Terms of Use
1. GENERAL
1.1 These "Terms of Use" apply to any use of www.terrako.com (the "Platform").
1.2 The Platform is operated by Kubota Europe SAS. Kubota Europe SAS has its registered office at 19-25 Rue Jules Vercruysse, 95100 Argenteuil, France. All reference to "Kubota", "we", "us" and "our", are references to Kubota Europe SAS. You may contact us via contact@terrako.com.
1.3 To the extent you have also entered into one or more agreements with Kubota or an affiliate of Kubota with respect to the use of the Platform, these Terms of Use are in addition to the terms of such agreement.
1.4 These Terms of Use constitute a binding agreement between Kubota and you. Please read these Terms of Use carefully before using the Platform. By accessing and/or using the Platform you agree to be bound by these Terms of Use.
1.5 You may download, save and/or print these Terms of Use. The Terms of Use can also be accessed on https://software.terrako.com/page/page.termsAndConditions.pagelet2-Page. We may revise these Terms of Use at our sole and absolute discretion from time to time. You should therefore check from time to time to review these Terms of Use.
2. SELLERS
2.1 Through the Platform you can purchase products from parties that have been authorised to use the Platform to sell products, including, in some cases, software licenses ("Sellers"). Sellers are independent (registered) companies. If you purchase a product from a Seller you enter into an agreement between you and the Seller. We are not involved in the transaction between you and (a) Seller(s) other than facilitating the Platform through which this transaction is made. Any complaints or queries concerning the transaction and/or agreement between you and a Seller should be directed at the relevant Seller, for which the contact details will be made available by the Seller.
2.2 The Seller is responsible for the performance of the agreement entered into between you and the Seller, which, for the avoidance of doubt, inter alia includes the terms of (actual) delivery. Accordingly, in the event of any dispute or complaint in this regard, you should contact the Seller with whom you have entered into an agreement. The manner in which you may do so is set out in the terms and conditions offered to you by the Seller.
3. USE OF THE PLATFORM
3.1 The Platform is made available via www.terrako.com. In order to purchase products through the Platform, you must create a user account for the Platform ("Account").
3.2 In order to be able to create an Account, you must be at least 18 years of age, provide a valid email address and create a password. When making a purchase via the Platform, further (personal) data may be required, such as a shipping address.
3.3 You are obligated to provide correct, complete and accurate (personal) data when creating an Account and/or when making a purchase, and to keep the (personal) data relating to your Account up to date. We expressly disclaim any liability relating to any damage, loss or costs resulting from incorrect, incomplete and/or inaccurate (personal) data provided by you.
3.4 You are at all times fully responsible for the confidentiality and use of the Account and for the conduct of those who gain access to the Account. If you have reason to suspect that an unauthorised third party has access to the Account, you must inform us thereof immediately. We expressly disclaim any liability for any damage, loss or costs resulting from unauthorised use of the Account.
4. THIRD PARTY PAYMENT SERVICE PROVIDER
4.1 Payments that are made when making purchases via the Platform are managed by a third party payment service provider. Before making a purchase, the general terms and conditions of this third party payment service provider must be accepted.
4.2 As the payments made via the Platform are managed by a third party payment service provider, Kubota does not have access to (all) payment information. The third party payment service provider is responsible for the completion of the transaction and should be contacted in case of problems with payment when completing a purchase.
5. USER CONDUCT
5.1 You must comply with all applicable laws, regulations and conditions, including these Terms of Use, in connection with your use of the Platform. If you do not comply with these conditions, we may (temporarily) deny your access to the Platform and/or delete or (temporarily) disable your Account.
5.2 You are prohibited from posting or transmitting to or from the Platform any material: (a) that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may cause annoyance or inconvenience; or (b) for which you have not obtained all necessary licences and/or approvals; or (c) which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party, in any country in the world; or (d) which is technically harmful (including, without limitation, computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data). Any material posted or transmitted to or from the Platform in breach of these Terms of Use may be removed or edited by us.
5.3 You are responsible for the actions conducted within or through your Account. In the event of abuse of your Account, we may (temporarily) deny your access to the Platform or terminate these Terms of Use with immediate effect and delete your Account in accordance with the provisions of these Terms of Use.
6. PRIVACY/COOKIES
6.1 Information about how we process personal data with respect to the Platform is included in our Privacy Notice which can be found on https://software.terrako.com/page/page.privacyPolicy.pagelet2-Page.
6.2 Information about how we use of cookies and/or similar techniques on the Platform is included in our Cookie Notice which can be found on https://software.terrako.com/page/page.privacyPolicy.pagelet2-Page.
6.3 With respect to a purchase, a Seller is responsible for the processing of your personal data. You will be provided with a privacy notice of Seller with respect to such processing.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 You hereby acknowledge that the software, source code and other content and material on the Platform (including, without limitation, photographs, graphical images and information) may be subject to intellectual property rights. This includes, without limitation, all copyright, patent, trademark rights and trade names used and/or created during your use of the Platform. Unless otherwise stated, these intellectual property rights are proprietary rights owned by us or our licensors.
7.2 You hereby agree not to infringe any intellectual property rights in relation to the Platform and to indemnify us for all costs, loss and damage arising from any infringement by you of such intellectual property rights. You are not permitted to modify or remove any indication of an intellectual property right of Kubota and/or a third party on the Platform.
7.3 No part of the Platform may be reproduced or stored by you in any other website or included in any public or private electronic retrieval system or service without our prior written permission.
7.4 The Platform may not be used in connection with any commercial purpose except those that are specifically endorsed or approved by us. We will take appropriate legal action in relation to any illegal or unauthorised use of the Platform.
8. DISCLAIMER AND LIABILITY
8.1 We will make commercially reasonable efforts to ensure that the Platform is available 24 hours a day, but we shall not be liable if for any reason the Platform is unavailable at any time or for any period of time. Access to the Platform may be suspended temporarily and without notice in case of system failure, maintenance, repair and/or for reasons beyond our control. We do not guarantee, represent or warrant that your use of the Platform will be uninterrupted and/or error-free.
8.2 Notwithstanding clause 8.1 of these Terms of Use, the (access to and exploitation of the) Platform as well as any Platform material or Platform services provided by us (which for the avoidance of doubt, does not include any products or services you procure, buy from us or third parties by using the Platform) are provided "as is" and "as available", without any conditions, warranties or other terms of any kind. Accordingly, to the maximum extent permitted by law, we provide you with the Platform on the basis that we exclude all representations, conditions and other terms and expressly disclaim any warranty of any kind, either express or implied, including all implied warranties of satisfactory quality, fitness for a particular purpose, suitability, reliability, timeliness, accuracy, completeness, security, title and non-infringement.
8.3 We do not represent or guarantee that the Platform will be free from loss, attack, corruption, viruses, hacking or other security intrusion, and we disclaim any liability relating thereto. If your use of material on the Platform results in the need for servicing, repair or correction of equipment, software or data, you assume all costs thereof. You shall be responsible for backing up your own data.
8.4 The Platform may contain links to other sites not supported by us. Such links are provided as a convenience to you. The inclusion of any link does not constitute any endorsement, authorization, sponsorship, affiliation, or monitoring by Kubota with respect to such linked site or its owners. Kubota has not verified the accuracy or completeness of any information in such linked sites and makes no representations as to the information contained therein. Accessing any linked sites is at your own risk. Different terms and conditions, privacy notices and/or cookie notices may concern your use of any linked site.
8.5 We reserve the right to change the material on the Platform at any time without notice.
8.6 We are entitled to terminate – for reasons of convenience – the operation of the Platform without any liability arising on our part to pay damages to you. To the extent possible or appropriate, we shall give you prior reasonable notice thereof.
8.7 Nothing in these Terms of Use shall act to exclude or limit our liability for death or personal injury caused by negligence, fraud, misrepresentation as to a fundamental matter or any other liability which may not be excluded or limited by statutory law.
9. INDEMNITY
9.1 By using the Platform, you shall indemnify and hold us, including our directors, officers, employees, affiliates, agents, contractors, and licensors, harmless from and against all liabilities, obligations, claims, damage, loss, costs and expenses (including attorneys’ fees and expenses) arising out of, whether active or passive, your breach of these Terms of Use, your use of the Platform, and/or any action taken by us as part of our investigation of a suspected breach of these Terms of Use.
10. COMPLAINTS PROCEDURE
10.1 If you are not satisfied with the manner in which we perform our services with respect to the Platform, you can submit a complaint to us free of charge via the "Contact Us" page which is available through the Platform. Please note that any complaints or queries concerning the transaction and/or agreement between you and a Seller should be directed at the relevant Seller, for which the contact details will be made available by the Seller.
10.2 Within a reasonable period after receipt of the complaint as referred to in paragraph 1 of this article, a designated employee of Kubota will contact you to discuss the complaint and (try to) achieve a solution. If the complaint has incorrectly been addressed to Kubota, we will direct you to the correct party to address your complaint to, where possible.
11. APPLICABLE LAW AND DISPUTE SETTLEMENT
11.1 These Terms of Use and any action related thereto shall be governed, controlled, interpreted and defined by and under the laws of France, without regard to the conflicts of laws provisions thereof.
11.2 Any disputes that may arise as a result of these Terms of Use shall be submitted to the exclusive jurisdiction of the competent court within the jurisdiction of the Versailles Court of Appeal (France).
12. MISCELLANEOUS
12.1 No failure and/or delay in exercising any right under these Terms of Use shall impair our right to exercise such right(s) or operate as a waiver thereof in whole or in part. No single or partial exercise of any right under these Terms of Use shall prevent any further or other exercise thereof or the exercise of any other right.
12.2 You may not assign or transfer any of your rights or obligations under these Terms of Use unless we have provided our agreement therewith in writing. You agree that we may sub-contract the performance of any of our obligations or may assign all or part of these Terms of Use or any of our rights or obligations hereunder without giving you notice.
12.3 If any term or provision of these Terms of Use are invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other terms or provisions of these Terms of Use or invalidate or render unenforceable such terms or provisions in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, we shall good faith modify these Terms of Use so as to effect the original intent as closely as possible in an acceptable manner, taking into account the considerations leading to invalidity, illegality or unenforceability.
END USER LICENSE AGREEMENT
between
Kverneland Group Mechatronics B.V. ("Licensor")
and
Customer ("Licensee")
Kverneland Group Mechatronics B.V., a Dutch corporation with offices at Hoofdweg 1278, 2153LR Nieuw Vennep, The Netherlands (“Licensor”), is willing to license to you as an individual business (“Licensee”) the licensed software ("Licensed Software") under the terms and conditions indicated below. By downloading, installing and/or activating the Licensed Software, Licensee is bound by the terms and conditions laid down in this End User License Agreement ("Agreement"). Licensor may make available to you certain functionality related to the Licensed Software, which may be accessed through a web browser. This functionality will be provided to you on the basis of software-as-a-service (SaaS). SaaS will be provided to you on separate terms, which shall be provided to you by means of a separate agreement when activating those services.
1. SOFTWARE LICENSE AND TERMS OF USE
1.1 Subject to Licensee’s full and unconditional compliance with its obligations under the Agreement, Licensor hereby grants to Licensee for the term of the right of use ("Term") a time limited, non-exclusive, non-sub licensable license ("License") to install, copy and use the Licensed Software, as well as documentation for one particular device as identified in the order form, for the purpose of his own personal or business use, excluding any distribution of the Licensed Software to third parties.
1.2 The License does not include any right to any source code of the Licensed Software. Except and to the extent allowed by mandatory law, Licensee shall not reverse engineer, disassemble,
decompile and/or make any attempt to discover the source code of the Licensed Software.
1.3 No license is granted, explicitly or implicitly (by estoppel or any other legal doctrine) other than as explicitly stated in this Agreement. Any unlicensed copying, modification and/or distribution of the Licensed Software by Licensee effects immediate termination of the Agreement and thereby all rights granted to Licensee thereunder.
1.4 Licensee is at all times fully responsible for the use of the Licensed Software, and for the conduct of those who gain access to the Licensed Software acquired. Any violation of the terms of this Agreement relating to the use of the License by such person(s) will constitute a breach of this Agreement by Licensee.
1.5 Licensee must comply with all applicable laws, regulations and conditions, including this Agreement, in connection with their use of the Licensed Software. If Licensee does not comply with these conditions, Licensor may (temporarily) deny Licensee access to the Licensed Software.
1.6 In the event of abuse of the Licensed Software, Licensor may terminate this Agreement with immediate effect.
2. INTELLECTUAL PROPERTY RIGHTS
2.1 Licensee hereby acknowledges that the Licensed Software, the source code thereof and other content and material made available to Licensee on the basis of the License (including, without limitation, photographs, graphical images and information) is subject to intellectual property rights. This includes, without limitation, all copyright, patent, trademark rights and trade names used and/or created during your use of the Licensed Software. Unless otherwise stated, these intellectual property rights are proprietary rights owned by Licensor, or by licensors of Licensor.
2.2 Licensee hereby agrees not to infringe any intellectual property rights in relation to the Licensed Software and to indemnify Licensor for all costs, loss and damage arising from any infringement by Licensee of such intellectual property rights. Licensee is not permitted to modify or remove any indication of an intellectual property right of Licensor and/or a third party from the Licensed Software.
2.3 No part of the Licensed Software may be reproduced or stored by Licensee in any other website or included in any public or private electronic retrieval system or service without prior written permission of Licensor.
3. FEES AND PAYMENT TERMS
3.1 Licensee will pay the applicable license fee as further provided for through the order process relating to the License. No valid License will exist until payment has been received by Licensor. Payment method and terms, as well as the manner in which the License will be activated, will be provided as part of the order process.
4. PROCESSING OF PERSONAL DATA
4.1 To the extent the Licensed Software or the SaaS processes personal data, the terms relating thereto shall be contained in a separate policy and/or agreement, which will be provided as and when processing will occur (for example, when such functionality is activated or Licensee acquires access to SaaS).
5. SUPPORT, NO LIABILITY RE SUPPORT
5.1 Licensee is solely responsible for installing, configuring and otherwise using the Licensed Software as well as downloading and installing any updates to the Licensed Software ("Updates"). Licensor is not under any obligation to provide any form of support, except on a reasonable-effort basis as indicated in this article.
5.2 Licensor shall provide Licensee with (digital) documentation accompanying the Licensed Software and any Updates as well as with a reasonable level of support by means of either documentation, e-mail or telephone assistance concerning installation, configuration and other use of the Licensed Software.
5.3 The support obligations for Licensor as set out in this Agreement shall only apply to the extent a valid License is in place and only applies to the latest (updated) version of the Licensed Software.
5.4 If Licensee discovers any material discrepancies between the actual functionality of the Licensed Software and the product specifications of the Licensed Software communicated by Licensor (“Defect”), Licensee shall promptly report such Defect to Licensor. Licensor shall – if reasonably feasible – remedy the Defect. Remedies shall only apply to the latest update of the Licensed Software.
5.5 Licensor shall be under no obligation to remedy any Defects, but may - at its sole discretion – provide an alternative adequate remedy, which shall at most be a refund of a portion of the license fee. No Defect shall give right to any compensation for damage, loss of income or turn-over or any other form of compensation for monetary, material or immaterial loss, unless such exclusion of liability is prohibited by applicable law.
5.6 In case of a reported Defect Licensee undertakes to make a reasonable effort to do what is reasonably necessary for Licensor to be able to reproduce, isolate and correct the Defect, including the provision of all relevant data and information reasonably requested by Licensor for the support. If support through telephone or e-mail assistance is considered insufficient by Licensor to resolve of remedy the Defect, support may – at the sole discretion of Licensor – also be provided on location.
5.7 Licensee shall be liable for Defects attributable to acts or omissions by Licensee, and Licensor shall be entitled to charge reasonable support costs to Licensee in such case. Licensor shall not exercise this right unreasonably.
6. UPDATES
6.1 From time to time and at its sole discretion, Licensor may develop Updates to the Licensed Software. These Updates are: bug fixes, improvements, enhancements, extensions, additions or other modifications of the Licensed Software.
6.2 Licensee can check the availability of Updates online. If Updates are available, Licensee can download these free of charge.
6.3 From time to time and at its sole discretion, Licensor will develop new and improved versions of the Licensed Software. The new versions are NOT free of charge. In case Licensee wants to install a particular new version, Licensee will have the possibility to obtain a license for this version through the designated sales channels. New versions can be recognized by a new major version number.
6.4 Upon obtaining a license for a new version of the Licensed Software, the terms and conditions of this Agreement shall apply to any of these new versions, unless otherwise specified by Licensor.
7. WARRANTIES
7.1 Licensor warrants that the Licensed Software does not contain any material Defects. This warranty is valid for twelve months after Licensee has first acquired the Licensed Software.
7.2 Licensor warrants that the Licensed Software does not include any viruses, Trojan horses, logic bombs or other malicious code.
7.3 The foregoing warranties are in lieu of all other warranties, express or implied, including but not limited to, implied warranties of fitness for a particular purpose, warranties of merchantability or noninfringement of third party rights, including intellectual property rights. Excepting the warranty expressly acknowledged hereunder and to the fullest extent permitted by law, Licensor hereby disclaims and Licensee hereby waives all other warranties, express or implied, including but not limited to all implied warranties of fitness for a particular purpose, all implied warranties of merchantability and noninfringement of third party rights, including intellectual property rights.
7.4 Licensor’s sole obligation with respect to a breach of any of the warranties above shall be to investigate and attempt to repair or replace the offending portions of the Licensed Software. Licensor cannot guarantee that such repair or replacement is possible.
8. LIMITATION OF LIABILITY
8.1 Any liability of Licensor for consequential, special, punitive and/or incidental damages, including loss of profits or fines imposed by regulatory bodies, arising out of or in connection with the agreement, even if advised of the possibility of such damages, is excluded, except with respect to damages incurred as a result of the gross negligence or willful misconduct of Licensor.
8.2 Liability shall in all cases be limited to the amount Licensee has paid for acquiring the License.
8.3 No liability shall exist for damage that has not been reported to Licensor in writing within thirty days of its occurrence, or for damage where Licensee failed to take appropriate measures to limit such damage. In any case, Licensee may not bring an action, regardless of cause or form, arising out of or related to this Agreement more than one year after the date of discovery of the cause of action, or the date the cause of action should reasonably have been known to Licensee.
8.4 Licensee shall release, defend, indemnify and hold harmless Licensor from and against any claims, damages and liability arising from use of the Licensed Software by Licensee and/or any other persons who have had access to the Licensed Software acquired.
8.5 Neither party will be bound to comply with any obligation if the party is prevented from doing so through force majeure, and no liability for any damage shall exist in such an event. Force majeure will include any situation that occurred beyond the power of Licensor, and in any case any inability for Licensor to perform any part of this agreement which is attributable to Licensor’s suppliers or the weather (e.g. the functionality of the Licensed Software is affected by weather conditions).
9. TERM OF THE AGREEMENT
9.1 The Agreement is terminated automatically when Licensee fails to fulfill its obligations relating to payment as described under article 3 of this Agreement.
9.2 Either party may terminate this Agreement in whole or in part with immediate effect by written notice if the other party:
(i) commits a material breach of the Agreement which is capable of remedy and which is not remedied within thirty (30) days of written notice from the terminating party requiring it to be remedied;
(ii) commits a material breach of the Agreement which is not capable of remedy.
9.3 Licensor has the right to terminate the Agreement in whole or in part by notice in writing with immediate effect if Licensee suffers an insolvency event.
10. ASSIGNMENT OF AGREEMENT
10.1 This Agreement may be assigned or otherwise transferred by Licensor without the consent of Licensee, and Licensor assures Licensee that the party to which this Agreement is assigned shall comply with the terms of this Agreement.
10.2 Licensee may only assign or transfer this Agreement with prior written approval of Licensor. To this end, Licensee shall inform Licensor in writing of such intended assignment or transfer. Licensor shall cooperate and provide written consent to an assignment or transfer of this Agreement by Licensee to a third party or affiliate of Licensee, if such assignment or transfer is part of the transfer of the complete business of Licensee to an affiliate of Licensee or a third party that succeeds to substantially all of the Licensee's business, provided that Licensor has the right to refuse such cooperation on reasonable grounds.
11. APPLICABLE LAW
11.1 This Agreement shall be governed by and construed in accordance with the laws of the Netherlands without consideration of its conflict of law provisions.
11.2 Licensee hereby consents and submits to the jurisdiction and forum of the competent courts of the principal place of business of Licensor.
11.3 The parties agree that the English language is a proper and acceptable language for both and waive any rights they may have under any legal provision to request a translation of this Agreement into any other language.
12. MISCELLANEOUS TERMS
12.1 This Agreement constitutes the entire agreement between the parties and supersedes any and
all previous representations, understandings, discussions, or agreements between Licensee and Licensor as to the subject matter hereof. This Agreement may only be modified by a written document executed by the parties.
12.2 The parties enter into the Agreement as independent contractors. No employment relationship is created by the Agreement between Licensor and Licensee or any of their respective employees or agents.
12.3 In the event that any one or more of the provisions of this Agreement is determined by a court of competent jurisdiction to be invalid, unenforceable, or illegal, such invalidity, unenforceability, or illegality shall not affect any other provisions of this Agreement, and the Agreement shall be construed as if the challenged provision had never been contained herein.
12.4 The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision.
12.5 The section headings in this Agreement are for convenience only and shall not be used in construing or interpreting any of its terms.
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