PLEASE READ THIS AGREEMENT CAREFULLY BEFORE BUYING A SUBSCRIPTION TO, ACCESSING, ACTIVATING OR USING CNH TELEMATICS SERVICE, INCLUDING NEW HOLLAND FIELDOPS, CASE IH FIELDOPS, AND STEYR FIELDOPS. THIS AGREEMENT IS A BINDING LEGAL CONTRACT BETWEEN YOU OR THE ENTITY YOU REPRESENT (“YOU”) AND CNH AUSTRALIA PTY LTD AND ITS GLOBAL AFFILIATES AND RELATED ENTITIES (“CNH”, “WE” OR “US”).
I. INTRODUCTION
Thank you for your interest in using the Telematics Service. The “Telematics Service” is CNH telematics services, including New Holland FieldOps, Case IH FieldOps, Steyr FieldOps, remote display access, data and software management services, wireless data transfer, location history, and other functionalities as further described in CNH’s standard documentation and in each case to the extent included in your Subscription. In addition to the Telematics Services, Novatel correction services of AFS 1, AFS 2, AFS 3, RTK Fill, RTK Fill Pro, PLM 1, PLM 2, PLM 3, S Tech 1, S Tech 2, and S Tech 3 (the “Correction Service”) are included as part of the services (“Telematics Service” and “Correction Service” collectively shall be referred to as “Service”). The Service utilizes the telematics device in each machine or equipment provided by CNH (“Equipment”) and the modem software and other software or firmware that is used in, installed on, provided with, or embedded on the Equipment (“Telematics Software”).
This CNH Telematics and Correction Services End User License Agreement (this “Agreement”) applies to (i) your account-level paid, trial, or other subscription (“Subscription”) to the Telematics Service and the applicable website available to subscribers to the Telematics Service and other related websites and mobile applications in order for such subscribers to access certain content, functionality, reports and services, and certain of their data (each a “Portal”), (ii) your use of the Correction Service for each Equipment; and (iii) the use of, and your consent to the use of, certain information or data that may be collected, recorded, and transmitted from and about each Equipment associated with the Service, and your use of the Telematics Software. You understand that by using the Service, CNH and its business associates may collect and use data to provide you with the Service and for other purposes, as described below.
1. Acceptance of Agreement. BY “ACCEPTING” THESE TERMS OR ACCESSING, ACTIVATING OR USING THE SITE, THE TELEMATICS SERVICE, OR THE TELEMATICS SOFTWARE, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, YOU AGREE: (1) TO RESOLVE ANY DISPUTES BY ARBITRATION ON AN INDIVIDUAL BASIS, AND THAT (2) CLASS ACTIONS AND JURY TRIALS ARE NOT PERMITTED. IF YOU DO NOT AGREE TO THIS AGREEMENT: (1) PLEASE DO NOT, AND YOU ARE NOT PERMITTED TO, ACCESS OR ACTIVATE OR USE THE SITE, THE TELEMATICS SERVICE, OR THE TELEMATICS SOFTWARE; AND (2) FOR CLARITY, DO NOT CLICK “I ACCEPT” IN THIS AGREEMENT.
2. Privacy Statements. Your use of the Telematics Service is also subject to the applicable CNH Telematics Privacy Statement (“Telematics Privacy Statement”) and the CNH Privacy Policy (the “CNH Privacy Policy”, and together with the Telematics Services Privacy Statement, the “Privacy Statements”). A current copy of the CNH Privacy Policy can be accessed and viewed at any time at www.cnh.com, and a current copy of the Telematics Privacy Statement can be viewed at any time at the following links https://myaccount.newholland.com/en-gb/home/legal-notices for New Holland brand.
II. GRANT OF LICENSE AND LICENSE RESTRICTIONS
1. Limited License. Subject to your compliance with the terms of this Agreement, including the Payment Terms (if applicable), CNH grants you a limited, worldwide, non-exclusive, non-transferable, non-assignable license (without the right to sublicense) to access and use the Telematics Software and the Telematics Service for the duration of this Agreement, only in a commercially reasonable manner for your legitimate internal business purposes, in accordance with the terms and conditions of this Agreement, and only upon: (1) your purchase or activation of the Telematics Service; and (2) your Acceptance of this Agreement and acknowledgement of the Privacy Statements without modification. The Telematics Service is sold to you for your use solely and wholly over land in the agricultural market. It is specifically understood that the Telematics Service will not be utilized in any offshore dynamic positioning application or in any military application or in conjunction with any autonomous road vehicle. You agree to (i) access and use of the Telematics Software and Service only in a manner consistent with all applicable local, state, national or international laws, rules, orders, directives, statutes, and regulations (“Laws”), and (ii) use the Telematics Software and Service in a manner consistent with CNH’s documentation. You assume full responsibility for the actions of any third party that you authorize or allow to access the Telematics Software or Service. For clarity, the Telematics Software is licensed, not sold, to you. You will not permit any third party to use the Telematics Service in connection with the design, production, operation, or storage or chemical, biological or nuclear weapons of any kind. You will not activate the Telematics Service in any US embargoed countries and the onus is on you to ensure that you familiarize yourself with the US embargoed countries in accordance with relevant legislation. If the Telematics Service is used in a US embargoed country such use is deemed to be a material breach of this clause and in such an event, the Telematics Service shall be deactivated and this Agreement shall be terminated.
2. Compliance with Laws; Consents. You agree that you: (i) have fully complied and will fully comply with all applicable Laws (including anti-bribery and data privacy laws), including those relating to the use of the Telematics Service and the transmission and use of data and information provided to CNH, and (ii) have provided and will provide all required notices to and have obtained and will obtain all necessary consents from your authorized users and other relevant individuals, including with regard to the transmission and use of data and information by the Telematics Service and CNH.
3. No Reverse Engineering. The license described in Section II.1 above does not include any right to any source code of any Telematics Software. Except and to the extent required or permitted by Law, you and your authorized users shall not reverse engineer, disassemble, decompile or make any attempt to discover the source code of the Telematics Service, Portal, or Telematics Software. Information necessary to achieve interoperability and security testing of the Telematics Service, Portal, or Telematics Software is available from CNH upon request.
4. Security Measures. The Telematics Software may be protected by certain security measures, including but not limited to technological measures under the Digital Millennium Copyright Act, copyright protection measures, and application enabling mechanisms such as passwords, key codes, encryption, or other security devices or measures including as required by the Laws from time to time (“Security Measures”). You and your authorized users agree that you will not: (i) defeat or attempt to defeat the Security Measures that protect the Telematics Software and that would constitute a violation under applicable Law related to circumvention of technological measures that protect software, copyrighted works, or other intellectual property rights, or (ii) traffic in, purchase, manufacture, design, import, offer, sell or distribute any circumvention or hacking device that is designed to circumvent or hack the Security Measures or the Telematics Software to the extent unlawful under applicable Laws.
5. No Misuse. You and your authorized users agree that you will not use the Telematics Service, Portal, or Telematics Software for any purpose that is unlawful or not expressly permitted by this Agreement. We may restrict or terminate use of the Telematics Service, Portal, or Telematics Software by you and your authorized users, in whole or in part, if there is a reasonable suspicion of, or any actual, misuse or fraudulent use by you or your authorized users. You will be responsible for any costs incurred by us or any other party (including attorneys’ fees) as a result of such misuse or fraudulent use. You and your authorized users may not:
(i) damage, disable, overburden, interfere with, disrupt or impair the Telematics Service, the Portal, Telematics Software, or servers or networks connected to them, in any manner;
(ii) use the Telematics Service or Portal in a “service bureau” or similar structure whereby third parties obtain or use of the Telematics Service through you, including without limitation as part of a service competitive with any service offered by CNH;
(iii) interfere with any other party’s access, use or enjoyment of the Telematics Service, the Portal, or Telematics Software in any manner;
(iv) intentionally or unintentionally violate any Law, including, but not limited to, Laws related to export;
(v) impersonate any person or entity, or misrepresent your affiliation with a person or entity, or provide any false or misleading information to CNH;
(vi) use the Telematics Service or Portal to convey obscene, prurient, defamatory, salacious, or unlawful information or copyrighted content that is not your property or to violate the rights of any third party;
(vii) use the Telematics Service without permission on a stolen or lost device;
(viii) engage in unauthorized access to the Telematics Service or the Portal;
(ix) use the Telematics Service to provide voice over IP services;
(x) use any scheme, false representation or false credit device, with the intent to avoid payment, in whole or in part, for the Telematics Service;
(xi) except to the extent otherwise reasonably necessary to exercise the license rights granted to you under Section II.1 above, reproduce, modify, publish, distribute, publicly display, adapt, alter, translate, disclose, perform, or create derivative works from the Telematics Software (or any part thereof), or any Third Party Materials (as defined below);
(xii) remove, obscure, or alter any copyright, trademark, or other proprietary notices embedded in, affixed to, or accessed in conjunction with the Telematics Software; or
(xiii) track the location of any person or device without first informing and obtaining the necessary approvals from such person, owner, or person in control or possession of such device to permit you and CNH to track such location.
6. Third Party Materials. The Telematics Software or Service may be bundled or used with software or services that are provided by third parties (“Third Party Materials”). Third Party Materials are not governed by this Agreement, but may be governed by such third parties’ terms of use or other agreements. CNH will use reasonable efforts to notify you of events affecting Third Party Materials that CNH bundles with the Telematics Software or Service and that may impact your use of the Telematics Service or Portal. HOWEVER, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, CNH EXPRESSLY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY (AND YOU WILL NOT HOLD OR ATTEMPT TO HOLD CNH RESPONSIBLE OR LIABLE) IN CONNECTION WITH THE THIRD PARTY MATERIALS OR USE THEREOF BY YOU OR ANY AUTHORIZED USER.
7. Transfer of Equipment. You agree that you will not assign, sublicense, transfer, pledge, lease, rent, or share your rights under this Agreement, except that if you permanently transfer ownership of an Equipment activated under your account-level Subscription, then you may also permanently transfer all of your rights under this Agreement; provided that you (i) notify such transferee of the existence of this Agreement and the Telematics Service, and of the transfer of data in accordance with this Agreement, (ii) notify such transferee that it or its authorized users must enter into this Agreement with CNH if they wish to continue to use the Telematics Service, Correction Service, the Portal, or Telematics Software, and (iii) promptly notify CNH of such transfer. You will remain responsible for your Subscription to the Telematics Service and any use of such service, or the Correction Service, including by each Equipment activated under the Subscription, until you have contacted CNH. You must also notify CNH if you would like to have any of your data deleted from your account or your Equipment prior to the permanent transfer of ownership of your Equipment to the transferee.
III. TELEMATICS SERVICES
1. Nature of the Telematics Service. You acknowledge that in order for the Telematics Service to be provided, the telematics device in each of your Equipment will transmit certain data through the media of radio waves, cellular, satellite, GPS, Web, or similar technology. The type, granularity, and volume of data collected will vary by machine type and may change at any time without notice. You consent to such transmission and waive any claims that you may have against us as to the availability, quality and performance of the media transmitting the data, other than those claims which cannot be waived or excluded under any applicable Laws. You understand that the Telematics Service is made available to you on the basis of several factors, including without limitation, Web access, cellular connectivity, computer usage, your Equipment, your operating system, your Equipment’s telematics device being activated and maintained by you, and the package of the Telematics Service you have purchased.
2. SMS Messaging and Emails. If you elect to receive short message service (“SMS”) messages on your mobile device or email messages as part of the Telematics Services, you hereby consent to receiving SMS messages and email messages from CNH. Election to receive SMS messages is not a condition to receive the Telematics Service. To elect to receive SMS messages on a mobile device, you must be, and warrant that you are, the authorized user of the mobile device. The number of SMS messages received by you will vary depending upon machine activity. Your receipt of SMS messages may result in you incurring additional message or data fee(s) from your wireless carrier for which you are solely liable.
3. The Portal. During the term of this Agreement, you will have access to and use of the Portal. CNH will assign to you username(s) and password(s) for your use of the Portal. You will control access to and use of your username(s) and password(s), and you will promptly notify CNH of any unauthorized use of your username(s) or password(s). You will not (i) permit access to or use of the Portal via your username and password by any third party, or (ii) assign or transfer access to the Portal or use the Portal, except as set forth in this Agreement. If you desire to provide access to your account to a third party, you may grant such access via the Portal after the third party creates its own username and password. You assume full responsibility for the actions of any third party to which you permit access with respect to the Portal.
4. Payment. If you have purchased the Telematics Service, you agree to pay all applicable charges and fees in accordance with the payment terms applicable to the Telematics Service Subscription plan that you purchase (“Payment Terms”). Except as otherwise provided in the applicable Payment Terms, renewals of the Telematics Service will be at the applicable list price in effect at the time of the applicable renewal.
5. Service Activation. To enable you to use the Telematics Service on a particular Portal, you must first create an account for a Portal (each an “Account”). Activation will ordinarily occur during Account creation when you accept the terms of this Agreement. Activation may also be performed by CNH or a dealer acting at the direction of and on behalf of you. At the time of activation, the Telematics Service for each Equipment will be enabled and will continue to be in effect until the end of your Subscription, when you close your Account or if your Telematics Services is otherwise suspended or terminated pursuant to Section IX of this Agreement. You agree that any new Equipment added to your Account will be subject to the terms of this Agreement. If you have an existing Account with us for a particular Portal, you agree that your use of the Telematics Service for each Equipment is subject to this Agreement.
IV. DATA
1. Data Collection. CNH will collect and process Personal Data from you for the purpose of creating and administering your account, and by using the Service, your Equipment will collect, record, and transmit certain data to CNH, including Machine Data and Agronomic Data. Personal Data, Machine Data and Agronomic Data are defined in the Telematics Privacy Statement. This Agreement does not grant CNH any rights to your data that we may receive under this Agreement except for the rights of use described in this Agreement and in the Privacy Statements. Certain Machine Data is proprietary to CNH. By entering into this Agreement, you acknowledge and accept the responsibility to inform drivers/users/operators of connected Equipment that Equipment’s technical information and geolocation of data can be regarded as to personal information and about the processing activities to be carried out by CNH in its quality of Controller.
2. Data Sharing with Dealers. Dealers authorized by CNH or you to access and use your data made available through the Portal and the Service are called “Authorized Dealers”. CNH may provide Authorized Dealers information and data for the purpose of servicing your Equipment, including machine diagnostics, remote servicing, and machine component software updates, as further described in the Telematics Privacy Statement. Authorized Dealers may process and use your or your authorized user(s)' Personal Data only to provide a service in connection with your Equipment and in accordance with the Privacy Statements and applicable Laws.
3. Use of Data. You acknowledge that you have been notified of our Privacy Statements, and you hereby grant CNH the right to process, use, disclose and transfer data transmitted to CNH to provide you with the Service, among other uses, including any other purposes described in the Privacy Statements, in compliance with applicable Laws. This permission extends to third parties engaged by CNH in connection with providing the Service.
4. Derived Data. You and your authorized users understand that CNH may aggregate, compile or derive data collected in connection with the Service such that a specific user or machine is no longer identifiable (“Derived Data”). Derived Data does not consist, contain, or relate to Personal Data. CNH owns all such Derived Data. To the extent that you obtain any right, title or interest in such Derived Data, you hereby agree to irrevocably assign such right, title and interest to CNH. Such Derived Data may be accessed and used by CNH for any purpose, and may be shared by CNH with third parties, including but not limited to our Authorized Dealers, our affiliates and their authorized dealers, the manufacturer of the Equipment, and other business partners. CNH shall use all reasonable efforts to implement and maintain measures to ensure that Derived Data remain anonymous.
5. Restriction of Data Access. While you subscribe to the Telematics Service, you may not restrict CNH’s access to and use of your data, except as permitted by applicable Laws and as provided below.
a. Machine Data. If you desire to restrict CNH’s access to Machine Data governed by this Agreement, you must cancel the Telematics Service by terminating this Agreement (as provided in Section IX below), and request via the Portal or an Authorized Dealer that CNH delete the Machine Data available in your account. CNH will effectuate such deletion within a reasonable period of time after your valid request, subject to Section IV(6) below. CNH will continue to have access to Machine Data collected by the Telematics Service prior to you restricting CNH’s access to the Machine Data. Restricting CNH’s access to Machine Data will prevent you from receiving remote machine diagnostics, remote machine servicing or other services from CNH.
b. Agronomic Data. You may restrict CNH’s access to Agronomic Data through the Portal or other services. Removal of CNH’s access to and use of Agronomic Data through such subscriptions or services will also limit your access to Agronomic Data via the Portal and disable your ability to load additional Agronomic Data. You may delete Agronomic Data files as described in Section IV(6) below.
6. Deletion of Data. You may delete any data from your account by deleting the selected data in the Portal or contacting your Authorized Dealer. You may also contact CNH to request that CNH permanently delete data maintained in or under your account on its systems, subject to any records retention or legal requirements.
If you or CNH close your Telematics Service account (e.g., CNH will close your account upon the termination of this Agreement), unless otherwise required by applicable Laws or unless otherwise agreed by CNH, CNH has the option and right to permanently delete any and all information, including data, maintained in or under your account, and you will no longer be able to retrieve any data or other information contained in that account. You acknowledge that to the fullest extent permitted by applicable Laws, CNH has no responsibility for the deletion or failure to store any data or other information that may be submitted to CNH, or that may be maintained or transmitted by the Telematics Service.
7. Transfer of Data. The Telematics Service is administered by CNH from its offices or those of its affiliates at various locations globally. In accordance with applicable Laws, CNH may also make use of an affiliate or one or more external service providers to host the Telematics Service at various locations globally. Consequently, your data that is provided to CNH may be collected, sent, processed and stored outside of Australia and New Zealand (“ANZ”) in which you live and, as a result, may be available to governmental authorities under lawful orders and other Laws applicable in such foreign jurisdictions. CNH will use reasonable means to ensure that such data is protected in these cases, but CNH cannot guarantee that the Laws of any foreign jurisdiction will accord the same degree of protection as the Laws of ANZ.
8. Third-Party Telematics Services. As part of the Telematics Service, you may choose to have the Service communicate, transfer and exchange data between each of your Equipment’s telematics device and certain third-party devices, systems or software to generate custom reports, data or other features (“Third-Party Telematics Services”). CNH does not exercise control over the form or quality of data transmitted by such Third-Party Telematics Services, nor any reports or other data generated by them (collectively, “Third-Party Telematics Services Data”). Therefore, by choosing to use Third-Party Telematics Services, you and your authorized users agree to the following:
(i) You agree to allow CNH and your Equipment’s telematics device to transfer and exchange your data with such Third-Party Telematics Services. You agree that once CNH or your Equipment’s telematics device has initiated such transfer of your data to such Third-Party Telematics Service, to the extent that your data no longer remains in the CNH Telematics Service, your data will no longer be governed by this Agreement or the Privacy Statements; rather, your data may be governed by such third-party supplier’s privacy statement.
(ii) Third-Party Telematics Services are not governed by this Agreement, but may be governed by the third-party supplier’s terms of use or other agreements which you may enter into directly with the Third-Party Telematics Services. You and your authorized users agree that you and they will not hold CNH responsible for access to or use of any Third-Party Telematics Services, including any resulting Third-Party Telematics Services Data.
(iii) You accept any and all limitations in the use and quality of the Third-Party Telematics Services and any Third-Party Telematics Services Data, and agree that CNH is not responsible for the quality or accuracy of, or the inability to receive, access or use Third-Party Telematics Services or any Third-Party Telematics Services Data.
(iv) CNH may control the flow of Third-Party Telematics Services Data transmitted to and from the Telematics Service, and may stop or block the use of any Third-Party Telematics Services or any Third-Party Telematics Services Data that CNH believes may adversely affect the Telematics Service.
(v) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, CNH EXPRESSLY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY (AND YOU WILL NOT HOLD OR ATTEMPT TO HOLD CNH RESPONSIBLE OR LIABLE) IN CONNECTION WITH: (1) YOUR DATA ONCE CNH OR YOUR EQUIPMENT’S TELEMATICS DEVICE HAS INITIATED SUCH TRANSFER OF YOUR DATA TO A THIRD-PARTY TELEMATICS SERVICE (WHETHER DIRECTLY OR INDIRECTLY THROUGH AN INTERMEDIARY SYSTEM); AND (2) ANY THIRD-PARTY TELEMATICS SERVICES OR ANY THIRD-PARTY TELEMATICS SERVICES DATA, INCLUDING BUT NOT LIMITED TO ANY USE BY YOU OR YOUR AUTHORIZED USERS AND ANY RESULTING DAMAGE OR UNAUTHORIZED ACCESS TO OR LOSS OR ALTERATION OF YOUR EQUIPMENT OR DATA.
V. MODIFICATIONS
1. Modification or Discontinuation. To the fullest extent permitted by applicable Laws, CNH may, at any time, modify, suspend or permanently discontinue the Service or the Portal, or any portion of their features, functions or products or associated support, with or without advance notice, for any or no reason. CNH will not be liable to you or to any third party for any such modification, suspension or discontinuance, nor will CNH be obligated to continue offering support for any suspended or discontinued Service, the Portal or portions thereof. By accessing or using the Service or the Portal, you consent to our modification to the Service or the Portal, or any portion of its or their features, functions, products, or associated support. CNH will provide reasonable advance notice for any modification, suspension or discontinuation of the Service or the Portal, which have an adverse and material impact on the essential part of our bargain under this Agreement.
2. Software Updates. You agree that CNH may, at any time, remotely change or update the Telematics Software with or without any advance notice. Such changes or updates may include bug fixes, patches, enhanced or new functions or features, and new versions. Unless otherwise explicitly stated by CNH, any changes and updates to the Telematics Software will continue to be governed by the terms of this Agreement. By accepting this Agreement, you give your express consent to the installation of future software updates.
VII. TELEMATICS SERVICE REQUIREMENTS AND LIMITATIONS
1. Telematics Service Requirements.
(i) General. You understand that, in order for the Service to operate, your Equipment must have a working electrical system and your Equipment and the telematics device on your Equipment must otherwise be in working condition.
(ii) Third Party Communications Systems. In order to operate, the Service requires the use of a proprietary third party communications system, such as that of a telephonic wireless communications carrier or a satellite-based communication system (each, a “Communications Carrier”). CNH HAS NO RESPONSIBILITY OR LIABILITY FOR THE AVAILABILITY, QUALITY OR PERFORMANCE OF (AND THE SERVICE EXCLUDES) WIRELESS OR SATELLITE-BASED COMMUNICATIONS SERVICES OR EQUIPMENT FURNISHED BY THE COMMUNICATIONS CARRIERS. THE COMMUNICATIONS CARRIERS ARE EXCLUSIVELY RESPONSIBLE FOR SUCH SERVICES AND EQUIPMENT.
(iii) Portal. You agree that the Portal requires access to the Web, and you are responsible for the acquisition, configuration, monitoring, maintenance, management, and fees and expenses of your network connection and software and hardware related to your use of the Web, including LAN, computers, modems, and telecommunications devices. CNH is not responsible or in any way liable for the network connection to access the Web or for issues, problems or conditions arising from or related to the network connection, including but not limited to bandwidth issues, signal coverage, network outages, or other conditions that are caused by the Web or network connection.
2. Telematics Legal Requirements. Transmission of information using your Equipment’s telematics device is subject to legal requirements that may vary from location to location, including radiofrequency use authorization. You are responsible for limiting your use of any telematics device to those locations where all legal requirements for their use and the communication network have been satisfied. In the event that your Equipment’s telematics device is located in or relocated to a location where (i) legal requirements are not satisfied or (ii) transmitting or processing of such information across multiple locations would not be legal, CNH disclaims any and all liability related to such failure to comply, and CNH may discontinue the transmission of information from that device.
VII. SUPPORT SERVICES
CNHI and its dealers may offer to provide (but are not obligated under this Agreement to offer or to provide) you with support services related to the Telematics Service. Any such support services may be subject to additional terms and conditions.
VIII. INTELLECTUAL PROPERTY
You and your authorized users understand that the Service and Telematics Software are protected by intellectual property laws and international treaties. As between CNH and you, all rights, title, and interest in and to Telematics Service, the Portal, and Telematics Software are owned by CNH (or its licensors), and nothing contained in this Agreement transfers or assigns any right, title, or interest in the Telematics Service, the Portal, or the Telematics Software, including without limitation any trademark rights, to you or your authorized users. You and your authorized users hereby agree and acknowledge that CNH and its licensors (and as applicable, third-party suppliers) own all right, title and interest in and to all intellectual property rights in connection with or relating to the Telematics Service, the Portal, and the Telematics Software, and you hereby assign any and all rights, title and interest to such intellectual property rights to CNH as required from time to time in order to perfect any such right, title or interest.
X. SUSPENSION AND TERMINATION
1. Suspension/Termination For Cause. CNH may suspend or terminate your and your authorized users’ license to use the Telematics Service, Correction Service and/or Telematics Software, without notice and without liability to you, if:
(i) you or your authorized users violate the terms of this Agreement or any other valid agreement with CNH for the use of the Telematics Service, Correction Service, the Portal, or Telematics Software; or
(ii) CNH has reason to believe that you, your authorized users, any of your agents or any third party is abusing the Telematics Service, Correction Service, the Portal, or Telematics Software, or using it fraudulently or unlawfully.
2. Termination for Convenience by CNH. CNH may also suspend or terminate your Subscription to the Telematics Services if you fail to pay fees or other amounts owed when due. Upon any termination of this Agreement under this paragraph, you will not be entitled to any refund of any payments made by you (if applicable) for the Telematics Services and you will no longer have access to your data via the Portal. Termination for Convenience by CNH. Subject to any additional notice requirements under applicable Laws, CNH may terminate this Agreement upon thirty (30) days’ prior notice to you. Upon any termination of this Agreement under this paragraph, CNH will refund to you a prorated portion of any payments made by you (if applicable) for the unused Service and you will no longer have access to your data via the Portal. Such reimbursement will be CNH’s sole liability to you for any such termination for convenience by CNH.
3. Termination for Convenience by You. You may terminate this Agreement upon thirty (30) days’ prior notice to CNH. Upon any termination of this Agreement under this paragraph, you will not be entitled to any refund of any payments made by you (if applicable) for the Services and you will no longer have access to your data via the Portal.
X. WARRANTIES
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, CNH, ITS DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, AND OTHER SUPPLIERS, DEALERS, AFFILIATES AND AGENTS (EACH A “CNH PARTY” AND COLLECTIVELY THE “CNH PARTIES”) DISCLAIM ANY RESPONSIBILITY AND LIABILITY FOR ANY HARM RESULTING FROM YOUR OR YOUR AUTHORIZED USERS’ USE OF THE SERVICE, PORTAL, OR TELEMATICS SOFTWARE. YOU AND YOUR AUTHORIZED USERS EXPRESSLY UNDERSTAND AND AGREE THAT: (a) THE TELEMATICS SERVICE, CORRECTION SERVICE, PORTAL, AND THE TELEMATICS SOFTWARE ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. RECEPTION AND/OR ACCURACY OF THE SERVICE IS DEPENDANT ON YOUR EQUIPMENT AND LOCATION; (b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, THE CNH PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, (i) WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT; (ii) WARRANTIES ARISING THROUGH THE COURSE OF DEALINGS OR USAGE OF TRADE; (iii) WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE TELEMATICS SERVICE, CORRECTION SERVICE, PORTAL, OR TELEMATICS SOFTWARE; AND (iv) WARRANTIES THAT ACCESS TO OR USE OF THE TELEMATICS SERVICE, CORRECTION SERVICE, PORTAL, OR TELEMATICS SOFTWARE WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED OR ERROR-FREE; AND (c) THAT YOU WILL ACCESS AND USE THE TELEMATICS SERVICE, CORRECTION SERVICE, THE TELEMATICS SOFTWARE, AND PORTAL AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM(S) OR EQUIPMENT OR LOSS OR ALTERATION OF DATA THAT RESULTS FROM SUCH ACCESS AND USE.
Without limiting the foregoing, due to variables beyond CNH’s reasonable control with respect to the inherent positional inaccuracies of global navigation satellite systems (each such system, “GNSS”) as provided for by the Correction Service, CNH will not be responsible or in any way liable for the operation or failure of operation of GNSS satellites or the availability of GNSS satellite signals. You are aware that interruptions in the provisions of the Service may occur from time to time and therefore the availability of the Service is not guaranteed. You acknowledge that the US Department of Defense Global Positioning System (“GPS”) and any other positioning constellations are subject to performance fluctuations. You recognize that CNH has no control over any part of GPS or other positioning constellations, space and ground segments and is used at your own risk. Non-performance of the Service attributable to interference to the Service transmissions from atmospheric or other sources or any cause or source other than the fault or neglect of CNH shall not be deemed to be a breakdown and/or failure of the Service. CNH shall have no responsibility or liability to you and you shall save, defend, indemnify and hold harmless CNH on demand, for any and all costs, claims, demands, proceedings, loss, actions, damages, expenses and liabilities which CNH may suffer, howsoever arising, by reason of the unavailability or inaccuracy of the Service irrespective of the negligence, breach of duty whether statutory or otherwise of CNH.
THERE ARE NO WARRANTIES THAT EXTEND BEYOND THOSE EXPRESSLY GRANTED IN THIS AGREEMENT. MANDATORY LAW IN SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
XI. Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL THE CNH PARTIES BE RESPONSIBLE OR LIABLE TO YOU, YOUR AUTHORIZED USERS OR A THIRD PARTY FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, THIRD PARTY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF DATA (INCLUDING AS A RESULT OF TELEMATICS SOFTWARE UPDATES OR CHANGES), LOSS OF BUSINESS INFORMATION, VIRUS INFECTIONS, SYSTEM OUTAGES AND THE LIKE, ARISING OUT OF, BASED ON OR RESULTING FROM THIS AGREEMENT OR YOUR OR YOUR AUTHORIZED USERS’ ACCESS TO, USE OF, MISUSE OF OR INABILITY TO USE THE TELEMATICS SERVICE, CORRECTION SERICE, PORTAL, OR THE TELEMATICS SOFTWARE (INCLUDING LOSSES OR DAMAGES ARISING FROM THEIR INTERRUPTION OR TRANSMISSION ERRORS (INCLUDING LOCATION DATA INACCURACIES), DEFECTS, OR ANY OTHER CAUSES), EVEN IF CNH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING DAMAGES INCURRED BY THIRD PARTIES). CNH DOES NOT ASSUME AND WILL NOT HAVE ANY RESPONSIBILITY OR LIABILITY ARISING FROM EVENTS BEYOND ITS CONTROL OR THE CONTROL OF ITS SUBCONTRACTORS, LICENSORS OR BUSINESS PARTNERS, INCLUDING EVENTS SUCH AS ACTS OF GOD, ACTS OF ANY GOVERNMENTAL ENTITY, ACTS OF PUBLIC ENEMY, STRIKES OR WEATHER CONDITIONS. THE EXCLUSION OF DAMAGES UNDER THIS SECTION XI IS INDEPENDENT OF ANY REMEDY PROVIDED UNDER THIS AGREEMENT AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER DAMAGES ARISE FROM BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION. TO THE EXTENT THAT APPLICABLE LAW DOES NOT PROHIBIT SUCH EXCLUSIONS AND LIMITATIONS, IN NO EVENT WILL CNH’s TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU TO CNH WITHIN THE 12 MONTHS PRIOR TO THE MOST RECENTLY ENDED MONTH FOR YOUR ACCESS OR USE OF THE SERVICE. CNH'S LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH YOU CONTRIBUTED TO THE DAMAGE, LOSS OR CAUSE OF ACTION.
THE PRECEDING LIMITATIONS OF LIABILITY DO NOT APPLY TO LIABILITIES THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS, SUCH AS IN THE EVENT OF STATUTORILY MANDATED LIABILITY (INCLUDING LIABILITY UNDER APPLICABLE PRODUCT LIABILITY LAW) OR IN THE EVENT OF PERSONAL INJURY ARISING SOLELY FROM A CNH PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
If applicable Laws imply warranties or conditions or impose guarantees or obligations on CNH which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent ("Non-Excludable Rights"), this Agreement must be read subject to these Laws, and nothing in the Agreement is intended to exclude, restrict or modify your Non-Excludable Rights. If these Laws apply, then to the extent permitted by applicable Laws, CNH limits its liability in respect of any claim under those Laws, (a) in the case of goods, at CNH's option, to (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of such goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of having the goods repaired, and (b) in the case of services and at CNH's option, to: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied.
XII. INDEMNITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UPON CNH’S REQUEST, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS EACH OF THE CNH PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, DEMANDS, ACTIONS OR OTHER PROCEEDINGS BROUGHT AGAINST IT BY ANY THIRD PARTY DUE TO, ARISING OUT OF OR RELATED TO YOUR OR YOUR AUTHORIZED USERS’ (A) USE OF THE TELEMATICS SERVICE, CORRECTION SERVICE, PORTAL, OR THE TELEMATICS SOFTWARE (INCLUDING IN CONNECTION WITH TRACKING THE LOCATION OF ANY PERSON OR DEVICE), (B) VIOLATION OF THIS AGREEMENT, (C) FAILURE TO PROVIDE NECESSARY NOTICES OR OBTAIN NECESSARY CONSENTS FROM AUTHORIZED USERS OR OTHER INDIVIDUALS REGARDING THE TELEMATICS SERVICE, CORRECTION SERVICE, PORTAL, OR THE TELEMATICS SOFTWARE (INCLUDING IN CONNECTION WITH TRACKING THE LOCATION OF ANY PERSON OR DEVICE), AND (D) VIOLATION OF ANY LAW OR THIRD PARTY RIGHTS (E ) ANY LOSS OR DAMAGE ARISING OUT OF THE USE OR APPLICATION OF THE TELEMATICS SERVICE, CORRECTION SERVICE, PORTAL OR TELEMATICS SOFTWARE BY ANY PARTY OTHER THAN YOU (F) PERSONAL INJURY INCLUDING FATAL INJURY AND DISEASE TO ANY OFFICER, EMPLOYEE OR AGENT OF YOU (G) LOSS OF OR DAMAGE TO OR LOSS OF USE TO YOUR PROPERTY (H) PERSONAL INJURY INCLUDING FATAL INJURY AND DISEASE OR LOSS OF OR DAMAGE TO OR LOSS OF USE OF THE PROPERTY OF ANY THIRD PARTY; AND (I) POLLUTION ORIGINATING FROM THE PROPERTY OF YOU OR ANY THIRD PARTY. You will pay any and all costs, damages and expenses, including, without limitation, reasonable attorneys’ fees and costs awarded against or otherwise incurred by the CNH Parties in connection with or arising from any such claim, lawsuit, action, demand or other proceeding. A CNH Party may, at its own expense, assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to cooperate with such CNH Party in asserting any available defenses.
XIII. OTHER
1. Electronic Signature and Disclosure Consent Notice. You agree to the use of electronic documents and records in connection with this Agreement, the Service, and the Portal. You agree that all such documents and records that CNH provides to you electronically satisfy any requirement that these documents and records be in writing. You may (i) obtain a paper copy of any document or record, (ii) withdraw your consent to the use of electronic documents and records, and (iii) update your contact information, by contacting CNH as described on the CNH website. To receive or access electronic documents and records, you must have a compatible and functional in-cab display or other software capable of displaying PDF files. To retain documents and records, your device must have the ability to download and store PDF files. Your access to this page verifies that your system and device meets the above receipt, access, and retention requirements.
2. Choice of Law and Dispute Resolution. This Agreement is governed by and construed in accordance with the laws of the State of New South Wales, Australia and applicable Australian federal law without reference to “conflicts of laws” provisions or principles.
You agree that any dispute resolution proceedings will be conducted only on an individual basis and you expressly waive the right to request or maintain any class-wide, representative or consolidated actions.
If and to the extent a lawsuit or court proceeding is permitted under this Agreement, then to the extent permissible under applicable Laws, you hereby consent and agree to the exclusive jurisdiction of, and venue in, the state and federal courts located in New South Wales, Australia.
3. Import and Export Compliance. You acknowledge that all system hardware, system software, proprietary data, know-how, or other data or information (herein referred to as "Products") obtained from CNH may be subject to the import and export control Laws of one or more countries and, accordingly, their import, export, re-export, and transfer may be restricted or prohibited. You agree to strictly comply with all such Laws and not to directly or indirectly import, export, re-export, transfer, or cause to be imported, exported, re-exported, or transferred, any such Products to any destination, entity, or persons prohibited or restricted under any Law, unless you have first obtained prior written consent of CNH and any applicable governmental entity, either in writing or as provided by applicable Laws, as the same may be amended from time to time. For greater certainty, without prior written consent as described above, you are not permitted to use or otherwise import, export or re-export the Telematics Software, Equipment, Service or Data in any way that violates any applicable laws or security programs, including into (i) temporarily occupied territories and territories of antiterrorist operation, or (ii) to any individuals and legal entities on a list of personalized special economic and other restrictive measures (sanctions) approved by any applicable government.
4. U.S. Government Restricted Rights and Commercial Computer Software. The Product is deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to DFAR Section 227.7202 and FAR Section 12.212 (and any successor sections). Use of the Product including, but not limited to, its reproduction and display, by the United States of America and any of its instrumentalities, regardless of form, is governed by this Agreement.
5. Entire Agreement. This Agreement, the terms of the Privacy Statements, and any other valid agreement between you and CNH for use of the Telematics Service, Correction Service, Portal, and the Telematics Software constitute the entire agreement between you and CNH and govern your use of the Telematics Service, Correction Service, Portal, and the Telematics Software, superseding any and all prior agreements, negotiations and communications (whether written, oral or electronic) between you and CNH with respect to such subject matter. Except as otherwise expressly set forth otherwise in this Agreement, no change, modification, or waiver of this Agreement will be binding on CNH unless made in writing, with CNH’s approval. Any rights not otherwise expressly granted under this Agreement are reserved by CNH and its licensors. The failure of CNH to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any part of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, that portion shall be construed in a manner consistent with applicable Laws to reflect, as nearly as possible, the original intentions of CNH, and the remaining portions shall remain in full force and effect. No third party shall have the right to enforce any provision of this Agreement.
SECTIONS IV, VIII, X, AND XI FORM AN ESSENTIAL PART OF OUR BARGAIN.
6. Modification of Agreement. To the extent permissible under applicable Laws, CNH may modify and update this Agreement at any time. CNH will provide you with reasonable notice of any such changes. CHNI may notify you of material changes to this Agreement by contacting you via your contact information provided in your account. Your continued use of the Telematics Service, Correction Service, Portal, or the Telematics Software following the posting of any such changes will constitute confirmation of your acceptance of the updated Agreement, unless you notify CNH in writing within 30 days of the notice that you do not accept the updated Agreement. In that case, this Agreement in effect at the time of your last agreement to or acceptance of this Agreement will remain in effect, unless CNH, at its option, exercises its right to terminate this Agreement.
7. Time Limits for Pursuing Claims and Disputes. You agree that to the extent permissible under applicable Laws, any claim or cause of action arising out of or related to use of the Telematics Service, Correction Service, Portal, or the Telematics Software must be brought either in arbitration or in court in accordance with Section XIII(2) within one (1) year after such claim or cause of action arose or be forever barred.
8. Official Language. The official language of this Agreement is English.