Briggs & Stratton Corporation (hereinafter referred to as “Briggs & Stratton” or “we”) offers the InfoHub™ software subscription services for use by standby power equipment owners and operators (“Service”). The Service is available on a subscription service basis. The subscription account holder (“Customer” or “you”) wishes to access and use the Service pursuant to the terms of this Subscription Services Agreement (“Subscription Agreement”).
BY CREATING YOUR ACCOUNT, YOU AGREE TO THE TERMS OF THIS SUBSCRIPTION AGREEMENT AND YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO COMPLY WITH THIS SUBSCRIPTION AGREEMENT AND THAT YOU ARE ENTERING INTO A BINDING CONTRACT WITH BRIGGS & STRATTON. IF YOU DO NOT AGREE TO ACCEPT THE TERMS OF THIS SUBSCRIPTION AGREEMENT, YOU MAY NOT USE THE SERVICE.
IF YOU ARE ENTERING INTO THIS SUBSCRIPTION AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS SUBSCRIPTION AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THE TERMS OF THIS SUBSCRIPTION AGREEMENT, YOU MAY NOT USE THE SERVICE.
ARBITRATION NOTICE: THIS SUBSCRIPTION AGREEMENT’S TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS, EXCEPT AS MAY BE PROHIBITED BY APPLICABLE LAW, AND INCLUDE A WAIVER OF BRINGING YOUR CLAIM IN A CLASS ACTION LAWSUIT.
1. Subscription Service. InfoHub is a software subscription service we offer for use in connection with standby power equipment. The Service requires the pairing of standby power equipment and an internet connected device working together (“Equipment”). The Service allows authorized users to collect, use, analyze and store comprehensive data about the Equipment they own or operate. The Service may give you access to various types of information about your standby power equipment, such as run time, equipment status, maintenance, hours of operation, utilization, conditions, battery voltage levels, and equipment connectivity status. You may create custom reports using the Service. The Service includes analytic information about your use of the Equipment.
Subject to your timely payment of subscription fees and compliance with this Subscription Agreement, Briggs & Stratton will provide you with: (a) the right to access and use the Service and the Content in connection with the operation of Customer’s standby power equipment; and (b) support services for the Service.
3. CONNECTIVITY. YOU ARE SOLELY RESPONSIBLE, AT YOUR OWN EXPENSE, FOR ACQUIRING, INSTALLING AND MAINTAINING ALL NECESSARY WIFI CONNECTIVITY NECESSARY TO ACCESS AND USE THE SERVICE. HOWEVER, IF APPLICABLE, ANY CONNECTIVITY THROUGH CELLULAR SERVICE SHALL BE INCLUDED WITH THIS SUBSCRIPTION.
4. Authorized Users. Only persons authorized by Customer to access and use the Service through the creation of secondary accounts are permitted to use the Service (“Authorized Users”). Customer is responsible for the actions or inactions of its Authorized Users when accessing and using the Service. Customer shall be responsible for all Authorized User identifications and passwords. Customer agrees that:
(a) it will not allow any Authorized User’s account to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Service;
(b) it will ensure that the Authorized Users use the Service in accordance with the terms and conditions of this Subscription Agreement;
(c) it shall be liable to Briggs & Stratton for any actions by an Authorized User in violation of this Subscription Agreement; and
(d) it will immediately notify Briggs & Stratton upon becoming aware of unauthorized access or use of the Service.
5. Subscription Services Fees. We provide the Service upon your timely payment of subscription fees.
5.1 Fees. Upon activation of your subscription, you shall pay Briggs & Stratton in advance for the subscription fees (“Fees”) for the Service plus any applicable Taxes for the entire term you select. Similarly, Fees and applicable Taxes for any renewal terms shall be paid in advance and for the entire renewal term. You may pay your Fees and Taxes using a credit card (or ACH, where available). Subscription fees are calculated on a per device basis. Briggs & Stratton may, at its sole option, elect to adjust the subscription fee at the start of any new term. Any such subscription fee adjustment shall be reasonable and based upon inflationary rates (as established by BLS), service level adjustments, added features and functionality, other business justifications as established by Briggs & Stratton, or any combination of the above.
5.2 Recurring Payment. Customer understands that its credit card will be automatically charged (or where available, ACH payment will be automatically withdrawn or accessed) on a recurring basis at the start of the initial term and each renewal term (where available) until you cancel the Service or until we terminate this Subscription Agreement. If your credit card or ACH information is no longer current or invalid, your access to the Service may be interrupted. Briggs & Stratton shall have no liability to you for your failure to keep your payment information current or valid.
5.3 Taxes. Customer shall pay all applicable taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) for the use of the Service, provided that Customer shall not be liable for any taxes based on Briggs & Stratton’s income.
6. Ownership and License Rights.
6.1 Service, Documentation and Content. Briggs & Stratton or its licensors own all rights, title and interest in the Service, including but not limited to the software, the platform, the look and feel of the platform and any compilations, images, photography, graphics, artwork, text and other information and material found within the Service (“Content”) and any instructions, training materials, user guides and other information supplied by Briggs & Stratton to Customer to assist in the use of the Service (“Documentation”), and the Content, including all related intellectual property rights. Nothing in this Subscription Agreement grants or transfers to Customer or its Authorized Users any ownership rights to, or licenses in, the Service, the Documentation, or the Content, or any related intellectual property rights, including, without limitation, patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), in respect of the Service, the Documentation or the Content.
6.3 Customer Suggestions. Customer grants Briggs & Stratton a worldwide, perpetual, royalty-free, assignable, sub-licensable, transferable, irrevocable right and license to use and incorporate into our Service, our Content, or our products, or services any suggestions, enhancement requests, recommendations, corrections or other feedback provided by Customer.
8. Customer Representations and Obligations.
8.1 Customer represents to Briggs & Stratton that Customer will only use the Service, the Documentation, the Content or the InfoHub Data in compliance with all applicable laws, rules and regulations, and will not violate the rights of any third parties (including privacy rights) in providing or utilizing the Service, the Documentation, the Content, or the InfoHub Data.
8.2 Customer represents that it has the authority to use the InfoHub Data it incorporates into the Service.
8.3 Customer will use its best efforts to prevent unauthorized parties from accessing or using the Service, the Documentation, the Content or the InfoHub Data.
9. Confidential Information.
9.1 In providing and utilizing the Service, each party will be required to share certain “Confidential Information” with the other party. For purposes of this Subscription Agreement, Confidential Information means any software or information regarding the Service, the Content, the Documentation or the InfoHub Data, or the technical infrastructure of the Service which is proprietary to Briggs & Stratton or Customer, and that the applicable party would not disclose in the absence of a confidentiality agreement. Each party will maintain the confidentiality of the Confidential Information of the other party during and after termination of this Subscription Agreement. Confidential Information does not include data or information that:
(a) is within the public domain at the date of disclosure by the disclosing party or which thereafter enters the public domain through no fault of the receiving party;
(b) is already known to the receiving party at the time of its disclosure by the disclosing party; or
(c) is received by the receiving party without obligation of confidence from a third-party.
9.2 Non-Disclosure Obligations.
(a) The party receiving Confidential Information shall not, directly or indirectly, provide any Confidential Information to any person or entity or for any purpose whatsoever (including in any manner that would benefit any competitor of Briggs & Stratton) except as expressly permitted under this Subscription Agreement;
(b) The party receiving Confidential Information will use and reproduce the Confidential Information only to the extent necessary to utilize the Service;
(c) The party receiving Confidential Information may not disclose the Confidential Information except to its employees and agents (“Representatives”) who have a need to know the Confidential Information to exercise its rights or obligations under this Subscription Agreement and who have assumed obligations of confidentiality equal to or greater than the obligations under this Section;
(d) The party receiving Confidential Information will use reasonable efforts to treat all Confidential Information as strictly confidential, provided that in no event will such efforts be less than the degree of care that the disclosing party uses to protect its own confidential information; and
(e) Upon the request of the disclosing party, the receiving party, will return or destroy all Confidential Information in its possession or control.
9.3 Compelled Disclosure. The receiving party will be entitled to disclose Confidential Information of the disclosing party if required by a court, administrative body, or regulatory body (including a stock exchange) of competent jurisdiction or applicable law, provided that the receiving party will:
(a) give prompt advanced written notice of any such requirement for disclosure to the disclosing party so that the disclosing party may seek a protective order or other appropriate remedy;
(b) take such steps as are reasonably necessary and available to maintain the confidentiality of the Confidential Information by such court, administrative or regulatory body; and
(c) make such disclosure only to the minimal extent so required to comply with the applicable law or governmental body request.
9.4 Equitable Relief. A breach of the confidentiality obligations under this Agreement may result in irreparable harm to the disclosing party, for which there is no adequate remedy at law. In the event of a breach or a threatened or intended breach of the above confidentiality by the receiving party, the disclosing party shall be entitled to seek an injunction, enjoining and restraining such breach, or threatened or intended breach, and to such other rights and remedies as are available at law or in equity without the need to post bond or other security or the need to prove actual damages.
10. Technical Support. Briggs & Stratton will, as part of the Service and at no additional cost to Customer, provide Customer with technical support for the Service as described in Exhibit 1 to this Agreement.
11. Service Availability. During the subscription period, Briggs & Stratton shall use commercially reasonable efforts to make the Service available to Customer on a 24x7 basis (twenty-four hours per day, seven days per week), except for: (i) scheduled system back-up or other on-going maintenance as required by Briggs & Stratton, (ii) for any unforeseen cause beyond Briggs & Stratton’s reasonable control, including, but not limited to, internet service provider or communications network failures, weather, natural disasters, denial of service attacks, or similar attacks, interruption of service from a third-party service provider or any force majeure events set forth in this Agreement, or (iii) without notice in the case of an emergency maintenance situation.
12. AS-IS SERVICE; NO WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRIGGS & STRATTON PROVIDES THE SERVICE, THE DOCUMENTATION, THE CONTENT AND THE INFOHUB DATA ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRIGGS & STRATTON EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES RELATED TO THE SERVICE, THE DOCUMENTATION, THE CONTENT, OR THE INFOHUB DATA, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BRIGGS & STRATTON MAKES NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THE DOCUMENTATION, THE CONTENT OR THE INFOHUB DATA, NO WARRANTY THAT THE SERVICE OR THE INFOHUB DATA WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, AND NO WARRANTY THAT ANY DEFECTS IN THE SERVICE, THE DOCUMENTATION, THE CONTENT OR THE INFOHUB DATA WILL BE CORRECTED. WE MAKE NO WARRANTIES REGARDING THE ACCURACY, COMPLETENESS, SECURITY, RELIABILITY, QUALITY, TIMELINESS OR AVAILABILITY OF THE SERVICE OR THE INFOHUB DATA, NOR ANY ERRORS OR OMISSIONS IN THE SERVICE, THE DOCUMENTATION, THE CONTENT, OR THE INFOHUB DATA.
IF YOU ARE NOT SATISFIED WITH THE SERVICE, THE DOCUMENTATION, THE CONTENT OR THE INFOHUB DATA, YOUR SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE YOUR SUBSCRIPTION AND CEASE USING THE SERVICE.
SOME U.S. STATES, CANADIAN PROVINCES, AND OTHER JURISDICTIONS DO NOT PERMIT WARRANTY EXCLUSIONS, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
13. EQUIPMENT WARRANTY. THE WARRANTY FOR THE EQUIPMENT IS COVERED UNDER THE TERMS ON WHICH YOU PURCHASED THAT EQUIPMENT AND NOT THIS AGREEMENT. THIS AGREEMENT DOES NOT PROVIDE YOU WITH ANY ADDITIONAL WARRANTY OR OTHER RIGHTS IN RELATION TO THE EQUIPMENT.
14. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BRIGGS & STRATTON, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DEALERS, CONTRACTORS, AGENTS, PROFESSIONAL ADVISORS, SUPPLIERS, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS OR ANY OF THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, PROFESSIONAL ADVISORS, SUCCESSORS OR ASSIGNS (TOGETHER, "BRIGGS & STRATTON PARTIES") HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY DELAYS, PROBLEMS, DELIVERY FAILURES, DETERIORATION, DEGRADATION, OR LOSS IN OR OF ABILITY TO USE THE SERVICE, THE DOCUMENTATION, THE CONTENT OR THE INFOHUB DATA OR THAT ARE IN ANY WAY ATTRIBUTABLE TO: COMMUNICATIONS NETWORKS AND FACILITIES OUTSIDE BRIGGS & STRATTON’S DEMARCATION POINT, CONNECTIVITY OR NETWORK ACCESS WHICH IS OUTSIDE OF THEIR REASONABLE CONTROL, ANY THIRD-PARTY PRODUCT, SERVICE OR SOFTWARE WHICH BRIGGS & STRATTON DOES NOT CONTROL, THE INTERNET, OR CUSTOMER’S OR ITS AUTHORIZED USERS’ FAILURE TO MAKE COMMERCIALLY REASONABLE ADJUSTMENTS WHEN RECOMMENDED BY BRIGGS & STRATTON TO DO SO.
SOME U.S. STATES, CANADIAN PROVINCES, AND OTHER JURISDICTIONS DO NOT PERMIT LIMITATION OF LIABILITY PROVISIONS FOR CERTAIN CLAIMS, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
15. CUSTOMER ACKNOWLEDGEMENTS. CUSTOMER ACKNOWLEDGES THAT IT HAS OR WILL HAVE INDEPENDENTLY DETERMINED THAT THE SERVICE MEETS ITS BUSINESS REQUIREMENTS. CUSTOMER IS SOLELY RESPONSIBLE, AT ITS OWN EXPENSE, FOR ACQUIRING, INSTALLING AND MAINTAINING ALL NECESSARY DATA COMMUNICATIONS CIRCUITS AND CONNECTIVITY SERVICE, RELATED EQUIPMENT, HARDWARE, SOFTWARE, SERVICES, CONTENT AND INFOHUB DATA ON THE CUSTOMER SIDE OF DEMARCATION NECESSARY TO ACCESS AND USE THE SERVICE.
16. CONSEQUENTIAL DAMAGES EXCLUSION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE BRIGGS & STRATTON PARTIES BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY: (A) INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, (B) LOST PROFITS, LOST DATA OR LOSS OF USE OF DATA, LOST REVENUES, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF USE, OR BUSINESS INTERRUPTION, OR (C) EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO:
(a) YOUR USE, INABILITY TO USE OR THE RESULTS OF THE USE OF THE SERVICE, THE DOCUMENTATION, THE CONTENT, THE EQUIPMENT, OR THE INFOHUB DATA;
(b) THE RESULTS OF YOUR USE OF THE SERVICE, THE DOCUMENTATION, THE CONTENT, THE EQUIPMENT, OR THE INFOHUB DATA;
(c) A DATA SECURITY OR PRIVACY INCIDENT OR BREACH RELATED TO THE SERVICE, THE CONTENT, THE EQUIPMENT OR THE INFOHUB DATA;
(d) LOST, CORRUPTED OR COMPROMISED DATA RELATED TO YOUR ACCOUNT OR YOUR USE OF THE SERVICE, THE CONTENT OR THE INFOHUB DATA;
(e) LOSS OF ENJOYMENT OF THE SERVICE, THE CONTENT, THE INFOHUB DATA OR EQUIPMENT, OR BUSINESS INTERRUPTION;
(f) UNAUTHORIZED ACCESS TO OR USE OF YOUR ACCOUNT, THE SERVICE, THE DOCUMENTATION, THE CONTENT, OR THE INFOHUB DATA;
(g) ANY TOTAL OR PARTIAL FAILURE OF PERFORMANCE OF, OR MALFUNCTION OF, THE SERVICE; OR
(h) YOUR VIOLATION OF THIS SUBSCRIPTION AGREEMENT OR THE STANDBY TERMS.
THE LIMITATIONS OF LIABILITY AND CONSEQUENTIAL DAMAGES EXCLUSIONS UNDER THIS SUBSCRIPTION AGREEMENT WILL APPLY WHETHER A CLAIM IS BASED UPON A BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR ANY BRIGGS & STRATTON PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND FURTHER INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR PROPERTY DAMAGE CLAIMS RELATED TO ANY TOTAL OR PARTIAL FAILURE OF PERFORMANCE OF, OR MALFUNCTION OF THE SERVICE, EVEN IF CAUSED BY OUR NEGLIGENCE.
SOME U.S. STATES, CANADIAN PROVINCES, AND OTHER JURISDICTIONS DO NOT PERMIT EXCLUSIONS FOR CERTAIN DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
17. CAP ON DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE BRIGGS & STRATTON PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS, INCLUDING, WITHOUT LIMITATION, CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, AND CUSTOMER’S SOLE REMEDY, SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE AMOUNT OF THE FEES PAYABLE BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO OUTSTANDING FEES OWING TO BRIGGS & STRATTON UNDER THIS AGREEMENT.
SOME U.S. STATES, CANADIAN PROVINCES, AND OTHER JURISDICTIONS DO NOT PERMIT LIMITATION OF LIABILITY PROVISIONS FOR CERTAIN CLAIMS, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
18. Time Frame for Claims. No action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known to, or reasonably ought to have been discovered by the party bringing the action.
19.1 Customer represents to Briggs & Stratton that it owns all rights, title, and interest in and to the InfoHub Data necessary to permit the storage and use of the InfoHub Data in connection with the Service and as permitted under this Subscription Agreement.
19.2 Briggs & Stratton shall not be responsible or liable for InfoHub Data, except for: (a) maintaining the level of security and confidentiality referred to in this Subscription Agreement; (b) protecting the confidentiality of the InfoHub Data; (c) compliance with applicable laws regarding the InfoHub Data in the provision of the Service; (d) any loss, corruption or misuse of the InfoHub Data caused by Briggs & Stratton or its Representatives; or (e) intentional misconduct by Briggs & Stratton or its Representatives.
19.3 Customer shall ensure that it obtains all privacy consents and permissions as required by applicable law for the collection, use, storage, disclosure and transfer of InfoHub Data to Briggs & Stratton for Briggs & Stratton’s use, copying, processing and storage in connection with providing the Service.
19.5 Briggs & Stratton uses physical, technical and administrative safeguards for protection of the security, confidentiality and integrity of the InfoHub Data, as described in the Documentation. Briggs & Stratton utilizes measures to limit the availability of InfoHub Data to only those Briggs & Stratton Representatives who have a need to access the InfoHub Data: (a) to operate and maintain the Service; (b) to perform data analytics, (c) if required by applicable law; and (d) if you provide written permission.
20. Notification of Data Breach. In the event that Briggs & Stratton becomes aware of a data security breach or incident with regard to the InfoHub Data, Briggs & Stratton shall take the following actions:
20.1 Promptly communicate the nature of the breach or incident to Customer.
20.2 Assist Customer in notifying impacted individuals or government officials of the breach or incident.
21.1 Customer’s Duty to Indemnify. To the maximum extent permitted by applicable law, Customer agrees to defend, indemnify and hold Briggs & Stratton and its subsidiaries, affiliates, and officers, directors and Representatives, successors and assigns (the “Briggs & Stratton Indemnitees”) harmless from and against any third-party claims. In addition, Customer will cover and pay for any and all liabilities, losses, costs, damages, penalties and expenses (including reasonable legal fees and expenses and court costs of an attorney of its own choosing) which the Briggs & Stratton Indemnitees may incur or suffer as a result of any such third-party claim. Customer will be bound by and will also pay the amount of any settlement, compromise, determination or judgment reached (regardless of whether or not there is an appeal pending):
(a) for injury (including death) to a person or damage to tangible personal property to the extent such claims are proximately caused by the negligent acts or omissions or intentional misconduct of Customer or Customer Authorized Users;
(b) for violations by Customer or its Authorized Users of this Subscription Agreement; and
(c) for violations of applicable laws.
21.2 Notice of Claim. Briggs & Stratton will notify Customer within a reasonable time after Briggs & Stratton first receives written notice of such third-party claim; however, delay in notice shall not relieve Customer of its duties to indemnify Briggs & Stratton except and only to the extent that Customer was actually prejudiced by such delay. Notwithstanding the foregoing, Customer shall not agree to any settlement which (i) finds fault or liability or requires any obligations of any Briggs & Stratton Indemnitees without Briggs & Stratton’s advance written approval; and (ii) resolves the third-party claim in a manner that involves injunctive or other equitable relief.
22. Force Majeure. Neither party shall be liable for delay or failure in performance, except the payment of money due prior to the Force Majeure event, resulting from Force Majeure. “Force Majeure” means any occurrence beyond the reasonable control of a party which cannot be avoided through reasonable contingency planning by such party including acts of God, disasters, fires, floods, earthquakes, explosions, riots, war, terrorism, sabotage, nuclear incidents, or acts of government.
In the event a Force Majeure event occurs for Briggs & Stratton and lasts longer than seven (7) calendar days and causes Customer and its Authorized Users to be unable to access the Service or causes significant delay or issues with the Service, Customer or Briggs & Stratton may terminate this Subscription Agreement, without penalty, on written notice to the other party.
24.1 Briggs & Stratton may immediately suspend the Service if in its judgment, Customer’s or its Authorized Users’ use of the Service threatens the security, integrity or availability of the Service, the Content, the InfoHub Data or the Analytics Data. Briggs & Stratton will use commercially reasonable efforts under the circumstances to provide you with notice of such suspension.
24.2 If you fail to make payments when due, we will provide you with written notice of your default five (5) days after you are past due. If you fail to make the payment within five (5) days after the date of the first notice of default, we will provide you a notice of suspension or termination, advising you that the Service will be suspended or terminated five (5) days after the date of the notice of suspension or termination. We will provide notice of default and notice of suspension or termination to the primary account holder at the email address provided at the time you subscribe to the Service.
25.2 Either party may terminate this Agreement for a material breach. The non-breaching party shall give the breaching party written notice stating the nature and character of the breach. Except for Customer's breach of its payment obligations, the non-breaching party shall allow the breaching party thirty (30) calendar days from the date of the notice to correct the breach. If the breach remains uncured after such thirty (30) calendar day period, the non-breaching party may terminate the Agreement.
(a) Notwithstanding the provisions of Section 23.1(a), if Customer fails to make payments when due, we will provide you with written notice of your default five (5) days after you are past due. If you fail to make the payment within five (5) days after the date of the first notice of default, we will provide you a notice of suspension or termination, advising you that the Service may be suspended or terminated five (5) days after the date of the notice of suspension or termination. We will provide notice of default and notice of suspension or termination to the primary account holder at the email address provided at the time you subscribe to the Service.
25.3 In the Event of Insolvency or Bankruptcy. Either party may terminate the Agreement upon advanced written notice to the other party, if any of the following events occurs to such other party: (a) there is a voluntary/involuntary petition in bankruptcy filed by/against the other party; (b) the other party becomes insolvent or makes a general assignment for the benefit of its creditors or an arrangement for its creditors, or takes the benefit of any law in force for insolvent persons; (c) the other party ceases to carry on business as a going concern; (d) a receiver or manager is appointed for the business of the other party; or (e) the other party takes the benefit of any law in force for the winding up or liquidation of its corporation or other entities.
25.4 Refund or Payment upon Termination. If Briggs & Stratton terminates this Agreement in accordance with Section 23.1, Customer (a) shall pay any unpaid fees covering the remainder of the term to Briggs & Stratton and (b) will not be entitled to a refund for any sums previously paid. Further, in no event will termination relieve Customer of its obligation to pay any Fees payable for the period prior to the effective date of termination.
26. Data Portability and Requests for InfoHub Data.
26.1 You may request the right to export the InfoHub Data within 45 days after the effective date of termination or expiration of this Subscription Agreement. Briggs & Stratton will make the InfoHub Data available to you for export or download as provided in the Documentation. After such 45-day period, Briggs & Stratton will have no obligation to maintain or provide any InfoHub Data to you.
26.2 If Briggs & Stratton receives a request for your InfoHub Data pursuant to a subpoena, governmental process or as otherwise required by law, Briggs & Stratton may charge you for the costs of retrieving such data at our then standard hourly rate for data recovery services.
27. Governing Law. Except as expressly set forth below, this Subscription Agreement is governed by the laws of the State of Wisconsin without reference to the conflicts of law principles. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the International Sale of Goods Act (Ontario), or the Uniform Computer Information Transactions Act (UCITA), as amended, replaced or re-enacted from time-to-time, the application of any of which is hereby expressly excluded.
28. Exclusion of Liabilities; Consumer Protection Notices:
If you are a consumer, the provisions in this Subscription Agreement are intended to be only as broad and inclusive as is permitted by the laws of your jurisdiction of residence.
- If you are a New Jersey Resident:
No provision in this Subscription Agreement shall apply to any consumer in New Jersey if the provision limits remedies for: (i) negligence, (ii) products liability claims, (iii) punitive damages, (iv) the New Jersey Uniform Commercial Code, or (v) failure to reasonably protect against harm arising from certain criminal acts of third parties (e.g., computer hacking and identity theft). The provisions of this Subscription Agreement concerning the exclusion or limitation of certain damages are not applicable in New Jersey with respect to statutory damages, punitive damages, loss of data, and loss of or damage to property.
Briggs & Stratton reserves all rights, defenses and permissible limitations under the laws of New Jersey and under the laws of your state of residence.
- If you are a Canadian Consumer (Generally):
To the extent the laws of the Province of Canada in which you are a resident prohibit waivers of class actions in consumer agreements, such waiver shall be severed from this Subscription Agreement and the remaining terms and conditions herein, including the arbitration provisions, shall continue in full force and effect. In the event the Province of Canada of which you are a resident prohibits waivers of class actions and binding arbitration in consumer agreements, such provisions shall be severed from this Subscription Agreement and the remaining terms and conditions herein shall continue in full force and effect.
- If you are a Consumer located in Quebec.
Notwithstanding anything to the contrary herein, for consumers located in the Province of Quebec only, this Agreement is governed by the laws of the Province of Quebec and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision, principle or rule. Furthermore, any provisions in this Agreement regarding (a) any stipulation whereby Briggs & Stratton is liberated from the consequences of its own acts and (b) any warranty exclusions prohibited by applicable law shall not apply with respect to consumers located in Quebec.
Notwithstanding language to the contrary below, in the event of conflict between the English and French versions of this Subscription Agreement, the terms most favorable to the consumer shall apply.
Briggs & Stratton reserves all rights, defenses and permissible limitations under the laws of Canada, including, but not limited to, the Province of Quebec.
· If you are located in the European Economic Area:
Notwithstanding anything to the contrary herein, for individuals located in the European Economic Area, this Subscription Agreement is governed by the laws of the country of which you are a resident.
To the extent those laws prohibit waivers of class actions in consumer agreements, such waiver shall be severed from this Subscription Agreement and the remaining terms and conditions herein, including the arbitration provisions, shall continue in full force and effect. To the extent those laws prohibit waivers of class actions and binding arbitration in consumer agreements, such provisions shall be severed from this Agreement and the remaining terms and conditions herein shall continue in full force and effect.
29. Modifications. Briggs & Stratton reserves the right to modify this Subscription Agreement at any time. If we materially update this Subscription Agreement at any time, we will send you at least thirty (30) days’ prior written notice of the proposed modifications and the date such amendments will come into effect or as otherwise permitted by applicable law. If you do not agree to such modifications, you have the right to terminate this Subscription Agreement by providing us written notice no later than thirty (30) days after the modifications become effective.
30. DISPUTE RESOLUTION AND ARBITRATION OF DISPUTES.
There are some exceptions to this mandatory arbitration provision. Specifically, either Briggs & Stratton or you may at any time: (a) bring a small claims court suit; (b) pursue claims with federal, state or local government agencies, if applicable; (c) pursue a claim for injunctive relief; or (d) bring an action to enforce intellectual property rights.
- Applicable Process. Either Briggs & Stratton or you may bring an arbitration proceeding under the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Arbitration Rules of the American Arbitration Association (“AAA”). The Federal Arbitration Act governs the enforcement of this provision.
You may obtain instructions on how to file arbitration with AAA by calling AAA at 1‑800‑778‑7897 or online at www.adr.org, or we can assist you in contacting AAA. The arbitration will take place at a location in Milwaukee, Wisconsin, unless the amount of the claim is for $10,000.00 or less, in which case either of us have the choice of: (a) submitting the dispute to the arbitrator based upon documents only; (b) using a telephone hearing; or (c) attending in person as established under the AAA rules in the place where your Equipment is located.
The fees you incur in arbitration and your share of the arbitrator’s fees are limited, as set forth in the AAA Consumer Rules. Briggs & Stratton will pay the remaining fees. If the arbitrator determines your claim was improper or frivolous, payment of all fees will be governed by the AAA Rules and you will be required to reimburse us. The arbitrator is required to issue a written decision sufficient to explain the facts and legal conclusions on which the decision and award are based. The arbitrator may resolve disputes as to the payment and reimbursement of fees or expenses during the arbitration proceeding, or if requested by a party, within fourteen (14) days of the arbitrator’s issuance of an award.
To bring an arbitration action, a party must file a demand for arbitration no later than one year after the facts giving rise to the cause of action have occurred or that claim will be time barred and you will have no right to seek any other remedy. In instances where an one‑year time limit is prohibited, the claim must be brought within the shortest time period permitted by applicable law.
- Arbitration Proceedings. If a party wishes to bring an arbitration proceeding under this Agreement, that party must send written notice of the dispute by letter or email to the other party. The notice must contain (a) an explanation of the dispute; and (b) describe the specific remedy or award you seek from the arbitrator. The parties then must work together in good faith to attempt to resolve any such dispute through discussions or email communications. If the parties cannot resolve the dispute within thirty (30) days after notice is first received of the dispute, either party may submit the dispute to arbitration.
The arbitration and all information disclosed during the arbitration may not be disclosed to any third party except as required by law. The parties will not make any comments or announcements to the public about the subject matter or outcome of the arbitration.
If Briggs & Stratton changes this arbitration provision, you may reject that change by sending us a written notice within thirty (30) days of the change, in which case we will terminate your access to the Service.
If the waiver of a class action or the arbitration provision is held to be unenforceable, only the waiver of class action or arbitration provision is null and void and all remaining terms and conditions in this Subscription Agreement shall remain in full force and effect.
31. Waiver of Class Action.
32. Assignment and Change of Control. Neither party may assign this Subscription Agreement or any of its rights, benefits, warranties or obligations hereunder, in whole or in part, without the prior written consent of the other party, which consent will not be unreasonably withheld. Any attempt to assign this Subscription Agreement, in whole or in part, without such prior written consent is void. Notwithstanding the foregoing, either party may assign the Subscription Agreement or any of its rights, benefits, warranties or obligations hereunder, in whole or in part, without the prior written consent of the other party to an Affiliate of the assigning party, or in the case of: (a) a merger, (b) a transfer of more than fifty percent (50%) of the equity ownership of the assigning party, or (c) the sale of all or substantially all of the assigning party’s assets.
33. Notices. Any notice required or permitted to be sent to you under this Subscription Agreement shall be sent by electronic mail to the primary account holder. Notices to Briggs & Stratton should be addressed to Briggs & Stratton Customer Support and sent via certified mail to:
Briggs & Stratton Corporation
Attn: Customer Support
12301 W. Wirth Street
Wauwatosa, WI 53222
with a copy sent to:
Briggs & Stratton Corporation
Attn: General Counsel
12301 W. Wirth Street
Wauwatosa, WI 53222
You may also contact our Customer Service Team at 1-833-INFOHUB (1-833-463-6482). However, contacting the Customer Service Team by phone shall not constitute “notice” for purposes of any notice requirement included in this Agreement.
35. Severability. If any provision of this Subscription Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from the Subscription Agreement and the other provisions shall remain in full force and effect.
36. Waiver. No waiver will be deemed to have been made unless expressed in writing and signed by the authorized representative of the party against which such waiver is to be asserted. No delay or omission on the part of any party in exercising any right or privilege under this Subscription Agreement will operate as a waiver thereof. A waiver of any provision of this Subscription Agreement will not be deemed to waive the same provision thereafter, or any other provision of this Subscription Agreement.
37. Survival. In the event of the termination of this Subscription Agreement, the provisions which by their nature are intended to survive expiration or termination shall survive.
38. Export Compliance. The Service, Documentation, Content, and the InfoHub Data may be subject to export laws and regulations of the United States, Canada, and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in: (i) a U.S. embargoed country or in violation of any U.S. export law or regulation; or (ii) countries listed on Canada's Area Control List, countries with export prohibitions or limitations due to current economic sanctions, or entities or persons with export prohibitions or limitations due to terrorism designations.
39. Anti-Corruption. Customer agrees that it has neither received nor been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Briggs & Stratton’s Representatives in connection with this Subscription Agreement.
40. Independent Contractors. Briggs & Stratton and Customer are independent contractors and neither Briggs & Stratton nor any of its employees or agents shall be an employee, agent, partner or joint employee of Customer. Briggs & Stratton assumes sole responsibility for the withholding and payment of all appropriate income and employment taxes for its employees. Briggs & Stratton is solely responsible for all employee rights and benefits for its employees, including compliance with employment laws including workers’ compensation, unemployment insurance and wage and hour laws.
41. Counterparts. This Subscription Agreement may be executed in counterparts, each of which shall constitute an original and all of which taken together shall constitute one and the same instrument.
42. Translation. The parties expressly agree that the official text of this Agreement shall be in the English language, notwithstanding any translations provided in French or any other language. Except as otherwise set forth herein, the English language version of this Subscription Agreement shall control in all respects, including, but not limited to, any interpretation or construction of this Subscription Agreement or in the event of any discrepancies between the English and French (or other language) translations of this Agreement.
It is the express wish of the parties that this Subscription Agreement and all related documents be drawn up in English. Chest la volonté expresse des parties que la présente convention ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.