Agreement
BY SIGNING OR OTHERWISE ACCEPTING A QUOTE REFERENCING THESE TERMS, CLICKING YOUR ASSENT TO THESE TERMS, ACCESSING THE SYSTEM, OR OTHERWISE USING A VEHICLE ENABLED WITH THE PRODUCT, YOU AGREE TO THE TERMS OF THIS AGREEMENT (“Agreement”) BETWEEN YOU AND TOYOTA MATERIAL HANDLING, INC. (“Company” “we”, “us” or “our”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SYSTEM AND MAY CHOOSE TO DEACTIVATE THE PRODUCT BY CONTACTING COMPANY AS PROVIDED IN SECTION 11 BELOW. YOU UNDERSTAND THAT THE SYSTEM WILL STILL INTERACT WITH THE PRODUCT FOR SUPPORT, UPDATES, AND HEALTH OF THE VEHICLE REGARDLESS OF DEACTIVATION.
This Agreement governs your access and use of the MyInsights platform, including associated hardware products, software and services (the “System”). THIS AGREEMENT REQUIRES YOU TO ARBITRATE DISPUTES, WAIVES YOUR RIGHT TO A JURY TRIAL, AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF – PLEASE READ IT CAREFULLY.
RECITALS
The System is an integrated hardware/software platform that includes cloud-based functionality hosted from our servers (or those of our hosting provider) and made available to users by means of the Internet. The System includes: (a) each hardware device that is installed in the vehicles you manage through the System (“Vehicles”) in connection with collecting, recording and processing information about the operation of such vehicles, including sensors, processors, and modems (each, a “Product”); (b) software relating to the System, including software installed on or embedded within Products as well as apps that may be downloaded to your computer or mobile device (and any updates thereto) (each, “Software”); (c) the System website located at https://www.toyotaforklift.com/myinsights and other websites associated with the System (each a “Site”), and (d) the services and functionality available through the Products, Software and Sites (collectively, the “Services”). A Product or other parts of the System may collect sensor, error message, GPS location, and other data (“Product Data”) in connection with the use of your Vehicles, including data about the operators and renters of such Vehicles or users of the System (each, a “User”). This Product Data may be collected using the cellular network of a third-party telecommunications provider (such as Verizon Wireless®) (the “Cellular Provider”). We are willing to provide you with access to the System, subject to the terms and conditions hereof.
The parties agree as follows:
1. SCOPE OF AGREEMENT. The System collects Product Data through Products installed on your Vehicles at the time of their manufacture, and you acknowledge and agree that Product Data will be collected in accordance with this Agreement unless and until you initiate deactivation of the Product as provided Section 11. This Agreement applies to use of the System and does not affect any other rights you may have obtained in Vehicles you purchase or lease from Toyota Material Handling, Inc. or one of its dealers (“Dealer”) or under your agreement with Dealer. We have no obligation hereunder with respect to your Vehicles except as otherwise expressly provided herein, and you agree to hold us harmless from any claims in connection therewith in accordance with Section 22.
2. CHANGES TO THIS AGREEMENT. Company may from time to time modify the terms of this Agreement by giving notice to you (either online via the System or via email or other method permitted in this Agreement). Such notice may include posting a revised version of this Agreement on our website at https://www.toyotaforklift.com/myinsights-legal --please check that web page periodically for changes. If any modification affects you in a materially adverse manner, you may, as your sole remedy, terminate this Agreement in accordance with Section 11, and we will refund, if any, any unearned, prepaid, periodic usage Fees (for the purpose of clarity such Fees do not include the upfront cost of any Product or Vehicle). If you do not exercise your termination right you will be deemed to have accepted the modification and YOUR USE OF A VEHICLE ENABLED WITH THE PRODUCT, OR ANY OTHER PART OF THE SYSTEM, AFTER MODIFIED TERMS ARE POSTED OR OTHER CHANGE NOTIFICATION IS GIVEN SIGNIFIES YOUR ACCEPTANCE OF THE CHANGED TERMS.
3. ACCESS TO SYSTEM. You will need to register and create an account to access the System (an “Account”). Your Account is intended for use only by you and your authorized Users. You are not allowed to disclose your account credentials to third-parties or permit others to use your usernames/passwords. You are responsible for maintaining the confidentiality of your usernames and passwords, and for all activities that occur under your Account. You must notify us immediately of any breach of security or unauthorized use of your Account. You are responsible for furnishing, at your expense, any computer, networking, telecommunications and other equipment necessary for you and your Users to access the Internet and connect to the System (other than any cellular data connection for the Product provided under this Agreement). We will not be responsible for equipment or network outages or problems relating to your premises or infrastructure.
4. GRANT OF LICENSE. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, non-transferable license to access and use the System only in accordance with and for the purposes set forth in this Agreement, including applicable Service Terms (as defined in Section 8). Except as otherwise specifically provided herein, redistribution, retransmission, modification, framing, republication or commercial exploitation of the System or its contents are expressly prohibited without our written consent. You agree you will impose only that load on our servers that is necessary for your use of the System in the ordinary course as contemplated in this Agreement. You agree to use the System in accordance with any user manual provided by the System or included with a Product or Service (a “User Manual”), and you agree to abide by any warnings, notices and limitations set forth in such User Manual. You agree to use the System and Data only in the United States of America and Canada as permitted in this Agreement and applicable law.
5. HARDWARE AND VEHICLE USAGE. Your license to use Software embedded or installed on a Product (“Product Software”) only permits you to execute one copy of such Product Software, in executable form only, solely on the Product that you own or control and solely in conjunction with the ordinary use of the Product for your Vehicle in which it is installed. We will have no responsibility to provide maintenance or support services with respect to a Vehicle, Product or Product Software except as expressly provided herein, or as we otherwise agree in writing pursuant to a separate agreement.
6. RECORDINGS AND COLLECTION OF DATA. All Product Data is collected “AS IS” and “AS AVAILABLE” and we cannot guarantee its accuracy or completeness. YOU AGREE TO PROVIDE ADEQUATE NOTICE REGARDING USE OF THE SYSTEM, COLLECTION OF PRODUCT DATA, AND YOUR USES OF SUCH DATA AND SYSTEM DATA TO ANY EMPLOYEE, RENTER, USER OR OPERATOR OF YOUR VEHICLES (INCLUDING NOTICE REGARDING LOCATION TRACKING BY THE SYSTEM) OR YOU WILL DEACTIVATE THE SYSTEM WITH RESPECT TO VEHICLES OPERATED BY PERSONS WHO HAVE NOT RECEIVED ADEQUATE NOTICE OR GIVEN CONSENT. You will not record or track the location of any individual in violation of applicable law and will only use the System and Data (as defined in Section 7), and provide Product Data, with the informed consent of all applicable Users of your Vehicles. To the maximum extent permitted by law, you will indemnify, defend and hold Company and its affiliates and representatives harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) (collectively “Losses”) arising from or relating to any breach by you of your obligations under this Section or related privacy claims.
7. RESTRICTIONS. You agree not to, and you will not permit others to, (a) license, sell, lease, assign, distribute, host, disclose, or otherwise commercially exploit or make available the System except as permitted herein; (b) use any part of the System or the Product Data or System Data (as defined in Section 18) (collectively, “Data”) in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (c) copy or use the System or Data for any illicit, improper or unlawful purpose or to harass, stalk or harm any person; (d) use the System to send or store infringing or unlawful material; (e) access the System or Data for the purpose of building a competitive product or service or copying its features, content or user interface, including by screen scraping; (f) attempt to bypass the security infrastructure used by the System or a Product; (g) infect or introduce any spyware or any other form malicious software into the System; (h) remove or alter any trademark, logo, copyright or other proprietary notices or legends in the System; (i) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the System (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact us and give us the opportunity to create such changes as are needed for interoperability purposes, and provided that the foregoing shall not be construed to prohibit you from configuring the System to the extent permitted by the System’s standard user interface); or (j) access or use the System by means of any interfacing program, script, automated program, electronic agent or “bot” except as authorized in writing by us.
8. ADDITIONAL SERVICES AND TERMS. When you use or sign up for certain Services you will also be subject to the limitations, restrictions and terms applicable to that Service of which you are notified, including user limits and data limits (collectively “Service Terms”). Service Terms established by us are hereby incorporated into this Agreement, and this Agreement will control to the extent of any conflict with such terms unless the Service Terms expressly state that they are overriding the conflicting term of this Agreement. You hereby agree to abide by all applicable Service Terms of us and any third-party associated with Services you have selected. Company shall be considered a third-party beneficiary of any Service Terms established by a third-party, and we shall be entitled to enforce such Service Terms against you as if such terms were part of this Agreement. Any violation by you of any Service Terms shall constitute a breach of this Agreement. In no event will any third-party Service Terms modify or limit any of your obligations or liabilities to Company hereunder. If you submit payment card data, it may be submitted directly to the payment processing provider (and not to us) and any applicable terms imposed by such provider shall be considered Service Terms with respect to such data transfer and payment processing. If you download a Software app from an App Store, you are subject to any terms of use of that App Store (e.g., in the case of an System iOS App, the Apple® Licensed Application End User License Agreement terms constitute Service Terms for such Software app). Any terms of use applicable to a Cellular Provider’s cellular network of which you are notified shall constitute Service Terms with respect to use of that network. YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS NOT A PARTY TO OR BOUND BY THE SERVICE TERMS OF ANY THIRD-PARTY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW SHALL NOT BE LIABLE FOR ANY VIOLATION OF SUCH SERVICE TERMS.
9. AVAILABILITY. Company will use commercially reasonable efforts to cause the System to be continually accessible to you, except for scheduled maintenance and required repairs, and except for any interruption due to any Force Majeure Event (as defined in Section 23). IN THE EVENT OF ANY INTERRUPTION IN OR INABILITY TO ACCESS TO THE SYSTEM, YOUR SOLE AND EXCLUSIVE REMEDY (AND OUR SOLE AND EXCLUSIVE LIABILITY THEREFOR) SHALL BE FOR COMPANY TO USE COMMERCIALLY REASONABLE EFFORTS TO RESUME ACCESS TO THE SYSTEM AS PROMPTLY AS PRACTICABLE, AND WE SHALL NOT HAVE ANY LIABILITY IN CONNECTION THEREWITH FOR ANY MONEY DAMAGES RESULTING FROM ANY SUCH CLAIMS. In no event will we have any responsibility for your inability to access a Service due to issues arising from the hardware, systems, environment or networks of you or third-parties (including a Cellular Provider).
10. AUTOMATIC SOFTWARE UPDATES. Company may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the System or related Services (“Updates”). Updates may be automatically installed without providing any additional notice or receiving any additional consent from you; provided that if the System provides functionality that permits automatic Updates to be turned off then Updates may be delayed using such functionality. You acknowledge that you may be required to install certain Updates in order to continue to use a Product or the System following a change to the System. If you do not want Updates, your remedy is to terminate this Agreement (either in whole or in part if permitted hereunder and only certain Services are affected) or stop using the affected parts of the System.
11. TERM AND TERMINATION. This Agreement shall be effective as of the first date that you receive access to a Vehicle incorporating a Product or to the System and shall remain in effect indefinitely as long as you own or otherwise have access to such Vehicle, Product or System. . Either party may terminate this Agreement at any time by giving the other party fifteen (15) days’ written notice (in the event of such a termination by us, we will repay any unearned Fees pre-paid by you for the System). Either party may also terminate this Agreement if the other party materially breaches any provision of this Agreement and such breach remains uncured for twenty (20) days after notice thereof. The license granted in this Agreement with respect to Product Software shall continue for as long as you own the Product, unless this Agreement is terminated as provided hereunder. Upon expiration or termination of this Agreement, the rights and license granted under this Agreement shall immediately cease, and you and your Users will immediately cease use of the System and will not access it for any purpose. Your access to Data via the System will terminate as of any such termination. We reserve the right in our discretion to delete any Data beginning 30 days after termination of this Agreement, but may retain Your Data pursuant to the license granted in Section 15, subject to applicable law. The provisions of Sections 6, 7, 8, 11, 13, 15, 16, 18, 19, 20, 21, 22, 25, 28, 29 and 30 and any other provisions contained herein which by their nature or effect are required or intended to be observed after termination of this Agreement will survive the termination and remain binding. If you no longer wish to have your Product Data collected, you must request deactivation by contacting us using the contact information available at https://www.toyotaforklift.com/myinsights-legal. Deactivation will be effectuated within a commercially reasonably time after the request is received. Upon deactivation, the collection of Product Data will stop but (a) Your Data previously collected will continue to be licensed per section 15, and (b) the System will still communicate for support, updates and health of the Vehicle.
12. FEES. Fees may apply to some Services, parts, functionality or versions of the System (“Fees”), including in connection with some additional Service Terms. If Fees apply then you will be presented with or otherwise notified of the schedule of applicable fees and rates (either online via the System or via email or other method permitted in this Agreement) (each, a “Fee Schedule” which are hereby incorporated herein). The applicable term for a Service, including any renewal terms, shall be as set forth in the Fee Schedule. In the event of a conflict between the terms of this Agreement and the specific terms of a Fee Schedule, the terms of the Fee Schedule will control. If we notify you of an updated Fee Schedule, the updated version will become effective as the Fee Schedule as of the start of the next renewal term for an affected Service unless you terminate such Service prior to such renewal. Fees accrue monthly unless otherwise specified in a Fee Schedule.
13. PAYMENT. You agree to pay any applicable Fees in U.S. dollars in accordance with the payment terms set forth in the Fee Schedule (or net 30 from date of our invoice if no payment terms are specified). Overdue invoices are subject to interest of 1.5% (or the maximum allowed by law, whichever is less) for each month or part of a month past due. If Fees remain unpaid more than 10 days after the applicable due date: (a) we will have the right to suspend your access to the System; and/or (b) treat such failure to pay as a material breach and/or seek legal remedies, including sending the unpaid amount to collections (you shall be responsible for paying all costs of collection, including any reasonable attorney fees). Fees do not include any sales, use, excise, import or export, value-added or similar tax or interest, and you will be responsible for paying any such amounts.
14. SUPPORT. We will provide a telephone number and/or email address to enable reporting of technical and operational issues with the System during the hours of 9:00 AM (EST) and 5:00 PM (EST), Monday through Friday, excluding days designated as holidays observed by us. Contact information for support is available at https://www.toyotaforklift.com/myinsights. We will have no responsibility to provide maintenance or support services with respect to a Vehicle.
15. PRODUCT DATA. You are solely responsible for the data, information and other content that you or your Users make available via, on or to the System, including Product Data associated with your Vehicles (collectively, “Data”). You represent and warrant that (a) you have proper right and authorization to provide, distribute and use Data and to authorize Company and users of the System to use Data as necessary to operate the System; (b) you have the authority or have obtained the necessary permission to record and transmit Data for use with the System as described and contemplated in this Agreement, including the permission of individuals associated with or described in Data, if any; (c) Data does not violate any applicable law, regulation, or proprietary right; and (d) Data is not infringing, illegal or otherwise improper. Company will assist law-enforcement officials investigating illegal activity or violations of this Agreement. You hereby grant Company and its affiliates and designees the irrevocable, perpetual, non-exclusive right to use, disclose and distribute Data in connection with the operation of the System for product improvement, support, operational and marketing purposes and to use and disclose Data in accordance with Section 16. You represent and warrant that you have the authority to grant the foregoing license to us.
16. DATA USE AND PRIVACY POLICY. “Personal Data” means any Data that can be used to identify a specific individual. “Anonymized Data” means Data that is in an anonymous or de-identified form that does not specifically identify you or an individual, including data that has been aggregated from multiple sources as well as indicators, metrics, analytics or scores based on such aggregated data. Anonymized Data may identify a data source by category or industry classification at a level that does not enable you any specific individual to be determined as the source. Personal Data is subject to Company’s Privacy Policy https://www.toyotaforklift.com/myinsights-legal . You agree that Company may freely use Anonymized Data or statistical data relating to the System or its usage for its own business purposes (including for analysis, marketing, product improvement or promotional purposes) and may provide Anonymized Data to third-parties for such purposes, without any compensation to you, and you hereby grant us any necessary rights to do so. Company reserves the right to disclose without notice to you any information in our possession if we believe we are required to do so by law, to protect or defend our rights or property, or to respond to an emergency. You understand and agree that Data, including Personal Data, provided in connection with the System may be transferred across national boundaries and may be stored and processed in any of the countries in which Company or its service providers maintain operations, including, without limitation, the United States of America and Canada, and you consent to the transfer of Data to such jurisdictions. In the event Company or its assets are sold, merged or otherwise involved in a corporate transaction, we may transfer Data to our successor without your consent.
17. DATA SECURITY. We will take commercially reasonable precautions to prevent the loss of or alteration to Personal Data stored in the System. In addition, we will establish and follow commercially reasonable security measures designed to prevent unauthorized access to such data, and maintain appropriate security measures to protect such data consistent with applicable federal and state laws and industry standards. However, we are not responsible for any third-party networks or systems over which Data is transmitted including Wi-Fi or cellular networks operated by a Cellular Provider or other carriers. We cannot guarantee that unauthorized third-parties will never be able to defeat our security measures or to use Data or personal information for improper purposes. If we become aware of a security breach involving Personal Data on our systems, Company will make all legally required disclosures, consistent with our ability to determine the scope of the breach, our need to restore the integrity of the System, and the needs of law enforcement.
18. RIGHTS IN SYSTEM. “System Data” means the content, data, information, analysis and output provided by the System, but does not include Data as provided by you and your Users. You acknowledge that System Data is proprietary to us, and you agree not to use or disclose it except as expressly permitted in this Agreement. Title to and ownership of the System (and related documentation), System Data, any materials or other derivative work based on or derived therefrom or improvements thereto, and all copyrights and associated intellectual property rights, shall belong to Company or its affiliates. During the term of this Agreement and subject to the terms herein, Company grants to you a non-exclusive right to access and use System Data solely for internal purposes (which shall not include distribution of System Data to persons outside your organization), including for internal business improvement, support, and operational purposes. Software, including Product Software, and all copies thereof, is licensed to you, not sold, under this Agreement. There are no implied licenses in this Agreement. You acknowledge that the code, documentation, designs, technical info and other materials related to the System that are made available to you (“System Materials”), contain trade secrets of Company. You agree to take measures to protect the confidentiality of the System Materials that, in the aggregate, are no less protective than those measures you use to protect the confidentiality of your own confidential information (in no event, less than commercially reasonable measures). You agree not to disclose the System Materials to anyone other than your Users and personnel who have a legitimate need to know such information in accordance with the license granted in this Agreement. You agree to use the System Materials only in connection with your use of the System as authorized herein.
19. FEEDBACK. You hereby grant us and our affiliates and designees an unrestricted, perpetual, irrevocable, transferable license to use any all suggestions or feedback provided by you with respect to the System (“Feedback”). Company shall be entitled to use, copy, modify, publish, or redistribute such Feedback for any purpose and in any way without any compensation or obligation to you.
20. DISCLAIMERS
(a) You acknowledge that the System may use push notifications to send certain alerts or notices. COMPANY SHALL NOT BE LIABLE FOR THE TRANSMISSION OF, OR ERRORS OR FAILURES IN TRANSMISSION OF, ANY PUSH NOTIFICATION OR ALERT, INCLUDING ANY LIABILITY FOR ANY UNWANTED, MISSED OR IGNORED PUSH NOTIFICATIONS OR ALERTS.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE PROVIDE THE SYSTEM AND ASSOCIATED DATA ON AN “AS-IS” AND “AS AVAILABLE” BASIS “WITH ALL FAULTS,” AND WE DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. WE DO NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE SYSTEM OR DATA. WE MAKE NO WARRANTY THAT ANY PART OF THE SYSTEM WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. USE OF THE SYSTEM AND DATA IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND WE DISCLAIM) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR VEHICLES OR ANY PRODUCT, COMPUTER, OR MOBILE DEVICE, RESULTING FROM YOUR USE OF THE SYSTEM OR DATA. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS ARE LIMITED IN DURATION TO THE DURATION OF THE APPLICABLE LIMITED WARRANTY (OR TO 30 DAYS FROM THE DATE OF FIRST ACCESS TO THE SYSTEM IF NO LIMITED WARRANTY APPLIES). SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state.
21. LIMITATIONS OF LIABILITY
(a) Nothing in this Agreement including this Section 21 shall attempt to exclude liability that cannot be excluded under applicable law. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) COMPANY AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE SYSTEM OR DATA, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) COMPANY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE SYSTEM AND DATA, WHETHER IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO US FOR THE PART OF THE SYSTEM AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. WE DISCLAIM ALL LIABILITY OF ANY KIND ARISING FROM THE ACTS OR OMISSIONS OF OUR LICENSORS, RESELLERS, PARTNERS, AND SUPPLIERS (INCLUDING THE CELLULAR PROVIDER AND ANY DEALER) OR THEIR SYSTEMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR OTHER RIGHTS, SO THE FOREGOING PROVISIONS OF THIS AGREEMENT MAY NOT APPLY TO YOU. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
(b) YOU ACKNOWLEDGE THAT THE SYSTEM IS NOT INTENDED AS A REPLACEMENT FOR SAFE, CAREFUL AND DILIGENT DRIVING OR EQUIPMENT USAGE.
(c) The Sites and System may contain links to third-party websites, systems and services which are the sole responsibility of such independent third-parties, and use thereof is solely at your own risk. WE HAVE NO CONTROL OVER THE CONTENT OR PRIVACY POLICIES OF THIRD-PARTY WEBSITES, SYSTEMS OR SERVICES, AND WE ARE NOT RESPONSIBLE FOR (AND UNDER NO CIRCUMSTANCES SHALL BE LIABLE FOR) THE CONTENTS, OPERATION OR RELIABILITY OF ANY SUCH SITES, SYSTEMS OR SERVICES OR THEIR USE OF YOUR DATA.
22. INDEMNITY
(a) To the maximum extent permitted by law, in addition to the other indemnities provided in this Agreement, you agree to indemnify, defend and hold harmless Company and its affiliates, providers and representatives and their personnel, officers, directors from any claims relating to: (1) your Account; (2) Data; (3) your Users; (4) your breach of this Agreement or of your obligations under this Agreement, including Section 6; (5) your reliance on, use of, or misuse of, or inability to use any part of the System or Data; (6) your failure to follow any warning, notice or limitation in a User Manual, (7) your violation of any applicable law or regulation or of any rights of another person or entity; (8) your negligence, acts or omissions, or (9) any liability disclaimed by us in this Agreement or a User Manual. You agree to hold us and our affiliates, providers and representatives harmless from any Losses incurred in connection with the foregoing claims.
(b) Except to the extent you have agreed to indemnify Company under Section 22(a), Company shall indemnify, defend and hold harmless you and your affiliates and representatives and their personnel, officers, directors from any third-party claims (and related Losses) that the System infringes any copyright, patent, trademark, trade secret or other intellectual property right of any third-party (an “Infringement Claim”); provided, however, that we will have no such indemnification obligation to the extent that any Infringement Claim is based on or related to (a) Data, (b) use of the System in a manner not specified in relevant documentation or in violation of this Agreement, or (c) the combination of the System with other programs, software, data, hardware, services or materials not provided or approved by us. If your use of the System is enjoined by reason of an Infringement Claim, Company’s sole obligation shall be to either (i) procure the right for you to continue using the System, or (ii) replace or modify the components of the System subject to the claim with non-infringing components of substantially equivalent functionality, and if neither (i) nor (ii) are available on a commercially reasonable basis, we will refund any unearned, prepaid Fees, and this Agreement shall terminate without any further liability of Company. The foregoing states the entire liability of Company with respect to any Infringement Claim, and you hereby expressly waive any other liabilities.
(c) A party seeking indemnification (an “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”) upon the assertion of any claim that is or may be covered by the indemnities in this Agreement; provided, that an Indemnifying Party will not be relieved of its indemnity obligations for the Indemnified Party’s failure to notify unless it can demonstrate that it was substantially prejudiced by such failure. The Indemnifying Party shall have the authority to assume the sole defense through its own counsel of any matter for which it acknowledges its indemnification obligations hereunder and to compromise or settle any suits so far as such suits may be compromised or settled without prejudice to any rights or interests of the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party in such defense in all reasonable respects, at no cost to the Indemnified Party, provided that the Indemnified Party may be represented by and actively participate through its own counsel in any suit or proceeding being controlled by the Indemnified Party at the Indemnified Party’s expense. We reserve the right, at our expense, to assume the defense and control of any matter subject to indemnification by you.
23. FORCE MAJEURE. Neither party shall be responsible for delays or failures in performance (other than payment obligations) resulting from acts or circumstances beyond the control of such party, including without limitation acts of God, strikes or other labor disputes, riots, acts of war, malfunction of portions of the Internet or another third-party network, governmental regulations promulgated after the effective date of this Agreement, communication line, power or equipment failures, fires or other disasters, and acts of third-parties, including hackers (each a “Force Majeure Event”); provided that such party uses commercially reasonable efforts to, as soon as reasonably practicable, mitigate and correct such failure or delay in performance.
24. EXPORT COMPLIANCE. The System and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, import or otherwise access the System from foreign countries, as may be required.
25. GOVERNING LAW & ARBITRATION. PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH COMPANY AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. To the fullest extent permitted by law, this Agreement, and any claim, dispute, action, cause of action, issue, or request for relief relating to this Agreement, the System or Data, will be (a) governed by the laws of Delaware, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction; and (b) will be resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), rather than in court (except that you may assert claims in small claims court if your claims qualify, and you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights). The Federal Arbitration Act and federal arbitration law apply to the enforcement of this agreement to arbitrate. TO THE FULLEST EXTENT PERMITTED BY LAW WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. This arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. If for any reason a claim proceeds in court (other than small claims court) rather than in arbitration we each waive any right to a jury trial and irrevocably consent to the exclusive jurisdiction of the courts located in Indiana in connection with any such action.
26. ASSIGNMENT. In connection with your authorized sale or transfer of one of your Vehicles you shall assign this Agreement in part with respect to the specific Product installed in the transferred Vehicle (and related Product Software), and you agree to notify any new owner of the Vehicle of the existence and terms of this Agreement and its applicability to the transferee. Upon such transfer you shall no longer have any rights to use the System. Except for the foregoing, neither the rights nor the obligations arising under this Agreement are assignable by you, and any such attempted assignment shall be void and without effect. Company may assign, delegate or transfer its rights and obligations under this Agreement to another party that has the appropriate means for fulfilling such rights or obligations without prior written notice to, or consent of, you. Subject to the foregoing, this Agreement shall bind each party and its permitted successors and assigns.
27. NOTICES. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, transmitted via e-mail, or mailed by certified mail (postage prepaid, return receipt requested), and addressed (a) to us at 5559 Inwood Drive, Columbus, IN 47201, Attn: General Counsel; or (b) to you using the contact information that you have supplied to us in connection with your Account or use of the System. In addition, we may provide notice to you electronically via the System or by posting the notice on our website at https://www.toyotaforklift.com/myinsights – please check our website periodically for notices.
28. FOR U.S. GOVERNMENT END USERS. Software, including Product Software, is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
29. SEVERABILITY AND WAIVER. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers by Company will be effective only if in writing. Any waiver or failure by Company to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
30. GENERAL. The parties are independent contractors. This Agreement shall not cause the parties to be principal and agent, partners, joint venturers, or employer and employee. You acknowledge that the System contains valuable trade secrets and proprietary information of Company, that any actual or threatened breach of Section 4 or 7 of this Agreement will constitute immediate, irreparable harm to us for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. No amendment to this Agreement will be valid unless it is in writing signed by the parties. This Agreement and its incorporated documents constitutes the entire, full and complete agreement between the parties concerning the subject matter of this Agreement and supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties, and this Agreement prevails over any conflicting or additional terms of any quote, order, purchase order, acknowledgment, or other communication between the parties relating to its subject matter. Agreement “including” means “including but not limited to” and is exemplary rather than exclusive.
MyInsights Contact Information:
Email: customerservice@toyotatmh.com
Phone: 1.844.965.0182