Consent Agreement Form

MyKomatsu Terms of Service

 

Welcome to MyKomatsu!  MyKomatsu is an Internet-based service designed to make it easy for you to monitor and manage your fleet of Komatsu Products located in the United States and Canada, including by, among other things, reviewing the data obtained from your Komtrax and Komtrax Plus enabled machines, ordering parts from nearby authorized dealers, and accessing Product manuals, brochures, specification sheets, training materials, product service bulletins and product recall notifications. MyKomatsu is also available for use by Komatsu authorized dealers in the United States and Canada.

 

Komatsu America Corp. and its affiliates (collectively, "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 ("Products") and in other ways that Komatsu provides. The term "Services" means the Sites, Web Apps, Mobile Apps, and Subscription Services.  Komatsu does not charge you for accessing and using the Services.

 

These Terms of Service ("Terms" or "Agreement") govern your access to, and use of, the Services. Please read these Terms carefully. 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 (as defined below) and accepts these Terms.  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.

 

1.                  Overview, Eligibility, Customer Service, Term and Termination

    1. Overview and Relation to Other Agreements. These Terms govern your use of the Services. Your purchase of any Product is governed by the limited warranty provided with that Product ("Limited Warranty") and may further be governed by the Terms & Conditions of Sale. The software embedded in a Product (and any updates thereto) ("Product Software") is licensed and governed by Komatsu's Komtrax Terms of Use. Certain features of the Services may be subject to additional guidelines, terms or rules, which will be posted on the Services in connection with such features. Komatsu's then-current privacy policy ("Privacy Policy") 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 you are agreeing to accept and abide by them by using the Services.
    2. Eligibility. You may use the Services and Products only if you are a Komatsu authorized dealer or an owner of a Product or their personnel and authorized to use the Services, accept these Terms through a Site, Web App or Mobile App, or by accessing or using the Services, and only 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.
    3. 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.
    4. Term and Termination. 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. 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.
    5. Effect of Termination. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.

2.                  Accounts

    1. Your Account. To use the Services, you must register for a user account ("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: (a) all required registration information that you submit is truthful, complete and accurate; (b) you will maintain the accuracy of such information; and (c) 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 (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your Account and to maintain your password securely to prevent others from gaining access. 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 for any loss or damage arising from your failure to comply with the above requirements.
    2. 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 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. (For example, an Authorized End User can search for Product replacement parts at nearby authorized Komatsu dealers and may order parts or service for a Product via the Service). Authorized Users may also have the ability to view information (including personal information and audit trail of where Products are located and how they have been operated, including idle time) and content pertaining to utilization of the Product (for example, an Authorized User can view the services history for a particular Product). Authorized Users are responsible for their own actions in connection with the Services. 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 your 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.  Komatsu disclaims any liability for purchases made by an Authorized User through MyKomatsu, 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. 

3.                  Access to Services

    1. 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 your own business use (the "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.
    2. 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 ("Updates"). 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.
    3. Transactions with Authorized Dealers and Other Third Parties. Komatsu-provides an interface that allows you, through and using the Services, to search for and locate OEM replacement parts at nearby Komatsu authorized dealers and pricing and place orders for parts and services from such dealers ("Dealer Parts and Services").  Over time, Komatsu may also provide the opportunity for you to obtain other third-party products and services through and using the Services (collectively, "Third-Party Products and Services"). You decide whether you want to interface, and with which Third-Party Products and Services you want to interface.  With respect to each a particular Third-Party Product and Service that you interface with, you agree that Komatsu may exchange information and data regarding you and your products and orders, including your personal information, with that dealer or third-party provider. After this information is shared with the particular dealer or third party, its use will be governed by the dealer or other third party's privacy policy and not by Komatsu's Privacy Policy. You acknowledge and agree that Komatsu makes no representation or warranty about any Third-Party Products or Services or the interface with Product and Services. Accordingly, Komatsu is not responsible for your use of any Third-Party Product or Service, or any personal injury, death, property damage (including, without limitation, to your Products or anything at a job site), or other harm or losses arising from or relating to your use of any Third-Party Products or Services. You should contact the third party with any questions about their Third-Party Products and Services.  Transactions for Third-Party Products and Services are between you and the dealer or other third-party.  Komatsu has no role therein.  If you have questions about your order, shipping dates, fulfillment, returns, service claims, or warranty claims or other issues with respect to Third-Party Products and Services, you must contract the Komatsu authorized dealer or other third party.  When you order Third-Party Products and Services, you may be required to provide credit card information for payment. Komatsu does not receive the credit card information; it is provided by you directly to the payment processor and the transaction is completed with and fulfilled by the applicable dealer or other third-party.
    4. 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) you agree not to modify, make derivative works of, disassemble, reverse-compile or reverse-engineer any part of the Services; (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; (v) you agree not to upload, transmit or distribute any computer viruses, worms or any software intended to 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) 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; (vii) 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 (viii) 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.
    5. 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.
    6. Privacy. Please review the Privacy Policy available on the MyKomatsu website. It describes Komatsu's practices regarding the information that you or Komatsu may collect from users of the Services.
    7. 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 responsible for taking their own security measures.
    8. Modification.  Komatsu reserves the right, at any time, to modify, suspend or discontinue the Services or any part thereof with or without notice. You agree that Komatsu will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services or any part thereof.
    9. 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 the United States and Canada (each, 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.
    10. Geo-Location Terms.  The Services include and make use of 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 (the "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.                  Agreed Usage and Limitations of Komatsu Services and Products

    1. Intended Use of Komatsu 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. The Services are subject to sporadic interruptions and failures 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. You acknowledge these limitations and agree that Komatsu is not responsible for any damages allegedly caused by the failure or delay of the Services.
    2. Reliability of Services. 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 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 (collectively, "Service Interruptions"). 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.
    3. Service Interruptions. The Services may be suspended temporarily, without notice, for security reasons, systems failure, maintenance and repair, or other circumstances. Komatsu does not offer any specific uptime guarantee for the Services.
    4. 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 you 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. 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. 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.
    5. Product Information. The Services provide you with 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 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. 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 or program; (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) copies or stores any significant portion of the videos or other content available therein; (xi) decompiles, reverse-engineers or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; (xii) denigrates or disrupts any network capacity or functionality; or (xiii) engages in remote monitoring to provide remote monitoring, key management, security or other professional services for anyone.
    7. Privacy and Data Protection Laws. Please see Komatsu's Privacy Policy for information about Komatsu's practices with respect to the data and information collected and obtained in connection with the Services. You agree that you (and not Komatsu) are responsible for ensuring that you comply with any applicable laws when you use the Services.
    8. 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.

       

5.                  Limitations of Komatsu Services Due to Third Parties

    1. 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.
    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.
    3. 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 ("Equipment"), (ii) your Internet service provider ("ISP") and (iii) your mobile device operator ("Operator"). 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. You also acknowledge that you are responsible for compliance with all applicable agreements, terms of use/service and other policies of your ISP and Operator.
    4. App Stores. You acknowledge and agree that the availability of the Mobile Apps is dependent on the third-party websites from which you download the Mobile Apps, e.g., the Google Play Store from Google or the App Store from Apple (each an "App Store"). 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 in these Terms apply.
    5. Third-Party Website Links and Referrals. The Sites may contain links to other websites operated by dealers and other third parties ("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.
    6. 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.

6.                  Ownership and Intellectual Property

    1. 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.
    2. 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.
    3. Feedback. You may choose to or Komatsu may invite you to submit comments, suggestions or ideas about the Services, including how to improve the Services ("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 other sources.

7.                  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 (I) 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 (A) YOUR USE AND EACH AUTHORIZED USER'S USE OF THE SERVICES; (B) YOUR OR YOUR AUTHORIZED USERS' VIOLATION OF THESE TERMS; (C) ANY FEEDBACK YOU PROVIDE; OR (D) YOUR OR YOUR AUTHORIZED USERS' VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY (COLLECTIVELY, "THIRD PARTY ACTIONS"); AND (II) 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.

 

8.                  Warranty Disclaimers

    1. THE SERVICES ARE PROVIDED FOR YOUR CONVENIENCE, "AS IS" AND "AS AVAILABLE", AND KOMATSU, AND OUR LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT.
    2. 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.
    3. 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.
    4. 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.
    5. 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.

9.                  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.

 

10.              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.

 

11.              Limitation of Liability

    1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL (A) 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 (B) 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 (A) 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).  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.
    2. YOU UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY IN THIS SECTION 11 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.

12.              Mobile Apps

    1. 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 Section 3 above. 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.
    2. 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"):

       
  • You acknowledge that these Terms are between you and Komatsu only, and not with Apple, Inc. ("Apple").
  • Your use of Komatsu's iOS App must comply with Apple's then-current App Store Terms of Service.
  • 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.
  • 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: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) 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.
  • 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.
  • You represent and warrant that (i) 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 (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
  • 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).

     

    The parties agree that Apple and Apple's subsidiaries are third-party beneficiaries to these Terms as they relate to your license of Komatsu's iOS App. Upon your 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.

     
    1. 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"):
  • You acknowledge that these Terms are between you and Komatsu only, and not with Google, Inc. ("Google").
  • Your use of Komatsu's Android App must comply with Google's then-current Android Market Terms of Service.
  • 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.
  • You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to Company's Android App.

     

13.              General

    1. 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.
    2. 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.
    3. Assignment. These Terms, and any associated rights 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.
    4. Entire Agreement; Severability. These Terms constitute the entire agreement between you and Komatsu regarding the subject matter hereof. 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. The section titles in these Terms are for convenience only and have no legal or contractual effect. 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. Neither party is an agent or partner of the other party.
    5. 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.
    6. 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.
    7. 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.

      * * * *

       

      Rev 2/2020​


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