Consent Agreement Form
Terms of Service
Welcome to Komatsu! Komatsu provides (1) the Komatsu website located at https://mykomatsu.komatsu/ , and all associated sites linked to https://mykomatsu.komatsu/ (each a "Site"), (2) services accessible through the Sites ("Web Apps"), (3) software that may be downloaded to your smartphone or tablet to access services ("Mobile Apps"), and (4) subscription services, including services that can be accessed using the Web Apps and Mobile Apps ("Subscription Services"), all for use in conjunction with Komatsu machines, equipment, and other products and in other ways that Komatsu provides.
These Terms of Service ("Terms" or "Agreement") govern your access to, and use of, the Services. Please read these Terms carefully. These Terms give you specific legal rights. In addition, you may also have other legal rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, limitations of liability, indemnification, and waiver of punitive damages under these Terms will not apply to the extent prohibited by applicable law.
THESE TERMS ARE A LEGAL AGREEMENT. BY ACCEPTING THESE TERMS THROUGH A SITE, WEB APP OR MOBILE APP, OR BY ACCESSING AND USING THE SERVICES (INCLUDING THE SITES), YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE SERVICES.
ARTICLE 1: DEFINITIONS
- The term "you," as used in these Terms, means any person or entity who accesses or uses the Services and any person or entity who creates an Account and accepts these Terms.
- “Account” refers to a user profile registered to any of the Services, which allows the user to access the Service or Services.
- “Account Service” refers to the web service managed by Komatsu, which creates and manages accounts to log in to MyKomatsu.
- “Administrator Account” refers to the account created by the chief administrator of the Customer, and the account that can manage users and change, terminate, etc. the Account.
- "Anonymous Customer Information" means any Customer Information in which no Customer or individual may be specified or identified (including information obtained by adding certain processing (including statistical processing or analysis) to the Customer Information, by which any Customer or individual included in the information has become unable to be specified or identified).
- “Anonymous Customer Installation Information” refers to the Customer Installation Information of the Customer or individual who is not identified or recognized (including the Customer Installation Information that went through a certain process [including statistical processing or analysis] so that the Customer or individual is not identified or recognized).
- “App Store” refers to third-party websites, e.g., the Google Play Store for Android devices and from the Apple App Store for iOS devices from which Apps can be downloaded.
- “Application” or “App” refers to the any of the software applications provided or sold by the Company through MyKomatsu, inclusive of any Web Apps or Mobile Apps.
- “Chief Administrator” refers to an officer or employee of the Customer who is authorized to manage users or change, terminate, etc. an Account on behalf of the Customer.
- “Confidential Information” refers to any technical, marketing or any other business information of a party obtained in connection with the Services (excluding Customer Information).
- “Company” refers to Komatsu.
- “Construction Equipment” refers to any construction equipment, such as hydraulic excavators, bulldozers, including ICT construction equipment.
- "Customer Information" means any information that is directly or indirectly provided to Komatsu in the course of using any Service by the Customer or the Users authorized by such Customer, which includes, among other things, information that the Customer or such Users enter into MyKomatsu or any of the Services by way of an Application, information that Komatsu acquires when accessing the controlling system installed in the Registered Construction Equipment or collected via IoT device (including terrain survey data, photographic data, 3D terrain maps, and location and operation data of the Construction Equipment), all other information the Customer provides to and stores in MyKomatsu or any of the Services either directly or indirectly, as well as any information obtained by processing or analyzing each of them.
- “Data Linking Provider” refers to organizations that provide information collected from the Customer or a third party to Komatsu applications.
- “Dealer Parts and Services” refers to OEM replacement parts at nearby Komatsu authorized dealers and pricing and place orders for parts and services from such dealers.
- “Edgebox” refers to the multi-functional data server that is installed at the construction site of the Customer and has the functions of sending the collected customer installation information to Smart Construction after processing and analyzing the information.
- “Geo-Location Services” refers to certain functionality and services provided by third-parties that allow Komatsu to include maps, geocoding, places and other content from Google as part of the Services.
- “ICT Construction Equipment” refers to the construction machinery that has the functions with which the machinery moves without operator interaction (machine-control functions) or those supporting the operator interaction (machine-guidance functions).
- “Ideas” refers to comments, suggestions or ideas about the Services, including how to improve the Services.
- “Intellectual Property Rights” refers to the copyright, patent, utility model right, design right, trademark, and other intellectual property rights (including the rights to receive those rights and pending rights and patents).
- “IoT Device” refers to the sensor, camera, computer, and telecommunication facilities installed and set at the Construction Equipment, construction vehicle, or construction site, and all other devices that have the functions to collect data, etc.
- "Komatsu" means (i) KLTD, (ii) all subsidiaries of KLTD located in any country throughout the world including Komatsu America Corp. (and its affiliates), KEISA and Komatsu Customer Support Japan Ltd. (a Japanese subsidiary of KLTD) and (iii) all companies that are authorized by KLTD or its subsidiary and are engaged in sales and rentals of Komatsu-branded products.
- "KOMTRAX Information" means location and operation data and other data collected with regard to the Construction Equipment sold by Komatsu.
- “Limited Warranty” refers to the specific limited warranty provided with a Product or Service.
- “Login ID” refers to a code that is used to distinguish each user from other users for using any of the Services and the email address of the User registered at the time the User created an account.
- “Password” refers to a code that is, in combination with login ID, used to distinguish each user from other users and that is registered at the time the user creates the account using the arbitrary combination of English one-byte characters and symbols. Passwords shall use a combination of upper- and lower-case letters, numbers and symbols.
- “Permitted Purpose” refers to your access to the Services for a bona fide business purpose.
- “Platform Service” refers to services and other platform services the Company provides to users or third parties via MyKomatsu and/or the Services, in which one can browse, etc. information provided by Komatsu.
- “Product” refers to Komatsu machines, equipment, and other related products.
- “Product Information” refers to information regarding the Products, including, without limitation, information about their use and operation, performance (including historical performance and service and repair records) and maintenance needs, service bulletins and recall information.
- “Product Software” refers to software embedded in a Product (and any updates thereto).
- "Registered Construction Equipment" means any ICT Construction Equipment that is registered on this Application by the Customer or the Users authorized by such Customer.
- “Rights Holder” refers to the owner of the site (including anyone who is equivalent to the owner) on which any of the Services will be used or accessed.
- “Services” refer to the account service, platform service, marketplace service, and other services the Company provides to the Customer and users through Sites, Web Apps, Mobile Apps, Subscription Services, MyKomatsu, KOMTRAX, 3D Data Services, SC Field Application, or Smart Construction (including any Applications related thereto).
- “Service Interruptions” refers to internet and/or cellular service that is interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations.
- “Smart Construction” refers to the Smart Construction IoT platform and its applications provided by the Company, which has the functions to collect, accumulate, process, analyze, etc. the Customer Installation Information or other information related to the construction process, or the services provided through the Smart Construction IoT Platform.
- “Target Country” refers to the United States or Canada.
- “Terminal to Be Used” refers to PC, smartphone, tablet, and other electronic terminals the Customer or User uses to access Services.
- “Third-Party Products and Services" refers to replacement parts from third parties, and pricing and place orders for parts and services from such third parties.
- “Third Party Sites” refers to other websites operated by dealers and other third parties.
- “Updates” refers to Komatsu’s development of patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and/or the Product Software.
- “User” refers to the one that created the account on one’s own or via Customer to use any of the Services through registering one’s information.
- “User Account” refers to the account that the User created on one’s own or via Customer through registering one’s information in the Account Service.
- “Users’ Guide” refer to guides in which the Company stipulates the content of any of the Services provided through MyKomatsu, and how to use any such Services, and that is published on the Website.
Terminal" means an electronic terminal that the Customer or User uses for
the purpose of using any of the Services, such as a personal computer, a
smartphone or a tablet terminal.
ARTICLE 2: Overview, Eligibility, Customer Service, Data Privacy
- Eligibility. You may use the Services and Products only if (i) you are a Komatsu authorized dealer or an owner of a Product or their personnel, (ii) are authorized to use the Services, (iii) accept these Terms through a Site, Web App or Mobile App, or by accessing or using the Services, and (iv) if you are in compliance with these Terms and all applicable local, state/provincial, national and international laws, rules and regulations. The Services are not available to any users previously prohibited from using the Services by Komatsu.
- Scope. The Services shall be offered in a manner consistent with the degree of care and skill ordinarily exercised by reputable companies offering the same or similar Services in the same locale acting under similar circumstances and conditions. Any request by Customer to change the scope or the nature of the Services offered must be made in writing to Komatsu, agreed upon by Komatsu, in Komatsu’s sole discretion, and may result in a subsequent fee for any such revision in scope.
- Customer Service. If you have any questions or concerns regarding the Services or these Terms, please contact Komatsu. If you have any questions or concerns regarding the Products, please contact your authorized Komatsu dealer or sales representative. If you have questions or concerns about parts or services that are ordered through the Services or need to make return or receive a refund, please contact the authorized Komatsu dealer with whom the order was placed or from whom the part or service was sold.
- Amendment to Terms. Komatsu may change these Terms at any time its own discretion. Provided, however, that when Komatsu makes a change to the Terms, Komatsu shall specify the effective date, and inform Customers about the fact that the Terms would be revised, the contents of the revised Terms, and the effective date, in a proper manner, such as publishing the necessary information on the Website, the Application, or by any other appropriate means. The Customer shall be deemed to have agreed to the contents of the amended Terms in any case where the Customer continues to use the Services after the effective date of the amended Terms of which we have notified the Customer.
and Data Protection Laws.
practices with respect to the data and information collected and obtained in
connection with the Services. We will comply with our obligations under the US
and Canada applicable data privacy regulations, GDPR, and applicable national
data protection legislation (together referred to as “Data Protection Law”).
You agree that You (and not Komatsu) are responsible for ensuring that You
comply with any applicable laws when you use the Services.
ARTICLE 3: ACCOUNTS
- Your Account. To use the Services, you must register for a user Account and provide certain information about yourself, as prompted by the applicable registration form (such as your first and last name, your phone number and your email address). The Services use Microsoft authentication and require you to create the Account with Microsoft. Once the Account is created with Microsoft, you will be redirected to the Services. Komatsu will have access to your email address and display name from Microsoft. You represent and warrant that: (i) all required registration information that you submit is truthful, complete and accurate; (ii) you will maintain the accuracy of such information; and (iii) your use of the Services will not violate any US, Canadian or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account log-in information and for all activities that occur under your Account. You agree to use strong Passwords with your Account and to maintain your Password securely to prevent others from gaining access. You shall not disclose the Account login ID or Password to a third party but shall keep tight control over them (including a regular change of Password). You agree to immediately notify Komatsu of any unauthorized use or suspected unauthorized use of your Account, or any other breach of security. Komatsu is not liable in any way for any loss or damage to you or other persons arising from your failure to comply with the above requirements.
- Authorized Users. The individual who creates an account is the "Owner" of that Account. Persons who are Komatsu authorized dealers are "Authorized Dealer Users." Product owners and their personnel are "Authorized End Users." Authorized Dealer Users and Authorized End Users are together referred to as "Authorized Users." Authorized Users will have the ability to use the Services and monitor the Products and take certain actions in connection with the Products. Authorized Users may also have the ability to view information (including personal information and an audit trail of where Products are located and how they have been operated) and content pertaining to utilization of the Product. Authorized Users are responsible for their own actions in connection with the Services. Owner shall require an Authorized User to comply with these Terms. Owner also hereby agrees to be fully responsible for all actions taken by Authorized Users and others relating to use of the Owner's Account, including for the parts and services ordered through the Services. If you are an Owner who invites or enables an Authorized User, You acknowledge and agree that the Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use the Services set out above. As a result, if you are an Owner, You should only authorize those individuals whom You trust to access your Account and the Services. Komatsu recommends that each Owner deactivate any Authorized User Account immediately upon their exit from Owner's employment. If You discover that there is an actual or possible violation of these Terms committed by an Authorized User, You shall immediately inform Komatsu. Komatsu disclaims any liability for purchases made by an Authorized User through the Services, including after the Authorized User's employment has been terminated, unless Komatsu has been explicitly advised to deactivate such account and has failed to do so.
- Chief Administrator. Before starting use of any of the Services, a Customer may as necessary assign a Chief Administrator of the Account. The Chief Administrator will register the account on the Account Services, and inform Komatsu of the name, email address, login ID, etc. of the Chief Administrator. An account owned by a Chief Administrator shall automatically be designated the Administrator Account. The Chief Administrator may register the account for other Authorized Users on the Account Services, or invite other Authorized Users. Authorized Users who are so registered or invited by the Chief Administrator may register the Account on the Account Service for other Authorized Users or invite other Authorized Users. Other Authorized Users who were invited by the Chief Administrator or another Authorized User may register their account on the Account Service. Such an account so created shall be owned by each Authorized User and referred to as the “General Account”, which, along with the Administrator Account, shall hereinafter collectively be referred to as the “Customer Account.” You must not have those other than the Chief Administrator use the Administrator Account or have those other than the Authorized User him/herself who owns the General Account use the General Account. If it wishes to change the Chief Administrator, the Customer shall immediately change the registration of the Administrator Account on the website.
- Precautions. Authorized Users shall use the Services after fully understanding the precautions, etc. stipulated in these Terms, any Users Guide provided in relation to the Services. The Customer fully acknowledges and understands the precautions provided in any User Guide for using any Service.
- No Transfer of Rights. No Authorized User may transfer the right to use any Service to any third parties, nor may the Authorized User sublicense any right contained in a Service to any third parties unless explicitly permitted by Komatsu in writing; provided, however, the Authorized User may authorize third parties to use a Service pursuant to the User Guide.
for Third-Party Use: All acts based on
the use of an Account shall be deemed to be taken by the Owner of the Account
or an Authorized User. In the case where a third party uses a Service by
accessing an Account, the Owner shall take full responsibility for the use. In
the case where Komatsu is damaged by such acts, the Owner shall compensate for
ARTICLE 4: Access to Services
- Access and Use. Subject to these Terms, Komatsu hereby grants You a non-transferable, non-exclusive right (without the right to sublicense) to access and use the Services by (i) using the Web Apps in connection with, and solely for the purpose of, monitoring the Products You own or are authorized to use or otherwise accessing a Service explicitly provided by Komatsu for a Permitted Purpose, (ii) installing and using the Mobile Apps solely on your own handheld mobile device (e.g., iPhone, iPad or Android smartphone) and solely for the Permitted Purpose, and (iii) accessing the Sites solely for the Permitted Purpose.
- Fees. Certain Services and Applications may be subject to Fees. The amount and other details of the Fee shall be specified separately by us, which You agree to pay. We may also charge You additional costs, at our discretion, related to providing any support services that are in our estimation a reasonable reflection of the cost of providing such support services.
- Automatic Software Updates. Komatsu may, from time to time, develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and/or the Product Software. These may be automatically installed on Products without providing any additional notice or receiving any additional consent. You consent to this automatic update. You acknowledge that you may be required to install Updates to use the Services with the Products and You agree to install promptly the Updates that Komatsu provides. Your continued use of the Services is your agreement: (i) to these Terms with respect to the Services, and (ii) to the End User License Agreement with respect to updated Product Software; and (iii) any change or updates that Komatsu may make to these Terms or the End User License Agreement over time.
- Open Source. Certain items of independent, third-party code may be included in the Web Apps and/or Mobile Apps that are subject to the GNU General Public License ("GPL") or other open-source licenses (collectively, "Open-Source Software"). The Open-Source Software is licensed under the terms of the license that accompanies such Open-Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end-user license for such Open-Source Software. In particular, nothing in these Terms restricts your right to copy, modify and distribute such Open-Source Software that is subject to the terms of the GPL.
- Security. Komatsu implements security measures designed to protect your personal information held by Komatsu. However, Komatsu cannot guarantee that unauthorized third parties will never be able to defeat Komatsu's security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk. You further acknowledge that Komatsu's vendors and service providers (such as Microsoft) may also hold your personal information and are responsible for taking their own security measures.
- Outside Certain Countries. Although the Sites are accessible worldwide, the Services provided or accessed through or on the Sites are not available to all persons or in all countries. If you choose to use the Services with Products located outside a Target Country, you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Services are not designed for use in a non-Target Country and that some, or all, of the features of the Sites may not work or be appropriate for use in such a country. Komatsu accepts no responsibility or liability for any damage or loss caused by your use of the Komatsu Products in a non-Target Country. You will be bound by these Terms wherever you access or use the Sites or the Services or use the Komatsu Products.
and Maintenance of Facilities. The Customer shall, at its own expense and under its own
responsibility, set up each IoT Device and User Terminal if and as required for
use of the Services in accordance with the conditions we specify and maintain
any other environment as may be necessary to access and use the
Services. Further, the Customer shall, as necessary and at its own expense
and under its own responsibility, maintain a telecommunications service run by
a telecommunications carrier or the like and connect each IoT Device and User
Terminal to the Internet when using or accessing the Services.
ARTICLE 5: Agreed Usage and Limitations of Komatsu Services and Products
- System Requirements. The Services will not be accessible without: (i) a working network in your office, place of work, job site, or other location that is positioned to communicate reliably; (ii) an Account; (iii) an enabled and supported wireless device, such as a phone or tablet (required for some features and functionalities of the Service); (iv) always-on broadband Internet access for the Products with bandwidth sufficient to support your use; (v) the Products and the properly installed communications and data gathering equipment on the Products, which are sold separately; and (vi) other system elements that may be specified by Komatsu. Further, You understand and agree that You are required to have an adequate and working internet connection for downloading and using the Services. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met, including any defect in any IoT device, User Terminal, or other defect in the environment, or the in event of any security problem related thereto. The Customer shall take, at its own expense and under its own responsibility, sufficient measures (including security measures) to avoid such defects. If You modify, substitute, move, or otherwise change any of the required system elements, it is your sole duty and responsibility to be sure they are compatible and properly installed and configured to work with the Services. Further, You acknowledge that your internet service provider (“ISP”) and/or your mobile device operator ("Operator") may charge you for such internet connection. You acknowledge that you are responsible for all fees charged by your ISP and Operator in connection with your use of the Services and Products. We accept no responsibility or liability for any claims or damages arising out of any interruption or breakdown of your internet connection.
- Intended Use and Reliability of Services. The Services are intended to be accessed and used for obtaining non-time-critical information about your Komatsu Products and managing them. While Komatsu aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. You acknowledge that the Services, including email notifications, are not error-free or 100% reliable and 100% available. Proper functioning of the Services relies and is dependent on, among other things, the transmission of data through a network, enabled wireless device (such as a phone or tablet) and Internet access, and cellular service, for which Komatsu is not responsible, and may be subject to Service Interruptions for a variety of reasons beyond Komatsu's control, including Internet connectivity intermittency, problems with the Komatsu Products, service provider uptime, mobile notifications and operators, among others. Service Interruptions may result in the Services being unreliable or unavailable for the duration of the Service Interruption. Komatsu cannot and does not guarantee that you will receive information or notifications within any given time, or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY CRITICAL PURPOSES. NOTIFICATIONS REGARDING THE STATUS OF YOUR KOMATSU PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY – THEY ARE NOT A SUBSTITUTE FOR TAKING PROPER CARE OF YOUR PRODUCTS AND EXERCISING ORDINARY PRUDENCE. YOU ACKNOWLEDGE THESE LIMITATIONS AND AGREE THAT KOMATSU IS NOT RESPONSIBLE FOR ANY DAMAGES ALLEGEDLY CAUSED BY THE FAILURE OR DELAY OF THE SERVICES.
- Installation, Test and Use. It is your responsibility to enable the Products to operate with the Services pursuant to the applicable Product manual and instructions. IF THE COMMUNICATIONS ASPECT OF A PRODUCT IS NOT PROPERLY INSTALLED OR FUNCTIONING, OR IF A PRODUCT IS HINDERED OR OBSTRUCTED BY TREES, BUILDINGS OR OTHER OBJECTS, YOU MAY EXPERIENCE OPERATIONAL FAILURES. It is your responsibility to test the Services to be sure the Products (and any related components and peripherals) are functioning and communicating as intended and designed, and then regularly test the Services with the Products.
- Product Information. The Services provide you with Product Information. All Product Information is provided "as is" and "as available." Komatsu cannot guarantee that it is complete, 100% correct or always up-to-date. In cases where it is critical, accessing Product Information through the Services is not a substitute for direct inspection of a Product and performing preventative and other routine maintenance and properly training and managing your equipment operators, and for obtaining service bulletins and recall information from means other than the Services, including directly from authorized Komatsu dealers.
- Third Party Information. Where Customer Information contains the information of a third party (including subcontractors of the Customer), Customer shall acquire the consent of the third party in advance of providing the information to Komatsu through use of any of the Services, including, as necessary, the Rights Holder of the site on which any of the Services will be used or accessed. Customer warrants to Komatsu that the Customer has acquired such consent at the time of starting the use of the Services and during the period of using the information provided through use of or access to the Services, that the Customer has legitimate rights to the Customer Information, and that the use of Customer Information does not violate the rights of a third party. The Customer shall take responsibility to settle any dispute with a third party or Right Holders caused by violation of the warranty. Komatsu shall not be held liable in any way for such issues.
- Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Services; (ii) except as may be necessary for the performance of the Services, and only with the express written consent of Komatsu, which can be withheld for any reason, You agree not to modify, make derivative works of, disassemble, attempt to derive the source code of, decrypt, modify, reverse-compile or reverse-engineer any part of the Services or Komatsu Intellectual Property, nor allow or enable any other party to do so; (iii) You agree not to access the Services in order to build a similar or competitive service or product; (iv) except as expressly stated herein or permitted by the Authorized User functionality of the Services, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including any videos; (v) You agree not to interfere with, disrupt or attempt to gain unauthorized access to the servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (vi) You agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by Komatsu; and (vii) You agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) that may be contained in, or displayed in connection with, the Services or Products. Any future release, update or other addition to functionality of the Services shall be subject to these Terms.
- Other Prohibited Conduct. You warrant, represent and agree that you will not use the Services in any way that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or otherwise objectionable; (iv) impersonates any person or entity, including, without limitation, any employee or representative of Komatsu; (v) introduces a virus, Trojan Horse, worm, time bomb or other harmful computer code, file, software or program that can damage or alter a computer or communications network, computer, handheld mobile device, data, the Services, the Products, the Product Software or any other system, device or property; (vi) risks the security of your Komatsu Account or anyone else's Account (such as allowing someone else to log into the Services as you); (vii) attempts, in any manner, to obtain or access the password, account, products, devices, systems, or other security information from any other user or third party; (viii) violates the security of any computer network or cracks any passwords or security encryption codes; (ix) runs any form of auto-responder or "spam" on the Services or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services' infrastructure); (x) denigrates or disrupts any network capacity or functionality; or (xi) engages in remote monitoring to provide remote monitoring, key management, security or other professional services for anyone.
to Violations. In the case
where Komatsu decides that the act of the Customer or User violates the
provisions of the Terms of Service, Komatsu may take measures that it decides
appropriate, such as suspension of the use of the Services or forced withdrawal
after deleting all or part of the Customer Information without the prior notice
to the Customer or User. Komatsu shall not be held liable in any way for the
damage caused by the measures it took based on the provisions stipulated in the
preceding sentence. Provisions of the preceding two sentences shall not
discharge the Customer from liability in the case where there is damage to
Komatsu or a third party caused by the measures taken by Komatsu. In the case
where the Customer inflicts damage on a third party due to violation of the
Terms or causes a dispute with a third party, the Customer shall solve the
issue under its responsibility and at its expense and shall not impose any
responsibilities on Komatsu. Where Komatsu is held liable by other Customers or
third parties due to Customer’s violation of these Terms, the Customer shall
resolve the dispute under its responsibility and at its expense and shall not
impose any responsibilities on Komatsu.
ARTICLE 6: Limitations of Komatsu Services Due to Third Parties
- General. Komatsu Services relies on and interoperates with third-party products and services, including Microsoft for authentication, Amazon Web Services for cloud services, and Google Maps for geo-mapping functionality. These third-party products and services are beyond Komatsu's control, and their operation may impact on, or be impacted by, the use and reliability of the Komatsu Services. You acknowledge and agree that: (i) the use and availability of the Services in such situations is dependent on third-party product vendors and service providers, (ii) these third-party products and services may not operate in a reliable manner 100% of the time and they may impact on the way that the Komatsu Services operate, and (iii) Komatsu is not responsible for damages and losses due to the operation of these third-party products and services.
- Third-Party Service Providers Used By Komatsu. You acknowledge that Komatsu uses third-party service providers to enable some aspects of the Services – such as, for example, data storage, synchronization and communication through Amazon Web Services and mobile device notifications through mobile operating system vendors and mobile operators. YOU AGREE NOT TO RELY ON THE SERVICES FOR ANY SAFETY OR TIME-CRITICAL PURPOSES OR FOR MATTERS WHERE FAILURE OF THE SERVICES MAY LEAD TO DEATH, BODILY INJURY OR DAMAGE TO PROPERTY.
- App Stores. Apps can be downloaded from third-party websites, e.g., App Stores. The compatibility requirements for the App are displayed in each respective App Store. You acknowledge and agree that the availability of any Apps is dependent on the App Stores. You acknowledge that these Terms are between you and Komatsu and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading Mobile Apps from it. You agree to comply with such App Store terms and conditions, and your license to use the Mobile Apps is conditioned upon your compliance with such App Store terms and conditions. To the extent that such other terms and conditions from such App Store are less restrictive than or otherwise conflict with the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions apply.
- Third-Party Website Links and Referrals. The Sites may contain links to Third-Party Sites and referrals to dealers and other third-party vendors ("Referred Vendors"). Such Third-Party Sites and Referred Vendors are not under Komatsu's control. Komatsu provides these links and referrals only as a convenience and does not review, approve, monitor, endorse, warrant or make any representations with respect to such Third-Party Sites or Referred Vendors. Your use of these Third-Party Sites is at your own risk.
Users. Komatsu is not
responsible for any Authorized User's behavior, or for any personal injury,
death, property damage (including, without limitation, to your Products), or
other harm or losses arising from or relating to their use of the Services.
ARTICLE 7: Ownership and Intellectual Property
- Komatsu Property. You acknowledge that all intellectual property rights, including, without limitation, copyrights, patents, trademarks and trade secrets, in the Product, Product Software and Services (i.e., the Sites, Web Apps and Mobile Apps) are owned by Komatsu or Komatsu's licensors. Your possession, access to and use of the Product, Product Software and Services do not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Komatsu, and its licensors and suppliers, reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms. Neither Customer nor Komatsu shall acquire any ownership interest in any formulas, patterns, data, devices, secret inventions or processes, copyrights, patents, or other intellectual proprietary rights which are owned by the other, whether or not they are used in connection with the Services provided.
- Limits. You may not use the content of the Services in any other public or commercial way (other than for your own internal business purposes), nor may you copy or incorporate any of the videos, documents, manuals, specifications sheets, or other content available through the Services into any other work, including your own website, without the written consent of Komatsu. You must have a license from us before You can post or redistribute any portion of the videos, documents or other content of the Services. Komatsu and its licensors retain full and complete title to all content on the Services, including any videos, documentation, documents and all data. You must not copy, modify or in any way reproduce or damage the structure or presentation of the Services, or any content therein.
- Know-How. Customer acknowledges that Komatsu, in the normal conduct of its business, may use concepts and improved skills and know-how developed while performing other contracts. Customer acknowledges the benefit which may accrue to it though this practice, and accordingly agrees that Komatsu may continue, without payment of a royalty, this practice of using concepts and improved skills and know-how developed while offering the Services.
- Feedback. You may choose to, or Komatsu may invite you
to, submit Ideas. By submitting any Ideas, You agree that your submissions are
non-confidential, voluntary, gratuitous, unsolicited and without restriction,
and will not place Komatsu under any fiduciary or other obligation. Komatsu may
use, copy, modify, disclose, publish or redistribute the submission and its
contents for any purpose and in any way without any compensation to You. You
also agree that Komatsu does not waive any rights to use similar or related
ideas previously known to Komatsu, developed by its employees or obtained from
ARTCILE 8: Confidentiality
- Non-Disclosure. Neither Komatsu nor the Customer may disclose or divulge to any third party any Confidential Information; and Komatsu and the Customer shall use Confidential Information only for the purpose of using the Services, unless otherwise approved in advance by the other party in written form. None of the following information constitutes Confidential Information: (i) Information already held by a party without owing confidentiality obligation to the other party; (ii) Information duly obtained from a third party without owing any confidentiality obligation to such third party; (iii) Information that a party developed independently without referring to any information provided by the other party; and (iv) Information that has become publicly known without violating these Terms, whether before or after receipt.
- Disclosures Required by Law. Notwithstanding the preceding paragraph, Komatsu and the Customer may disclose Confidential Information to the extent required under applicable laws and regulations or by the request of any jurisdictional authority, to the party or authority specified under such laws and regulations. Prior to such disclosure, each party shall notify the other party to the effect that the first party is going to disclose Confidential Information of the second party, so long as such notice does not constitute a violation of relevant laws and regulations. If the first party is not permitted to give such prior notice to the second party ahead of disclosure, the first party shall provide such notice of disclosure to the second party promptly after the disclosure of Confidential Information.
to Contractors. Notwithstanding the
first paragraph of this Article, if Komatsu deems it necessary and on the
condition that Komatsu causes contractors to comply with the obligations under
this Provision, Komatsu may disclose the Confidential Information of the
Customer to contractors without obtaining the Customer’s prior written
ARTICLE 9: Term and Termination
- Full Force and Effect. These Terms will remain in full force and effect as long as You continue to access or use the Services, or until terminated in accordance with the provisions of these Terms.
- Use of Information. The period of using any information provided by accessing or using the Services, ends when the usage period as may be specified separately by the Company ends.
- Suspension or Termination of Access. At any time, Komatsu may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to You if Komatsu, in good faith, believes that You have used the Services in violation of these Terms, including any incorporated guidelines, terms or rules. If you are a Product owner and transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates and the new owner will have no right to use the Services under your account and will need to register for a separate account with Komatsu and accept these Terms.
- Automatic Termination. In the event any of the following events occurs with respect to the Customer, we may terminate your rights or access to the Services, as well as any applicable additional Agreements, in whole or in part, by giving notice thereof in writing or e-mail to the Customer, without the need to make any request for correction: (i) The Customer has stopped its payments or has become unable to pay its debts; (ii) Any bill or check of the Customer becomes dishonored; (iii) Any petition for seizure, provisional seizure, or auction has been filed, or any disposition for delinquent taxes and public dues has been issued; (iv) Any petition for the commencement of bankruptcy, corporate reorganization proceedings, or civil rehabilitation proceedings has been filed, or any serious deterioration in the state of credit has occurred; (v) The Customer’s business license has been rescinded or suspended by a competent authority; (vi) A resolution for dissolution, capital reduction, or transfer of all or a significant part of the Customer’s business has been adopted; or (vii) Any event equivalent to the preceding items occurs.
- Termination by Default. Furthermore, Komatsu may, at its own discretion, terminate Customer’s use of and right to any of the Services, and delete the information and data related to any such Service, in whole or in part, by giving notice in writing or email to the Customer, in the event any of the following occur: (i) The Customer commits an act that infringes or has possibility to infringe the Intellectual Property Rights or other rights of the Company or a third party; (ii) The Customer commits an act that tampers or deletes the content of any of the Services or the information that can be used on any of the Services; (iii) The Customer uses or attempts to use Customer Information or the information provided by any of the Services (excluding information that was already personal information at the time of provision) (collectively “Identifying Information”) to recognize or identify an individual or Customer related to the Identifying Information; (iv) The Customer commits an act of changing all or part of any portion of any of the Services, reverse engineering, decompiling, decomposing, producing the derivative of any portion of any of the Services, and decoding the source code with other methods; (v) The Customer commits an act of having a third party use any of the Services or information provided by any of the Services in violation of the Terms; (vi) The Customer commits an act of pretending to be a third party to use any of the Services or any information provided by the Services; (vii) The Customer commits an act violating any applicable laws and regulations; (viii) The Customer, in the course of accessing or using any of the Services, commits an act of discriminating against or slandering others; (ix) The Customer commits an act that leads to or has possibility to lead to crimes of fraud; (x) The Customer commits an act of registering images, documents, etc. that are obscene, child pornography or child abuse; (xi) The Customer commits an act of opening or soliciting pyramid scheme; (xii) The Customer commits an act of registering computer viruses and other harmful data, computer programs, etc.; (xiii) The Customer commits an act that compromises or may compromise management of any of the Services; (xiv) The Customer attempts to use the Services or register information to the Services for the purpose of meeting unknown or unacquainted persons; (xv) The Customer, in the course of using any portion of the Services, affixes a link with the purpose of promoting an act falling under any one of the preceding items; (xvi) Other acts that the Company deems inappropriate.
- Deletion of Authorized User Account. Upon request to Komatsu, where Customer has granted the right to use a Service to an Authorized User, the Customer may delete Authorized User’s registration of a User Account without prior notice to the Authorized User. Further, Komatsu may delete the registration of a User Account that is not used for six months or more without prior notice to the Authorized User.
- No Liability. Komatsu is not liable for any damage that may be incurred by the Customer or the Authorized Users due to the termination of any rights or access to the Services, or any applicable agreement, in whole or in part, in accordance with this Article.
- Effect of Termination. Upon termination of these Terms, your Account and your right to use the Services, or access any information provided through the Services, will automatically terminate. The Customer agrees that after termination, Komatsu may delete Customer Information and all other data and information the Customer provided through its use of a Service. The Customer shall, at its expense, save a backup of all the necessary data and information from its Account by the termination date. Komatsu shall not be held liable in any way for loss of data and information of the Customer.
of Device and Software.
Where the Customer is provided with a device or software by the Company for use
of the Services, the Customer shall return the device or software, all the
relevant documents, etc. (including the copies of the software, documents,
etc.) to the Company immediately after termination. If the software, document,
etc. are copied on IoT Device, etc., the Customer shall delete the copied
software, document, etc. under its responsibility and at its expense.
ARTICLE 10: INDEMNITY FOR THIRD PARTY ACTIONS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD KOMATSU AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY, THE "KOMATSU PARTIES") HARMLESS FROM AND AGAINST ALL CLAIMS, ACTIONS, LAWSUITS AND ANY OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE KOMATSU PARTIES ARISING FROM OR RELATING TO (i) YOUR USE AND EACH AUTHORIZED USER'S USE OF THE SERVICES; (ii) YOUR OR YOUR AUTHORIZED USERS' VIOLATION OF THESE TERMS; (iii) ANY FEEDBACK YOU PROVIDE; OR (iv) YOUR OR YOUR AUTHORIZED USERS' VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY (COLLECTIVELY, "THIRD PARTY ACTIONS"); AND ANY AND ALL RELATED LOSSES, DAMAGES, SETTLEMENTS AND JUDGMENTS (INCLUDING PAYMENT OF THE KOMATSU PARTIES' ATTORNEYS' FEES AND COSTS) INCURRED BY ANY OF THE KOMATSU PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE KOMATSU PARTIES, OR MADE BY ANY OF THE KOMATSU PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY ACTION ("THIRD PARTY RELATED LOSSES"). YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATION TO THE KOMATSU PARTIES APPLIES EVEN IF SUCH THIRD-PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE KOMATSU PARTIES. HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THE KOMATSU PARTIES, OR GROSS NEGLIGENCE OF THE KOMATSU PARTIES IN THOSE STATES THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. "THIRD PARTY" IS DEFINED HEREIN TO INCLUDE, AMONG OTHERS, AN AUTHORIZED USER, AN UNAUTHORIZED USER, EMPLOYEE, CONTRACTOR, AGENT OR OTHER THIRD PARTY. Komatsu reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Komatsu, and You agree to cooperate with Komatsu's defense of such claims. You agree not to settle any such claim without Komatsu's prior written consent. Komatsu will use reasonable efforts to notify You of any such claim, action or proceeding upon becoming aware of it.
Article 11: Damage Caused by Customer Installation Information
- Deletion of Customer Information. We may take or cause other Komatsu entities to take any measures that we deem appropriate, including the deletion of all or part of the Customer Information, without obtaining the prior consent of the relevant Customer, in the event of any interference to any Service, Application, or Komatsu’s server, or any risk thereto that is caused by the Customer Information.
- No Liability. Komatsu is not liable for any damage arising out of the measures taken by us pursuant to the preceding paragraph.
Liability. The preceding two
paragraphs do not in any way release the Customer from any liability for the
damage incurred by Komatsu or any third party due to the measures taken by
Komatsu. The Customer shall hold Komatsu harmless from any liability for any
damage incurred by any other Customer due to the measures taken by us in
respect of the Customer Information.
ARTCILE 11: Warranty Disclaimers
- SMART CONSTRUCTION. CUSTOMER ACKNOWLEDGES THAT SMART CONSTRUCTION REMOTE AND REMOTE OPERATION OF THE CONTROLLING SYSTEM OF REGISTERED CONSTRUCTION EQUIPMENT MAY BE UNAVAILABLE OR MAY BE HINDERED, DEPENDING ON LOCATION OF INSTALLATION OF IOT EQUIPMENT, RADIO WAVE CONDITIONS OF GPS SATELLITE, CONDITIONS OF RADIO BASE STATION, CLIMATE CONDITIONS OF MEASUREMENT OR OTHER MEASUREMENT CONDITIONS.
- NO WARRANTY. KOMATSU, AND ITS LICENSORS AND SUPPLIERS, MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (i) WILL MEET YOUR REQUIREMENTS; (ii) WILL BE COMPATIBLE WITH YOUR NETWORK, COMPUTER (INCLUDING LAPTOP) OR MOBILE DEVICE; (iii) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (iv) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KOMATSU OR THOUGH THE SERVICES, SHALL CREATE ANY WARRANTY.
- THIRD PARTY SERVICES. KOMATSU DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH, OR IN CONNECTION WITH, THE PRODUCTS OR SERVICES (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY PRODUCTS AND SERVICES CONNECTED WITH THE SERVICES), OR ANY LINKED WEBSITE OR SERVICE, AND KOMATSU WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH PRODUCTS OR SERVICES. KOMATSU IS NOT LIABLE FOR ANY SPECIFICATION, OPERATION OR FUNCTION, ETC. OF SUCH APPLICATION OR OTHER SOFTWARE, OR ITS CONNECTION OR LINKAGE WITH ANY SERVICE OR APPLICATION.
- CONTENT ACCESSED THROUGH SERVICES. KOMATSU MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND KOMATSU WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. KOMATSU MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
- PRODUCT INFORMATION. THE SERVICES MAY PROVIDE YOU INFORMATION REGARDING YOUR PRODUCTS ("PRODUCT INFORMATION") OR OTHER ITEMS. THE TYPE OF ITEM THAT MAY BE CONNECTED TO YOUR PRODUCT (IF ANY) MAY CHANGE FROM TIME TO TIME. WITHOUT LIMITING THE GENERALITY OF THE DISCLAIMERS ABOVE, ALL PRODUCT INFORMATION IS PROVIDED FOR YOUR CONVENIENCE ,"AS IS" AND "AS AVAILABLE." KOMATSU DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT PRODUCT INFORMATION WILL BE AVAILABLE, ACCURATE, OR RELIABLE.
- CHANGE TO SERVICES. WE MAY CHANGE THE CONTENTS OF ANY OF THE SERVICES AND SUSPEND OR DISCONTINUE THE PROVISION OF ANY OF THE SERVICES AT ANY TIME WE DEEM IT NECESSARY, WITHOUT NOTIFYING THE CUSTOMER. IN THE EVENT OF ANY SUSPENSION OR DISCONTINUATION OF THE PROVISION OF ANY OF THE SERVICES, KOMATSU IS NOT LIABLE TO ANY CUSTOMER IN ANY WAY EXCEPT FOR PROVIDING A REFUND, IF WE DEEM IT APPROPRIATE, OF ANY MONTHLY OR OTHER FEE THAT SUCH CUSTOMER HAS PAID TO US FOR THE PERIOD DURING WHICH SUCH SUSPENSION OR DISCONTINUATION HAS OCCURRED.
- FORCE MAJEURE. KOMATSU IS NOT LIABLE FOR ANY UNAVAILABILITY OF THE SERVICES CAUSED BY ANY EVENT OF FORCE MAJEURE, INCLUDING BUT NOT LIMITED TO A BREAKDOWN OF OR TROUBLE WITH ANY EQUIPMENT NECESSARY TO PROVIDE THE SERVICES, FAILURE OF ELECTRICITY SUPPLY, ABNORMALITY IN COMMUNICATION LINES, OR SYSTEM FAILURES. IN SUCH CASES, THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THERE MAY BE A LOSS OF INFORMATION, DELAYS AND THE LIKE WITH RESPECT TO ALL OR PART OF THE CUSTOMER INFORMATION AND OTHER DATA RELATED TO THE CUSTOMER THAT MAY FOLLOW A RESTRICTION IN THE USE OR INITIALIZATION OF THE USER TERMINAL OR AN IOT DEVICE.
- DATA STORED IN THE CONTROLLING SYSTEM. KOMATSU IS NOT LIABLE FOR ANY LOSS OR CHANGE IN DATA THAT MAY BE CAUSED BY ACCESS BY KOMATSU TO THE CONTROLLING SYSTEM OF REGISTERED CONSTRUCTION EQUIPMENT OR BY DELETION OR CHANGES, ETC. MADE BY KOMATSU TO THE DATA STORED IN THE CONTROLLING SYSTEM.
- SECURITY MEASURES. KOMATSU SHALL TAKE REASONABLE SECURITY MEASURES BASED ON INDUSTRY STANDARDS WITH RESPECT TO THE PROTECTION OF THE CUSTOMER INFORMATION. HOWEVER, KOMATSU IS NOT LIABLE FOR ANY DAMAGE CAUSED BY UNAUTHORIZED ACCESS, THEFT, DESTRUCTION, TAMPERING, OR THE LIKE BY A THIRD PARTY, WHICH SHALL BE RESOLVED BETWEEN THE CUSTOMER AND SUCH THIRD PARTY.
- BACK-UP INFORMATION. KOMATSU IS NOT RESPONSIBLE FOR RETAINING ANY BACK-UP OF ANY CUSTOMER INFORMATION. THE CUSTOMER SHALL MAKE REGULAR BACKUP COPIES OF THE RELEVANT CUSTOMER INFORMATION UNDER ITS OWN RESPONSIBILITY.
FROM INFECTION. KOMATSU DOES NOT
MAKE ANY GUARANTEE AS TO THE FREENESS FROM INFECTION WITH ANY COMPUTER VIRUS OF
THE EXTERNAL STORAGE DEVICE (SUCH AS USB MEMORY) THAT THE CUSTOMER MAY CONNECT
TO AN IOT DEVICE OR USER TERMINAL IN ORDER TO TRANSMIT THE DATA, OR OF ANY DATA
TRANSMITTED THEREBY, AND KOMATSU IS NOT LIABLE FOR ANY DAMAGE CAUSED BY SUCH
ARTICLE 12: Other Disclaimers
YOU UNDERSTAND AND AGREE THAT SOME OF THE SERVICES MAY HAVE NOTIFICATION OR SIGNALLING FEATURES AND FUNCTIONALITY. THOSE SERVICES DO NOT ELIMINATE OCCURRENCES OF EVENTS, SUCH AS EQUIPMENT MALFUNCTIONS OR MAINTENANCE NEEDS. FURTHER, YOU UNDERSTAND AND AGREE THAT THOSE SERVICES MAY NOT AVERT OR MINIMIZE SUCH OCCURRENCES OF EVENTS, OR THEIR CONSEQUENCES, AND, THEREFORE, KOMATSU MAKES NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) THAT THOSE SERVICES WILL SO AVERT OR MINIMISE SUCH OCCURRENCES OF EVENTS, OR THEIR CONSEQUENCES.
ARTICLE 13: Waiver of Subrogation
You should protect against any risk of loss with the appropriate insurance coverage, and You are responsible for obtaining all insurance coverage you believe is necessary. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND THE APPLICABLE POLICY OR POLICIES OF INSURANCE YOU OBTAIN AND MAINTAIN, YOU RELEASE KOMATSU AND ITS LICENSORS AND SUPPLIERS FROM ALL LIABILITY FOR ANY LOSS, OCCURRENCE, EVENT OR CONDITION COVERED BY YOUR INSURANCE.
Article 14: Limitation of Liability
- LIMITATION OF LIABILITY. KOMATSU IS LIABLE TO THE CUSTOMER, IN RELATION TO THE USE OF THESE SERVICES, ONLY FOR DAMAGE ACTUALLY INCURRED BY THE CUSTOMER AND DIRECTLY ARISING FROM THE BREACH BY KOMATSU OF THESE TERMS OR ANY OTHER AGREEMENT RELATED TO CUSTOMER’S USE OF THE SERVICES, AND FOR NO OTHER REASON, REGARDLESS OF THE LEGAL GROUND OF LIABILITY. THESE LIMITATIONS APPLY WHETHER THE LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY.
- NO SPECIAL DAMAGES, TOTAL LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL (i) KOMATSU BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST DATA OR LOST PROFITS ARISING FROM OR RELATING TO THE SERVICES, EVEN IF KOMATSU KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES, AND (ii) KOMATSU'S TOTAL CUMULATIVE LIABILITY FOR ANY DIRECT DAMAGES, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF LIFE OR ANY OTHER DAMAGES NOT EXCLUDED OR PRECLUDED PURSUANT TO (i) ABOVE, ARISING FROM OR RELATED TO THE SERVICES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO FIFTY DOLLAR (USD $50) OR THE SUM OF THE FEES PAID BY THE CUSTOMER FOR ANY SERVICES UNDER ANY SERVICE AGREEMENT WITHIN THE LAST 12 MONTHS THAT DIRECTLY RELATES TO SUCH DAMAGES, WHICHEVER IS GREATER.
- NO LICENSOR/SUPPLIER LIABILITY. KOMATSU DISCLAIMS ALL LIABILITY OF ANY KIND OF KOMATSU'S LICENSORS AND SUPPLIERS. UNDER NO CIRCUMSTANCES WILL KOMATSU BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED IN CONNECTION WITH USE OF, OR EXPOSURE TO, ANY CONTENT POSTED, ACCESSED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
- APPLICABLE TO MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EVEN IF KOMATSU IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED OR LIMITED WARRANTY, NEGLIGENCE OF ANY KIND OR DEGREE, STRICT PRODUCT LIABILITY, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR ANY OTHER THEORY OF LIABILITY.
- WRITTEN NOTICE REQUIRED. NO CUSTOMER MAY CLAIM ANY DAMAGES AGAINST KOMATSU UNLESS SUCH CUSTOMER SUBMITS A WRITTEN CLAIM TO KOMATSU WITHIN THE EARLIER OF THE EXPIRATION OF THREE MONTHS AFTER THE USER HAS INCURRED ANY LOSSES OR DAMAGES, OR THE EXPIRATION OF THREE MONTHS AFTER THE APPLICATION SERVICE AGREEMENT HAS EXPIRED OR BEEN TERMINATED.
OF ACCURACY. CUSTOMER UNDERSTANDS
AND AGREES THAT ANY THIRD-PARTY OEM EQUIPMENT INFORMATION AND DATA
(“THIRD-PARTY DATA”) MADE AVAILABLE TO CUSTOMER ON OR THROUGH THE MY KOMATSU
PLATFORM IS MADE AVAILABLE SOLELY AS AN ACCOMMODATION TO CUSTOMER, AND THAT
KOMATSU IS NOT RESPONSIBLE FOR THE GENERATION OF SUCH THIRD-PARTY DATA.
THIRD-PARTY DATA IS PROVIDED TO CUSTOMER “AS IS” WITHOUT ANY WARRANTIES
–EXPRESS, IMPLIED, OR STATUTORY – OF ANY KIND. CUSTOMER ACKNOWLEDGES THAT
THIRD-PARTY DATA IS DYNAMIC AND MAY CHANGE OVER TIME WITHOUT NOTICE. KOMATSU
MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE QUALITY,
ACCURACY, CONTENT, COMPLETENESS, ADEQUACY, SEQUENCE, TIMELINESS, CONDITION,
FUNCTIONALITY, OR SUITABILITY FOR USE OF ANY THIRD-PARTY DATA MADE AVAILABLE TO
CUSTOMER. KOMATSU ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERROR OR
OMISSIONS IN ANY THIRD-PARTY DATA MADE AVAILABLE TO CUSTOMER. CUSTOMER AGREES
THAT ANY RELIANCE UPON OR CONCLUSIONS DRAWN FROM THIRD-PARTY DATA MADE
AVAILABLE TO CUSTOMER SHALL BE SOLELY AT CUSTOMER’S OWN RISK TO THE MAXIMUM
EXTENT PERMITTED BY LAW, AND SHALL NOT GIVE RISE TO ANY LIABILITY OF ANY KIND,
INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL, INDIRECT, PUNITIVE, OR INCIDENTAL
DAMAGES, FOR OR AGAINST KOMATSU. CUSTOMER HEREBY WAIVES AND RELEASES KOMATSU
FROM ANY CLAIMS ARISING UNDER THIS AGREEMENT, COMMON LAW OR ANY STATUTE TO THE
EXTENT SUCH CLAIMS ARISE OUT OF ANY THIRD-PARTY DATA PROVIDED TO CUSTOMER.
Article 15: Mobile Apps
- Mobile Device and Upgrades. Komatsu makes available Mobile Apps to access the Services via a mobile device. To use the Mobile Apps, You must have a mobile device that is compatible with the mobile service. Komatsu does not warrant that the Mobile Apps will be compatible with your mobile device. Your license rights with respect to the Mobile Apps are as set forth in these Terms. You acknowledge that Komatsu may from time to time issue upgraded versions of the Mobile App, and may automatically electronically upgrade the version of the Mobile App that You are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of a Mobile App or any copy thereof, and Komatsu and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile App (and any copy of the Mobile App). Standard carrier data charges may apply to your use of the Mobile App.
- Access to Mobile Apps. You acknowledge and agree that use of certain Apps requires access granted by a Customer who has purchased a subscription, accepted these Terms, and as such is entitled to invite Authorized Users to register for the App. You understand that certain Authorized Users are only able to use the App when a Customer with a paid subscription for the App has sent an invitation via e-mail to create login credentials for signing into and using the App. Any Authorized User who believes they should be authorized to use an App on behalf of a Customer should contact that Customer to obtain login credentials. We are never responsible for providing You with such login credentials, nor do we decide which role You have within the App and which features You are able to use and/or access.
- iOS Apps. The following additional terms and conditions apply with respect to any Mobile App that Komatsu provides to you designed for use on an Apple iOS-powered mobile device (an "iOS App"): (i) You acknowledge that these Terms are between You and Komatsu only, and not with Apple, Inc. ("Apple"); (ii) Your use of Komatsu's iOS App must comply with Apple's then-current App Store Terms of Service; (iii) Komatsu, and not Apple, is solely responsible for Komatsu's iOS App and the Services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to Komatsu's iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to Komatsu's iOS App; (iv) You agree that Komatsu, and not Apple, is responsible for addressing any claims by you or any third-party relating to Komatsu's iOS App or your possession and/or use of Komatsu's iOS App, including, but not limited to: (a) product liability claims; (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to Komatsu as provider of the iOS App; (v) You agree that Komatsu, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to Komatsu's iOS App or your possession and use of Komatsu's iOS App; (vi) You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (b) You are not listed on any U.S. Government list of prohibited or restricted parties; (vii) You agree to comply with all applicable third-party terms of agreement when using Komatsu's iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App); (viii) Customer and Komatsu agree that Apple and Apple's subsidiaries are third-party beneficiaries to these Terms as they relate to Customer’s license of Komatsu's iOS App. Upon acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against You as they relate to your license of the iOS App as a third-party beneficiary thereof.
Apps. The following
additional terms and conditions apply with respect to any Mobile App that
Komatsu provides to you designed for use on an Android-powered mobile device
(an "Android App"): (i) You acknowledge that these Terms are
between you and Komatsu only, and not with Google, Inc. ("Google");
(ii) Your use of Komatsu's Android App must comply with Google's then-current
Android Market Terms of Service; (iii) Google is only a provider of the Android
Market where you obtained the Android App. Komatsu, and not Google, is solely
responsible for Company's Android App and the Services and Content available
thereon. Google has no obligation or liability to you with respect to Company's
Android App or these Terms; (iv) You acknowledge and agree that Google is a
third-party beneficiary to the Terms as they relate to Company's Android App.
Article 16: Exclusion of Antisocial Forces
The Customer warrants that it and the Authorized Users whom it authorizes to use the Services will not engage with any “Anti-Social Forces” (such as organized crime, hate groups, gangs, terrorists, groups engage in child labor, slave labor, corruption or money-laundering etc.) which pose a threat to the order and safety of civil society, and that existence of reasonable basis of such anti-social activity of the Customer or any Authorized User whom the Customer authorizes to use the Services will be cause for immediate termination of Customer’s rights to use the Services. In addition to the foregoing, Komatsu will be entitled to recover any loss and/or damages caused by such termination from the Customer.
ARTICLE 17: Miscellaneous
- Language: The Services shall be provided in English. We have the right, however, to make courtesy translations available to you, but are not obliged to do so.
- Governing Law and Jurisdiction. These Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Products and Services shall be governed by the laws of the State of Illinois without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS IN OR FOR COOK COUNTY, ILLINOIS AND THE NOTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF LITIGATING ALL SUCH CLAIMS OR DISPUTES.
- Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, Komatsu may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
- Logging. We, or one of our affiliates, may register access to any Service or App for management and security reasons. We keep an up-to-date log in which we store data relating to your use of the Services or an App and You agree that this log provides evidence that access has been gained to the Services or App and that the Services or App has been used in a certain way, unless You submit proof to the contrary.
- Relationship. Komatsu, in providing the Services, acts as an independent contractor. You acknowledge and agree that we are not in an agency or partner relationship and that You nor we have any authority to represent one another as to any matters unless expressly authorized under these Terms.
- Subcontracting. We may involve subcontractors to provide you the Services, including, but not limited to, hosting, data center, database and security service providers.
- Assignment. These Terms, and any associated rights, agreements, or obligations may not be assigned or otherwise transferred by you without Komatsu's prior written consent. These Terms may be assigned by Komatsu without restriction. These Terms are binding upon any permitted assignee. Any attempted assignment in violation of this paragraph is void.
- Entire Agreement; Severability. These Terms and any specific agreement related to your use of any of the Services, constitute the entire agreement between you and Komatsu regarding the subject matter hereof. Each provision of the Terms shall be interpreted in an effective way to the extent permitted by law. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver. Any failure by Komatsu to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on us unless made in writing.
- Section Titles. The section titles in these Terms are for convenience only and have no legal or contractual effect.
- Survivability. The obligations that by their terms or nature continue and survive, including the warranty disclaimer, consequential damages waiver, limitation on liability and indemnification provisions and general terms, will survive any expiration or termination of these Terms.
- Force Majeure. Komatsu shall not be liable for failure to provide the Services during any period in which Komatsu cannot perform due to matters beyond its control, including, but not limited to, strike, fire, flood, or other natural disaster, war, embargo, epidemic, pandemic, quarantine restrictions, other government-imposed restrictions or requirements, or riot, provided that Komatsu immediately notifies Customer of such delay.
- Notifications. Komatsu may provide notifications to You as
required by law, or for marketing or other purposes, via (at its option) email
to the primary email associated with your Account, mobile notifications, hard
copy or posting of such notice on www.mykomatsu.com. Komatsu is not responsible
for any automatic filtering that You or your network provider may apply to
Article 18: Trademark Information
All rights reserved. All trademarks, logos and service marks ("Marks") displayed on the Services are the property of Komatsu or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Komatsu or such respective holders. Komatsu reserves the right to alter product and services offerings, specifications and pricing at any time, without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.