Kubota Telematics Terms of Use

KUBOTA TELEMATICS TERMS OF USE
Service Terms of Use & End User Service Agreement

1. Service
2. Authorized Users and Use; Limitations.
3. Registration; Payment
4. Grant of License; License Restrictions
5. Consent to Transmission and Use of Data; License and Aggregate Data; Compliance with Laws
6. Privacy and User Data
7. Modification of Services
8. Network Coverage, GNSS Satellites, Interruption of Service
9. No Warranties; Customer Responsibility for Devices, Risk of Loss and “Alert” Feature Configuration.
10. Limitation of Liability
11. Customer Indemnification
12. Intellectual Property Rights
13. Suspension, Discontinuation or Cancellation of Service to Customer; Cancellation Fee
14. International
15. Notices and Electronic Communications
16. U.S. Government Restricted Rights [Applies only to U.S. Government Licensees]
17. Legal Disputes and Mediation
18. Governing Law
19. General Provisions
20. Official Language

These  terms of use (“Terms” or “TOU”) are between you  (“you” or “ Customer”)  and Kubota Tractor Corporation (“Kubota”) and apply to the telematics software and devices (the “Service” ) proprietary to Kubota Tractor Corporation, its affiliates,  and,  its licensors (“Kubota”, “we” or “us” ), connected to your Kubota machines or vehicle (“Equipment”), and available to be monitored to generate reports through Kubota portals (the “Sites”).

You, an individual or a single company or legal entity and the personnel associated with your business (collectively, “you” or “Customer”), will be granted access to use the Service for your internal business purposes, conditioned upon your acceptance of these TOU. If you are agreeing to these TOU on behalf of a company or other legal entity, you represent that you have the authority to contractually bind such entity and its personnel.

BY AGREEING AND/OR BY ACCESSING OR USING THE SERVICE OR THE SITE, YOU REPRESENT THAT YOU ARE AUTHORIZED TO USE THE SERVICE AND THAT YOU AGREE TO BE BOUND BY THE CURRENTLY POSTED TOU . SUBJECT TO SECTION 7.2 BELOW, CONTINUED USE OF THE SERVICE FOLLOWING POSTING OF ANY CHANGES TO THE TOU CONFIRM ACCEPTANCE OF THOSE CHANGES.

USE OF THE SERVICE AND THE SITE ARE OFFERED TO YOU CONDITIONED UPON YOUR ACCEPTANCE OF THESE TOU WITHOUT ANY MODIFICATIONS. THE TOU CONTAIN DISCLAIMERS OF WARRANTIES AND LIABILITY (See Sections 3, 4, 6.4, 7.1, 8, 9, 10, and 13.1 below). THESE PROVISIONS FORM AN ESSENTIAL PART OF OUR BARGAIN.

Notice Regarding Dispute Resolution: These Terms contain provisions governing how claims you and Kubota have against each other are resolved (see Legal Disputes and Mediation Section below), including an obligation to mediate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding mediation, unless you opt-out in accordance with the Legal Disputes and Mediation Section below.

Effective Date: June 29, 2020

1.1 General Description. The Service is designed to gather and process data and information (“Data”) transferred from Kubota-supplied monitoring devices (“Devices”) installed in your Equipment; the data transferred and use of the data as set forth in the Kubota Tractor Corporation Privacy Statement for Telematics Services (“KTC PSFTS”). The features of the Service may change from time to time, including but not limited to the types of Data to be transferred/monitored, forms of reports, etc. Your access to the Services takes effect when you have accepted these TOU and will continue in effect until terminated by you or Kubota as permitted in these TOU.

The Service may be subject to additional terms and conditions either posted on the Sites or contained in other ordering documentation.

The availability of the Service may be affected, inter alia, by planned and unplanned maintenance periods, technology upgrades and as otherwise set forth in these TOU or any description of the Service.

The Service may include third-party software or services (“Third Party Software/Services”) furnished by one or more third parties (“Third Party Suppliers”).

1.2  Third Party Communications Systems.  Some features of the Service may require use of third party communications systems, such as Internet access and/or wireless or satellite-based communication systems (each, a “Communications Service”). UNLESS THE COMMUNICATION SERVICE IS EXPLICITLY MADE PART OF A SERVICE PLAN, CUSTOMER SHALL PURCHASE THESE COMMUNICATION SERVICES SEPARATELY AS ITS OWN RESPONSBILITY. KUBOTA HAS NO RESPONSIBILITY FOR THE AVAILABILITY, QUALITY OR PERFORMANCE OF ANY COMMUNICATIONS SERVICE NOT FURNISHED BY KUBOTA. 

1.3  Data Exchange and Third Party Interfaces.  The Service may permit the communication, transfer and exchange of data between the Service and Kubota-branded devices or systems as well as certain third-party manufactured devices or systems (“Third-Party Assets”). Kubota does not exercise control over the form or quality of data generated or transmitted by or to third-party manufactured assets, devices or other third-party developed solutions such as custom reports or interfaces (collectively, “Third-Party Data”). You understand and agree to the following:

Data may only be exchanged between the Service and Third-Party Assets approved by Kubota; Kubota’s approval of a Third-Party Asset does not guarantee that it will operate properly with the Service;

• Data may only be exchanged between the Service and Third-Party Assets approved by Kubota;
• Kubota’s approval of a Third-Party Asset does not guarantee that it will operate properly with the Service;
• Kubota is not responsible for the quality or accuracy of, or the ability to receive, access or use Third-Party Data that may be sent from or received by Third-Party Assets;
• Kubota may control all Third-Party Data transmitted to and from the Service, and may stop or block any Third-Party Data that Kubota believes may adversely affect performance of the Service.

2.1  Authorized Users. You agree that the Service will be accessed and used only by you and those personnel of yours whom you authorize to access and use the Service (“Authorized User”). You are responsible to assure that the access credentials of one Authorized User are used only by that Authorized User and no other person. We are not responsible for problems with or failures of internet or other electronic communications beyond our control.

2.2  Limitations on Use. Transmission of information using a Device may be subject to legal requirements that may vary from location to location, including radiofrequency use authorization. You must limit use of any Device to those locations where all legal requirements for the use of the Device and the Service communication network have been satisfied. In the event that a Device is used at a location where (i) legal requirements are not satisfied or (ii) transmitting or processing of such information across multiple locations would not be legal, we disclaim any and all liability related to such failure to comply and Kubota may discontinue the transmission of information from that Asset. You also understand and acknowledge that the Service is not intended to be used for any emergency, safety or mission critical or safety related use or application or other ultra-hazardous activities and you shall not use the Service in that manner.

3.1  Customer Account. In order to log on to the Site and use the Service, an account for you will be created and activated and you may create access credentials or connections for you and Authorized Users and Devices. In the process of creating the account and access credentials you will be asked to provide Kubota with true, accurate, current and complete registration information in relation to you and your Authorized Users and to update such information as necessary. Should we have reasonable grounds to suspect that any information provided in relation to you or an Authorized User is inaccurate, incomplete or untrue, we have the right to suspend or terminate your or the Authorized User ’s right to access and use the Service.

3.2  Site Access & Password; Security. You are responsible for maintaining, and you shall cause all Authorized Users to maintain, the confidentiality of your and your Authorized Users ’ usernames and passwords and are fully responsible for all activities that occur on the Site under your designated Authorized Users’ usernames and passwords. We may require you to change your designated Authorized Users’ usernames in the event we determine, in our sole discretion, that any username is offensive or for any other reason. You agree to immediately notify Kubota of any unauthorized use of any Authorized User’s username, password, or any other breach of security, and to ensure that Authorized Users logout at the end of each session. You are responsible for disabling the accounts of any Authorized User no longer employed by you. You acknowledge that Kubota is not responsible for tracking your Authorized Users ’ use of the Service, and that Kubota cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 3.

3.3  Payment. You agree to pay all charges and fees in accordance with the payment terms applicable. If data transmission is included, such transmission may be subject to certain limits. You agree to reimburse Kubota for any charges for data transmission in excess of these limits as well as any activation and de-activation charges that may be imposed by the transmission service provider because of your conduct in accordance with the service provider’s terms.

4.1  Limited License to Customer. Subject to your compliance with these TOU and payment of all applicable fees, Kubota grants you a limited, non-exclusive, non-transferable, non-assignable, revocable license (without the right to sublicense) to use the Service for your personal business purposes and not for resale or other distribution. All rights not expressly granted to you herein are reserved by Kubota and its suppliers and licensors.

4.2  License Restrictions - No Misuse of Services. Your use of the Service is limited to those uses expressly permitted under these TOU. As a condition of your use of the Service you agree that you will not use it for any purpose that is unlawful or prohibited by these TOU. We may restrict or cancel the Service to you if there is a reasonable suspicion of, or any actual misuse or fraudulent use by you. You will be responsible for any costs incurred by us or any other party (including attorney’s fees) as a result of such misuse or fraudulent use. You may not: (i) reproduce, modify, publish, distribute, publicly display, adapt, alter, translate, or create derivative works from the Service, or any Third Party Software/Services; (ii) merge any Service-related software or Third Party Software/Services with other software; (iii) sublicense, lease, sell, rent, loan, or otherwise transfer the Service or associated software or Third Party Software/Services to any third party; (iv) reverse engineer, de -compile, disassemble, or otherwise attempt to derive the source code for any Service-related software or Sites, including any Third Party Software/Services; (v) otherwise use or copy the Service or associated software or Third Party Software/Services except as expressly allowed under the TOU, including this Section 4; (vi) use the Service or associated software or Third Party Software/Services in a “service bureau” or similar structure whereby third parties obtain use of the Service or Third Party Software/Services through you; (vii) remove, obscure, or alter any copyright, trademark, or other proprietary notices embedded in, affixed to or accessed in conjunction with the Service, associated software, and/or the Sites; (viii) damage, disable, overburden, interfere with, disrupt or impair the Service or Sites, or servers or networks connected to them, in any manner; (ix) interfere with any other party ’s access, use or enjoyment of the Service or the Sites in any manner; (x) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, laws and regulations related to export; or (xi) impersonate any person or entity or misrepresent your affiliation with a person or entity.

4.3  Third Party Software/Services. You hereby acknowledge and agree that any Third Party Software/Services that may be bundled with the Service (e.g., maps) is/are being provided to you by Third-party suppliers and not by Kubota. You hereby acknowledge and agree that your access or use of any such Software/Services is governed by such Third Party Suppliers ’ terms of use, end user license agreement or other like agreement, and in absence of such terms or agreement, by these TOU. KUBOTA EXPRESSLY DISCLAIMS ANY LIABILITY IN CONNECTION WITH ANY THIRD PARTY SOFTWARE OR SERVICES OR YOUR USE (OR ANY AUTHORIZED USER ’S USE) THEREOF.

5.1  Consent to Data Transmission and Use.  You acknowledge that Kubota retains all rights, title and interest in and to the data transmitted and any interest You may have shall be assigned to Kubota. The Data transmitted may include such information that is described in the service description and the KTC PSFTS.

Data is processed on your behalf. You agree to permit the Service to transfer Data to Kubota Parties (defined below). If you elect to do so, you may cause the Service to transfer Data to Authorized Users.

Certain information (feeds, definition files, etc.) may be synchronized or updated automatically from time to time via the Service, including when: (i) the Service is successfully installed by you; (ii) you fail to install the Service successfully; (iii) the Service has been successfully configured and / or (iv) the Service is uninstalled. You acknowledge and consent that any data collected may be sent to any Kubota office or any Kubota Party (as defined in Section 9 below) for processing in locations, depending on your location, throughout the USA and Canada in accordance with the provisions of these TOU. You may be required to download Software (Service- related or otherwise) and the Services may automatically update the Software installed on any Device when a new version is available.

Data may be transmitted and used via the Service for the following purposes: (a) providing the Service to you; (b) checking or maintaining Devices and/or Equipment supported by the Service; (c) monitoring the location, operation, health, performance, and other pertinent machine information regarding your Service-connected Equipment; (d) evaluating or improving the Service and/or other products and services; and (e) complying with legal requirements and valid court orders, as applicable.   Kubota may also combine the Data imported from your Devices/Equipment with that of other users of the Service to create aggregated data (“Aggregated Data”) for the principal purposes of tracking market trends and developing new or improved service offerings. .  The Data is transmitted to Kubota or to one or more of its Affiliates.  Kubota may transmit and share some or all of the collected Data with its dealer(s), its Affiliates and their dealers, Kubota ’s licensors, the manufacturer of your Devices and its dealers, and Kubota’s business partners worldwide who provide the Services, Devices, Equipment or related products and services to you.  Kubota may transmit and share Aggregated Data with other companies, governmental entities and business partners. 

5.2 License and Aggregate Data. To the extent that you have any ownership or other interests in the Data, you hereby grant to Kubota and its dealers, service providers, licensors, affiliates and their dealers, a non-exclusive, perpetual, worldwide, paid-up, and irrevocable license to use, process, manipulate and/or modify, copy, perform, compile and create derivative works from the Data, including using the Data for any business purpose. All other data and information that is collected, transmitted, recorded, or accessed by or through the Service that is not Data identifiable to you and/or your Authorized Users, and all data, reports, derivative works, compilations, modifications and other materials created from or with use of Data will be, in each case, the sole and exclusive property of Kubota; and you, on your behalf and on behalf of your Authorized Users, hereby assign all of your and their right, title and interest, if any, in and to such items to Kubota without any fees and without rights to future royalties.

5.3     You agree that you shall not (directly or indirectly) export, re-export, import, transfer, or divert the Devices, Equipment, Services or Confidential Information in whole or in part (i) without all necessary authorizations required by law, or (ii) to any prohibited destination or to any prohibited person, entity or end user as specified by U.S. export control laws. Current information regarding the export regulations of the United States may be found through the Department of Commerce Bureau of Industry & Security website at http://www.bis.doc.gov/.  You agree to comply with all applicable local laws of the jurisdictions in which you conduct business, including the laws and regulations of the United States and of other jurisdictions (national, state and local) to the extent that they may govern your use of the Equipment, Services and Confidential Information and performance of your other activities under this Agreement.    You will indemnify and hold Kubota harmless for all costs, damages, fines, or other expenses and liabilities (including attorney fees) incurred by Kubota arising from your failure to comply with the terms of this provision, which shall also be considered a material default hereof entitling Kubota to immediately terminate this Agreement in addition to any other remedy available at law or equity. Your obligations under this provision shall survive the termination of this Agreement for any reason whatsoever.

6.1 To understand Kubota’s general data privacy practices, please review Kubota’s Privacy Statement, which can be viewed at any time at www.KubotaUSA.com/privacy-policy  specifically, the section related to telematics will define the collection, use, and distribution of telematics data. In the event of any conflict, however, these TOU will govern.

6.2 You acknowledge that some Data may be retraceable to individuals (“Personal Data”). Each time an Authorized User logs on to the Service and the Site, certain information, including the username, will be processed in the Service application software. This information is used to manage the Authorized User’s account, Services and other personalized features. Kubota may match the username to personally identifiable information in order to provide the Authorized User with Services that the Authorized User is entitled to use and to provide relevant Data and information. Additionally, the Service may permit collection of location-based Data in connection with your Devices and the Services provided (“Location Data”) so that the geographic location of the user may be identifiable.

6.3 The Service may be administered by Kubota from its offices or those of its affiliates or service providers at various locations within in the United States of America and/or Canada. Consequently, Data is collected, sent, processed and stored in the United States and/or Canada and may be collected, sent, processed and stored outside the USA. You acknowledge that in the event of conflict of privacy laws or practices in your jurisdiction and those in the domicile of the entity hosting the Service, the law applicable in the domicile of the entity hosting the Service will have precedence at all times.

6.4 You acknowledge that the Data and the Service may be transmitted through networks and signals that are not specifically protected or encrypted and where third party interception may be possible. You consent to such transmission and waive any claims that you may have against us with respect to such transmission.

7.1 Kubota may, at any time, modify, suspend or permanently discontinue the Service or Site, or any portion of them, with or without advance notice. Subject to section 13.2 below, no Kubota Party will be liable to you or to any third party for any such modification, suspension or discontinuance.

7.2 Kubota may modify and update the TOU if circumstances under which the TOU is entered into or, if applicable, the beginning of your participation in the Pilot, and Kubota will provide you with reasonable advance notice of any such changes. Your continued use of the Service following the effective date of any such changes will constitute confirmation of your acceptance of the updated TOU, unless you notify Kubota in writing within 10 business days of the notice that you do not accept them. In that case the TOU in effect at the time of your purchase or Pilot participation term (whichever is later) will remain in effect through the remainder of your then current term, unless Kubota, at its option, exercises its right to terminate the Service in accordance with section 13.1 below.

8.1 You acknowledge that the Services and network access may be subject to transmission limitations caused by a variety of factors such as atmospheric conditions, topographical obstructions, limitations or lack of coverage of the underlying carrier service and other natural or manmade conditions. To the extent that Devices or other hardware units receive signals from Global Navigation Satellite System (“GNSS”) you further acknowledge that Kubota is not responsible for the operation or failure of operation of any GNSS satellites or the availability of GNSS satellite signals.

8.2 Kubota will not be liable to you or any third party for any loss or damage arising from the Service, or its interruption, transmission errors (including Location Data inaccuracies), downtime of the Service due to maintenance or defects or any other cause, including, but not limited to, interruption caused by the underlying communications system carrier. Kubota does not assume and will not have any liability arising from events beyond Kubota’s control or the control of Kubota’s 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.

KUBOTA, ITS DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, SUPPLIERS, DEALERS, AFFILIATES, PARTNERS, SERVICE PROVIDERS, AND AGENTS (EACH A “KUBOTA PARTY” AND COLLECTIVELY THE “KUBOTA PARTIES”) DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR USE OF THE SERVICE AND SITE. YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (a) THE APPLICATION, SITE AND SERVICES 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 KUBOTA 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 COURSE OF DEALINGS OR USAGE OF TRADE, (iii) WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICE APPLICATION, SITE AND SERVICES, AND (iv) WARRANTIES THAT ACCESS TO OR USE OF THE SERVICE AND SITE WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED OR ERROR-FREE; AND (v) THAT YOU WILL ACCESS THE SITE AND USE THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM(S) OR LOSS OF DATA THAT RESULTS FROM SUCH ACCESS AND USE.

NOTWITHSTANDING YOUR USE OF THE SERVICE,-- AND REGARDLESS OF ANY INFORMATION PROVIDED THROUGH IT (WHETHER ACCURATE OR INACCURATE) REGARDING THE OPERATION, MAINTENANCE OR PERFORMANCE STATUS OF YOUR EQUIPMENT-- YOU REMAIN SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISK RELATED TO, THE PROPER OPERATION, SUPPORT AND MAINTENANCE OF SAID EQUIPMENT. YOU AGREE THAT YOU ARE SOLELY LIABLE AND WILL NOT SEEK RESTITUTION FROM ANY KUBOTA PARTY FOR ANY DAMAGE OR LOSS RELATED TO OR ARISING OUT OF ANY ACTION TAKEN BY YOU, YOUR AUTHORIZED USERS, OR AFFILIATES OF YOU OR YOUR AUTHORIZED USERS BASED ON DATA OBTAINED FROM A DEVICE/EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, UTILIZING OR ACTIVATING ANY FEATURE ON YOUR ASSET, DEVICE OR EQUIPMENT THAT MAY IMPACT THE OPERABILITY, PERFORMANCE, AND FUNCTIONING OF YOUR EQUIPMENT.

YOU ARE RESPONSIBLE FOR ANY RISK OF LOSS FOR ANY ITEMS REQUIRED TO COMMUNICATE WITH OR THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, DUE TO EQUIPMENT FAILURE, THEFT, FIRE, COLLISION, TAMPERING, AND VANDALISM.

THERE ARE NO WARRANTIES THAT EXTEND BEYOND THOSE EXPRESSLY GRANTED IN THE TOU.

UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL THE KUBOTA PARTIES BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, THIRD PARTY OR CONSEQUENTIAL (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, INTERRUPTION OR DISABLING OF DEVICE, EQUIPMENT, AND/OR VEHICLE, LOSS OF DATA, LOSS OF BUSINESS INFORMATION, VIRUS INFECTIONS, SYSTEM OUTAGES AND THE LIKE) ARISING OUT OF, BASED ON OR RESULTING FROM THE TOU OR YOUR ACCESS TO, USE OF, MISUSE OF OR INABILITY TO USE THE SERVICE OR THE SITE, EVEN IF KUBOTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING DAMAGES INCURRED BY THIRD PARTIES). THE EXCLUSION OF DAMAGES UNDER THIS SECTION 10 IS INDEPENDENT OF ANY REMEDY PROVIDED UNDER THE TOU 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 KUBOTA’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 KUBOTA WITHIN THE 12 MONTHS PRIOR TO THE MOST RECENTLY ENDED MONTH FOR YOUR ACCESS OR USE OF THE SERVICE.

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) IN NEW JERSEY OR ELSEWHERE OR IN THE EVENT OF PERSONAL INJURY ARISING SOLELY FROM A KUBOTA PARTY ’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

UPON OUR REQUEST, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS EACH OF THE KUBOTA 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 (A) VIOLATION OF THE TOU, OR (B) YOUR VIOLATION OF ANY LAW, REGULATION 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 Kubota in connection with or arising from any such claim, lawsuit, action, demand or other proceeding. Kubota 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 Kubota in asserting any available defenses.

12.1 You hereby agree and acknowledge that Kubota and its licensors (and as applicable, Third Party Suppliers of any software you may license in connection with the Service) own all right, title and interest in and to all Intellectual Property Rights (defined below) in connection with or relating to the Service and the Sites. “Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary or moral rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You will have no right, license, or interest therein, expressly or impliedly, except for any license expressly granted herein. Kubota or its licensors, as the case may be, will own all right, title and interest in and to any replacements, improvements, updates, enhancements, derivative works and other modifications (including, without limitation, the incorporation of any ideas, methods or processes provided by or through you) to Intellectual Property Rights made by any person, even if paid for by you and regardless of whether or not they are similar to any of your Intellectual Property Rights. You will undertake any and all action necessary to vest such ownership in Kubota, including without limitation assigning (and you hereby assign) to Kubota all rights in and to such Intellectual Property Rights, including, without limitation, patent applications, patents, moral rights and copyrights arising from or relating to the Service or the Site. Notwithstanding the foregoing, Kubota’s Intellectual Property Rights as they pertain to the Data, include only the rights granted to Kubota under Section 5 above.

12.2 You acknowledge that all trademarks, service marks, and logos (collectively, “Marks”) that appear throughout the Service or the Site belong to Kubota or the respective owners of such Marks, and are protected by U.S. and international trademark and copyright laws. Any use of any of those Marks without the express written consent of Kubota or the owner of the Mark, as applicable, is strictly prohibited. Kubota may, in appropriate circumstances and at its sole discretion, disable and/or terminate the accounts of Authorized Users who may be infringing the Intellectual Property Rights of others.

13.1 Kubota may suspend your access to the Sites and terminate your right to use the Service without liability, if

(i) you violate the TOU or any other valid agreement with Kubota;

(ii) fail to pay amounts owed when due, (whether due to Kubota directly or to the dealer or distributor);

(iii) the Communications Service through which you are able to access and use the Service terminates your communications service; or

(iv) Kubota has reason to believe that you, your Authorized Users, any of your agents or any third parties are abusing the Service or using it fraudulently or unlawfully.

13.2 Kubota may cancel or terminate your account due to your violation of these TOU or any other valid agreement with Kubota, or your insolvency, bankruptcy (or similar action or proceeding), or your ceasing to do business in the ordinary course, or your failure to notify Kubota of the transfer, sale or disposition of the Equipment. 

The Service is administered by Kubota from its offices or those of its affiliates or licensors at various locations within in the United States of America and/or Canada. Kubota makes no representation that Services are appropriate or available for use in locations outside the United States or Canada, and accessing them from territories where the Services are illegal is prohibited. You may not use or export or re-export the Service or its content or any copy or adaptation in violation of any applicable laws or regulations including, without limitation, United States export laws and regulations. If you choose to access the Service from locations outside the United States or Canada, you do so on your own initiative and are responsible for compliance with applicable local laws.

When you visit the Sites or send e-mail to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You may update your e-mail address by visiting the location on the Site where you have provided contact information. If you do not provide Kubota with accurate information, Kubota cannot be held liable if it fails to notify you. You may have the right to request that Kubota provide such notices to you in paper format, and may do so by contacting Kubota Tractor Corporation Attention: KubotaNow 1000 Kubota Drive, Grapevine, TX 76051. Any other communications should also be sent to that address.

The Service application, Site and the Services, their content and other materials, are deemed “commercial computer software” and “commercial computer software documentation” pursuant to DFAR Section 227.7202 and FAR Section 12.212 (and any successor sections). Use of the Service and the Site including, but not limited to, its reproduction and display, by the United States of America and/or any of its instrumentalities, regardless of form, is governed by the TOU.

17.1 Initial Dispute Resolution. Please submit any concerns you may have regarding your use of the Sites or the Service to: https://www.kubotausa.com/contact/form. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or mediation.

17.2 Terms of Service and Mediation Agreement. If any dispute should arise between the parties which cannot be resolved through negotiation, the parties shall endeavor to settle the dispute by mediation.  Either party may request in writing that the other party mediate the dispute; such notice shall set forth the subject of the dispute and the relief requested (“Dispute Notice”).  Unless the parties otherwise agree, the mediation shall be conducted by a mediator affiliated with and under the rules of JAMS or the International Institute for Conflict Prevention and Resolution (formerly known as the CPR Institute for Dispute Resolution) (“CPR”).The selection of an organization by the parties shall be made within ten (10) business days after a party requests mediation of a dispute pursuant to this provision.  If an organization/judge and applicable rules have not been agreed upon within such ten (10)-day period, then the dispute shall be mediated by a single neutral chosen by JAMS. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. 

17.3 Class Action Waiver.  The parties further agree that any mediation shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or mediator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that a case or mediation can proceed on a class basis, then the mediation provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to mediate disputes.

17.4 Exception – Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through mediation, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

17.5 30 Day Right to Opt Out.  You have the right to opt-out and not be bound by the mediation and class action waiver provisions set forth in the preceding three paragraphs by sending written notice of your decision to opt-out to https://www.kubotausa.com/contact/form  or Kubota Tractor Corporation Attention: KubotaNow Administrator 1000 Kubota Drive, Grapevine, TX 76051.The notice must be sent within thirty (30) days of creation of an account,  otherwise you shall be bound to mediate disputes in accordance with the terms of those paragraphs.  If you opt-out of these mediation provisions, Kubota also will not be bound by them.

17.6  Exclusive Venue for Litigation. Solely to the extent the mediation provisions set forth above do not apply, or for purposes of either party enforcing an award granted to it pursuant to mediation, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Dallas, Texas (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Dallas, Texas for any litigation other than small claims court actions. The Parties irrevocably consent to personal jurisdiction in Dallas, Texas for any litigation and hereby waive, for all purposes, their right to challenge the lack of personal jurisdiction of Dallas, Texas over any litigation arising in connection with, out of, or as a result of (a) these Terms or the Sites or Service, and (b) any acts or omissions of any of the Kubota Parties Entities in connection with these Terms or the Sites or Service.  The prevailing party in any dispute or legal action resolved in litigation in court shall be entitled to recover from the other party its reasonable attorneys ’ fees and costs of suit in addition to any other relief granted by the court.

17.7   Timing of Claims.  You must bring any claim you have against Kubota relating to these Terms or the Sites or Service within one (1) year from the date of accrual of the applicable claim.

The TOU are governed by and construed in accordance with the laws of the State of Texas and applicable United States federal law, without reference to “conflicts of laws” provisions or principles.

These TOU and/or any other valid agreement between you and Kubota for use of the Service, constitute the entire agreement between you and Kubota and govern your use of the Service and Site, superseding any and all prior agreements, negotiations and communications (whether written, oral or electronic) between you and Kubota with respect to the subject matter hereof. No change, modification, or waiver of the TOU, will be binding on Kubota unless made in writing, with Kubota’s approval. Any rights not otherwise expressly granted under the TOU are reserved by Kubota and its licensors. The failure of Kubota to exercise or enforce any right or provision of the TOU shall not constitute a waiver of such right or provision. If any part of the TOU 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 Kubota, and the remaining portions shall remain in full force and effect.

The official language of the TOU is English. For purposes of interpretation, or in the event of a conflict between English and versions of TOU in any other language, the English language version shall be controlling.

Effective Date: June 29, 2020

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