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
1.2 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.
1.3 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.
1.4 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.
1.5 Effect of Termination.Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.
2.1 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.
2.2 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
3.1 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.
3.2 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.
3.4 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.
3.5 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.
3.7 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.
3.8 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.
3.9 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.
4. Agreed Usage and Limitations of Komatsu Services and Products
4.1 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.
4.2 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.
4.3 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.
4.4 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.
4.5 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.
4.6 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.
4.8 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
5.1 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.
5.2 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.
5.4 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.
5.5 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.
5.6 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
6.1 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.
6.2 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.
6.3 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
8.1 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.
8.2 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.
8.3 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.
8.4 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.
8.5 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
11.1 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.
11.2 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
12.1 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.
12.2 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.
12.3 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.
13.1 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.
13.2 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.
13.3 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.
13.4 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.
13.5 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.
13.6 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.
13.7 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.
Terms of Service
Chapter 1 General Rules
Article 1.1 (About Terms of Service)
These SMART CONSTRUCTION Terms of Service (hereinafter referred to as the “Terms of Service”) stipulate the items customers should comply with, when using SMART CONSTRUCTION and related services, including applications provided to the Customer for remote access and remote operation of a controlling system installed in construction equipment (“Applications”) provided by Komatsu Ltd. (hereinafter referred to as the “Company”). In the case where the Company or a third party provides the services related to SMART CONSTRUCTION whose usage conditions are not stipulated in the Terms of Service, the conditions on the services that are offered separately by the Company or the third party shall be applied instead of the Terms of Service.
Article 1.2 (Definitions)
- “Account Service” refers to the web service managed by the Company, which creates and manages accounts to log in to SMART CONSTRUCTION.
- “Administrator Account” refers to the account created by the chief administrator of the Customer, and the account that can manage users and change, terminate, etc. the Application Service Agreement.
- “API” refers to Application Program Interface (including its updated versions) that provides the functions to access SMART CONSTRUCTION in order to browse, etc. the information provided by SMART CONSTRUCTION.
- "Anonymous Customer Information" means any Customer Information in which no Customer or individual may be specified or identified (including information obtained by adding certain processing (including statistical processing or analysis) to the Customer Information, by which any Customer or individual included in the information has become unable to be specified or identified).
- “Anonymous Customer Installation Information” refers to the Customer Installation Information of the Customer or individual who is not identified or recognized (including the Customer Installation Information that went through a certain process [including statistical processing or analysis] so that the Customer or individual is not identified or recognized).
- “Application” refers to the any of the applications provided by the Company, which operate on SMART CONSTRUCTION and provide the information or services using the information provided by SMART CONSTRUCTION.
- "Application Service Agreement" means the agreement entered into between the Customer and us with regard to the use of this Application.
- “Chief Administrator” refers to an officer or employee of the Customer who is authorized to manage users or change, terminate, etc. the Application Service Agreement on behalf of the Customer.
- “Construction Equipment” refers to any construction equipment, such as hydraulic excavators, bulldozers, including ICT construction equipment.
- "Customer Information" means any information that is directly or indirectly provided to KOMATSU in the course of using this Application by the Customer or the Users authorized by such Customer, including those specified in Article 3.1, which includes, among other things, information that the Customer or such Users enter into this Application, information that KOMATSU acquires when accessing the controlling system installed in the Registered Construction Equipment (including terrain survey data, photographic data, 3D terrain maps, and location and operation data of the Construction Equipment), as well as any information obtained by processing or analyzing each of them.
- “Customer Installation Information” refers to the information the Customer or User registers with SMART CONSTRUCTION, information related to construction site and construction machinery of the Customer that is collected via IoT device (including measured topography data, photo data, 3D topographic map, location information of the construction machinery, and operation data), all other information the Customer provides to and stores in SMART CONSTRUCTION either directly or indirectly (including the information specifically stipulated in Article 3.1), and information that was processed, analyzed, or went through other similar processes.
- “Data Linking Provider” refers to the one that provides the information collected from the Customer or a third party to SMART CONSTRUCTION through linking the system with SMART CONSTRUCTION.
- “Edgebox” refers to the multi-functional data server that is installed at the construction site of the Customer and has the functions of sending the collected customer installation information to SMART CONSTRUCTION after processing and analyzing the information.
- “ICT Construction Equipment” refers to the construction machinery that has the functions with which the machinery moves without operator interaction (machine-control functions) or those supporting the operator interaction (machine-guidance functions).
- “Information Provided by SMART CONSTRUCTION” refers to the information the Company provides to the Customer or User through using the Application or browsing, etc. the Application in a way separately specified by the Company.
- “Intellectual Property Rights” refers to the copyright, patent, utility model right, design right, trademark, and other intellectual property rights (including the rights to receive those rights and pending rights and patents).
- “IoT Device” refers to the sensor, camera, computer, and telecommunication facilities installed and set at the Construction Equipment, construction vehicle, or construction site, and all other devices that have the functions to collect data, etc.
- "KOMATSU" means (i) KLTD, (ii) all subsidiaries of KLTD located in any country throughout the world including KAC, KEISA and Komatsu Customer Support Japan Ltd. which is a Japanese subsidiary of KLTD and (iii) all companies that are authorized by KLTD or its subsidiary and are engaged in sales and rentals of Komatsu-branded products.
- "KOMTRAX Information" means location and operation data and other data collected with regard to the Construction Equipment sold by KOMATSU.
- “LANDLOG” refers to the Landlog IoT Platform (including the applications operating on the Platform) named LANDLOG with the functions to collect, accumulate, process, analyze, etc. the information, etc. related to the construction process, which is provided by LANDLOG, or the services provided by the Landlog IoT Platform.
- “Login ID” refers to a code that is used to distinguish each user from other users for using SMART CONSTRUCTION, and the email address of the User registered at the time the User created the account.
- “Password” refers to a code that is, in combination with login ID, used to distinguish each user from other users on SMART CONSTRUCTION, and that is registered at the time the user creates the account using the arbitrary combination of English one byte characters and symbols.
- “Platform Service” refers to services and other platform services the Company provides to users or third parties via SMART CONSTRUCTION, in which one can browse, etc. the information provided by SMART CONSTRUCTION in a way that is specified separately by the Company without going through the Application.
- "Registered Construction Equipment" means any ICT Construction Equipment that is registered on this Application by the Customer or the Users authorized by such Customer.
- “Services” refer to the account service, platform service, marketplace service, and other services the Company provides to the Customer and users through SMART CONSTRUCTION.
- “SMART CONSTRUCTION” refers to the Smart Construction IoT platform and its applications provided by the Company, which has the functions to collect, accumulate, process, analyze, etc. the Customer Installation Information or other information related to the construction process, or the services provided through the Smart Construction IoT Platform.
- “Terminal to Be Used” refers to PC, smartphone, tablet, and other electronic terminals the Customer or User uses to use the Application or browse the information provided by SMART CONSTRUCTION.
- “User” refers to the one that created the account on one’s own or via Customer to use SMART CONSTRUCTION through registering one’s information in the Account Service.
- “User Account” refers to the account that the User created on one’s own or via Customer through registering one’s information in the Account Service.
- “Users’ Guide” refer to guides in which the Company stipulates the content of SMART CONSTRUCTION and how to use SMART CONSTRUCTION, and that is published on the Website.
- "User Terminal" means an electronic terminal that the Customer or User uses for the purpose of using this Application, such as a personal computer, a smartphone or a tablet terminal.
- “Website” refers to the website for providing SMART CONSTRUCTION.
Article 1.3 (Application and Revision of the Terms of Service)
- The Terms of Service shall be applied to the Application Service Agreement entered into between the Customer and Company. Provided, however, that in the case where, in the Application Service Agreement, the Customer and Company agree upon the conditions different from those of the Terms of Service, the conditions stipulated in the Application Service Agreement shall supersede the conditions of the Terms of Service.
- The Company may change the Terms of Service at any time. Provided, however, that when the Company makes a change to the Terms of Service, the Company shall specify the effective date, and inform the Customers about the fact that the Terms of Service would be revised, the contents of the revised Terms of Service, and the effective date in a proper manner, such as publishing the necessary information on the Website.
- The User who has a user account or who logged in SMART CONSTRUCTION using the general account of the Affiliated Platform provided in Japan, Login ID, and Password of the User Account, or other login information shall be deemed to agree to the Terms of Service and must comply with the Terms of Service when using the Service.
Article 1.4 (Application Service Agreement)
The Customer shall apply for the use of this Application by the method to be designated by us, and the Application Service Agreement becomes effective as of the time when we accept such application from the Customer; provided, however, that we may refuse to enter into the Application Service Agreement with a Customer if there are any reasonable grounds for us to so refuse, including, but not limited to, any breach made by such Customer in the past under any contract with KOMATSU.
Article 1.5 (Delegation of Work)
The Company may entrust all or part of the work required when providing Customers or Users with SMART CONSTRUCTION or the Application to a third party (hereinafter referred to as the “Outsourcing Contractor”) at its discretion.
Article 1.6 (Preparation and Maintenance of Facilities, etc.)
- The Customer shall, at its own expense and under its own responsibility, set up each IoT Device and User Terminal in accordance with the conditions we specify and maintain any other environment to use this Application.
- The Customer shall, at its own expense and under its own responsibility, procure a telecommunications service run by a telecommunications carrier or the like and connect each IoT Device and User Terminal to the Internet when using this Application.
- The Customer acknowledges and agrees that this Application may become unavailable in the event of any defect in the IoT Device, the User Terminal or in the Internet connection mentioned in the preceding paragraph, or any other defect in the environment for using this Application, or in the event of any security problem related thereto. The Customer shall take, at its own expense and under its own responsibility, sufficient measures (including security measures) to avoid such defects. KOMATSU is not liable for any unavailability of this Application due to such defects or security problems.
Chapter 2 Registration of Account and Use of Service
Article 2.1 (Registration of Account)
- Before starting use of the Services, the Customer shall assign a Chief Administrator from its employees, have the Chief Administrator register the account on the Account Services, and inform the Company of the name, email address, login ID, etc. of the Chief Administrator in the format or method prescribed by the Company. In such a case, the account owned by the Chief Administrator shall automatically be the Administrator Account of the Customer.
- In accordance with the User Guide, the Chief Administrator may register the account for other users (including those who are not the official or employee of the Customer. Hereinafter the same in the Article) on the Account Services or invite other users. Users who are authorized by the Chief Administrator may register the account on the Account Service for other users or invite other users. Other users who were invited by the Chief Administrator or the User may register their account on the Account Service in accordance with the User Guide. The account created based on the Paragraph shall be owned by each user and referred to as the “General Account”, which is, with the Administrator Account, shall hereinafter collectively be referred to as the “Customer Account”.
- Notwithstanding the provisions of preceding two Paragraphs, and Article 1.4, in the case where the Customer owns a Customer Account on LANDLOG, the Customer may log in SMART CONSTRUCTION using the login ID, password and other login information of the LANDLOG Customer Account and, by agreeing to the Terms of Service, may use SMART CONSTRUCTION. In such a case, the Customer is deemed to enter into the Application Service Agreement and register the Customer Account with the same information registered in LANDLOG in the Account Service.
- The Customer must not have those other than the Chief Administrator use the Administrator Account or have those other than the User him/herself who owns the General Account use the General Account.
- The Customer shall immediately change the registration of the Administrator Account on the website, if it wishes to change the Chief Administrator.
- The Customer shall confirm that there are cases in which the General Account users may include the users who are not officers or employees of the Customer and shall use the Services after fully understanding the precautions, etc. stipulated in the User Guide.
Article 2.2 (Use of the Service)
- In the case where the User is assigned to serve as Chief Administrator and acquires Administrator Account of the Customer, or where all or part of the rights of using the Service possessed by the Customer are granted by the Chief Administrator of the Customer or other right holders, the User may use the Services to the extent of the right of use the Customer possesses based on the Application Service Agreement.
- The User shall approve that, in the case where the Application Service Agreement the Customer of the preceding Paragraph terminates and where the Chief Administrator reverses the grant of the right of use, and a certain case stipulated by the Application Service Agreement, the User may not be able to use the Services.
- The User shall use the Services (excluding the information-providing service via API) after fully understanding the precautions, etc. stipulated in the Users Guide, and use the information-providing service via API after fully understanding the precautions, etc. stipulated in the Guide for Use of API.
Article 2.3 (Use of Applications)
- Under the Application Service Agreement, upon subscription, we grant the Customer a limited and non-transferable license to download and use the Application.
- No Customer may transfer the right to use this Application to any third parties, nor may the Customer sublicense any right contained in this Application to any third parties unless explicitly permitted by us in writing; provided, however, the Customer may authorize third parties to use this Application pursuant to the User Guide.
- The Customer fully acknowledges and understands the precautions provided in the User Guide for using this Application.
- If the Customer transmits technical or other information, the Customer shall comply with any applicable laws and regulations, including the export controls on technology.
Article 2.4 (Management of Login ID and Password by the Customer)
- The Customer shall not disclose the login ID or password of the Customer Account to a third party but shall keep tight control over them (including a regular change of password) through the Chief Administrator. The Company shall not be held liable in any way for the damage to the Customer, User, or other persons caused by lack of proper management of Login ID and Password, incorrect use, use by a third party, etc.
- In the case where the Customer knows of a theft concerning the Login ID or Password of the Customer Account or the fact that the Login ID or Password of the Customer Account is used by a third party other than the one who registered the account, the Customer shall, via Chief Administrator, immediately inform the Company of the fact to discuss countermeasures.
- All acts based on the use of the Customer Account shall be deemed to be taken by the Customer. In the case where a third party uses SMART CONSTRUCTION using the Customer account, the Customer shall take full responsibility for the use. In the case where the Company is damaged by such acts, the Customer shall compensate for the damage.
- The Customer shall require the User of the Customer Account to comply with the Terms of Service, Application Service Agreement, and User Guide. In the case where the Customer discovers that there is an actual or possible violation committed by the user, the Customer shall immediately inform the Company and take full responsibility for the violation.
Article 2.5 (Deletion of User Account)
- In the case where the Customer that granted the right of use to the User makes a request, or certain cases stipulated in the Application Service Agreement with the Customer, the Customer may delete the registration of a User Account without prior notice to the User.
- The Company may delete the registration of a User Account that is not used for six months or more without prior notice to the User.
Article 2.6 (Support Services)
Under the Application Service Agreement, the Customer may use the following services (collectively as the “Support Services”) in the method to be designated by us, as a part of the services associated with this Application:
- (i)Responding to inquiries on how to use this Application;
- (ii)Trouble-shooting when having problems with this Application; and
- (iii)Support on the set-up that is necessary to start using this Application
The Customer agrees that officers and employees of KOMATSU may carry out any of the following on providing the Support Services:
- (i)Accessing, browsing or operating the controlling system of the Registered Construction Equipment;
- (ii)Browsing, deleting or changing all or any part of the data stored in the controlling system of the Registered Construction Equipment (including making any configuration changes to the controlling system of the Registered Construction Equipment);
- (iii)Sending any file to the controlling system of the Registered Construction Equipment or installing any file to the controlling system of the Registered Construction Equipment; and
- (iv)Disconnecting the Registered Construction Equipment from the server of remoter access system.
- The Customer shall take any necessary measure including making a back-up of the data prior to using the Support Services.
Article 2.7 (Fee)
- Each Application is subject to fees and the Customer shall pay fees to be specified by us (the “Fee”) to use this Application. The amount and other details of the Fee shall be specified separately by us; provided that KOMATSU may charge to the Customer the cost, in addition to the Fee, in any reasonable cases including where KOMATSU dispatches its personnel to construction sites, etc. in order to provide the Support Services.
- The Customer shall pay the Fee in the method to be designated by us. The method, timing and other details for payment of the Fee shall be specified separately by us.
Article 2.8 (Term)
The term and its renewal condition of the Application Service Agreement shall be specified separately by us.
Chapter 3 Acquisition, Maintenance, Use, etc. of Customer Installation Information
Article 3.1 (Acquisition, Use, etc. of Customer Installation Information)
The Customer agrees that, upon the use of SMART CONSTRUCTION, the Company acquires Customer Installation Information through IoT Device, Data Linking Provider, or other methods. Customer Installation Information may contain personal information (“personal information” refers to the information set forth in Japan’s Act on the Protection of Personal Information and the California Consumer Privacy Act. The same applies hereinafter). Personal information includes the following:
- (1)Information such as address, name, email address, etc. the Customer registered at the time of concluding the Application Service Agreement.
- (2)Information such as name, email address, login ID, etc. the Customer or User provided to the Company at the time of registering the account.
- (3)Information about the user of the Construction Equipment and other construction vehicles registered by the Customer or User or about the workers of the construction site.
- (4)Information obtained from an IoT Device (sensor data, typography data, image data, video data, location data of the Construction Equipment, operation data, etc.)
- (5)Information identifying the IoT Device (telephone number, firmware version, IP address, MAC address, serial number, etc.).
- (6)Information about the software ID and license key related to SMART CONSTRUCTION installed on an IoT Device.
- (7)Setting information of an IoT Device (setting information of profile, etc., information about the network such as SSID, information of installed application, etc.).
- (8)Information the Customer uploaded to SMART CONSTRUCTION.
The Customer agrees in advance that the Customer Installation Information may be browsed, used, and managed by those who fall under the following items (1) through (10) with the purpose that falls under the same items.
- (1)The Company and its Outsourcing Contractor, with the purpose of providing the Customer with the Services;
- (2)The Company and its Outsourcing Contractor, with the purpose of taking measures for maintenance or security, etc;
- (3)The Company and its Outsourcing Contractor, with the purpose of providing the after-sales services to the Customer;
- (4)The Company and its Outsourcing Contractor (including an Outsourcing Contractor located in the US or Europe), with the purpose of developing, providing, maintaining, etc. the Application;
- (5)A provider of the Affiliated Platform and its Outsourcing Contractor (including the Outsourcing Contractor located in the US or Europe), with the purpose of developing, providing, maintaining, etc. the Affiliated Platform;
- (6)The Customer, its Chief Administrator, and general account user, with the purpose of being provided with the Services (only to the extent the authority to browse, use, or manage the Customer Installation Information is granted in accordance with the User Guide);
- (7)Any person who is authorized for the access to the Customer Installation Information linked to the construction site in which the Customer is involved, with the purpose of being provided with the Services, Application, and Affiliated Platform and in accordance with the User Guide or Platform User Guide (only to the extent the authority to browse, use, or manage the Customer Installation Information is granted in accordance with the User Guide or Affiliated Platform User Guide);
- (8)The Company, with the purpose of improving the after-sales service and other supporting systems for those other than the Customer;
- (9)The Company, with the purpose of carrying out the purpose of the business (including, but not limited to, development, design, engineering, production, sales, and provision and improvement of the Services and other services);
- (10)The Company, its Outsourcing Contractor, and the provider of the Affiliated Platform, with the purpose of developing, improving, etc. the products and services of its company;
The Customer agrees in advance that the Company provides the information that falls under the following items (1) through (2) to a third party who falls under the same items.
- (1)Anonymous Customer Installation Information is provided to a third party;
- (2)Customer Installation Information that is collected using a drone or Edgebox is provided to the Outsourcing Contractor related to each device, which is located outside Japan (including the US), with the purpose of processing or analyzing it;
The Company shall obtain approval from the Customer when providing a third party with the Customer Installation Information other than Anonymous Customer Installation Information, except as stipulated in the preceding two Paragraphs. Provided, however, that this does not apply in the cases set forth under the following items (1) through (6).
- (1)In the case where the Customer reasonably concludes that disclosure is necessary according to laws and regulations;
- (2)In the case where disclosure is necessary to protect human life, body, or property and the Company decides that it is difficult to obtain the first-person consent;
- (3)In the case where disclosure is particularly necessary to improve the public health or to promote healthy development of children and the Company decides that it is difficult to obtain the first-person consent;
- (4)In the case where disclosure is necessary for the national agency, local government, or the one entrusted by them to execute the operations mandated by laws and regulations, and the Company decides that obtaining the first-person consent may delay the execution of the operations;
- (5)In the case where the right holder of SMART CONSTRUCTION or the one responsible for the services is changed due to merger or other reasons, and the Company decides that personal information needs to be transferred so as to continue the service;
- (6)In the case of providing the information about the charge for use of SMART CONSTRUCTION to the payment agency, credit card company, etc. the Company is affiliated with, and to the extent necessary for credit card transactions; and when corruption in credit card transactions is suspected, to the extent necessary to confirm the suspension;
- In the case where the person who uses or carries the IoT Device is different from the Customer when using the Services, the Customer shall provide a thorough explanation about the acquisition of the information to the person.
- In the case where the Customer provides the Customer Installation Information to SMART CONSTRUCTION through a Data Linking Provider, the Customer shall comply with the Terms of Service of the Data Linking Provider to be used.
- In the case where there is information among the Customer Installation Information that the Customer does not wish to send because it falls into the category of personal information, the Customer may delete the information. In such a case, the Customer acknowledges that part of the functions of SMART CONSTRUCTION may not be able to be used because of such deletion of information.
Article 3.2 (Protection of Personal Information)
- The Company shall use the personal information acquired or provided in the course of providing the Services to the extent necessary for the purpose of use stipulated in the preceding Article and provide the personal information to a third party in accordance with the provisions stipulated in the preceding Article.
Article 3.3 (Consent of Interested Parties)
- In case where the Customer Installation Information contains the information of a third party other than the Customer (including subcontractors of the Customer), the Customer shall acquire the consent of the third party on the content of Article 3.1 in advance of providing the information to SMART CONSTRUCTION.
- The Customer shall acquire the consent on the content of Article 3.1 from the user of the Construction Equipment that falls into the category of the IoT Device and the owner of the site (including the right holder who is equivalent to the owner) in which the Construction Equipment operates (hereinafter collectively referred to as the “Right Holder, etc.”), in advance of use of the Services.
- The Customer warrants to the Company that the Customer has acquired the consent to the provisions stipulated in the preceding two Paragraphs at the time of starting the use of the Services and during the period of using the information provided by SMART CONSTRUCTION, that the Customer has legitimate rights for the Customer Installation Information, and that the use of Customer Installation Information does not violate the right of a third party. The Customer shall take responsibility to settle the dispute with the third party stipulated in the Paragraph 1 or Right Holder, etc. stipulated in the preceding Paragraph caused by violation of the warranty. The Company shall not be held liable in any way for such issues.
- The Customer agrees that it shall not exercise the intellectual property rights including the moral rights of the author of the Customer Installation Information for the Company or person who was transferred, succeeded, or authorized the rights from the Company.
Chapter 5 Use of Information Provided by SMART CONSTRUCTION
Article 5.1 (Usage Conditions)
- The Customer may use the information provided by SMART CONSTRUCTION in accordance with the Terms of Service, Application Service Agreement, and applicable Application Terms of Service; through using the Application or through browsing, etc. with the method specified by the Company separately; and to the extent necessary for the purpose of use set forth in the Terms of Service, Application Service Agreement, and applicable Application Terms of Service.
- The Customer shall be authorized only to use SMART CONSTRUCTION and the information provided by SMART CONSTRUCTION to the extent necessary to comply with the Terms of Service, Contact of Use, and applicable Application Terms of Service. Copyright, other intellectual property rights, and rights to grant the execution for SMART CONSTRUCTION and the information provided by SMART CONSTRUCTION shall be the property of the Company or the entity that grants the license to the Company.
- The Customer cannot assign the right to use the information provided by SMART CONSTRUCTION to a third party.
- In the case where the Customer sends technical or other kind of information from other countries to Japan or from Japan to other countries, the Customer shall comply with the laws and regulations on technology export.
Article 5.2 (Usage Period)
- In the case where the Customer violates any of the provisions set forth in the Terms of Service, the Company may terminate the Customer’s use of the information provided by SMART CONSTRUCTION.
- The period of using the information provided by SMART CONSTRUCTION, ends when the period of using the Application; or when the usage period specified separately by the Company ends as separately specified by the Company.
- In the case where a charge for using the information provided by SMART CONSTRUCTION is charged monthly or yearly, the Customer must notify the Company of termination of use with the prescribed method so as to terminate the use of the information provided by SMART CONSTRUCTION.
Chapter 6 Prohibitions
Article 6.1 (Prohibitions)
The Customer must not perform any act falling under any of, and the Company may, at its discretion, delete the information and data related to any act that falls under, the following items (1) through (17):
- (1)Act that infringes or has possibility to infringe the intellectual property rights or other rights of the Company or a third party;
- (2)Act that tampers or deletes the content of SMART CONSTRUCTION or the information that can be used on SMART CONSTRUCTION;
- (3)Act of checking the Customer Installation Information or the information provided by SMART CONSTRUCTION (excluding the information that was already the personal information at the time of provision) against other information with the purpose of recognizing the individual or the Customer related to the Customer Installation Information or the information provided by SMART CONSTRUCTION, act of identifying the person, or act of trying to check those information or to identify the person;
- (4)Act of changing all or part of the API or Application, reverse engineering, decompiler, decomposing, producing the derivative of the API or Application, and decoding the source code with other methods;
- (5)Act of having a third party use SMART CONSTRUCTION or information provided by SMART CONSTRUCTION in violation of the Terms of Service;
- (6)Act of pretending to be a third party to use SMART CONSTRUCTION or information provided by SMART CONSTRUCTION;
- (7)Act of violating laws and regulations or offends public order and morals;
- (8)Act of discriminating against or slandering others, or of harming their honor or credibility;
- (9)Act that leads to or has possibility to lead to crimes such as fraud;
- (10)Act of registering images, documents, etc. that are obscene, child pornography or child abuse;
- (11)Act of opening or soliciting pyramid scheme;
- (12)Act of registering computer viruses and other harmful data, computer programs, etc.
- (13)Act of using SMART CONSTRUCTION with the purpose of advertisement, promotion, or soliciting, or act of registering in SMART CONSTRUCTION the information that contains the expression that gives or may give a sense of aversion to a third party;
- (14)Act that pose or may pose a problem for the management of SMART CONSTRUCTION
- (15)Act of registering information for the purpose of meeting unacquainted persons;
- (16)Act of affixing a link in a way of and with the purpose of promoting an act despite the fact that the Customer knows that the act falls under one of the preceding Items;
(17)Other acts that the Company deems inappropriate;
And Company may delete or cause other Komatsu entities to delete, at our discretion, any information and/or data related to any action that falls under any of the foregoing.
Chapter 7 Warranty and Limitation of Liability
Article 7.1 (Warranty and Limitation of Liability)
- WE MAY CHANGE THE CONTENTS OF THIS APPLICATION AND SUSPEND OR DISCONTINUE THE PROVISION OF THIS APPLICATION AT ANY TIME WE DEEM IT NECESSARY, WITHOUT NOTIFYING THE CUSTOMER. IN THE EVENT OF ANY SUSPENSION OR DISCONTINUATION OF THE PROVISION OF THIS APPLICATION, KOMATSU IS NOT LIABLE TO ANY CUSTOMER IN ANY WAY EXCEPT FOR PROVIDING A REFUND, IF WE DEEM IT APPROPRIATE, OF THE MONTHLY FEE OR ANY OTHER FEE THAT SUCH CUSTOMER HAS PAID TO US FOR THE PERIOD DURING WHICH SUCH SUSPENSION OR DISCONTINUATION HAS OCCURRED.
- KOMATSU DOES NOT PROVIDE ANY WARRANTY AS TO THE FUNCTION AND NATURE OF THIS APPLICATION, SUCH AS THE INTEGRITY, EFFECTIVENESS, RELIABILITY, TRUTH, ACCURACY, VALIDITY, PERFORMANCE WARRANTY, FITNESS FOR PARTICULAR PURPOSE, COMPATABILITY WITH ANY EQUIPMENT USED, LEGALITY AND NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES. THE CUSTOMER SHALL USE THIS APPLICATION BASED ON ITS OWN JUDGMENT AND UNDER ITS OWN RESPONSIBILITY. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT LOCATION DATA AND OTHER DATA OF CONSTRUCTION EQUIPMENT MAY NOT BE IDENTIFIED OR MAY BE IDENTIFIED INCORRECTLY, SMART CONSTRUCTION Remote AND REMOTE OPERATION OF THE CONTROLLING SYSTEM OF REGISTERED CONSTRUCTION EQUIPMENT MAY BE UNAVAILABLE OR MAY BE HINDERED, DEPENDING ON LOCATION OF INSTALLATION OF IOT EQUIPMENT, RADIO WAVE CONDITIONS OF GPS SATELLITE, CONDITIONS OF RADIO BASE STATION, CLIMATE CONDITIONS OF MEASUREMENT OR OTHER MEASUREMENT CONDITIONS.
- KOMATSU IS NOT LIABLE FOR ANY UNAVAILABILITY OF THIS APPLICATION CAUSED BY ANY EVENT OF FORCE MAJEURE, SUCH AS A BREAKDOWN OF OR TROUBLE WITH ANY EQUIPMENT NECESSARY TO PROVIDE THIS APPLICATION, FAILURE OF ELECTRICITY SUPPLY, ABNORMALITY IN COMMUNICATION LINES, OR SYSTEM FAILURES. IN SUCH CASES, THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THERE MAY BE A LOSS OF INFORMATION, DELAYS AND THE LIKE WITH RESPECT TO ALL OR PART OF THE CUSTOMER INFORMATION AND OTHER DATA RELATED TO THE CUSTOMER THAT MAY FOLLOW A RESTRICTION IN THE USE OR INITIALIZATION OF THE USER TERMINAL OR AN IOT DEVICE.
- KOMATSU IS NOT LIABLE FOR ANY LOSS OR CHANGE IN DATA THAT MAY BE CAUSED BY ACCESS BY KOMATSU TO THE CONTROLLING SYSTEM OF REGISTERED CONSTRUCTION EQUIPMENT OR BY DELETION OR CHANGES, ETC. MADE BY KOMATSU TO THE DATA STORED IN THE CONTROLLING SYSTEM.
- KOMATSU SHALL TAKE REASONABLE SECURITY MEASURES BASED ON INDUSTRY STANDARDS WITH RESPECT TO THE PROTECTION OF THE CUSTOMER INFORMATION. HOWEVER, KOMATSU IS NOT LIABLE FOR ANY DAMAGE CAUSED BY UNAUTHORIZED ACCESS, THEFT, DESTRUCTION, TAMPERING, OR THE LIKE BY A THIRD PARTY, WHICH SHALL BE RESOLVED BETWEEN THE CUSTOMER AND SUCH THIRD PARTY.
- KOMATSU IS NOT RESPONSIBLE FOR RETAINING ANY BACK-UP OF ANY CUSTOMER INFORMATION. THE CUSTOMER SHALL MAKE REGULAR BACKUP COPIES OF THE RELEVANT CUSTOMER INFORMATION UNDER ITS OWN RESPONSIBILITY.
- KOMATSU DOES NOT MAKE ANY GUARANTEE AS TO THE FREENESS FROM INFECTION WITH ANY COMPUTER VIRUS OF THE EXTERNAL STORAGE DEVICE (SUCH AS USB MEMORY) THAT THE CUSTOMER MAY CONNECT TO AN IOT DEVICE OR USER TERMINAL IN ORDER TO TRANSMIT THE DATA, OR OF ANY DATA TRANSMITTED THEREBY, AND KOMATSU IS NOT LIABLE FOR ANY DAMAGE CAUSED BY SUCH INFECTION.
- IN CASES WHERE THIS APPLICATION INVOKES, OR UTILIZES FUNCTIONS OF, BY CUSTOMER’S OPERATION, ANY OTHER APPLICATIONS OR SOFTWARE PROVIDED BY THIRD PARTIES, KOMATSU IS NOT LIABLE FOR ANY SPECIFICATION, OPERATION OR FUNCTION, ETC. OF SUCH APPLICATION OR OTHER SOFTWARE, OR ITS CONNECTION OR LINKAGE WITH THIS APPLICATION.
Article 7.2 (Response to Violations)
- In the case where the Company decides that the act of the Customer or User violates the provisions of the Terms of Service, the Company may take the measures that the Company decides appropriate, such as suspension of the use of the Services or forced withdrawal after deleting all or part of the Customer Installation Information without the prior notice to the Customer or User.
- The Company shall not be held liable in anyway for the damage caused by the measures the Company took based on the provisions stipulated in the preceding Paragraph.
- Provisions of the preceding two Paragraphs shall not discharge the Customer from liability in the case where there is damage to the Company or the third party caused by the measures taken by the Company. In the case where the Customer inflicts damage on a third party due to violation of the Terms of Service or cause dispute with a third party, the Customer shall solve the issue under its responsibility and at its expense and shall not impose any responsibilities on the Company. In the case where the Company is accused by other customers or third parties, the Customer shall resolve the dispute under its responsibility and at its expense and shall not impose any responsibilities on the Company.
Article 7.3 (Damage Caused by Customer Installation Information)
- We may take or cause other KOMATSU entities to take any measures that we deem appropriate, including the deletion of all or part of the Customer Information, without obtaining the prior consent of the relevant Customer, in the event of any interference to this Application or KOMATSU’s server or any risk thereto that is caused by the Customer Information.
- KOMATSU is not liable for any damage arising out of the measures taken by us pursuant to the preceding paragraph.
- The preceding two paragraphs do not in any way release the Customer from any liability for the damage incurred by KOMATSU or any third party due to the measures taken by KOMATSU. The Customer shall hold KOMATSU harmless from any liability for any damage incurred by any other Customer due to the measures taken by us in respect of the Customer Information.
Article 7.4 (Limitation of Liability for Damages)
- 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.
- THE AMOUNT OF KOMATSU’S LIABILITY FOR THE DAMAGES SUSTAINED BY THE CUSTOMER OR THE USERS AUTHORIZED BY SUCH CUSTOMER TO USE THIS APPLICATION IS NOT IN ANY CASE TO EXCEED THE SUM OF THE FEES PAID BY THE CUSTOMER UNDER THE APPLICATION SERVICE AGREEMENT THAT DIRECTLY RELATES TO SUCH DAMAGES WITHIN THE LAST 12 MONTHS.
Chapter 8 Miscellaneous
Article 8.1 (Confidentiality)
Neither KOMATSU nor the Customer may disclose or divulge to any third party any technical, marketing or any other business information of the other party obtained in connection with this Application (excluding the Customer Information, the "Confidential Information"); and KOMATSU and the Customer shall use Confidential Information only for the purpose of using this Application, unless otherwise approved in advance by the other party in written form; except that none of the following information constitutes Confidential Information:
- (1)Information already held by a party without owing confidentiality obligation to the other party;
- (2)Information duly obtained from a third party without owing any confidentiality obligation to such third party;
- (3)Information that a party developed independently without referring to any information provided by the other party; and
- Notwithstanding the preceding paragraph, KOMATSU and the Customer may disclose the Confidential Information, to the extent required under applicable laws and regulations or by the request of any jurisdictional authority, to the party or authority specified under such laws and regulations. In such case, prior to the 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, or shall do so promptly after the disclosure if the first party is not permitted to give such notice prior to the disclosure.
- Notwithstanding the first paragraph of this Article, if KOMATSU deems it necessary, KOMATSU may disclose the Confidential Information of the Customer to the Contractors without obtaining the prior written approval from the Customer to the extent necessary and on the condition that KOMATSU causes such Contractors to comply with the obligations under this Article.
Article 8.2 (Exclusion of Antisocial Forces)
During the term of the Application Service Agreement, the Customer warrants that it will not and the Users whom the Customer authorizes to use this Application will not engage with any “Anti-Social Forces” (such as organized crime, hate groups, gangs, terrorists, groups engage in child labor, slave labor, corruption or money-laundering etc.) which pose a threat to the order and safety of civil society, and that existence of reasonable basis of such anti-social activity of the Customer or any User whom the Customer authorizes to use this Application will be cause for immediate termination of the Application Service Agreement. In addition to the foregoing, KOMATSU will be entitled to recover any loss and/or damages caused by such termination from the Customer.
Article 8.3 (Termination)
- The Customer may terminate the Application Service Agreement in the method to be designated by us. The conditions for termination shall be specified separately by us.
In the event any of the following events occurs with respect to the Customer, we may terminate the relevant Application Service Agreement in whole or in part by giving notice thereof in writing or e-mail to the Customer, without the need to make any request for correction:
- (1)The Customer has stopped its payments or has become unable to pay its debts;
- (2)Any bill or check of the Customer becomes dishonored;
- (3)Any petition for seizure, provisional seizure, or auction has been filed, or any disposition for delinquent taxes and public dues has been issued;
- (4)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;
- The Customer’s business license has been rescinded or suspended by a competent authority;
- (6)A resolution for dissolution, capital reduction, or transfer of all or a significant part of the Customer’s business has been adopted; or
- (7)Any event equivalent to the preceding items occurs.
- KOMATSU is not liable for any damage that may be incurred by the Customer or the Users due to the termination of the Application Service Agreement in whole or in part by us in accordance with this Article.
Article 8.4 (Process after Termination of the Contract)
- The Customer cannot use the Customer Account after termination of the Application Service Agreement, and cannot browse or use, etc. the information provided by SMART CONSTRUCTION on SMART CONSTRUCTION.
- The Customer shall agree that the Company may arbitrarily delete the Customer Installation Information and all the other data and information the Customer provided to SMART CONSTRUCTION after termination of the Application Service Agreement. The Customer shall save the backup of all the necessary data and information by the termination date of the Application Service Agreement under the Customer’s responsibility and at its expense. The Company shall not be held liable in any way for loss of data and information of the Customer.
- In the case where the Customer is provided with the device or software by the Company for use of the Services, the Customer shall return the device or software, all the relevant documents, etc. (including the copies of the software, documents, etc.) to the Company immediately after termination of Application Service Agreement. If the software, document, etc. are copied on IoT Device, etc., the Customer shall delete the copied software, document, etc. under its responsibility and at its expense.
Article 8.5 (Survival Provision)
Article 1.2; Article 2.4; Article 4.2 Item 3 and 4; Article 6.1 through 8.1; and Article 8.4 through 8.10 shall remain in effect after the termination of these Terms and any applicable Application Service Agreement.
Article 8.6 (No Assignment)
The Customer may not assign to a third party the Terms of Service and Application Service Agreement, or all or part of the rights or obligations based on the Terms of Service and Application Service Agreement without prior consent in writing of the Company.
Article 8.7 (Separability)
Each provision of the Terms of Service and Application Service Agreement shall be interpreted in an effective way to the extent permitted by law. In the case where it is decided that any provisions of the Terms of Service and Application Service Agreement violate the law or that execution is impossible, the remaining part of the provision or other provisions shall not be deemed invalid or unenforceable, and the provision shall be invalid or unenforceable only to the extent of violation of the law.
Article 8.8 (Exclusive Jurisdiction by Consent)
Regarding conflicts between the Customer and Company over the Terms of Service and Application Service Agreement, the Northern District of Illinois shall be the court of exclusive jurisdiction by consent for the first instance.
Article 8.9 (Governing Laws)
Article 8.10 (Good Faith Consultation)
Any matter not stipulated in the Terms of Service and Application Service Agreement or any question arising in connection with the interpretation of the provisions stipulated in the Terms of Service and Application Service Agreement shall be settled through good faith consultation between the parties.
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