TERMS OF SERVICE FOR KOMATSU SERVICES
These Terms of Service for Komatsu Services (these “Terms” or this “Agreement”) are entered into by Komatsu America Corp. and its subsidiaries and affiliates, as applicable, (“we,” “us,” “our,” or “Komatsu”) and the person or entity agreeing to these terms (“Customer”) and govern Customer’s access to and use of the Komatsu Services and purchase, licensing or procurement of Komatsu’s Products.
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 contained in these Terms will not apply to the extent prohibited by applicable law.
This Agreement is effective when Customer clicks to accept it (the “Effective Date”). If you are accepting on behalf of Customer, you represent and warrant that (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement.
THESE TERMS ARE A LEGAL AGREEMENT. BY CLICKING “I AGREE,” YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF CUSTOMER. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ACCEPT THESE TERMS AND DO NOT USE OR ACCESS THE SERVICES.
These Terms govern your access to and use of the Komatsu Platform and the Services and Products.
ARTICLE 1: PROVISION OF SERVICES
1.1 Services Use. During the Agreement, Komatsu will provide the Services in accordance with this Agreement and the applicable Service Specific Terms, and Customer may use the Services in accordance with and purchase, license and obtain Products under this Agreement.
1.2 Service Specific Terms. Your use of the Services and Products is subject to any and all Service Specific Terms, policies (including acceptable use policies), rules, or guidelines applicable to the Service or certain features of the applicable Services and Products that we may post on or link to on the Site for the applicable Service or Product (“Service Specific Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content of a Service or Product. All Service Specific Terms are hereby incorporated by reference into and made a part of these Terms. The following Service Specific Terms will apply to the corresponding Service and Product listed below:
(b) My Komatsu is the online solution for remote fleet management and parts ordering ;
(c) Komatsu Smart Construction offers a suite of products, services and digital solutions for accurate data, comprehensive reporting and remote capabilities. Smart Construction Terms of Service located at Article 22will apply to your purchase and use of any products or services available through Komatsu’s My Construction Site;
1.3 Modifications.
(a) To the Services. Komatsu may make updates to the Services from time to time. Komatsu will inform Customer if Komatsu makes a material change to the Services that has a material adverse impact on Customer’s use of the Services, provided that Customer has contracted with Komatsu to be informed about such change.
(b) To the Agreement. Komatsu may make changes to this Agreement (including the Service Specific Terms) and pricing from time to time. When Komatsu makes a change to the Terms, Komatsu shall require you to accept the new Terms. If Customer does not agree to the changes or new Agreement, Customer’s remedy is to stop using the Services. Customer may also terminate this Agreement for convenience under Section 10.4.
(c) Discontinuation of Services. Komatsu will notify Customer before or at time of discontinuing any subscription and/or paid Service (or associated material functionality) unless Komatsu replaces such discontinued Service or functionality with a materially similar Service or functionality. Nothing in this Section 1.3(d) limits Komatsu’s ability to make changes required to comply with applicable law, address a material security risk, or avoid a substantial economic or material technical burden. This Section 1.3(d) does not apply to pre-general availability Services, offerings, or functionality.
1.4 Software. If Komatsu makes Software available to Customer, including third-party software, Customer’s use of any Software is subject to this Agreement and the applicable provisions in the Service Specific Terms.
ARTICLE 2: ELIGIBILITY, CUSTOMER SERVICE, DATA PRIVACY
2.1 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, Apps, 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.
2.2 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. 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.
2.3 Komatsu Privacy Policy. Komatsu’s Privacy Policy available at https://www.komatsu.com/en/privacy-statement/ details Komatsu’s practices with respect the data and information collected or obtained through the Services. All additional guidelines, terms or rules and the Privacy Policy are incorporated by reference into these Terms, and, by accepting this Agreement, you are agreeing to accept and abide by them by using the Services.
ARTICLE 3: ACCOUNTS
3.1 Your Account. To use the Services, you must register for an Account and provide certain information about yourself and your company, 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. Customer is responsible for the information it provides to create the Account. 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 and will not, directly or indirectly, sell, lease, import, export, divert, re-export, transfer or otherwise supply or dispose of any Products or Services in violation of Export Control Laws or to the Russian Federation or Belarus or for use in the Russian Federation or Belarus). Customer is responsible for the security of its passwords for the Account and for any use of its 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 and 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. Komatsu has no obligation to provide multiple accounts to Customer.
3.2 Authorized Users. The individual who creates an account is the “Owner” of that Account. Persons who are employed by or contracted by 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 additional information, such as their class attendance or trainings downloaded. 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 Products 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. 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 Account immediately upon their Authorized Users’ cessation of 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. Notwithstanding use of the word “Owner,” the term “Owner” does not have any ownership interest in an Account.
3.3 Chief Administrator. Before starting use of any of the Services, Customer may 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, are collectively 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 himself or herself who has a General Account use the General Account. If it wishes to change the Chief Administrator, Customer shall immediately change the registration of the Administrator Account on the website.
3.4 Precautions. Authorized Users shall use the Services after fully understanding the precautions, etc. stipulated in these Terms, and any documentation provided in relation to the Services. Customer fully acknowledges and understands the precautions provided in any documentation for using any Service.
3.5 No Transfer of Rights. No Authorized User may assign or 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 documentation referenced in Section 3.4. Any attempted assignment in violation of this Section 3.5 is void.
3.6 Responsibility 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 the damage.
ARTICLE 4: ACCESS TO SERVICES
4.1 Access and Use. Subject to these Terms, Komatsu hereby grants you a limited, revocable, 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, overseeing, managing, purchasing, downloading, or scheduling Products, and (iii) accessing the Sites solely for the Permitted Purpose.
4.2 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.
4.3 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 respective 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.
4.4 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, not this Agreement. 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.
4.5 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 may also hold your Personal Information and are responsible for taking their own security measures.
4.6 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.
4.7 Location Terms. The Services include and make use of Geo-Location Services. Your use of the Geo-Location Services is subject to Google’s then current Terms of Use for Google Maps/Google Earth (http://www.google.com/intl/en_us/help/terms_maps.html) and by using the Geo-Location Services, you are agreeing to be bound by Google’s Terms of Use. Geo-Location Services are used at your own risk and location data may not be accurate.
4.8 Content Accessible through the Services. The Services contain some third-party content (such as text, images, videos, audio, or software). All such content is the sole responsibility of the person or entity that makes it available. We may sometimes review content to determine whether it is illegal or violates our policies or these Terms, and we may remove or refuse to display content. Content accessible through the Services may be subject to Intellectual Property Rights, and, if so, you may not use it unless you are licensed to do so by the owner of that content or are otherwise permitted by law. Your access to the content provided by the Services may be restricted, limited, or filtered in accordance with applicable law, regulation, and policy.
4.9 Submission of Content. Some of the Services allow the submission of content. Komatsu does not acquire any ownership of any Intellectual Property Rights in the content that you submit to the Services, except as expressly provided in the Terms. For the sole purpose of enabling Komatsu to provide, secure, and improve the Services (and the related service(s)) and only in accordance with Komatsu Privacy Policy, you give Komatsu a perpetual, irrevocable, worldwide, sublicensable, transferable, royalty-free, and non-exclusive license to Use (as defined below) content submitted, posted, or displayed to or from the Services. As used in this Section, the term “Use” means use, host, store, modify, communicate, disclose, and publish. Before you submit content to the Services, you will ensure that you have the necessary rights (including the necessary rights from your Users) to grant us the license.
4.10 Retrieval of Content. If any other Komatsu customer’s or its user’s non-public content is obtained through the Services, you may not expose that content to any other Komatsu customers or their users or to third parties without explicit opt-in consent from such Komatsu customer.
4.11 Prohibitions on Content. Unless expressly permitted by the applicable content owner or by applicable law, you will not, and will not permit your Users or others acting on your behalf to, do the following with content returned from the Services: (i) scrape, build databases, or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header; (ii) copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense to any third party; (iii) misrepresent the source or ownership; or (iv) remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material.
ARTICLE 5: PAYMENT AND TAXES
5.1 Payment.
(a) Payment for Fees to Komatsu. Certain Services and Applications may be subject to Fees by Komatsu. Komatsu will issue an electronic bill to Customer for all charges based on Customer’s use of the Services and purchase of Products. If Komatsu reasonably determines based on evidence available to Komatsu that Customer is at risk of non-payment or that Customer’s Account is potentially fraudulent, then Komatsu may invoice Customer more frequently. Customer will pay all Fees in the currency stated in the invoice. If Customer elects to pay by credit card, debit card, or other non-invoiced form of payment, Komatsu will charge (and Customer will pay) all Fees immediately. If Customer elects to pay by invoice (subject to Komatsu’s agreement), all Fees are due as stated in the invoice. Unless required by law, Customer’s obligation to pay all Fees is non-cancellable. Komatsu’s measurement of Customer’s use of the Services is final. Komatsu has no obligation to provide multiple bills. Payments made via wire transfer must include the bank information provided by Komatsu.
(b) Payment for Fees to Third-Party. Certain Services and Applications may make Product or Service information available which will ultimately be purchased through a Third-Party, including Komatsu dealers. Such fees are subject to that Third-Parties terms and conditions, including terms for store credit, credit limits, and other payment terms.
5.2 Taxes. Customer is responsible for any Taxes and will pay Komatsu for the Services without any reduction for Taxes. If Komatsu is obligated to collect or pay any Taxes, the Taxes will be invoiced to Customer and Customer will pay such Taxes to Komatsu, unless Customer provides Komatsu with a timely and valid tax exemption certificate in respect of those Taxes. Customer will provide Komatsu with any applicable tax identification information that Komatsu may require under applicable law to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Komatsu for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Customer.
5.3 Payment Disputes and Refunds. Any payment disputes must be submitted in good faith before the payment due date. If Komatsu, having reviewed the dispute in good faith, determines that certain billing inaccuracies are attributable to Komatsu, Komatsu will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If a disputed invoice has not yet been paid, Komatsu will apply the credit memo amount to a disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. Refunds given by Komatsu for billing inaccuracies under this Section will only be in the form of credit for the Services. Nothing in this Agreement obligates Komatsu to extend credit to any party.
5.4 Delinquent Payments; Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including reasonable attorneys’ fees) incurred by Komatsu in collecting such delinquent amounts. Further, in the event of any late payment for the Services, Komatsu may Suspend the Services.
5.5 No Purchase Order Number Required. Customer is obligated to pay all applicable Fees without any requirement for Komatsu to provide a purchase order number on Komatsu’s invoice (or otherwise).
ARTICLE 6: CUSTOMER OBLIGATIONS
6.1 Compliance. Customer will (a) ensure that Customer and its End Users’ use of the Services complies with the Agreement (including the Service Specific Terms), (b) use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the Services, and (c) promptly notify Komatsu of any unauthorized use of, or access to, the Services, Account, or Customer’s password of which Customer becomes aware. Komatsu reserves the right to investigate any potential violation of this Agreement by Customer, which may include reviewing the Account (including Administrator Account) and its usage.
6.2 Privacy. Customer is responsible for any consents and notices required to permit (a) Customer’s use and receipt of the Services and (b) Komatsu’s accessing, storing, and processing of information and data provided by Customer under the Agreement.
6.3 Documentation. Komatsu may provide end user documentation for Customer’s use of the Services. You are hereby authorized to use such documentation solely internally and only in connection with your use of the Services.
6.4 System Requirements. Customer is responsible for, and the Services may not be accessible without, providing or obtaining each of the following: (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. 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.
6.5 Equipment, ISP and Operator. You acknowledge that the availability of the Services is dependent on (i) your computer, mobile device, office, building, structure or home wiring, network, connectivity and other related equipment, (ii) your ISP and bandwidth and (iii) your Operator. You acknowledge that you are responsible for compliance with all applicable agreements, terms of use/service and other policies of your ISP and Operator.
6.6 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.
6.7 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.
6.8 Restrictions. Customer will not, and will not allow End Users to, do any of the following: (i) license, sell, resell, rent, lease, transfer, assign, distribute, host any of the Services; (ii) use the Services and Products for any purposes other than the Permitted Purpose; (iii) except as permitted by law notwithstanding this prohibition and then only as may be necessary for the performance of the Services, 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, or allow or enable any other party to do so; (iv) access the Services in order to build a similar or competitive service or product; (v) except as expressly stated herein or permitted by the Authorized User functionality of the Services, copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means, including any videos, any of the Services or content available therefrom; (vi) 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; (vii) not to access (or attempt to access) any of the Services by means other than through the user interface that is provided by Komatsu for such purpose; (viii) 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; or (ix) access or use the Services (a) in violation of the this Agreement or (b) in a manner intended to avoid incurring Fees (including creating multiple Accounts to simulate or act as a single customer account or to circumvent Service-specific usage limits or quotas; (c) in a manner that breaches, or causes the breach of, any applicable laws, including Export Control Laws; or (d) for High Risk Activities. Any future release, update or other addition to functionality of the Services shall be subject to these Terms.
6.9 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.
6.10 Response to Violations. In the case where Komatsu decides that the act of Customer or User violates the provisions of these Terms, 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 Customer Information without the prior notice to Customer or User. Komatsu shall not be held liable in any way for the liability or damage caused by the measures it may take. Komatsu’s measures taken will not operate to discharge Customer from liability in the case where there is liability, harm or damage to Komatsu or a third party caused by the measures taken by Komatsu. In the case where Customer causes liability due to violation of the Terms or causes a dispute with a third party, Customer shall resolve the issue 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, Customer shall resolve the dispute at its expense and shall not impose any responsibilities on Komatsu, and Customer shall indemnify, release, and hold harmless Komatsu against any and all such liability and claims related thereto.
6.11 Copyright. Komatsu responds to notices of alleged copyright infringement and terminates the Accounts of repeat infringers in appropriate circumstances as required to maintain safe harbor for online service providers under the U.S. Digital Millennium Copyright Act.
ARTICLE 7: LIMITATIONS OF KOMATSU SERVICES DUE TO THIRD PARTIES
7.1 General. The Services rely on and interoperate 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 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.
7.2 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.
7.3 App Stores. Apps can be downloaded from third-party digital distribution platforms for computer software called software “apps” or “applications” (the “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.
7.4 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.
7.5 Authorized 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 8: OWNERSHIP AND INTELLECTUAL PROPERTY
8.1 Komatsu Property. You acknowledge that Komatsu or Komatsu’s licensors own all right, title and interest in and to the intangible Product, Product Software, Services, Sites, Web Apps and Mobile Apps, including all related or associated Intellectual Property Rights. Your possession, access to and use of the intangible Product, Product Software, Services, Sites, Web Apps and Mobile Apps 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 intangible Product, Product Software, Services, Sites, Web Apps and Mobile Apps are licensed to you, not sold, under these Terms. Neither Customer nor Komatsu shall acquire any ownership interest in any Intellectual Proprietary Rights which are owned by the other, whether or not they are used in connection with the Services provided.
8.2 Limits. You may neither 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.
8.3 Customer Content and Data. Where applicable, you acknowledge that the content, data and communications which you upload in, or generate with, the Service (including via an App) shall vest, and remain vested, in Customer. We and our affiliates, contractors, subcontractors, licensors, service providers, and our partners are granted a license to use such content, data and communications for the purposes of making the Services available to you in accordance with these Terms and our Privacy Policy.
8.4 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 may be freely and fully used and exploited without restriction and will not place Komatsu under any fiduciary or other obligation. Komatsu may use, copy, modify, disclose, publish, redistribute and otherwise exploit the Ideas for any purpose and in any way without payment of royalties or any other compensation to you. Komatsu is not obligated to hold, keep confidential, use, display, reproduce, implement, or distribute, or otherwise act upon any Ideas. Nothing herein shall be interpreted as imposing an obligation on you to provide Ideas to Komatsu or for Komatsu to use any Ideas.
ARTICLE 9: CONFIDENTIALITY
9.1 Non-Disclosure. Neither Komatsu nor Customer may disclose or divulge to any third party any Confidential Information of the other party; and Komatsu and Customer shall use Confidential Information only for the purpose of providing or using the Services and otherwise exercising rights under and performing this Agreement, 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.
9.2 Disclosures Required by Law. Notwithstanding the preceding paragraph, Komatsu and Customer may disclose the other’s Confidential Information to the extent required under Legal Process, 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.
9.3 Disclosure to Contractors and Others. 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 these Terms, Komatsu may disclose the Confidential Information of Customer to contractors or other third parties without obtaining Customer’s prior written approval. Komatsu may also use and disclose Customer’s Confidential Information as provided in the Privacy Policy.
ARTICLE 10: TERM AND TERMINATION
10.1 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 this Section 9.
10.2 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.
10.3 Automatic Termination. In the event any of the following events occurs with respect to Customer, we may terminate your rights or access to the Services, as well as any applicable additional agreements, by giving notice thereof in writing or e-mail to Customer, without the need to make any request for correction: (i) Customer has stopped its payments or has become unable to pay its debts or fails to pay any amounts when due; (ii) any bill or check of 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) 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 Customer’s business has been adopted; or (vii) any event equivalent to the preceding items occurs.
10.4 Termination for Convenience. Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time on prior written notice and, upon termination, must cease use of the applicable Services. Komatsu may terminate this Agreement for its convenience at any time with 30 days’ prior written notice to Customer.
10.5 Termination for Breach. To the extent permitted by applicable law, either party may terminate this Agreement immediately on written notice if (a) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
10.6 Termination for Inactivity. Komatsu reserves the right to terminate the provision of the Services upon 30 days’ advance notice if, for a period of 90 days Customer has not accessed the Services.
10.7 Termination Due to Applicable Law; Violation of Laws. Komatsu may terminate this Agreement immediately on written notice if Komatsu reasonably believes that (a) continued provision of any Service used by Customer would violate applicable laws or (b) Customer has violated or caused Komatsu to violate any Anti-Bribery Laws or Export Control Laws.
10.8 Deletion of Account. Upon request to Komatsu, where Customer has granted the right to use a Service to an Authorized User, Customer may delete User’s registration of such User’s Account without prior notice to the Authorized User. Further, Komatsu may delete the registration of any Account that is not used for six months or more without prior notice to the applicable User.
10.9 No Liability. Komatsu is not liable for any damage that may be incurred by 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.
10.10 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 and all Fees owed by Customer to Komatsu are immediately due upon Customer’s receipt of the final electronic bill or final invoice. Customer agrees that, after termination, Komatsu may delete Customer Information and all other data and information Customer provided through its use of a Service, including all Confidential Information. 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 deletion, loss, or destruction of data and information of Customer.
10.11 Return of Device and Software. Where Customer is provided with a device or software by Komatsu for use of the Services, Customer shall return the device or software, all the relevant documentation, etc. (including the copies of the software, documentation, etc.) to Komatsu immediately after termination. If the software, documentation, etc. are copied onto an IoT Device or other hardware, system, equipment or network, Customer shall, at its expense, delete the copied software, documentation etc. in its possession or under its control.
ARTICLE 11: 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 WILLFUL, 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 12: DAMAGE CAUSED BY CUSTOMER INSTALLATION INFORMATION
12.1 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 Customer Information, without obtaining the prior consent of the Customer, in the event of any interference to any Service, Application, or Komatsu’s server, or any risk thereto that is caused by Customer Information.
12.2 No Liability. Komatsu is not liable for any damage arising out of the measures taken by us pursuant to the preceding paragraph.
12.3 Customer Liability. The preceding two paragraphs do not in any way release Customer from any liability for the damage incurred by Komatsu or any third party due to the measures taken by Komatsu. 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 Customer Information.
ARTICLE 13: WARRANTY DISCLAIMERS
13.1 “AS-IS,” “WHERE-IS”. THE SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS, AND KOMATSU, AND OUR LICENSORS AND SUPPLIERS, DO NOT PROVIDE ANY WARRANTY AND EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, AS TO THE SERVICES PROVIDED TO CUSTOMER OR TO ANY GOODS, PRODUCTS, OR WORK DERIVED OR RESULTING FROM THE SERVICES PROVIDED TO CUSTOMER, INCLUDING THE INTEGRITY, EFFECTIVENESS, RELIABILITY, TRUTH, ACCURACY, VALIDITY, PERFORMANCE WARRANTY, FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUIET ENJOYMENT, SATISFACTORY QUALITY, COMPATIBILITY WITH ANY EQUIPMENT USED, LEGALITY AND NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES. KOMATSU IS LIABLE ONLY TO THE EXTENT STIPULATED IN THESE TERMS, EVEN IN THE CASE OF ANY DEFECTS, BUGS OR THE LIKE IN ANY OF THE SERVICES OR IN THE CASE OF ANY UNAVAILABILITY OF THE SERVICES DUE TO, AMONG OTHER THINGS, ANY OVERLOAD OR DEFECT OF THE SYSTEM. CUSTOMER SHALL USE THE SERVICES BASED ON ITS OWN JUDGMENT AND UNDER ITS OWN RESPONSIBILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT LOCATION DATA AND OTHER DATA OF CONSTRUCTION EQUIPMENT MAY NOT BE IDENTIFIED OR MAY BE IDENTIFIED INCORRECTLY.
13.2 NO WARRANTY. KOMATSU, AND ITS LICENSORS AND SUPPLIERS, MAKE NO WARRANTY THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES: (i) WILL MEET YOUR NEEDS OR 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.
13.3 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.
13.4 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, INCLUDING THE ACCURACY OF ESTIMATES PROVIDED FOR PRODUCT OR SERVICE COSTS OR TRACKING INFORMATION, ESTIMATED SHIPPING COSTS, METHOD OF DELIVERY OR DELIVERY TIME ESTIMATES, OR ACCURACY OF INVENTORY AVAILABILITY NOTICES. KOMATSU MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
13.5 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.
13.6 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 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.
13.7 FORCE MAJEURE. KOMATSU IS NOT LIABLE FOR FAILURE OR DELAY IN PERFORMING THIS AGREEMENT TO the extent caused by circumstances beyond its reasonable 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, RIOT OR OTHER CIVIL UNREST, A BREAKDOWN OF OR TROUBLE WITH ANY EQUIPMENT NECESSARY TO PROVIDE THE SERVICES, FAILURE OF ELECTRICITY SUPPLY, ABNORMALITY IN COMMUNICATION LINES, OR SYSTEM FAILURES OR FOR ANY OTHER CAUSE, REASON OR CIRCUMSTANCE, WHETHER OR NOT SIMILAR TO ANY OF THE FOREGOING. IN SUCH CASES, CUSTOMER ACKNOWLEDGES AND AGREES THAT THERE MAY BE A LOSS OF INFORMATION, DELAYS AND THE LIKE WITH RESPECT TO ALL OR PART OF CUSTOMER INFORMATION AND OTHER DATA RELATED TO CUSTOMER THAT MAY FOLLOW A RESTRICTION IN THE USE OR INITIALIZATION OF THE USER TERMINAL OR AN IOT DEVICE.
13.8 SECURITY MEASURES. KOMATSU TAKES SECURITY MEASURES WITH RESPECT TO THE PROTECTION OF 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 CUSTOMER AND SUCH THIRD PARTY.
13.9 BACK-UP INFORMATION. KOMATSU IS NOT RESPONSIBLE FOR RETAINING ANY BACK-UP OF ANY CUSTOMER INFORMATION. CUSTOMER SHALL MAKE REGULAR BACKUP COPIES OF THE RELEVANT CUSTOMER INFORMATION UNDER ITS OWN RESPONSIBILITY.
13.10 FREENESS 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 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 INFECTION.
ARTICLE 14: OTHER DISCLAIMERS
YOU UNDERSTAND AND AGREE THAT SOME OF THE SERVICES MAY HAVE NOTIFICATION OR SIGNALING 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 MINIMIZE SUCH OCCURRENCES OF EVENTS, OR THEIR CONSEQUENCES.
ARTICLE 15: 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 16: LIMITATION OF LIABILITY
16.1 LIMITATION OF LIABILITY. KOMATSU IS LIABLE TO CUSTOMER, IN RELATION TO THE USE OF THESE SERVICES, ONLY FOR DIRECT DAMAGE ACTUALLY INCURRED BY CUSTOMER THAT DIRECTLY ARISE 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 (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY.
16.2 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, PUNITIVE, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST DATA OR LOST PROFITS, 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 CUSTOMER FOR ANY SERVICES PROVIDED UNDER THE SERVICE SPECIFIC TERMS UNDER WHICH THE CLAIM AROSE WITHIN THE LAST 12 MONTHS THAT DIRECTLY RELATES TO SUCH DAMAGES, WHICHEVER IS GREATER. THE LIMITATIONS IN THIS AGREEMENT APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
16.3 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.
16.4 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.
16.5 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.
ARTICLE 17: MOBILE APPS
17.1 Mobile Device and Upgrades. Komatsu makes available Mobile Apps to access certain 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.
17.2 Access to Mobile Apps. You acknowledge and agree that use of certain Apps requires access granted by the 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 the 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 the Customer should contact the 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.
17.3 iOS Apps. The following Service Specific 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.
17.4 Android Apps. The following Service Specific 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 Komatsu’s Android App and the Services and content available thereon. Google has no obligation or liability to you with respect to Komatsu’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 Komatsu’s Android App.
ARTICLE 18: EXCLUSION OF ANTISOCIAL FORCES
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 Customer or any Authorized User whom 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 Customer.
ARTICLE 19: MISCELLANEOUS
19.1 Language. This Agreement has been prepared and executed in the English language only, which language will be controlling in all respects. Any translations of the provisions of this Agreement into any other language are for reference only and will have no legal or other effect. Any notice that is required or permitted to be given by one party to the other under this Agreement must be in the English language and in writing. All proceedings related to this Agreement will be conducted in the English language. The Services shall be provided in English.
19.2 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 NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF LITIGATING ALL SUCH CLAIMS OR DISPUTES.
19.3 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.
19.4 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.
19.5 Statute of Limitations. Customer and its Users agree that notwithstanding any statute or law to the contrary, that any claim or action by you or Customer arising out of or relating to the Service, or the use of the Service, must be filed by you within one ( 1) year after such claim or cause of action arose or be forever barred.
19.6 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.
19.7 Subcontracting. Komatsu may subcontract obligations under the Agreement. Without limitation, Komatsu may involve subcontractors to provide you the Services, including, but not limited to, hosting, data center, database and security service providers.
19.8 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.
19.9 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. The Service Specific Terms are incorporated by reference into the Agreement. 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.
19.10 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.
19.11 Section Titles. The section titles in these Terms are for convenience only and have no legal or contractual effect.
19.12 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.
19.13 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order (of decreasing precedence): the Service Specific Terms and then this Agreement (excluding the Service Specific Terms).
19.14 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 email notifications.
ARTICLE 20: 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.
ARTICLE 21: DEFINITIONS
“Account” means Customer’s account for the Services.
“Account Service” means the web service managed by Komatsu, which creates and manages accounts to log in to the Komatsu Platform.
“Administrator Account” means the account created by Customer to manage users and change, terminate, and make other changes to the Account and otherwise managing and administrating the Services for Customer.
“App Store” means third party sites from which Apps can be downloaded, e.g., the Google Play Store for Android devices and from the Apple App Store for iOS devices.
“Application” or “App” means any software application for the Services that is provided, made available, or licensed by Komatsu. Apps are Web Apps or Mobile Apps.
“Chief Administrator” means an officer or employee of Customer who is authorized to manage users and change, terminate, and make other changes to an Account on behalf of Customer and otherwise manage and administer the Services for Customer.
“Confidential Information” means any non-public technical, marketing or any other business information of a party obtained in connection with the Services (excluding Customer Information).
“Customer” means the business entity or individual has that agreed to these Terms.
“Customer Information” means any information that is directly or indirectly provided to Komatsu in the course of using any Service by Customer or its Users under the Account, including information that Customer or such Users enter into Customer and stores in any of the Services and any information obtained by processing or analyzing such information or obtained from Customer’s equipment or machines.
“Export Control Laws” means all applicable export and re-export control laws and regulations, including (a) the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, (b) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, (c) the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State, and (d) economic or financial sanctions, export controls, trade embargoes or other restrictive measures of any type whatsoever by the United Nations Security Council, the United States of America, the European Union, any EU Member States, the United Kingdom, or any other governmental authority with jurisdiction over either party.
“Fees” means the applicable fees for each Service or Software or Product plus any applicable Taxes.
“Geo-Location Services” means 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.
“High Risk Activities” means activities where the use or failure of the Services would reasonably be expected to lead to death, personal injury, or environmental or property damage (such as the creation or operation of nuclear facilities, air traffic control, life support systems, or weaponry).
“Ideas” means comments, suggestions, feedback, feature requests, recommendations, or ideas about or for the Services, including any relating to the performance, features, functions and availability of the Services or how to improve any of the Services.
“Intellectual Property Rights” means copyright rights (including, without limitation, the right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), patent rights (including, without limitation, the right to make, use, offer for sale, sell, and import), utility model rights, design rights, trademark rights (including, without limitation, trade names, trademarks, service marks, logos, and trade dress), trade secrets, trade secrets, moral rights, right of publicity, right of privacy, authors’ rights, contract and licensing rights, goodwill, and other intellectual property rights as may exist now or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States, or any other state, country or jurisdiction throughout the world.
“IoT Device” means 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.
“Legal Process” means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.
“Limited Warranty” means the specific limited warranty provided with a Product or Service.
“Login ID” means a code used to access the Services 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.
“Mobile App” means an Application that may be downloaded to a smartphone or tablet.
“Password” means a code used to access the Services 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” means your access to the Services for a bona fide business purpose in accordance with these Terms of Service.
“Personal Information” means California Consumer Privacy Act (“CCPA”), as amended by the California Privacy Rights Act (“CPRA”) (Civil Code Section § 1798.100) or if applicable the EU Regulation 2016/679 (“GDPR”), the GDPR as enacted by the United Kingdom in each case, to the extent in force, and as updated, amended or replaced from time to time.
“Privacy Policy” means Komatsu’s then-current privacy policy, which details Komatsu’s practices with respect the data and information collected or obtained through the Services.
“Product” means Komatsu’s machines, equipment, training videos, or written materials, and any other product the Komatsu makes available to Customer and its Users for purchase or permitted to utilize by Komatsu, from time to time, through the Komatsu Platform.
“Product Information” means 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” means Software embedded in or provided for use with a Product (and any updates thereto).
“Services” means the then-current cloud-based services that Komatsu provides to Customer for use in conjunction with Komatsu machines, equipment, and other products and as otherwise permitted by Komatsu from time to time under this Agreement. The Services includes all Komatsu Software made available or accessed in connection therewith, including the Software for the Services, the intangible Product, Product Software, Sites, Web Apps and Mobile Apps.
“Service Interruptions” means 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.
“Site” means the Komatsu website located at https://mykomatsu.komatsu, and all associated sites linked to https://mykomatsu.komatsu.
“Software” means any software (including downloadable software) provided by on behalf of Komatsu in connection with the Services, and any updates Komatsu may make to such software from time to time.
“Suspend” or “Suspension” means disabling or limiting access to or use of the Services or components of the Services.
“Taxes” means all government-imposed taxes, except for taxes based on Komatsu’s net income, net worth, asset value, property value, or employment.
“Target Country” means the United States or Canada.
“Third-Party Sites” means other websites operated by dealers and other third parties.
“Updates” means patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and/or the Product Software.
“User” or “Authorized User” means the user authorized by Customer to create an Account or to use the Services for or on behalf of Customer.
“Users’ Guide” refer to Komatsu’s guides for use of the Services provided through the Komatsu Platform that is published on the Website.
“User Terminal” means an electronic device or terminal that Customer or User uses for the purpose of accessing and using any of the Services, such as a personal computer, a smartphone or a tablet.
“Web App” means an Application that is accessible via a supported Internet browser.
ARTICLE 22: REGIONAL TERMS
Customer agrees to the following modifications to the Agreement if Customer’s billing address is in the applicable region listed below:
Australia Customers:
Article 1.2: Service Specific Terms
The relevant Service Specific Terms that will apply to the corresponding Service and Product are located at: https://www.komatsu.com.au/pages/terms-conditions.
Article 2.3: Komatsu Privacy Policy
The relevant Privacy Policy is available at:
Article 19.2: 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 New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the New South Wales courts in respect of all matters relating to these Terms.
Article 21: Definitions
“Personal Information” has the same meaning as set out in the Australian Privacy Act 1988 (Cth).
Chile Customers:
In addition to the claims listed in Section 16.2(i) as excluded under these Terms, the following claims are also excluded: “daño emergente, lucro cesante, and daño moral”.
Komatsu Europe International SA Customers in Europe, Middle East and Africa
Customer agrees to the following modifications to the Agreement if Customer is invoiced for the Services by Komatsu Europe International SA (“KEISA”), having its registered seat at Mechelsesteenweg 586, 1800 Vilvoorde, Belgium and registered under enterprise number (VAT) (BE)0404.968.268:
22.1 Limitation of scope. For Customers procuring the Services from KEISA in Europe, the Middle East and/or Africa, the present Terms solely govern Customer’s registration with and use of the cloud-based learning management system called “Komatsu Academy”. The definition of “Services” in the previous Article shall therefore be replaced by the following: “means the then-current cloud-based Komatsu Academy services that Komatsu provides to Customer under this Agreement.” In no event shall these Terms apply to the sale, lease, rental, procurement or otherwise making available of Products or to the sale, provision or otherwise making available of any other service provided by KEISA or any of its subsidiaries. Any clause or provision in these Terms that goes beyond setting forth terms and conditions concerning the registration with and use of Komatsu Academy, shall not apply. For the avoidance of doubt: Komatsu Academy does not allow the Customer to order or purchase Products, nor does it allow the Customer to control functions, features or operations of the Products, Product Software, the Site or any other service offered by KEISA.
22.2 No Service Specific Terms. Clause 1.2 above shall not apply. These Terms are the sole terms and conditions governing Customer’s use of the Services.
22.3 Eligibility. The parties eligible to use the Services under 2.1, are KEISA’s authorized distributors and dealers as well as the authorized users of Products, irrespective of whether such user owns, rents or leases the Products. Any reference to Product owners in these Terms shall be construed as referring to the authorized users of Products as set forth in this clause.
22.4 Komatsu’ Privacy Policy. The privacy policy referred to in clause 2.3 above shall be construed as referring to KEISA’s Privacy Policy which is available here https://www.komatsu.eu/en/disclaimers/summary-of-disclaimers . The definition of Personal Information shall be the same definition as given to “personal data” in Article 4.1 of Regulation (EU) 2016/679 (“GDPR”) and any reference to legislation governing Personal Information shall be construed as a reference to the GDRP and any national implementations thereof. Notwithstanding clause 6.2 above, KEISA and Customer both act as independent controllers for the processing of Personal Information in the context of the Services and shall each be responsible for informing the End Users as required by applicable law.
22.5 Governing law and jurisdiction. Clause 19.2 shall be entirely replaced with the following provision: 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 Services shall be governed by the laws of Belgium 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 COMPETENT COURTS IN BRUSSELS, BELGIUM FOR THE PURPOSE OF LITIGATING ALL SUCH CLAIMS OR DISPUTES.Customer is Otherwise based in European Union or the UK:
For Komatsu Mining Corp. Customers based in the EU or UK, the following replaces Section 19.2: 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 and interpreted in accordance with the laws of England and Wales and the courts of England shall have exclusive jurisdiction.
ARTICLE 23: SERVICE SPECIFIC TERMS
23.1 SMART CONSTRUCTION TERMS OF SERVICE - These Smart Construction Terms of Service (these "Smart Construction Terms”“”) and the Terms of Service for Komatsu Services (the “Base Komatsu Terms”) govern your access to and use of the products and services that Komatsu makes available to the Customer and its Users for purchase and/or use, from time to time, through Komatsu’s My Construction Site ("My Construction Products” and “My Construction Services” respectively). These Smart Construction Terms constitute Service Specific Terms (as such term is defined in the Base Komatsu Terms). In the event of a conflict between these Smart Construction and the Base Komatsu Terms, these Smart Construction Terms will control.
(a) Overview. These Terms govern your purchase, access to, and use of the My Construction Products and My Construction Services.
(b) Additional Terms. Your purchase of any My Construction Product is governed by the Limited Warranty provided with such My Construction Product and may further be governed by the Terms and Conditions of Sale. My Construction Product software is licensed and governed by Komatsu's Komtrax Terms of Use. Certain features of the My Construction Services may be subject to additional guidelines, terms or rules.