Baton Technologies | Products User License Agreement

Welcome to Baton Technologies.

Baton Technologies, LLC (Baton) owns software (EZ-PDM), and operates a website at www.batontech.com (Site), offering access to individual EZ-PDM Project Sites (as described below) to you, the end-user (you or Customer) under the terms and conditions of this Baton End User License Agreement (Agreement).

PLEASE READ THIS CONTRACT CAREFULLY. BY USING ALL OR ANY PORTION OF BATON-PDM, YOU ACCEPT ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR, THE LIMITATIONS ON: USE CONTAINED IN SECTIONS 2 AND 13, SERVICE AND PERFORMANCE IN SECTION 5, INDEMNIFICATION IN SECTION 11, LIABILITY IN SECTION 12, TRANSFERABILITY IN SECTION 13, AND ARBITRATION IN SECTION 14. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE BATON-PDM.

If you renew your license under Section 8(a) below, you also agree to the terms and conditions at renewal in the then current End User License Agreement as then posted on the Site. You represent that the person signing the Customer Implementation Form has the authority to bind Customer to these terms and conditions.

1. Definitions

EZ-PDM is a web based software application licensed through this Agreement and made available on a EZ-PDM Project Site through a hosting program.
EZ-PDM Project Site refers to a specific location on the Site created with each Company Implementation Form. Users can access EZ-PDM Project Sites for purposes of using the EZ-PDM.
EZ-PDM User Manual refers to the materials that describe the functions and use of EZ-PDM.
Baton Support is the support provided by Baton to Customer.
Customer Administrator is the person designated by Customer to create new EZ-PDM Project Sites and who is the primary billing contact to Baton.
Customer Implementation Form is a form completed by Customer to provide Customer and payment information to Baton.
Content is any drawing, image, sketch, rendering, text or other item that is uploaded to the EZ-PDM Project Site.
Content Provider is an individual, authorized by Customer, who provides Content to a EZ-PDM Project Site, but has limited ability to view the EZ-PDM Project Site.
Customer Data means without limitation any images, data, animations, video, audio, music, and text loaded by User onto any EZ-PDM Project Site.
Deposit is the first and last month payment required as part of the Baton fees.
Hosted Program refers collectively to the EZ-PDM software, any related support and other services that Baton may provide from time to time, and the ability Baton provides to access and use the same via the EZ-PDM Project Site.
Project Administrator is a User named by the Customer Administrator who is responsible for the management for a specific EZ-PDM Project Site.
Project Member is an individual, named person who has authorization by Customer to use a EZ-PDM Project Site.
Site is the Baton site where Customer’s EZ-PDM Project Sites are hosted.
Standard Business Hours are 9:00 to 5:00 Central Standard Time and may change from time to time as posted on the Site.
User is a Customer Administrator, Project Administrator, Project Member or Content Provider who has access to use a EZ-PDM Project Site.

2. Access License

Subject to all of the restrictions in this Agreement, and subject to continued payment of the applicable fees, Baton grants Customer the following non-transferable, non-exclusive license to use EZ-PDM during the term of this Agreement for the permitted number of Users and solely for Customer’s own internal business purposes in accordance with the EZ-PDM User Manual. This license is terminable as set forth below in Section 8 called "Term and Termination."

a. Hosted Program Use

Each EZ-PDM Project Site created may be accessed by any number of Users, provided the appropriate fees are paid for the number of total Users. Users may access and use EZ-PDM Sites to create, access or use EZ-PDM and the Content in accordance with EZ-PDM User Manual. Access to the EZ-PDM Project Site is limited to Users authorized by the Customer, and Customer may not use the EZ-PDM Project Site in any manner to permit use by persons who are not authorized by them, or allow for the creation of unauthorized EZ-PDM Project Sites.

b. Software may be Upgraded

The EZ-PDM software available at the Site may be upgraded from time to time. If installation of any such upgrade requires action by Customer, then reasonable prior notice of such upgrade will be given to the Project Administrator and/or Users, when determined necessary by Baton.

c. Other Restrictions

In addition to all other restrictions contained in this Agreement, please refer specifically to Section 13 for further restrictions on the actual use of EZ-PDM.

3. Support

a. Technical Support

1. Baton will provide all Users with access to support through the Baton Support as provided in this section. Users may contact Baton Support via e-mail or telephone during Standard Business Hours. Information regarding e-mail address, telephone number and hours of availability for Baton Support is available on the Site.

2. Users may contact Baton Support outside of Standard Business Hours via telephone at no charge for issues that deal with accessing the EZ-PDM Project Site.

3. If a User makes a call to Baton Support outside of Standard Business Hours and the call does not deal with accessing the EZ-PDM Project Site, Customer will be charged a $25 per call fee.

b. Non Solicitation

Customer will not solicit any Baton personnel for employment during the term of this Agreement and for 12 months after its termination.

4. Security & Customer Data Back-Up

a. Baton Responsibilities

Baton will use reasonable commercial efforts to maintain levels of security for the Hosted Program intended to prevent unauthorized access to EZ-PDM Project Sites, which, at all times while this Agreement is in effect and EZ-PDM Project Sites are not terminated, will meet the then most current industry standards. Details of Baton’s security policies and procedures are posted on the site as the Baton Security Statement. At a minimum, Baton will use the following security policies/procedures: use of SSL encryption, firewalls, passwords, and audits. Baton will immediately notify the Project Administrator of any known security breaches affecting Customer’s Project Sites. Baton’s security policies and procedures may change from time to time to reflect emerging technologies, business practices or security issues.

b. Customer Responsibilities

Customer acknowledges that the EZ-PDM Project Sites are password protected. Customer will at all times ensure that reasonable security mechanisms are in place with respect to issuance of username and password information and will keep its Baton log-on password secure. If Baton makes available any passwords or password-protected areas of any web site, Customer is responsible for all passwords and will use all reasonable precautions to maintain the security of passwords and password-protected areas. If Customer becomes aware that any password or password-protected area to which it has access has been compromised, it must immediately notify Baton and change the applicable passwords.

c. Customer Acknowledgement.

Customer acknowledges that no network security procedures can assure complete network security or prevent all unauthorized access to the EZ-PDM Project Site and, notwithstanding anything in this Agreement or other related documentation to the contrary, Baton does not warrant or guarantee in any respect that Customer’s use of the Site or the Hosted Project will be free from security breaches or unauthorized access.

5. Service and Performance

Baton will use reasonable commercial efforts to ensure that EZ-PDM will conform to the standards set forth on the Site. Baton will make reasonable commercial efforts to assure that the Site will be available 7 days a week. However, normal maintenance and backup procedures may cause temporary down time during which the Site cannot be used. It is possible that there will be service interruptions. If an outage condition is known sufficiently in advance, Baton will post a notification on the Site.

DISCLAIMER: BATON DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY USING BATON-PDM AND THE HOSTED PROGRAM. EXCEPT FOR THE LIMITED PERFORMANCE STANDARDS SET FORTH IN THE PRECEDING PARAGRAPH, BATON MAKES NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE. THE PROVISIONS OF THIS PARAGRAPH WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.

6. Internet Delays

Baton services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications beyond the control of Baton. Baton is not responsible for any delays, delivery failures, or other damage resulting from such problems.

7. Fees and Payment Terms

a. Customer Administrator

Customer will designate a Customer Administrator who will administer payments to Baton on behalf of Customer.

b. Implementation & Deposit

Orders will be placed by completing the Customer Implementation Form. Customer may choose credit card billing or monthly invoices as further described below. In addition, with the placement of the initial order and delivery of the Customer Implementation Form, Customer will be required to pay a deposit equal to the estimated fees for the first and last month (Deposit). The Deposit may be paid by credit card number authorizing payment or providing a business check for full payment for the Deposit. If, at any time during the term of this Agreement Customer authorizes a number of Users which require additional fees, Baton will promptly invoice Customer to increase appropriately the Deposit.

c. Fees

All Baton fees are payable in advance on a monthly basis. The fee schedule is included in the Customer Implementation Form. The monthly User fees payable are estimated in advance, monthly, based on the anticipated number of Users for Customer’s EZ-PDM Project Sites. All Fees are exclusive of taxes, if any, and are due in full on a monthly basis. Any adjustments to the monthly fee due to an increase in actual Users greater than the estimated amount will be charged retroactively with the next monthly invoice or credit card billing. Additionally, any adjustment to the monthly fee due to an increase in actual Users will be reflected in the next monthly estimated invoice or credit card charge.

d. Credit Card Payments

If on the Customer Implementation Form, Customer designates a credit card as the payment method for fees, Customer hereby authorizes Baton to automatically charge all Fees in advance against the designated credit card on a monthly basis. Customer will be liable for all fee payments not made by the credit card issuer and will promptly notify Baton of any changes to the credit card account number or expiration date of the credit card. This authorization will remain in effect until all of Customer’s EZ-PDM Project Sites are terminated and final fees are paid in full, or until Baton is notified in writing of an alternative payment method.

e. Invoices

If on the Customer Implementation Form, Customer elects to be billed on a monthly basis, Baton will invoice Customer monthly in advance for all estimated fees. Customer will promptly pay all Fees on a monthly basis prior to the applicable month for the length of the term of this Agreement.

f. Changes in Fees

Baton may change its pricing at any time. Price changes will become effective no sooner than 30 days after notice to Customer.

g. Third Party Access Charges

Customer will be responsible for connection to the Site through the internet, including any long distance or other connection charges to the Site.

h. Overdue Fees and Non-Payment

Customer will be given written notice of overdue payments. If payments are not received in full within 15 calendar days of notice of overdue payment, Baton may impose late charges on overdue payments equal to 1.5% per month or the maximum allowed by law. In addition, Baton may disable access of any or all Users to the EZ-PDM Project Sites. EZ-PDM Project Sites with payments overdue in excess of 60 days may be permanently terminated by Baton. Customer will be responsible for the reasonable costs of collecting overdue fees and/or enforcing this Agreement.

i. Renewal

Upon renewal (as described in Section 8(a)) the fees will be equal to the then-current number of total User licenses times the then-current license fee in effect at the time of renewal. Fees for other services will be charged on an as-quoted basis. Baton's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer is responsible for payment of all taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Baton’s income.

j. Excess Data Storage Fees

The maximum disk storage space provided at no additional charge is (i) 2 GB annually per 10 User license (200 MB per User). If the amount of disk storage required exceeds these limits, Customer will be charged the then-current storage fees. Baton will use reasonable efforts to notify Customer when the average storage used per license reaches approximately 90% of the maximum; however, any failure by Baton to so notify Customer will not affect Customer’s responsibility for the additional storage charges.

k. Amendment

If there is a conflict between the terms and conditions of any Customer issued purchase order and the terms and conditions of this Agreement, the terms and conditions of this Agreement will control. This Agreement may be amended or modified only by written agreement signed by Customer and Baton which refers specifically to amendment or modification of this Agreement.

8. Term and Termination

a. Term.

The term of this Agreement is six months and will automatically renew for an additional six-month period until terminated as set forth below.

b. Termination by Customer

Customer may terminate this Agreement at any time upon 30 days notice to Baton. All fees accrued through the termination date are due in full. Baton will not refund any prepaid fees due to termination by Customer, including any Deposit.

c. Termination by Baton

Baton may terminate this Agreement at any time upon 30-day prior notice to Customer. Baton will refund any pre-paid fees (including the Deposit) for the periods after the termination date.

d. Termination for Customer Breach.

Baton may terminate this Agreement immediately if Customer breaches a material provision of this Agreement (including prompt payment of fees).

9. Customer Data

Baton does not own any data, information or material that Customer submits to the EZ-PDM Project Site in the course of using the EZ-PDM Project Site (Customer Data). Customer, not Baton, has the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Baton will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. If this Agreement is terminated (other than by reason of Customer breach), Baton will make a file of the Customer Data available within 30 days of termination if requested at the time of termination. Baton reserves the right to withhold, remove and/or discard Customer Data without notice if this Agreement is terminated for Customer’s breach under Section 8(d), including, without limitation, non-payment. Upon termination for Customer’s breach, Customer’s right to access or use Customer Data immediately ceases, and Baton shall have no obligation to maintain or forward any Customer Data.

10. Baton 's Right to Prevent Access to EZ-PDM Project Sites

Baton reserves the right to temporarily prevent a User from accessing any EZ-PDM Project Sites in certain situations, including but not limited to:

Overdue fees and non-payment, as described in Section 7. (i).
If a User is locked out of the EZ-PDM Project Site due to log on failure until password is re-established.
Inappropriate use of the Site including but not limited to (a) using the Service to send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) harvesting or collecting information about the Users of the Site or use such information for the purpose of transmitting or facilitating transmission of unsolicited bulk electronic email or communications; (c) using the Site to transmit or post unlawful, harassing, libelous, abusive, tortious, defamatory, threatening, harmful, invasive of another's privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (d) using the Site to host any data or information requiring security clearances issued by the United States or any other government; (e) using the Site to transmit or post any material that may infringe or violate the intellectual property rights or other rights of third parties, including patents, trademarks, copyrights or rights of publicity; (f) using the Site to transmit or post any material that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs and cancelbots; (g) interfering with or disrupting servers or networks connected to the Site or violating the regulations, policies or procedures of such networks; (h) attempting to gain unauthorized access to the Site, other accounts, computer systems or networks connected to the Site, through password mining or any other means; or (i) harassing or interfering with another user's use and enjoyment of the Site.

11. Mutual Indemnification

a. Customer will indemnify and hold Baton, its licensors and each such party's equity owners, partners, members, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation of Customer’s representations and warranties in this Agreement; or (iii) a claim arising from the breach by Customer or Customer’s Users of this Agreement, provided in any such case that Baton (a) gives written notice of the claim promptly to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally release Baton of all liability and the settlement does not affect Baton's business or Service); (c) provides to Customer all available information and assistance; and (d) has not compromised or settled the claim.

b. Baton will indemnify and hold Customer and Customer’s equity owners, partners, members, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that EZ-PDM directly infringes a copyright, a U.S. patent issued as of the date of the Customer Implementation Form, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Baton of its representations or warranties in this Agreement; or (iii) a claim arising from breach of this Agreement by Baton; provided that Customer (a) promptly give written notice of the claim to Baton; (b) give Baton sole control of the defense and settlement of the claim (provided that Baton may not settle or defend any claim unless it unconditionally releases Customer of all liability); (c) provide to Baton all available information and assistance; and (d) have not compromised or settled the claim. Baton has no indemnification obligation, and Customer must indemnify Baton pursuant to this Agreement, for claims arising from any infringement arising from the combination of EZ-PDM with any of Customer products, service, hardware or business process(s).

12. Limitation of Liability

In no event will Baton or its suppliers be liable to the Customer or any third party for any incidental, indirect, consequential, special or punitive damages whatsoever (including but not limited to damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of any provision of this Agreement, even if Baton was advised of the possibility of these damages or if the damages are foreseeable.
In no event will Baton or its suppliers' total liability to all persons arising out of this Agreement for any given EZ-PDM Project Site exceed the fees paid to Baton for the EZ-PDM Project Site under this Agreement for the 12 months preceding the claim.

13. Ownership

This Agreement is for the license of EZ-PDM and is not a sale. Title, ownership rights, and intellectual property rights (including without limitation all applicable rights to patents, copyrights, trademarks and trade secrets) in and to EZ-PDM (including without limitation any images, data, animations, video, audio, music, and text incorporated into EZ-PDM), and all copies of EZ-PDM, are owned by Baton or its licensors, and are protected by U.S. copyright laws and international copyright treaties, as well as other intellectual property laws, treaties, and federal and state trade secret laws. The structure, organization and code of EZ-PDM are the valuable trade secrets and confidential information of Baton and its licensors and suppliers. Customer may not copy EZ-PDM software. Customer’s rights to use EZ-PDM are specified in this Agreement and Baton retains all rights not expressly granted herein. Customer agrees that Baton owns all right, title and interest in and to any changes or suggested changes made to EZ-PDM and Customer further agrees to execute any and all assignments or other documents necessary to convey ownership rights to Baton. Nothing in this Agreement constitutes a waiver of Baton’s rights under U.S. or international copyright law or any other federal or state law.

All rights not expressly granted are reserved by Baton and its licensors.

Customer must not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party EZ-PDM or the Content or its rights under this Agreement in any way; (ii) modify, adapt, translate or make derivative works based upon EZ-PDM or the Content; (iii) create Internet "links" to EZ-PDM or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer, decompile, disassemble, otherwise attempt to discover the source code or access EZ-PDM in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of EZ-PDM, or (c) copy any ideas, features, functions or graphics of EZ-PDM. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use EZ-PDM.

14. Governing Law and Arbitration

Any and all disputes arising out of or in connection with the negotiation, execution, interpretation, performance or nonperformance of this Agreement shall be solely and finally settled by arbitration, which will be conducted in Illinois, U.S.A. by a single arbitrator appointed by the American Arbitration Association. The parties hereby renounce all recourse to litigation and agree that the award of the arbitrator will be final and subject to no judicial review. The arbitration will by conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association, as now or hereafter amended. All substantive questions of law will be determined under the laws of the State of Illinois, U.S.A. (without regard to the principles of conflicts of laws of Illinois).

15. Assignment

Baton may assign this Agreement for any reason, including the event of a merger, acquisition or similar transaction, if the acquiring party agrees to be bound by its terms. No waiver of any breach of this Agreement will constitute a waiver of any other breach or any other provision of the Agreement, and no waiver will be effective unless made in writing. If any provision of this Agreement is held invalid, such provision will be restated to reflect, as nearly as possible, the original intentions of the parties and the remainder of this Agreement will remain in full force.

16. Severability

This Agreement and the Customer Implementation Form comprise the entire Agreement with respect to the subject matter hereof and supersede all prior agreements between the parties regarding the subject matter of this Agreement.

17. Export Rules

Customer must not ship, transfer or export into any country the EZ-PDM or use the EZ-PDM in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (Export Laws).

18. Notice

Baton may give notice by means of a general notice on the Site, electronic mail to the Customer Administrator’s e-mail address on record in Baton's account information, or by written communication sent by first class mail or pre-paid post to the address on record in Baton's account information. The notice will be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Customer may give notice to Baton (the notice will be deemed given when received by Baton) at any time by any of the following: letter sent by confirmed facsimile to Baton at the following fax number: 888-627-1740; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Baton at the following address: Baton Technologies, LLC, 251 Linden Avenue, Wilmette, Illinois, 60091.