PLEASE READ THIS AGREEMENT CAREFULLY BEFORE BUYING A SUBSCRIPTION TO, ACCESSING, ACTIVATING OR USING CNH INDUSTRIAL® TELEMATICS SERVICE, INCLUDING AFS CONNECT™ AND MYPLMCONNECT. THIS AGREEMENT IS A BINDING LEGAL CONTRACT BETWEEN YOU OR THE ENTITY YOU REPRESENT (“YOU”) AND CNH INDUSTRIAL AMERICA LLC AND ITS GLOBAL AFFILIATES AND RELATED ENTITIES (“CNHI”, “WE” OR “US”).
I. INTRODUCTION
Thank you for your interest in a subscription to the Telematics Service. The “Telematics Service” (or the “Service”) is CNH Industrial® telematics service, including AFS Connect™ and MYPLMCONNECT, remote display access, data and software management services, wireless data transfer, location history, and other functionalities as further described in CNHI’s standard documentation and in each case to the extent included in your Subscription. The Telematics Service utilizes the telematics device in your machine or equipment provided by CNHI (“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 Industrial® Telematics Subscription End User License Agreement (this “Agreement”) applies to (i) your paid, trial, or other subscription (“Subscription”) to the Telematics Service and the website available to subscribers to the Telematics Service and other related websites in order for such subscribers to access certain content, functionality, reports and services, and certain of their data (collectively, the “Site”), (ii) the use of, and your consent to the use of, certain information or data that may be collected, recorded, and transmitted from and about the Equipment associated with Telematics Service, and your use of the Telematics Software. You understand that by using the Telematics Service, CNHI and its business associates may collect and use data to provide you with the Telematics 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 LAW, 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 CNH Industrial® AFS and MYPLMCONNECT Privacy Statement (“Telematics Privacy Statement”) and the CNH Industrial Privacy Statement (the “CNH Privacy Statement”, and together with the Telematics Services Privacy Statement, the “Privacy Statements”). A current copy of the CNH Privacy Statement can be accessed and viewed at any time at www.cnhindustrial.com, and a current copy of the Telematics Privacy Statement can be viewed at any time at www.caseih.com or www.newholland.com.
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), CNHI 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. 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 CNHI’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.
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 CNHI, 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 CNHI.
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, Site, or Telematics Software. Information necessary to achieve interoperability and security testing of the Telematics Service, Site, or Telematics Software is available from CNHI 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 (the “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 Law.
5. No Misuse. You and your authorized users agree that you will not use the Telematics Service, Site, 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, Site, 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 Site, Telematics Software, or servers or networks connected to them, in any manner;
(ii) use the Telematics Service or Site 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 CNHI;
(iii) interfere with any other party’s access, use or enjoyment of the Telematics Service, the Site, 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 CNHI;
(vi) use the Telematics Service or Site 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 Site;
(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 CNHI 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. CNHI will use reasonable efforts to notify you of events affecting Third Party Materials that CNHI bundles with the Telematics Software or Service and that may impact your use of the Telematics Service or Site. HOWEVER, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CNHI EXPRESSLY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY (AND YOU WILL NOT HOLD OR ATTEMPT TO HOLD CNHI 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 the Equipment, 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 CNHI if they wish to continue to use the Telematics Service, the Site, or Telematics Software, and (iii) promptly notify CNHI of such transfer. You will remain responsible for your Subscription to the Telematics Service and any use of such service, including by the Equipment, until you have contacted CNHI. You must also notify CNHI 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 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 under applicable Law. 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 CNHI. 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 Site. During the term of this Agreement, you will have access to and use of the Site. CNHI will assign to you user name(s) and password(s) for your use of the Site. You will control access to and use of your user name(s) and password(s), and you will promptly notify CNHI of any unauthorized use of your user name(s) or password(s). You will not (i) permit access to or use of the Site via your user name and password by any third party, or (ii) assign or transfer access to the Site or use the Site, 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 Site after the third party creates its own user name and password. You assume full responsibility for the actions of any third party to which you permit access with respect to the Site.
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.
IV. DATA
1. Data Collection. CNHI will collect and process Personal Data from you for the purpose of creating and administering your account, and by using the Telematics Service, your Equipment will collect, record, and transmit certain data to CNHI, 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 CNHI 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 CNHI.
2. Data Sharing with Dealers. Dealers authorized by CNHI or you to access and use your data made available through the Site and the Telematics Service are called “Authorized Dealers”. CNHI 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 Law.
3. Use of Data. You acknowledge that you have been notified of our Privacy Statements, and you hereby grant CNHI the right to process, use, disclose and transfer data transmitted to CNHI to provide you with the Telematics Service, among other uses, including any other purposes described in the Privacy Statements, in compliance with applicable Law. This permission extends to third parties engaged by CNHI in connection with providing the Telematics Service.
4. Derived Data. You and your authorized users understand that CNHI may aggregate, compile or derive data collected in connection with the Telematics 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. CNHI shall own 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 CNHI. Such Derived Data may be accessed and used by CNHI for any purpose, and may be shared by CNHI with third parties, including but not limited to our dealers, our affiliates and their dealers, the manufacturer of the Equipment, and other business partners. CNHI shall 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 CNHI’s access to and use of your data, except as permitted by applicable Law and as provided below.
a. Machine Data. If you desire to restrict CNHI’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 Site or a CNHI dealer that CNHI delete the Machine Data available in your account. CNHI will effectuate such deletion within a reasonable period of time after your valid request, subject to Section IV(6) below. CNHI 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 CNHI.
b. Agronomic Data. You may restrict CNHI’s access to Agronomic Data through the Site or other services. Removal of CNHI’s access to and use of Agronomic Data through such subscriptions or services will also limit your access to Agronomic Data via the Site 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 Site or contacting your dealer. You may also contact CNHI to request that CNHI permanently delete data maintained in or under your account on its systems, subject to any records retention or legal requirements.
If you or CNHI close your Telematics Service account (e.g., CNHI will close your account upon the termination of this Agreement), unless otherwise required by applicable Law or unless otherwise agreed by CNHI, CNHI 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 Law, CNHI has no responsibility for the deletion or failure to store any data or other information that may be submitted to CNHI, or that may be maintained or transmitted by the Telematics Service.
Notwithstanding the foregoing, CNHI shall not have any obligation to delete any Derived Data.
7. Transfer of Data. The Telematics Service is administered by CNHI from its offices or those of its affiliates at various locations globally. In accordance with applicable Law, CNHI 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 CNHI may be collected, sent, processed and stored outside of the country 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. CNHI will use reasonable means to ensure that such data is protected in these cases, but CNHI cannot guarantee that the Laws of any foreign jurisdiction will accord the same degree of protection as the Laws of your country.
8. Third-Party Telematics Services. As part of the Telematics Service, you may choose to have the Service communicate, transfer and exchange data between 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”). CNHI 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 CNHI and your Equipment’s telematics device to transfer and exchange your data with such Third-Party Telematics Services. You agree that once CNHI 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 CNHI 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 CNHI 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 CNHI 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) CNHI 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 CNHI believes may adversely affect the Telematics Service.
(v) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CNHI EXPRESSLY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY (AND YOU WILL NOT HOLD OR ATTEMPT TO HOLD CNHI RESPONSIBLE OR LIABLE) IN CONNECTION WITH: (1) YOUR DATA ONCE CNHI 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 Law, CNHI may, at any time, modify, suspend or permanently discontinue the Telematics Service or the Site, or any portion of their features, functions or products or associated support, with or without advance notice, for any or no reason. CNHI will not be liable to you or to any third party for any such modification, suspension or discontinuance, nor will CNHI be obligated to continue offering support for any suspended or discontinued Telematics Service, the Site or portions thereof. By accessing or using the Telematics Service or the Site, you consent to our modification to the Telematics Service or the Site, or any portion of its or their features, functions, products, or associated support. CNHI will provide reasonable advance notice for any modification, suspension or discontinuation of the Telematics Service or the Site, which have an adverse and material impact on the essential part of our bargain under this Agreement.
2. Software Updates. You agree that CNHI 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 CNHI, 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.
VI. TELEMATICS SERVICE REQUIREMENTS AND LIMITATIONS
1. Telematics Service Requirements.
i) General. You understand that, in order for the Telematics 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 Telematics 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”). CNHI HAS NO RESPONSIBILITY FOR THE AVAILABILITY, QUALITY OR PERFORMANCE OF (AND THE TELEMATICS 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) Site. You agree that the Site 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. CNHI is not responsible 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, CNHI disclaims any and all liability related to such failure to comply, and CNHI 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 Telematics Service and Telematics Software are protected by intellectual property laws and international treaties. As between CNHI and you, all rights, title, and interest in and to Telematics Service, the Site, and Telematics Software are owned by CNHI (or its licensors), and nothing contained in this Agreement transfers or assigns any right, title, or interest in the Telematics Service, the Site, 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 CNHI 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 Site, and the Telematics Software.
IX. SUSPENSION AND TERMINATION
1. Suspension/Termination For Cause. CNHI may suspend or terminate your and your authorized users’ license to use the Telematics Service and/or Telematics Software, without liability, if:
(i) you or your authorized users violate the terms of this Agreement or any other valid agreement with CNHI for the use of the Telematics Service, the Site, or Telematics Software; or
(ii) CNHI has reason to believe that you, your authorized users, any of your agents or any third party is abusing the Telematics Service, the Site, or Telematics Software, or using it fraudulently or unlawfully.
CNHI 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 Site.
2. Termination for Convenience by CNHI. Subject to any additional notice requirements under applicable Law, CNHI may terminate this Agreement upon thirty (30) days’ prior notice to you. Upon any termination of this Agreement under this paragraph, CNHI will refund to you a prorated portion of any payments made by you (if applicable) for the unused Telematics Service and you will no longer have access to your data via the Site. Such reimbursement will be CNHI’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 CNHI. 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 Site.
X. WARRANTIES
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CNHI, ITS DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, AND OTHER SUPPLIERS, DEALERS, AFFILIATES AND AGENTS (EACH A “CNHI PARTY” AND COLLECTIVELY THE “CNHI PARTIES”) DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR OR YOUR AUTHORIZED USERS’ USE OF THE TELEMATICS SERVICE, THE SITE, OR TELEMATICS SOFTWARE. YOU AND YOUR AUTHORIZED USERS EXPRESSLY UNDERSTAND AND AGREE THAT: (a) THE TELEMATICS SERVICE, THE SITE, 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; (b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE CNHI 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, SITE, OR TELEMATICS SOFTWARE; AND (iv) WARRANTIES THAT ACCESS TO OR USE OF THE TELEMATICS SERVICE, SITE, OR TELEMATICS SOFTWARE WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED OR ERROR-FREE; AND (c) THAT YOU WILL ACCESS AND USE THE TELEMATICS SERVICE, THE TELEMATICS SOFTWARE, AND THE SITE 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 CNHI’s reasonable control with respect to the inherent positional inaccuracies of global navigation satellite systems (each such system, “GNSS”), you acknowledge that CNHI will not be responsible for the operation or failure of operation of GNSS satellites or the availability of GNSS satellite signals.
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 CNHI PARTIES BE 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, THE SITE, 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 CNHI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING DAMAGES INCURRED BY THIRD PARTIES). CNHI DOES NOT ASSUME AND WILL NOT HAVE ANY 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 CNHI’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 CNHI WITHIN THE 12 MONTHS PRIOR TO THE MOST RECENTLY ENDED MONTH FOR YOUR ACCESS OR USE OF THE TELEMATICS SERVICE. CNHI'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 CNHI PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
In the event that applicable Laws imply warranties or conditions or impose guarantees or obligations on CNHI 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, CNHI limits its liability in respect of any claim under those Laws, (a) in the case of goods, at CNHI'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 CNHI'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 CNHI’S REQUEST, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS EACH OF THE CNHI 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, THE SITE, 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, THE SITE, 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. You shall pay any and all costs, damages and expenses, including, without limitation, reasonable attorneys’ fees and costs awarded against or otherwise incurred by the CNHI Parties in connection with or arising from any such claim, lawsuit, action, demand or other proceeding. A CNHI 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 CNHI 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 Telematics Service, and the Site. You agree that all such documents and records that CNHI 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 CNHI as described on the CNHI 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 shall be construed in accordance with the laws of South Africa. Subject to the provisions of this Agreement, the Parties consent and submit to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division, Johannesburg in any dispute arising from or in connection with this Agreement. WE BOTH AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, TO USE FINAL AND BINDING ARBITRATION, NOT LAWSUITS TO RESOLVE ANY DISPUTE, CLAIM OR CONTROVERSY RELATING IN ANY WAY TO YOUR OR YOUR AUTHORIZED USER’S USE OF THE TELEMATICS SERVICE, THE SITE, OR THE TELEMATICS SOFTWARE, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PRIVACY STATEMENTS (EACH, A “DISPUTE”). For purposes of clarity, this arbitration agreement does not apply to any Dispute arising out of the Equipment that is unrelated to the Telematics Service, the Site, the Telematics Software, this Agreement, or the Privacy Statements.
2.1. Any dispute of whatsoever nature which arises out of or in connection with this Agreement, including any dispute as to the validity, existence, enforceability, interpretation, application, implementation, breach, termination or cancellation of this Agreement or as to the parties' rights and/or obligations in terms of this agreement or in connection with any documents furnished by the parties pursuant to this agreement, shall be submitted to arbitration in accordance with this clause and the arbitration laws for the time being in force in the Republic of South Africa.
2.2. This clause shall not preclude either party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
2.3. The arbitrator shall -
2.3.1. If the dispute is primarily an accounting matter, be an independent practicing accountant of not less than ten years' standing as such as agreed between the parties within 5 (five) working days of the dispute having arisen failing which appointed, at the instance of either party, by the South African Institute of Chartered Accountants or its successor;
2.3.2. If the dispute is primarily a legal matter, be an attorney of not less than 10 (ten) years' standing as such as agreed between the parties within 5 (five) days of the dispute having arisen and failing agreement appointed, at the instance of either party, by the Arbitration Foundation of Southern Africa, Sandton (“AFSA”) or its successor body;
2.3.3. If the dispute is any other matter, be a suitably qualified person as agreed between the parties within 5 (five) days of the dispute having arisen and failing agreement, appointed, at the instance of either party, by AFSA or its successor body;
2.4. The arbitration shall be held at a venue in Johannesburg and in accordance with procedures determined by the arbitrator which shall include such procedures such as pleadings and/or discovery as will enable the arbitration to be conducted in a fair and impartial manner.
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 CNHI 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 CNHI and any applicable governmental entity, either in writing or as provided by applicable Law, 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.
54. Entire Agreement. This Agreement, the terms of the Privacy Statements, and any other valid agreement between you and CNHI for use of the Telematics Service, the Site, and the Telematics Software constitute the entire agreement between you and CNHI and govern your use of the Telematics Service, the Site, and the Telematics Software, superseding any and all prior agreements, negotiations and communications (whether written, oral or electronic) between you and CNHI 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 CNHI unless made in writing, with CNHI’s approval. Any rights not otherwise expressly granted under this Agreement are reserved by CNHI and its licensors. The failure of CNHI 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 Law to reflect, as nearly as possible, the original intentions of CNHI, 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.
5. Modification of Agreement. TTo the extent permissible under applicable Law, CNHI may modify and update this Agreement at any time. CNHI 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, the Site, or the Telematics Software following the posting of any such changes will constitute confirmation of your acceptance of the updated Agreement, unless you notify CNHI 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 CNHI, at its option, exercises its right to terminate this Agreement.
6. Time Limits for Pursuing Claims and Disputes. . You agree that to the extent permissible under applicable Law, any claim or cause of action arising out of or related to use of the Telematics Service, the Site, 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.
7. Official Language. The official language of this Agreement is English. Unless the Laws of the location in which you reside require otherwise, the parties hereby acknowledge that they have required this Agreement, and all other documents relating hereto, be drawn up in the English language only. This Agreement may also be provided in other languages. For purposes of interpretation, or in the event of a conflict between the English version of this Agreement and the versions of this Agreement in any other language, the English language version shall control unless the Laws of the location in which you reside require that a different version control.