CNH INDUSTRIAL BALE MANAGER APPLICATION END USER LICENSE AGREEMENT
Effective as of 1 September 2023
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING, ACTIVATING OR USING THE CNH INDUSTRIAL® BALE MANAGER APPLICATION. THIS AGREEMENT IS A BINDING LEGAL CONTRACT BETWEEN YOU OR THE ENTITY YOU REPRESENT (“YOU”) AND CNH INDUSTRIAL AMERICA LLC AND ITS GLOBAL AFFILIATES AND RELATED ENTITIES (“CNHI”, “WE” OR “US”)
The CNH Industrial® Bale Manager Application (the “App”) will give you the ability to track bale count and attributes (e.g. size, moisture, type, number of wraps, etc.), which will be stored in your device(the “Services”). From this data, you will have the ability to create and export invoices to print or email to your customers. The App utilizes the telematics hardware (“Bale Manager Device”)installed in your Case IH or New Holland baler (the “Equipment”) and provides a Bluetooth connection to the App. The Bale Manager Device will need to be purchased separately from an authorized CNHI dealer.This CNH Industrial® Bale Manager Application End User License Agreement (this “Agreement”)applies to (i) the Services and the Bale Manager Device, and (ii) the use of, and your consent to the use of, certain information or data that may be collected, recorded, and transmitted from and about the Bale Manager Device associated with Services, and your use of the App. You understand that by using the Bale Manager Application and its Services, CNHI and its business associates may collect and use data to provide you with the Services and for other purposes, as described below.
1. Acceptance of Agreement. BY “ACCEPTING” THESE TERMS OR ACCESSING, ACTIVATING OR USING THE APP, OR THE SERVICES, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT: (1) PLEASE DO NOT, AND YOU ARE NOT PERMITTED TO, ACCESS OR ACTIVATE OR USE THE APP, OR THE SERVICES; AND (2) FOR CLARITY, DO NOT CLICK “ACCEPT”.
2. Privacy Statements. Your use of the App and the Services is also subject to the CNH Industrial® Privacy Notice (“Bale Manager Application Privacy Notice”). A current copy of the Bale Manager Privacy Notice can be accessed and viewed at any time on the App.
II. GRANT OF LICENSE AND LICENSE RESTRICTIONS
1. Limited License. Subject to your compliance with the terms of this Agreement, , CNHI grants you a limited, worldwide, non-exclusive, non-transferable, non-assignable license (without the right to sublicense) to access and use the App and the Services for the duration of this Agreement, only in a commercially reasonable manner for your legitimate internal business purposes, in accordance with the terms and conditions of this Agreement, and only upon: (1) your use or activation of the Services; and (2) your Acceptance of this Agreement and acknowledgement of the Bale Manager Privacy Notice without modification. You agree to (i) access and use of the App and Services only in a manner consistent with all applicable local, state, national or international laws, rules, orders,directives, statutes, and regulations (“Laws”), and (ii) use the App and Services in a manner consistent with CNHI’s documentation. You assume full responsibility for the actions of any third party that you authorize or allow to access the App or Services. For clarity, the App is licensed, not sold, to you.
2. Compliance with Laws; Consents. You agree that you: (i) have fully complied and will fully comply with all applicable Laws (including anti-bribery and data privacy laws), including those relating to the use of the Services and the transmission and use of data and information provided to CNHI, and (ii) have provided and will provide all required notices to and have obtained and will obtain all necessary consents from your authorized users and other relevant individuals, including with regard to the transmission and use of data and information by the Services and CNHI.
3. No Reverse Engineering. The license described in Section II.1 above does not include any rightto any source code of the App. Except and to the extent required or permitted by Law, you and yourauthorized users shall not reverse engineer, disassemble, decompile or make any attempt to discover the source code of the Services, the Bale Manager Device or the App. Information necessary toachieve interoperability and security testing of the Services, the Bale Manager Device or the App is available from CNHI upon request.
4. Security Measures. The App and the Bale Manager Device may be protected by certain security measures, including but not limited to technological measures under the Digital Millennium Copyright Act, copyright protection measures, and application enabling mechanisms such as passwords, key codes, encryption, or other security devices (the “Security Measures”). You and your authorized users agree that you will not: (i) defeat or attempt to defeat the Security Measures that protect the App or the Bale Manager Device and that would constitute a violation under applicable Law related to circumvention of technological measures that protect software,copyrighted works, or other intellectual property rights, or (ii) traffic in, purchase, manufacture,design, import, offer, sell or distribute any circumvention or hacking device that is designed to circumvent or hack the Security Measures or the App or the Bale Manager Device to the extent unlawful under applicable Law.
5. No Misuse. You and your authorized users agree that you will not use the Services, the Bale Manager Device or the App for any purpose that is unlawful or not expressly permitted by this Agreement. We may restrict or terminate use of the Services, the Bale Manager Device, or the App by you and your authorized users, in whole or in part, if there is a reasonable suspicion of, or any actual, misuse or fraudulent use by you or your authorized users. You will be responsible for any costs incurred by us or any other party (including attorneys’ fees) as a result of such misuse or fraudulent use. You and your authorized users may not:
(i) damage, disable, overburden, interfere with, disrupt or impair the Services, the Bale Manager Device, the App, or servers or networks connected to them, in any manner;
(ii) use the Services , the Bale Manager Device or the App in a “service bureau” or similar structure whereby third parties obtain or use of the Services through you, including without limitation as part of a service competitive with any service offered by CNHI;
(iii) interfere with any other party’s access, use or enjoyment of the Services, the Bale Manager Device, or the App in any manner;
(iv) intentionally or unintentionally violate any Law, including, but not limited to, Laws related to export;
(v) impersonate any person or entity, or misrepresent your affiliation with a person or entity, or provide any false or misleading information to CNHI;
(vi) use the Services, the Bale Manager Device or the App to convey obscene, prurient,defamatory, salacious, or unlawful information or copyrighted content that is not your property or to violate the rights of any third party;
(vii) use the Services, the Bale Manager Device or the App without permission on a stolen or lost device;
(viii) engage in unauthorized access to the Services, the Bale Manager Device or the App,which include without limitation, the pairing of the App with a Bale Manager Device installed in equipment owned by a third party;
(ix) use the Services, Bale Manager Device or the App to provide voice over IP services;
(x) except to the extent otherwise reasonably necessary to exercise the license rights granted to you under Section II.1 above, reproduce, modify, publish, distribute, publicly display, adapt, alter, translate, disclose, perform, or create derivative works from the App or the Bale Manager Device (or any part thereof), or any Third Party Materials (as defined below);
(xi) remove, obscure, or alter any copyright, trademark, or other proprietary notices embedded in, affixed to, or accessed in conjunction with the App, the Services or the Bale Manager Device; or
(xii) track the location of any person or device without first informing and obtaining the necessary approvals from such person, owner, or person in control or possession of such device to permit you and CNHI to track such location.
6. Third Party Materials. The App, Bale Manager Device or Services may be bundled or used with software or services that are provided by third parties (“Third Party Materials”). Third Party Materials are not governed by this Agreement, but may be governed by such third parties’ terms ofuse or other agreements. CNHI will use reasonable efforts to notify you of events affecting Third Party Materials that CNHI bundles with the App, Bale Manager Device or Services and that mayi mpact your use of the App, Bale Manager Device or Services. HOWEVER, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CNHI EXPRESSLY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY (AND YOU WILL NOT HOLD OR ATTEMPT TO HOLD CNHI RESPONSIBLE OR LIABLE) IN CONNECTION WITH THE THIRD PARTY MATERIALS OR USE THEREOF BY YOU OR ANY AUTHORIZED USER.
7. Transfer of Equipment. You agree that you will not assign, sublicense, transfer, pledge, lease,rent, or share your rights under this Agreement, except that if you permanently transfer ownership of the Equipment, then you may also permanently transfer all of your rights under this Agreement;provided that you (i) notify such transferee of the existence of this Agreement and the Services, and of the transfer of data in accordance with this Agreement, (ii) notify such transferee that it or its authorized users must enter into this Agreement with CNHI if they wish to continue to use the Services, the App or Bale Manager Device, and (iii) promptly notify CNHI of such transfer. You will remain responsible for any use of the Services, the Bale Manager Device and the App, including by the Equipment, until you have contacted CNHI.
III. THE SERVICES
1. Nature of the Services. You acknowledge that in order for the Services to be provided, the Bale Manager Device in your Equipment will transmit certain data through the media of radiowaves, cellular, satellite, GPS, Web, or similar technology. The type, granularity, and volume of data collected will vary by machine type and may change at any time without notice. You consent to such transmission and waive any claims that you may have against us as to the availability, quality and performance of the media transmitting the data, other than those claims which cannot be waived under applicable Law. You understand that the Services is made available to you on the basis of several factors, including without limitation, Web access, cellular connectivity, computer usage, your Equipment, your operating system, and your Equipment’s Bale Manager Device and the App being activated and maintained by you.
1. Data Collection. By using the Services and the App, certain data may be collected, recorded,and transmitted to CNHI, including Personal Data, Machine Data and Agronomic Data. Personal Data will be defined in the Bale Manager Application Privacy Notice. “Machine Data” is data generated by your machine that is specific to your machine. “Agronomic Data” is data generated by your machine that is geocentric or relates to your field or your field operations, which include data collected by the Bale Manager Device which is transmitted to the App.. This Agreement does not grant CNHI any rights to your data that we may receive under this Agreement except for the rights of use described in this Agreement and in the Bale Manager Application Privacy Notice. Certain Machine Data is proprietary to CNHI.
2. Data Sharing with Dealers. Dealers authorized by CNHI or you to access and use your data made available through the App and the Services are called “Authorized Dealers”. CNHI may provide Authorized Dealers information and data for the purpose of servicing your Equipment, Bale Manager Device or the App. Authorized Dealers may process and use your or your authorized user(s)' Personal Data only to provide a service in connection with your Equipment, Bale Manager Device or the App, and in accordance with the Bale Manager Application Privacy Notice and applicable Law.
3. Use of Data. You acknowledge that you have been notified of our Bale Manager Application Privacy Notice, and you hereby grant CNHI the right to process, use, disclose and transfer data transmitted to CNHI to provide you with the Services, among other uses, including any other purposes described in the Bale Manager Application Privacy Notice, in compliance with applicable Law. This permission extends to third parties engaged by CNHI in connection with providing the Services.
4. Derived Data. You and your authorized users understand that CNHI may aggregate, compile or derive data collected in connection with the Services such that a specific user or machine is no longer identifiable (“Derived Data”). Derived Data does not consist, contain, or relate to Personal Data. CNHI shall own such Derived Data. To the extent that you obtain any right, title or interest in such Derived Data, you hereby agree to irrevocably assign such right, title and interest to CNHI. Such Derived Data may be accessed and used by CNHI for any purpose, and may be shared by CNHI with third parties, including but not limited to our dealers, our affiliates and their dealers, the manufacturer of the Equipment, and other business partners. CNHI shall implement and maintain measures to ensure that Derived Data remain anonymous.
5. Restriction of Data Access. While you use the Services and the App, you may not restrict CNHI’s access to and use of your data, except as permitted by applicable Law.
6. Deletion of Data. If you or CNHI close your access or use of the Services or the App, unless otherwise required by applicable Law or unless otherwise agreed by CNHI, CNHI has the option and right to permanently delete any and all information, including data, maintained in the App, and you will no longer be able to retrieve any data or other information contained in the App. You acknowledge that to the fullest extent permitted by applicable Law, CNHI has no responsibility for the deletion or failure to store any data or other information that may be submitted to CNHI, or that may be maintained or transmitted by the Services or the App. Notwithstanding the foregoing, CNHI shall not have any obligation to delete any Derived Data.
7. Transfer of Data. Your data that is provided to CNHI may be collected, sent, processed and stored outside of the country in which you live and, as a result, may be available to governmental authorities under lawful orders and other Laws applicable in such foreign jurisdictions. CNHI will use reasonable means to ensure that such data is protected in these cases, but CNHI cannot guarantee that the Laws of any foreign jurisdiction will accord the same degree of protection as the Laws of your country.
8. Third-Party Telematics Services. As part of the Services, you may choose to have the Services communicate, transfer and exchange data between your Equipment’s Bale Manager Device and certain third-party devices, systems or software to generate custom reports, data or other features(“Third-Party Telematics Services”). CNHI does not exercise control over the form or quality of data transmitted by such Third-Party Telematics Services, nor any reports or other data generated by them (collectively, “Third-Party Telematics Services Data”). Therefore, by choosing to use Third-Party Telematics Services, you and your authorized users agree to the following:
(i) You agree to allow CNHI and your Equipment’s Bale Manager Device totransfer and exchange your data with such Third-Party Telematics Services. Youagree that once CNHI or your Equipment’s Bale Manager Device has initiated suchtransfer of your data to such Third-Party Telematics Service, to the extent that yourdata no longer remains in the Services, your data will no longer be governed by thisAgreement or the Bale Manager Application Privacy Notice; rather, your data may begoverned by such third-party supplier’s privacy statement.
(iii) You accept any and all limitations in the use and quality of the Third-Party Telematics Services and any Third-Party Telematics Services Data, and agree that CNHI is not responsible for the quality or accuracy of, or the inability to receive, access or use Third-Party Telematics Services or any Third-Party Telematics Services Data.
(iv) CNHI may control the flow of Third-Party Telematics Services Data transmitted to and from the Services, the App or the Bale Manager Device, and may stop or block the use of any Third-Party Telematics Services or any Third-Party Telematics Services Data that CNHI believes may adversely affect the Services, theApp or the Bale Manager Device.
(v) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CNHI EXPRESSLY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY (AND YOU WILL NOT HOLD OR ATTEMPT TO HOLD CNHI RESPONSIBLE OR LIABLE) IN CONNECTION WITH: (1) YOUR DATA ONCE CNHI OR YOUR EQUIPMENT’S BALE MANAGER DEVICE HAS INITIATED SUCH TRANSFER OF YOUR DATA TO A THIRD-PARTY TELEMATICS SERVICE (WHETHER DIRECTLY OR INDIRECTLY THROUGH AN INTERMEDIARY SYSTEM); AND (2) ANY THIRD-PARTY TELEMATICS SERVICES OR ANY THIRD PARTY TELEMATICS SERVICES DATA, INCLUDING BUT NOT LIMITED TO ANY USE BY YOU OR YOUR AUTHORIZED USERS AND ANY RESULTING DAMAGE OR UNAUTHORIZED ACCESS TO OR LOSS OR ALTERATION OF YOUR EQUIPMENT OR DATA.
1. Modification or Discontinuation. To the fullest extent permitted by applicable Law, CNHI may,at any time, modify, suspend or permanently discontinue the Services, or the App, or any portion oftheir features, functions or products or associated support, with or without advance notice, for anyor no reason. CNHI will not be liable to you or to any third party for any such modification,suspension or discontinuance, nor will CNHI be obligated to continue offering support for anysuspended or discontinued Services, the App, or portions thereof. By accessing or using the Servicesor the App, you consent to our modification to the Services or the App, or any portion of its or theirfeatures, functions, products, or associated support. CNHI will provide reasonable advance notice forany modification, suspension or discontinuation of the Services or the App, which have an adverseand material impact on the essential part of our obligations under this Agreement.
2. Software Updates. You agree that CNHI may, at any time, remotely change or update the App or Bale Manager Device with or without any advance notice. Such changes or updates may include bug fixes, patches, enhanced or new functions or features, and new versions. Unless otherwise explicitly stated by CNHI, any changes and updates to the App or Bale Manager Device will continue to be governed by the terms of this Agreement. By accepting this Agreement, you give your express consent to the installation of future software updates.
VI. SERVICE REQUIREMENTS AND LIMITATIONS
1. Service Requirements.
(i) General. You understand that, in order for the Services or the App to operate, your Equipment must have a working electrical system and your Equipment and the Bale Manager Device on your Equipment must otherwise be in working condition.
(ii) Third Party Communications Systems. In order to operate, the Services, the Bale Manager Device and/or the App requires the use of a proprietary third party communications system, such as that of a telephonic wireless communications carrier or a satellite-based communication system (each, a “Communications Carrier”). CNHI HAS NO RESPONSIBILITY FOR THE AVAILABILITY, QUALITY OR PERFORMANCE OF (AND THE SERVICES EXCLUDE) WIRELESS OR SATELLITE-BASED COMMUNICATIONS SERVICES OR EQUIPMENT FURNISHED BY THE COMMUNICATIONS CARRIERS. THE COMMUNICATIONS CARRIERS ARE EXCLUSIVELY RESPONSIBLE FOR SUCH SERVICES AND EQUIPMENT.(
(iii) The App. You agree that the App requires access to the Web, and you are responsible for the acquisition, configuration, monitoring, maintenance, management, and fees and expenses of your network connection and software and hardware related to your use of the Web, including LAN, computers, modems, and telecommunications devices. CNHI is not responsible for the network connection to access the Web or for issues, problems or conditions arising from or related to the network connection, including but not limited to bandwidth issues, signal coverage, network outages, or other conditions that are caused by the Web or network connection.
2. Legal Requirements. Transmission of information using your Equipment’s Bale Manager Device is subject to legal requirements that may vary from location to location, including radio frequency use authorization. You are responsible for limiting your use of the Bale Manager Device to those locations where all legal requirements for their use and the communication network have been satisfied. In the event that your Bale Manager Device is located in or relocated to a location where (i) legal requirements are not satisfied or (ii) transmitting or processing of such information across multiple locations would not be legal, CNHI disclaims any and all liability related to such failure to comply, and CNHI may discontinue the transmission of information from that device.
VII. SUPPORT SERVICES
CNHI and its dealers may offer to provide (but are not obligated under this Agreement to offer or to provide) you with support services related to the Services, the App or the Bale Manager Device. Any such support services may be subject to additional terms and conditions.
VIII. INTELLECTUAL PROPERTY
You and your authorized users understand that the Services and the App are protected by intellectual property laws and international treaties. As between CNHI and you, all rights, title, and interest in and to Services and the App, and are owned by CNHI (or its licensors), and nothing contained in this Agreement transfers or assigns any right, title, or interest in the Services, or the App, including without limitation any trademark rights, to you or your authorized users. You and your authorized users hereby agree and acknowledge that CNHI and its licensors (and as applicable, third-party suppliers) own all right, title and interest in and to all intellectual property rights in connection with or relating to the Services, and the App.
IX. SUSPENSION AND TERMINATION
1. Suspension/Termination For Cause. CNHI may suspend or terminate your and your authorized users’ license to use the Services and/or the App, without liability, if:(i) you or your authorized users violate the terms of this Agreement or any other valid agreement with CNHI for the use of the Services, the Bale Manager Device, or the App; or(ii) CNHI has reason to believe that you, your authorized users, any of your agents or any third party is abusing the Services, the Bale Manager Device, or the App, or using itf raudulently or unlawfully.
2. Termination for Convenience by CNHI. Subject to any additional notice requirements under applicable Law, CNHI may terminate this Agreement upon thirty (30) days’ prior notice to you,without this giving you the right to claim any compensation.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CNHI, ITS DIRECTORS, OFFICERS,EMPLOYEES, LICENSORS, AND OTHER SUPPLIERS, AUTHORIZED DEALERS, AFFILIATES AND AGENTS (EACH A “CNHI PARTY” AND COLLECTIVELY THE “CNHI PARTIES”) DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR OR YOUR AUTHORIZED USERS’ USE OF THE SERVICES, THE BALE MANAGER DEVICE, OR THE APP. YOU AND YOUR AUTHORIZED USERS EXPRESSLY UNDERSTAND AND AGREE THAT: (a) THE SERVICES, THE BALE MANAGER DEVICE,AND THE APP ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU; (b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE CNHI PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, (i) WARRANTIES OF TITLE, MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, QUIET ENJOYMENT,NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT; (ii) WARRANTIES ARISING THROUGH THE COURSE OF DEALINGS OR USAGE OF TRADE; (iii) WARRANTIES REGARDING THE SECURITY,RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES, BALE MANAGER DEVICE, OR THE APP; AND (iv) WARRANTIES THAT ACCESS TO OR USE OF THE SERVICES, THE BALE MANAGER DEVICE, OR THE APP WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED OR ERROR-FREE;AND (c) THAT YOU WILL ACCESS AND USE THE SERVICES, THE BALE MANAGER DEVICE, AND THE APP AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM(S) OR EQUIPMENT OR LOSS OR ALTERATION OF DATA THAT RESULTS FROM SUCH ACCESS AND USE.THERE ARE NO WARRANTIES THAT EXTEND BEYOND THOSE EXPRESSLY GRANTED IN THIS AGREEMENT. MANDATORY LAW IN SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
XI. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL THE CNHI PARTIES BE LIABLE TO YOU, YOUR AUTHORIZED USERS OR A THIRD PARTY FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, THIRD PARTY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF DATA (INCLUDING AS A RESULT OF SOFTWARE UPDATES OR CHANGES), LOSS OF BUSINESS INFORMATION, VIRUS INFECTIONS, SYSTEM OUTAGES AND THE LIKE, ARISING OUT OF, BASED ON OR RESULTING FROM THIS AGREEMENT OR YOUR OR YOUR AUTHORIZED USERS’ ACCESS TO, USE OF, MISUSE OF OR INABILITY TO USE THE SERVICES,THE BALE MANAGER DEVICE, OR THE APP (INCLUDING LOSSES OR DAMAGES ARISING FROM THEIR INTERRUPTION OR TRANSMISSION ERRORS (INCLUDING LOCATION DATA INACCURACIES),DEFECTS, OR ANY OTHER CAUSES), EVEN IF CNHI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING DAMAGES INCURRED BY THIRD PARTIES). CNHI DOES NOT ASSUME AND WILL NOT HAVE ANY LIABILITY ARISING FROM EVENTS BEYOND ITS CONTROL OR THE CONTROL OF ITS SUBCONTRACTORS, LICENSORS OR BUSINESS PARTNERS, INCLUDING EVENTS SUCH AS ACTS OF GOD, ACTS OF ANY GOVERNMENTAL ENTITY, ACTS OF PUBLIC ENEMY, STRIKES OR WEATHER CONDITIONS. THE EXCLUSION OF DAMAGES UNDER THIS SECTION XI IS INDEPENDENT OF ANY REMEDY PROVIDED UNDER THIS AGREEMENT AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER DAMAGES ARISE FROM BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION. TO THE EXTENT THAT APPLICABLE LAW DOES NOT PROHIBIT SUCH EXCLUSIONS AND LIMITATIONS, IN NO EVENT WILL CNHI’s TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, STRICT LIABILITY, TORT(INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED USD 50,000. CNHI'S LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, STRICT LIABILITY,TORT (INCLUDING NEGLIGENCE) OR OTHERWISE WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH YOU CONTRIBUTED TO THE DAMAGE, LOSS OR CAUSE OF ACTION.
THE PRECEDING LIMITATIONS OF LIABILITY DO NOT APPLY TO LIABILITIES THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS, SUCH AS IN THE EVENT OF STATUTORILY MANDATED LIABILITY (INCLUDING LIABILITY UNDER APPLICABLE PRODUCT LIABILITY LAW) ORIN THE EVENT OF PERSONAL INJURY ARISING SOLELY FROM A CNHI PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
In the event that applicable Laws imply warranties or conditions or impose guarantees or obligations on CNHI which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent ("Non-Excludable Rights"), this Agreement must be read subject to these Laws, and nothing in the Agreement is intended to exclude, restrict or modify your Non-Excludable Rights. If these Laws apply, then to the extent permitted by applicable Laws, CNHI limits its liability in respect of any claim under those Laws, (a) in the case of goods, at CNHI's option, to (i)the replacement of the goods or the supply of equivalent goods; (ii) the repair of such goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment ofhaving the goods repaired, and (b) in the case of services and at CNHI's option, to: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UPON CNHI’S REQUEST, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS EACH OF THE CNHI PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, DEMANDS, ACTIONS OR OTHER PROCEEDINGS BROUGHT AGAINST IT BY ANY THIRD PARTY DUE TO, ARISING OUT OF OR RELATED TO YOUR OR YOUR AUTHORIZED USERS’ (A) USE OF THE SERVICES, THE BALE MANAGER DEVICE, OR THE APP(INCLUDING IN CONNECTION WITH TRACKING THE LOCATION OF ANY PERSON OR DEVICE), (B)BREACH OF THIS AGREEMENT, (C) FAILURE TO PROVIDE NECESSARY NOTICES OR OBTAIN NECESSARY CONSENTS FROM AUTHORIZED USERS OR OTHER INDIVIDUALS REGARDING THE SERVICES, THE BALE MANAGER DEVICE, OR THE APP (INCLUDING IN CONNECTION WITH TRACKING THE LOCATION OF ANY PERSON OR DEVICE), AND (D) VIOLATION OF ANY LAW OR THIRD PARTY RIGHTS. You shall pay any and all costs, damages and expenses, including, without limitation, attorneys’ fees and costs (as between attorney and own client) awarded against or otherwise incurred by the CNHI Parties in connection with or arising from any such claim, lawsuit,action, demand or other proceeding. A CNHI Party may, at its own expense, assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event youagree to cooperate with such CNHI Party in asserting any available defenses.
1. Electronic Signature and Disclosure Consent Notice. You agree to the use of electronic documents and records in connection with this Agreement, the Services, the Bale Manager Device and the App. You agree that all such documents and records that CNHI provides to you electronically through the App satisfy any requirement that these documents and records be in writing. To receive or access electronic documents and records, you must have a compatible and functional operating system or software capable of displaying PDF files. 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.
2. Choice of Law and Dispute Resolution.
a) Except to the extent expressly provided in paragraph (b) below, this Agreement is governed by and construed in accordance with the laws of the State of New York and applicable United States federal law, including the Federal Arbitration Act, without reference to “conflicts of laws” provisions or principles. WE BOTH AGREE, TO THE FULLEST EXTENT PERMITTED BY LAW, TO USE FINAL AND BINDING ARBITRATION, NOT LAWSUITS TO RESOLVE ANY DISPUTE, CLAIM OR CONTROVERSY RELATING IN ANY WAY TO YOUR OR YOUR AUTHORIZED USER’S USE OF THE SERVICES, THE BALE MANAGER DEVICE, OR THE APP, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BALE MANAGER APPLICATION PRIVACY NOTICE (EACH, A “DISPUTE”). For purposes of clarity, this arbitration agreement does not apply to any Dispute arising out of the Equipment that is unrelated to the Services, the Bale Manager Device, the App, this Agreement, or the Bale Manager Application Privacy Notice.
The arbitration will be administered by the American Arbitration Association (AAA) in accordance with the AAA’s Commercial Arbitration Rules, and, if applicable, the AAA’s Consumer Arbitration Rules. If you are located in the United States, then unless you and we agree otherwise, the arbitration will take place in a location near where you reside or as otherwise specified in Table 1. If you are located in a jurisdiction other than the United States,the arbitration will take place in a location in the United States which we will select in our sole discretion, unless applicable Law requires otherwise.If (a) you are a U.S. citizen; or (b) you reside in the U.S.; or (c) you are accessing the App from theU.S. or; you are not a citizen of one of the countries identified in paragraph (b) below:
I. You agree that any dispute resolution proceedings will be conducted only on an individual basis and you expressly waive the right to request or maintain any class-wide, representative or consolidated actions, even if AAA procedures or rules would permit them. We each agree that the parties are waiving the right to a trial by jury, and if for any reason a Dispute proceeds in court rather than in arbitration, we each waive any right toa jury trial. Notwithstanding the foregoing, we both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights;
II. To the extent permissible under applicable Law and the relevant AAA rules, you and we agree to pay our own fees, costs, and expenses, including those for any attorneys, experts,and witnesses; and
III. If and to the extent a lawsuit or court proceeding is permitted under this Agreement, then to the extent permissible under applicable Law, you hereby consent and agree to the exclusive jurisdiction of, and venue in, the state and federal courts located in New York City, New York.
b) If you are (a) a citizen of any European Union country or United Kingdom, or Switzerland, Norway,Iceland or South Africa; and (b) you are not accessing the App from the U.S., the governing law and forum shall be the laws and courts of your usual place of residence.
3. Import and Export Compliance. You acknowledge that all system hardware, system software, proprietary data, know-how, or other data or information (herein referred to as "Products") obtained from CNHI may be subject to the import and export control Laws of one or more countries and, accordingly, their import, export, re-export, and transfer may be restricted or prohibited. You agree to strictly comply with all such Laws and not to directly or indirectly import, export, re-export, transfer, or cause to be imported, exported, re-exported, or transferred, any such Products to any destination, entity, or persons prohibited or restricted under any Law, unless you have first obtained prior written consent of CNHI and any applicable governmental entity, either in writing or asprovided by applicable Law, as the same may be amended from time to time. For greater certainty, without prior written consent as described above, you are not permitted to use or otherwise import,export or re-export the App, Bale Manager Device, Services or Data in any way that violates any applicable laws or security programs, including into (i) temporarily occupied territories and territories of antiterrorist operation, or (ii) to any individuals and legal entities on a list of personalized special economic and other restrictive measures (sanctions) approved by any applicable government.
4. U.S. Government Restricted Rights and Commercial Computer Software. The Product is deemed to be “commercial computer software” and “commercial computer software documentation”pursuant to DFAR Section 227.7202 and FAR Section 12.212 (and any successor sections). Use of the Product including, but not limited to, its reproduction and display, by the United States of America and any of its instrumentalities, regardless of form, is governed by this Agreement.
5. Entire Agreement. This Agreement, the terms of the Bale Manager Application Privacy Notice,and any other valid agreement between you and CNHI for use of the Services, the Bale Manager Device, and the App constitute the entire agreement between you and CNHI and govern your use ofthe Services, the Bale Manager Device, and the App, superseding any and all prior agreements, negotiations and communications (whether written, oral or electronic) between you and CNHI with respect to such subject matter. Except as otherwise expressly set forth otherwise in this Agreement,no change, modification, or waiver of this Agreement will be binding on CNHI unless made in writing,with CNHI’s approval. Any rights not otherwise expressly granted under this Agreement are reservedby CNHI and its licensors. The failure of CNHI to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any part of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, that portion shall be construed in a manner consistent with applicable Law to reflect, as nearly as possible, the original intentions of CNHI, and the remaining portions shall remain in full force and effect. No third party shall have theright to enforce any provision of this Agreement.
SECTIONS IV, VIII, X, AND XI FORM AN ESSENTIAL PART OF OUR OBLIGATIONS.
6. Modification of Agreement. To the extent permissible under applicable Law, CNHI may modify and update this Agreement at any time. CNHI will provide you with reasonable notice of any such changes. CHNI may notify you of material changes to this Agreement by contacting you via your contact information provided in your account. Your continued use of the Services, the Bale Manager Device, or the App following the posting of any such changes will constitute confirmation of your acceptance of the updated Agreement, unless you notify CNHI in writing within 30 days of the notice that you do not accept the updated Agreement. In that case, this Agreement in effect at the time of your last agreement to or acceptance of this Agreement will remain in effect, unless CNHI, at its option, exercises its right to terminate this Agreement.
7. Time Limits for Pursuing Claims and Disputes. You agree that to the extent permissible under applicable Law, any claim or cause of action arising out of or related to use of the Services, the Bale Manager Device, or the App must be brought either in arbitration or in court in accordance with Section XIII(2) within one (1) year after such claim or cause of action arose or be forever barred.
8. Official Language. The official language of this Agreement is English. Unless the Laws of thelocation in which you reside require otherwise, the parties hereby acknowledge that they have required this Agreement, and all other documents relating hereto, be drawn up in the Englishlanguage only. This Agreement may also be provided in other languages. For purposes ofinterpretation, or in the event of a conflict between the English version of this Agreement and theversions of this Agreement in any other language, the English language version shall control unlessthe Laws of the location in which you reside require that a different version control.