This EULA is not an Agreement of sale and no title, intellectual property rights, or ownership rights to the Software are transferred to User pursuant to this EULA. User acknowledge and agree that the Software and all ideas, methods, algorithms, formulae, processes and concepts used in developing or incorporated into the Software, all future upgrades and all other improvements, revisions, corrections, modifications, enhancements, releases in, of or to the Software, all derivative works based upon any of the foregoing and all copies of the foregoing are trade secrets and property of BB.
User is not allowed to conduct reversed engineering on Software.
User may terminate the EULA with a one months notice to a License period.
8. Premature Termination
Either Party may give notice in writing to the other terminating this Agreement with immediate effect, should the other Party commit any material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified of the breach.
Notice of termination with immediate effect may also be served in case the other party has a bankruptcy order made against it; or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation; or has an administrative receiver appointed over the whole or any part of its undertaking.
9. Liability, Limitations, Force Majeure
BB will be responsible according to Danish law with the following limitations:
- BB will not be responsible for any indirect losses, f.i. operating loss or loss of profit
- Factbird™ BB will not be responsible for Use of Factbird™ Out of Scope
- BB will not be responsible for an amount that exceeds DKK 100.000
The following circumstances shall be considered events of force majeure; event, or a series of related events, that is outside the reasonable control of the party affected, including failures of the internet, any public telecommunications network, mobile network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars,
The Party invoking Force Majeure by reason of any of the said circumstances shall notify the other Party in writing and without delay of the occurrence of an event of Force Majeure and of the cessation thereof.
In case of Force Majeure neither party can terminate this Agreement nor claim any damages from the other party.
However, if such Force Majeure lasts more than 90 (ninety) Days, either Party hereto shall be entitled to terminate this Agreement by notice to the other Party with immediate effect.
10. Non-assignment by User
User is not allowed to assign or transfer any or all of its rights under this Agreement to third party without written consent from BB.
Each Party undertakes that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisers or as may be required by law or any legal or regulatory authority, any confidential information concerning the business or affairs of the other Party which may have or may in future come to its knowledge and each of the Parties shall use its reasonable endeavours to prevent the publication or disclosure of any confidential information concerning such matters.
12. Change of terms and conditions to this EULA
- BB reserves the right to make updates and changes to the terms and conditions to this EULA.
- User will be notified by e-mail or about updates and changes to this EULA.
13. Governing law and Venue
This Agreement shall be governed and construed by Danish Law.
Any dispute or claim arising out of or in connection with this Agreement or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the Rules of Procedure of the Danish Institute of Arbitration (Copenhagen Arbitration). The member(s) of the Arbitration Tribunal shall be appointed by the Institute. The arbitral proceedings shall take place in Copenhagen, Denmark. The language of the arbitral proceedings shall be English unless otherwise agreed.