This DEALER END USER LICENSE AGREEMENT ("EULA") is part of the Dealer Sales Agreement ("Dealer Agreement") in effect 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 dealer participating in the Features On Demand Limited Launch("Dealer"). In the event of conflict between this EULA and the dealer’s current Dealer Sales Agreement (“Dealer Agreement”), this EULA shall control with respect to Software, and the Dealer Agreement shall control with respect to all other terms and conditions. BY PARTICIPATING IN THE FEATURES ON DEMAND LIMITED LAUNCH, DEALER ACCEPTS THIS EULA AND AGREES TO BE BOUND BY ITS TERMS.
Bobcat sells certain products further described in the Dealer Agreement ("Products") that contain Software (defined below) which Dealer may be required to use in its performance as a dealer of Products pursuant to the Dealer Agreement. Dealer is an independent contractor and not an agent of Bobcat. Subject to the terms of this EULA, Bobcat agrees to provide the license and use rights to the Software to Dealer as set forth herein. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions. Capitalized terms have the definitions set forth below and as otherwise defined throughout the EULA.
"APR" means Dealer's area of primary responsibility, which is further defined in the Dealer Agreement.
"Claim" means an action, demand, claim or lawsuit.
"Customer EULA" means the Customer End User License Agreement between Bobcat and the customer, as updated from time-to-time and included as part of a delivery report. \
"Documentation" means all specifications, manuals and user guides made available by Bobcat for the Software or Products that address the use of Software.
"End User" means a purchaser, renter or lessee of a Product to whom Dealer sells, rents or leases a Product, or provides Product support to, pursuant to the Dealer Agreement.
"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, Diesel Exhaust Fluid performance data, and other diagnostic and performance data.
"On Demand Software" means additional Software options in a Product that an End User 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 ("Privacy Statement").
"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, 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.
“Trade area” means Dealer’s APR and/or measured counties which is further defined in the Dealer Agreement.
"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 Dealer's compliance with the terms of this EULA and the Dealer Agreement, including but not limited to the receipt of payment for the Products in the Dealer Agreement, Bobcat grants to Dealer a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable right and license for Dealer to use the Software in the APR or trade area, solely as necessary for Dealer's use of the Products as contemplated by the Dealer Agreement, such as for marketing, displaying and demonstrating the Products, and providing support for the Products to End Users. The license granted in this Section only lasts for so long as Dealer owns or supports the applicable Product.
b. Documentation. Dealer may use the Documentation for so long as Dealer owns or supports the Products for the purpose of aiding in Dealer's use and support of the Products and Software as permitted in the Dealer Agreement and this EULA. Dealer may make one copy of the Documentation for its internal backup and training purposes.
c. Demonstration. At Dealer's reasonable discretion or upon request from an End User, Dealer is permitted to enable the On Demand Software in a Product using the short-term "demonstration" functionality made available by Bobcat (e.g. using a mobile application paired with the Product). Such On Demand Software demonstration will expire after its allotted time period. Dealer may provide as many demonstrations of On Demand Software to an End User as Bobcat has enabled for a particular Product or On Demand Software option. Dealer shall not override any limitations placed on demonstration options for On Demand Software by Bobcat.
d. On Demand Software. The Products contain On Demand Software which shall not be enabled, accessed or used by Dealer except for (i) demonstration purposes as set forth in Section 2c, (ii) when purchased by an End User, or (iii) disabled when returned by an End User, as described in the section 14. D of the Dealer Agreement. Except as set forth in the previous sentence, Dealer shall not enable, access or use the On Demand Software.
3. Use Restrictions. Dealer 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. Dealer shall not remove the Software from the Product or access the Software independently of Dealer's use of the Product. Dealer shall only use the Software as permitted in the Documentation, the Dealer Agreement or this EULA. Dealer shall not permit the Software to be accessed or used by a competitor of Bobcat, and Dealer shall not use, or attempt to use, the Software to create software or a product that competes with any Bobcat product, service or software. Dealer 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 and Documentation, including all enhancements, derivative works, improvements and modifications thereto. Dealer acknowledges and agrees that the Software and Documentation are proprietary to Bobcat and its licensors, and are protected under copyright law, trade secret law and other applicable laws governing confidential and proprietary information. Dealer shall not remove or modify any copyright, trademark or other proprietary markings or notices in the Software or Documentation.
b. Ownership of Machine IQ Data: Dealer 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 Dealer acquires any rights in or to the Machine IQ Data, Dealer hereby assigns to Bobcat all right, title and interest therein.
c. Feedback. Dealer 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 Dealer ("Feedback").
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.
5. Updates. BOBCAT MAY, BUT IS NOT REQUIRED TO, PROVIDE UPDATES TO THE SOFTWARE IN ITS SOLE DISCRETION.
a. Products at the Dealership. Dealer will promptly install Updates made available by Bobcat to all Products in Dealer's possession or control, or permit Bobcat to automatically install Updates. Further, Dealer will permit network providers to remotely update network information for those Products with internet-connected functionality, as applicable. If Products with internet-connected functionality do not have an adequate internet connection, or if the internet-connected functionality is disrupted, Dealer may not receive applicable Updates and therefore the Products may not work properly if Updates are not installed. In the event Dealer 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 Dealer agrees to hold Bobcat and its Representatives harmless from all Claims and Losses arising related to the Products and Software that would have been avoided had the Software been Updated.
b. Cooperation Providing Updates. In the event Bobcat requires delivering an Update to any End User to whom Dealer has sold a Product to or to any End User located in the Dealer's APR or trade area, Dealer will (1) work in good faith with Bobcat to locate and contact each applicable End User, and (2) help Bobcat deliver the Update to each such End User.
6. Additional Hardware. In the event an Update or any On Demand Software requires the purchase of additional hardware or other materials, the cost of such hardware or other materials shall be borne solely by Dealer.
7. Termination for Cause. Bobcat may terminate this EULA upon Dealer's failure to cure a material breach of this EULA if Dealer fails to cure such material breach within thirty (30) days of the date that written notice of such material breach is sent by Bobcat. The license and all use rights granted in Section 2 of this EULA shall immediately terminate upon the termination of this EULA. For clarification purposes, if Bobcat terminates this EULA for cause, Bobcat is entitled to terminate the Dealer Agreement for cause pursuant to the terms therein. Dealer must immediately stop using the Products and Software at termination of this EULA.
8. Effect of Termination of the Dealer Agreement. The required pass-through terms and conditions for End Users are set forth in the Dealer Agreement. For the sake of clarity, the license in this EULA is non-transferable and non-sublicensable, including but not limited to at termination of the Dealer Agreement. After termination of the Dealer Agreement, if Dealer sells any remaining Products in stock to a third party, such sale is subject to that third party's: (a) execution of a Customer EULA, and (b) acknowledgement of receipt of the Privacy Statement, at the time of such sale. Each executed and acknowledged Customer EULA and Privacy Statement must be promptly provided to Bobcat.
9. Audit. Upon Bobcat's request, Bobcat, or a third-party on Bobcat's behalf, may audit Dealer's compliance with the terms of this EULA at a time that minimizes business interruptions to Dealer. In the event Bobcat determines that Dealer is noncompliant with any terms or conditions of this EULA, Bobcat may provide notice of termination for cause under Section 7 of this EULA.
10. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BOBCAT DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, GUARANTEES, COVENANTS AND CONDITIONS ARISING UNDER THIS EULA AND RELATED TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, GUARANTEES, COVENANTS 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, FREE FROM VIRUSES OR 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 ACTIVATIONS CONTEMPLATED BY THIS EULA OR THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, AND EVEN IF BOBCAT HAS EXPRESS KNOWLEDGE OF THE POSSIBILITY OF THE LOSS OR DAMAGE.
12. LIMITATION OF LIABILITY. BOBCAT AND ITS REPRESENTATIVES' MAXIMUM, AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE ACTIVATIONS CONTEMPLATED BY THIS EULA OR THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, IS LIMITED TO $200 U.S. DOLLARS, EVEN IF ANY REMEDY PROVIDED FAILS OF ITS ESSENTIAL PURPOSE.
13. Liability for Users. Dealer agrees that it is solely and exclusively liable for all acts and omissions of any person who uses a Product when such Product is in the possession or control of Dealer, including without limitation, each such person's compliance with the terms of this EULA and any person's breach of this EULA. Dealer agrees to notify each user of the Products of his/her obligations under this EULA.
14. Indemnification. Dealer 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) Dealer's infringement or misappropriation of Bobcat's Intellectual Property Rights, including without limitation breach of the license grant or use restrictions herein; (ii) Dealer's breach of this EULA; (iii) Dealer's use of the Product with a superseded version of Software; (iv) Dealer's violation of applicable laws; (v) Dealer'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 Dealer; (vii) any person's use of the Software or Products (excluding Bobcat's use) in breach of this EULA while such Product is in the possession or control of Dealer; and (viii) third-party claims (including but not limited to employee claims) arising from Dealer'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.
15. Confidentiality. Bobcat may share certain confidential or proprietary information with Dealer relating to the activities contemplated by this EULA ("Confidential Information"). Confidential Information includes 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, the Documentation, this EULA, Bobcat's Intellectual Property Rights, and Bobcat's financial, business, technical, operational and proprietary information, which may be marked as confidential or proprietary, or which Dealer should reasonably know to be confidential or proprietary by the nature of the information or the context of the disclosure.
Dealer shall hold Bobcat's Confidential Information in strict confidence, only disclosing it to those employees with a need to know to perform under this EULA and who have been informed of and agree to the confidentiality requirements herein. Dealer shall not disclose the Confidential Information to any third party without Bobcat's prior written consent; if such consent is granted, disclosure shall not occur until such third party has signed a confidentiality agreement with terms at least as protective as set forth herein. The only purpose for which Bobcat's Confidential Information may be used by Dealer is for Dealer to perform its obligations or exercise its rights under this EULA. Dealer 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, Dealer 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. Dealer acknowledges and agrees that Bobcat will collect, use, share and protect data collected from the Products as set forth in the Privacy Statement. The Privacy Statement is incorporated into this EULA by reference. Dealer 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. Dealer 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 from the Products, 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. Assignment. Dealer may not assign this EULA, in whole or in part, without Bobcat's prior written consent. Any attempted assignment by Dealer in violation of this Section is void. Bobcat may assign this EULA, in whole or in part, without obtaining Dealer's consent. This EULA is binding upon and inures to the benefit of the parties' respective successors and permitted assigns.
b. Force Majeure. No delay, failure, or default by Bobcat will constitute a breach of this EULA to the extent it results from 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, earthquakes or the like.
c. 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.
d. Generally. Waivers of rights, obligations, or breaches may only occur in a signed writing by the waiving party. Any provisions of this EULA held invalid shall be severed and the remaining provisions shall continue in full force and effect. All provisions of this EULA that by their nature are intended to survive the termination of this EULA shall so survive. All legal notices must be in writing and are deemed delivered upon receipt at the addresses set forth for the parties in the Dealer Agreement or as otherwise updated by the parties in writing from time to time. This EULA shall be governed by the laws of the State of New York, without regard to its conflict of laws principles. Each party agrees to comply with all laws applicable to its performance under this EULA. Dealer agrees to comply with all applicable import and export laws and regulations applicable to the Software.
e. Entire Agreement. This EULA, the Dealer Agreement 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. 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 amendment to this EULA must be in writing and signed by the authorized representatives of both parties. This EULA has been carefully reviewed and fully negotiated by the parties and shall not be construed against either party on the grounds that all or any section of the EULA was drafted by any particular party.