Version January 2015
This agreement (eAGREEMENTf) contains the terms and conditions with respect to the use of the remote monitoring and management system for construction and mining equipment utilizing radio communication or other means of transmitting data, which is owned, managed and provided by KOMATSU Ltd. and KOMATSU EUROPE INTERNATIONAL NV (jointly referred to as gKOMATSUh), under the name of gKOMTRAXh, gKOMTRAX Plush or such other names as may be assigned by KOMATSU, (collectively gKOMTRAXh)
As used in this AGREEMENT, (i) gweh, gush, gourh, or gKOMATSUh refers to Komatsu Ltd., a company duly organized and existing under the laws of Japan, and having its registered office at 2-3-6 Akasaka, Minato-ku, Tokyo 107-8414, Japan (eKomatsu Ltd.f) and Komatsu Europe International NV (eKEISAf), a company duly organized and existing under the laws of Belgium, and having its registered office at Mechelsesteenweg 586-B, 1800 Vilvoorde, Belgium; (ii) gyouh, gyourh or gUSERh refers to the person entering into this AGREEMENT and using KOMTRAX on behalf of CUSTOMER; (iii) gCUSTOMERh refers to the company or other legal entity entering into this AGREEMENT and using KOMTRAX and which employs or otherwise authorizes USER(S) to use KOMTRAX on its behalf, and which owns the MACHINES associated with the KOMTRAX APPARATUS; (iv) gWEB SITEh or gSITEh 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 KOMATSU for use of KOMTRAX; (v) gSOFTWAREh shall mean the software provided with, or embedded in, the KOMTRAX APPARATUS, the software contained in or underlying the WEB SITE, and the KOMTRAX information system software, including message processing software, databases, interfaces, user displays and engineering tools; (vi) gKOMTRAX APPARATUSh shall consist of equipment used by an end user to provide access to KOMTRAX, which equipment has been gtype-approvedh by or on behalf of KOMATSU and to which a physical serial number, device control number, associated radio identification codes and/or system address have been assigned by KOMATSU, 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; (vii) DISTRIBUTOR refers to the company or other legal entity, appointed by KEISA as official distributor, which has sold the MACHINE(S) equipped with KOMTRAX to CUSTOMER.
By registering to use KOMTRAX, by clicking gI AGREEh to this AGREEMENT, or by signing this AGREEMENT, CUSTOMER and USER(S) agree to use KOMTRAX 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 KOMTRAX as set forth below only upon the condition that CUSTOMER and USER accept all of the terms contained in this AGREEMENT. You agree that access to the SITE and use of KOMTRAX shall only be by employees or agents authorized by CUSTOMER to be USER in accordance with the terms hereof.
Article 1 (Scope)
This AGREEMENT applies to any and all construction and mining equipment owned or used by CUSTOMER and/or its USERS in which the apparatus required for use of KOMTRAX (the gKOMTRAX APPARATUSh) is installed (individually, a gMACHINE,h and collectively, the gMACHINESh).
Article 2 (KOMTRAX INFORMATION)
1. CUSTOMER and its USERS acknowledge and agree that information regarding the MACHINES, including, but not limited to, service meter readings, running hours, the location of the MACHINES, as well as separate location and operation information for each of CUSTOMERfs operators of the MACHINES specified through a specific ID code, but excluding Statistically Processed Information as defined in Section 2.2 below (the gKOMTRAX INFORMATIONh), may be collected through KOMTRAX and accessed and used for each of the purposes described below:
(1) DISTRIBUTOR (including its sub-dealers and its successors) may access and use KOMTRAX INFORMATION for the purposes of (i) providing the CUSTOMER and its USERS with after sales and other services for the MACHINES, (ii) improving its after sales service or other support systems to the customers and (iii) performing the terms and conditions of this AGREEMENT;
(2) KOMATSU and its subsidiaries and affiliates (collectively, gKOMATSU ENTITIESh) may access and use KOMTRAX INFORMATION (free of charge) for their business purposes (including, but not limited to, the design, engineering, manufacture, distribution and sale of products, and the provision of services to distributors and customers, including the provision of analysis and advice regarding the use of the MACHINES per operator of the MACHINE in view of more (cost) efficient and safer use).
2. CUSTOMER and its USERS acknowledge that (i) information that is aggregated such that a specific USER or MACHINE is no longer identifiable as a result of statistically processing the KOMTRAX INFORMATION, or (ii) information from which a specific USER or MACHINE is otherwise not identifiable (collectively, gStatistically Processed Informationh) may be accessed and used by DISTRIBUTOR (including its sub-dealers) and KOMATSU ENTITIES for any purpose.
3. (1) CUSTOMER and its USERS agree and acknowledge that the KOMTRAX INFORMATION may contain any data or information relating to an identified or identifiable natural person (hPersonal Datah) and that, in that case, the CUSTOMER (in its capacity of the MACHINE operatorfs and/or USERfs employer) shall be deemed data controller within the meaning of applicable laws relating to data privacy, personal data, trans-border data flow and data protection (the gPrivacy Lawsh).
(2) CUSTOMER and its USERS shall maintain Personal Data in relation to KOMTRAX or KOMTRAX INFORMATION, including ID codes of operators of MACHINES and the list of ID codes by which an operator with the corresponding ID code can be identified, in accordance with the Privacy Laws.. As a data controller, CUSTOMER shall appropriately observe its duties under the Privacy Laws, including (but not limited to) ensuring (i) the right to access and process Personal Data, (ii) the right to correct any inaccurate or incomplete data, and (iii) the right to request erasure of Personal Data.
Article 3 (CUSTOMERfs and USERfs Obligations)
With respect to the use of KOMTRAX, CUSTOMER and its USERS shall comply with the following:
1. Prior to the initial use of the MACHINES, CUSTOMER and its USERS shall perform all necessary procedures for registration as a KOMTRAX customer in accordance with the procedures separately instructed by DISTRIBUTOR. CUSTOMER and its USERS shall use KOMTRAX in accordance with all applicable laws and regulations (including Privacy Laws), as well as in accordance with operation manuals and any other instructions that may be provided by DISTRIBUTOR or any KOMATSU ENTITY.
2. In order to use KOMTRAX, CUSTOMER and its USERS shall be responsible for preparing an environment for use of an internet system (including, but not limited to, preparing computers, installing browsers and signing up with internet service providers). CUSTOMER shall bear any and all costs and expenses relating to the use of the internet system, including, but not limited to, connection and communication fees for internet use.
3. KOMTRAX shall be used only by those officers and employees (including temporary employees) of CUSTOMER who are so authorized by CUSTOMER and only for the purposes of CUSTOMERfs own business in accordance with the terms and conditions of this Agreement. CUSTOMER shall be responsible for protecting the security of the CUSTOMERfs account number and password for using KOMTRAX and for correctly and completely informing its officers and employees (including operators of the MACHINES) about KOMTRAX, KOMTRAX INFORMATION and the purposes thereof. CUSTOMER and its USERS shall disclose its KOMTRAX account number and password only to those officers and employees described in the first sentence of this Section 3.3, and shall not disclose, sell, lease, transfer or otherwise make available to any other party CUSTOMERfs KOMTRAX account number or password, or otherwise permit any other party to use or access KOMTRAX.
4. CUSTOMER and its USERS acknowledge that (i) the KOMTRAX APPARATUS is a wireless application that uses radio waves, and (ii) the KOMTRAX APPARATUS requires regulatory type approvals and/or licenses from the jurisdiction(s) in which the MACHINES are used. If CUSTOMER and its USERS desire to use the MACHINES in another jurisdiction, CUSTOMER shall notify DISTRIBUTOR in advance to that effect and follow DISTRIBUTORfs instructions with respect to the use of KOMTRAX in such other jurisdiction.
5. In case CUSTOMER and its USERS lease or otherwise lend to a third party any or all of the MACHINES, CUSTOMER shall inform such third party in writing in advance that (i) the KOMTRAX APPARATUS is installed in such MACHINES, and (ii) CUSTOMER, DISTRIBUTOR (including its sub-dealers) and KOMATSU ENTITIES may collect, access and use KOMTRAX INFORMATION with respect to such MACHINES.
6. CUSTOMER and its USERS acknowledge that the KOMTRAX INFORMATION (which may include personal data within the meaning of the Privacy Laws) may be transferred to or accessed by KOMATSU from Japan, a country that is not recognized by the European Union as having adequate data protection laws. In view thereof, it is required that the CUSTOMER (in its capacity of data controller and data exporter) and Komatsu Ltd. (in its capacity of data processor and data importer) sign and enter into the standard contractual clauses for the transfer of personal data to third countries (controller to processor transfers); cfr. Commission Decision C(2010)593, available on http://www.komatsu.eu/komtrax-terms-of-use.asp . Given the fact that it is practically unfeasible that Komatsu Ltd. enters into these estandard contractual clausesf with each CUSTOMER, CUSTOMER agrees that KEISA signs them on CUSTOMERfs behalf. Consequently, by registering to use KOMTRAX or by clicking gI AGREEh to this AGREEMENT, CUSTOMER gives mandate to KEISA to sign and enter into the standard contractual clauses (available on http://www.komatsu.eu/komtrax-terms-of-use.asp) with Komatsu Ltd. on CUSTOMERfs behalf and CUSTOMER and its USERS undertake to respect and observe the terms and conditions thereof.
Article 4 (Confidentiality)
DISTRIBUTOR (for purposes of this Article 4, the term gDISTRIBUTORh shall include its sub-dealers) and KOMATSU ENTITIES shall not respectively (i) use the KOMTRAX INFORMATION held by DISTRIBUTOR and KOMATSU ENTITIES for any purpose other than those specified in this AGREEMENT, or (ii) disclose to any third party other than DISTRIBUTOR and KOMATSU ENTITIES any KOMTRAX INFORMATION, without the prior written consent of CUSTOMER. Notwithstanding the foregoing, DISTRIBUTOR and KOMATSU ENTITIES may disclose KOMTRAX INFORMATION if such disclosure is (i) requested by governmental authorities or any other competent authority, (ii) needed to exercise its legitimate legal rights, (iii) subsequent to public availability of the information or (vi) made to legal advisors, certified public accountants, or other persons who have a duty of confidentiality under applicable law or professional standards.
Article 5 (Transfer of MACHINES to a Third Party)
In case CUSTOMER disposes of or transfers (in this AGREEMENT, transfer means any one or more of the following activities: selling, exporting or otherwise transferring) to a third party (gTRANSFEREEh), any MACHINE, CUSTOMER shall apply to DISTRIBUTOR in advance for deregistration of such MACHINE with respect to the use of KOMTRAX and CUSTOMER and its USERS shall cease to use or access KOMTRAX for any purpose with respect to such MACHINE immediately upon the effectiveness of such disposal or transfer to a third party.
Article 6 (Termination or Change of KOMTRAX)
1. KOMATSU ENTITIES may terminate CUSTOMERfs and its USERSfs right of utilization of KOMTRAX, suspend communication and/or remove the KOMTRAX APPARATUS immediately, without prior notice to CUSTOMER upon the occurrence of any of the following;
(1) If KOMATSU ENTITIES determine that the CUSTOMERfs and/or its USER(S)fs use of KOMTRAX occurs in a jurisdiction where utilization of the KOMTRAX APPARATUS is not authorized or provision of telecommunication services suitable for the KOMTRAX APPARATUS is not licensed;
(2) If KOMATSU ENTITIES determine that KOMTRAX is accessed or utilized by any party in connection with CUSTOMERfS MACHINES in violation of this AGREEMENT; or
(3) If KOMATSU ENTITIES determine it is necessary to do so to ensure compliance with applicable laws or accomplish any purpose contemplated by this AGREEMENT.
2. KOMATSU ENTITIES reserve the right to modify or supplement any part or all of the operation of KOMTRAX (including the scope of KOMTRAX INFORMATION and the method of provision thereof), or terminate or suspend the provision of KOMTRAX, KOMTRAX services or access, for any reason and at any time, without prior notice.
3. At any time, KOMATSU ENTITIES may in their discretion and without the need to give any prior notice, modify the SOFTWARE and the WEB SITE constituting KOMTRAX, to the extent that it does not adversely affect the operating performance or specifications of the MACHINES.
4. CUSTOMER and its USERS waive their right to, and shall not, claim any damages or pursue any other remedy against DISTRIBUTOR and/or KOMATSU ENTITIES, and neither DISTRIBUTOR nor KOMATSU ENTITIES shall bear any liability towards CUSTOMER and its USERS, with respect to or in connection with any action that DISTRIBUTOR or KOMATSU ENTITIES may take under this Article 6.
Article 7 (Discharge and No Warranty)
1. CUSTOMER and its USERS acknowledge that various incidents (including, but not limited to, those stated below) may occur and cause impaired utilization of KOMTRAX (which includes the WEB SITE and/or SOFTWARE) by CUSTOMER and its USERS and CUSTOMER and its USERS waive their right to, and shall not, claim any damages or pursue any other remedy arising therefrom against DISTRIBUTOR, KOMATSU ENTITIES or any telecommunication company that has entered into an agreement with KOMATSU regarding telecommunication services for the provision of KOMTRAX:
(1) earthquakes, flood, war, fire, an act of God, acts of war or terrorism, or the occurrence of any other event beyond the reasonable control of DISTRIBUTOR, KOMATSU ENTITIES, or such telecommunication company;
(2) breakdown or maintenance issues relating to the KOMTRAX APPARATUS, or server maintenance issues;
(3) termination or suspension of the services provided by any telecommunications company or internet service provider;
(4) interference or radio disturbance (including when the MACHINES are located in a place with bad reception); or
(5) the unavailability of Global Positioning System (GPS) or similar systems.
2. CUSTOMER and its USERS acknowledge and agree that in no event does DISTRIBUTOR or KOMATSU ENTITIES warrant, nor shall they be liable with respect to, the integrity, accuracy, fitness for any particular use or purpose or any other quality or aspect of KOMTRAX.
3. If any dispute arises between CUSTOMER and/or its USERS and any third parties (including any TRANSFEREE, governmental authority, telecommunication company or internet service provider) relating to CUSTOMERfs and its USER(S)fs breach of this AGREEMENT or any instructions provided by DISTRIBUTOR or KOMATSU ENTITIES with respect to the use of the MACHINES or KOMTRAX (which includes the WEB SITE and SOFTWARE), CUSTOMER shall be responsible for the settlement of such dispute and shall indemnify and hold DISTRIBUTOR and KOMATSU ENTITIES harmless from any and all losses or damages of any kind arising therefrom.
Article 8 (Intellectual Property)
CUSTOMER and its USERS acknowledge that KOMATSU (or its licensors) is the sole owner of trademark, copyright, or other intellectual property rights pertaining, directly or indirectly, to KOMTRAX (including the WEB SITE and the SOFTWARE), KOMTRAX INFORMATION and Statistically Processed Information.
Article 9 (Term, etc.)
1. This AGREEMENT shall be automatically terminated in case (i) CUSTOMER disposes of or transfers to third parties all of the MACHINES owned by CUSTOMER, and (ii) all of CUSTOMERfs registrations as a user of KOMTRAX are deregistered in connection with all of the MACHINES owned by CUSTOMER.
2. CUSTOMER and its USERS acknowledge and agree that this AGREEMENT supersedes any agreement or consent letter relating to the use of KOMTRAX previously entered into by CUSTOMER and its USERS or submitted by CUSTOMER and its USERS to DISTRIBUTOR.
3. KOMATSU ENTITIESf failure to enforce any provision of this AGREEMENT will not be construed as a waiver of any provision or right and shall not preclude its exercise at any subsequent time.
4. The provisions of this AGREEMENT shall be deemed to be severable, and the invalidity of any provision of this Agreement shall not affect the validity of the remaining provisions of this AGREEMENT.
Article 10 (Governing Law, Jurisdiction)
1. This AGREEMENT shall be governed by, and construed in accordance with, the laws of Belgium.
2. Any dispute arising out of or in connection with this AGREEMENT shall be brought exclusively in a court of competent subject matter jurisdiction in Brussels, Belgium.