TERMS OF USE - KOMTRAX SERVICES

 

This Agreement (gAgreementh or gTerms of Useh) contains the complete terms and conditions governing the use of the Komtrax Units, Komtrax program, software, and Web Site located at https://ww-komtrax.komatsu.co.jp/KAC/WW/login.aspx, or at such other Internet address or Internet addresses as we shall designate from time to time, and related services (collectively, the gServiceh, as further described below).

 

As used in this Agreement: (i) gweh, gush, gourh, or gKACh refers to Komatsu America Corp., a Georgia corporation; (ii) gyouh, gyourh or gUserh refers to the person entering into this Agreement and using the Service on behalf of Customer; (iii) gCustomerh refers to the person, company or other legal entity entering into this Agreement and using the gServiceh and which employs or otherwise authorizes User to use the Service on its behalf, and which owns the equipment associated with the Komtrax Units; (iv) gWeb Siteh or gSiteh refers to all viewable pages (including page headers, custom graphics, button icons, links and text), underlying program code, and accompanying Service and system features and documentation of the Internet web site made available by us for use of the Service; (v) gSoftwareh shall mean the software provided with, or embedded in, the Komtrax Unit, the software contained in or underlying the Web Site, and the Komtrax information system software, including message processing software, databases, Customer interfaces, user displays and engineering tools; (vi)  gKomtrax Unith shall consist of equipment used by an end user to provide access to the Komtrax System, which equipment has been gtype-approvedh by or on behalf of KAC and to which a physical serial number, device control number, associated radio identification codes and/or system address have been assigned by KAC, together with  components that may include a battery, GPS receiver, antenna, embedded software and the cabling necessary to connect the foregoing components, in each case for installation and/or use on a unit of construction, mining or utility equipment.  In some cases, Customer and User may be the same person.

 

By registering to use the Service, by  clicking gAGREEh to this Agreement, or by signing a Customer Consent,  User and Customer agree to use the Service in a manner consistent with all applicable laws and regulations and follow and be bound by these terms and conditions.  If you are doing so on behalf of a business entity or corporation, you certify that you are authorized to so act on its behalf. Customer, through its Users, is permitted to use, reproduce and display materials on the Site or provided by the Service as set forth below only upon the condition that User and Customer accept all of the terms contained in this Agreement.

 

You agree that access to the Site and use of the Service shall only be by employees or agents authorized by Customer to be Users in accordance with the terms hereof.

 

Description of Service

 

The Service, as further described in this Agreement and on the Web Site, including updates and other changes that may be posted on the Web Site or otherwise provided to you or Customer by us from time to time, includes KACfs Komtrax system, which is an equipment data tracking and monitoring system to manage information on utility, construction and mining machines (gKomtrax Systemh). Equipment related data may include details on machine location, usage and diagnostic information.  We will provide Customer and its Users with access to this system in accordance with this Agreement.  The Service is subject to modification by us at any time.  Subject to the terms hereof, the Service will provide Customer and its Users the ability to use the Web Site and the related tools to monitor the equipment related data as part of the Service as provided herein.  The Service includes (a) the processing and delivery of equipment location and other monitoring messages using the Software, hardware and data transmission networks used by KAC in connection with the Service, and (b) the display of such messages for viewing and/or manipulation by Customer and User, in each case for tracking and monitoring equipment and other functions. The tracking and monitoring data and information resulting from the provision of the Service to Customer will be made available by KAC to Customer and User through the Web Site.  We may limit Customer or User access to the data and the Service (or any portions thereof) at any time without notice, in our sole discretion.

 

Unless explicitly stated otherwise, any new features that augment, enhance or otherwise change the current Service shall be subject to the terms and conditions stated in this Agreement. You understand and agree that the Service is provided on an gAS-ISh basis and that KAC assumes no responsibility for the timeliness, deletion, accuracy or failure to store any Customer or User input information or any machine related information. The components of the Service may be changed by KAC at any time without notice.

 

Customer and User also acknowledge and agree that the Service provided under this Agreement may be interrupted or suspended for extended periods, or terminated at any time, and that KAC shall have no liability with respect thereto and neither Customer nor User will be entitled to any recourse or compensation. 

 

Customer and User shall use the Service to process only Customer data and data with respect to equipment that Customer owns, leases or operates, or the data collected from machines rented by Customer to third parties.  In the event such rented equipment is used by third parties, whether through rental, lease or otherwise, Customer and User agree to provide notice to such third parties that the equipment is subject to the Service, that data and information may be collected, and any such data or information collected may be used by Customer, KAC and KACfs affiliates and/or distributors in their sole discretion. 

 

Customer is responsible for obtaining and maintaining access to the Service and that access may involve third party fees (such as Internet service provider or airtime charges).  Customer is responsible for those fees.  In addition, Customer must provide and is responsible for all computer and telecommunications equipment necessary to access the Service including data collection and transmission hardware and Software provided by KAC in connection with the use of the Service.

 

Passwords and Use of Information

 

Following any applicable registration of Customer by KAC, and payment of any applicable fees by Customer, Users will be provided with usernames and passwords, at which time Users will be provided initial access to the Service and may register for and use the Service, subject to compliance with these terms and conditions.  Only Users may access the Service. C A Userfs username and password must be used each time to access the Service. Customer and User agree not to disclose or otherwise make the usernames or passwords of the Users available to any third party other than Users authorized by Customer in accordance with these terms. Customer and Users are responsible for maintaining the security of the usernames and passwords of the Users and agree that they are solely responsible for any breach or unauthorized access to the Service using them. Customer is also responsible for all uses of the Service by the Users and for their compliance with the terms of this Agreement.  KAC may cancel a Userfs username and password and access to the Service at any time without notice.

 

In addition to any other uses we may make of data Customer or User provides to KAC and the data collected through the Service, we may provide our KAC distributors access to this data, including through the Service.  Customer or User may also request that your KAC distributor(s) and other KAC distributors be able to input, edit, delete and/or access Customer data on Customerfs behalf. We shall not be responsible for any inputs, edits, deletions and/or access to your data by Customer, a distributor or a User.

 

Customer shall designate one User as gCustomer Administratorh. The Customer Administrator shall be responsible for designating authorized Users to us and keeping such information up to date, which includes informing us of Users that are no longer employees or agents of Customer within one (1) week of their termination of employment, or termination of their relationship, with Customer. Customer Administrator shall provide such information to us by e-mail, in accordance with the notice provisions below, or as we may otherwise request. Customer shall also notify us by email of any changes in, or the termination of employment of, the Customer Administrator within two (2) days of any such change.

 

KAC shall assign to each Komtrax Unit a unique commercial address for use with the Komtrax Network (the gKAC System Addressh).  KAC reserves the right to change any KAC System Address on not less than two business daysf notice.  Customer shall not, without KACfs written consent, assign any KAC System Address to any other Komtrax Unit, or change any number programmed by or on behalf of KAC into a Komtrax Unit.  Customer shall not have and shall not acquire any proprietary interest in the KAC System Address or any other numbers or codes associated with or allocated to a Komtrax Unit.

 

 

Warranty

 

KACfs warranty of each Komtrax Unit shall be limited to its standard warranty for components in effect as of the  purchase date of such Unit.  Any warranty claims may be pursued only in accordance therewith.

 

License and Intellectual Property

 

Upon Customerfs registration to use the Service and payment of any applicable fees, then to the extent necessary to view the Komtrax data on the Site, KAC hereby grants Customer a personal, limited, non-exclusive, non-transferable, revocable license to use the Service only in the United States and Canada . Customer may use any data only for Customerfs internal business purposes in compliance with all applicable laws, regulations, and ordinances. This license is subject to Customerfs compliance with the terms of this Agreement, and failure to so comply can result in revocation of this license.  KAC permits User to use the Service on Customerfs behalf in accordance with this Agreement.  This right is personal to User and it may be revoked for violation of this Agreement.  User may use any reports only for Customerfs internal business purposes in compliance with all applicable laws, regulations, and ordinances, and User may not sell, assign, rent, lease, license, grant a security interest in or otherwise grant or transfer any rights to use the Service.  If Customer or User fail to comply with the terms of this Agreement, KAC may revoke Customerfs or Userfs access and use of the Service and terminate this Agreement at any time.

 

As a licensee, subscriber to or user of the Service neither Customer nor User may alter, adapt, translate, decompile, disassemble, copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code of the Service, including, but not limited to, the Software and the Web Site, or any hardware or software provided by KAC with respect to the Service, except and only to the extent, if any, that such activity is permitted by applicable law notwithstanding this limitation. Neither Customer nor User may sell, assign, rent, lease, grant a security interest in, sublicense or otherwise transfer any rights in the use of the Service or the Software.  We reserve all of our rights in the Software, graphic images and text, our corporate trade names and trademarks, and all other intellectual property rights. The license referred to in this section shall terminate upon termination of this Agreement.

 

Customer and User acknowledge and agree that all data developed or collected by us or on our behalf, or through the Service, including, but not limited to, prior to and after the term hereof (including aggregate data of Customerfs, Userfs and other customers), in connection with the operation of the Service shall be our exclusive property, except for data (excluding aggregate data) provided by Customer, User or on Customerfs behalf, with respect to Customerfs machines.  To enable us and our distributors and affiliates to use any information provided by or on behalf of Customer in connection with the operation of the Service without violating any rights that Customer or User may have in the information, Customer and User  hereby grants to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicenseable right to exercise the copyright and other rights that Customer or User may have in such information for KAC, KAC affiliate, and KAC distributor business purposes, and for any other purposes, in any media now known or not currently known.  Without limiting the generality of the foregoing, Customer and User acknowledge and agree that KAC is entitled to retain and use free of charge the tracking and monitoring data obtained through Customerfs and Userfs use of the Service under this Agreement for such purposes as it shall in its sole discretion determine, including, without limitation for its affiliates, distributors and select third parties and business partners.

 

Customer and User Conduct

 

Neither Customer nor User shall perform, permit, or allow any abuse or fraudulent or unlawful use of the Service or use the Service for any fraudulent, unlawful or abusive purpose.  Customer and User shall take all steps necessary to control and prevent abuse or fraudulent or unlawful use by Users, or any third party under Customerfs control, of the Service.  Abuse and/or unlawful or fraudulent use of the Services includes, but is not limited to:

 

                     (i)         Accessing, altering or interfering with the communications and/or information of the Service, including, but not limited to, by rearranging, tampering or making an unauthorized connection with the Service, or any facilities related thereto, or attempting, allowing or assisting any other person, to do the foregoing; and/or

 

                     (ii)        Using the Service in such a manner so as to interfere unreasonably with the use of the Service by other persons.

 

Customer and User shall use the Service in accordance with applicable laws, rules and regulations, including, but not limited to, those of any applicable governmental authority or agency, including, without limitation, the Federal Communications Commission.  Customer and User acknowledge that the Service may require licenses or other approvals from applicable governmental authorities, and agree to use the Service only in accordance with this Agreement and such governmental licenses and approvals.

 

Customer and User shall use the Service only within the United States and Canada .  Customer will only use a Komtrax Unit (or other similar unit approved by us in our sole discretion) in connection with the Service. 

 

While using the Service, Customer and User represent and agree that any information you upload, post, e-mail, publish, reproduce, disseminate, make available, distribute or otherwise transmit and your use of the Service and the Komtrax Units:

 

(i) will not be unlawful, threatening, harmful, abusive, defamatory, fraudulent, harassing, tortious, obscene, pornographic, libelous, racist, invasive of anotherfs privacy, or contain otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would give rise to civil liability or constitute illegal activity;

 

(ii) will not violate any contractual or fiduciary relationships, including, without limitation, with respect to inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements;

 

(iii) will not infringe any copyright, patent, trademark, service mark, trade name, trade secret or other proprietary or confidentiality rights of any third party;

 

(iv) will not contain unauthorized advertising, bulk e-mails, promotional materials, chain letters, pyramid schemes, investment opportunities, gjunk mail,h gspam,h or any other similar unsolicited commercial communications, solicitations or offers for sale of goods or provision of services, except for reasonable communications in connection with the Service;

 

(v) will not contain a virus, worm, Trojan Horse, Easter Egg, or other harmful component or instruction designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications; and/or

 

(vi) will not intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, antitrust laws, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, American Stock Exchange or the NASDAQ, and any regulations having the force of law.

 

Modification

 

We may modify or discontinue, temporarily or permanently, the Service (or any part thereof) at any time in our sole and exclusive discretion.  We may also modify any of the terms and conditions contained in this Agreement, in our sole and exclusive discretion, by sending an e-mail notification, pop-up window or regular mail setting forth such change or directing Customer or User to a change notice or a new agreement on our Site.  Such notifications shall become effective after they have been on our Site for ten (10) days, or ten (10) days after such notice was sent, whichever is earlier.  If any modification is unacceptable to Customer or User,  Customer or User may terminate this Agreement and that is Customerfs or Userfs sole remedy.  Customerfs or Userfs continued use of the Service following that period will constitute binding acceptance of the change. Customer and User agree that KAC shall not be liable to Customer, User or to any third party for any modification, suspension or discontinuance of the Service.

 

Customer and User agree that we may limit the amount of data stored on the Service and the maximum number of times and duration you may access the Service in a given period of time, and may change such limits and times at any time.

 

Proprietary Information and Confidentiality 

 

Customer and User expressly acknowledge and agree that the entire right and title to the Service and the Software, including, but not limited to, all copyright, trade secret and other intellectual or proprietary rights in and to the Service and the Software is, and shall remain, with KAC.  KAC has the exclusive right to protect the Software by copyright enforcement procedures or otherwise.  Neither Customer nor User shall remove any copyright notices or any confidential or proprietary legends from the Software or the Service. 

 

Customer and User agree not to disclose any of our confidential information.  Confidential information includes all competitive, sensitive or secret business, marketing, technical or other similar confidential information belonging to, or licensed to, KAC and disclosed to Customer or User as part of, or in connection with, the Service, including, without limitation, any and all hardware, Software and related documentation, report formats, screen displays, menu features and any technical information relating thereto.  Customer and User also hereby acknowledge and agree that the Software constitutes a valuable proprietary product and trade secret of KAC.  Accordingly, Customer and User shall observe complete confidentiality with respect to the Software, and shall not disclose all or any portion of the Software to any third party or entity, provided that Customer and User shall be entitled to make such disclosure as may be necessary or appropriate to Customeremployees in their course of work; and provided further, that Customer and User shall be entitled to allow third parties to view any User screen displays.  Customer and User shall advise all employees and consultants who receive access to the Software of the confidential and proprietary nature of the Software and obtain from each his or her agreement to abide by the obligations of Customer, including, but not limited to, those set forth in this Agreement.  Information shall not be considered confidential to the extent, but only to the extent, that such information is: (i) already known by you free of restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction; or (iii) available publicly.

 

Customer and User acknowledge that all service marks, trademarks and tradenames used in connection with the Services are the service marks, trademarks and/or trade names of their respective owners, and that neither Customer nor User have any license or other rights or licenses whatsoever with respect to such service marks, trademarks or trade names.

 

Security

 

Although we use what we consider to be reasonable security measures, we are not responsible for any data loss, corruption or exposure that may occur, or damages arising therefrom, in the course of Customerfs or Userfs access or use of the Service, or otherwise in connection with the Service.

 

Scope and Term of the Agreement

 

Use of the Komtrax Service with respect to each Komtrax Unit shall be deemed to commence upon the later of the date of purchase of the Komtrax Unit or the date of purchase of the equipment on which the Komtrax Unit is installed, and shall terminate at the earlier of (i) five (5) years from such date, (ii) the date upon which you sell or otherwise transfer the equipment on which the Komtrax Unit is installed, (iii) the termination of these Terms of Use, or (iv) such other date of which KAC may advise Customer.  Except in cases of termination of the Terms of Use, we may offer use of the Service to Customer or the new owner of the equipment at our then current usage rates.  In the event of sale or other transfer of the equipment associated with any Komtrax Unit, Customer agrees to provide KAC with thirty (30) daysf advance written notice thereof.

 

This Agreement shall govern the use of any and all Komtrax Units Customer currently owns or leases and those subsequently obtained by Customer whether through purchase or lease or otherwise.  The term of this Agreement will become effective upon acceptance by Customer or User and shall continue in the case of a Customer for as long as Customer has the right to use any Komtrax Unit, and shall end when such rights to use such Komtrax Units terminate, when this Agreement is terminated by either party or upon the termination, or discontinuance of the Service, whichever is earlier; or in the case of a User the term of this Agreement will become effective upon our acceptance of Userfs registration and will end when terminated by either party, upon the termination of employment or service to Customer, or upon the termination or discontinuance of the Service.  If not otherwise accepted by us electronically or in writing, if User is granted access to the Site Userfs registration has been accepted.  Either Customer, User or KAC may terminate this Agreement at any time, with or without cause, by giving the other party fifteen (15) daysf written notice of termination.  Upon termination of this Agreement, all rights granted to Customer and User under this Agreement shall terminate immediately and Customer and User shall cease all use of the Service, the Komtrax Units and the Komtrax System. In addition, we may immediately terminate or suspend your Customerfs or Userfs of the Service, and/or any Komtrax Units if Customer or User provide us with false or misleading information or breach this Agreement, or if we deem it necessary to comply with any applicable laws or regulations. If requested, Customer shall provide KAC or its designee access to the Komtrax Units to allow for their removal pursuant to any termination hereunder.  You shall indemnify and hold KAC harmless from any liability for such termination or temporary discontinuation of the Services.

 

Installation of Komtrax Units

 

If necessary, KAC shall provide to Customer an installation guide pertaining to the installation of the Komtrax Units and you shall effect the installation of the Komtrax Units under this Agreement in accordance with such installation guide.

 

Disclaimer of Warranties

 

EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, NONE OF KAC, ITS DISTRIBUTORS, OR ANY OF THEIR PARTNERS, AGENTS, OR AFFILIATES, HAS MADE, OR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE KOMTRAX UNITS, ANY COMPONENT THEREOF OR ANY SERVICES OR OTHER ITEMS PROVIDED HEREUNDER.  THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE WEB SITE AND ITS CONTENTS, ARE PROVIDED gAS ISh WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT, CUSTOMER  EXPRESSLY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES OF KAC, ITS DISTRIBUTORS, AND THEIR PARTNERS, AGENTS AND AFFILIATES, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE KOMTRAX UNITS, ANY COMPONENTS THEREOF OR ANY SERVICES OR OTHER ITEMS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO:  (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (II) ANY IMPLIED AND EXPRESS WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (III) ANY WARRANTIES AS TO ACCURACY, AVAILABILITY OR CONTENT OF THE KOMTRAX UNITS, ANY COMPONENT THEREOF OR ANY SERVICES OR OTHER ITEMS PROVIDED HEREUNDER; AND (IV) ANY WARRANTY UNDER ANY THEORY OF LAW, INCLUDING, WITHOUT LIMITATION, ANY TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT OR OTHER LEGAL OR EQUITABLE THEORY.  NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE, SHALL BE DEEMED TO BE A WARRANTY BY KAC, ITS DISTRIBUTORS OR ANY OF THEIR AFFILIATES.  WITHOUT LIMITING THE FOREGOING, NO WARRANTY IS GIVEN THAT THE SERVICE OR ANY INFORMATION WE PROVIDE TO YOU WILL BE UNINTERRUPTED OR ERROR FREE. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.

 

Customer and User understand and agree that KAC does not warrant that the Service will be secure or be continuously available, or that information provided will be accurate. Customer and User understand and agree that the Service may be suspended for extended periods of time or terminated at any time.  KAC will not be liable for the consequences of any interruptions, suspensions or terminations or for inaccurate information. Customer and User further understand that they are responsible for password control.

 

Limitation of Liability

 

CUSTOMER AND USER YOU EXPRESSLY UNDERSTAND AND AGREE THAT KAC, ITS AFFILIATES, DISTRIBUTORS AND SUPPLIERS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SAVINGS, BUSINESS INTERRUPTION, COMPUTER INTERRUPTION, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES RESULTING FROM (I) THE USE OR THE INABILITY TO USE THE SERVICE OR ANY KOMTRAX UNITS; (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES AND GOODS RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; (V) THE PERFORMANCE OR NON-PERFORMANCE OF THE KOMTRAX UNITS; (VI) FAILURE BY YOU TO PROVIDE ANY NOTICES REQUIRED HEREUNDER, OR (VII) ANY OTHER MATTER RELATING TO THE SERVICE. IF THIS LIMITATION OF LIABILITY OR THE DISCLAIMER OF WARRANTY SET FORTH HEREIN IS HELD INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN KACfS, ITS AFFILIATESf, DISTRIBUTORSf AND SUPPLIERSf MAXIMUM LIABILITY FOR ANY TYPE OF DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE OR OTHERWISE, EITHER JOINTLY OR SEVERALLY, SHALL BE LIMITED TO $1,000 (ONE THOUSAND DOLLARS).  Some jurisdictions do not allow the limitation or exclusion of consequential or incidental damages, so some of the foregoing limitations may not apply to you.

 

Indemnification

 

Without limiting the generality or effect of other provisions of this Agreement, as a condition of the use of the Service, Customer and User agree to indemnify, hold harmless, and defend us and our officers, directors, affiliates, distributors, subcontractors, agents and employees against all liabilities and damages (including reasonable attorneysf fees) incurred or allegedly incurred by us in connection with any third party claims arising out of (i) Customerfs and Userfs breach of this Agreement, or (ii) Customerfs or Userfs use of the Service and/or engagement in transactions in connection therewith, including, but not limited to, failure of any products or services to meet specifications, breach of warranty, intellectual property infringement and bodily injury or personal property damage.  Customer and User also hereby waive, and agree to indemnify and hold harmless KAC, and its partners, affiliates, officers, directors, employees, representatives, agents, and subcontractors against, any and all claims, demands, losses, damages, judgments, liabilities or expenses (including, without limitation, reasonable attorneyfs fees) relating to: (a) damage to property of KAC, you, or any other person, including, but not limited to, any damage that invalidates any other product warranties and is caused by installation or use of the Komtrax Units; or (b) claims (including, but not limited to, those for personal injury) brought against KAC or any other aforesaid indemnitee by Customer, User, Customerfs agents, representatives, subcontractors, customers or any other person, or by any of Customerfs or their respective employees, arising from, or caused by, installation, use or removal of the Komtrax Units, or use or discontinuance of the Service as provided hereunder.

 

Force Majeure

 

KAC will not be liable for failure to perform under this Agreement, including, but not limited to, if such failure is caused by Internet outages, failure of suppliers, vendors or service providers, earthquakes, satellite or other communications outages, flood, war, fire, an act of God, acts of war or terrorism or the occurrence of any other event beyond the reasonable control of KAC.

 

No Unintentional Waiver

 

This Agreement constitutes the entire agreement between User, KAC and Customer with respect to the Service and supersedes all prior agreements between KAC and Customer related to the Service except for any Customer Consent signed on behalf of Customer.  KACfs failure to enforce any provision of this Agreement will not be construed as a waiver of any provision or right.

 

Statute of Limitations

 

Customer and User agree that notwithstanding any statute or law to the contrary, that any claim or action by  you or Customer arising out of or relating to the Service, or the use of the Service, must be filed by you within one (1) year after such claim or cause of action arose or be forever barred.

 

Relationship of the Parties

 

Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the parties hereto, nor shall either party have the right, power, or authority to assume, create, or incur any expense or obligation on behalf of the other party, except as expressly provided herein.

 

Notices

 

Notices to you shall be in writing and may be made via email, regular mail or posting such notices on the Web Site. Except as otherwise explicitly stated in this Agreement, any notices shall be given by email to komtrax@komatsuna.com (in the case of notices to KAC) or to the email address provided to KAC during the registration process.  Notice shall be deemed given twenty-four (24) hours after any email is sent, unless the sending party is notified within such 24-hour period that the recipientfs e-mail address is invalid. Alternatively, notice may be given by recognized overnight courier service or by registered or certified mail, postage prepaid, return receipt requested, to Komatsu America Corp., One Continental Towers , 1701 W. Golf Road, Rolling Meadows, IL 60008, Attention: General Counsel, or to you at the address provided to KAC during the registration process or in connection with the purchase agreement executed by you in connection with this Agreement, or to such other address as either party shall specify in a notification in accordance with this paragraph.  In such case, notice shall be deemed given when received or five (5) days after mailing in the manner specified.

 

Governing Law

 

This Agreement shall be governed by, and construed in accordance with, the laws of the State of Illinois , United States of America without regard to conflicts of law rules.  Any legal proceeding of any nature brought by either party against the other to enforce any right or obligation under this Agreement, or arising out of any matter pertaining to this Agreement, shall be brought in the federal or state courts located in the city of Chicago, Illinois.  The parties consent and submit to the jurisdiction of any such court and agree to accept service of process inside or outside the State of Illinois in any matter to be submitted to any such court pursuant hereto.

 

Severability

 

In the event that a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect.

 

Assignment

 

Neither Customer nor User may assign this Agreement without KACfs prior written consent. Any attempted assignment without KACfs consent shall be void and without effect and shall result in our right to immediately terminate this Agreement and the license rights granted herein without further obligation to you.  Neither Customer nor User may transfer any Komtrax Units to any different equipment without KACfs prior written consent.  KAC reserves the right to assign this Agreement to any third party, including any party that acquires all or substantially all of KACfs assets or equity. This Agreement and the rights and obligations of each of us under it will be binding on our respective successors and assigns.  Customer agrees to provide notice to any transferee of the equipment that the equipment is subject to the Service, that data and information may be collected, and that any such data or information collected may be used by KAC, its distributors and affiliates unless such transferee provides notice to KAC to discontinue the Service.  Customer further agrees not to sell a Komtrax Unit or any equipment containing a Komtrax Unit unless Customer provides KAC with thirty (30) days advance written notice thereof, and the transferee agrees to be bound by the terms of this Agreement but any such sale shall not be an assignment or novation of this Agreement, and you shall continue to be bound by the terms hereof.

 

Survival

 

The provisions of this Agreement, including, but not limited to, the third paragraph of the License and Intellectual Property section (including, but not limited to, the license to data granted to KAC, KACfs affiliates and KAC distributors hereof), and the Proprietary Information and Confidentiality, Security, Disclaimer of Warranties, Limitation of Liability, Indemnification, No Unintentional Waiver, Statute of Limitations, Notices, Governing Law, Severability, Assignment, Survival and General sections, as well as any other provisions that by their sense and context are intended to survive performance by either or both parties, shall also survive the completion, expiration, termination or cancellation of this Agreement.

 

General

 

This Agreement, together with any documents or Web pages incorporated herein, constitutes the entire agreement between the parties and supersedes all previous agreements, promises, proposals, representations, understandings and negotiations, whether written or oral, between the parties respecting the subject matter hereof; provided, however, if you have entered into more than one version of these Terms of Use for Komtrax Units, the Agreement with the latest revision date below shall control for all of your Komtrax Units.  The headings in this Agreement are included for convenience of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof.

 

Revised October 3, 2006