LAST UPDATED: February 26, 2021
Please read this Cat Digital Marketplace End User Agreement (“Agreement”) carefully. By clicking “accept” (or a similar term) to this Agreement, or by accessing or using the Digital Offering (as defined below), you consent to be bound by this Agreement.
BY CLICKING “ACCEPT” (OR A SIMILAR TERM) TO THIS AGREEMENT, OR BY ACCESSING OR USING THE DIGITAL OFFERING, YOU AFFIRM THAT YOU ARE OF LEGAL AGE AND HAVE THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS THE COMPANY YOU WORK FOR, YOU REPRESENT TO CATERPILLAR THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY.
THIS AGREEMENT CONTAINS MANDATORY ARBITRATION OF DISPUTES PROVISIONS IN SECTION 12.7 THAT REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Digital Offering.
1.1. Right to Use. This Agreement sets forth the terms and conditions between you and Caterpillar with respect to your access to and use of the Digital Offering. Subject to the terms and conditions of this Agreement, including receipt of all data and information from you that are reasonably required for Caterpillar to provide the Digital Offering, Caterpillar grants you a limited, non-exclusive right and license to have Authorized Users access and use the Digital Offering, but not otherwise for the benefit of third parties. Other than as expressly provided in this Agreement, Caterpillar and its licensors reserve all rights in and to the Digital Offering.
1.2. Updates; Availability of Features and Functions. Caterpillar may, at any time, modify, upgrade or release a new version of the Digital Offering, or any portion of its features and functions. Unless otherwise expressly and separately agreed by Caterpillar, any new version of the Digital Offering will be subject to the terms of this Agreement. If you do not wish to be subject to the terms of this Agreement with respect to such new version of the Digital Offering, you may terminate this Agreement in accordance with Section 11.2. Certain features and functions of the Digital Offering may be made available based on the specific configuration for certain access levels and, therefore, may not be made available to you as part of your access level. Caterpillar reserves the right to introduce new features or functionality to the Digital Offering for your access level. You may be required to pay additional fees to access or use newly added features or functionality. For the avoidance of doubt, telematics connectivity, fluid sampling services, inspections and other similar services are not provided under this Agreement; you will need to enter into separate agreements with Caterpillar or third parties in order to receive these and other services.
1.3. Evaluation Offerings. Caterpillar may provide the Digital Offering, and certain pre-release versions, features and functions of the Digital Offering, to you on a trial or evaluation basis (the “Evaluation Offerings”). With respect to any Evaluation Offerings, Caterpillar grants you (including Authorized Users) a limited, non-exclusive, revocable right and license to access and use the Evaluation Offerings during the Term on a trial basis, solely in a non-production capacity for your own internal testing and evaluation of the Evaluation Offerings. Notwithstanding anything to the contrary in this Agreement, Evaluation Offerings will not be subject to support or other obligations of Caterpillar, and are provided on an “AS IS”, “AS AVAILABLE” basis only. Caterpillar may terminate your right to access and use the Evaluation Offerings at any time, in its sole discretion, upon reasonable notice to you in accordance with Section 12.8. All restrictions, limitations and obligations relating to your access to and use of the Digital Offering set forth in this Agreement shall apply to your access to and use of the Evaluation Offerings.
1.4. Authorized Users. You agree that you are solely responsible for all access to and use of the Digital Offering by Authorized Users. You will ensure that all Authorized Users access and use the Digital Offering only in accordance with this Agreement. Without limiting the foregoing, you will enter a written agreement with consultants and contractors that you (or your Affiliates) establish as Authorized Users under which such consultants and contractors will agree to abide by the obligations applicable to them under this Agreement. You agree to be jointly and severally liable for all actions of Authorized Users related to their access to or use of the Digital Offering. Authorized Users shall have no rights of recourse against Caterpillar and are not third-party beneficiaries hereunder. For purposes of this Agreement:
“Affiliate” means any legal entity that controls, is controlled by or is under common control with a party hereto (but only for so long as such control exists), where “control” means ownership of more than fifty percent (50%) of the equity or other interests entitled to vote in the election of directors or corresponding managing authority of the Affiliate; provided that if the percentage of control permitted under applicable Laws is below the foregoing percentage, then such percentage shall apply.
“Authorized Users” means your employees or the employees of your Affiliates, in each case who you authorize to access and use the Digital Offering, together with those of your and your Affiliates’ contractors and consultants performing services on your or your Affiliates’ behalf (respectively) that have entered into a written agreement with you whereby the consultant or contractor has agreed to abide by the restrictions, conditions and obligations applicable to them under this Agreement.
1.5. Acceptable Use. You will, and will cause all Authorized Users to: (a) adhere to all applicable Laws, and (b) use the Digital Offering only in accordance with the “Acceptable Use Policy”, the current version of which is attached as Exhibit A.
1.6. Accounts. To access and use the Digital Offering, each Authorized User must follow Caterpillar’s log-in instructions (which may change from time to time). Caterpillar may provide each Authorized User with a username (for example, a Corporate Web Security ID) and require that each Authorized User create a password in order to access and use the Digital Offering. Authorized Users may also be required to provide Caterpillar with certain registration information as requested by Caterpillar and to keep such information up to date. Should Caterpillar have reasonable grounds to suspect that any information provided by an Authorized User to Caterpillar is fraudulent, inaccurate or incomplete (where such inaccuracy or incompleteness adversely impacts Caterpillar’s ability to perform its obligations under this Agreement or subjects Caterpillar, its Affiliates, or any of their respective licensors, service providers, suppliers, subcontractors or distributors to additional obligations or liabilities), it shall have the right to suspend or terminate your (including all Authorized Users’) right to access and use the Digital Offering immediately without notice. You are responsible for maintaining the confidentiality of all authentication credentials associated with your or Authorized Users’ access to and use of the Digital Offering. You must promptly notify Caterpillar if you discover any possible misuse, loss or disclosure of your or Authorized Users’ accounts or authentication credentials or any security incident related to the Digital Offering.
2. Jurisdictional Issues. The Digital Offering is controlled and operated from the United States and is not intended to subject Caterpillar to any jurisdiction or Laws other than the jurisdictions and Laws of the United States. The Digital Offering may not be appropriate or available for use in some non-U.S. jurisdictions.
3. User Submissions. The Digital Offering may permit you (including Authorized Users) to make available certain information or materials through or in connection with the Digital Offering (each, a “User Submission”), including the Digital Offering’s interactive services, such as knowledge articles, message boards and other forums, and chatting, commenting and other messaging functionality (each such interactive service, an “Interactive Service”). You agree that Caterpillar does not control and is not responsible for any User Submissions, the use or misuse (including any distribution) by any third party of User Submissions, or for any of your (including Authorized Users’) interactions with other Digital Offering users. Upon your reasonable, written request, Caterpillar will take commercially reasonable efforts to remove any inaccurate or objectionable User Submissions from the Interactive Services. Without limiting the foregoing, you understand and agree that you may be exposed to User Submissions that are inaccurate, inappropriate for children or otherwise objectionable, and you agree that Caterpillar will not be liable for any such User Submissions. If you (including Authorized Users) choose to make any of your Personal Information or other information publicly available through the Digital Offering, you (including Authorized Users) do so at your (including Authorized Users’) own risk.
4. Digital Offering Information.
4.1. Collection of Data.
(a) You acknowledge and agree that Caterpillar collects, transmits and processes (and may have collected, transmitted and processed prior to you entering into this Agreement) information relating to the Digital Offering (collectively, “Digital Offering Information”) as further described in Caterpillar’s Data Governance Statement, Caterpillar’s Global Data Privacy Statement, and the specific Privacy Notice applicable to the Digital Offering (collectively, the “Data Governance Documents”). Digital Offering Information may include System Data, Operations Data, Personal Information and Location Data, each as defined and described in the Data Governance Documents.
(b) Digital Offering Information may include information such as (i) data analytics and insights; (ii) information collected from other sources (whether provided by third parties or Caterpillar) that make such information available to the Digital Offering; (iii) information (including data analytics and insights) derived from or relating to access to or use of the Digital Offering; and (iv) information collected independent of the Digital Offering.
(c) You (including Authorized Users) consent to the collection, storing, processing, use, sharing and disclosure of all Digital Offering Information, regardless of whether collected prior to you entering into this Agreement or thereafter, in accordance with the Data Governance Documents. The Data Governance Documents may change from time to time, so review them with regularity and care. If the Data Governance Documents materially change, Caterpillar will notify you by indicating in the Digital Offering, in accordance with Section 12.8 or by other reasonable means. Specific information collected, transmitted and processed may change over time and vary based on, among other things, the version of the Digital Offering and as detailed in the Data Governance Documents.
4.2. Use and Disclosure of Digital Offering Information. You hereby grant to Caterpillar and its Affiliates, and each of their respective licensors, service providers, suppliers, subcontractors and distributors a non-exclusive, worldwide, perpetual, paid-up, right and license, including the right to grant and authorize sublicenses through multiple levels, to access, use, process, manipulate, modify, compile with other data or works and/or create derivative works of Digital Offering Information in accordance with the Data Governance Documents. You understand and agree that Digital Offering Information may be transmitted to and processed in countries that have different data protection Laws than in the country in which you have your principal place of business. Caterpillar does not assume any obligations with respect to Digital Offering Information, other than as expressly set forth in this Agreement or as required by applicable Laws.
4.3. Submitted Digital Offering Data. For purposes of this Agreement, “Submitted Digital Offering Data” means all Digital Offering Information that you submit or otherwise make available to Caterpillar under this Agreement. Your rights to Submitted Digital Offering Data shall remain subject to any restrictions or terms that apply to Submitted Digital Offering Data under any other agreement you have with Caterpillar or any third party, and Caterpillar does not make any representations or warranties with respect to such data under this Agreement. You represent, warrant and covenant that (a) you have secured and will maintain all rights, and have obtained and provided all required notices and obtained all legally required consents, necessary to make available Submitted Digital Offering Data (including all Personal Information therein) to Caterpillar, its Affiliates and their respective licensors, service providers, suppliers, subcontractors and distributors and to enable such entities to provide the Digital Offering in accordance with this Agreement, and to exercise the rights and licenses granted hereunder, without violating the rights of any third party or otherwise obligating Caterpillar to you or to any third party, and (b) you are solely responsible for all Submitted Digital Offering Data, including: (i) the accuracy, integrity, quality, legality, reliability, and appropriateness of Submitted Digital Offering Data; (ii) creating and maintaining backups and copies of all Submitted Digital Offering Data, including for use in the event of a disaster or loss of Submitted Digital Offering Data stored in the Digital Offering; and (iii) adopting procedures to identify and correct errors and omissions in Submitted Digital Offering Data and correcting such errors and omissions. Without limiting the foregoing, to the extent that you can identify an individual using the Digital Offering Information and you make the information relate to such individual, you agree to comply to with all Laws applicable to the use of such information (e.g., data privacy, data security, employment, etc.) and you are solely responsible to determine the means, purpose, and sufficiency of such data for such use.
4.4. Communication Systems; Risk of Interception. Some features of the Digital Offering require use of various communications systems, such as internet service providers and other similar systems. Caterpillar uses various technologies and processes designed to secure communications within Caterpillar-provided communications systems; however, you recognize that such communication methods have an inherent risk of interception and/or interference and, therefore, may not be secure. You hereby consent to such communications and waive any claims that you may have against Caterpillar with respect to such communication. Caterpillar has no responsibility for the availability, quality or performance of communications services or equipment furnished by third-party communication carriers.
4.5. Legal Requests. If Caterpillar or its Affiliates receive any order, demand, warrant, or any other document requesting or purporting to compel the production of Personal Information in the Submitted Digital Offering Data (including, for example, by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoenas, civil investigative demands or other similar processes), Caterpillar or its Affiliates will promptly notify you (to the extent permissible under applicable Laws), so that you may, at your own expense, exercise such rights as you may have under applicable Laws to prevent or limit such disclosure. Notwithstanding the foregoing, Caterpillar or its Affiliates (as applicable) will exercise commercially reasonable efforts to prevent and limit any such disclosure and to otherwise preserve the confidentiality of Personal Information in the Submitted Digital Offering Data and will cooperate with you with respect to any action taken with respect to such request, complaint, order or other document, including to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to such Personal Information.
4.6. Receipt, Archival and Retrieval of Data. Caterpillar reserves the right to refuse to accept any Digital Offering Information that you may provide. Upon termination or expiration of this Agreement, Caterpillar will close your account, and you will have ninety (90) days to obtain a copy of your Submitted Digital Offering Data to the extent that such Submitted Digital Offering Data is in Caterpillar’s possession. Data made available to you will be in the form in which it was made available to Caterpillar or in such other form or format as Caterpillar establishes from time to time. Unless otherwise agreed by Caterpillar, after this period of time has elapsed, you will no longer be able to retrieve any Submitted Digital Offering Data associated with your account. Notwithstanding the foregoing, you acknowledge that Caterpillar has no responsibility for the deletion or failure to store any Digital Offering Information.
4.7. Breach Notification. Caterpillar will comply with all breach notification Laws applicable to Caterpillar pertaining to Personal Information provided to Caterpillar by you (including Authorized Users).
5. Confidentiality. You acknowledge and agree that the Digital Offering (excluding Submitted Digital Offering Data), Digital Offering Background IP, and the terms and conditions of this Agreement are the confidential and proprietary information of Caterpillar and/or its Affiliates and their respective Affiliates, licensors, service providers, suppliers, subcontractors and distributors (“Confidential Information”). You agree (a) to protect Confidential Information from unauthorized dissemination and use, (b) to use Confidential Information only for the performance of this Agreement and the exercise of any rights granted to you under this Agreement, (c) not to disclose any Confidential Information to any of your employees, agents, contractors or any other individuals except to Authorized Users, and other employees and contractors, each of whom are under confidentiality obligations no less restrictive than the requirements of this Section 6, and (d) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Confidential Information. You will not be liable for disclosure of Confidential Information which: (i) you already knew without an obligation to maintain the information as confidential; (ii) you received from a third party without breach of an obligation of confidentiality owed to Caterpillar or its Affiliates or their respective licensors, service providers, suppliers, subcontractors and distributors; (iii) you independently developed; or (iv) becomes publicly known other than through your wrongful act.
6. Third Party Software/Services; Data Exchange.
6.1. Third Party Software/Services. The Digital Offering may make available third party (non-Caterpillar-branded) software or services (“Third Party Software/Services”). Caterpillar will use commercially reasonable efforts to identify such Third Party Software/Services in the Digital Offering Documentation. You acknowledge that your access to or use of any such Third Party Software/Services may be governed by, in addition where applicable, third party terms or policies, including privacy policies. Without limiting the foregoing, you agree to the third-party terms and conditions (if any) located in the Digital Offering (or at such other location as designated by Caterpillar from time to time). Caterpillar is not responsible for, and expressly disclaims, any liability in connection with any Third-Party Software/Services or your (including Authorized User’s) access or use thereof.
6.2. Third Party Data Exchange. The Digital Offering may permit the communication, transfer and exchange of certain Digital Offering Information between the Digital Offering and certain assets, devices or systems approved by Caterpillar for use in connection with the Digital Offering, including third-party APIs (“Third-Party Systems”). Caterpillar does not exercise control over the form or quality of any data or information (including the Digital Offering Information) generated by or transmitted to the Third-Party Systems, including through third-party APIs. Therefore, without limiting Section 5, you agree to the following:
(a) Additional charges may apply to enable interfaces with Third-Party Systems;
(b) You accept all limitations in the display and use of all data and information imported via Third-Party Systems and acknowledge that all such data shall be deemed to be Submitted Digital Offering Data;
(c) Caterpillar may restrict the volume and type of information transmitted to and from the Digital Offering if Caterpillar believes that such volume or type of information may adversely affect the performance of Caterpillar’s systems, Third-Party Systems, or the Digital Offering;
(d) You must obtain all necessary licenses and third-party consents to permit Caterpillar to access the Third-Party Systems and any related data. Caterpillar will not be responsible for the quality, quantity, type, parameters or any other issues related to the Third-Party System data received by Caterpillar. You represent to Caterpillar that you have the right to make available the Third-Party System data to Caterpillar and to grant to Caterpillar the right to access and use such Third-Party System (including as your authorized user using your credentials, if applicable, and without imposing any additional obligations on Caterpillar) data in accordance with this Agreement; and
(e) You are responsible for all interactions with the third-parties relating to the Third-Party Systems and any related data and are responsible for escalating and resolving any issues relating to such systems and data, including but not limited to the quality, robustness, speed and all other issues surrounding the Third-Party System outputs. You are responsible for promptly reporting any changes to the Third-Party Systems (or related data) that may impact Caterpillar’s interface with the Third-Party System (or related data).
6.3. Sensitive Digital Offering Information. The Digital Offering may enable you to download, extract or otherwise obtain Sensitive Digital Offering Data. Except with the express written consent of Caterpillar, you shall not permit any third party to host, have access to, or otherwise use Sensitive Digital Offering Data unless you first ensure that the third party:
(a) Does not use any Sensitive Digital Offering Data except as reasonably required to provide the applicable application or services to you in accordance with a written agreement between you and the third party (which agreement must be consistent with the terms of this agreement and the intended use Sensitive Digital Offering Data, e.g., such services shall not include aggregating, analyzing, or generating reports based on or otherwise processing data from other dealers together with Sensitive Digital Offering Data relating to Dealer); and
(b) Uses reasonable organizational, technical, and administrative measures designed to protect Sensitive Digital Offering Data from unauthorized use or disclosure.
You will maintain complete and accurate books, documents, records, papers and other information and materials related to third party hosting, access to, or other use of Sensitive Digital Offering Data (“Records”), and will provide to Caterpillar all Records reasonably requested by Caterpillar within thirty (30) days of such request. “Sensitive Digital Offering Data” means all Digital Offering Information, other than Submitted Digital Offering Data, and all data derived from the processing of such Digital Offering Information.
7.1. Your Indemnity Obligations. Upon written request of Caterpillar, you will, at Caterpillar’s option, defend and/or settle at your cost and expense any third party claim, suit, action or proceeding (“Claim”) brought against Caterpillar, its Affiliates, or their respective directors, officers, employees, agents, licensors, service providers, suppliers, subcontractors, distributors or Dealers (other than Dealer) (individually and collectively, the “Caterpillar Indemnified Party(ies)”) arising from or relating to (a) your (including Authorized Users’) access to or use of the Digital Offering in breach of any provision of this Agreement, (b) any allegation that any information, materials or content that you submit or otherwise make available under this Agreement (including, all Submitted Digital Offering Data and your User Submissions) infringe, misappropriate or violate the intellectual property or other rights of a third party, or (c) if you are Dealer, any Claim brought by a third party end customer against a Caterpillar Indemnified Party, other than to the extent that such Claim (i) is a Caterpillar Indemnified Claim, or (ii) directly results from a breach by Caterpillar of such third party end customer’s Cat Digital Marketplace End User Agreement (each Claim under (a), (b) or, if applicable, (c), a “Dealer/Customer Indemnified Claim”), and, in each case you will pay all damages finally awarded and settlement amounts entered into to the extent based upon such a Claim. Upon your request and at your cost and expense, Caterpillar shall provide you with reasonable assistance with respect to the defense and/or settlement of such Claim.
7.2. Caterpillar’s Indemnity Obligations.
(a) Caterpillar will defend and/or settle at its cost and expense any Claim brought against you (the “Dealer/Customer Indemnified Party”) alleging that the Digital Offering infringes any U.S. patents or U.S. registered copyrights (“Caterpillar Indemnified Claim”). Caterpillar will pay all damages finally awarded and settlement amounts entered into to the extent based upon a Caterpillar Indemnified Claim. Notwithstanding the foregoing, Caterpillar shall not be required to defend and/or settle any (i) Dealer/Customer Indemnified Claim, or (ii) Claim that arises out of or in connection with: (A) any access to or use of the Digital Offering other than in adherence to this Agreement; (B) use of other than the then-current, unaltered version of the Digital Offering; (C) use, modification, operation or combination of the Digital Offering with non-Caterpillar software programs, data, equipment or documentation if such infringement would have been avoided but for such use, modification, operation or combination; (D) compliance with your (including Authorized Users’) designs, specifications or instructions; or (E) any Third Party Software/Services, Third Party Systems, or Open Source Components.
(b) If the Digital Offering becomes (or in Caterpillar’s reasonable opinion is likely to become) the subject of a Caterpillar Indemnified Claim, Caterpillar shall have the right, at its sole option, to obtain for you the right to continue using the Digital Offering or to replace or modify the Digital Offering so that it is no longer infringing. If neither of the foregoing options is reasonably available to Caterpillar, then Caterpillar may terminate your access to or use of the Digital Offering and (i) if you are purchasing a Subscription directly from Caterpillar under this Agreement, Caterpillar’s sole liability shall be to refund to you a pro-rata portion of any prepaid fees for Subscriptions that were otherwise to be in effect after the effective date of termination (such refunded amount, computed using straight-line depreciation on a month-to-month basis over the Subscription term, a “Pro-Rata Refund”), and (ii) if you are Customer purchasing a Subscription from Your Dealer and not from Caterpillar directly, then your sole remedy shall be for Your Dealer provide a Pro-Rata Refund. Upon Caterpillar’s request and solely at Caterpillar’s expense, you shall provide Caterpillar with reasonable assistance with respect to Caterpillar’s defense and/or settlement of such Claim.]
7.3. Entire Liability. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAWS, THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF EITHER PARTY, ITS AFFILIATES AND THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS, AND THE OTHER PARTY’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT, MISAPPROPRIATION OR OTHER VIOLATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS RELATING TO THE SUBJECT MATTER HEREOF.
7.4. Process. The Caterpillar Indemnified Party or the Dealer/Customer Indemnified Party (as applicable) will promptly notify the indemnifying party of any Claim subject to this Section 7, provided, however, that any such failure to notify will not relieve the indemnifying party of its indemnification obligations under this Section 7 unless, and only to the extent that, the indemnifying party can demonstrate that it was prejudiced by such failure. The Caterpillar Indemnified Party or the Dealer/Customer Indemnified Party (as applicable) shall give the indemnifying party full control and authority over, and reasonable assistance in connection with, the defense and settlement of the applicable Claim, except that: (a) no settlement requiring the Caterpillar Indemnified Party or the Dealer/Customer Indemnified Party (as applicable) to admit liability, or to pay any money or otherwise take on any obligation may be made without the prior written consent of the Caterpillar Indemnified Party or the Dealer/Customer Indemnified Party (as applicable), such consent not to be unreasonably withheld or delayed; and (b) the Caterpillar Indemnified Party or the Dealer/Customer Indemnified Party (as applicable) may join in the defense with the indemnified party’s own counsel at the indemnified party’s own cost and expense.
8. Intellectual Property Rights.
8.1. Reservation of Rights. Except as expressly granted herein, neither party is granted any rights or licenses, whether express or implied, under the other party’s intellectual property rights. The Digital Offering is licensed, not sold. References in this Agreement to the “purchase” or “sale” of Subscriptions refer to the licenses to access and use the Digital Offering hereunder. Nothing in this Agreement will be deemed to grant to you an ownership interest in any intellectual property rights in or to any of the Digital Offering.
8.2. Intellectual Property Rights. Except as expressly provided herein, you and your licensors and suppliers retain all of your and their respective right, title and interest (including intellectual property rights) in and to any technology you or they created (whether before or after this Agreement went into effect), provided that it was not created in connection with this Agreement and was created without use of or access to the Digital Offering. Except as expressly provided herein, Caterpillar, its Affiliates and each of their respective licensors and suppliers retain all of their respective right, title and interest in and to the Digital Offering and all intellectual property rights in or pertaining to the Digital Offering or its use (“Digital Offering Background IP”). Examples of Digital Offering Background IP include, but are not limited to, the design, structure, selection, coordination, expression, "look and feel" and arrangement of the Digital Offering and all processes, tools, software, technology, confidential information and trade secrets pertaining to the Digital Offering, together with any custom developments created or provided in connection with or related to this Agreement. You have no right to, and will not, create any modifications, extensions, or derivatives (including derivative works) of any of the Digital Offering Background IP nor to derive any technology from Digital Offering Background IP (such modifications, extensions, derivatives (including derivative works) and technology, collectively “Derivatives”). You therefore agree not to create any Derivatives. If any Derivatives are created, notwithstanding the restrictions set forth above, you will and hereby do assign to Caterpillar irrevocably and without further consideration, all right, title and interest in and to such Derivatives and all intellectual property rights pertaining thereto in the United States and in any other country. Except to the extent prohibited by applicable Laws, if and to the extent that any Derivatives or any intellectual property rights pertaining thereto are not so assignable by you to Caterpillar, you will and hereby do grant to Caterpillar an unrestricted, perpetual, irrevocable, non-terminable, transferable, worldwide, exclusive license (including the right to grant and authorize sublicenses through multiple levels) to any Derivatives and all intellectual property rights pertaining thereto for any and all purposes and in any and all media, whether alone or together or as part of any material of any kind or nature, and waive all moral and similar rights thereto.
8.3. Feedback. If you (including Authorized Users) provide any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Digital Offering or otherwise, such Feedback will be deemed a User Submission, and you (including Authorized Users) hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Caterpillar under any fiduciary or other obligation. In addition, by submitting Feedback, you (including Authorized Users) hereby grant to Caterpillar a non-exclusive, perpetual, irrevocable, non-terminable, transferable, worldwide right and license (including the right to grant and authorize sublicenses through multiple levels) to such Feedback and all intellectual property rights pertaining thereto for any and all purposes and in any and all media, whether alone or together or as part of any material of any kind or nature, and you waive all moral and similar rights in connection therewith. Any disclosure of such Feedback by Caterpillar to third parties (other than to Caterpillar’s Affiliates and Caterpillar’s and its Affiliates’ licensors, service providers, suppliers, subcontractors or distributors) shall not attribute the Feedback to you (including any Authorized Users).
8.4. Trademarks. All trademarks that appear throughout the Digital Offering belong to Caterpillar, or the respective owners of such marks, and are protected by U.S. and international trademark and copyright Laws. Any use of any of the marks without the express written consent of Caterpillar or the owner of the mark, as appropriate, is strictly prohibited.
9. Disclaimers. EXCEPT AS PROVIDED IN SECTION 10.1, CATERPILLAR AND ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS (THE "CATERPILLAR PARTIES") PROVIDE NO WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, NONE OF THE CATERPILLAR PARTIES PROVIDE ANY WARRANTY THAT THE DIGITAL OFFERING WILL BE FREE FROM ERRORS OR INTERRUPTION (INCLUDING INTERRUPTIONS DUE TO CYBERATTACKS OR MALICIOUS CODE OR OTHERWISE) OR BE COMPATIBLE WITH ANY HARDWARE OR SOFTWARE NOT EXPLICITLY SPECIFIED IN THE DIGITAL OFFERING DOCUMENTATION FOR THE APPLICABLE SUBSCRIPTION. THE CATERPILLAR PARTIES DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR (INCLUDING AUTHORIZED USERS’) ACCESS OR USE OF THE DIGITAL OFFERING. YOU AGREE THAT YOUR (INCLUDING AUTHORIZED USERS’) ACCESS OR USE OF THE DIGITAL OFFERING IS AT YOUR (AND THEIR) OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR INFORMATION SYSTEMS OR ASSETS OR LOSS OF DATA THAT RESULTS FROM SUCH ACCESS OR USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG SUCH WARRANTIES LAST, SO THE EXCLUSIONS OR LIMITATIONS IN SECTION 10.2 MAY NOT APPLY TO YOU. THE FOREGOING EXCLUSIONS AND LIMITATIONS ARE NOT INTENDED TO APPLY TO: (A) DEATH OR BODILY INJURY TO THE EXTENT DIRECTLY CAUSED BY A CATERPILLAR PARTY’S GROSS NEGLIGENCE; OR (B) FRAUD OR WILLFUL MISCONDUCT. THE DIGITAL OFFERING IS NOT INTENDED TO PROVIDE ANY EMERGENCY, MISSION CRITICAL OR SAFETY RELATED FUNCTIONALITY AND YOU SHALL NOT USE THE DIGITAL OFFERING IN THAT MANNER. CATERPILLAR DOES NOT GUARANTEE ANY RESULTS, OR THE ACCURACY OF ANY RESULTS, THAT YOU MAY OBTAIN FROM THE DIGITAL OFFERING.
10. Limitation of Liability.
10.1. Limitation; Damages Cap. EXCEPT FOR THE PARTIES’ RESPECTIVE OBLIGATIONS UNDER SECTION 1.1 (RIGHT TO USE), SECTION 1.5 (ACCEPTABLE USE), SECTION 4.1 (COLLECTION OF DATA), SECTION 4.3 (SUBMITTED DIGITAL OFFERING DATA), SECTION 5 (CONFIDENTIALITY), SECTION 7 (INDEMNITY OBLIGATIONS), AND SECTION 8 (INTELLECTUAL PROPERTY RIGHTS), (a) NONE OF THE CATERPILLAR PARTIES WILL BE LIABLE TO YOU, NOR WILL YOU OR ANY OF YOUR AFFILIATES, LICENSORS, SERVICE PROVIDERS, SUPPLIERS, SUBCONTRACTORS OR DISTRIBUTORS BE LIABLE TO CATERPILLAR, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY (i) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, (ii) LOSS OF PROFITS, REVENUES, DATA, CUSTOMERS, OPPORTUNITIES, BUSINESS, ANTICIPATED SAVINGS OR GOODWILL, OR (iii) UNAVAILABILITY OF THE DIGITAL OFFERING. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT SUCH DISCLAIMERS ARE PROHIBITED BY APPLICABLE LAW, AND (b) EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAWS, THE AGGREGATE LIABILITY OF THE CATERPILLAR PARTIES, ON THE ONE HAND, OR YOU AND YOUR RESPECTIVE AFFILIATES, LICENSORS, SERVICE PROVIDERS, SUPPLIERS, SUBCONTRACTORS OR DISTRIBUTORS, ON THE OTHER HAND, UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS (i) IF YOU ARE PURCHASING A SUBSCRIPTION DIRECTLY FROM CATERPILLAR UNDER THIS AGREEMENT, PAID BY YOU TO CATERPILLAR UNDER THIS AGREEMENT, OR (ii) IF YOU ARE CUSTOMER PURCHASING A SUBSCRIPTION FROM YOUR DEALER UNDER A SUBSCRIPTION PURCHASE AGREEMENT, PAID BY YOU TO YOUR DEALER UNDER THE SUBSCRIPTION PURCHASE AGREEMENT, IN EACH CASE DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF LAST CAUSE OF ACTION TO ARISE HEREUNDER. FOR CLARITY, THE FOREGOING CONSTITUTES A CUMULATIVE CAP THAT IS APPLIED TO ALL CAUSES OF ACTION HEREUNDER AND IS NOT TO BE APPLIED ON A CLAIM-BY-CLAIM BASIS.
10.2. No Exclusion or Limitation of Liability. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS A PARTY’S LIABILITY TO THE OTHER PARTY FOR: (A) DEATH OR BODILY INJURY TO THE EXTENT DIRECTLY CAUSED BY A PARTY’S GROSS NEGLIGENCE; OR (B) FRAUD OR WILLFUL MISCONDUCT.
11. Term, Termination and Suspension.
11.1. Term. Unless earlier terminated in accordance with this Section 11, this Agreement will remain in effect until the termination of your access (the “Term”).
11.2. Termination by You. You may terminate this Agreement for any reason or for no reason by providing ten (10) days’ prior written notice to Caterpillar in accordance with Section 12.8.
11.3. Termination for Breach. Either party may terminate this Agreement upon written notice to the other party if the other party is in material breach of this Agreement and does not cure such breach within thirty (30) days after delivery of a written notice of such breach by the non-breaching party stating its intent to terminate. In addition, Caterpillar may immediately terminate or suspend this Agreement, if you are Dealer, if you are in breach of the Dealer Agreement.
11.4. Termination for Insolvency. Either party may terminate this Agreement by providing written notice to the other party in accordance with Section 12.8 if such other party (a) becomes insolvent or generally fails to pay or is unable to pay or admits in writing its inability to pay its debts as they become due, (b) applies for, consents to, or acquiesces in, the appointment of a trustee, receiver, administrator or other custodian, (c) makes a general assignment for the benefit of creditors, or (d) commences any bankruptcy, reorganization, debt arrangement or other case or proceeding under any local, state or federal bankruptcy or insolvency law or any dissolution or liquidation proceeding.
11.5. Suspension. In addition to the foregoing, Caterpillar may suspend your access to or use of the Digital Offering, in whole or in part, immediately without notice to you, in accordance with Section 1.6 or if Caterpillar determines that: (a) it is reasonably necessary to prevent unauthorized access to Digital Offering Information; (b) you (or Authorized Users) fail to abide by any terms of this Agreement, or (c) your (or Authorized Users’) use of the Digital Offering (i) poses a security risk to the Digital Offering or any third party, (ii) may adversely impact the Digital Offering or the systems of Caterpillar or any third party, (iii) may subject Caterpillar or any third party to liability, or (iv) may be prohibited by applicable Laws.
11.6. Discontinuance. Caterpillar may cease making the Digital Offering available to you (a) upon thirty (30) days’ written notice, if Caterpillar determines that market demand no longer warrants continuing to make available the Digital Offering, or (b) immediately, in order to comply with any applicable Laws. In addition, Caterpillar may restrict the Digital Offering’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction, if Caterpillar reasonably determines that continuing to make the Digital Offering available is no longer warranted for legal or regulatory reasons.
11.7. Effect of Expiration or Termination. Upon expiration or termination of this Agreement, all rights and licenses granted under this Agreement to you, your Affiliates and Authorized Users will cease. Sections 4.2 (Use and Disclosure of Digital Offering Information), 4.5 (Legal Requests), 5 (Confidentiality), 7 (Indemnity Obligations) with respect to Claims arising during the Term, 8 (Intellectual Property Rights), 9 (Disclaimers), 10 (Limitation of Liability), 11.7 (Effect of Expiration or Termination) and 12 (Miscellaneous) will survive any termination or expiration of this Agreement.
12.1. Force Majeure. Neither (i) Caterpillar or its Affiliates (nor any of Caterpillar’s or its Affiliates’ respective licensors, service providers, suppliers, subcontractors or distributors) nor (ii) you or your Affiliates (nor any of your or your Affiliates’ respective service providers or subcontractors) shall be responsible for any delays or failures to perform any obligation under this Agreement to the extent that such delays or failures result from any cause beyond such person or entity’s reasonable control, including fires, blockages, embargoes, explosion, earthquake, storms or other elements of nature, acts of terrorism, wars, epidemics, government requirements, civil or military authorities, acts of God, strikes, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures.
12.2. Assignment. Neither party to this Agreement may assign or transfer this Agreement or its rights or obligations under it, whether by contract or by operation of law, without the prior consent of the other party; provided that Caterpillar may assign or transfer this Agreement or its rights or obligations under it without your consent to its Affiliates or in connection with a merger, consolidation, corporate reorganization, or sale of all or substantially all of Caterpillar’s business or assets or of the business or assets associated with Caterpillar’s Digital Offering business. Subject to the preceding sentence, the rights and liabilities of the parties hereto shall inure to the benefit of, each of the parties’ respective assignees and successors and is binding on the parties and their successors and assignees. Any attempted assignment other than in accordance with this Section 12.2 shall be null and void.
12.3. No Third-Party Beneficiary. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
12.4. Relationship between You and Caterpillar. You and Caterpillar are independent parties for all purposes relating to this Agreement. You do not have the power to bind Caterpillar. You do not have the power to give any person or entity any rights that Caterpillar has not previously authorized in writing. The relationship of the parties under this Agreement will not constitute a partnership or joint venture for any purpose. You and Caterpillar do not have any agency, franchise or fiduciary relationship.
12.5. Waiver. No waiver of any breach of this Agreement shall be a waiver of any other breach, and any waiver must be in writing and signed by an authorized representative of the waiving party.
12.6. Governing Law.
(a) This Agreement (including the arbitration provisions set forth in Section 12.7) shall be governed by and interpreted in accordance with the Laws of the State of New York and the federal Laws of the United States, without prejudice to the provisions of the Laws of the country where you have your principal place of business that cannot be derogated from contractually, and without reference to conflict of Laws’ principles (as such Laws are applied to agreements entered into and to be performed entirely within the United States between residents of the United States).
(b) This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, nor any related regulations or implementation or successor legislation, each of which is expressly excluded.
(a) All disputes, claims and controversies relating to or arising out of this Agreement (collectively, "Dispute") will be resolved by binding arbitration, rather than in court. If your principal place of business is in the United States, the Federal Arbitration Act applies to the arbitration of such Disputes.
(b) If your principal place of business is in the United States or Canada, the arbitration will be administered by the American Arbitration Association (AAA) in accordance with the AAA’s Commercial Arbitration Rules and Mediation Procedures. If your principal place of business is in any country in APAC, then the arbitration will be administered by the Singapore International Arbitration Centre (SIAC) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre. If your principal place of business is outside of the United States, Canada or any country in APAC, then the arbitration will be administered by the International Chamber of Commerce (ICC) in accordance with ICC Rules of Arbitration. The arbitration rules specified in this subsection are referred to as the “Rules.” For the purposes of this Agreement, “APAC” means the geographic region that includes the following countries: Australia, Bangladesh, Brunei, Burma, Cambodia, China (including Hong Kong Special Administrative Region and Macau Special Administrative Region), Christmas Islands, Fiji, India, Indonesia, Japan, Kiribati, Laos, Malaysia, Marshall Islands, Federated States of Micronesia, Mongolia, Nauru, New Zealand, Palau, Papua New Guinea, Philippines, Samoa, Singapore, Solomon Islands, South Korea, Sri Lanka, Taiwan, Thailand, Timor-Leste, Tonga, Tuvalu, Vanuatu and Vietnam.
(c) Either party may commence the arbitration process called for by this Agreement by filing a written demand for arbitration with the applicable arbitration organization and delivering a copy of such demand to the other party to this Agreement in accordance with the notice provision of this Agreement. In no event shall demand for arbitration be made or permitted after the date when the institution of legal or equitable proceedings based on such Dispute would be barred by the applicable statute of limitations. If your principal place of business is in the United States or Canada, the place of arbitration will be Chicago, Illinois, United States. If your principal place of business is in a country in APAC, the place of arbitration will be Singapore. If your principal place of business is outside of the United States, Canada or any country in APAC, the place of arbitration will be Geneva, Switzerland. The arbitration shall be conducted in English. Notwithstanding the foregoing, if your principal place of business is in the Netherlands, you may opt to resolve any Dispute before Dutch courts, provided that you notify Caterpillar of this election within thirty (30) days of Caterpillar notifying you of Caterpillar’s intention to commence arbitration.
(d) You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action, and that the parties are waiving the right to a trial by jury. If for any reason a claim proceeds in court rather than in arbitration, each party waives any right to a jury trial.
(e) If the Dispute is for an amount less than US$100,000, the arbitration shall be heard in front of a single arbitrator, and if the Dispute is for an amount of US$100,000 or more, then the Dispute shall be heard by a panel of three (3) arbitrators. If the Dispute is to be heard in front of a single arbitrator, then the parties shall attempt to mutually agree on the identity of the arbitrator, or if no such agreement can be reached within thirty (30) days of the commencement of the arbitration proceedings, the applicable arbitration organization shall appoint such arbitrator in accordance with the Rules. If the Dispute is to be heard in front of a panel of three (3) arbitrators, each party shall nominate one arbitrator from a list of arbitrators provided by the applicable arbitration organization, and the two party-nominated arbitrators shall select the third arbitrator who will serve as chairman. Notwithstanding anything to the contrary herein, either party may seek injunctive relief in a court of competent jurisdiction to prevent irreparable harm from occurring at any time. Each party shall bear its own cost of prosecuting or defending the arbitration (excluding any attorneys’ or other professional fees) and the parties shall split the arbitrators’ fees and the applicable arbitration organization’s administrative costs, regardless of the outcome. The provisions of this Section and judgment upon the award rendered by the arbitrator may be enforced by any court of competent jurisdiction. The arbitrator(s) shall render its decision as soon as reasonably possible after its appointment and must follow the terms of this Agreement.
(f) This agreement to arbitrate shall be specifically enforceable in any court having jurisdiction thereof. Any award issued by the arbitrator pursuant to any arbitration shall be final and binding upon the parties, and judgment may be entered upon in accordance with applicable Laws in any court of competent jurisdiction.
12.8. Notices. You agree that Caterpillar may contact you by any reasonable means to provide you with information and notices relating to the Digital Offering, this Agreement or for other purposes related to the subject matter of this Agreement. Such means of communication may include email (via the contact information you have provided in your Digital Offering account) or through the user interface for the Digital Offering. Notices to Caterpillar will be delivered by registered or certified mail only, return receipt requested, to the following address: Caterpillar Inc., Attn: Legal Services, Deputy General Counsel-IP, 100 NE Adams Street, Peoria, Illinois 61629-9600 USA. Unless otherwise provided by applicable Laws, notices are effective (a) when delivered personally, (b) seven (7) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, (c) two (2) business days after deposit with a private industry express courier, with written confirmation of receipt, (d) for email or other electronic transmission, when sent, or (e) if posted in the user interface for the Digital Offering, when posted. You are responsible for ensuring that the email address and contact information in your account is accurate and current. Notices sent via email will be effective when sent regardless of whether actually received.
12.9. DMCA. If you or any Authorized User believe in good faith that any materials available on the Interactive Services infringe your or their copyright, you (or your agent) or any Authorized User (or their agent) may send to Caterpillar a written notice by mail, e-mail or fax, requesting that Caterpillar remove such material or block access to it. If you or any Authorized User believe in good faith that someone has wrongly filed a notice of copyright infringement against you or any Authorized User (respectively) for Submission submitted by you or any Authorized User (respectively), the Digital Millennium Copyright Act of 1998 (the “DMCA”) permits you or any Authorized User (respectively) to send to Caterpillar a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing as follows: by mail to Attn: Copyright Agent, 100 N.E. Adams Street, Peoria, IL 61629-9620; or by e-mail to [email protected].
12.10. Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
12.11. Open Source Software. The Digital Offering may be provided together with, or otherwise contain, certain open source software components (“Open Source Components”) under their respective open source license agreements (“Open Source Licenses”) which are listed in the Digital Offering (or at such other location as designated by Caterpillar from time to time). You acknowledge and agree to the terms and conditions in each such Open Source License and to comply with all such terms and conditions. With respect to each Open Source Component, to the extent there are any conflicts between any terms of this Agreement and any terms of the respective Open Source License, such conflicting terms of this Agreement will not apply. Any fees charged by Caterpillar in connection with the Digital Offering do not apply to any Open Source Components for which fees may not be charged under the applicable Open Source License. Where the terms of any specific Open Source License entitle you to the source code of the respective Open Source Component (if any), that source code may be made available from Caterpillar upon request (a nominal fee may be charged by Caterpillar for processing such request).
12.12. Compliance with Laws.
(a) Without limiting any of Caterpillar’s or your other commitments hereunder, you and Caterpillar each agree to comply in all material respects with all Laws applicable to the performance of and exercise of each of your and Caterpillar’s respective rights and obligations under this Agreement. Your compliance with your obligations hereunder, including Ethical Business Conduct Laws (as defined below), will extend to Laws that apply to the access to or use of the Digital Offering, as well as any other of your activities hereunder. Such Laws include those that apply to online conduct, online content, and the transfer of data (including any Personal Information) to and from the United States or your country of residence. You will also cause your Authorized Users to comply with all such Laws.
(b) You agree that you have, and will maintain, at your own expenses, all permits, licenses, consents and approvals that apply to the Digital Offering or its use hereunder, including for you (including your Authorized Users) (a) to receive and use the Digital Offering in accordance with all applicable Laws, and (b) to otherwise exercise your rights and perform your other obligations as set forth in this Agreement (collectively, the “Permits”); provided that if obtaining any of the foregoing Permits is Caterpillar’s responsibility under applicable Laws and applicable Laws do not permit you to obtain such Permits on Caterpillar’s behalf, Caterpillar will obtain such Permits at its own expense.
12.13. Ethical Business Conduct. Without limiting Section 12.13:
(a) You understand and agree that the Digital Offering (including any Digital Offering Information) is subject to certain national, state, provincial and local laws, rules, regulations, directives, statutes, orders, judgments, decrees, rulings, and enforceable regulatory guidance (“Laws”), which include without limitation, governmental procurements Laws and Laws related to bribery, fraud, corruption, or international trade, such as the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, and any applicable anti-bribery or trade Laws of other countries, as amended, the U.S. Export Administration Regulations Act of 1979, as amended, the U.S. International Traffic in Arms Regulations, and the sanctions, regulations and Executive Orders administered by the U.S. Treasury Department Office of Foreign Assets Control and U.S. Department of State (collectively, “Ethical Business Conduct Laws”).
(b) You represent and warrant that none of your or your Affiliates’ employees, consultant, contractors or agents (including but not limited to officers, directors, stockholders and representatives) is a foreign official or is related to a foreign official (as defined in 15 U.S.C. §§ 78dd-1(f)(1) and 78dd-3(f)(2)), except to the extent previously disclosed to Caterpillar. If any of your or your Affiliates’ employees, consultant, contractors or agents or relatives thereof becomes a foreign official during the term of this Agreement, you will immediately notify Caterpillar in accordance with Section 12.8.
(c) You agree that you will not use or otherwise export, re-export, transfer or release, whether oral, visual, or deemed to be an export or reexport, or otherwise (collectively, "export"), except as authorized by United States Laws and the Laws of the jurisdictions in which the Digital Offering was accessed or used. In particular, but without limitation, the Digital Offering (including any Digital Offering Information) may not be exported (including by accessing the Digital Offering), directly or indirectly: (a) to any person or entity listed or deemed to be a blocked, prohibited or trade-restricted person or party by the U.S. Commerce Department, U.S. Treasury Department, or U.S. Department of State by operation of law or otherwise; (b) for any purpose or use prohibited by the U.S. government, such as for nuclear, chemical, or biological weapons production or proliferation; or (c) to any destination or transit point subject to comprehensive sanctions by the U.S. government, as may be amended from time to time, without having obtained the required U.S. authorization(s) prior to such export. You represent and warrant that your (including Authorized Users’) access and use of the Digital Offering will not violate any such Laws and that you are not located in any such country or on any such list or deemed to be on such list. You will not, and will ensure that Authorized Users will not, access or use the Digital Offering for any purposes prohibited by United States Laws, including the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
12.14. Government Entity Rights and Obligations. The Digital Offering is a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Commercial Computer Software and Commercial Computer Software Documentation is licensed to government entity end users pursuant to the license customarily provided to the public, with only those rights as are granted to the public pursuant to the terms and conditions herein and Caterpillar's applicable Public Sector End User License Agreement. Any government entity end user’s rights and obligations shall be governed by this Agreement, and such Public Sector End User Agreement, as modified by a written addendum agreed upon by authorized representatives of both parties. Unless modified by such addendum, or otherwise expressly agreed to in writing by authorized representatives of Caterpillar and the government entity end user, the terms of this Agreement shall govern each party’s rights and obligations. As the Digital Offering consists of Commercial Computer Software and Commercial Computer Software Documentation offered pursuant to a standard commercial license, this provision and the rights and obligations in such addendum are in lieu of, and supersede, any Federal Acquisition Regulation (“FAR”) clauses, clauses found in the Defense FAR Supplement (“DFARS”), or other federal, state, or local government clauses or provisions that address a government entity’s rights in computer software, technical data, or intellectual property.
12.15. Severability. If the application of any provision of this Agreement or portion thereof to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then the parties shall negotiate in good faith a valid, legal and enforceable substitute provision that most closely reflects the original intent of the parties with respect to the parties’ economic and business interests, and all other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to carry out the intentions of the parties hereto as nearly as may be possible. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.
12.16. Construction. As used herein: (a) the terms "include" and "including" are meant to be inclusive and shall be deemed to mean "include without limitation" or "including without limitation," (b) the word "or" is disjunctive, but not necessarily exclusive, (c) words used herein in the singular, where the context so permits, shall be deemed to include the plural and vice versa, (d) references to "dollars" or "$" shall be to United States dollars unless otherwise specified herein, and (e) unless otherwise specified, all references to days, months or years shall be deemed to be preceded by the word "calendar" and “business days” shall mean Monday through Friday, exclusive of Caterpillar observed holidays. The headings of this Agreement are intended solely for convenience of reference and shall be given no effect in the interpretation or construction of this Agreement.
12.17. Electronic Signature and Disclosure Consent Notice. You agree to the use of electronic documents and records in connection with this Agreement and all future documents and records in connection with the Digital Offering—including this electronic signature and disclosure notice—and that this use satisfies any requirement that Caterpillar provides you these documents and their content in writing. If you do not agree, do not enter into this Agreement. You have the right to receive a paper copy of all documents and records. You may (a) obtain a paper copy of any document or record (free of charge), (b) withdraw your consent to the use of electronic documents and records, or (c) update your contact information through your Digital Offering account. To receive or access electronic documents and records, you must have the following equipment and software: (i) a device that is capable of accessing the Internet; (ii) a compatible Internet browser; and (iii) software that permits you to receive and access Portable Document Format or "PDF" files, such as Adobe Acrobat Reader 8.0 or higher. To retain documents and records, your device must have the ability to download and store PDF files. Your access to this page verifies that your system and device meets the above receipt, access, and retention requirements.
12.18. Entire Agreement. This Agreement, including all schedules and exhibits attached hereto or referenced herein, constitutes the full and entire understanding of the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous understandings, agreements or communications with respect to the subject matter of this Agreement. This Agreement may only be changed as expressly provided herein (including pursuant to Section 12.19) or in a signed, separate written agreement executed by the parties hereto.
12.19. Changes to this Agreement and Subscriptions. Except to the extent prohibited by applicable Laws, Caterpillar may change the terms and conditions of this Agreement: (a) on an annual basis; (b) in connection with a release of a new version of the Digital Offering (or introduction of new or modified features or functionality within the Digital Offering); or (c) upon a change in applicable Laws, in each case, by providing notice of such change to the Agreement or Subscription terms at least thirty (30) days prior to the change going into effect. Notice provided under this Section 12.19 will be made by any reasonable means, which may include posting a revised version of this Agreement through the Digital Offering or providing notice in accordance with Section 12.8. Your continued access to or use of the Digital Offering after any change to this Agreement goes into effect will constitute your acceptance of such change. If you do not wish to be subject to revised terms of this Agreement, you may terminate this Agreement in accordance with Section 11.2. Changes to this Agreement will not apply to any dispute between you and Caterpillar arising prior to the date on which the changes went into effect. The “Last Updated” legend above indicates when this Agreement was last changed.
Acceptable Use Policy
You and Authorized Users may not:
(a) Post, transmit or otherwise make available through or in connection with the Digital Offering any materials that are or may be: (i) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (ii) defamatory, libelous, fraudulent or otherwise tortious; (iii) obscene, indecent, pornographic or otherwise objectionable; or (iv) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
(b) Post, transmit or otherwise make available through or in connection with the Digital Offering any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
(c) Use the Digital Offering for any purpose that is fraudulent or otherwise tortious or unlawful.
(d) Attempt to gain unauthorized access to the Digital Offering.
(e) Perform vulnerability, load or similar test of the Digital Offering.
(f) Harvest or collect information about other users of the Digital Offering (other than your Authorized Users).
(g) Interfere with or disrupt the operation of the Digital Offering or the servers or networks used to make the Digital Offering available, including by hacking or defacing any portion of the Digital Offering, or violate any requirement, procedure or policy of such servers or networks.
(h) Restrict or inhibit any other person from using the Digital Offering.
(i) Except as expressly authorized herein, reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Digital Offering, without Caterpillar’s express prior written consent (e.g., with respect the consumption of the APIs).
(j) Reverse engineer, decompile or disassemble any portion of the Digital Offering, except to the extent such restriction is expressly prohibited by applicable Laws.
(k) Remove any copyright, trademark or other proprietary rights notice from the Digital Offering.
(l) Frame or mirror any portion of the Digital Offering, or otherwise incorporate any portion of the Digital Offering into any product or service, without Caterpillar’s express prior written consent.
(m) Except as expressly authorized herein, systematically download and store Digital Offering Information.
(n) Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather the Digital Offering content, or reproduce or circumvent the navigational structure or presentation of the Digital Offering, without Caterpillar’s express prior written consent.
(o) Use or access the Digital Offering in order to develop a product or service that serves the same or a similar purpose or otherwise is competitive with the Digital Offering.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed for you to access or use the Digital Offering.