These Kalmar Digital Service Terms and Conditions shall govern the access to and use of Kalmar Digital Service by the Customer and any of its Users.
These Kalmar Digital Service Terms and Conditions shall apply as a supplement to and shall form an integral part of any written agreement. In case of any discrepancies between any written agreement and these Kalmar Digital Service Terms and Conditions, these Kalmar Digital Service Terms and Conditions shall control with respect to the Kalmar Digital Service and the Customer’s or its Users’ access to and use of Kalmar Digital Service.
THE INDIVIDUAL ACCEPTING THIS AGREEMENT, REGISTERING THE CUSTOMER'S ACCOUNT AND/OR ACTIVATING A SUBSCRIPTION HEREBY EXPRESSLY: (i) ACKNOWLEDGES HAVING READ AND UNDERSTOOD THIS AGREEMENT; (ii) REPRESENTS AND WARRANTS HAVING THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND THE CUSTOMER TO ITS TERMS; AND (iii) ACCEPTS THIS AGREEMENT AND AGREES THAT SUCH INDIVIDUAL AND THE CUSTOMER IS LEGALLY BOUND BY ITS TERMS. IF THE INDIVIDUAL ACCEPTING THESE KALMAR DIGITAL SERVICE TERMS AND CONDITIONS DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE KALMAR DIGITAL SERVICE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THESE KALMAR DIGITAL SERVICE TERMS AND CONDITIONS AND MAY NOT USE THE SERVICE.
The Customer and Kalmar each a “Party” and jointly the “Parties”.
1. DEFINITIONS
“Affiliate” means any legal entity, which is directly or indirectly owned or controlled by a Party or directly or indirectly owning or controlling a Party or under the same direct or indirect ownership or control as a Party for so long as such ownership or control lasts.
“Agreement” means these Kalmar Digital Service Terms and Conditions or a written agreement executed between Kalmar (or its designated dealer) and the Customer regarding the purchase of subscription of the Service from Kalmar by the Customer, and which incorporates these Kalmar Digital Service Terms and Conditions.
“Customer” means the legal person, whether an individual, corporate entity, or other legal entity, that is the party to a written agreement contracting to receive access to the Service or, in the absence of a written agreement, the party registering an account for the Service.
“Customer Content” means all information, content, and/or material, regardless of form, uploaded to, or entered into, the Service by the Customer and/or its User (such as company name, company representative, user names, address, telephone, and email).
“Data Protection Regulations” means the European General Data Protection Regulation (Regulation (EU) 2016/679, “GDPR”) and the data protection laws under the governing law of the Agreement applicable to the processing of personal data from time to time.
“Intellectual Property Rights” means any and all now known or hereafter existing (i) rights associated with works of authorship, including copyrights, database rights, mask work rights, and moral rights; (ii) trademark or service mark rights (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of any of the foregoing, in each case, in any jurisdiction throughout the world.
“Kalmar” shall mean the legal entity of Cargotec Corporation that has entered into a written agreement with the Customer regarding the purchase of subscription of the Service from Kalmar or, in case no written agreement is executed, Cargotec Finland Oy as the service provider.
“Kalmar Technology” means the computer software (including third party software), computer code, modules, scripts, application programming interfaces, methodologies, templates, tools, algorithms, user interfaces, know-how, trade secrets, techniques, designs, inventions, third party services and other tangible or intangible material, information and works of authorship underlying, made part of, or otherwise used to make available the Service, and all updates, modifications, improvements, and derivative works of any of the same, together with all Intellectual Property Rights therein and thereto.
“Statistical Data” means information and data gathered through or derived from the operation of the Service and/or connectivity device as further defined in Section
“Service” means MyKalmar, MyParts, Kalmar Insight, and related features and functionalities made available to the Customer through the Service.
“Software” means any applications, plugins and other forms of software (including third party software) and any improvements, updates and upgrades thereto or versions thereof that are provided by (or on behalf of) Kalmar to the Customer and which the Customer may use in order to access and use the Service.
“User(s)” means each individual person authorized by the Customer to access and use the Service on the Customer’s behalf with a registered user account for the Service associated with the Customer’s account for the Service. The Customer shall be solely and fully responsible and liable for the acts and omissions of its Users with respect to the Service and all acts of its Users shall be considered acts of the Customer for purposes of this Agreement.
2. RIGHT TO USE AND ACCESS THE SERVICE
2.1 Grant of Right. Subject to the terms and conditions of this Agreement, Kalmar hereby grants to the Customer a non-transferable, non- exclusive, non-sublicensable limited right and license to allow its designated Users to access and use the Service for the term of the Agreement in accordance with the terms and conditions of this Agreement. In case of rental of the equipment related to the Service, the Customer may, upon Kalmar consent, grant an access to the Service and right to use upon the terms and conditions as set forth in this Agreement, the Customer remaining responsible for any such use.
3. CONTENT OF SERVICE; CHANGES TO SERVICE
3.1 Content of the Service. As a part of the Service, the Customer may receive recommendations for action from Kalmar or its Affiliates, dealers or service providers (for example reminders or recommendations for upcoming repairs and maintenance work, product or spare parts campaigns, etc.). The Customer acknowledges and agrees that such recommendations are informational only and do not represent legal or technical advice or instruction from Kalmar. The Customer decides, and is ultimately responsible for, its actions and inactions in connection with its equipment, including, without limitation, whether any recommendations received through the Service are followed, whether and when equipment is to be repaired, whether maintenance work is to be done, and otherwise whether any reminder or recommendation received through the Service is acted upon. For the avoidance of doubt, no repair or maintenance work is included in this Agreement, which are always subject to separate agreement.
3.2 Service Improvement. Kalmar is continuously striving to develop, improve and monitor the Service. Accordingly, Kalmar reserves the right to effect modifications to the content, design, operational method, technical specifications, systems, and other functions or features of the Service, in which Kalmar’s reasonable opinion does not decrease the overall performance, usability and functionality of the Service, at any time without prior notice (together “Minor Changes”). In case Kalmar anticipates to implement any changes which in Kalmar’s reasonable discretion are not Minor Changes to the Service, and if the change, in Kalmar’s reasonable discretion, has a material adverse impact on the Customer’s ability to use the Service in accordance with the Agreement, then Kalmar shall notify the Customer about the change. If the change has a material adverse impact on the Customer’s ability to use the Service in accordance with this Agreement and the Customer does not agree to the change, the Customer may, by providing Kalmar (or the dealer, if the Agreement is between the Customer and the dealer) a written notice within thirty (30) days after receiving notice of the change, terminate this Agreement effective at the end of the calendar month immediately following the calendar month in which the Customer provided such notice to Kalmar (or the dealer, if the Agreement is between the Customer and the dealer).
3.3 Technical requirements for Insight Service. Use of the Insight Service requires that the Customer’s equipment is fitted with a connectivity device and that it is activated correctly. Such connectivity device is offered independently of this Agreement and may be offered pre-installed in the Customer’s equipment (in case of new equipment purchase and subject to availability) or as a retrofit (through Kalmar, its Affiliates or its authorized service partners or dealers). Any and all warranties and obligations, if any, related to the connectivity device are subject to Kalmar’s standard warranty terms and conditions. The Customer acknowledges and agrees that the Customer’s and its Users’ access and use of the Service is dependent upon access to telecommunications and Internet services. The Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access the Service, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. Kalmar will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any such hardware or software. Kalmar shall not be responsible for the usability or compatibility of the hardware or software used by Users in connection with the Service.
4. KALMAR OBLIGATIONS
4.1 Customer’s Responsibility for User Accounts. The Customer shall access and use the Service through its Users. The Customer shall be solely responsible for its Users’ activities in connection with access and use of the Service. The Customer shall inform all Users about their obligations under the Agreement and, in particular, about the conditions for accessing and using the Service. The Customer shall be responsible for maintaining the security of the user accounts. The Customer agrees to keep all access credentials for each user account secure and confidential and not to allow any of the Customer’s Users to provide their access credentials to anyone else. The Customer shall promptly notify Kalmar (or its designated dealer) of any unauthorized access to any User account access credentials or upon becoming aware of any actual or attempted unauthorized access to the Service in connection with any access credential of any of the Customer's user accounts.
4.2 Creation and Rules for User Accounts. In order to access the Service, the Customer (and/or its User(s)) needs to create an account and select a password and/or provide Kalmar with certain limited personal information of the User(s), which may include User(s) and/or Customer name and e-mail address. The Customer agrees to supply Kalmar with accurate, complete, and updated information. The following rules govern the creation and use of the account: (i) a single User must not have more than one account at any given time, and must not create an account using a false identity or information, or on behalf of someone other than himself/herself; (ii) the User must not sublicense, rent, lease, sell, trade, gift or otherwise transfer his/her account to anyone without Kalmar’s written permission; any such transfer or attempted transfer is prohibited and void; (iii) the User and the Customer will not, under any circumstances try to get login information or access an account belonging to other users and/or customers of the Service; and (iv) accounts are personal and no shared accounts are permitted unless specifically approved by Kalmar.
4.3 Restrictions on Use. The Customer may only use the Service for its own lawful, internal business purposes. The Customer agrees that it shall not (nor permit any third parties, including any of its employees or Users) under any circumstances:
(a) use the Service, intentionally or unintentionally, in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
(b) execute, assist, encourage, or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
(c) try to gain unauthorized access to the Service, accounts registered to others or to any computer or server used to offer or support the Service or environment or networks connected to the Service by any means other than the user interface provided by Kalmar;
(d) use, facilitate, create, or maintain any unauthorized connection to the Service, including without limitation (i) any connection to any unauthorized server that emulates, or attempts to emulate any part of the Service; or (ii) any connection using programs, tools, or software not expressly approved by Kalmar;
(e) use any unauthorized third party or other software that accesses, intercepts, "mines", or otherwise collects information from or through the Service or that is in transit from or to the Service, including, without limitation, any software that reads areas of RAM or streams of network traffic used by the Service to store information about the Service. Kalmar may, at its sole and absolute discretion, allow the use of certain third party user interfaces;
(f) intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server, or the Service, whether through the use of a network analyzer, packet sniffer or any other tools;
(g) make any automated use of the Service, or take any action that imposes or may impose (in Kalmar’s sole discretion) an unreasonable or disproportionately large load on the Service infrastructure;
(h) interfere with or disrupt the integrity or performance of the Service or any third party data.
(i) create any derivative services or products based on the Service;
(j) reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from the software that runs the Service or any part thereof (except to the extent that such restriction is not permitted under applicable law);
(k) resell, lease, provide access to, or make the Service available to any unauthorized third parties, including without limitation, competitors of Kalmar;
(l) perform, or release the results of, benchmark tests or other comparisons of the Service with other software, services, or materials; or
(m) remove, obscure or modify any copyright, trademark or other proprietary rights notices, marks or labels contained on or within the Service, falsify or delete any author attributions, legal notices or other labels of the origin or source of the material.
Should unexpected or inappropriate use of the Service (e.g. extraordinary bandwidth usage; uploaded content that contain viruses, worms, spyware, or other malicious content; load tests, security scans, or penetration tests conducted without notice, etc.) result in denial of service with respect to the Service, Kalmar may disable the Service and/or deny access to the Customer as necessary to remedy the problem. The Customer will be responsible for its Users' compliance with the terms and conditions of the Agreement, and liable for its Users' breach thereof. If the Customer is in breach of this section, Kalmar may suspend all access to the Service, in addition to any other rights and remedies Kalmar may have at law or in equity.
4.4 Ownership of the Equipment Related to the Service. The Customer shall as soon as possible report to Kalmar (or to its designated dealer) (i) the loss or return or resale of any equipment (including information of the subsequent owner), which is subject to the Service or if such equipment is completely written off or permanently taken out of service, and (ii) any noticed faults, problems or errors in the Service. The Customer also agrees to inform the subsequent owner that the equipment is equipped with a connectivity device, which is connected to the internet for data transmission purposes.
5. KALMAR OBLIGATIONS
5.1 Safeguards. In accordance with the terms and conditions of the Agreement, Kalmar shall maintain appropriate safeguards for protection of the Customer specific data, including regular back-ups, security and incident response protocols, and application and infrastructure monitoring
5.2 Service Suspension or Restriction. Kalmar shall make the Service available on a non-exclusive basis to the Customer and its Users via the Internet. Kalmar has the right to temporarily suspend the provisioning of the Service where this is necessary for ensuring continuity of the Service, including without limitation technical modifications, general installation, modifications or maintenance work of the technical environment, or where laws, orders, guidelines or statements of the authorities require for such actions. Kalmar further has the right to restrict traffic volume in the communication network, disconnect the connection, and take any other necessary action required to secure network traffic, data security, or availability. The provision of the Service may also be subject to restrictions and inaccuracies that are beyond the control of Kalmar, for which Kalmar cannot be held liable. This applies to, but is not limited to, the availability of mobile communication, network and internet access services provided by third parties. Other negative circumstances, such as network overload, may also impede the use of the Service. Kalmar endeavors to ensure that any such suspension or disruption does not continue for an unnecessarily long time and that the detriments resulting from it remain to a minimum. Where feasible, Kalmar shall notify the Customer in writing about any such suspensions as soon as reasonably possible. Said suspension or restriction is not considered to constitute a defect in the Service and the Customer is not entitled to any refunds or other compensation.
6. PAYMENT: Applicable only for Kalmar Insight Service
6.1 Fees and Payment Terms. The Customer shall pay Kalmar (or the designated dealer) the fees for the Kalmar Insight Service agreed by the Parties (or the dealer and the Customer) in the Agreement. The term of payment of all fees shall be thirty (30) days from the date of Kalmar’s (or its designated dealer’s) invoice. Value added tax (if any) shall be added to the fees pursuant to the legislation in force from time to time.
6.2 Taxes and Duties. All fees and prices are exclusive of any taxes or duties or other charges or levies of any nature whatsoever on the Kalmar Insight Service under the laws of the country of destination, which shall be paid directly by the Customer. In case Kalmar (or its designated dealer) is obliged to pay or collect any such taxes, duties or charges, such amounts shall be paid by the Customer in addition to the fees.
6.3 Overdue Payments. As of the first date any fees owed by the Customer are overdue, Kalmar may suspend the Customer’s access to the Service until all overdue fees have been paid. Any sum not paid by the Customer when due will bear interest from the due date until paid at the rate of: (i) as indicated in the Agreement; (ii) 10 % of the outstanding balance per annum; or (iii) the maximum rate permitted by law, whichever is less. Such late payment penalties shall be automatically due without prior notice. To the extent permissible by applicable law, any delay in payment leads to an obligation for the debtor to pay a forty (40) euros fixed charge (or the same amount in the agreed currency calculated in accordance with the official exchange rate at the date of the invoice) to cover debt collection costs in addition to the late-payment penalties. A supplementary indemnity may be claimed by Kalmar, upon presentation of supporting documents, when the collection costs are higher than forty (40) euros (or the same amount in the agreed currency calculated in accordance with the official exchange rate at the date of the invoice).
6.4 Change in Fees. The fees may be reviewed by Kalmar (or its designated dealer) once in every twelve (12) months. In the event that the fees are raised, the Customer may terminate the Agreement within one (1) month of receiving notification of the change (which may be in the form of an invoice), with the effect from the date when the raise comes into force. In addition, Kalmar (or its designated dealer) shall have the right to revise the fees in case additional equipment is included in the Agreement and if new features, user accounts, configurations, add-ons or similar items are added to the Service. Revised fees shall come into force from the date additional equipment or new features, user accounts, configurations, add-ons or similar items are added to the Service.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Kalmar Intellectual Property Rights. The Service, including all Kalmar Technology and Kalmar Content, is and shall remain solely the property of Kalmar, its Affiliates or the relevant third party rights holder as applicable. Except for the rights and licenses expressly granted herein, all rights in or to all of the foregoing are reserved by Kalmar. Nothing in this Agreement will be deemed to grant to the Customer any right to receive a copy of software underlying the Service, or any other Kalmar Technology, in either object code or source code form. Kalmar 's name and logo, and all Kalmar product and services names, including the name of the Service and any product or service associated with it, are trademarks of Kalmar, its Affiliates or its licensors, and no right or license to use them is granted in this Agreement.
7.2 Customer Content and License to Kalmar. All Customer Content shall remain the sole property of the Customer or its respective legal owner as applicable. The Customer hereby grants to Kalmar and its Affiliates a royalty-free, worldwide, non-exclusive license to use, copy, combine with other information (such as the Statistical Data), execute, host, store, process, reformat and display the Customer Content for the purposes of enabling Kalmar to provide (and develop) the Service to the Customer and its Users hereunder, as well as for the purposes of developing and providing Kalmar’s other products, services and solutions and for sales, marketing and other business and/or operational purposes as well as for regulatory, warranty and contract compliance, and proactive maintenance and diagnostics during and after the term of the Agreement. Kalmar may share the Customer Content to Kalmar’s Affiliates, dealers, subcontractors, and service providers for the above described purposes.
7.3 Suggestions. Kalmar shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by the Customer or its Users relating to the operation or content of the Service.
8. CONFIDENTIALITY AND USE OF DATA
8.1 Subject to Kalmar’s right to use the Customer Content and Statistical Data as set forth in this Agreement, the Parties undertake to keep confidential all such material and information received from the other Party which has been classified as confidential or which should be understood as such, and the Parties undertake not to use such material or information for any purpose other than for the purposes of the Agreement between the Parties. Further, Kalmar will maintain administrative, physical, and technical safeguards for protection of the security and integrity of the Customer’s confidential information. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of confidential information by Kalmar personnel except in order to (a) to provide, develop and improve the Service and prevent or address service or technical problems, or (b) as compelled by law.
8.2 Subject to Kalmar’s right to use Service Data and Statistical Data as set forth in this Agreement, upon the termination of the Agreement or when a Party no longer requires the information or material in question for the purposes of the Agreement then that Party shall immediately cease using the confidential information or material received from the other Party and shall, at the other Party’s request, return or destroy the material in question including any copies. Kalmar is however entitled to store the material delivered and created in connection with the provisioning of the Service in accordance with its filing practice and taking into consideration the confidentiality obligations. Furthermore, each Party shall be entitled to retain copies, as required by law or orders of the authorities.
8.3 The rights and obligations set forth in this Section shall survive any termination or expiration of the Agreement between the Parties.
9. DATA PRIVACY AND PERSONAL INFORMATION; STATISTICAL DATA
9.1 For the purpose of this clause the terms "processing", “data subject”, "controller", "processor" and “personal data” have the meanings given to them by the applicable Data Protection Regulations.
9.2 Kalmar will, and will procure that its personnel (including its subcontractors’ personnel) who handle any personal data, obtain and maintain throughout the term of this Agreement all registrations and notifications that they are obliged to obtain and maintain pursuant to any Data Protection Regulation required from Kalmar to provide the Service.
9.3 Both Parties shall comply with their respective obligations under the Data Protection Regulations, where applicable.
9.4 In the course of the provision of the Service, access to and use of the Customer Content and Statistical Data is required by Kalmar as the provider of the Service. This data may refer to the Customer as well as, from the Customer’s perspective, to the respective operator of the equipment. If and to the extent the Customer Content or Statistical Data used in the Service includes any personal data, the Customer is the data controller. Kalmar shall process such personal data on behalf of the Customer for the purpose of providing the Service, and thus be considered a data processor in regards to such personal data.
9.5 The Customer, as a data controller, shall:
(a) to the extent deemed necessary by the Customer, give to Kalmar documented instructions on the processing of personal data, which instructions shall comply with the Data Protection Regulations;
(b) have the right and obligation to specify the purpose of processing of personal data;
(c) represent that all the data subjects of the personal data have been provided with notices and information, as required by the Data Protection Regulations, to allow Kalmar to perform the processing contemplated hereunder;
(d) represent that if the Customer represents its Affiliates or third parties under this Agreement, it has the legal grounds to enter into this Agreement with Kalmar and allow Kalmar to process the personal data according to the terms of this Agreement; and
(e) confirm that; (i) the processing stipulated under this Agreement meets the Customer’s requirements including, but not limited to, with regard to intended security measures, and (ii) it has provided Kalmar with information in order for Kalmar to perform the processing in compliance with the Data Protection Regulations.
9.6 When operating in the capacity of a data processor, Kalmar shall (and to the best of its ability shall ensure that any relevant sub-processor shall):
(f) process the Customer’s and its Users’ personal data in accordance with the Customer’s documented and reasonable instructions;
(g) take appropriate technical and organizational measures to safeguard against unauthorized and unlawful processing of the personal data and against accidental loss, alteration or destruction of, or damage to the personal data;
(h) process the Customer’s and its Users’ personal data in accordance with Customer’s reasonable written instructions as communicated by the Customer in advance;
(i) assists the Customer in ensuring compliance with the obligations pursuant to Articles 32 to 36 of GDPR taking into account the nature of processing and the information available to Kalmar;
(j) at the choice of the Customer, delete or return all the Customer’s and its Users’ personal data to the Customer after the end of the provision of services relating to processing, and delete existing copies unless Union or Member State law requires storage of the personal data; and
(k) make available to the Customer all information necessary to reasonably demonstrate compliance with the obligations the Data Protection Regulations directly applicable to a data processor and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller.
Kalmar shall have the right to invoice any costs and expenses resulting from assisting the Customer under items 7.5 (a) and (d) – (f) above.
9.7 The Customer consents to Kalmar subcontracting the processing of the Customer’s personal data to sub-processors in accordance with this Agreement, provided that Kalmar shall ensure that it has appropriate data protection provisions in place with each sub-processor to satisfy the requirements of the Data Protection Regulations. Kalmar shall inform the controller of intended changes concerning the addition or replacement of other processors.
9.8 If the European Commission’s standard contractual clauses (“SCC”) for transfer of personal data outside the European Union or European Economic Area have been entered into between the Customer and Kalmar or relevant Kalmar’s sub-processor, the Customer (or, if applicable, an authorized the Customer Affiliate): (a) consents to Kalmar, or Kalmar’s sub-processor, as applicable, subcontracting the processing of the Customer’s personal data in accordance with the terms of the SCC; and (b) acknowledges that this constitutes the prior written consent of the Customer (or the applicable authorized the Customer Affiliate) for the purpose of the SCC.
9.9 For the avoidance of doubt, Sections 7.4 to 7.7 shall apply only where Kalmar operates in the role of a data processor and personal data is processed. Where possible and feasible, Kalmar strives to render any Customer data anonymized and, thus, not personal data.
9.10 Statistical Data. Without limiting the confidentiality rights and intellectual property rights protections set forth in the Agreement, during and following expiry of the Agreement, Kalmar and its Affiliates has the perpetual right to use any and all information and data gathered through or derived from the operation of the Service, including but not limited to, information concerning efficiency, availability, downtime, operation, operating environment, movement, condition, logon, location and similar information (“Statistical Data”), and nothing herein shall be construed as prohibiting Kalmar or its Affiliates from utilizing the Statistical Data for optimizing the Service or any related equipment or services, or for Kalmar’s or its Affiliates’ internal business and/or operating purposes, provided that Kalmar does not share with any third party (other than Kalmar’s Affiliates, subcontractors and service providers) Statistical Data which reveals the identity of the Customer, the Customer’s User’s, or the Customer’s confidential information. For the sake of clarity, in case Statistical Data contains any personal data, Kalmar processes Statistical Data in the role of data controller when deciding the purposes for which, and the means by which, such personal data is processed. More information on how Kalmar processes personal data as a data controller, including information on how long and for what purposes Kalmar processes personal data is available on https://www.cargotec.com/en/privacy-statement/.
10. WARRANTIES
10.1 Customer Warranty. The Customer warrants that:
(a) it has full power and authority to enter into this Agreement, grant the rights granted by it under this Agreement, and undertake the obligations it undertakes in this Agreement;
(b) It owns, or otherwise has the right to control, the equipment covered under the Agreement and the Service;
(c) it will use reasonable care and skill in complying with its obligations under the Agreement;
(d) it is not subject to any U.S., EU or UK or other economic or trade sanctions or export controls or located or established in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and
(e) it is not listed on any EU, UK or U.S. Government list of prohibited or restricted parties.
10.2 Kalmar Warranty. Kalmar warrants that:
(f) it has full power and authority to enter into this Agreement, grant the rights granted by it under this Agreement, and undertake the obligations it undertakes in this Agreement; and
(g) it will use reasonable care and skill in complying with its obligations under the Agreement.
WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE LIMITED EXPRESS WARRANTIES SET FORTH IN THIS SECTION 10, THE SERVICE IS PROVIDED “AS-IS” AND KALMAR SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATURTORY, OR OTHERWISE. KALMAR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTISE. KALMAR MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE WILL MEET THE CUSTOMER’S REQUIREMENTS, OPERATE WIHTOUT INTERRUPTIONS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY PARTY’S SOFTWARE, SYSTEM, OR THE SERVICE, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
11. LIMITATIONS OF LIABILITIES
11.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPICABLE LAW, IN NO EVENT SHALL KALMAR’S AGGREGATE TOTAL LIABILITY TOWARDS THE CUSTOMER OR ITS USERS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT EXCEED THE SERVICE’S CALCULATIVE MONTHLY FEE MULTIPLIED BY TWELVE (12).
11.2 EXCLUSION OF INIRECT AND CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KALMAR BE LIABLE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR LOSS OF PRODUCTION, COST OF CAPITAL, LOSS OF ACTUAL OR ANTICIPATED PROFITS (INCLUDING LOSS OF PROFITS ON CONTRACTS), LOSS OF ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF DATA, LOSS OF REPUTATION OR DAMAGE TO GOODWILL, OR INCREASED EXPENSE OF USE OF THE EQUIPMENT OR PLANT, LOSS OF CONTRACTS, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS. FURTHERMORE, THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER AND ITS USERS SHALL BEAR THE RISK OF COMMERCIAL REALIZATION OF THE SERVICE AND THE BENEFITS ACHIEVED FROM USING THE SERVICE AND THE CUSTOMER SHALL THEREFORE BEAR ALL RISKS FOR THE INFORMATION USED BY OR OBTAINED FROM THE SERVICE.
11.3 The limitations and exclusions of liability shall not apply to liability caused by, or arising from, willful misconduct or gross negligence, or death or personal injury. Some states or countries do not allow the exclusion of certain warranties or the limitations/ exclusions of liability described above. Therefore, these limitations and exclusions may not apply to a Customer and its Users who reside in one of those states or countries, but otherwise they are in effect to the maximum extent allowed by applicable laws.
12. EXPORT CONTROL
12.1 Export Control. The Service, its content and derivatives thereof may be subject to export laws and regulations of the European Union, United States and/or other jurisdictions restricting the access or use by (i) any national or certain countries or groups against which the United States and/or European Union have instituted sanctions (including Iran, Cuba, North Korea, Syria and Sudan), (ii) Specially Designated Nationals, and (iii) other proscribed persons who are listed on the Denied Parties list.
12.2 Customer Representation. The Customer represents that the Customer, its Users or any person under the Customer’s registration attempting to access or use the Service:
(a) is not a national of any such sanctioned country or group or a Specially Designated National;
(b) is not named on any U.S. government Denied Parties list;
(c) has not been prohibited from participating in US and/or EU export transactions;
(d) that such use is not restricted; and
(e) that, as an authorized user, the Customer has not disclosed or provided access to any such person for use under the Customer’s registration. The Customer shall be fully liable to the full extent of the law for any violations of this Section 12.
13 TERM AND TERMINATION
13.1 Agreement Term. Unless otherwise agreed between the Parties in writing, the Agreement shall enter into force on the date of signing or other form of acceptance of the Agreement and shall stay in force for a period of twelve (12) months and will continue to remain in force for consecutive twelve (12) months periods unless terminated in accordance with this Section 13.
13.2 Termination. Either Party may terminate the Agreement with a written notice to the other Party no later than one (1) month prior to then current Agreement period. The Customer acknowledges that Kalmar is allowed, in its sole discretion and without the need to separately inform the Customer, to disconnect the Customer’s access and visibility to the connected equipment in the Service in case Kalmar is informed, or becomes aware, that the connected equipment is resold or otherwise transferred to another user.
13.3 Breach of Terms. Each Party may terminate the Agreement for cause with immediate effect if the other Party (i) essentially breaches the terms of the Agreement (which includes, without limitation, non-payment of the service fees by the Customer) and is not able to rectify the breach within thirty (30) days from the receipt of written notification thereof of the other Party or (ii) is declared bankrupt or placed into liquidation or otherwise suspends its payments, except that suspension of payments or the Service in case of a contested payment obligation or other disputes shall not entitle either Party to terminate for cause, as aforesaid.
13.4 Breach of Laws. Kalmar shall have the right to terminate the Agreement at any time and with immediate effect by giving a written notice to the Customer, provided that any (i) trade-, export-, import-, or embargo related laws, regulations, sanctions, restrictions or policies change; or (ii) the Customer or its Users violate any international or local laws, regulations conventions, including but not limited to anti-money laundering, export control regulations, the US Foreign Corrupt Practices Act, the UK Bribery Act and the universal declaration of human rights, and Kalmar to its sole discretion considers such change or violation in any way either affecting its ability or permissibility to continue to provide the Service to the Customer or its Users.
13.5 Fees before Termination. The termination by either Party of the Agreement pursuant to this Section shall not affect Kalmar’s (or its designated dealer’s) right to charge all fees and other payments that were originated prior to the date of termination of the Agreement for the Service provided in accordance with the terms and conditions of the Agreement.
13.6 Customer-specific Data. To the extent not provided otherwise by applicable mandatory law, Kalmar shall not be obliged to remove, erase, export or transfer any Customer-specific data unless otherwise agreed by the Parties against a separate fee.
14 LOCAL LAW REQUIREMENTS
14.1 Local Law Requirements: Germany.
With respect to Customers domiciled in Germany, Section 11 is replaced with the following:
LIMITATION OF LIABILITY FOR CUSTOMERS DOMICILED IN GERMANY
Unlimited Liability. The Parties shall be mutually liable without limitation (a) in the event of willful misconduct or gross negligence, (b) within the scope of a guarantee taken over by the respective Party, (c) in the event that a defect is maliciously concealed, (d) in case of an injury to life, body or health, (e) according to the German Product Liability Law.
Liability for Breach of Cardinal Duties. If cardinal duties are infringed due to slight negligence and if, as a consequence, the achievement of the objective of this Agreement is endangered, or in the case of a slightly negligent failure to comply with duties, the very discharge of which is an essential prerequisite for the proper performance of this Agreement, the Parties’ liability shall be limited to foreseeable damage typical for the contract. In all other respects, any liability for damage caused by slight negligence shall be excluded.
Liability Cap. Unless the Parties are liable in accordance with “Unlimited Liability” section above, in no event shall the aggregate liability of each Party together with all of its Affiliates arising out of or related to this Agreement exceed the total amount paid by the Customer hereunder for the Service giving rise to the liability in the twelve (12) months preceding the first incident out of which the liability arose. The foregoing limitation will not limit the Customer’s payment obligations hereunder.
Scope. With the exception of liability in accordance with the “Unlimited Liability” section, the above limitations of liability shall apply to all claims for damages, irrespective of the legal basis including claims for tort damages. The above limitations of liability also apply in the case of claims for a Party’s damages against the respective other Party’s employees, agents or bodies.
15 TRIAL AND BETA SERVICE
15.1 Trial. In case the Parties have agreed a trial period, during which Kalmar may make the Service available to the Customer free of charge, then the availability of the Service may be terminated at any time by Kalmar. During the trial period the Service is provided “as is” without any warranties. In case of an agreed trial period, the Customer shall at any point during the agreed trial period be entitled to terminate the Agreement for convenience.
15.2 Beta Service. The Customer acknowledges that Kalmar may at its sole discretion offer or make available beta versions of the Service or part thereof. Such beta versions may contain, among other things, additional features, changes in existing features or service components, extensions or any other changes in the Service (“Beta Service”). Despite anything to the contrary in the Agreement: (a) the Customer may choose to use Beta Service in its sole discretion; (b) Beta Service may not be supported and may be changed at any time without notice; (c) Beta Service may not be as reliable or available as the Service; (d) Beta Service have not been subjected to the same security measures and auditing to which the Service have been subjected; and (e) THE CUSTOMER SHALL USE BETA SERVICE AT THE CUSTOMER’S OWN RISK AND KALMAR SHALL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICE.
16 APPLICABLE LAW AND SETTLEMENT OF DISPUTE
16.1 Applicable Law. In case the Customer and Kalmar have the same domicile, the Agreement shall be governed by and concluded in accordance with the laws of that country. In other cases the Agreement shall be governed by the laws of Finland.
16.2 Settlement of Dispute. Any disputes arising out of the interpretation or the fulfillment of the Agreement shall be attempted to be settled by negotiation. If the Parties do not reach a consensus by the way of negotiation, the dispute shall be finally settled in the English language in arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the said rules. Place and seat of arbitration shall be the city of Kalmar entity. Notwithstanding the foregoing, claims for non-payment of monetary charges may be resolved in the district court of the respondent’s place of domicile if the respondent does not contest its payment obligation.
17 GENERAL
17.1 Agreement Assignment. Neither Party is entitled to assign this Agreement without the other Party’s written consent. Regardless of the above, Kalmar has the right to assign the Agreement to a company belonging to the same group of companies or in connection with a transfer of its business by notifying the other Party of this in writing.
17.2 English Language. In case of discrepancies between the English and any translated versions of the Agreement, the English version(s) shall always prevail.
17.3 Notification. Any notification under the Agreement may be provided by Kalmar in its discretion through the Service and/or Service website, and/or through its designated dealer. In case a notification is posted only through the Service and/or Service website (and not for example directly to the Customer via email), the notice shall be deemed received by the Customer, at the latest, after thirty (30) calendar days from the posting of the notification by Kalmar.
17.4 Severability. In the event of any conflict between applicable statutory law applicable to the Customer, and the terms and conditions of this Agreement, the applicable statutory law shall prevail. In case any provision or any part of a provision of this Agreement is held invalid or unenforceable, the validity of the remaining provisions of the Agreement shall not be affected thereby and each remaining provision or part thereof will be valid and enforceable to full extent permitted by law. Where any provision is held invalid or unenforceable, the Parties endeavor to negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
17.5 Waiver. Any failure of either Party to enforce, at any time or for any period of time, any of the provisions of the Agreement shall not be construed as a waiver of such provisions or of the right of the Party thereafter to enforce each and every such provision.
17.6 Force Majeure. Neither Party shall be liable for delays or damages resulting from an obstacle outside the sphere of influence of the Party or its subcontractors, and which cannot reasonably have been taken into account by the Party at the time of concluding the Agreement, and the consequences of which the Party could not reasonably have been expected to avoid or overcome. A strike, lockout, boycott or other industrial action shall be regarded as a constituting force majeure event even when the Party itself constitutes its target or is a Party to it. The Party shall immediately notify the other Party both of the event of force majeure itself, as well as the cessation thereof.
17.7 Terms Modification. Kalmar may revise the Agreement from time to time and the most current version will always be posted on the Kalmar website or within the Service. If a revision, in Kalmar's sole discretion, is material, Kalmar will notify the Customer (by, for example, sending an email to the email address associated with the applicable account). By continuing to access or use the Service after revisions become effective, the Customer agrees to be bound by the revised Agreement. If the Customer does not agree to the revised Agreement, the Customer may terminate the Service within thirty (30) days of receiving notice of the change.
17.8 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, communications, representations, and warranties, whether written or oral, with respect to such subject matter.
17.9 Relationship of the Parties. Kalmar's relationship to the Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.
17.10 Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the Parties to this Agreement may enforce it, provided however, that an Affiliate of Kalmar may (in addition to Kalmar) enforce Kalmar's rights hereunder to the extent it owns, controls or possesses relevant confidential information or Intellectual Property Rights (including Kalmar Content).
17.11 Interpretation. The titles of the articles and sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
17.12 Subcontractors. The Customer acknowledges and agrees that Kalmar may perform its obligations through one or more subcontractors.