These terms and conditions (the “General Terms”) govern the Use of one or
several
Smart Forestry digital services (each, a “Service”) by the legal entity
identified as
customer (“Customer”) in the Order Form or contract which incorporates these
General
Terms. The Service is provided by Komatsu Forest AB, a limited liability company with reg.no.
556079–5949 incorporated under the laws of Sweden having its registered offices in Umeå, Sweden
(“Komatsu Forest”).
The contract between Komatsu Forest and Customer related to the Service consist of these
General Terms, any Service-specific terms and conditions provided by Komatsu Forest (if
applicable), the Data Protection Agreement, the applicable Order Form, the Ac-ceptable Use
Policy and the Documentation (jointly the “Agreement”). In addition, the
Customer
warrants and
represents that Users (i) will comply with the Acceptable Use Policy, and (ii) will be provided
with the Privacy Policy, as such documents are updated by Komatsu Forest from time to time.
These General Terms apply to the exclusion of any other terms or conditions that may be
sought to be invoked by Customer (including without limitation any terms referenced in any
order, any online website or electronic platform), or which are implied by trade, custom,
practice or course of dealing in any jurisdiction. By access-ing, using or otherwise accepting
the benefit of any Service, the Cus-tomer acknowledges that the General Terms apply and that the
Service is supplied in accordance with the Agreement. Komatsu Forest expressly rejects any
standard purchase terms and conditions provided or published by Customer.
Customer acknowledges and agrees that Customer will have a direct contractual relation with
Komatsu Forest regarding Use of the Service subject to the terms of the Agreement, irrespective
of whether Customer has obtained the right to Use the Service directly from Komatsu Forest or
via an Approved Source.
Definitions
In addition to terms defined above, the following definitions shall apply whenever used with a
capital initial letter in the General Terms:
“Acceptable Use Policy” means the acceptable use policy for the
Service, as available through the Service or via smart-forestry.komatsuforest.com/legal,
as updated by Komatsu Forest from time to time.
“Account” means an account established by Komatsu Forest or the
Customer to enable the Customer or Users to Use or access a Service.
“Affiliate” means any individual or company which controls, is
controlled by or is
under common control with a Party, where “control” means the power to control the
composi-tion of the board of directors of such Party (whether by contract, corporate
law or other means), the possession of more than half of the voting shares of such Party
or the ability to consolidate such company’s financial statements with those of the
Party in accordance with generally accepted account-ing principles.
“Approved Source” means a distributor, workshop or dealer authorized
by Komatsu Forest or its Affiliates to offer the Service.
“Confidential Information” means all non-public, business related or
technical
information, written or oral, disclosed by a Party under this Agreement, whether or not
it is marked as confidential or not, including, but not limited to, the exist-ence of
this Agreement and any information designated or marked as confidential (or if it is
apparent from the circumstances that the information is confidential), any trade
secret, know how, invention, software program, source code, object code, application,
documentation, contract, information, knowledge, data, database, process, technique,
design, drawing, program, formula or test data, or other business information. The
Service and information generated or made available by Komatsu Forest through or in
connection with providing the Service (including Third Party Content, Komatsu Forest
Data and the Documentation) constitutes Con-fidential Information of Komatsu Forest.
Customer Data constitutes Confidential Information of the Customer.
“Customer” means the legal entity subscribing to the Service under this
Agreement.
“Customer Data” refers to (i) any User-specific data (such as user
IDs), and all
other data; (ii) information uploaded by the Customer or its Users into the Service;
and/or (iii) raw data and other data collected from the Machines and transmitted to
Komatsu Forest, its Affiliates or Approved Sources. Customer Data may include Personal
Data.
“Data Processing Agreement” means the separate terms and conditions for
Komatsu Forest’s processing of Personal Data on behalf of Customer.
“Documentation” means the most recent written or online (i) user
manuals, (ii)
e-learning modules or other training materials, (iii) Technical Requirements, or (iv)
other docu-mentation applicable to the Service which Komatsu Forest may make available
through the Service, on designated web-site(s) or otherwise provides to the Customer
from time to time.
“Komatsu Forest Data” means aggregated, derived and/or combined
Machine-related data
(such as statistics, metadata, generated data, by-product data and information about
usage of functions or features in the Service) which is created by Komatsu Forest or its
Affiliates as part of the Service. Komatsu Forest Data is not Customer Data.
“Machine(s)” means Komatsu Forest machinery (or any other machine brand
approved by Komatsu Forest) for which the Service will be used, as identified in the
Order Form.
“Order Form” means the ordering document specifying the scope of the
Service,
including allowed number of Machines, other usage limitations, subscription term, and
other details of the subscription license such as applicable payment terms and price
lists, that is entered into between Customer and Komatsu Forest, its Affiliate or an
Approved Source, including any addenda and supplements thereto.
“Personal Data” shall have the meaning defined in the General Data
Protection Regulation (EU) 2016/679.
“Principal” means Customer’s principal such as a customer (for example
landowners, forest companies), a parent company or similar.
“Privacy Policy” means Komatsu Forest’s privacy policy for the Service,
as available through the Service or via smartforestry.komatsuforest.com/legal, as
updated by Komatsu Forest from time to time.
“Technical Requirements” means applicable minimum requirements for use
of the
Service, such as requirements for the Machines and/or the Customer’s IT environment
(e.g. infrastructure and network requirements), as specified at
smartforestry.komatsuforest.com/legal from time to time.
“Third Party Content” means software, software services, plugins, open
source software, materials, user-generated content, or other content provided by third
parties as part of, or made available via the Service, or otherwise used together with
the Service.
“Use” or “Using” means to access or otherwise use the
Service or any part thereof.
“User” means an individual who is designated by Customer to use a
Service, for whom
Customer has ordered and paid for the Service, and to whom Customer (or when applicable,
Komatsu Forest at Customer’s request) has supplied an Ac-count (user identification and
password). Users may include, for example, employees, consultants, contractors and
agents of Customer and third parties with which Customer transacts business.
Access to the Service and Support
Subject to payment of the applicable fees and compliance with the Agreement, Komatsu Forest will
make the Service available to Customer on a non-exclusive basis in accordance with the
Agree-ment during the agreed subscription period.
Komatsu Forest will use commercially reasonable efforts to keep the Service available and
accessible for Users at all times. None-theless, interruptions and incidents will occur and
Komatsu Forest hereby disclaims any and all explicit or implicit warranties, obliga-tions or
guarantees to keep the Service available.
Komatsu Forest may update, improve, modify or otherwise change the Service at Komatsu Forest’s
discretion and without prior notice to the Customer. Such changes and modifications to the
Service may include changes to the functionality, quality and/or scope of the Service. The
Customer acknowledges that such changes and modifications, or other maintenance work, may lead
to down-time and decreased availability in the Service. In the event of any changes to the scope
or quality of the Service which is likely to have a materi-al impact on the Customer’s ability
to use the Service, Komatsu Forest will use reasonable efforts to notify the Customer in advance
in the Service.
Komatsu Forest will upon request by Customer provide limited remote technical support for
the Service, e.g. by means of web-based support or via phone, as described in the Documentation
or in the Order Form. Additional or upgraded support may be available if purchased separately.
Customer hereby instructs Komatsu Forest to, either by itself or by providing Approved
Sources and other relevant Komatsu Forest Affiliates, agents, resellers, partners and dealers,
as well as Principals, access to the Service in order to provide suitable product and service
offerings to Customer from time to time, including maintenance services, add-on services and
spare parts. Customer may at any time instruct Komatsu Forest to restrict such access for a
particular Principal, Komatsu Forest Affiliate, agent, reseller, partner and dealer. Such notice
of restriction shall be sent in writing to info@komatsuforest.com, unless otherwise stated in
the Order Form.
Use of the Service
Unless otherwise set out in an Order Form, Customer will license the right to Use the
Service on a non-exclusive subscription basis. The details of the subscription license,
including the term and duration of Customer’s subscription period, applicable fees and payment
terms, details on the scope of the Service and number of Machines and other usage limits, are
set out in the Order Form.
To access the Service, the Customer and individual Users will need an Account. The Customer
shall be solely responsible for all activities conducted through its Account and by individual
Users. All use of the Service must be in strict compliance with the Acceptable Use Policy, the
Documentation and this Agreement. The Customer undertakes to indemnify and hold Komatsu Forest,
its Affiliates or any Approved Source, harmless and upon Komatsu Forest´s request defend
Komatsu Forest, its Affiliates or an Approved Source, from any claim, proceeding, liability,
loss, cost or expense inflicted upon or incurred by Komatsu Forest, its Affiliates or an
Approved Source, resulting from any use of the Service by the Customer’s Users or by a third
party who has obtained, lawfully or unlawfully, access to the Service (including content)
thereof from the Customer or the Customer’s Users (or through any passwords or other access
credentials provided to or used by the Customer or the Customer’s Users), including, but not
limited to, claims from third parties, damages, lost profits and additional fees for Komatsu
Forest, or its Affiliates, or other costs, including reasonable attorney's fees.
Customer shall not (and shall not allow any third party to) during the term of this Agreement or
at any time thereafter:
transfer, sublicense, or assign the Customer’s rights under this Agreement to any
other person or entity, except for the employees, contractors, representatives and
officers of the Customer who have been designated by the Customer as Users pursuant to
this Agreement and subject to the Acceptable Use Policy;
modify, adapt or create derivative works of any part of the Service or reverse
engineer, decompile, decrypt, disassemble or otherwise attempt to derive any source
code, underlying ideas, algorithms, libraries, file formats, data, databases or
programming interfaces for the Service;
access the Service for the purpose of building or developing a competitive product or
service;
distribute, publish, or otherwise make any Documentation or other part or functionality
of the Service available to third parties, whether as an application service provider,
or on a rental, service bureau, hosted service, cloud service or other similar basis; or
remove, modify, or conceal any product identification, copyright, proprietary,
intellectual property notices or other marks on or within the Service; or
access the Service from any location prohibited by any national and international
export and re-export control regulations including, but not limited to, those of the
European Union, of the United States of America and regulations of any other country or
jurisdiction which may apply (“Export Laws”), or if otherwise prohibited for the
Customer by Export Laws and the Customer shall not grant access to a person or entity
listed on a sanctioned party list, including without limitation European Union
Sanctions List, US Specially Designated National (SDN) lists, US Denied Persons List.
The Customer is fully responsible for procuring and maintaining necessary data connections,
networks and other technical or infrastructure requirements, as specified in the Technical
Requirements and/or as instructed by Komatsu Forest from time to time. Customer acknowledges
that the Service is a global standard service offering and Komatsu Forest will not be liable to
ensure that the Service comply with any customer-specific, country-specific or
industry-specific security concepts or standards.
The Customer is responsible for ensuring that its use of the Service as well as Customer
Data complies with all relevant terms and conditions as well as applicable legislation,
including (without limitation) laws related to manufacturing and Export Laws, and will indemnify
Komatsu Forest, its Affiliates and any Approved Source, against any damages, claims, losses and
costs resulting from any such incorrect or illegal use. The Customer represents and warrants not
to use the Service in any way to create, upload, or otherwise use any documents restricted by
the U.S. International Traffic in Arms Regulations (ITAR).
Sale of Machines
Customer shall notify Komatsu Forest in writing about all relevant changes in Customer’s Use of
the Service, including but not limited to information about (i) purchase of new or additional
Ma-chines and (ii) sale or transfer of Machines to any third party.
If Customer intends to sell or transfer a Machine which is connected to the Service to a third
party, the Customer undertakes prior to such sale or transfer to:
Notify the purchasing third party that the Service is used on the Machine; and
Require that the purchasing third party, prior to using the Machine, notifies Komatsu
Forest or an Approved Source about whether such party wishes to keep using the Service.
In addition, the Customer shall upon completion of a sale or transfer of a Machine notify
Komatsu Forest or an Approved Source in accordance with the instructions in the Documentation.
Customer acknowledges that Customer’s breach or non-compliance with this section may cause
Customer Data (or other Confidential Information) to be disclosed to or accessible for a third
party, or purchasing third party’s data (including such party’s con-fidential information) to be
disclosed to or accessible for Customer. Komatsu Forest expressly disclaims any and all
responsibility or liability whatsoever in relation to any such disclosure or access.
Fees and Payment
Customer shall pay all fees in accordance with the payment terms set out in the applicable
Order Form. Unless otherwise set out in an Order Form, (i) payment terms are 30 days from
invoice date, (ii) fees are based on purchases of subscription licenses and not on actual usage,
(iii) any payment obligation is non-cancellable and fees paid are non-refundable except as
specifically agreed between the Parties, (iv) the licensed number of Machines or other usage
limits cannot be decreased during the relevant subscription term, and (v) purchases are not
contingent on the delivery of any future functionality or features, or any public comments made
by Komatsu Forest regarding future functionality or features.
In case Customer deems the invoice is incorrect in whole or in part, notice thereof shall be
made to Komatsu Forest within ten (10) business days of the invoice.
Late payment shall carry yearly interest of fifteen (15 %) percent including the right for
Komatsu Forest to charge any statutory fees for reminders including collection fees. In
addition, Komatsu Forest reserves the right to terminate this Agreement subject to the terms set
forth herein.
Komatsu Forest has the right to annually adjust the License Fee upon prior notice to Customer.
The Customer shall pay all fees, assessments, taxes, levies, duties and following the use of the
Services and Komatsu Forest is not liable for any such payments.
In-Service Purchases
Spare parts, support services, professional services and/or other products or services may
be made available for purchase by Customer in the Service from time to time. For any such
purchase, separate terms and conditions will apply as specified and made available in the
Service in connection with such purchase. By placing an order in the Service, and receiving an
order confirmation, a legally binding contract for the sale and purchase is entered into between
Customer and the relevant company offering the relevant services or products.
Suspension
Komatsu Forest reserves the right to suspend the Service, or any part thereof, for Customer or
individual Users (as determined in Komatsu Forest’s sole discretion), and to take all other
actions permitted by law, if:
Komatsu Forest determines such course of action necessary to prevent, stop or manage any
significant security, safety, strategic or operational incident or potential harm to
Komatsu Forest or Customer;
required by law, regulation, court order or a governmental authority having jurisdiction
over Komatsu Forest or Customer;
Customer fails to pay due amounts in full to Komatsu Forest or to an Approved Source as
applicable; or
Komatsu Forest has reason to believe that Customer has acted in breach of this
Agreement; or
Komatsu Forest has reason to believe that a User has acted in breach of the Acceptable
Use Policy, e.g. by uploading unlawful or offensive Customer Data.
If the cause for suspension can be remedied, Komatsu Forest will notify the Customer or
affected Users of the measures needed to restore the Service. If the Customer or affected User
fails to take such measures within a reasonable period of time, Komatsu Forest may without
prejudice to other remedies (e.g. termination of the Agreement subject to Section 15.3)
permanently shut down and cancel affected Account(s) from the Service. Komatsu Forest shall not
be liable to the Customer or any third party for any such modification, suspension or
discontinuation of the Customer’s or individual Users’ rights to access and Use the Service.
Intellectual Property Rights
Komatsu Forest, its Affiliates or its licensors retain ownership of all intellectual
property rights in and to the Service, including copies, improvements, enhancements, derivative
works and modifications thereof. Any intellectual property rights created by, or arising as a
result of, the Customer’s use of the Service shall vest with Komatsu Forest.
The Customer’s right to access the Service is limited to those rights expressly granted by this
Agreement and any applicable Order Form. No other rights with respect to any part of the Service
or any related intellectual property rights are granted or implied.
9.3 The Customer agrees that any submission of feedback, suggestions, ideas, or other
information or materials regarding the Service that the Customer or Users provide, whether by
email, through the Service, in meetings or otherwise (“Feedback”) is at
Customer’s own risk and
that Komatsu Forest has no obligations (including without limitation obligations of
confidentiality) with respect to such Feedback. The Customer agrees that Komatsu Forest and its
Affiliates may, and are granted a worldwide, perpetual, irrevocable and royalty-free license
to, freely use, display, distribute, adapt, modify and otherwise commercially or
non-commercially exploit Feedback for any business purpose, including development of products
and services. In the event Komatsu Forest or one of its Affiliates elects to use any Feedback
provided by the Customer, no compensation is payable to the Customer.
The Service may contain certain Third Party Content, which is provided and licensed solely
under the terms and conditions provided by its respective suppliers. Third Party Content
provided or made accessible together with the Service are further described in the
Documentation, including links to relevant terms and conditions. Komatsu Forest and its
Affiliates assume no liability whatsoever for Third Party Content, or any errors in the Service
(or any other liability of any kind) that may occur as a result of Third Party Content.
Further, the Customer may, if the Service supports such functionality, add additional Third
Party Content not provided or made accessible together with the Service. Komatsu Forest does not
support or endorse the use of any Third Party Content not listed in the Documentation.
Customer Data
In connection with providing the Service, Komatsu Forest and its Affiliates will collect, store
and process Customer Data.
The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy
and quality of the Customer Data and warrants that it has all rights necessary to submit
Customer Data to Komatsu Forest.
Komatsu Forest, its Affiliates or Approved Sources make no claim of title or ownership to
Customer Data. Customer authorizes and grants a non-exclusive, worldwide, royalty-free license
to Komatsu Forest, its Affiliates and Approved Sources, to use, copy, reproduce, publish, edit,
modify, exhibit, create derivative works of, transmit, distribute, and display or modify
Customer Data (i) to provide the Service and to allow Komatsu Forest, its Affiliates and
Approved Sources to fulfil its obligations in this Agreement; (ii) subject to Section 11 and the
Privacy Policy, to derive and create Komatsu Forest Data; and (iii) as otherwise required to
comply with applicable laws or regulations.
Customer is liable to ensure that all Customer Data submitted by Users will comply with
applicable laws, the General Terms and the Acceptable Use Policy. Komatsu Forest will use
reasonable efforts to investigate and/or take appropriate action in relation to offensive,
unlawful or objectionable content in the Service. Any and all content infringing applicable
laws, the General Terms or the Applicable Use Policy may be promptly deleted by Komatsu Forest
without prior notice. Customer will indemnify Komatsu Forest, its Affiliates and any Approved
Source(s), against any damages, claims, losses and costs resulting from offensive, unlawful or
objectionable Customer Data submitted by Accounts for which Customer is responsible.
Komatsu Forest Data
The Customer acknowledges and agrees that Komatsu Forest may create, store, process, use,
reproduce, edit, modify, exhibit, create derivative works of, transmit, distribute, display,
publish (in any manner, on any website and in any media formats, whether now known or hereafter
developed), sublicense, sell and/or transfer any and all Komatsu Forest Data, without any
obligation to compensate, reimburse, name or obtain any additional approvals from the Customer.
All rights, title and interest in relation to Komatsu Forest Data will be exclusively retained
by Komatsu Forest and its Affiliates, and may freely use, amend or share any Komatsu Forest
Data for its business purposes as it deems fit, including, but not limited to Service
improvement, product development and marketing of current and future products or services.
Komatsu Forest may, but is not obligated to, provide insights, statistics or data based on
Komatsu Forest Data to Customer, either as part of the Service or as additional services.
Komatsu Forest may retain Komatsu Forest Data irrespective of termination of this Agreement,
Account deletion or otherwise.
Personal Data
Subject to the terms of the Data Processing Agreement, Customer engages Komatsu Forest as
a data processor for any processing of Personal Data performed by Komatsu Forest as part of the
Service. Customer acknowledges and agrees that the Customer may need to take additional measures
to ensure the compliance of such data processing operations, including providing a privacy
notice, policy or similar information to the data subjects.
Customer confirms that Komatsu Forest may extract machine-related data from Customer Data
to create Komatsu Forest Data, as further described in the Privacy Policy. If and to the extent
the creation of Komatsu Forest Data involves processing of Personal Data, Komatsu Forest
performs such processing operations for purposes established by Komatsu Forest, i.e. as the data
controller.
If and to the extent the Customer, or any party other than Komatsu Forest (such as an
Approved Source or a Principal), accesses the Service and/or processes Personal Data for any
purpose(s) not covered by the Privacy Policy or the Data Processing Agreement, such entity will
be solely responsible for such processing operations, as an independent data controller pursuant
to the General Data Protection Regulation (EU) 2016/679)), and thus solely responsible and
liable for taking any necessary measure to ensure the legality and compliance of such processing
activity. Komatsu Forest expressly disclaims any and all liability for any processing of
Personal Data not covered by the Privacy Policy and the Data Processing Agreement.
Confidentiality
Except as otherwise set forth in this Agreement, each Party (the “Receiving
Party”)
undertakes to treat Confidential Information shared by the other Party (the “Disclosing
Party”)
as confidential and not to disclose any Confidential Information to any third party or use such
Confidential Information for any other purpose than for the due performance of this Agreement.
This Section shall not extend to any Confidential Information which (i) was rightfully in the
possession of the Receiving Party prior to the commencement of the negotiations leading to the
Agreement or which is already public knowledge or becomes so at a future date (otherwise than as
a result of a breach of this Agreement); (ii) was or is independently developed by the Receiving
Party or its representatives as proven by its written records; (iii) was disclosed to the
Receiving Party or its representatives by a third party not under any obligation to keep such
Confidential Information confidential, provided that the Receiving Party shall not corroborate
Confidential Information disclosed to it by a third party or otherwise further disseminate such
Confidential Information; or (iv) must be revealed due to law or by order of a judicial or
governmental authority or by any applicable stock exchange regulations or the regulations of
any other recognized market place, provided that the Receiving Party notifies the Disclosing
Party of the demand for disclosure promptly and as far in advance of the date of disclosure as
circumstances reasonably allow (provided such notice is legally permitted) as to allow the
Disclosing Party to seek protective order or other appropriate remedy.
The Receiving Party shall not without the prior written consent of the Disclosing Party
divulge or make available any part of the Confidential Information to any person except to (i)
the Receiving Party’s employees and third party consultants on a strict need to know basis; (ii)
the Receiving Party’s auditors and any other persons or bodies having a right, duty or
obligation to know the business of the Receiving Party and then only in pursuance of such right,
duty or obligation; (iii) as regards the Customer, any person who is from time to time appointed
by the Customer to maintain any equipment on which the Service is being used (in accordance with
the terms of this Agreement) and then only to the extent necessary to enable such person to
properly maintain such equipment; and (iv) as regards Komatsu Forest, any person who is from
time to time appointed by Komatsu Forest to provide, develop, design, configure, support,
maintain or otherwise use the Service and then only to the extent necessary to perform such
task. Each Party undertakes to ensure that the persons and bodies mentioned in this section are
made aware prior to the disclosure of any part of the Confidential Information that the same is
confidential and that they owe a duty of confidence to the other Party in accordance with this
Agreement. Each Party shall be responsible for the acts and omissions of such persons and bodies
to whom such Party divulges such information, with respect to any access, use, protection or
disclosure of such information, as if such Party had engaged in such acts and omissions.
Disclaimer and No Warranty
EXCEPT FOR ANY WRITTEN WARRANTY AS EXHAUSTIVELY SET FORTH IN THE ORDER FORM AND/OR THE
DOCUMENTATION, THE SERVICE IS PROVIDED "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS". TO THE
FULLEST EXTENT PERMISSIBLE BY LAW, KOMATSU FOREST DOES NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) AVAILABILITY
OR FUNCTIONALIY OF THE SERVICE; (B) THE DOCUMENTATION; (C) SECURITY ASSOCIATED WITH THE
TRANSMISSION OF INFORMATION TO KOMATSU FOREST; (D) COMPATABILITY OR INTEROPERATBILITY WITH ANY
MACHINE, THIRD PARTY PRODUCT, SOFTWARE, SERVICE, PLATFORM OR SYSTEM EXCEPT AS EXPLICITY STATED
IN THE DOCUMENTATION; OR (E) THIRD PARTY CONTENT AND/OR OTHER ASSOCIATED SERVICES PROVIDED OR
MADE AVAILABLE AS PART OF OR TOGETHER WITH THE SERVICE. IN ADDITION, KOMATSU FOREST HEREBY
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CUSTOM, TRADE, SYSTEM INTEGRATION AND
FREEDOM FROM COMPUTER VIRUS OR MALWARE.
KOMATSU FOREST DOES NOT REPRESENT OR WARRANT THAT ANY PART OF THE SERVICE WILL BE
AVAILABLE, ERROR-FREE OR UNINTERRUPTED; THAT INCIDENTS OR DEFECTS WILL BE CORRECTED; OR FREE
FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES OR MALWARE. KOMATSU FOREST
DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION, DATA OR RECOMMENDATIONS
FROM THE SERVICE ARE ACCURATE, COMPLETE, OR USEFUL.
THE CUSTOMER ACKNOWLEDGES THAT ITS USE OF THE SERVICE IS AT ITS SOLE RISK. KOMATSU FOREST
DOES NOT WARRANT THAT THE CUSTOMER’S USE OF THE SERVICE OR ANY RESULT FROM THE SERVICE, IS
LAWFUL IN ANY PARTICULAR JURISDICTION, AND KOMATSU FOREST SPECIFICALLY DISCLAIMS SUCH
WARRANTIES.
Infringement Indemnity
Komatsu Forest shall defend the Customer against any third party claim that the Customer’s
permitted Use of the Service infringes any intellectual property rights in the EU as of the
effective date, and shall indemnify the Customer for any amounts awarded against the Customer in
judgment or settlement of such claims subject to the limitations in this Section 16, provided
that (i) Komatsu Forest is given prompt notice of any such claim; (ii) the Customer provides
reasonable co-operation to Komatsu Forest in the defense and settlement of such claim; and
(iii) Komatsu Forest is given sole authority to defend or settle the claim.
In the defense or settlement of any claim, Komatsu Forest may (i) procure the right for the
Customer to continue using the Service, (ii) replace or modify the Service so that they become
non-infringing or, if neither (i) nor (ii) are not commercially viable in Komatsu Forest’s sole
discretion, then Komatsu Forest may terminate this Agreement with a reasonable termination
period as appropriate under the circumstances. The Customer shall in case of such termination
by Komatsu Forest be obliged to stop using the Service and the Customer will, as full and final
compensation, obtain a refund equal to any prepaid fee pro rata to any remaining period of time
for which Customer is licensed to use the Service according to the Order Form.
In no event shall Komatsu Forest, its employees, agents and subcontractors be liable to
the Customer to the extent that the alleged infringement is based on or results from (i) a
modification of the Service (or any part thereof) by anyone other than Komatsu Forest; (ii) the
Customer’s use of the Service (or any part thereof) in breach of this Agreement, the Acceptable
Use Policy, the Documentation or in a manner contrary to the instructions given to the
Customer by Komatsu Forest; (iii) any Customer Data; (iv) the Customer’s Use of the Service
(or any part thereof) after notice of the alleged or actual infringement from Komatsu Forest or
any appropriate authority; or (v) the use of or combination with any Third Party Content or with
any models, designs, plans, instructions, specifications, diagrams or the like not provided by
Komatsu Forest, provided that such use of or combination with the models, designs, plans,
instructions, specification, diagrams or the like are the basis for the infringement claim.
Komatsu Forest’s liability under this Section will be reduced proportionately to the extent the
liability was caused or contributed to by an act or omission of Customer or any of its
personnel.
The foregoing state the Customer’s sole and exclusive rights and remedies, and Komatsu
Forest’s (including Komatsu Forest’s Affiliates, employees’, agents’ and subcontractors’)
entire obligations and liability, for any alleged or proven infringement of any intellectual
property rights.
Limitation of Liability
NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS THE LIABILITY OF EITHER PARTY (I) FOR FRAUD OR
FRAUDULENT MISREPRESENTATION; (II) IN CASES OF WILFUL MISCONDUCT; OR (IIFI) FOR DEATH OR
PERSONAL INJURY CAUSED BY GROSS NEGLIGENCE.
SUBJECT TO SECTION 16.1, IN NO EVENT WILL KOMATSU FOREST BE LIABLE FOR THE FOLLOWING,
REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OR INABILITY TO USE THE
SERVICE OR OTHERWISE, EVEN IF KOMATSU FOREST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES: (A) INDIRECT, INCIDENTIAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (B)
LOSS OR CORRUPTION OF DATA/INFORMATION OR INTERRUPTED OR LOSS OF BUSINESS; OR (C) LOSS OF
REVENUE, PROFITS, GOODWILL OR ANTICIPATED SALES OR SAVINGS. FURTHER, KOMATSU FOREST AND ITS
LICENSORS WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHETHER TO
PERSONS, MACHINES, TOOLS, WORKPIECES OTHER TANGIBLE PROPERTY OR ANY MONETARY LOSS OR DAMAGE,
THAT COULD HAVE BEEN AVOIDED BY THE USER’S COMPLIANCE WITH THE ACCEPTABLE USE POLICY, USER
DOCUMENTATION AND PROPER AND NORMAL USE OF THE SERVICE.
SUBJECT TO SECTION 16.1, KOMATSU FOREST’S TOTAL LIABILITY IN CONTRACT (INCLUDING IN RESPECT
OF THE INDEMNITY IN SECTION 13.1), TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY),
MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR
CONTEMPLATED PERFORMANCE OF THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY
CUSTOMER FOR THE SERVICE TO WHICH THE CLAIM RELATES DURING THE 12 MONTHS IMMEDIATELY PRECEDING
THE DATE ON WHICH THE CLAIM AROSE.
Term
This Agreement enters into force as of the effective date identified on the Order Form, and
shall continue until terminated in accordance herewith or until all subscriptions have expired.
The term of each subscription will be as set forth in the applicable Order Form. A
subscription will be automatically renewed for additional subscription period(s) unless either
Party gives notice of termination in accordance with the procedures stated in the Service or in
the Order Form.
Termination
Either Party may terminate this Agreement if the other Party: (a) fails to cure any
material breach (including, but not limited to, late payment by Customer) of this Agreement
within thirty (30) days after receipt of written notice of such breach (to the extent that the
breach is curable); (b) ceases operation without a successor; or (c) seeks protection under any
bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable
proceeding, or if any such proceeding is instituted against such Party (and not dismissed
within thirty (30) days thereafter).
Komatsu Forest may terminate this Agreement with immediate effect in case of a change of
control of Customer (whereby ‘control’ shall mean more than fifty percent (50 %) of the votes or
shares in Customer), provided that such change, in Komatsu Forest´s reasonable opinion,
materially and adversely affects the commercial relationship between the Customer and Komatsu
Forest or any of its Affiliates.
Komatsu Forest may terminate this Agreement for convenience by giving at least fifteen (15)
days’ prior notice.
In the event of Komatsu Forest’s termination following a change of control under Section
18.2 or for convenience under Section 18.3, Komatsu Forest shall refund any prepaid fee pro rata
to any remaining period of time for which Customer is licensed to Use the Service.
Effects of Expiration or Termination
Upon expiration or termination of this Agreement, regardless of cause, the Customer shall
cease any and all use of the Service, and, if requested by Komatsu Forest, destroy or return all
copies of Documentation and certify so to Komatsu Forest in writing.
Upon expiration or termination of this Agreement, regardless of cause, Komatsu Forest may
immediately suspend and revoke the Customer’s and all its Users’ right to access and Use the
Service.
19.3 Komatsu Forest will remove Customer Data and Accounts after a period of 180 days from the
date of expiration or termination (“Retention Period”). During the Retention
Period, Komatsu
Forest will free of charge make the Customer Data available to the Customer for downloading in
a format generally available in the market. Upon expiry of the Retention Period, Komatsu Forest
has no obligation to maintain or make available any Customer Data to the Customer and has the
right to permanently delete all Customer Data and all Customer’s Accounts.
Any provision that by the very nature of which should survive, shall survive any termination or
expiration of this Agreement.
General
Neither this Agreement nor any rights or obligations of the Customer hereunder shall be
assignable or transferable by the Customer, and any purported assignment or transfer in
violation of the foregoing shall be null and void. This Agreement will bind and inure to the
benefit of each Party’s permitted successors and assignees. Komatsu Forest may assign this
Agreement in whole or in part in its sole discretion.
Notwithstanding the use of any Approved Source, Komatsu Forest retains all rights to act against
the Customer in order to protect Komatsu Forest’s interests. The obligations on the part of the
Customer and the rights and limitations of liability on the part of Komatsu Forest contained in
this Agreement shall, mutatis mutandis, apply, operate and take effect also for the benefit of,
and shall be enforceable by, Komatsu Forest’s Affiliates and Approved Sources, their successors
and assigns, jointly and severally.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to
be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so
that this Agreement shall otherwise remain in effect.
This Agreement may be supplemented, modified or amended unilaterally by Komatsu Forest at any
time (provided that such amendments will not apply retroactively) by way of updated terms
accepted by the Customer from time to time (including shrink-wrap, click-wrap, click-through,
click-accept or by continuing to Use the Services after due notification). If the Customer do
not agree to the supplemented, modified or amended Agreement, the Customer must (i) immediately
stop Using the Service and (ii) notify Komatsu Forest in writing within ten (10) days stating
that the Customer rejects the supplemented, modified or amended Agreement. Unless Komatsu Forest
agrees in writing to revoke the suggested supplemented, modified or amended Agreement, the
Customer’s notice as per (ii) above will be deemed a termination of the Agreement. In case of
such termination, Komatsu Forest will refund any prepaid fees for any period during which the
Customer has not Used the Service.
This Agreement (including the Acceptable Use Policy, the Order Form and the Documentation)
is the complete and exclusive statement of the mutual understanding of the Parties and
supersedes and cancels all previous written and oral agreements and communications relating to
the subject matter of this Agreement.
Governing Law and Arbitration
The Agreement shall be governed by, and construed and enforced in accordance with the
substantive laws of Sweden without regard to its principles of conflicts of laws.
Any and all dispute, controversy or claim arising out of or in connection with this
Agreement, or the breach, termination or invalidity thereof, shall be finally settled by
arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the
SCC Institute). The seat of the arbitration shall be Stockholm, Sweden, and the language of the
proceedings shall be English.
The Parties undertake and agree that all arbitral proceedings conducted with reference to
this Agreement will be kept strictly confidential. This confidentiality undertaking shall cover
all information disclosed in the course of such arbitral proceedings. Information covered by
this confidentiality undertaking may not, in any form whatsoever, be disclosed by a Party to a
third party without the prior written consent thereto of the other Party, save for to the extent
that such disclosure is required mandatory under mandatory law or statute.
