Last Updated: May 31, 2025
Please read this Digital Marketplace and API License Agreement (“Agreement”) carefully. Subject to the terms and conditions of this Agreement, Caterpillar Inc. and/or its Affiliates (“Caterpillar”) may provide you and any entity on whose behalf you accept this Agreement (you and any such entity, the “Licensee”) with access to and use of API Materials (as defined below) related to Caterpillar’s online Digital Marketplace (as defined below).
Licensee agrees to comply with all guidelines, rules, policies, terms and conditions that may be posted by Caterpillar on the Digital Marketplace or otherwise communicated by Caterpillar to Licensee from time to time, and with all applicable third-party terms of agreement.
BY CLICKING “AGREE” OR “ACCEPT” TO THIS AGREEMENT, OR BY ACCESSING OR USING THE DIGITAL MARKETPLACE OR API MATERIALS, LICENSEE AGREES TO BE BOUND BY AND COMPLY WITH THIS AGREEEMENT. 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.
IF YOU DO NOT AGREE, YOU SHOULD NOT DOWNLOAD, ACCESS OR USE THE DIGITAL MARKETPLACE, API MATERIALS, OR DIGITAL MARKETPLACE DATA.
References to “you” and “your” in this Agreement will refer to both the individual using the Digital Marketplace and to any such entity.
1. Definitions.
For purposes of this Agreement, the following terms have the following meanings:
(a) “API” means any Application programming interface(s) of Caterpillar, or any third party, in each case, that may consist of code, instructions and/or other data and information, as may be made available by Caterpillar from time to time in its discretion, and that are intended to permit an Application or Dashboard to interface with the Digital Marketplace in accordance with the terms and conditions hereof.
(b) “API Key” means the unique string identifying each Application and/or Licensee as a user of an API, assigned by Caterpillar to Licensee in Caterpillar’s discretion, to enable Licensee to access and/or use such API. The API Key may include separate “keys” for development purposes (a “Development Key”) and production purposes (a “Production Key”), and/or other unique identifier(s) assigned by Caterpillar to each Application and/or Licensee. API Keys may be subject to activation, suspension and/or deactivation by Caterpillar to ensure usage consistent with this Agreement and all applicable requirements, and for any other reason in Caterpillar’s discretion.
(c) “API Marks” means the trade names, trademarks, service marks and associated logos set forth by Caterpillar in a schedule attached to this Agreement, if applicable, and as amended from time to time.
(d) “API Materials” means any and all of the API, the API Key, and the Specifications (including any copies, portions, extracts and derivatives thereof) and any related materials (excluding the API Marks) made available by or on behalf of Caterpillar to Licensee pursuant to this Agreement or otherwise in connection with the API.
(e) “Application” means a software Application owned or licensed by Licensee that incorporates, accesses or uses any API Materials.
(f) “Provided Data” means, collectively, (1) the data relating to the operational performance of Caterpillar product (hardware or software) owned or operated by Licensee that is provided to Licensee through the Digital Marketplace, without any material processing by Caterpillar, and (2) the information specific to Licensee’s operations, which data in either event is provided to the Licensee via a Caterpillar supported interface designed to convey this data to Licensee.
(g) “Caterpillar API Materials” means API Materials owned or controlled by Caterpillar, where “control” means having the rights to grant the rights and licenses set forth in this Agreement.
(h) “Dashboard” means a display generated by visualization software for use by Licensee in Licensee’s business, including dashboards or Applications provided by Caterpillar or an affiliate of Caterpillar.
(i) “Digital Marketplace” means the Caterpillar system for hosting the API Materials and other Digital Marketplace Data (which may consist of or comprise of software, data, functions, features and other technology) currently accessible through digital.cat.com, and as may be (i) identified in the Specifications, and/or (ii) designated by Caterpillar from time to time in its discretion.
(j) “Digital Marketplace Data” means any data, content and other information (including accompanying metadata) that at any time is transmitted to or from, stored on, or accessible through the Digital Marketplace, or is otherwise made available by Caterpillar to Licensee in connection with the Digital Marketplace.
(k) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property right laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(l) “Specifications” means any Specifications and documentation related to the APIs that Caterpillar may make available from time to time in its discretion, and includes any software code (other than the API Key) that Caterpillar may make available specifically for the purpose of enabling an Application to access or use the API or to permit an Application to interface with the Digital Marketplace (for example, code to be embedded in an Application to facilitate communication through the API or with the Digital Marketplace).
(m) “Third Party Components” means any open-source or third party proprietary software that may be included in or used with the API Materials or Digital Marketplace.
(n) “User” means an end user of an Application or a Dashboard.
(o) “User Data” means any Digital Marketplace Data, including Provided Data, collected from Licensee or Users (whether by Caterpillar, Licensee or third parties), including any such data that identifies or can be used to identify an individual.
2. Jurisdictional Issues.
The Digital Marketplace is controlled and operated from the United States and is not intended to subject Caterpillar or its Affiliates to any jurisdiction or Laws other than the jurisdiction and Laws of the United States. The Digital Marketplace may not be appropriate or available for use in some non-U.S. jurisdictions. By accessing or using the Digital Marketplace, you represent and warrant that the use of Digital Marketplace is not prohibited by the Laws in the jurisdiction of your location at the time of use. We may limit the Digital Marketplace’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
3. Limited Right to Use.
(a) Use of API Materials and API Keys. Subject to Licensee’s acceptance of and compliance with this Agreement and the Specifications, Caterpillar grants to Licensee a limited, revocable, non-exclusive, non-sublicensable, non-transferable, non-assignable right, solely while this Agreement is in effect (as provided herein) to:
(i) access and use the Caterpillar API Materials hosted on the Digital Marketplace solely to
A. develop Applications for such purposes as may be (1) set forth in the Specifications, and/or (2) communicated by Caterpillar in writing from time to time in its discretion; or
B. integrate the API Materials into a Dashboard as may be (1) set forth in the Specifications, and/or (2) communicated by Caterpillar in writing from time to time in its discretion. Integration into a Dashboard will be solely for Licensee’s internal use (collectively, such development activities, “Development”).
(ii) use the API Key that may be generated, activated and provided to Licensee by Caterpillar, in Caterpillar’s discretion, solely to access an applicable API owned by Caterpillar (a “Caterpillar API”) as made available to Licensee by Caterpillar, or to permit Applications or Dashboards to interface with the Digital Marketplace, solely as described in the Specifications.
Notwithstanding the above limitations on sublicensing and assigning, Licensee may permit consultants or contractors with whom it has entered written service or consulting contracts to engage in Development on its behalf, and only on its behalf, so long as such consultants or contractors have agreed to be bound by the terms of this Agreement as though they are parties hereto. Licensee agrees that it shall be fully responsible for such persons complying with the terms of this Agreement and will indemnify and hold Caterpillar harmless for any losses or damages arising from such access. Notwithstanding anything to the contrary herein, Licensee’s rights in and to any API Materials other than the Caterpillar API Materials are limited to the rights granted to Licensee by such third parties. The Digital Marketplace and API Materials are available only for Licensee’s use in trade, business, craft, or professional purposes and are not intended for use by consumers in a personal capacity.
(b) Application or Dashboard Submission. Notwithstanding anything to the contrary herein, Licensee shall submit all Applications or Dashboard integration for non-internal use to Caterpillar prior to any use of such Application or Dashboard (or any related API Key or other API Materials) with the Digital Marketplace. By submitting an Application or Dashboard to Caterpillar, Licensee represents and warrants that such Application or Dashboard complies with this Agreement and the Specifications and, if applicable, the Other Terms. Caterpillar shall have the right (but not the obligation) to review and test such Application or Dashboard, and reserves the right to delay the activation of any API Key for such Application or Dashboard until the completion of any such review and testing. Licensee shall provide any materials, data and other information as may be requested by Caterpillar to confirm that such Application or Dashboard complies with this Agreement and the Specifications and, if applicable, the Other Terms. Caterpillar may reject any Application Dashboard for any reason and at any time (including at any time after the activation of an API Key for such Application or Dashboard), in Caterpillar’s sole discretion. Upon any change to an Application or Dashboard or any API Materials that affect an Application or Dashboard, Licensee shall resubmit such Application to Caterpillar pursuant to this Section 3(b).
(c) End User Agreements. If Licensee develops an Application or Dashboard for use by Users, (i) the Application or Dashboard must be pre-approved in writing in advance by Caterpillar prior to making such Application or Dashboard commercially available to third parties; (ii) the operation and use of the Application or Dashboard must comply with Caterpillar’s Acceptable Use Policy made available in Exhibit B and (iii) Users must be bound by an end user agreement incorporating the terms and conditions set forth in Exhibit A.
4. Restrictions.
(a) Use Restrictions.
(i) Licensee may use only those API Materials that are provided by Caterpillar to Licensee. Licensee may not use any key or means of access to the API other than the API Key provided by Caterpillar to Licensee.
(ii) Caterpillar may, in its sole discretion, set and change quotas and other limits on API usage, which may include the number of calls Licensee may make to the Digital Marketplace or otherwise using the APIs during a particular period, the minimum required time between any such calls, and/or the maximum file size that may be transmitted to or from the Digital Marketplace or otherwise using the APIs and API Materials. Licensee will not, and Licensee will not permit or enable an Application or any third party to, exceed or circumvent any such quotas or limits, including by aggregating accounts or obtaining multiple API Keys. Without limiting the foregoing, Licensee will not use the API in a manner that exceeds reasonable request volume or constitutes excessive or abusive use.
(iii) Except as specifically provided in Section 3(a) above, Licensee may not permit or enable any third party to use or access any API Materials.
(iv) Licensee will not, and Licensee will not permit or enable an Application or any third party to: (i) use any API Materials for any purpose or in any manner other than expressly permitted in Section 3 above; (ii) rent, sell, lease, lend, convey, redistribute or otherwise provide any third party with access to any API Materials; (iii) modify, decompile, reverse engineer, alter, tamper with or create derivative works of any API Materials; (iv) falsify or alter the API Key or otherwise obscure or alter the sources of queries coming from an Application; (v) access legacy or internal Application programming interfaces or data feeds that are used by Caterpillar but that are not available or intended by Caterpillar to be available through the API; or (vi) any other actions prohibited by the Acceeptable Use Policy. Licensee will cause all API calls to include Licensee’s API Key.
(b) Conformance and Noninterference. Licensee will cause each Application and Licensee’s use of the API Materials to: (i) conform with the Specifications and any other policies, terms and conditions that govern access to and/or use of the API Materials; and (ii) conform with and not interfere with, circumvent, or render ineffective any restrictions implemented in connection with the API Materials, including any geographically-based restrictions (e.g., geo-blocking or reverse-IP lookup). Licensee will not, and Licensee will not permit or enable an Application or any third party to, interfere with the proper workings of any API Materials or the Digital Marketplace, or create or distribute any service or Application that adversely affects the functionality or performance of any API Materials, the Digital Marketplace, or any websites, products or services of Caterpillar or any of the Caterpillar Parties (as defined below, including suppliers of Digital Marketplace Data and API Materials), business partners or customers.
(c) If any API made available through the Digital Marketplace is also governed by a separate agreement with Caterpillar (including, without limitation, the VisionLink API and VisionLink End User License Agreement), then in the event of any inconsistency, the more restrictive terms governing Licensee’s use of, access to, or rights in the API or Digital Marketplace Data shall control, to the extent not contradictory with the EU Data Act (Regulation EU 2023/2854), where applicable, or other applicable Laws.
5. Digital Marketplace Data.
(a) Unless contradictory to the EU Data Act, where applicable, or other applicable Laws, Licensee will not, and Licensee will not permit or enable an Application or any third party to: (a) use any automated means, other than APIs, (e.g., scraping, crawling, spidering or robots) to access, query or obtain any Digital Marketplace Data; or (b) except as expressly permitted by the Specifications, archive, store, modify or replace any Digital Marketplace Data (including by changing the order in which Digital Marketplace Data are originally made available by Caterpillar or intermixing data from sources other than Caterpillar with personal or personally identifiable Digital Marketplace Data); provided, however, the foregoing shall not impact Licensee’s ability to store Provided Data. Licensee will only request such Digital Marketplace Data as is necessary to operate each Application and that Caterpillar and the User have authorized Licensee to request. Licensee shall comply with all applicable laws, rules and regulations with respect to Digital Marketplace Data. Licensee will delete any and all Digital Marketplace Data, other than Provided Data, upon request by Caterpillar. For the avoidance of doubt, by downloading, accessing or using the Digital Marketplace or API Materials, you (including Authorized Users) consent to the collection, storing, processing, use, sharing and disclosure of information (to the extent not contradictory to the EU Data Act, where applicable, or other applicable Laws), regardless of whether collected prior to you entering into this Agreement or thereafter, as described in the Data Governance Statement located at https://www.caterpillar.com/en/legal-notices/data-governance-statement… and Caterpillar’s Global Data Privacy Statement (collectively, the “Data Governance Documents”).
(b) Some features of the Digital Marketplace require use of various networking and communications systems. You hereby consent to such communications and, subject always to Section 20(d), waive any claims that you may have against Caterpillar or its Affiliates with respect to such communications. You recognize that such systems have an inherent risk of interception and/or interference and, therefore, may not be secure and that Caterpillar has no responsibility for the availability, quality or performance of communications services or equipment furnished by third-party communication carriers.
(c) Caterpillar reserves the right to refuse to accept any information that you may provide through the Digital Marketplace. Notwithstanding the foregoing, you acknowledge that Caterpillar has no responsibility for the deletion or failure to store any such information. You represent, warrant and covenant that (i) 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 any information you submit through or in connection with the Digital Marketplace or API Materials to Caterpillar, its Affiliates and their respective licensors, service providers, suppliers and to enable such entities to provide the Digital Marketplace and the services provided through the Digital Marketplace 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 (ii) you are solely responsible for all information you submit through the Digital Marketplace to Caterpillar, including the accuracy, integrity, quality, legality, reliability, and appropriateness of the such information.
6. Changes.
Caterpillar reserves the right to change the Digital Marketplace, or any API Materials or Digital Marketplace Data (other than Provided Data) at any time, for any or no reason, and Caterpillar bears no responsibility or liability for such actions. Caterpillar reserves the right to release subsequent versions of the Digital Marketplace, API Materials and to require Licensee to use the most recent version thereof, and Licensee agrees that it is Licensee’s responsibility to ensure, at Licensee’s own cost, that Licensee’s access to and use of the Digital Marketplace, or any API Materials or Digital Marketplace Data is compatible with Licensee’s then-current requirements.
7. Users; User Data; Privacy.
(a) User Data Authorization. Licensee will ensure that, before each User initially uses an Application whether to access the Digital Marketplace or otherwise, such User (a) is presented with an authorization request for such Application that identifies the User Data that the Application may access (including on the Digital Marketplace), and that otherwise complies with all Specifications applicable to such authorization requests; and (b) has affirmatively granted such authorization. Licensee will record the dates and times of such authorization for each applicable User and Application, and will maintain and make available such records to Caterpillar upon Caterpillar’s request. Caterpillar may, at any time and without reason or prior notice, require Licensee to re-obtain such authorization from any or all Users.
(b) Liability. Licensee will be responsible and liable for any acts or omissions of Users and any other user of each Application, including acts or omissions that would constitute a breach of this Agreement if such acts or omissions were undertaken by Licensee.
(c) User Data.
(i) As between Licensee and Caterpillar, Licensee is solely responsible for any User Data (and any other data and information) collected by Licensee or through each Application, including the completeness and accuracy thereof and the legality of its collection and processing (including the transmission of any User Data to or through the Digital Marketplace).
(ii) In addition to complying with all terms and conditions imposed with respect to Digital Marketplace Data under Section 5 above, Licensee will comply with the following additional terms and conditions with respect to User Data, Licensee will ensure that each Application does not collect User Data from or concerning any User unless Licensee first informs such User of the Data Governance Statement currently available at https://www.caterpillar.com/en/legal-notices/data-governance-statement… (“Data Governance Statement”), through a privacy policy made available to such User prior to downloading or using such Application and prominently and conspicuously posted at each location(s) where such User Data is collected, about the types of User Data being collected and how such User Data may be used and disclosed (“Licensee Privacy Policy”). The Licensee Privacy Policy will be consistent with Licensee’s obligations hereunder and with the Data Governance Statement, and will ensure that Caterpillar is granted rights at least as broad as those set forth in this Agreement and the Data Governance Statement.
(iii) Licensee’s collection, use and disclosure of User Data shall not conflict with either the Licensee Privacy Policy or the Data Governance Statement.
(iv) Without limiting the foregoing, and regardless of whether the applicable User has consented, Licensee shall not aggregate any User Data or other personal or personally-identifiable information received by Licensee or an Application from or through Caterpillar or the Digital Marketplace, or by using any of the API Materials and disclose such data to another person.
8. Security, Audit, and Monitoring.
(a) Security and Harmful Code. Licensee will ensure that each Application contains protections that are adequate to keep secure and prevent the interception of any data transmitted to and from such Application or the Digital Marketplace. Licensee will ensure that each Application transmits data with a protocol at least as secure as the then current industry standard, and in any event with protocols that are at least as secure as those being accepted by the API and/or the Digital Marketplace. Licensee will not attempt to circumvent any security measures or technical limitations of the API and/or the Digital Marketplace. Licensee will immediately notify Caterpillar of any security deficiencies (including without limitation any actual or suspected theft, loss or misuse of data or actual or suspected vulnerabilities that may result in a theft, loss or misuse of data) that Licensee discovers or suspects in connection with the API, any Application or Digital Marketplace Data, such notification to be made via the contact information provided on the Digital Marketplace’s developer website, currently located at digital.cat.com. Licensee will not include (or permit to be included) in or in connection with an Application any spyware, malware, virus, worm, Trojan horse or other malicious or harmful code, or any software Application not expressly and knowingly authorized by each applicable User prior to being downloaded or installed.
(b) Licensee acknowledges and agrees that Caterpillar may, but is not obligated to, audit and/or monitor the Licensee’s use of the Digital Marketplace, including API Materials and Digital Marketplace Data and Licensee’s access, to ensure quality and to verify compliance with this Agreement. Licensee will provide Caterpillar with any information or materials that Caterpillar requests to verify Licensee’s compliance with this Agreement and the Specifications. Licensee will not interfere with such auditing and/or monitoring or otherwise obscure from Caterpillar any activity, and Caterpillar may use any technical means to overcome such interference.
9. Responsibility for Development, Service, and Support.
Licensee will be solely responsible for all development and distribution of Applications, including all related costs, expenses, losses and liabilities. As between Licensee and Caterpillar, Licensee is solely responsible for all aspects of each Application, and Licensee acknowledges and agrees that Caterpillar will not provide or be required to provide any technical or other support services to Licensee or any User in connection with any API Materials or Digital Marketplace Data, including with respect to integration of each API with an Application. Caterpillar is not responsible for monitoring or policing any dispute related to an Application or its use or the use of any API Materials or Digital Marketplace Data that may arise between or among Licensee, any User, and/or any other third party. Licensee’s use of the API Materials and Digital Marketplace Data is at Licensee’s own risk, and Licensee is solely responsible for any damage that results from the use of the API Materials or Digital Marketplace Data, including any damage to Licensee’s or any Users’ computer systems or networks or any loss of data.
10. Registration, User Names and Passwords.
In order to access and use the Digital Offering, Caterpillar may require you to create a username (for example, a corporate web security ID) and password. In that case, you must follow Caterpillar’s log-in instructions (which may change from time to time). You may also be required to provide Caterpillar with certain registration information as requested by Caterpillar and to keep such information up to date. Your user name and password are for your personal use only and should be kept confidential; you, and not Caterpillar, are responsible for any use or misuse of your user name or password,. You must promptly notify Caterpillar if you discover any possible misuse, loss, or disclosure, or unauthorized use of your accounts or authentication credentials or any security incident related to the Digital Marketplace. Should Caterpillar have reasonable grounds to suspect that any information that you provided 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 (defined below), or any of their respective licensors, service providers, suppliers, or Caterpillar Dealers to additional obligations or liabilities), Caterpillar shall have the right to suspend or terminate your right to access and use the Digital Marketplace immediately without notice.
11. User Submissions.
(a) Submissions. Digital Marketplace visitors may make available certain materials (each, a “User Submission”) through or in connection with the Digital Marketplace, including on profile pages or on the Digital Marketplace’s interactive services, such as message boards and other forums, and chatting, commenting and other messaging functionality within the Digital Marketplace (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 you or any third party of User Submissions, or for any of your (including Authorized Users) interactions with other users of the Digital Marketplace, and, subject to Section 20(d), you waive and hold harmless Caterpillar and its Affiliates from any claims resulting from your (including Authorized Users) use or misuse of, or interactions with User Submissions. You acknowledge and agree that Caterpillar has the authority to remove any User Submissions and any information from the Interactive Services at its discretion but is under no obligation to monitor the accuracy or completeness of any User Submission or the Interactive Services. Upon your reasonable, written request, Caterpillar will take commercially reasonable efforts to remove any inaccurate or objectionable User Submissions from the Interactive Services. Further, to the extent that you are notified that any User Submission or information you have made available through the Digital Marketplace, including through the Interactive Services, is inaccurate or otherwise objectionable, you agree to promptly investigate the matter and remove the content in question until a reasonable investigation confirms its accuracy or appropriateness. Without limiting the foregoing, you understand and agree that you (including Authorized Users) may be exposed to User Submissions that are inaccurate, inappropriate for children, or otherwise objectionable, and you agree that neither Caterpillar nor its Affiliates will be liable for any such User Submissions. If you (including Authorized Users) choose to act upon User Submissions, you do so at your (including Authorized Users’) own risk. If you (including Authorized Users) choose to make any of your personal information as defined in the Data Governance Documents or other information publicly available through the Digital Offering, you (including Authorized Users) do so at your (including Authorized Users’) own risk. For the avoidance of doubt, User Submissions shall not be Feedback, as that term is defined under Section 7.2.
(b) You shall not submit or cause to submit through the Digital Marketplace any competitive information from you that you received from a competitor of Caterpillar. Caterpillar cannot accept information that would violate our Code of Conduct, such as information that is a trade secret, obtained in breach of a confidentiality obligation, or obtained through improper means (misrepresentation, misappropriation, bribery, etc.) and you shall not provide or make available any such information through the Digital Marketplace. To document that you are not the conduit between Caterpillar and a Caterpillar competitor, you shall document the source of the information you submit through User Submissions and Interactive Services, including when and how you obtained it, prior to sharing with Caterpillar. If you have any questions about this, contact Caterpillar in accordance with Section 25(f) before submitting any information through the Digital Marketplace or sharing it with Caterpillar.
(c) License. For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze, make, use, sell, offer for sale, import, and otherwise exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials). For the avoidance of doubt, User Submissions shall not constitute Feedback, as defined in Section 14.
(d) Representations and Warranties. You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the Digital Marketplace, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
1.4 DMCA. Caterpillar respects the rights of all copyright holders and in this regard, Caterpillar has adopted and implemented a policy that provides for the removal from its websites and Interactive Services of materials that infringe the rights of copyright holders. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Caterpillar’s Copyright Agent all of the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. § 512:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(b) Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single on-line site are covered by a single notification, a representative list of such works at that site.
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Caterpillar to locate the material. Information reasonably sufficient to permit Caterpillar to contact the complaining party.
(d) A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the Law.
(e) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(f) Caterpillar’s Copyright Agent for notice of claims of copyright infringement on or regarding this site can be reached as follows: Copyright Agent, 100 N.E. Adams St., Peoria, IL 61629-9620; E-mail: [email protected].
(e)
12. Compliance with Laws.
(a) Licensee covenants, represents and warrants to Caterpillar that it will comply with all applicable laws, regulations and policies (“Laws”) related to the development, marketing, sale, distribution and use of each Application, the API Materials, the Digital Marketplace Data and User Data, including but not limited to 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. Upon Caterpillar’s request, Licensee will promptly provide to Caterpillar copies of any regulatory approvals or other clearances. Licensee shall not seek any regulatory permissions or make any determinations that may result in Caterpillar or any Caterpillar Party (as defined below) being deemed regulated or that may impose any obligations or limitations on Caterpillar or a Caterpillar Party.
(b) Licensee is responsible for all activities that occur using the API Key or any Application, regardless of whether those activities are undertaken by Licensee, a User, or any other person or entity. Licensee will not, and Licensee will not permit or enable an Application or any third party to, access or use the Digital Marketplace or any API Materials or access, transmit, receive or use any Digital Marketplace Data in a manner or for a purpose: (i) that violates any applicable law, rule or regulation (including export laws) or privacy policy; (ii) that violates any third party’s intellectual property or other rights; (iii) that a User would reasonably consider to be deceptive, unethical, false or misleading; or (iv) that is inconsistent with this Agreement or the Specifications.
(c) Licensee agrees that Licensee has, and will maintain, at Licensee’s own expenses, all permits, licenses, consents, and approvals that apply to the Digital Marketplace and API Materials or their use hereunder, including for Licensee (a) to receive and use the Digital Marketplace, API Materials, and Digital Marketplace Data in accordance with all applicable Laws, and (b) to otherwise exercise Licensee’s rights and perform Licensee’s 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.
(d) 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 25(f).
(e) Import and Export Compliance. 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 API Materials, Digital Marketplace Data or the Digital Marketplace was accessed or used or any machines or equipment used in connection with the API Materials, Digital Marketplace Data or the Digital Marketplace are located (or with respect to data, stored). In particular, but without limitation, the API Materials and Digital Marketplace Data (including any System Data, as defined in the Data Governance Statement) may not be exported (including by accessing the Digital Marketplace), 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 API Materials, Digital Marketplace Data and the Digital Marketplace 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 Users will not, access or use API Materials, Digital Marketplace Data or the Digital Marketplace for any purposes prohibited by United States Laws, including the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
(f) To the extent you are a user of the Digital Offering and have concerns about the content in the Digital Offering (including the legality thereof), please contact Caterpillar’s Office of Business Practices, [email protected], with the relevant information about the content.
13. Confidential Information.
Licensee’s use of the Digital Marketplace, API Materials and Digital Marketplace Data (other than Provided Data) may involve access to confidential, proprietary or trade secret information or materials of Caterpillar (and its affiliates, Caterpillars, suppliers, service providers, business partners or customers) (“Confidential Information”). For the avoidance of doubt, and without limitation, all API Materials and Digital Marketplace Data (other than Provided Data) constitute Confidential Information. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of a breach of the Agreement; (b) is obtained on a non-confidential basis from a third party that was not legally restricted from disclosing it; (c) was already in the Licensee’s possession prior to its disclosure under this Agreement; or (d) was independently developed without using Confidential Information. Licensee will: (a) hold the Confidential Information in trust and confidence; (b) use the Confidential Information only as expressly permitted in this Agreement (and not for the benefit of any third party), and not in any manner or for any purpose other than as expressly permitted in this Agreement; (c) not reproduce Confidential Information except as necessary to fulfill Licensee’s obligations hereunder; and (d) not make available to any third party, directly or indirectly, any Confidential Information without Caterpillar’s express prior written consent. Notwithstanding the foregoing, Licensee may disclose Confidential Information if it is disclosed pursuant to a valid court order or other government order; provided that, Licensee will: (i) prior to disclosing, promptly notify Caterpillar and give Caterpillar an opportunity to object to such order; (ii) inform the requesting body the nature of such Confidential Information and seek confidential treatment of such Confidential Information by the requesting body; and (iii) disclose only such Confidential Information as is strictly required by such order. Licensee will develop, implement, maintain and monitor a comprehensive information security program that contains reasonable administrative, technical and physical safeguards, requirements mandated by applicable law and other requirements provided by Caterpillar from time to time to protect Confidential Information against unauthorized access or disclosure, and unauthorized, unlawful or accidental loss, destruction, acquisition or damage. Licensee will not use Confidential Information for any patents. Without limiting any other rights or remedies of Caterpillar, if Licensee uses or discloses Confidential Information for any patents or files or prosecutes any patents for inventions based in whole or in part on any Confidential Information, Caterpillar and its Affiliates will have and are hereby granted a fully paid-up, royalty-free, worldwide, irrevocable license (including the right to grant and authorize sublicenses) to exercise all rights under such patents. Licensee will be solely responsible and liable for all use and disclosure of Confidential Information by or through Licensee, Users or an Application. Upon any expiration or termination of this Agreement, Licensee will immediately delete all copies of Confidential Information in its possession, custody or control. Licensee acknowledges and agrees that Licensee’s breach or threatened breach of this Section 13 may cause Caterpillar irreparable harm and significant injury, the amount of which may be difficult to estimate and ascertain, thus making inadequate any remedy at law or in damages. Therefore, Licensee agrees that Caterpillar is entitled to injunctive relief by any court of competent jurisdiction enjoining any threatened or actual breach of this Agreement and for any other relief that such court deems appropriate, in addition to any other remedy or remedies available at law or in equity.
14. Intellectual Property.
(a) As between Caterpillar and Licensee:
(i) Caterpillar or its licensor owns and retains all rights, title, and interest in and to all API Materials, the Developer
Portal, and the Digital Marketplace Data (other than the Provided Data), including all Intellectual Property Rights in or associated with the API Materials, the Digital Marketplace, and the Digital Marketplace Data (other than the Provided Data). Nothing in this Agreement or otherwise will be deemed to grant an ownership interest in any of the Intellectual Property Rights in or to any of the API Materials, Digital Marketplace, or Digital Marketplace Data (other than the Provided Data).
(ii) Licensee owns and retains all rights, title, and interest in and to all Applications developed by the Licensee (“Licensee Applications”) including all Intellectual Property Rights in or associated with the Licensee Applications, but excluding any and all API Materials, the Digital Marketplace, and the Digital Marketplace Data (other than the Provided Data) and the Intellectual Property Rights in or associated with the API Materials, the Digital Marketplace, and the Digital Marketplace Data (other than the Provided Data) that are included in or associated with the Licensee Applications.
(iii) Except as expressly granted herein, Caterpillar grants no rights or licenses, whether express or implied, under Intellectual Property Rights. The Digital Marketplace, API Materials and Digital Marketplace Data (other than the Provided Data) are licensed, not sold.
(b) If Licensee provides any ideas, proposals, suggestions or other materials to Caterpillar or a Caterpillar Party (“Feedback”), whether related to the Digital Marketplace, API Materials or otherwise, Licensee hereby acknowledge and agree that such Feedback is not confidential, and that Licensee’s provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Caterpillar under any fiduciary or other obligation. Licensee agrees that Caterpillar does not control and is not responsible for any Feedback or the use or misuse (including any distribution) by any third party of Feedback. In addition, by submitting Feedback, Licensee 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 to Feedback 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 Licensee waives all moral and similar rights in connection therewith. Any disclosure of Feedback by Caterpillar to third parties (other than to Caterpillar’s Affiliates and Caterpillar’s and its Affiliates’ licensors, service providers or suppliers) shall not attribute the Feedback to Licensee. For purposes of clarification, Licensee Applications and proposed integration of API Materials in connection with a Dashboard will not be deemed to be Feedback.
15. Third Party Components.
Licensee is solely responsible for obtaining all necessary consents and other rights with respect to Third Party Components and, subject to the terms and conditions of this Agreement, Licensee will comply with all related third party terms, conditions and policies. Caterpillar is not responsible for any use of the Digital Marketplace, API Materials or Digital Marketplace Data to run any Applications or technology developed by a third party or any Applications or technology that access Third Party Components, including for any performance, quality, accuracy, reliability or other aspect related to such use. Licensee is solely responsible and liable for accessing or using Third Party Components, and Caterpillar is not liable for any loss or damage that Licensee may suffer as a result of accessing or using such Third Party Components.
16. Trademarks.
Subject to the terms and conditions of this Agreement, Caterpillar may grant to Licensee in certain circumstances, and solely while this Agreement is in effect (as provided herein), a limited, non-exclusive, non-transferable, non-sublicensable license to use the API Marks, solely (a) in connection with an Application for which Caterpillar has issued Licensee a then-valid API Key; and (b) consistent with good trademark practice and Caterpillar’s Brand Usage Guidelines, to be provided to Licensee by Caterpillar as applicable. Caterpillar may update the Brand Usage Guidelines and the API Marks from time to time, and Licensee shall comply with the then-current Brand Usage Guidelines and use only the then-current API Marks. No other rights are granted herein, except as expressly set forth in this Agreement. Licensee agrees that Caterpillar and/or its licensors own and maintain all right, title and interest in and to the API Marks, and Licensee acknowledges the value of the API Marks, and that any and all goodwill generated by Licensee in the API Marks will inure to the sole benefit of Caterpillar and/or its licensors, as applicable. Licensee shall not alter the API Marks, or use the API Marks in any manner that might prejudice, tarnish or damage the reputation of Caterpillar or its licensors, the API Marks, or the products or services of
Caterpillar or its licensors. Caterpillar may monitor Licensee’s use of the API Marks, and, at Caterpillar’s request, Licensee will provide to Caterpillar copies of any materials bearing the API Marks. Caterpillar may terminate the rights granted to Licensee under this Section 14 for any reason and without prior notice. Upon such termination, Licensee shall immediately cease all use of the API Marks. Neither this Agreement nor the use of the API Marks by Licensee shall create, or be deemed to create, responsibility or liability on the part of Caterpillar for the acts or omissions of Licensee.
17. Fees.
Caterpillar reserves the right to modify fees and payment terms with respect to Licensee’s continued use of the Digital Marketplace, or any API Materials or Digital Marketplace Data, at any time and in Caterpillar’s sole discretion, provided that a subscription may limit Caterpillar’s ability to modify fees or payment terms during the term of such subscription. Fees may be based upon the number of calls a Licensee or its Users make or on other terms as set forth in a subscription.
18. Term; Suspension/Termination.
This Agreement will remain effective until terminated in accordance with its terms. Either party may terminate this Agreement immediately upon notice to the other party. Caterpillar reserves the right in its discretion to immediately terminate this Agreement, and/or suspend (temporarily or permanently), terminate or revoke Licensee’s, an Application’s and/or any User’s access to or use of any or all API Materials, API Marks, Digital Marketplace Data other than Provided Data to the extent not contradictory to the EU Data Act or other applicable Laws.and/or the Digital Marketplace (including by revoking or suspending any API Key), in whole or in part, at any time and for any reason (including if Caterpillar knows of or suspects that such Licensee, Application or User has a security deficiency, or has inappropriately accessed, used or disclosed Digital Marketplace Data or may otherwise threaten or damage the reputation(s) of the Digital Marketplace, Caterpillar or any of its affiliates), with or without cause or notice to Licensee, and Caterpillar bears no responsibility or liability for any such suspension, termination or revocation. Further, any licenses to Licensee contained in this Agreement will immediately and automatically terminate, without notice to Licensee, if at any time Licensee does not timely comply with this Agreement. Upon termination of this Agreement by either party or upon suspension, termination or revocation of Licensee’s and/or an Application’s access to the API by Caterpillar, any and all licenses Licensee may have with respect to the API Materials, API Marks and Digital Marketplace Data will immediately terminate, and Licensee will immediately cease using all API Materials, API Marks and Digital Marketplace Data and delete any API Materials, API Marks and Digital Marketplace Data in its possession or control [other than Provided Data]. Sections 1, 2, 3, 4(b), 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, and 22 will survive, to the extent applicable, any expiration or termination of this Agreement and will continue to bind Licensee following such expiration or termination.
19. Disclaimers.
THE DIGITAL MARKETPLACE, API MATERIALS, AND DIGITAL MARKETPLACE DATA ARE PROVIDED BY THE CATERPILLAR PARTIES ON AN “AS IS” AND “AS AVAILABLE” BASIS. CATERPILLAR AND ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS AND SUPPLIERS (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 WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING THE DIGITAL MARKETPLACE, API MATERIALS AND DIGITAL MARKETPLACE DATA. WITHOUT LIMITING THE FOREGOING, AND, WHERE APPLICABLE, TO THE EXTENT NOT CONTRADICTORY TO THE EU DATA ACT OR OTHER APPLICABLE LAWS, NONE OF THE CATERPILLAR PARTIES PROVIDE ANY WARRANTY THAT THE DIGITAL MARKETPLACE, API MATERIALS OR DIGITAL MARKETPLACE DATA 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 API MATERIALS WITH RESPECT TO THE PARTICULAR API. THE CATERPILLAR PARTIES DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM ACCESS OR USE OF THE DIGITAL MARKETPLACE, API MATERIALS OR DIGITAL MARKETPLACE DATA. LICENSEE AGREES THAT ACCESS OR USE OF THE DIGITAL MARKETPLACE, API MATERIALS OR DIGITAL MARKETPLACE DATA IS AT LICENSEE’S OWN DISCRETION AND RISK AND THAT LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO LICENSEE’S 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 THIS SECTION MAY NOT APPLY TO LICENSEE. NOTWITHSTANDING LICENSEE’S ACCESS TO AND USE OF THE DIGITAL MARKETPLACE, API MATERIALS OR DIGITAL MARKETPLACE DATA
AND REGARDLESS OF ANY INFORMATION PROVIDED THROUGH THE API MATERIALS (WHETHER ACCURATE OR INACCURATE) OR THE ASSETS, EQUIPMENT OR OTHER SYSTEMS WITH WHICH THEY CONNECT, LICENSEE IS SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISK RELATED TO, THE PROPER OPERATION, SUPPORT AND MAINTENANCE OF ALL SUCH ASSETS, EQUIPMENT AND OTHER SYSTEMS. THE FOREGOING EXCLUSIONS AND LIMITATIONS ARE NOT INTENDED TO APPLY TO DEATH OR BODILY INJURY TO THE EXTENT DIRECTLY CAUSED BY A CATERPILLAR PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT. THE DIGITAL MARKETPLACE, API MATERIALS AND DIGITAL MARKETPLACE DATA ARE NOT INTENDED TO PROVIDE ANY EMERGENCY, MISSION CRITICAL
OR SAFETY RELATED FUNCTIONALITY AND LICENSEE SHALL NOT USE THE DIGITAL MARKETPLACE, API MATERIALS OR DIGITAL MARKETPLACE DATA IN THAT MANNER. CATERPILLAR DOES NOT GUARANTEE ANY RESULTS OR THE ACCURACY OF ANY RESULTS THAT LICENSEE MAY OBTAIN FROM THE DIGITAL MARKETPLACE, API MATERIALS OR THE DIGITAL MARKETPLACE DATA. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 19 ARE SUBJECT ALWAYS TO SECTION 20(D)
20. Limitation of Liability.
TO THE MAXIMUM EXTENT ALLOWED BY LAW, AND, WHERE APPLICABLE, TO THE EXTENT NOT CONTRADICTORY TO THE EU DATA ACT, AND SUBJECT ALWAYS TO SECTION 20(D):
(a) NONE OF THE CATERPILLAR PARTIES WILL BE LIABLE TO LICENSEE UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, (B) LOSS OF PROFITS, REVENUES, DATA, CUSTOMERS, OPPORTUNITIES, BUSINESS, ANTICIPATED SAVINGS OR GOODWILL, OR (C) UNAVAILABILITY OF THE DIGITAL MARKETPLACE, API MATERIALS, THE DIGITAL MARKETPLACE DATA OR THE ASSETS, EQUIPMENT OR SYSTEMS WITH WHICH THEY CONNECT. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT SUCH DISCLAIMERS ARE PROHIBITED BY APPLICABLE LAW.
(b) Damages Cap. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAWS AND SUBJECT TO SECTION 20(D), THE AGGREGATE LIABILITY OF THE CATERPILLAR PARTIES UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY LICENSEE TO CATERPILLAR HEREUNDER DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE THE CLAIM AROSE. 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-BYCLAIM BASIS.
(c) 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 DIRECTLY CAUSED BY A PARTY’S NEGLIGENCE; OR (B) FRAUD OR WILLFUL MISCONDUCT.
(d) The limitations and exclusions in this Agreement apply to the fullest extent permitted by Law and to the extent not contradictory to the EU Data Act, where applicable. Nothing in this Agreement excludes, restricts or modifies any guarantee, right or remedy conferred on you by any applicable law that cannot be excluded, restricted or modified.
21. Indemnification.
Licensee will defend and/or settle at Licensee’s 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, subcontractors, suppliers or distributors (individually and collectively, the “Caterpillar Indemnified Party(ies)”) arising from or relating to: (i) Licensee’s access to, use of or other activities in connection with the API or any other API Materials, the API Marks, the Digital Marketplace or Digital Marketplace Data; (ii) each Application, its use and any transactions conducted through it or User Data transmitted through it; (iii) the operation of Licensee’s business in connection with the Digital Marketplace, API Materials, API Marks or Digital Marketplace Data, (iv) any suspension or termination of an Application by Licensee or the suspension or termination of an Application’s access to or use of the Digital Marketplace where such suspension or termination is due to Licensee breaching this Agreement, or any other agreement, with Caterpillar; (v) any breach by Licensee of any representations, warranties, covenants or obligations under this Agreement; or (vi) any claim that an Application (including any component thereof), or Caterpillar’s exercise of its rights under this Agreement, infringes, misappropriates or violates any third-party intellectual property or proprietary rights, and, in each case Licensee will pay all damages finally awarded and settlement amounts entered into to the extent based upon such a Claim. Upon Licensee’s request and solely at Licensee’s cost and expense, Caterpillar shall provide Licensee with reasonable assistance with respect to the defense and/or settlement of such Claim. At Caterpillar’s sole election, Licensee will assume control of the defense and settlement of any Claim that is subject to indemnification by Licensee pursuant to this Section 19 (provided that Caterpillar may at any time thereafter elect to take over control of the defense and settlement of any such Claim, and provided that Licensee will not settle any such Claim without Caterpillar’s express prior written consent).
22. Governing Law.
(a) This Agreement (including the arbitration provisions set forth in Section 24) 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 Licensee has its 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) The Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods and/or its implementation and/or successor legislation and/or regulations, the Application of which is expressly excluded.
23. Changes.
(a) Agreement. Caterpillar may change this Agreement from time to time by notifying Licensee of such changes by any reasonable means, including by posting a revised Agreement through the Digital Marketplace.
(b) Acceptance. Licensee’s use of the Digital Marketplace following any changes to this Agreement will constitute Licensee’s acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. Caterpillar may, at any time and without liability, modify or discontinue all or part of the Digital Marketplace (including access to the Digital Marketplace via any third-party links); charge, modify or waive any fees required to use the Digital Marketplace; or offer opportunities to some or all Digital Marketplace users.
(c) Termination. If Caterpillar notifies of you of a material change to this Agreement, does not offer you an option to opt out of such change and you do not wish to be bound by such change, you may terminate this Agreement without liability prior to the changes going into effect. You will be entitled to a refund of any prepaid fees with respect to the affected portions of the Digital Marketplace, if any, under the affected on a pro-rata basis in the event that you terminate in accordance with this Section. Your continued use of the Digital Marketplace after any changes to this Agreement or your Subscription go into effect will constitute your acceptance of those changes.
(d) Disputes. Changes to this Agreement or your Subscription 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.
24. Arbitration.
(a) Binding Arbitration. 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 Licensee’s principal place of business is in the United States, the Federal Arbitration Act applies to the arbitration of such Disputes.
(b) Rules. If Licensee’s 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 Licensee’s 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 Licensee’s 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 in 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) Process. 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 Licensee’s principal place of business is in the United States or Canada, the place of arbitration will be Chicago, Illinois, United States. If Licensee’s principal place of business is in a country in APAC, the place of arbitration will be Singapore. If Licensee’s 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 Licensee’s principal place of business is in the Netherlands, Licensee may opt to resolve any Dispute before Dutch courts, provided that Licensee notify Caterpillar of this election within thirty (30) days of Caterpillar notifying Licensee of Caterpillar’s intention to commence arbitration.
(d) Class Waiver; No Jury Trial. Licensee 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. NEITHER LICENSEE NOR CATERPILLAR SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER USERS WITH RESPECT TO OTHER ACCOUNTS, BRING MASS, CLASS ACTION, OR CONSOLIDATED CLAIMS IN ARBITRATION OR A COURT OF COMPETENT JURISDICTION, OR ARBITRATE OR LITIGATE ANY CLAIM AS A REPRESENTATIVE OR USER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
(e) Additional Terms. 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.
(g) Arbitration proceedings are confidential unless all parties agree otherwise. Arbitration orders and awards required to be filed with applicable courts of competent jurisdiction are not confidential and may be disclosed by the parties to such courts. A party who improperly discloses Confidential Information shall be subject to sanctions. The arbitrator and forum may disclose case filings, case dispositions, and other case information as required by a court order of proper jurisdiction.
(h) YOU HAVE A RIGHT TO OPT-OUT OF THE ARBITRATION PROVISIONS OF SECTION 24. IF YOU DO NOT AGREE TO THIS MANDATORY ARBITRATION PROVISION, THEN WITHIN THIRTY (30) DAYS FROM YOUR FIRST AGREEMENT TO THESE TERMS, YOU MAY OPT-OUT OF THIS PART OF THESE TERMS BY SENDING AN E-MAIL TO: [email protected]. Any opt-out received after the thirty (30) day time period will not be valid and you must pursue your claim via arbitration pursuant to this Agreement. By rejecting any future changes, you agree to arbitrate any Dispute with the terms of the latest version of the arbitration provision you previously agreed to.
(i) YOU AGREE THAT NOTWITHSTANDING ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE USE OF THE DIGITAL MARKETPLACE, API MATERIALS OR THIS AGREEMENT MUST BE FILED WITHIN TWO (2) YEARS AFTER THE CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
25. Miscellaneous.
(a) Force Majeure Neither Caterpillar, its Affiliates, or any of Caterpillar or its Affiliates’ respective licensors, service providers, subcontractors, suppliers or distributors, nor you, any of your Affiliates, or 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.
(b) Assignment. You may not 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 Caterpillar, which consent may be withheld in Caterpillar’s sole discretion. Subject to the preceding sentence, the rights and liabilities of the parties hereto shall inure to the benefit of, each of the parties’ permitted assignees and successors and is binding on the parties and their permitted successors and assignees. Any attempted assignment other than in accordance with this Section shall be null and void.
(c) Third Party Beneficiaries. For the purposes of the preamble, the entity entering into this Agreement with you and identified in this Agreement as "Caterpillar" is Caterpillar Inc. and, if separate from Caterpillar Inc., the Affiliate of Caterpillar Inc. making the Digital Marketplace or API Materials available unless otherwise communicated in writing to you. To the extent that any clause in this Agreement provides a benefit for Caterpillar’s Affiliates not parties to this Agreement, you agree that Caterpillar holds that benefit for that entity, and Caterpillar may enforce that benefit on behalf of that entity. Except as otherwise provided herein, this Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
(d) 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.
(e) 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.
(f) Notices. You agree that Caterpillar may contact you by any reasonable means, including via the contact information you have provided in your Digital Marketplace account, by e-mail or the user interface for the Digital Marketplace, to provide you with information and notices relating to the Digital Marketplace and API Materials, this Agreement or for other purposes related to the subject matter of this Agreement. Notices to Caterpillar will be delivered by registered or certified mail, return receipt requested, to the following address: 100 NE Adams Street, Peoria, Illinois 61629, Attn: Legal Services, Commercial Section. 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 Marketplace, 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. For information on Caterpillar’s Impressum/Corporate information, please visit: https://www.caterpillar.com/en/contact.html.
(g) 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 Addendum shall be in the English language.
(h) Government Entity Rights and Obligations. The Digital Marketplace and the API Materials are "Commercial Items", 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, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to the Government Entity end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. The Government Entity’s rights and obligations shall be governed by this Agreement, as modified by Schedule A. Unless modified by Schedule A, or otherwise agreed to in writing by Caterpillar and the Government Entity, the terms of this Agreement shall govern each party’s rights and obligations. This provision and the rights and obligations in Schedule A 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 or technical data.
(i) Open Source Software. The Digital Marketplace and API Materials 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 Marketplace or API Materials (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, which the Open Source License does not permit, such conflicting terms of this Agreement will not apply. Any fees charged by Caterpillar in connection with the Digital Marketplace or the API Materials 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). Excepting only the Open Source Components identified by Caterpillar as integrated and implemented by Caterpillar within the API Materials and Digital Marketplace, at no time will Licensee do anything (including develop, market or distribute any Application) that in any way would cause any portion of the API, API Materials, Digital Marketplace, or other Caterpillar proprietary software to be subject to any Open Source License.
(j) 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.
(k) 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.
(l) 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 Marketplace or API Materials—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 Marketplace 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 and (ii) a compatible Internet browser. 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.
(m) Exhibit C shall apply to the extent that the Parties make data available to one another through their respective Third Party Data Transfer Platform accounts (as that term is defined in Exhibit C).
26. 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.
Exhibit A
End User Terms
If Licensee develops an Application, Licensee must comply with the terms and conditions set forth in this Exhibit A.
Licensee will enter into a legally binding agreement with Users for Licensee’s Application that explicitly states that, by accessing or using the Application, Users are: (i) agreeing to be bound by the additional terms associated with Caterpillar’s products and service offerings accessed or used through the Application; and (ii) solely responsible for any content and data that the User inputs in connection with the User’s access to or use of the Application. Licensee’s agreement will display to Users the link to such [additional terms], and Licensee will require that each User expressly agrees to such [additional terms].
Licensee will explicitly state in its Application agreement with Users that:
X. CATERPILLAR AND ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS AND SUPPLIERS (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 WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING THE DIGITAL MARKETPLACE, API MATERIALS AND DIGITAL MARKETPLACE DATA. WITHOUT LIMITING THE FOREGOING, NONE OF THE CATERPILLAR PARTIES PROVIDE ANY WARRANTY THAT THE DIGITAL MARKETPLACE, API MATERIALS OR DATA PLATFORM DATA 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 API MATERIALS WITH RESPECT TO THE PARTICULAR API. THE CATERPILLAR PARTIES DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM ACCESS OR USE OF THE DIGITAL MARKETPLACE, API MATERIALS OR DIGITAL MARKETPLACE DATA. LICENSEE AGREES THAT ACCESS OR USE OF THE DIGITAL MARKETPLACE, API MATERIALS OR DIGITAL MARKETPLACE DATA IS AT LICENSEE’S OWN DISCRETION AND RISK AND THAT LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO LICENSEE’S 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 THIS SECTION MAY NOT APPLY TO LICENSEE. NOTWITHSTANDING LICENSEE’S ACCESS TO AND USE OF THE DIGITAL MARKETPLACE, API MATERIALS OR DIGITAL MARKETPLACE DATA AND REGARDLESS OF ANY INFORMATION PROVIDED THROUGH THE API MATERIALS (WHETHER ACCURATE OR INACCURATE) OR THE ASSETS, EQUIPMENT OR OTHER SYSTEMS WITH WHICH THEY CONNECT, LICENSEE IS SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISK RELATED TO, THE PROPER OPERATION, SUPPORT AND MAINTENANCE OF ALL SUCH ASSETS, EQUIPMENT AND OTHER SYSTEMS. THE FOREGOING EXCLUSIONS AND LIMITATIONS ARE NOT INTENDED TO APPLY TO DEATH OR BODILY INJURY TO THE EXTENT DIRECTLY CAUSED BY A CATERPILLAR PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT. THE DIGITAL MARKETPLACE, API MATERIALS AND DIGITAL MARKETPLACE DATA ARE NOT INTENDED TO PROVIDE ANY EMERGENCY, MISSION CRITICAL OR SAFETY RELATED FUNCTIONALITY AND LICENSEE SHALL NOT USE THE DIGITAL MARKETPLACE, API MATERIALS OR DIGITAL MARKETPLACE DATA IN THAT MANNER. CATERPILLAR DOES NOT GUARANTEE ANY RESULTS OR THE ACCURACY OF ANY RESULTS THAT LICENSEE MAY OBTAIN FROM THE DIGITAL MARKETPLACE, API MATERIALS OR THE DIGITAL MARKETPLACE DATA.
Limitation of Liability.
NONE OF THE CATERPILLAR PARTIES WILL BE LIABLE TO LICENSEE UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, (B) LOSS OF PROFITS, REVENUES, DATA, CUSTOMERS, OPPORTUNITIES, BUSINESS, ANTICIPATED SAVINGS OR GOODWILL, OR (C) UNAVAILABILITY OF THE DIGITAL MARKETPLACE, API MATERIALS, THE
DIGITAL MARKETPLACE DATA OR THE ASSETS, EQUIPMENT OR SYSTEMS WITH WHICH THEY CONNECT.
Damages Cap. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAWS, THE AGGREGATE LIABILITY OF THE CATERPILLAR PARTIES UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS PAID 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.
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 DIRECTLY CAUSED BY A PARTY’S NEGLIGENCE; OR (B) FRAUD OR WILLFUL MISCONDUCT.
Further, Licensee’s agreement with Users must:
Explicitly state that (A) by submitting, posting or displaying their content and/or data through the Application, Users grant Caterpillar and its affiliates and its and their contractors (including third parties that provide services to or on behalf of Caterpillar and its affiliates) a perpetual, irrevocable, worldwide, royalty- free and non-exclusive to reproduce, adapt and modify, perform and display (publicly or otherwise), transmit and distribute such content and/or data for the purpose of enabling Caterpillar and its affiliates to provide Licensee with the services in accordance with the Agreement, and (B) Users grant to Caterpillar and its affiliates and contractors a worldwide, royalty-free, and nonexclusive license during the term of this Agreement to use their brand features and their content to publicize or advertise that Licensee is using the API Materials and Digital Marketplace (for example, by using their marks in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to their website), or by creating marketing or advertising materials that show screenshots of the API Materials or Digital Marketplace in which their content is featured).
Bind Users to the Data Governance Statement (as defined in Section 6(c) of the Agreement) or a privacy policy that meets the requirements of Section 6(c) of the Agreement.
Exhibit B
Acceptable Use Policy
You and Authorized Users may not:
(a) Post, transmit or otherwise make available through or in connection with the Digital Marketplace or API Materials 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 Marketplace or API Materials 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 Marketplace or API Materials for any purpose that is fraudulent or otherwise tortious or unlawful.
(d) Attempt to gain unauthorized access to the Digital Marketplace, API Materials, or Digital Marketplace Data.
(e) Perform vulnerability, load or similar test of the Digital Marketplace.
(f) Harvest or collect information about other users of the Digital Marketplace (other than your Authorized Users).
(g) Interfere with or disrupt the operation of the Digital Marketplace or API Materials or the servers or networks used to make the Digital Marketplace or API Materials available, including by hacking or defacing any portion of the Digital Marketplace or API Materials, or violate any requirement, procedure or policy of such servers or networks.
(h) Restrict or inhibit any other person from using the Digital Marketplace or API Materials.
(i) Remove, disable, or circumvent any copyright, trademark or other proprietary rights notice, marks, or labels, including any Caterpillar trademarks or API Marks, contained on or within the API Materials.
(j) 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 Marketplace or API Materials, without Caterpillar’s express prior written consent (e.g., with respect to the consumption of the APIs).
(k) Except as expressly authorized herein, systematically download and store Digital Marketplace Data, or harvest, extract, or “scrape” content or other information from the Digital Marketplace or API Materials. This clause does not apply if and to the extent the EU Data Act or other applicable laws is applicable to the activity.
(l) Use or access the Digital Marketplace, API Materials, or Digital Marketplace Data in order to develop a product or, where applicable, to the extent not contradictory to the EU Data Act, or other applicable Laws, a 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 Marketplace and API Materials.
Exhibit C
Caterpillar Terms for Data Exchanges through Third Party Data Transfer Platforms
To the extent that the Parties make data available to one another through their respective third-party data transfer platform (“Third Party Data Transfer Platform”) accounts, the following terms shall apply:
1. Third Party Data Transfer Platform Accounts. The Parties may provide each other with read-only access to certain data located in their respective accounts with third-party data transfer platforms, including, but not limited to Snowflake Computing Inc. (“Snowflake”). Caterpillar’s account, as the same may be modified or replaced from time to time, being the “Caterpillar Account” and the account identified by Licensee that is owned and maintained by Licensee as the same may be modified or replaced from time to time, the “Licensee Account”.
(a) Transferred Data Sets. The Data Sets contemplated hereunder include all information and data to the extent exchanged between the parties through the Caterpillar Account and the Licensee Account, including any derivatives created from the processing of any such data and such other content or information.
The data shall be provided in certain individual data sets identified by Caterpillar from time to time (each, a “Data
Set” and, collectively, the “Data Sets”). For the avoidance of doubt, the data shall include all such Data Sets made available by Caterpillar through read-only access through the Caterpillar Account to the Licensee Account.
(b) Acknowledgment of Applicable Terms. Licensee acknowledges that similar data and information may be provided to Licensee through different means or methods and, in addition to the Digital Marketplace & API License Agreement, may be subject to the terms and conditions of other agreements between Licensee and Caterpillar, including but not limited to Caterpillar’s VisionLink End User License Agreement. Notwithstanding Section 26 of the Agreement, Licensee acknowledges and agrees that all data and information shared between the Caterpillar Account and the Licensee Account is subject to the same restrictions, representations, and obligations as the data shared pursuant to the Digital Marketplace and API License Agreement (the “Agreement”) to which this Exhibit is made and Caterpillar End User License Agreements (“EULAs”), including VisionLink End User License Agreement, and all such restrictions, representations, and obligations continue to apply to the Data Sets.
This includes but is not limited to the restrictions on Licensee’s use, disclosure, and processing of data made available by Caterpillar and Caterpillar’s rights to process data provided by Licensee. The sharing of data from the Caterpillar Account to the Licensee Account does not constitute an approval or grant of rights by Caterpillar beyond what is permitted in the Agreement and applicable EULAs. Licensee’s processing of data made available from the Caterpillar Account to the Licensee Account shall be processed as “Digital Marketplace Data” (as that term is defined in the Agreement) and subject to all applicable rights, restrictions, and obligations in the Agreement; the data made available from the Licensee Account to the Caterpillar Account shall be processed by Caterpillar as “Digital Offering Information” (as that term is defined in the EULAs).
(c) Third-Party Data Transfer Services. The Parties agree that Third Party Software/Services (as that term is defined in the EULAs) shall include Snowflake Services (the services provided by Snowflake to Licensee under the Licensee Snowflake Agreement) and other data transfer platform services as agreed in writing between the Parties. Licensee shall be responsible for ensuring that Licensee has obtained all approvals and services from the Third Party Data Transfer Platform that may be necessary or desirable for Caterpillar to provide data read-only access through the Caterpillar Account to the Licensee Account and for Caterpillar to receive read-only access to the data within the Licensee Account. Licensee shall use and shall ensure that all Authorized Users (as that term is defined in the EULAs) use appropriate safeguards to protect the Licensee Account and the data exchanged hereunder from misuse and unauthorized access or disclosure, including maintaining adequate physical controls, multi-factor authentications, and password protections for any server or system on which any data is stored or used by Licensee. Licensee shall immediately notify Caterpillar of any unauthorized access to the Licensee Account or any misuse or unauthorized access to or disclosure of any Digital Offering Information.
Licensee acknowledges that the Licensee Account is critical to the performance of its obligations under this Exhibit. Licensee shall comply with the terms of Licensee’s agreement with Third Party Data Transfer Platform (such agreement and any related Third Party Data Transfer Platform policies and procedures being, the “Licensee Agreement”). Licensee shall promptly notify Caterpillar of any breach of the Licensee Agreement that, if left uncured, could result in a termination of the Licensee Agreement.
(d) Operational Requirements for Third Party Data Transfers. Licensee shall request access to a Data Set in the Caterpillar Account from the person designated by Caterpillar as the administrator for the Caterpillar Account (the “Administrator”). Prior to any such access or Data Set sharing, the Parties shall document in writing their mutual agreement, including designation of administrators for each party’s account and operational procedures applicable to the exchange. Except as otherwise agreed to in writing by Caterpillar, Licensee shall provide such information relating to such access and any use as may be reasonably requested by the Administrator in connection with such request. Except as otherwise agreed to in writing by Caterpillar, Licensee shall ensure that only Authorized Users access and use the data made available through the Caterpillar Account to the Licensee Account. In the event that an Authorized User ceases to be an Authorized User (whether through the end of an employment or contractual relationship or for any other reason) at any time while this Agreement is in force, Licensee shall promptly revoke such Authorized User’s access credentials to the Licensee Account and notify the Administrator of the Authorized User’s termination of employment or contractual relationship and confirmation of the revocation of the Authorized User’s access credentials.
(e) Data Set Access. Caterpillar may elect in its discretion to impose reasonable preconditions for Licensee or a proposed Authorized User being able to access all or a portion of a Data Set. By way of example, but not limitation, Caterpillar may ensure (i) Licensee has rights to access a Data Set or a portion thereof under applicable laws, or (ii) the proposed Authorized User requesting access has an appropriate job role for the requested Data Set. As a result, prior to the first time that Caterpillar grants Licensee or a proposed Authorized User with access to a Data Set, Caterpillar may request and, if so requested, Licensee or such proposed Authorized User shall provide Caterpillar with a business case for such Data Set that describes the intended use for the Data Set and how such Authorized User or Licensee satisfies any preconditions or requirements that may be imposed by Caterpillar.
(f) Read-Only Format. Licensee and its Authorized Users shall use the Digital Offering Information only in the read-only format provided by Caterpillar. Licensee and its Authorized Users shall not change or otherwise alter the format of the Digital Offering Information made available under this Agreement. Licensee represents and warrants that Licensee is the sole owner of the Licensee Account. Licensee shall not transfer or assign (including by operation of law) the Licensee Account to any third party without the express written notice to Caterpillar at least thirty (30) days prior to said transfer or assignment. Caterpillar shall have the right to terminate the Agreement and access to the Data Sets at any time after the receipt of said notice or, if Licensee fails to provide said notice, at any time after Caterpillar learns of such potential transfer or assignment of Licensee Account.
(g) Provision of Data Sets. Caterpillar may at its convenience and discretion cease making a Data Set available to Licensee at any time (a) upon thirty (30) days’ notice.
