LICENCE AGREEMENT
(“Agreement”)
November, 2016
Background
The Licensee is an “independent operator” as defined in Article 3 of Regulation (EU) No 167/2013 of the European Parliament and of the Council of 5 February 2013 (“Legislation”) and is as such involved directly or indirectly in the repair and maintenance of Vehicles (as defined herein).
Via the System (as defined herein), or as otherwise agreed between the Licensee and the Licensor (as defined herein), the Licensor provides, to the extent required by the Legislation, access to Repair and Maintenance Information ( as defined herein) to the Licensee.
The Licensor is Kverneland Group Mechatronics B.V., a subsidiary of Kubota Corporation, and a Dutch corporation with offices at Hoofdweg 1278, 2153LR Nieuw Vennep, The Netherlands. (hereinafter the Licensor and the Licensee may be individually referred as the Party and collectively as the Parties) .
This Agreement sets forth the terms and conditions according to which the Licensor provides Repair and Maintenance Information to the Licensee via the System (as defined herein).
Article 1. Definitions
“Repair and Maintenance Information” or “RMI” shall mean the “vehicle repair and maintenance information” as defined in Article 3 of the Legislation for the Vehicles.
“System” shall mean the systems created by the Licensor in view of the Legislation which contain the Repair and Maintenance Information, including the Documentation and Software.
“Documentation” shall mean the documentation provided on the System as a part of the RMI, including workshop manuals and service bulletin etc.
“Software” shall mean the software, which is provided on the System as a part of the RMI in order to meet laws and regulations.
“Vehicles” shall mean the agricultural and forestry vehicles covered under the Legislation which is manufactured at KUBOTA Corporation’s manufacturing sites and/or sold under KUBOTA brand.
Article 2. Formation of contract
2.1 By clicking on the “I APPROVE THE TERMS AND CONDITIONS” button on the System, the Licensee confirms having read and accepted the terms and conditions set out in this Agreement. Thereby, the Licensee confirms that it has entered into this Agreement.
2.2 These terms and conditions are limited to the use as set forth under Article 5.1 below. Any other use of the System is permitted only to the extent as provided under Article 5.2 below.
2.3 In case any inconsistency between the terms and conditions of this Agreement and the “Terms and Conditions” provided on the System, the terms and conditions of this Agreement shall prevail.
Article 3. System license and scope
3.1 Subject to the Licensee’s full and unconditional compliance with its obligations under this Agreement, the Licensor hereby grants the Licensee, during the term of this Agreement, a non-exclusive, non-transferable, non-sublicensable and limited right to use the System to the extent which the Licensee has subscribed at the System and for the purposes as described under Article 5 below.
3.2 This license does not include any right to any source code of the System. Except to the extent allowed by mandatory law, Licensee shall not reverse engineer, disassemble, decompile or make any attempt to discover the source code of the System.
3.3 No license is granted, explicitly or implicitly (by estoppel or any other legal doctrine) than as explicitly stated in this Article. The Licensee is not allowed to sublicense its access to or use of the System or any parts thereof to any other party. The Licensee is not allowed to lease, lend, sell or in any other way assign to any third party its access to or the use of the System or any parts thereof.
Article 4. Payment terms
4.1 In consideration for the licenses granted in the previous Article, the Licensee agrees to pay an applicable royalty fee as well as any other charges, if any, (“Service Fee”), as set forth in the price list located at the System by way of credit card accepted by the Licensor, unless otherwise agreed. The Licensor is entitled to amend this price list from time to time. The price list shall be considered part of this Agreement.
4.2 Service Fee is exclusive of value-added tax (VAT) and other government-imposed levies, taxes or other charges. Furthermore, all fees and taxes in connection with the payment of the Service Fee are to be borne by the Licensee.
4.3 As soon as Licensee has paid the Service Fee under this Article 4, Licensee shall be able to access and use the System.
Article 5. Licensee’s permitted use
5.1 There are three cumulative conditions for the use of the System. The Licensee may use the System (i) only for its own use; (ii) for the repair and maintenance work of the Vehicles ; and (iii) on the locations within the EU. The Licensee may not otherwise sell, copy, transfer, assign, publish, distribute or permit access to and use of the Repair and Maintenance Information obtained through the System or any parts thereof.
5.2 Any use that is not in line with Article 5.1 is permitted only if and to the extent that the Parties have entered into a separate licensing agreement in writing.
5.3 The password assigned to access the System shall only be used by the personnel who have registered through the System, specifically empowered by the Licensee in accordance with this Agreement. The Licensee shall be responsible for all actions taken by such personnel empowered by the Licensee to use the password in order to access and use the System.
Article 6. Support
6.1 The Licensee is solely responsible for downloading and otherwise using the Repair and Maintenance Information on the System. The Licensor is not under any obligation to provide any form of support, except on a commercially reasonable effort basis as indicated in this Article.
6.2 Upon the Licensee’s request, and if the Licensor deems necessary, the Licensor may provide support in connection with the Repair and Maintenance Information for which the Licensee shall pay a reasonable amount of support fee.
6.3 The support by the Licensor shall only apply after subscription and during the subscription period, subject to the Licensee’s full payment and unconditional compliance with its obligations under this Agreement.
6.4 Unless otherwise the Licensor has agreed to provide support free of charge, the Licensee shall pay a reasonable price for such support provided by the Licensor for correcting any failures or defects to the System caused: (i) by the Licensee’s incorrect use of the System or other equipment and/or accessories used together with the System; (ii) by the Licensee as a result of modifications to or updates of the System carried out by the Licensee without any instruction hereto by the Licensor; (iii) by the Licensee’s use of the System in another way than prescribed in the user guide; (iv) through negligence by the Licensee, its employees, third party or otherwise outside the control of the Licensor. In any of such cases, the Licensee shall be liable for any and all damages that the Licensor may suffer as a result thereof.
6.5 If the Licensee discovers any discrepancies between the actual performance of the System and the reasonably expected performance (“Defect”), Licensee shall promptly report such Defect to the Licensor in the format and according to the procedures that may be established by the Licensor from time to time. Upon Licensor’s recognition and approval of the Defect, Licensor shall provide support concerning the Defect within a reasonable amount of time in accordance with the provisions of this Article.
6.6 In connection with the reported Defect, the Licensee undertakes to do everything in its power that is reasonably necessary for Licensor to reproduce, isolate and correct the Defect, including the provision of all relevant data and Party reasonably requested by Licensor for the support.
Article 7. Licensor’s Warranty
7.1 The Licensor warrants that the System does not contain material Defect for twelve (12) months after the Licensee has acquired access to the System provided that this Agreement is still in force at such time.
7.2 The Licensor’s sole and exclusive remedy with respect to a breach of the warranties above shall be to investigate and attempt to repair or replace the portion of the material Defect of the System. The Licensor will not guarantee that such repair or replacement is possible. In case repair does not lead to a satisfying result, the Licensor will use its commercially reasonable efforts to supply an update to restore the System. In case the System is inaccessible for reasons attributed to the Licensor, and such inaccessibility lasts for more than twenty-four (24) hours, then the Licensor may provide, at its sole discretion and upon Licensee’s request, to extent the subscription period or refund an appropriate amount of Service Fee for the time being inaccessible.
7.3 THE FOREGOING WARRANTIES ARE IN LIUE OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY OR NON-INFRINGMENT OF THIRD PARTY RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS. UNLESS EXPLICITLY PROVIDED OTHERWISE IN THIS AGREEMENT, THE LICENSOR DOES NOT WARRANT THAT THE SYSTEM AND ANY CONTENT THEREOF, INCLUDING RMI, WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE LICENSEE’S USE OF THE SYSTEM WILL PROVIDE SPECIFIC RESULTS. THE SYSTEM AND ANY CONTENT THEREOF ARE DELIVERED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. THE LICENSOR DO NOT WARRANT THAT THE SYSTEM OR ANY CONTENT THEREOF, THE LICENSOR’S SERVER AND ELECTONIC COMMUNICATIONS SENT FROM THE LICENSOR, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL INFORMATION PROVIDED ON THE SYSTEM IS SUBJECT TO CHANGE WITHOUT NOTICE.
Article 8. Licensee’s Warranty
The Licensee warrants and represents that (i) it fulfills the criteria to be an independent operator pursuant to the Legislation, who has been fully trained and qualified to fulfill the repair and maintenance of the Vehicle; and (ii) the accuracy and correctness of all information provided to Licensor in connection with this Agreement.
Article 9. Limitation of liability
9.1 The Licensor reserves the right to make any changes to the System and RMI. The Licensor shall have no responsibility for any damages, costs, loss of business or other liability which the Licensee may suffer as a result of any change to the RMI, System or for the malfunction, defect or disturbance hereof.
9.2 The Licensee shall be solely responsible for the use of the System and RMI at its own risk and liability. All information including RMI and functionalities covered by the System are based on the Licensor’s best knowledge at the time it was published or provided.
9.3 THE LICENSOR SHALL BE LIABLE TO THE LICENSEE ONLY FOR DIRECT DAMAGES ARISING OUT OF FRAUD OR WILLFUL MISCONDUCT OF ANY OF ITS OBLIGATION UNDER THIS AGREEMENT. ANY LIBILITY OF THE LICENSOR SHALL BE LIMITED TO THE SERVICE FEE PAID BY THE LICENSEE TO THE LICENSOR UNDER ARTICLE 4 OF THIS AGREEMENT. THE LICENSOR SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE AND/OR INCIDENTAL DAMAGES, INCLUDING LOSS OF PROFITS OR FINE IMPOSED BY REGULATORY BODIES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVICED OF THE POSSIBILITY OF SUCH DAMAGES.
9.4 No liability shall exist for damages that have not been reported to the Licensor in writing within thirty (30) days of their occurrence, or for damages where the Licensee failed to take appropriate measures to limit such damages. In any case, neither Party may bring an action, regardless of cause or form, arising out of or related to this Agreement more than one (1) year after the date of discovery of the cause of action or the date of termination of this Agreement, whichever is earlier.
9.5 Neither Party will be bound to comply with any obligation if the Party is prevented from doing so through force majeure, and no liability for any damages shall exist in such an event. Force majeure will be deemed to include any situation that occurred beyond the power of the Licensor, and in any case any inability to perform which is caused by the Licensor’s suppliers or any inability to perform caused by the weather, affecting the use of the System.
Article 10. Property rights
All text, images, photos, graphics, music, videos and other materials, including Documentation and Software provided on the System (“Material”) is the property of the Licensor. The title, copyright and other property rights of the Material shall remain with the Licensor, Kubota Corporation and to its licensor, if any. For the avoidance of doubt, the Licensee acknowledges and agrees that this Agreement does not give the Licensee any right to use any priority rights that belongs to or is used by Kubota’s legal entity / Kubota Group. The Materials may not be copied for commercial use or distribution, nor may the Materials be modified or reposted to other sites.
Article 11. Trademark notice
All trademarks displayed on the System are subject to the trademark rights of Kubota Corporation, or are used under agreement by Kubota Corporation. These trademarks include, but not limited to, product brand names, vehicle model names, slogans, and emblems. The unauthorized use of any trademarks displayed on the System is strictly prohibited.
Article 12. Data privacy
12.1 The Licensee permits the Licensor as well as any third party acting on behalf of the Licensor to process information (including, but not limited to, personal data), provided or available to the Licensor, in a central database and to update such database when the Licensee connects to the System. The Licensee warrants and represents that it has obtained the consent required under the applicable legislation from all such persons whose personal data is provided to the Licensor. The Licensee as well as such other persons shall be entitled to access to the personal data retained by the Licensor and may request rectification of personal data that is incorrect.
12.2 The Licensee is responsible for compliance with all applicable data privacy protection laws, regulations and obligations in respect of any personal data emanating from the Licensee’s use of the System and further processed by the Licensee. The Licensor assumes no responsibility to this end.
12.3 The Licensee agrees to enter into additional agreements or to give its consent as far as it is required for the processing of data, if and to the extent requested by the Licensor. The refusal by the Licensee to enter into such agreements or to give its consent, the Licensor shall be entitle to terminate this Agreement upon the Licensor’s reasonable judgment, if such Licensee’s refusal results in t committing a breach of data privacy legislation by the Licensor not being able to access or process certain data or risks..
Article 13. Confidentiality
13.1 The Licensee shall observe secrecy in respect of any information relating to the Licensor’s past, present or future research, development or business activities which is disclosed in writing or orally or in any other way in connection with this Agreement, including but not limited to RMI, and which is of a confidential nature. The Licensee shall refrain from divulging such information to third parties without the explicit written consent of the Licensor.
13.2 The obligations of confidentiality set out in this Agreement shall survive the termination of this Agreement, unless such information has been disclosed to the public by the Licensor or by a third party authorized by the Licensor or becomes as a public knowledge other than by breach by the Licensee.
Article 14. Term of the Agreement
14.1 This Agreement enters into force upon acceptance of this Agreement by the Licensee (by clicking the “I APPROVE THE TERMS AND CONDITIONS” button on the System.) and remains full forth and effect, unless otherwise this Agreement is terminated in accordance with Article 14.2 hereunder. The Licensee may apply for deregistration of the System to the Licensor and in such case this Agreement shall be automatically terminated upon such deregistration.
14.2 The Licensor reserves the right to terminate this Agreement with immediate effect and without right to compensate the Licensee if:
14.2.1 The Licensee is declared bankrupt, composes with its creditors, enters into liquidation proceedings, or loses the right to manage its business.
14.2.2 The Licensee fails to comply with any of its obligations under this Agreement or any of the termination events stipulated in this Agreement occurs.
14.2.3 The Licensee does not fulfil the payment of the fees payable pursuant to this Agreement according to the applicable payment terms.
14.2.4 The Licensee undertakes illegal activities in relation to the Vehicles, including, but not limited to, tampering with emission control devices or security or safety related features.
Article 15. Consequences of termination
15.1 Upon termination of this Agreement, for whatever reason, access to the System will be shut down and the Licensee’s right to use the System shall cease with immediate effect.
15.2 Upon termination of this Agreement, for whatever reason, the Licensee must return any documents and other materials obtained through the System or from the Licensor which is in the possession of the Licensee to the Licensor, or otherwise dispose of the same as the Licensor may instruct.
15.3 Any obligation hereunder which by virtue of its nature is intended to be valid after the termination of this Agreement shall accordingly survive the termination of this Agreement. Such obligations include but are not limited to, Article 7 (licensor’s Warranty), Article 8 (Licensee’s Warranty), Article 9 (Limitation of Liability), Article 10 (Property Rights) and Article 13 (Confidentiality).
Article 16. Assignment of agreement
16.1 This Agreement shall not be assigned or otherwise transferred by either Party without the prior written consent of the other Party, which shall not be unreasonably withheld. This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the Parties.
16.2 No consent of the Licensee however is necessary for an assignment or transfer of this Agreement to any affiliate of the Licensor or to any third party that succeeds to substantially all of the Licensor’s business.
Article 17. Applicable law and disputes
17.1 This Agreement shall be governed by and construed in accordance with the laws of the Netherlands without consideration of its conflict of law provisions.
17.2 The Licensee hereby consents and submits to the jurisdiction and forum of the competent courts for the principal place of business of the Licensor.
17.3 The Parties agree that the English language is a proper and acceptable language for both and waive any rights they may have under any legal provision to request a translation of this Agreement into any other language.
Article 18. Miscellaneous terms
18.1 This Agreement constitutes the entire agreement between the Parties and supersedes any and all previous representations, understandings, discussions, or agreements between the Licensee and the Licensor as to the subject matter hereof, including, but not limited to, the Licensee’s purchase conditions. This Agreement may only be modified by a written document executed by the Parties.
18.2 The Parties enter into this Agreement as independent contractors. No employment relationship is created by this Agreement between the Licensor and the Licensee or any of their respective employees or agents.
18.3 In the event that any one or more of the provisions of this Agreement is under applicable law held to be invalid, unenforceable, and/or illegal, such invalidity, unenforceability, and/or illegality shall not affect any other provisions of this Agreement. In such case, the Licensor shall provide a valid and enforceable provision in lieu of the invalid, unenforceable and/or illegal provision, which will ensure the same or as approximate and effect as possible as the provision which has become ineffective, and the Licensee shall be deemed to have accepted such new version of this Agreement.
18.4 The failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall in no way affect that Party’s right to enforce such provisions, nor shall the waiver by either Party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
18.5 The section headings in this Agreement are for convenience only and shall not be used in construing or interpreting any of its terms.
Article 19. Amendment to the terms of this Agreement
The Licensor reserve the right to amend the terms and conditions of this Agreement from time to time. Any changes will be posted on the System. Licensee’s continued use of the System after posting will constitute the Licensee’s acceptance of, and agreement to, any changes.