This CUSTOMER END USER LICENSE AGREEMENT ("EULA") is a binding agreement between Clark Equipment Company doing business as Bobcat Company, a Delaware corporation, having a place of business at 250 East Beaton Drive, West Fargo, North Dakota 58078 ("Bobcat"), and the person, governmental organization, or other legal entity purchasing, renting or leasing the Product (defined below) ("Customer").
BY EITHER PURCHASING OR USING THE PRODUCT OR SOFTWARE OR SIGNING THE PRODUCT DELIVERY REPORT INCORPORATING THIS EULA, YOU ACCEPT THIS EULA AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND REPRESENT AND WARRANT THAT: (I) YOU HAVE READ AND UNDERSTAND THIS EULA; AND (II) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (III) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS EULA ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. CUSTOMER ALSO UNDERSTANDS AND AGREES THAT THIS EULA APPLIES TO THE EMPLOYEES, CONTRACTORS AND AGENTS OF THE COMPANY OR LEGAL ENTITY WHO USE THE PRODUCT. IF CUSTOMER OR ITS EMPLOYEES, CONTRACTORS OR AGENTS DO NOT AGREE TO ANY TERMS IN THIS EULA, CUSTOMER IS NOT AUTHORIZED TO USE THE PRODUCTS OR SOFTWARE. CUSTOMER HAS THE OPPORTUNITY TO CORRECT ERRORS IN THIS EULA PRIOR TO ITS ACCEPTANCE OF THIS EULA. TO CORRECT ERRORS IN THIS EULA, CUSTOMER MAY CONTACT BOBCAT AT THE ADDRESS ABOVE.
Bobcat sells certain of Bobcat's and its affiliates' products ("Products") through its authorized dealers ("Dealers") that contain Software (defined below). The Dealers are independent contractors and not an agent of Bobcat. Subject to the terms of this EULA, Bobcat agrees to provide a license and use rights to the Software to Customer so that Customer may use the Products for their intended purpose. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions. Capitalized terms have the definitions set forth below and as otherwise defined throughout the EULA.
"Claim" means an action, demand, claim or lawsuit.
"Intellectual Property Rights" means all copyrights, trademarks, trade names, service marks, patents, trade secrets, proprietary marks, logos, as well as any related applications, registrations, moral rights, or common law rights, on a worldwide basis.
"Losses" means losses, liabilities, judgements, settlements, costs and expenses, including court costs and attorneys' or legal fees.
“Machine IQ Data” means data automatically collected from the Products and includes, but is not limited to, equipment model number, equipment serial number, location data, engine hours, engine performance data, hydraulic performance data, fuel level and usage, DEF performance data, and other diagnostic and performance data.
"On Demand Software" means additional Software options in a Product that Customer may purchase a license to use upon request.
"Privacy Statement" means the Bobcat Machine IQ Wireless Communications Privacy Statement found at https://www.bobcat.com/telematics-privacy, as updated from time to time.
"Representatives" means Bobcat's affiliates and subsidiaries, and their officers, directors, employees, agents and licensors.
"Software" means the software embedded in the Products, including all Updates and On Demand Software, and any other software the company licenses for use with its Products, that is not otherwise licensed by a separate written agreement between the parties or licensed by a third party, as indicated at the time of licensing.
"Update" means a bug fix or enhancement to the Software that Bobcat makes available, in its sole discretion.
2. License / Use Rights.
a. Software License. Subject to Customer's compliance with the terms of this EULA and payment for the Products or Software, Bobcat grants to Customer a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable right and license for Customer to use the Software solely as necessary for Customer's use of the Products for their intended purpose. The license granted in this Section only lasts for so long as Customer owns, rents or leases the applicable Product or pay any required licensing fees for the Software. Except as set forth in Section 2b below, the license granted in this Section is only for those On Demand Software features (if any) for which Customer has purchased and paid Dealer for in full.
b. Demonstration. Your Dealer may temporarily enable certain On Demand Software features for demonstration purposes, which will then automatically disable after a set period of time. Customer is only permitted to use such temporary On Demand Software for the limited time it is made available. The number of demonstrations of the On Demand Software may be limited by Dealer or Bobcat at any time.
c. On Demand Software. THE PRODUCT MAY CONTAIN CERTAIN ON DEMAND SOFTWARE WHICH IS NOT ENABLED UNLESS AN ADDITIONAL LICENSE IS PURCHASED BY CUSTOMER (EXCEPT AS SET FORTH IN SECTION 2b). Customer shall not enable, access or use the On Demand Software in a Product (a) except as set forth in Section 2b, or (b) unless a license to such On Demand Software is purchased by Customer from a Dealer or Bobcat. In the event Customer purchases a license to certain On Demand Software features, the license grant set forth in Section 2a applies to those On Demand Software features.
3. Use Restrictions. Customer may not: (i) decompile, reverse engineer, create derivate works from, disassemble, copy, adapt, translate, distribute or modify the Software, or attempt to derive or access the Software's source code; or (ii) resell, lease, sublicense or otherwise transfer or make the Software available to a third party, except as expressly permitted in this EULA. Customer shall not remove the Software from the Product or access the Software independently of Customer's use of the Product. Customer shall not permit the Software to be accessed or used by a competitor of Bobcat, and Customer shall not use, or attempt to use, the Software to create software or a product that competes with any Bobcat product, service or software. Customer is solely responsible for any use or misuse of the Software when the applicable Product is in its control or possession.
a. Ownership of Software. Software is licensed, not sold, by Bobcat. Bobcat and its licensors own all right, title and interest in and to, and retain ownership of, the Software, including all enhancements, derivative works, improvements and modifications thereto. Customer acknowledges and agrees that the Software is proprietary to Bobcat and its licensors, and are protected under copyright law, trade secret law and other applicable laws governing confidential and proprietary information. Customer shall not remove or modify any copyright, trademark or other proprietary markings or notices in the Software.
b. Ownership of Machine IQ Data: Customer acknowledges and agrees that: (a) the Software may transmit Machine IQ Data to Bobcat; (b) the Machine IQ Data is the Confidential Information of Bobcat; and (c) Bobcat will own all right, title and interest in and to the Machine IQ Data, including all enhancements, derivative works, improvements and modifications thereto. To the extent that Customer acquires any rights in or to the Machine IQ Data, Customer hereby assigns to Bobcat all right, title and interest therein.
c. Feedback. Customer grants to Bobcat a worldwide, perpetual, royalty-free, fully paid-up, assignable, sub-licensable, transferable, irrevocable right and license to use and incorporate into the Software or any Bobcat products or services, any suggestions, enhancement requests, recommendations, corrections or other feedback provided by or on behalf of Customer ("Feedback"). Notwithstanding the foregoing, nothing in this EULA requires Bobcat to act on any Feedback provided by Customer.
d. Third-Party Materials. Nothing in this EULA shall be construed as transferring any right, title or interest in or to any third-party software or materials embedded in the Products ("Third-Party Materials") to Customer or to any third party. Third-Party Materials may be subject to additional third-party terms and conditions, which can be found at https://www.bobcat.com/oss.
e. Use of Names. Nothing in this EULA grants to Customer any right to use the names, trademarks, trade names, service marks, insignia, or logos of Bobcat. Customer shall not refer to Bobcat in any marketing, promotional, advertisement, press release, website, or other similar or dissimilar materials.
5. Updates. BOBCAT MAY, BUT IS NOT REQUIRED TO, PROVIDE UPDATES TO THE SOFTWARE IN ITS SOLE DISCRETION. Customer will promptly install Updates made available by Bobcat to all Products in Customer's possession or control, or permit Bobcat to automatically install Updates. If Products with internet-connected functionality do not have an adequate internet connection, or if the internet-connected functionality is disrupted, Customer may not receive applicable Updates and therefore the Products may not work properly if Updates are not installed. In the event Customer does not promptly install Updates made available by Bobcat, or in the event Bobcat is unable to Update the Software due to inadequate internet access to the Product (as applicable), then Customer agrees to hold Bobcat harmless for all Claims and Losses arising related to the Products and Software that would have been avoided had the Software been Updated.
6. Termination for Cause. Bobcat may terminate this EULA upon Customer's failure to cure a material breach of this EULA if Customer fails to cure such material breach within thirty (30) days of the date that notice of such material breach is provided Bobcat. The license and all use rights granted in Section 2 of this EULA shall immediately terminate upon the termination of this EULA. In the event Bobcat terminates this EULA for cause, Customer must immediately stop using the Product and Software. Bobcat may, at its sole option, purchase back the Product from Customer at the then-current fair market value of the Product.
7. Sale of the Product. The license granted in this EULA is non-assignable and non-transferable by Customer. Notwithstanding the foregoing, Customer may permanently transfer its rights under this EULA in connection with the sale or ownership transfer of the Product. If Customer sells or otherwise transfers ownership of the Product, Customer agrees that it will require such transferee to accept the terms of this EULA, without modification, on the date of sale or transfer of title of the applicable Product. No sale or other transfer will relieve Customer of any of its obligations or performance under this EULA. This EULA is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
8. Audit. Upon Bobcat's request, Bobcat, or a third-party on Bobcat's behalf, may audit Customer's compliance with the terms of this EULA. In the event Bobcat determines that Customer is noncompliant with any terms or conditions of this EULA, Bobcat may provide notice of termination for cause under Section 6 of this EULA.
9. Representations. Each party represents to the other that: (a) where the party is an organization, it is duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the power and authority to enter into and perform its obligations under this EULA; (b) the person executing and delivering this EULA on behalf of such party is duly authorized to make such execution and delivery; (c) this EULA constitutes a valid obligation, binding upon and enforceable against each such party in accordance with its terms; and (d) execution and delivery of this EULA and the performance of each such party's obligations do not breach any contract between such party and any third party.
10. DISCLAIMER. THE LAWS OF CERTAIN JURISDICTIONS, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS, GUARANTEES, COVENANTS OR REPRESENTATIONS WITH RESPECT TO CONSUMERS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
EXCEPT FOR THE EXPRESS REPRESENTATIONS SET FORTH IN SECTION 9, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOBCAT DISCLAIMS ALL REPRESENTATIONS, GUARANTEES, COVENANTS, WARRANTIES AND CONDITIONS ARISING UNDER THIS EULA AND RELATED TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. THE SOFTWARE IS PROVIDED "AS IS". BOBCAT DOES NOT REPRESENT OR WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE, SECURE, OR FREE FROM VIRUSES. BOBCAT DOES NOT WARRANT THAT ERRORS IN THE SOFTWARE WILL BE CORRECTED.
11. EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BOBCAT OR ITS REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, LIQUIDATED OR CONSEQUENTIAL LOSS OR DAMAGE, NOR FOR CLAIMS OF LOST PROFITS, LOST TIME, LOST DATA, LOST REVENUE OR LOSS OF USE, ARISING OUT OF OR RELATED TO THE ACTIVITIES CONTEMPLATED BY THIS EULA OR THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, WHETHER THE CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR OTHERWISE, AND EVEN IF BOBCAT HAS EXPRESS KNOWLEDGE OF THE POSSIBILITY OF THE LOSS OR DAMAGE.
12. LIMITATION OF LIABILITY. THE LAWS OF CERTAIN JURISDICTIONS, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, DO NOT ALLOW THE LIMITATION OF LIABILITY OR CERTAIN DAMAGES WITH RESPECT TO CONSUMERS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. BOBCAT AND ITS REPRESENTATIVES' MAXIMUM, AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE ACTIVITIES CONTEMPLATED BY THIS EULA OR THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, IS LIMITED TO $200 U.S.D., EVEN IF ANY REMEDY PROVIDED FAILS OF ITS ESSENTIAL PURPOSE. SUBJECT TO APPLICABLE LAW, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, ANY CLAIM MADE BY CUSTOMER SHALL BE MADE BY FILING A DEMAND WITHIN ONE (1) YEAR FOLLOWING THE OCCURRENCE FIRST GIVING RISE TO THE CLAIM.
13. Liability for Users. Customer is solely and exclusively liable for all acts and omissions of any person who uses a Product that is owned, rented or leased by Customer, including without limitation, each such person's compliance with the terms of this EULA and any such person's breach of this EULA. Customer agrees to notify each user of the Products of his/her obligations under this EULA.
14. Indemnification. Customer will defend Bobcat and its Representatives from any Claims and indemnify and hold harmless Bobcat and its Representatives from any Losses arising from or related to: (i) Customer's infringement or misappropriation of Bobcat's Intellectual Property Rights, including without limitation breach of the license grant or use restrictions herein; (ii) Customer's breach of this EULA; (iii) Customer's use of the Product with a superseded version of Software; (iv) Customer's violation of applicable laws; (v) Customer's recklessness, fraud or willful misconduct; (vi) third-party claims of injury or death, or damage to property, caused by the acts or omissions of Customer; (vii) Customer's use of the Software; (viii) any person's use of the Software or Products (excluding Bobcat's use) in breach of this EULA while such Product is owned, rented or leased by Customer; and (ix) third-party claims (including but not limited to employee claims) arising from Customer's failure to secure consent or provide notice for Bobcat's use, disclosure or processing of data collected from the Products, including personal information, as set forth in this EULA. Bobcat reserves the right to assume the exclusive defense and control of any matter subject to indemnification by Customer, in the event that Customer does not promptly agree in writing to take responsibility for any Claim subject to indemnification for which Bobcat provides notice of hereunder and Bobcat will be entitled to indemnification for such.
15. Confidentiality. The Software, including the source material and source code, and all know how, techniques, trade secrets, ideas, principles, architecture, scripts, and concepts which underlie the Software, this EULA, Bobcat's Intellectual Property Rights, and anything marked as confidential or proprietary, or which Customer should reasonably know to be confidential or proprietary by the nature of the information or the context of the disclosure are Bobcat's confidential or proprietary information ("Confidential Information"). Customer shall hold Bobcat's Confidential Information in strict confidence. Customer shall not disclose the Confidential Information to any third party without Bobcat's prior written consent. Customer shall not use Bobcat's Confidential Information except to perform its obligations or exercise its rights under this EULA. If compelled by applicable law or court order to disclose Confidential Information, then, to the extent legally permitted, Customer shall: (a) provide Bobcat prior written notice with sufficient time to challenge the request or seek a protective order, and (b) only disclose the minimum amount of Confidential Information necessary to comply with the applicable law or court order. Customer shall promptly provide written notice to Bobcat of any known or suspected breach of Bobcat's Confidential Information. Upon termination of this EULA, or anytime upon request, Customer will destroy or return to Bobcat all Confidential Information, including all copies, whichever is requested, and certify in writing that it has complied with the requirements of this provision.
16. Data Collected From the Products.
a. Privacy Statement. Customer acknowledges and agrees that Bobcat will collect, use, share and protect data collected from the Products, including but not limited to personal information, as set forth in the Privacy Statement. The Privacy Statement is incorporated into this EULA by reference. BY EXECUTING THIS EULA, CUSTOMER UNDERSTANDS THAT IT IS AGREEING TO THE USE OF DATA COLLECTED FROM THE PRODUCTS, INCLUDING PERSONAL INFORMATION, IN ACCORDANCE WITH THE PRIVACY STATEMENT.
b. Right to Provide Data. Customer represents and warrants that it has all rights necessary to permit Bobcat to collect, use and share the data collected from the Products, including personal information and Machine IQ Data, or any subset thereof, as contemplated by the Privacy Statement. Customer represents and warrants that is has secured all legally required and industry standard consents from and/or provided all necessary notices to the users of the Products for Bobcat's collection, use, disclosure and processing of the data collected by the Products, including personal information and Machine IQ Data, as set forth in the Privacy Statement. This may include, without limitation, providing notices or requiring employees and contractors to sign acknowledgements of the Privacy Statement.
17. General Terms.
a. Compliance with Laws. Customer agrees to comply with all laws applicable to its use of the Software and its performance under this EULA, including without limitation any applicable import and export laws and regulations applicable to the Software.
b. Assignment. Subject to Section 7, Customer may not assign this EULA, in whole or in part, without Bobcat's prior written consent. Any attempted assignment by Customer in violation of this Section is void. Bobcat may assign this EULA, in whole or in part, without obtaining Customer's consent.
c. Force Majeure. No delay, failure, or default by Bobcat will constitute a breach of this EULA to the extent it results of causes beyond its reasonable control, including acts of War, terrorism, weather, acts of God or nature, strikes, labor disputes, riots, civil disorder, embargo, internet outage, telecommunications issues, earthquake or the like.
d. Injunctive Relief. Breach of the confidentiality obligations or Bobcat's Intellectual Property Rights may cause irreparable harm to Bobcat, and as such, Bobcat is entitled to seek injunctive relief for any breach or threatened breach of such provisions without the need to post bond or other security, or the need to prove actual damages.
e. Generally. Waivers of rights, obligations, or breaches may only occur in a signed writing by the waiving party. All provisions of this EULA that by their nature are intended to survive the termination of this EULA shall so survive. Notices must be in writing and will be considered delivered when delivered in person, or given by certified or registered mail (postage prepaid, return receipt requested) or by overnight mail to (i) Bobcat at the address on the first page of this EULA with "Attn: Legal Department" and (ii) to Customer at the most recent contact information Bobcat has on file for Customer. This EULA shall not be construed as creating any agency, partnership, joint venture, or other similar legal relationship between the parties. Neither party has the authority to create any obligation or make any commitments on the other party's behalf. Except as otherwise provided herein and subject to applicable law (which may include the Province of Quebec), this EULA shall be governed by the laws of the state of New York, without regard to conflict of law's provisions. The parties exclude application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) from this EULA.
f. Entire Agreement. This EULA and the Privacy Statement contain the entire agreement between the parties with regard to the subject matter of the Software, and supersedes all prior or contemporaneous negotiations, discussions, understandings or agreements between the parties regarding such subject matter. Neither party has relied upon any prior or contemporaneous communications. Additional terms and conditions may apply with regard to specific Bobcat applications, portals or websites either as set forth therein or as otherwise agreed to in a signed writing between the parties. Any provisions of this EULA held invalid shall be severed and the remaining provisions shall continue in full force and effect. The parties agree that any amendment to this EULA must be in writing and signed by the authorized representatives of both parties.
18. Terms Specific to New Jersey Consumers. If Customer is a New Jersey resident, and to the extent this EULA deemed a consumer agreement, no provision in this EULA shall apply to any consumer if the provision limits remedies for (i) negligence, (ii) products liability claims, (iii) the punitive damages laws, (iv) the New Jersey Uniform Commercial Code, or (v) failure to reasonably protect against harm arising from certain criminal acts of third parties. The provisions of this EULA concerning the exclusion or limitation of certain damages are not applicable in New Jersey with respect to statutory damages, punitive damages, loss of data, and loss of or damage to property. Bobcat reserves all rights, defenses and permissible limitations under the laws of New Jersey and under the laws of Customer's state of residence.
19. Terms Specific to Consumers in Canada.
If Customer is a Canadian resident and a consumer, and to the extent this EULA is deemed a consumer agreement, the following terms apply to Customer:
a. Quebec Consumers. Notwithstanding the provision below to the contrary, in the event of conflict between the English and French versions of this EULA, the terms most favorable to the consumer shall apply.
b. Reservation of Rights. Bobcat reserves all rights, defenses and permissible limitations under the laws of Canada, including, but not limited to, the Province of Quebec.
20. Translation. The official text of this EULA shall be in the English language, notwithstanding any translations provided in French or any other language. Except as otherwise set forth herein, the English language version of this EULA shall control in all respects, including, but not limited to, any interpretation or construction of this EULA, in the event of any discrepancies between the English and French (or other language) translations of this EULA. It is the express wish of the parties that this EULA and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.
ALL HANDWRITTEN CHANGES TO THIS EULA ARE VOID (INCLUDING A CROSS-OUT TO THIS SENTENCE, IF ANY).