CNH ONLINE TERMS AND CONDITIONS
Last revised November 8, 2019
These terms and conditions of use (“Terms of Use”) govern your use of our online interfaces and properties (e.g., websites and mobile applications) owned and controlled by CNH Industrial Aftermarket Solutions (“CNHI”), including the [www.mycnhistore.com] website (collectively, the “Site”). Your compliance with these Terms of Use is a condition to your use of the Site. If you do not agree to be bound by the Terms of Use, promptly exit this Site. Please also consult our Privacy Policy for a description of our privacy practices and policies.
Binding Arbitration. These Terms of Use provide that all disputes between you and CNHI that in any way relate to these Terms of Use or your use of the Site will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Use (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution; Arbitration Agreement for the details regarding your agreement to arbitrate any disputes with CNHI.
1. Ownership of the Site
All pages within this Site and any material made available for download are the property of CNHI, or its licensors or suppliers, as applicable. The Site is protected by United States and international copyright and trademark laws. The contents of the Site, including without limitation all data, files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Site (“Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized by these Terms of Use or otherwise approved in writing by CNHI. You may not frame or utilize framing techniques to enclose, or deep link to, any name, trademarks, service marks, logo, Content or other proprietary information (including images, text, page layout, or form) of CNHI without our express written consent.
2. Site Access, Security and Restrictions; Passwords
You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Site or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law.
You may not use any scraper, crawler, spider, robot, or other automated means of any kind to access or copy data on the Site, deep-link to any feature or content on the Site, bypass our robot exclusion headers, or other measures we may use to prevent or restrict access to the Site.
Violations of system or network security may result in civil or criminal liability. CNHI will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Site or any activity being conducted on this Site.
In the event access to the Site or a portion thereof is limited requiring a user ID and password (“Protected Areas”), you agree to access Protected Areas using only your user ID and password as provided to you by CNHI. You agree to protect the confidentiality of your user ID and password, and not to share or disclose your user ID or password to any third party. You agree that you are fully responsible for all activity occurring under your user ID. Your access to the Site may be revoked by CNHI at any time with or without cause. You agree to defend, indemnify and hold CNHI harmless from and against all third party claims, damages, and expenses (including reasonable attorneys’ fees) against or incurred by CNHI arising out of your breach of these Terms of Use or violation of applicable law, your use or access of the Site, or access by anyone accessing the Site using your user ID and password.
3. Accuracy and Integrity of Information; Colors
Although CNHI attempts to ensure the integrity and accuracy of the Site, it makes no representations, warranties, or guarantees whatsoever as to the correctness or accuracy of the Site and Content thereon. It is possible that the Site could include typographical errors, inaccuracies, or other errors, and that unauthorized additions, deletions, and alterations could be made to the Site by third parties.In the event that an inaccuracy arises, please inform CNHI so that it can be corrected. CNHI reserves the right to unilaterally correct any inaccuracies on the Site without notice. Information contained on the Site may be changed or updated without notice. Additionally, CNHI shall have no responsibility or liability for information or Content posted to the Site from any non-CNHI affiliated third party.
We have made significant efforts to accurately display the colors of our products that appear on the Site. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.
4. Typographical Errors and Incorrect Pricing
In the event a product or service is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product / service listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we shall promptly issue a credit to your credit or debit card account in the amount of the incorrect price.
5. Order Acceptance
We reserve the right, at our sole discretion, to refuse or cancel any order for any reason. Your account may also be restricted or terminated for any reason, at our sole discretion. Some situations that may result in your order being canceled include limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or problems identified by our credit and fraud avoidance department. We may also require additional verifications or information before accepting any order. We will contact you if all or any portion of your order is canceled or if additional information is required to accept your order. If your order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge.
6. Quantity Limits and Dealer Sales
CNHI reserves the right, at our sole discretion, to limit the quantity of items purchased per person, per household or per order. These restrictions may be applicable to orders placed by the same account, the same credit card, and also to orders that use the same billing or shipping address. We will provide notification to the customer should such limits be applied. Please note that certain orders constitute improper use of CNHI and its services. We reserve the right, at our sole discretion, to refuse or cancel any order for any reason. Your account may also be restricted or terminated for any reason, at our sole discretion. CNHI also reserves the right, at our sole discretion, to prohibit sales to dealers or resellers. For purposes of these Terms of Use, reselling shall be defined as purchasing or intending to purchase any products from CNHI for the purpose of engaging in a commercial sale of that same products with a third party.
7. Online Payments
You can purchase products or services on the Site. We accept credit and debit cards issued by U.S. and Canadian banks. If a credit card account is being used for a transaction, CNHI may obtain preapproval for an amount up to the amount of the payment. If you enroll to make recurring payments automatically, all charges and fees will be billed to the credit card you designate during the setup process. If you want to designate a different credit card or if there is a change in your credit card, you must change your information online. This may temporarily delay your ability to make online payments while we verify your new payment information.
You represent and warrant that if you are making online payments that (i) any credit card, debit card and bank account information you supply is true, correct and complete, (ii) charges incurred by you will be honored by your credit/debit card company or bank, (iii) you will pay the charges incurred by you in the amounts posted, including any applicable taxes, and (iv) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card and credit card information.
8. Export Policy and Restrictions
You acknowledge that the products and Content which are sold or licensed on the Site, which may include technology and software, are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured or received. By purchasing, downloading or using technology or software from the Site, you agree to abide by the applicable laws, rules and regulations - including, but not limited to the Export Administration Act and the Arms Export Control Act - and you represent and warrant that you will not transfer, by electronic transmission or otherwise, the software or technology to a foreign national or a foreign destination in violation of the law. By purchasing any products, you agree that you will not use any products, or provide products to any person, who is forbidden from receiving the product under the Export Administration Regulations or any economic sanctions maintained by the U.S. Department of Treasury, U.S. antiboycott regulations, or U.S. economic sanctions, including the export and antiboycott restrictions found in the Export Administration Regulations or the sanctions regulations administered by the U.S. Office of Foreign Assets Control. You shall indemnify and hold harmless CNHI from all claims, demands, damages, costs, fines, penalties, attorneys’ fees, and all other expenses arising from your failure to comply with this provision or applicable export control, antiboycott, or economic sanctions laws and regulations.
9. Links to Other Sites
CNHI makes no representations whatsoever about any other website that you may access through this Site. When you access a non-CNHI website, please understand that it is independent from CNHI, and that CNHI has no control over the content on that website. In addition, a link to a non-CNHI website does not mean that CNHI endorses or accepts any responsibility for the content, or the use, of the linked website. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party websites linked to this Site, you do this entirely at your own risk.
10. Disclaimer of Warranties
CNHI DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED 'AS IS,' WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. CNHI DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE SITE.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE, SITE-RELATED SERVICES, AND LINKED WEBSITES. CNHI DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.
WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD AND DISTRIBUTED BY CNHI ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.
11. Limitation of Liability Regarding Use of Site
CNHI AND ANY THIRD PARTIES MENTIONED ON THIS SITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, OR LINKED WEBSITES IS TO STOP USING THE SITE OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM AGGREGATE LIABILITY OF CNHI TO YOU WITH RESPECT TO YOUR USE OF THIS SITE IS $500 (FIVE HUNDRED DOLLARS).
12. Forward Looking Statements.
The Site may include forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 about securities of an issuer which are located on the Site. To the extent that statements on this Site do not relate to historical or current facts, they constitute forward-looking statements. The words “outlook,” “believes,” “expects,” “potential,“ “continues,” “may,” “will,” “could,” “should,” “seeks,” “approximately,” “predicts,” “intends,” “plans,” “estimates,” “anticipates” and similar expressions are intended to identify forward-looking statements. These forward-looking statements are based on the current assumptions and beliefs of the applicable issuer in light of the information currently available to it, and involve known and unknown risks, uncertainties and other factors. Such risks, uncertainties and other factors may cause actual results, performance, achievements or financial position to be materially different from any future results, performance, achievements or financial position expressed or implied by these forward-looking statements. CNHI undertakes no obligation to review or publicly update any forward-looking statements to reflect subsequently occurring events or circumstances or to reflect unanticipated events or developments.
13. Dispute Resolution; Arbitration Agreement.
We will try work in good faith to resolve any issue you have with Site, including products and services ordered or purchased through the Site, if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer's satisfaction.
You and CNHI agree that any dispute, claim or controversy arising out of or relating in any way to these Terms of Use or your use of the Site, including products and services ordered or purchased through the Site, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to these Terms of Use, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and CNHI are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Use and any other contractual relationship between you and CNHI.
If you desire to assert a claim against CNHI, and you therefore elect to seek arbitration, you must first send to CNHI, by certified mail, a written notice of your claim (“Notice”). The Notice to CNHI should be addressed to: CNH Industrial America LLC – Legal Department, 700 State St., Racine, WI 53404 (“Notice Address”). If CNHI desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by CNHI, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If CNHI and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or CNHI may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by CNHI or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org. If you are required to pay a filing fee, after CNHI receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than US $2,000. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Use, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Use, including this arbitration agreement. Unless CNHI and you agree otherwise, any arbitration hearings will take place in Racine County, Wisconsin. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator). If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of CNHI’s last written settlement offer made before an arbitrator was selected (or if CNHI did not make a settlement offer before an arbitrator was selected), then CNHI will pay you the amount of the award or US $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys' fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
YOU AND CNHI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and CNHI agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
If this Agreement to Arbitrate provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for Racine County, Wisconsin.
14. Revisions; General
CNHI reserves the right, in its sole discretion, to terminate your access to all or part of this Site, with or without cause, and with or without notice. In the event that any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect. These Terms of Use constitute the entire agreement between CNHI and you pertaining to the subject matter hereof. In its sole discretion, CNHI may from time-to-time revise these Terms of Use by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Your continued use of the Site after revisions to these Terms of Use shall constitute your agreement to the revised Terms of Use. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within this Site.
EST Terms and Conditions
General Terms and Conditions for access to and use of the Site
1. Agreement
1. 1. This Agreement shall deem to enter into force by and between the Customer and the Company only upon acceptance by the Customer of the present Terms and Conditions.
2. Subject and scope of the Agreement
2. 1. The present Agreement governs the access and registration by the Customer onthe Site, as well as the purchase by the Customer of the Services, according to the Terms and Conditions expressly defined hereunder.
2. 2. Technical Information shall include all information supplied to authorised Mechanics for the repair and/or maintenance of Company's machines or which related parties may have introduced to the market.
2. 3. The material contained on the Site can be consulted on-line after the Dealer’s Agreement.
2. 4. Aside from members of the Authorised Service Network, only the following subjects may access the Site: companies and individuals supplying vehicle repair and maintenance services, as well as companies operating directly or indirectly in vehicle repair and maintenance, in particular independent producers or distributors of tools or equipment for repairs; independent distributors of spare parts; publishers of technical information; automobile clubs and associations; roadside assistance operators; operators offering testing and inspection services; producers and mechanics for alternative fuel systems; and producers of diagnostics and test equipment.
2. 5. Registration is required to be able to use the Site: by registering, the Customer accepts the Terms and Conditions expressly laid down in this Agreement.
LICENSE AGREEMENT
CONCERNING EST DIAGNOSTIC SYSTEMS
This End User License Agreement (“Agreement”) is a binding legal contract between you (either an individual or a legal entity, also referred to herein as “COMPANY”) and CNH Industrial N.V. or one of its affiliated companies or subsidiaries (“CNH”). By installing, accessing, using or copying the EST Software (as defined below) and any associated user manuals and other documentation provided by CNH, you will be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, CNH is not willing to license any right to install, use, access or copy the EST Software to you. In such event, you may not install, access, use or copy the EST Software.
The parties acknowledge and agree that (a) this Agreement and any amendments to this Agreement, can be entered into electronically and are enforceable in accordance with the provisions of applicable laws govering electronic signatures, and (b) this Agreement shall constitute “original” documents when printed from electronic files and records established and maintained by either party in the normal course of business.
WHEREAS
a. CNH is a company active in the field of manufacturing and selling commercial and industrial vehicles and equipment throughout the world and relevant spare parts there of;
b. The COMPANY, active in the field of repair and maintenance of CNH vehicles and equipment, has either been duly appointed by CNH as a CNH dealer with an authorized workshop entitled to carry out repair and maintenance activities or been accepted by CNH as an Independent Repairer or Independent Operator performing repair and maintenance activities on CNH vehicles and equipment for legitimate business activities;
c. For the purposes of processing CNH vehicle information and technical data, CNH has the EST (Electronic Service Tool) diagnostic system, consisting of both hardware components and software programs;
e)CNH is willing to grant the COMPANY, which is willing to accept, the right to use the EST in its business activities providing also the COMPANY with certain related assistance services via the dealer network;
f)This Agreement sets forth terms and conditions whereby CNH grants the COMPANY a non-assignable, non-sublicensable, non-transferable and non-exclusive right to use EST diagnostic systems for the exclusive purpose of using it in the COMPANY’s activities related to the repair and maintenance of CNH vehicles and equipment
1. DEFINITIONS
1.1 The Parties agree that the following expressions shall have the meaning described below:
“Agreement“: shall mean this Agreement;
“Training and Assistance”: shall mean the training and assistance covering both recommended EST Hardware and EST Software granted hereunder by CNH Dealer to the COMPANY, aimed to solve possible functional and operational problems affecting the EST Hardware and/or EST Software as per Article 7;
“Back-up Copy“: shall mean the back-up copy of the data storage created by the COMPANY as per Article 8.2 below;
“EST”: shall mean the Electronic Service Tool and any Advanced System diagnostic devices, composed both by EST Hardware and EST Software, and any additional associated diagnostic components and software, available in configurations specific to the COMPANY’s contract as respectively described inAnnex 1hereto, implemented and adopted by CNH for the purposes of processing CNH Vehicle or Equipment information and technical data;
”EST Hardware”: shall mean the EST hardware components, available with any configurations as respectively described inAnnex 2, necessary for operating the EST Software;
“EST Software”: shall mean the EST software programs, consisting of a copy of the software in machine-readable form having same characteristics for any configuration as described inAnnex 3, aimed to read andrecord CNH Vehicles data and to store, process, and optionally program CNH Vehicles data;
“Effective Date”: shall mean the date of signature of this Agreement by both Parties which corresponds to the entering into force of the present Agreement as per Article 15;
“EST Software Updates”: shall mean any and all relevant updates to EST Software made progressively available by CNH to the COMPANY by periodic deliveries of software releases via the Internet, and optionally by CD or DVD;
“Fee(s)”: shall mean the fees to be paid by the COMPANY for the License rights, and Training and Assistance service provided hereunder as set forth in Article 12 below;
“CNH Authorized Workshop(s)”: shall mean the Authorised Repairers duly appointed by CNH in order to provide CNH clients with adequate and constant servicing for CNH Vehicles and Equipment;
“Independent Operator(s)”or”Independent Repairers”: shall mean a company or legal entity other than authorised dealers and repairers who is directly or indirectly involved in the repair and maintenance of CNH Vehicles and Equipment;
“CNH Vehicle(s) and Equipment”: shall mean the agricultural, utility or construction vehicles and equipment manufactured and/or sold by CNH throughout the world;
“CNH Website”: shall mean the CNH Service Repair Information Website (https://cnhsri.com) to which the COMPANY shall login as per Article 4.2 and Annex 3 below;
“License”: shall mean the non-assignable, non-sublicensable, non-transferable and non-exclusive right to use the EST Software, including all relevant EST Software Updates, granted by CNH to the COMPANY under this Agreement for the exclusive purpose of using it in its business activities, as per Article 4 below.
“Vehicle Data”: shall have the meaning provided in Section 17.1 below.
2. Scope of this Agreement
2. This Agreement sets out the terms and conditions under which CNH grants to the Company the license to use EST Software against the payment of the License Fees, set out in Article 12, supplies EST Hardware and offers training and assistance for additional Fees.
3. EST Software and Hardware
3. Subject to the registration on the CNH Website, the fulfilment of the form and CNH’s prior approval, CNH undertakes to make EST Hardware available to the Company (through its approved dealer network), for use by the Company to service CNH Vehicles and Equipment.
3. The COMPANY undertakes to install EST Software not later than twenty-four (24) hours from the moment of receiving a License into its possession.
3. The Company acknowledges that the possession of EST Software and acceptance of this Agreement are essential conditions to activate the License of the EST Software and to benefit from the available Training and Assistance. It is understood that mere possession by the COMPANY of the EST Software before accepting this Agreement does not entitle the COMPANY to claim any right related to the License of the EST Software.
3. If the COMPANY deploys the EST Software to diagnose the electronic control units of CNH Vehicles and Equipment, the COMPANY must ensure that the diagnosis is performed solely by appropriately trained, skilled and qualified employees, in a professional and workmanlike manner, and in full compliance with the respective CNH guidelines and the applicable legal requirements and industry standards.
4. EST Software License
4. By accepting this Agreement CNH undertakes to grant to the COMPANY a non-assignable, non-sublicensable, non-transferable and non-exclusive right to use EST Software - available in one configuration as per Article 4.3 below for CNH Authorized Workshops, and optional configurations for Independent Repairers, for the exclusive purpose of using it in its CNH Authorized Workshop or Independent Repairer activities.
4. Pursuant to Article 3.3 of this Agreement, such License will be effective as soon as the COMPANY issues to CNH the specific submission provided by Annex 3 through the CNH SRI Website.
4. As per Article 4.1 above, EST Software configuration will be available in either Option a) Diagnostic read only version or Option b) Diagnosis with Calibration and Configuration;
4. The COMPANY acknowledges that CNH retains title to all rights in and to the EST Software and all relevant documentation, including all intellectual property rights thereto.
4. Each EST Software License shall be assigned to one specific PC hardware, the License granted by CNH to the COMPANY under this Agreement shall be valid solely for such PC hardware.
4. The COMPANY is entitled to create a Back-up Copy of the EST Software. The COMPANY must visibly attach to it the notice “Back-up Copy” and the copyright notice of CNH. Notwithstanding the provisions hereof, it is understood that any type of reproduction and/or duplication of the provided diagnostic programs shall not be permitted. The COMPANY may use the provided programs only in its Authorized Workshop activities. Use going beyond this, as well as any form of transmittal to third parties, is strictly forbidden. In particular, the COMPANY shall not be authorized to sell, lend, lease, transfer and/or otherwise sub-license the EST Software and/or to render it publicly and/or make it publicly accessible to third parties. Alterations to the file structures and/or programs in connection with the diagnostics systems are not permitted. The COMPANY rights under this Agreement cannot be assigned.
4. The COMPANY is entitled to regularly update the EST Software as soon as EST Software Updates are made available by CNH.
4. The Parties agree that at any time during the term of this present Agreement CNH has the right to exploit the Vehicle and Equipment data recorded by the COMPANY in connection with the diagnosis.
5. Changes and modification to the diagnostics system
5. CNH reserves the right to enhance and/or improve its diagnostics platform. If such enhancements and/or improvements are undertaken, the COMPANY shall promptly upon delivery by CNH deploy the changed and/or enhanced diagnostics system in its CNH Authorized Workshop or Independent Repairer activities so that complete and comprehensive diagnostics service can be offered to CNH clients.
5. The provisions set forth in Article 5.1 shall also apply to changes, improvements, updates, upgrades, and other new deliveries made during the term of this Agreement.
6. Training and Programming Features
6. CNH agrees to provide the COMPANY with training courses needed for the use of the EST Software as detailed in Annex 3 which will be made available to the COMPANY via the Authorised Dealer network.
6. The courses described in Section 6.1(b) must be completed prior to any usage of the EST Software.
6. In respect of the courses mentioned Article 6.1(b), the COMPANY will require its employees and agents to take part in such courses at its exclusive expense, so as to continually ensure professional, reliable operation of EST in its business.
7. Training and Assistance Services
7. Upon activation of EST Software, the associated CNH authorized dealer will make available Training and Assistance courses concerning the usage of the recommended EST Software and EST Hardware. Through the availability of these training courses, the user will be instructed on the operation of the EST software, as better described in Annex 2 and Annex 4.
7. Without prejudice to the above, it remains agreed that for the term of this Agreement the CNH authorised dealer shall be solely authorised to manage the availability of Training and Assistance services related to the EST Software and EST Hardware. CNH shall decide at its sole discretion the contractual services to be performed directly by its personnel or to let the same be performed by third parties engaged by CNH. No other third parties will be authorised to provide training services without the prior written authorisation of CNH. It is understood that the COMPANY shall grant CNH, or any third parties engaged by CNH for training or assistance, unrestricted online access to the EST Software and EST Hardware to be serviced.
7. The Training and Assistance services shall not include customs clearance, import/export duties and local taxes.
7. The Training and Assistance services shall not cover problems arising from repair and/or replacement procedures on the EST carried out by the COMPANY.
7. The Training and Assistance services shall not cover any errors or problems arising with EST Software installed on non-recommended or non-supported hardware as described in Annex 2.
8. COMPANY’s Undertakings
8. The COMPANY must promptly report to the CNH dealer any errors, defects and/or malfunctions related to EST Software or EST Hardware, providing all the information needed to eliminate such error and/or malfunction, as well as all related necessary documentation and data.
8. The COMPANY shall take adequate precautionary measures against the loss of data (including Vehicle Data), making therefore on a regular basis, at least once daily, Back-up Copies of all programs and data in machine-readable form, in particular but not limited to, prior to maintenance work being performed.
8. Without prejudice to Articles 10.1 and 10.2 below, the COMPANY shall take all reasonable and appropriate measures and safeguards to protect the security, confidentiality and integrity of EST Software and the Vehicle Data, including against any access, destruction, alteration, acquisition by or disclosure to unauthorised third parties, including but not limited to using it with a reasonable degree of care and storing all copies of the EST Software at a secure and safe location. It is understood that, according to Article 11.2 below, CNH shall not be liable for any malfunctioning and/or defect caused by any lack or inappropriate implementation of such protection measures.
8. The COMPANY undertakes to use EST within its business activities in accordance with any CNH or CNH Dealer specifications, instructions and guidelines, being understood that the COMPANY shall be exclusively liable for any improper, inappropriate and/or incorrect use of EST other than those expressly prescribed by CNH or CNH Dealer specifications, instructions and guidelines. COMPANY shall defend, indemnify and hold harmless CNH or CNH Dealer from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees and court costs, arising out of COMPANY’s breach of the foregoing obligation. CNH shall give COMPANY prompt notice of any indemnified claims, permit the COMPANY to control the defense and settlement of such claims, and reasonably cooperate with the COMPANY in connection with the defense and settlement of such claims.
8. Without prejudice to the above, it is agreed that the COMPANY shall comply with any and all requirements imposed by any local laws and/or regulations eventually in force and/or required by COMPANY’s domestic law, and/or by a court of competent jurisdiction or by another competent authority.
9. Ownership
9. CNH gives no warranty that no infringements of proprietary rights may arise from the right of use granted under the present Agreement.
9. The COMPANY agrees to give CNH prompt written notice if claims are raised against it with the assertion that the diagnostics package or a part thereof, infringes an existing proprietary right.
9. In the event a court of competent jurisdiction determines that the EST Software infringes a proprietary right of a third party, CNH shall at its option, use reasonable efforts to (1) replace and/or modify the diagnostics package in such a way that the asserted infringement of the proprietary right is avoided or (2) terminate this Agreement. This Section 9.3 sets forth the exclusive and entire remedy with respect to any action or claim for infringement of intellectual property by the EST Software or any component thereof.
10. Warranties; Indemnity
10. The COMPANY shall promptly notify the CNH Dealer about any errors, malfunctioning, and/or defect of EST Software in accordance with Section 8.1, being understood that COMPANY claims for defective EST Software are excluded if COMPANY does not give to CNH Dealer written notification of defects at the latest within one (1) week of delivery of the EST Software, and upon delivery non-recognizable defects at the latest within one (1) week of their discovery.
10. COMPANY's exclusive remedy, and CNH's sole liability, for EST Software that does not meet the requirements set forth in Annexes 1 and 3 will be the correction of the defective EST Software within a reasonable time. It remains agreed that the COMPANY shall not be entitled to receive and/or claim any reimbursement and/or reduction in respect of the Fees, including without limitation the following cases: a) malfunctioning and/or defect of the EST Software; and b) non-use, even for long term periods, of EST Software.
10. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 10, THE EST SOFTWARE AND EST HARDWARE ARE PROVIDED TO COMPANY “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. CNH EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF INFORMATION, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE/NON-INFRINGEMENT. CNH DOES NOT WARRANT THAT THE EST SOFTWARE OR EST HARDWARE, TRAINING AND ASSISTANCE, OR OTHER SERVICES OR OTHER DELIVERABLES WILL SATISFY COMPANY’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION OF ANY EST SOFTWARE PROVIDED HEREUNDER WILL BE UNINTERRUPTED OR ERROR FREE.
10. The COMPANY will defend, indemnify, keep indemnified and hold harmless CNH and its affiliates, directors, officers, employees, agents, licensors, service providers, subcontractors and suppliers (individually and collectively, the “CNH Indemnified Party(ies)”) from and against any claims, lawsuits, demands, actions or other proceedings arising from or in connection with (i) a breach or alleged breach of any provision of this Agreement by the COMPANY, any of the COMPANY’s affiliates or any users or owners of the CNH Vehicle or Equipment, (ii) the COMPANY’s, any of the COMPANY affiliate’s or any users’ or owners’ use of the EST Software or related services or the Vehicle Data, (iii) any destruction, loss, alteration, unauthorized disclosure of, or access to, the Vehicle Data caused by the COMPANY, a COMPANY affiliate or a user or owner of the CNH Vehicle or Equipment, or (iv) violation of any law, regulation or third party rights. The COMPANY shall pay any and all costs, damages and expenses, including, without limitation, reasonable attorneys’ fees and costs awarded against or otherwise incurred by CNH Indemnified Parties in connection with or arising from any such claim, lawsuit, action, demand or other proceeding. CNH may, at its own expense, assume the exclusive defense and control of any matter otherwise subject to indemnification by the COMPANY, in which event the COMPANY agrees to cooperate with CNH in asserting any available defenses.
11. Limitation of Liability
11. EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CNH SHALL NOT BE LIABLE FOR:
i. PRELIMINARY DEFECTS, UNLESS THE EVENTS SET FORTH IN ARTICLE 10.1 OCCURRED.
ii. INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, OR BUSINESS) ARISING FROM OR RELATING TO THIS AGREEMENT, OR TO THE USE OF OR INABILITY TO USE THE EST OR SERVICES, REGARDLESS OF THE FORM OF ACTION (WHETHER CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE).
iii. IMPROPER, INAPPROPRIATE AND/OR INCORRECT USE OF THE EST, OR ANY OF ITS COMPONENTS, WHERE IMPROPER, INAPPROPRIATE AND/OR INCORRECT USE MEANS NOT USED IN COMPLIANCE WITH CNH SPECIFICATIONS, INSTRUCTIONS AND GUIDELINES, OR FAILURE TO INSTALL ANY EST SOFTWARE UPDATES;
iv. USE OF COMPONENTS AND/OR ACCESSORIES WHICH ARE NOT SUPPLIED NOR AUTHORIZED IN WRITING BY CNH;
v. VIRUS OCCURRING BECAUSE THE COMPANY HAS NOT INSTALLED AND/OR UPDATED THEIR ANTIVIRUS SOFTWARE;
vi. ELECTRICAL DISCHARGES AND VOLTAGE NOT SUITED TO THE EST TECHNICAL FEATURES, DESCRIBED IN THE CNH SPECIFICATIONS OR IN THE APPROPRIATE PLATES OF REFERENCE;
vii. FOR THE LOSS OF DATA AND/OR COMPUTER PROGRAMS TO THE EXTENT THAT THE COMPANY HAS NOT PERFORMED ADEQUATE BACKUP-COPIES AS PER ARTICLE 8;
viii. FOR THE LOSS OF DATA AND/OR SET UP INSTALLED ON DATA STORING HARDWARE OF THE COMPANY;
ix. LIGHTNING, CARELESSNESS, FLOODS, FIRES, DECLARED AND/OR UNDECLARED WAR, REVOLUTION, INSURRECTION, RIOT, ACT OF TERRORISM.
11. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, CNH’S AND ITS AFFILIATES’ AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, OR TO THE USE OF OR INABILITY TO USE THE EST SOFTWARE, EST HARDWARE OR RELATED SERVICES, WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE FEES RECEIVED BY CNH FROM THE COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE. 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) OR IN THE EVENT OF PERSONAL INJURY ARISING SOLELY FROM A CNH’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11. COMPANY’S SOLE AND EXCLUSIVE REMEDIES AND CNH’S SOLE AND EXCLUSIVE LIABILITIES ARE SET FORTH IN THIS AGREEMENT
12.Fees and payment
12. The COMPANY undertakes to pay to CNH, or the CNH approved dealer / partner, the applicable Fees as set forth on the CNH website or through the CNH Dealer where the EST software is ordered.
12. It is agreed that settlement of the Fees shall be subject to accounting periods defined by CNH as described herein.
12. Without prejudice to the above, CNH reserves the right to modify and/or adjust the Fees at its sole discretion, giving the COMPANY a prompt notice, should:
a) The EST Hardware be installed by the COMPANY at a different location in respect of the one designated upon signature of the present Agreement; and/or
b) Upgrades and/or enhancements and/changes as per Article 5 deployed by the COMPANY have implied an increment of services to be carried out by CNH.
c) The EST be updated with any additional features.
13. Audit
13. During the term of this Agreement, and for a period of twelve (12) months after its expiration or termination for whatever reason, CNH will have the right to audit and inspect - during normal business hours and upon reasonable notice - also through third parties, at the COMPANY’s premises or at any other place where the Services are carried out, the files and documents in order to verify the use of the EST, in accordance with the provisions of this Agreement and with CNH specifications, instructions and guidelines.
13. The COMPANY shall fully cooperate with any reasonable request(s) made by CNH in connection with auditing COMPANY’s use and performance
13. If the results of the audit show anomalies or misuse of EST, the COMPANY shall indemnify CNH for any damage, loss, cost and expense suffered or incurred by it as a consequence of such anomalies or misuse and will pay the cost of audit.
14. Confidentiality
14. The Parties agree to treat as confidential all confidential information of which it becomes aware in connection with the contractual relationship herein and to use same vis-à-vis third parties only with the prior written agreement of the other Party. Confidential information includes information that the Party providing it has expressly designated as “confidential” and such information whose confidentiality is clearly apparent from the circumstances of the provision thereof, including without limitation to the EST Software, application data, program parts, access codes, access procedures, documentation, and any and all other knowledge associated with EST of which the COMPANY has become aware. The Parties hereby undertake to place their employees and any subcontractors and/or third subject appointed to perform obligations herein under the same duty of confidentiality and to provide corresponding proof of same upon request.
14. The obligations under Article 14.1 do not apply to such information, or parts thereof, for which the receiving Party can show that same:
a) was known and/or generally accessible to it prior to the date of receipt;
b) was known and/or generally accessible to the public prior to the date of receipt;
c) was made known and/or generally accessible to the public without the Party receiving the information being responsible for this.
14. The obligations under Article 14.1 will survive after expiration or termination of this Agreement for further ten (10) years.
15. Term and termination
15. This Agreement enters into force on the Effective Date and shall remain valid and effective for a period of two (2) years.
15. This Agreement may be automatically renewed at CNH’s sole discretion for subsequent periods of twelve (12) months, unless terminated by a Party with one (1) month prior written notice, effective at the end of the respective term. Fifteen (15) days before the one (1) month notice CNH shall communicate to COMPANY any new conditions, if existing, for the following year.
15. This Agreement may be terminated early by CNH after the first twelve (12) months by giving the COMPANY written notice.
15. This Agreement will automatically terminate in the event that the CNH authorized repair agreement in force between CNH Dealer and the COMPANY is expired or terminated for whatever reasons or no longer in force. In such a case, the effective date of termination of this Agreement shall be the effective date of expiry or termination of the authorized repair agreement.
15. In addition to the above, CNH may terminate at any time this Agreement without notice in the following causes:
a. the COMPANY violates the provisions set forth under Articles 4 and 8 concerning the use of EST Software;
b. the COMPANY fails to pay CNH Dealer the Fees when due, in accordance with the terms and conditions set forth in Articles 12;
c. any act of bankruptcy or insolvency by the COMPANY or requests or application of arrangement with its creditors for liquidation of its debts by composition or otherwise;
d. if the COMPANY is a company or partnership, any change in the constitution of the COMPANY or compulsory or voluntary winding up of the COMPANY, or the appointment of a Receiver or Administrative Receiver in relation to the COMPANY’s assets or any of them;
e. judicial proceedings against the COMPANY that could compromise its image and its goodwill, or the image and goodwill of CNH;
f. as set forth in Section 9.4;
g. as set forth in Section 15.6.
15. CNH may, at any time, modify, suspend or permanently discontinue the EST Software, or any portion of its features, functions or products or associated support (including Training and Assistance services), from time to time, with or without advance notice, for any or no reason. CNH will not be liable to the COMPANY or to any third party for any such modification, suspension or discontinuance, nor will CNH be obligated to continue offering support for any suspended or discontinued EST Software or portions thereof.
16. Obligations upon expiry or termination
16. Upon expiry or termination of this Agreement, for whatever reason, the COMPANY shall without delay:
a. immediately pay all sums owing to CNH Dealer whether or not the time for payment has yet arrived;
b. immediately and permanently discontinue using the EST Software, including all EST Software Updates made available by CNH till expiry or termination of this Agreement;
c. remove all installed copies of the EST Software from its computers;
d. either promptly return to CNH Dealer or destroy any created Back-up Copy, at CNH’s sole discretion;
e. return to CNH dealer any EST Hardware not owned by the COMPANY.
16. In the event of expiry or termination of this Agreement, for whatever reason, the COMPANY shall not be entitled to claim any indemnity or compensation whatsoever from CNH.
17. Data and Data protection laws
“Data Protection Laws”means laws, in multiple jurisdictions worldwide, that relate to (i) the confidentiality, collection, use, handling, processing, security, protection, transfer or free movement of personal data, personally-identifiable information or customer information, (ii) electronic data privacy, (iii) trans-border data flow, (iv) data protection or (v) the national provisions applicable to the protection of personal data. The COMPANY is compliant to California Consumer Privacy Act (CCPA) of 2018 and Massachusetts Data Privacy Law (S-120), New York Privacy Act (S5642), Hawaii Consumer Privacy Protection Act (SB418), Maryland Online Consumer Protection Act (SB613) and North Dakota’s (HB 1485). The COMPANY agrees to comply with all applicable Data Protection Laws with respect to collection, use and processing of data and information from or relating to CNH Vehicles and Equipment that is collected, processed or transmitted through the EST Software or the EST Hardware, including without limitation, personal data, error codes, system abuse data and other data relating to the operation of vehicles (“Vehicle Data”) and to place an obligation on its employees deployed in connection with this Agreement and its performance to comply with all applicable Data Protection Laws. Upon request by CNH, the COMPANY shall make available to CNH all information that is reasonably necessary to demonstrate such compliance. The Parties acknowledge and agree that the COMPANY and CNH each act as a separate data controller in connection with Vehicle Data.
17. CNH shall have the right to collect and use all Vehicle Data. CNH shall have the right to use such Vehicle Data for performance of this Agreement, and for purposes of confirming legal compliance and complying with laws, regulations, court orders and subpoenas or similar requests for information by authorities, enforcing and protecting CHN’s legal rights, benchmarking, research, product development and product improvement. CNH is entitled to transmit such data to its affiliated companies and service providers. The COMPANY agrees to the collection and use of such data and agrees to assist CNH in exercising such right.
17. The COMPANY in using the EST software and Hardware to connect to CNH Vehicles and Equipment, represents and warrants that (a) it has obtained all permission and consent from the legal owner of the CNH Vehicle or Equipment necessary (i) for the COMPANY to collect and transmit the Vehicle Data to CNH and for CNH to collect, use, and transmit the data in accordance with Section 17.2, and (ii) as otherwise required by Data Protection Laws, and (b) it has provided all notices to the legal owner of the CNH Vehicle or Equipment necessary to appropriately inform the owner, at the time of data collection, of the collection, use and transmission of Vehicle Data, including the collection of geolocation information, and as otherwise required by Data Protection Laws. The COMPANY shall be exclusively liable for any collection of data without the proper authorization of the legal owner, and indemnify and hold harmless CNH and its affiliated companies from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees and court costs, arising out of COMPANY’s breach of the foregoing obligation.
17. The COMPANY agrees to process Vehicle Data fairly and lawfully, and only to the extent that is necessary to achieve the agreed purposes as set forth in this Agreement. The Company agrees not to use Vehicle Data for any other purposes. CNH takes no responsibility for obtaining consent or making notifications for any processing activities. As a separate controller, the COMPANY is responsible for ensuring that all uses of the Vehicle Data are in compliance with all applicable laws and regulations-
17. Without limiting its obligations in Section 8.3, the COMPANY agrees to take appropriate technical and organizational measures against the unauthorized or unlawful processing of, accidental loss or destruction of, or damage to, Vehicle Data and will review and update the same as may be required for so long as the COMPANY is processing Vehicle Data, having regard to the state of technological development together with the cost of implementing any measures and given the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
17. The COMPANY agrees that, to the extent legally permitted, it will promptly notify CNH of any enquiries or communications (including subject access requests) from data subjects relating to their personal data comprised in Vehicle Data or its processing and in relation to which CNH is a controller. The Company shall bear its own costs and expenses with respect to the provision of such assistance.
17. The COMPANY agrees to provide such reasonable assistance in order to enable CNH to comply with requests from data subjects and/or any supervisory authority and to respond to any other queries, investigations or complaints from data subjects and/or any supervisory authority in relation to which CNH is a controller. The COMPANY shall bear its own costs and expenses with respect to the provision of such assistance.
17. The COMPANY agrees to promptly (and in any event within a timescale to enable compliance with Data Protection Laws) notify CNH of any data breach involving the Vehicle Data in its possession or control, and of any risks of which it becomes aware to the security of Vehicle Data in its possession or control, and the categories of data subjects that may be affected. The COMPANY agrees to provide full and thorough assistance, information and co-operation in connection with any steps that CNH may carry out for the purposes of compliance with Data Protection Laws.
17. At the request of CNH, the COMPANY shall enter into with CNH or its affiliates the standard contractual clauses approved by the European Commission for transfers from controllers to controllers established outside the EEA (the “Standard Contractual Clauses”).
18. Applicable law and Competent jurisdiction
18. Without prejudice to Clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses, the Parties agree that this Agreement shall be subject to and governed by the laws of the jurisdiction where the registered office of CNH is located.
18. The Parties acknowledge that in case of disputes arising out and/or connected to the present Agreement shall be exclusively competent the Courts of the place where the registered office of CNH is located.
19.Notice
19. Any notice given hereunder shall be sent by prepaid registered mail or by email to the Parties at the addresses set out below:
a. If to CNH, at one of the mails address: SRI-CNHI@cnhind.com
b. If to COMPANY: The address provided by COMPANY upon registration for the EST Software.
20. Assignment
20. The COMPANY’s rights and obligations under the present Agreement shall not be transferable, assignable or saleable to third parties without the prior written authorization of CNH.
21. Miscellaneous
21. This Agreement sets forth the general understanding of the Parties hereto with respect to the matters covered herein and therein and supersedes all prior contracts, arrangements, communications, representa¬tions and warranties, whether oral or written, by any officer, employee or representative of any of the Parties.
21. Except as expressly provided in this Agreement, the waiver by either Party or the failure by either Party to claim a breach of any provision of this Agreement shall not constitute a waiver of any subsequent breach or effect in any way the effectiveness of that provision.
21. Should any provision of this Agreement be and/or become ineffective and/or unenforceable, all other provisions shall remain in full force and effect. In such case, the Parties undertake to replace the ineffective or unenforceable provision with an effective or enforceable arrangement that corresponds as far as possible to the spirit and purpose of the provision to be replaced, insofar as dispositive law lacks any gap-filling norm.
21. The Product is administered by or for CNH from offices at various locations globally. The COMPANY may not use or export or re-export the EST Software or its content or any copy or adaptation in violation of any applicable local laws or regulations including, without limitation, United States export laws and regulations.
22. Annexes
22. The following Annexes shall be considered as integral part of the present Agreement:
a) Annex 1: EST Diagnostic System - Description of EST and configurations
b) Annex 2: EST Hardware
c) Annex 3: EST Software
d) Annex 4: Assistance Service
Annex 1 EST Diagnostic System: Description of EST
The EST ( Electronic Service Tool ) is the software used to communicate with CNH vehicles and equipment. The software can be configured in the following manner
1. Read only,
2. Read, Calibrate and configure
Note:- Not all software configurations will be available on all vehicles.
Annex 2 EST HARDWARE
The EST ( Electronic Service Tool ) Hardware consists of
1. A recommended Panasonic Laptop from the approved model range (as available through the CNH approved Dealer / Partner)
2. A VCI (Vehicle Communication Interface) (as available through the CNH approved Dealer / Partner)
Annex 3 EST SOFTWARE – Brand configuration
The EST ( Electronic Service Tool ) may be configured in any combination of the following brands dependent on the licence configuration and contract.
1. Case IH
2. Case Construction
3. New Holland Agriculture
4. New Holland Construction
5. Flexicoil
6. Miller
Each brand may have an associated regional brand depending on local contract. CNH reserves the right to change, update or modify the brand configuration at any time.
Annex 4
Training and Assistance
5A. The Training and Assistance available through the CNH Dealer is aimed to cover exclusively the following services for the EST Hardware and Software:
a) Correct installation of the EST software on the approved CNH Hardware;
b) Correct usage of the EST software and approved hardware; (product specific)
c) Support (if required) during training in the event of a restore (EST Software only);
5B. CNH shall not provide Training and Assistance in the following cases:
a) delivery and/or replace of additional equipment not expressly listed hereof;
b) external cleaning of the EST Hardware;
c) delivery of accessories;
d) set-up of the equipment;
e) alteration of machine functions;
f) usage of non-recommended hardware for the operation of the EST Software.
g) if the COMPANY carried out modifications and/or changes and/or enhancements to the EST Hardware in use after EST software installation, and these modifications caused the EST software to malfunction.
h) if interventions on the EST Hardware are performed by personnel not authorised by the COMPANY or CNH.
5C. If needed by CNH Dealer to perform the Training and Assistance services hereunder, the COMPANY shall provide any on-site CNH dealer personnel, and/or third party engaged by CNH with suitable office space, common office equipment support and adequate computer resources which may be necessary to enable CNH’s personnel to perform, or any third party engaged by the latter, to perform the activities under the present Agreement.
5D. The Training and Assistance services are provided during the normal business hours at a CNH Dealer or authorised third party location.
eTim - Terms and Conditions
General Terms and Conditions for access to and use of the Site
1. Agreement
1. 1.This Agreement shall deem to enter into force by and between the Customer and the Company only upon acceptance by the Customer of the present Terms and Conditions.
2. Subject and scope of the Agreement
2. 1.The present Agreement governs the access and registration by the Customer on the Site, as well as the purchase by the Customer of the Services, according to the Terms and Conditions expressly defined hereunder.
2. 2. Technical Information shall include all information supplied to authorised Mechanics for the repair and/or maintenance of Company's machines or which related parties may have introduced to the market.
2. 3. The material contained on the Site can be consulted on-line after the Dealer’s Agreement.
2. 4. Aside from members of the Authorised Service Network, only the following subjects may access the Site: companies and individuals supplying vehicle repair and maintenance services, as well as companies operating directly or indirectly in vehicle repair and maintenance, in particular independent producers or distributors of tools or equipment for repairs; independent distributors of spare parts; publishers of technical information; automobile clubs and associations; roadside assistance operators; operators offering testing and inspection services; producers and mechanics for alternative fuel systems; and producers of diagnostics and test equipment.
2. 5. Registration is required to be able to use the Site: by registering, the Customer accepts the Terms and Conditions expressly laid down in this Agreement.
3. Registration process
3.1. Registration is required in order to gain access to and use the Site. This is performed by completing the form found on the Site, certifying full and complete acknowledgment and agreement with all these Terms and Conditions. The registration form must be filled out in full, truthfully and in good faith. The Company reserves the right to definitively withdraw access to the Site without prior notice if the Customer concerned is found to have supplied incomplete or untruthful information, or if they are found not to meet the requirements indicated above in section 2.4.
3.2. Registration requires the Customer to supply information regarding: personal data and contact details including email address and other information necessary for registration or, where authorized, sending of commercial information.
3.3. After supplying and confirming the required information, the Customer will receive an email with a username and a temporary password which will allow his to specify a personalized password giving access to the Site and available Services.
3.4. Information on handling of personal data is given in the Privacy section.
3.5. The Customer is solely responsible for safeguarding its username and password and any access and use of the Site resulting from it.
3.6. The Customer is solely responsible for any and all expenses relating to the procurement of hardware, software and telecommunications services necessary to use the Services. The Customer must immediately notify the Company of any unauthorized use of its password, and promptly disconnect from the Site in this case.
4. Fees for use of the Site
4.1. Site access methods and durations are determined by the agreement with Your Dealer.
4.2. In the case of the online reprogramming/configuration service for control units/electronic components of the machines, the connection duration runs from the date and time the service is activated, whatever the day of registration. The Customer, once registered, activates the connection for the service which finishes when the service has been correctly supplied, independently of the actual connection time. The Customer shall be responsible for ensuring the suitability of the equipment and infrastructure at its disposal (PC, software, connection speed and hardware).
4.3. The Customer must activate the connection to the Technical Information purchased as per above within 6 (six) months of the date of purchase: after this time the purchase will expire and no refund shall be due by the Company.
4.4. The Customer must complete transaction-based services purchased as per above within 6 (six) months of the date of purchase: after this time the purchase will expire and no refund shall be due by the Company.
5. Access to the Site
5.1. Access to the Site is possible 24 hours a day, 7 days a week, except for situations caused by force majeure or scheduled maintenance. It is hereby expressly agreed that the Company CNH INDUSTRIAL may, at any time, interrupt, limit, suspend, or fully or partially restrict access to the Site or Services in order to perform updates or maintenance operations or to resolve technical problems relating to the servers, networks or software used for their supply, or due to breach by third-party suppliers of services. The Company may also modify, add to or suspend a service at any time, in which case the Customer shall be informed.
5.2. The Customer nevertheless hereby recognizes that the public nature of the internet prevents the Company from guaranteeing that: i) The Customer is able to access the Site or a particular service at any time, ii) Access not be interrupted, and iii) Access be free from any errors.
5.3. The Customer recognizes that neither the Company nor its suppliers are responsible for, and shall not be liable for any damages due to, the interruption, suspension, modification or withdrawal of the Site or any of its services.
6. Intellectual property rights
6.1. All text, drawings, images, graphics and other materials found on the Site are intellectual property of the Company, its affiliates and licensees. The Company or its affiliates hold all rights regarding the selection, organization and management of materials on the Site.
6.2. All trademarks displayed on the Site are subject to exclusive rights on Company's or its affiliates' brands. Unauthorized use of any trademark displayed on this Site is absolutely forbidden.
6.3. The Site, including all materials, is protected worldwide by applicable legislation regarding intellectual property rights and its use, whether or not there is a declaration present on the Site regarding such rights for the materials. The Customer commits to respect all worldwide laws on intellectual property rights with regard to the Site and its use, and to prevent and not carry out unauthorized reproduction of these materials.
7. Guarantees, responsibility and limits of responsibility
7.1. The Customer commits to respect all regulations under this Agreement governing the use of the Site, Services and Technical Information, as well as all national and international laws and regulations governing the Customer's use of the Site, directly or via third parties.
7.2. The Customer commits above all to:
- Not use the Site fraudulently, illegally or without authorization
- Not use the Site and its Services in violation of current laws and regulations, intellectual property legislation and requirements laid out by the Company
- Not use the Site in such a way as to impede or interfere with access by other Customers
- Not remove, hide or damage any declaration of copyright, trademark or declaration of property rights added to or contained within the Site and its Services.
- Not permit unauthorized disclosure or reproduction of any part of the Site or information obtained from it
- Not authorize any third party to access, use or benefit from the Site or its contents
- Not create frames on other websites using information elements obtained through or referring to the Services
- Assume responsibility for security and/or use of their personal username and password and not to give these to third parties
- Use the Site in conformity with the terms of this Agreement
7.3. The Company, taking circumstances into account, may take all measures deemed necessary and suitable as regards the Customer's use of the Site. Specifically, the Company may interrupt, limit, suspend, or fully or partially restrict access to the Site, without prior notice or compensation, due to incorrect behavior or failure to observe applicable laws and regulations or the terms laid out in this Agreement by the Customer.
7.4. The Company shall not be responsible for direct or indirect damages incurred by the Customer or a third party due to the Customer's use of or reliance on the Technical Information and Services provided by the Site. The Customer shall indemnify and guarantee the Company against any action, indemnity or request for damages resulting from or linked to an action or omission on the Customer's part or resulting from or linked to use of the Site or Services.
7.5. The Company makes the Site available purely for informational purposes. It shall remain the full responsibility of the Customer, as an expert in service and repair of Company's Products, to ensure the suitability and accuracy of any information downloaded from the Site and the manner in which this is used. The Company makes no guarantee that the information available through this Site is accurate, complete or up to date; or that the Site or anything contained within is free from errors and omissions.
7.6. The Company shall not and cannot be held responsible for repair and maintenance operations performed on the Products by the Customer or by third parties using the Technical Information and/or Services offered by the Site, inasmuch as full responsibility rests with those actually performing these operations.
8. Duration of the Agreement
8.1. This Agreement enters into force only upon acceptance by the Customer of the present Terms and Conditions for an indefinite period. Both Parties may withdraw from the Agreement at any time by serving to the other Party a written notice via registered letter with return receipt.
8.2. Notwithstanding the above, it is agreed that the Parties may terminate this Agreement at any time in case of breach by one Party of one or more obligations under this Agreement.
9. Auditing rights
9.1. The Company shall have the right to perform a periodic audit of the Customer's use of the Site, in full respect of this Agreement's privacy clauses, in order to ensure that the Customer is respecting the terms of the Agreement.
10. Site Updates
10.1. The Company reserves the right to modify and/or update at any time the methods for accessing the Site. These modifications and/or updates require of the Customer that they regularly consult the Site to check the applicable conditions.
11. General Provisions
11. 1.Assignment.
The Customer may not transfer any right or obligation under this Agreement without prior written authorization from the Company.
11.2. Waiving of rights
The fact that one Party does not make use of a right, power or prerogative recognized by these Terms and Conditions, or delays in doing so, shall not be interpreted as waiving said right, power or prerogative. The waiving of a right shall be effective only if established by a document signed by the Party subject to its effects.
11.3. Notices.
All notices and servings regarding the present Agreement must be sent by post or fax and confirmed by registered letter with return receipt.
11.4. Independence of clauses.
The full or partial invalidity or inapplicability of any term or clause in this Agreement shall not result in the invalidity or inapplicability of the remaining terms or clauses with regard to current laws and regulations.
11.5. Force Majeure
The following shall expressly be considered acts of force majeure under this Agreement, in addition to those normally considered as such under Italian law: industrial action and strikes both internal and external to the company, severe weather, governmental and legal restrictions and modifications of commercial practices, computer faults and communications outages, deterioration of Company's servers, and any and all other cases outside Company's express control.
The occurrence of a case of force majeure shall initially cause the suspension, under law, of the execution of the present Agreement. If, after a period of 3 (three) months, the Company and the Customer find that the case of force majeure is still in effect, this Agreement shall automatically be terminated under the law, save for agreement to the contrary between the Company and the Customer.
12. Resolution of disputes
12.1. The Parties shall act in good faith to resolve any disputes which should arise regarding this Agreement. Disputes shall include, but not be limited to, the following: application/interpretation of the Agreement, availability of technical documentation (repair manuals, time schedules, spare parts catalogues, training), completeness of the technical documentation, languages in which the documentation is available, correctness of the technical documentation, website subscriptions, technical documentation and diagnostic equipment purchase orders, prices and discounts, payments, website interruptions/outages (if ascribable to the Company). The mediation procedure shall not apply to disputes not directly ascribable to this Agreement and to the Technical Information present on the Site, including, but not limited to: delays in delivery of spare parts and/or Company's original equipment, delays in the repair of Company's vehicles owing to delays in the delivery of spare parts and/or Company's original equipment, warranty and product claims regarding Company's vehicles, general claims regarding Company's vehicles, claims regarding dealers and/or mechanics of the Company's network, claims regarding vehicle assistance and servicing.
12.2. Unless otherwise agreed between the Parties, whenever they should not have settled the dispute via mediation within 45 (forty five) days of its start, the dispute may be submitted to the Civil Court.
12.3. The mediation procedure shall not pre-empt any rights the Customer may have to file a claim directly with the Civil Court, .
13. Approval of this Agreement
13.1. The Customer declares they have read and agree with this Agreement in its entirety.
Technical Requirements
The technical requirements which Independent Operators will have to meet to reprogram vehicles are listed below The technical requirements are organized into:
• PC configuration requirements
• VCI/ECI requirements
PC configuration requirements
Minimum recommended configuration:
a. 1.50 Ghz (1500 Mhz) processor minimum
b. 4 GB RAM minimum
c. Minimum 10 GB free hard-disk space
d. Display resolution 1024x768 minimum
e. High-speed internet connection (>=6Mbps)
Software requirements:
a. Microsoft Windows™ 10 64 bit OS
b. User signed on as administrator
c. Internet Explorer 10.0 or later web browser
d. Adobe Acrobat Reader version 10 or later
VCI requirements
A VCI is required, available from Company compatible with RP1210 standards, meeting the following requirements:
1. The link between the PC and VCI/ECI must use a USB connection
2. The VCI driver and relative software must be installed by the independent operator
3. D-PDU API setup must conform with Windows 64 bit
4. The link between the vehicle and VCI/ECI must be compatible with the pin-out of the connector present on the vehicle
IMPORTANT:
The Company does not deal with third-party VCI performance. The Company SW and relative vehicles conform to RP1210 as regards connections to the VCI, while the VCI manufacturers are responsible for their devices' correct operation with each Company vehicle using Company SW.
Important:
The information contained in this Site may not be up to date due to modifications that the Manufacturer may make at any time for technical and/or commercial reasons. Therefore, information on repairing some components may not be present in as much as they require repair operations to be performed directly by the service network of the Manufacturer of the component itself.
This Site is continuously updated in order to best respect legislative changes and requirements. Some search methods may not yet be completely optimised, such as searching by term, by component or wiring diagram, by DTC or by symptom, even though the information necessary for the repair operation to be performed on the Company's vehicle is available on the Site. In this case it is recommended you consult the document indices, or else perform further filtering of the results using the search tools offered by the portal. The technical evolution of this site will allow vehicle identification by product features and type-approval number publication.
CNH ONLINE TERMS AND CONDITIONS
Last revised November 8, 2019
These terms and conditions of use (“Terms of Use”) govern your use of our online interfaces and properties (e.g., websites and mobile applications) owned and controlled by CNH Industrial Aftermarket Solutions (“CNHI”), including the [www.mycnhistore.com] website (collectively, the “Site”). Your compliance with these Terms of Use is a condition to your use of the Site. If you do not agree to be bound by the Terms of Use, promptly exit this Site. Please also consult our Privacy Policy for a description of our privacy practices and policies.
Binding Arbitration. These Terms of Use provide that all disputes between you and CNHI that in any way relate to these Terms of Use or your use of the Site will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Use (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution; Arbitration Agreement for the details regarding your agreement to arbitrate any disputes with CNHI.
1. Ownership of the Site
All pages within this Site and any material made available for download are the property of CNHI, or its licensors or suppliers, as applicable. The Site is protected by United States and international copyright and trademark laws. The contents of the Site, including without limitation all data, files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Site (“Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized by these Terms of Use or otherwise approved in writing by CNHI. You may not frame or utilize framing techniques to enclose, or deep link to, any name, trademarks, service marks, logo, Content or other proprietary information (including images, text, page layout, or form) of CNHI without our express written consent.
2. Site Access, Security and Restrictions; Passwords
You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Site or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law.
You may not use any scraper, crawler, spider, robot, or other automated means of any kind to access or copy data on the Site, deep-link to any feature or content on the Site, bypass our robot exclusion headers, or other measures we may use to prevent or restrict access to the Site.
Violations of system or network security may result in civil or criminal liability. CNHI will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Site or any activity being conducted on this Site.
In the event access to the Site or a portion thereof is limited requiring a user ID and password (“Protected Areas”), you agree to access Protected Areas using only your user ID and password as provided to you by CNHI. You agree to protect the confidentiality of your user ID and password, and not to share or disclose your user ID or password to any third party. You agree that you are fully responsible for all activity occurring under your user ID. Your access to the Site may be revoked by CNHI at any time with or without cause. You agree to defend, indemnify and hold CNHI harmless from and against all third party claims, damages, and expenses (including reasonable attorneys’ fees) against or incurred by CNHI arising out of your breach of these Terms of Use or violation of applicable law, your use or access of the Site, or access by anyone accessing the Site using your user ID and password.
3. Accuracy and Integrity of Information; Colors
Although CNHI attempts to ensure the integrity and accuracy of the Site, it makes no representations, warranties, or guarantees whatsoever as to the correctness or accuracy of the Site and Content thereon. It is possible that the Site could include typographical errors, inaccuracies, or other errors, and that unauthorized additions, deletions, and alterations could be made to the Site by third parties.In the event that an inaccuracy arises, please inform CNHI so that it can be corrected. CNHI reserves the right to unilaterally correct any inaccuracies on the Site without notice. Information contained on the Site may be changed or updated without notice. Additionally, CNHI shall have no responsibility or liability for information or Content posted to the Site from any non-CNHI affiliated third party.
We have made significant efforts to accurately display the colors of our products that appear on the Site. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.
4. Typographical Errors and Incorrect Pricing
In the event a product or service is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product / service listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we shall promptly issue a credit to your credit or debit card account in the amount of the incorrect price.
5. Order Acceptance
We reserve the right, at our sole discretion, to refuse or cancel any order for any reason. Your account may also be restricted or terminated for any reason, at our sole discretion. Some situations that may result in your order being canceled include limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or problems identified by our credit and fraud avoidance department. We may also require additional verifications or information before accepting any order. We will contact you if all or any portion of your order is canceled or if additional information is required to accept your order. If your order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge.
6. Quantity Limits and Dealer Sales
CNHI reserves the right, at our sole discretion, to limit the quantity of items purchased per person, per household or per order. These restrictions may be applicable to orders placed by the same account, the same credit card, and also to orders that use the same billing or shipping address. We will provide notification to the customer should such limits be applied. Please note that certain orders constitute improper use of CNHI and its services. We reserve the right, at our sole discretion, to refuse or cancel any order for any reason. Your account may also be restricted or terminated for any reason, at our sole discretion. CNHI also reserves the right, at our sole discretion, to prohibit sales to dealers or resellers. For purposes of these Terms of Use, reselling shall be defined as purchasing or intending to purchase any products from CNHI for the purpose of engaging in a commercial sale of that same products with a third party.
7. Online Payments
You can purchase products or services on the Site. We accept credit and debit cards issued by U.S. and Canadian banks. If a credit card account is being used for a transaction, CNHI may obtain preapproval for an amount up to the amount of the payment. If you enroll to make recurring payments automatically, all charges and fees will be billed to the credit card you designate during the setup process. If you want to designate a different credit card or if there is a change in your credit card, you must change your information online. This may temporarily delay your ability to make online payments while we verify your new payment information.
You represent and warrant that if you are making online payments that (i) any credit card, debit card and bank account information you supply is true, correct and complete, (ii) charges incurred by you will be honored by your credit/debit card company or bank, (iii) you will pay the charges incurred by you in the amounts posted, including any applicable taxes, and (iv) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card and credit card information.
8. Export Policy and Restrictions
You acknowledge that the products and Content which are sold or licensed on the Site, which may include technology and software, are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured or received. By purchasing, downloading or using technology or software from the Site, you agree to abide by the applicable laws, rules and regulations - including, but not limited to the Export Administration Act and the Arms Export Control Act - and you represent and warrant that you will not transfer, by electronic transmission or otherwise, the software or technology to a foreign national or a foreign destination in violation of the law. By purchasing any products, you agree that you will not use any products, or provide products to any person, who is forbidden from receiving the product under the Export Administration Regulations or any economic sanctions maintained by the U.S. Department of Treasury, U.S. antiboycott regulations, or U.S. economic sanctions, including the export and antiboycott restrictions found in the Export Administration Regulations or the sanctions regulations administered by the U.S. Office of Foreign Assets Control. You shall indemnify and hold harmless CNHI from all claims, demands, damages, costs, fines, penalties, attorneys’ fees, and all other expenses arising from your failure to comply with this provision or applicable export control, antiboycott, or economic sanctions laws and regulations.
9. Links to Other Sites
CNHI makes no representations whatsoever about any other website that you may access through this Site. When you access a non-CNHI website, please understand that it is independent from CNHI, and that CNHI has no control over the content on that website. In addition, a link to a non-CNHI website does not mean that CNHI endorses or accepts any responsibility for the content, or the use, of the linked website. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party websites linked to this Site, you do this entirely at your own risk.
10. Disclaimer of Warranties
CNHI DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, IS PROVIDED 'AS IS,' WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. CNHI DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE SITE.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE, SITE-RELATED SERVICES, AND LINKED WEBSITES. CNHI DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.
WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD AND DISTRIBUTED BY CNHI ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.
11. Limitation of Liability Regarding Use of Site
CNHI AND ANY THIRD PARTIES MENTIONED ON THIS SITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, OR LINKED WEBSITES IS TO STOP USING THE SITE OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM AGGREGATE LIABILITY OF CNHI TO YOU WITH RESPECT TO YOUR USE OF THIS SITE IS $500 (FIVE HUNDRED DOLLARS).
12. Forward Looking Statements.
The Site may include forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 about securities of an issuer which are located on the Site. To the extent that statements on this Site do not relate to historical or current facts, they constitute forward-looking statements. The words “outlook,” “believes,” “expects,” “potential,“ “continues,” “may,” “will,” “could,” “should,” “seeks,” “approximately,” “predicts,” “intends,” “plans,” “estimates,” “anticipates” and similar expressions are intended to identify forward-looking statements. These forward-looking statements are based on the current assumptions and beliefs of the applicable issuer in light of the information currently available to it, and involve known and unknown risks, uncertainties and other factors. Such risks, uncertainties and other factors may cause actual results, performance, achievements or financial position to be materially different from any future results, performance, achievements or financial position expressed or implied by these forward-looking statements. CNHI undertakes no obligation to review or publicly update any forward-looking statements to reflect subsequently occurring events or circumstances or to reflect unanticipated events or developments.
13. Dispute Resolution; Arbitration Agreement.
We will try work in good faith to resolve any issue you have with Site, including products and services ordered or purchased through the Site, if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer's satisfaction.
You and CNHI agree that any dispute, claim or controversy arising out of or relating in any way to these Terms of Use or your use of the Site, including products and services ordered or purchased through the Site, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to these Terms of Use, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and CNHI are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Use and any other contractual relationship between you and CNHI.
If you desire to assert a claim against CNHI, and you therefore elect to seek arbitration, you must first send to CNHI, by certified mail, a written notice of your claim (“Notice”). The Notice to CNHI should be addressed to: CNH Industrial America LLC – Legal Department, 700 State St., Racine, WI 53404 (“Notice Address”). If CNHI desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by CNHI, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If CNHI and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or CNHI may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by CNHI or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org. If you are required to pay a filing fee, after CNHI receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than US $2,000. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Use, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Use, including this arbitration agreement. Unless CNHI and you agree otherwise, any arbitration hearings will take place in Racine County, Wisconsin. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator). If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of CNHI’s last written settlement offer made before an arbitrator was selected (or if CNHI did not make a settlement offer before an arbitrator was selected), then CNHI will pay you the amount of the award or US $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys' fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
YOU AND CNHI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and CNHI agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
If this Agreement to Arbitrate provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for Racine County, Wisconsin.
14. Revisions; General
CNHI reserves the right, in its sole discretion, to terminate your access to all or part of this Site, with or without cause, and with or without notice. In the event that any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect. These Terms of Use constitute the entire agreement between CNHI and you pertaining to the subject matter hereof. In its sole discretion, CNHI may from time-to-time revise these Terms of Use by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Your continued use of the Site after revisions to these Terms of Use shall constitute your agreement to the revised Terms of Use. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within this Site.
EST Terms and Conditions
General Terms and Conditions for access to and use of the Site
1. Agreement
1. 1. This Agreement shall deem to enter into force by and between the Customer and the Company only upon acceptance by the Customer of the present Terms and Conditions.
2. Subject and scope of the Agreement
2. 1. The present Agreement governs the access and registration by the Customer onthe Site, as well as the purchase by the Customer of the Services, according to the Terms and Conditions expressly defined hereunder.
2. 2. Technical Information shall include all information supplied to authorised Mechanics for the repair and/or maintenance of Company's machines or which related parties may have introduced to the market.
2. 3. The material contained on the Site can be consulted on-line after the Dealer’s Agreement.
2. 4. Aside from members of the Authorised Service Network, only the following subjects may access the Site: companies and individuals supplying vehicle repair and maintenance services, as well as companies operating directly or indirectly in vehicle repair and maintenance, in particular independent producers or distributors of tools or equipment for repairs; independent distributors of spare parts; publishers of technical information; automobile clubs and associations; roadside assistance operators; operators offering testing and inspection services; producers and mechanics for alternative fuel systems; and producers of diagnostics and test equipment.
2. 5. Registration is required to be able to use the Site: by registering, the Customer accepts the Terms and Conditions expressly laid down in this Agreement.
LICENSE AGREEMENT
CONCERNING EST DIAGNOSTIC SYSTEMS
This End User License Agreement (“Agreement”) is a binding legal contract between you (either an individual or a legal entity, also referred to herein as “COMPANY”) and CNH Industrial N.V. or one of its affiliated companies or subsidiaries (“CNH”). By installing, accessing, using or copying the EST Software (as defined below) and any associated user manuals and other documentation provided by CNH, you will be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, CNH is not willing to license any right to install, use, access or copy the EST Software to you. In such event, you may not install, access, use or copy the EST Software.
The parties acknowledge and agree that (a) this Agreement and any amendments to this Agreement, can be entered into electronically and are enforceable in accordance with the provisions of applicable laws govering electronic signatures, and (b) this Agreement shall constitute “original” documents when printed from electronic files and records established and maintained by either party in the normal course of business.
WHEREAS
a. CNH is a company active in the field of manufacturing and selling commercial and industrial vehicles and equipment throughout the world and relevant spare parts there of;
b. The COMPANY, active in the field of repair and maintenance of CNH vehicles and equipment, has either been duly appointed by CNH as a CNH dealer with an authorized workshop entitled to carry out repair and maintenance activities or been accepted by CNH as an Independent Repairer or Independent Operator performing repair and maintenance activities on CNH vehicles and equipment for legitimate business activities;
c. For the purposes of processing CNH vehicle information and technical data, CNH has the EST (Electronic Service Tool) diagnostic system, consisting of both hardware components and software programs;
e)CNH is willing to grant the COMPANY, which is willing to accept, the right to use the EST in its business activities providing also the COMPANY with certain related assistance services via the dealer network;
f)This Agreement sets forth terms and conditions whereby CNH grants the COMPANY a non-assignable, non-sublicensable, non-transferable and non-exclusive right to use EST diagnostic systems for the exclusive purpose of using it in the COMPANY’s activities related to the repair and maintenance of CNH vehicles and equipment
1. DEFINITIONS
1.1 The Parties agree that the following expressions shall have the meaning described below:
“Agreement“: shall mean this Agreement;
“Training and Assistance”: shall mean the training and assistance covering both recommended EST Hardware and EST Software granted hereunder by CNH Dealer to the COMPANY, aimed to solve possible functional and operational problems affecting the EST Hardware and/or EST Software as per Article 7;
“Back-up Copy“: shall mean the back-up copy of the data storage created by the COMPANY as per Article 8.2 below;
“EST”: shall mean the Electronic Service Tool and any Advanced System diagnostic devices, composed both by EST Hardware and EST Software, and any additional associated diagnostic components and software, available in configurations specific to the COMPANY’s contract as respectively described inAnnex 1hereto, implemented and adopted by CNH for the purposes of processing CNH Vehicle or Equipment information and technical data;
”EST Hardware”: shall mean the EST hardware components, available with any configurations as respectively described inAnnex 2, necessary for operating the EST Software;
“EST Software”: shall mean the EST software programs, consisting of a copy of the software in machine-readable form having same characteristics for any configuration as described inAnnex 3, aimed to read andrecord CNH Vehicles data and to store, process, and optionally program CNH Vehicles data;
“Effective Date”: shall mean the date of signature of this Agreement by both Parties which corresponds to the entering into force of the present Agreement as per Article 15;
“EST Software Updates”: shall mean any and all relevant updates to EST Software made progressively available by CNH to the COMPANY by periodic deliveries of software releases via the Internet, and optionally by CD or DVD;
“Fee(s)”: shall mean the fees to be paid by the COMPANY for the License rights, and Training and Assistance service provided hereunder as set forth in Article 12 below;
“CNH Authorized Workshop(s)”: shall mean the Authorised Repairers duly appointed by CNH in order to provide CNH clients with adequate and constant servicing for CNH Vehicles and Equipment;
“Independent Operator(s)”or”Independent Repairers”: shall mean a company or legal entity other than authorised dealers and repairers who is directly or indirectly involved in the repair and maintenance of CNH Vehicles and Equipment;
“CNH Vehicle(s) and Equipment”: shall mean the agricultural, utility or construction vehicles and equipment manufactured and/or sold by CNH throughout the world;
“CNH Website”: shall mean the CNH Service Repair Information Website (https://cnhsri.com) to which the COMPANY shall login as per Article 4.2 and Annex 3 below;
“License”: shall mean the non-assignable, non-sublicensable, non-transferable and non-exclusive right to use the EST Software, including all relevant EST Software Updates, granted by CNH to the COMPANY under this Agreement for the exclusive purpose of using it in its business activities, as per Article 4 below.
“Vehicle Data”: shall have the meaning provided in Section 17.1 below.
2. Scope of this Agreement
2. This Agreement sets out the terms and conditions under which CNH grants to the Company the license to use EST Software against the payment of the License Fees, set out in Article 12, supplies EST Hardware and offers training and assistance for additional Fees.
3. EST Software and Hardware
3. Subject to the registration on the CNH Website, the fulfilment of the form and CNH’s prior approval, CNH undertakes to make EST Hardware available to the Company (through its approved dealer network), for use by the Company to service CNH Vehicles and Equipment.
3. The COMPANY undertakes to install EST Software not later than twenty-four (24) hours from the moment of receiving a License into its possession.
3. The Company acknowledges that the possession of EST Software and acceptance of this Agreement are essential conditions to activate the License of the EST Software and to benefit from the available Training and Assistance. It is understood that mere possession by the COMPANY of the EST Software before accepting this Agreement does not entitle the COMPANY to claim any right related to the License of the EST Software.
3. If the COMPANY deploys the EST Software to diagnose the electronic control units of CNH Vehicles and Equipment, the COMPANY must ensure that the diagnosis is performed solely by appropriately trained, skilled and qualified employees, in a professional and workmanlike manner, and in full compliance with the respective CNH guidelines and the applicable legal requirements and industry standards.
4. EST Software License
4. By accepting this Agreement CNH undertakes to grant to the COMPANY a non-assignable, non-sublicensable, non-transferable and non-exclusive right to use EST Software - available in one configuration as per Article 4.3 below for CNH Authorized Workshops, and optional configurations for Independent Repairers, for the exclusive purpose of using it in its CNH Authorized Workshop or Independent Repairer activities.
4. Pursuant to Article 3.3 of this Agreement, such License will be effective as soon as the COMPANY issues to CNH the specific submission provided by Annex 3 through the CNH SRI Website.
4. As per Article 4.1 above, EST Software configuration will be available in either Option a) Diagnostic read only version or Option b) Diagnosis with Calibration and Configuration;
4. The COMPANY acknowledges that CNH retains title to all rights in and to the EST Software and all relevant documentation, including all intellectual property rights thereto.
4. Each EST Software License shall be assigned to one specific PC hardware, the License granted by CNH to the COMPANY under this Agreement shall be valid solely for such PC hardware.
4. The COMPANY is entitled to create a Back-up Copy of the EST Software. The COMPANY must visibly attach to it the notice “Back-up Copy” and the copyright notice of CNH. Notwithstanding the provisions hereof, it is understood that any type of reproduction and/or duplication of the provided diagnostic programs shall not be permitted. The COMPANY may use the provided programs only in its Authorized Workshop activities. Use going beyond this, as well as any form of transmittal to third parties, is strictly forbidden. In particular, the COMPANY shall not be authorized to sell, lend, lease, transfer and/or otherwise sub-license the EST Software and/or to render it publicly and/or make it publicly accessible to third parties. Alterations to the file structures and/or programs in connection with the diagnostics systems are not permitted. The COMPANY rights under this Agreement cannot be assigned.
4. The COMPANY is entitled to regularly update the EST Software as soon as EST Software Updates are made available by CNH.
4. The Parties agree that at any time during the term of this present Agreement CNH has the right to exploit the Vehicle and Equipment data recorded by the COMPANY in connection with the diagnosis.
5. Changes and modification to the diagnostics system
5. CNH reserves the right to enhance and/or improve its diagnostics platform. If such enhancements and/or improvements are undertaken, the COMPANY shall promptly upon delivery by CNH deploy the changed and/or enhanced diagnostics system in its CNH Authorized Workshop or Independent Repairer activities so that complete and comprehensive diagnostics service can be offered to CNH clients.
5. The provisions set forth in Article 5.1 shall also apply to changes, improvements, updates, upgrades, and other new deliveries made during the term of this Agreement.
6. Training and Programming Features
6. CNH agrees to provide the COMPANY with training courses needed for the use of the EST Software as detailed in Annex 3 which will be made available to the COMPANY via the Authorised Dealer network.
6. The courses described in Section 6.1(b) must be completed prior to any usage of the EST Software.
6. In respect of the courses mentioned Article 6.1(b), the COMPANY will require its employees and agents to take part in such courses at its exclusive expense, so as to continually ensure professional, reliable operation of EST in its business.
7. Training and Assistance Services
7. Upon activation of EST Software, the associated CNH authorized dealer will make available Training and Assistance courses concerning the usage of the recommended EST Software and EST Hardware. Through the availability of these training courses, the user will be instructed on the operation of the EST software, as better described in Annex 2 and Annex 4.
7. Without prejudice to the above, it remains agreed that for the term of this Agreement the CNH authorised dealer shall be solely authorised to manage the availability of Training and Assistance services related to the EST Software and EST Hardware. CNH shall decide at its sole discretion the contractual services to be performed directly by its personnel or to let the same be performed by third parties engaged by CNH. No other third parties will be authorised to provide training services without the prior written authorisation of CNH. It is understood that the COMPANY shall grant CNH, or any third parties engaged by CNH for training or assistance, unrestricted online access to the EST Software and EST Hardware to be serviced.
7. The Training and Assistance services shall not include customs clearance, import/export duties and local taxes.
7. The Training and Assistance services shall not cover problems arising from repair and/or replacement procedures on the EST carried out by the COMPANY.
7. The Training and Assistance services shall not cover any errors or problems arising with EST Software installed on non-recommended or non-supported hardware as described in Annex 2.
8. COMPANY’s Undertakings
8. The COMPANY must promptly report to the CNH dealer any errors, defects and/or malfunctions related to EST Software or EST Hardware, providing all the information needed to eliminate such error and/or malfunction, as well as all related necessary documentation and data.
8. The COMPANY shall take adequate precautionary measures against the loss of data (including Vehicle Data), making therefore on a regular basis, at least once daily, Back-up Copies of all programs and data in machine-readable form, in particular but not limited to, prior to maintenance work being performed.
8. Without prejudice to Articles 10.1 and 10.2 below, the COMPANY shall take all reasonable and appropriate measures and safeguards to protect the security, confidentiality and integrity of EST Software and the Vehicle Data, including against any access, destruction, alteration, acquisition by or disclosure to unauthorised third parties, including but not limited to using it with a reasonable degree of care and storing all copies of the EST Software at a secure and safe location. It is understood that, according to Article 11.2 below, CNH shall not be liable for any malfunctioning and/or defect caused by any lack or inappropriate implementation of such protection measures.
8. The COMPANY undertakes to use EST within its business activities in accordance with any CNH or CNH Dealer specifications, instructions and guidelines, being understood that the COMPANY shall be exclusively liable for any improper, inappropriate and/or incorrect use of EST other than those expressly prescribed by CNH or CNH Dealer specifications, instructions and guidelines. COMPANY shall defend, indemnify and hold harmless CNH or CNH Dealer from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees and court costs, arising out of COMPANY’s breach of the foregoing obligation. CNH shall give COMPANY prompt notice of any indemnified claims, permit the COMPANY to control the defense and settlement of such claims, and reasonably cooperate with the COMPANY in connection with the defense and settlement of such claims.
8. Without prejudice to the above, it is agreed that the COMPANY shall comply with any and all requirements imposed by any local laws and/or regulations eventually in force and/or required by COMPANY’s domestic law, and/or by a court of competent jurisdiction or by another competent authority.
9. Ownership
9. CNH gives no warranty that no infringements of proprietary rights may arise from the right of use granted under the present Agreement.
9. The COMPANY agrees to give CNH prompt written notice if claims are raised against it with the assertion that the diagnostics package or a part thereof, infringes an existing proprietary right.
9. In the event a court of competent jurisdiction determines that the EST Software infringes a proprietary right of a third party, CNH shall at its option, use reasonable efforts to (1) replace and/or modify the diagnostics package in such a way that the asserted infringement of the proprietary right is avoided or (2) terminate this Agreement. This Section 9.3 sets forth the exclusive and entire remedy with respect to any action or claim for infringement of intellectual property by the EST Software or any component thereof.
10. Warranties; Indemnity
10. The COMPANY shall promptly notify the CNH Dealer about any errors, malfunctioning, and/or defect of EST Software in accordance with Section 8.1, being understood that COMPANY claims for defective EST Software are excluded if COMPANY does not give to CNH Dealer written notification of defects at the latest within one (1) week of delivery of the EST Software, and upon delivery non-recognizable defects at the latest within one (1) week of their discovery.
10. COMPANY's exclusive remedy, and CNH's sole liability, for EST Software that does not meet the requirements set forth in Annexes 1 and 3 will be the correction of the defective EST Software within a reasonable time. It remains agreed that the COMPANY shall not be entitled to receive and/or claim any reimbursement and/or reduction in respect of the Fees, including without limitation the following cases: a) malfunctioning and/or defect of the EST Software; and b) non-use, even for long term periods, of EST Software.
10. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 10, THE EST SOFTWARE AND EST HARDWARE ARE PROVIDED TO COMPANY “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. CNH EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF INFORMATION, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE/NON-INFRINGEMENT. CNH DOES NOT WARRANT THAT THE EST SOFTWARE OR EST HARDWARE, TRAINING AND ASSISTANCE, OR OTHER SERVICES OR OTHER DELIVERABLES WILL SATISFY COMPANY’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION OF ANY EST SOFTWARE PROVIDED HEREUNDER WILL BE UNINTERRUPTED OR ERROR FREE.
10. The COMPANY will defend, indemnify, keep indemnified and hold harmless CNH and its affiliates, directors, officers, employees, agents, licensors, service providers, subcontractors and suppliers (individually and collectively, the “CNH Indemnified Party(ies)”) from and against any claims, lawsuits, demands, actions or other proceedings arising from or in connection with (i) a breach or alleged breach of any provision of this Agreement by the COMPANY, any of the COMPANY’s affiliates or any users or owners of the CNH Vehicle or Equipment, (ii) the COMPANY’s, any of the COMPANY affiliate’s or any users’ or owners’ use of the EST Software or related services or the Vehicle Data, (iii) any destruction, loss, alteration, unauthorized disclosure of, or access to, the Vehicle Data caused by the COMPANY, a COMPANY affiliate or a user or owner of the CNH Vehicle or Equipment, or (iv) violation of any law, regulation or third party rights. The COMPANY shall pay any and all costs, damages and expenses, including, without limitation, reasonable attorneys’ fees and costs awarded against or otherwise incurred by CNH Indemnified Parties in connection with or arising from any such claim, lawsuit, action, demand or other proceeding. CNH may, at its own expense, assume the exclusive defense and control of any matter otherwise subject to indemnification by the COMPANY, in which event the COMPANY agrees to cooperate with CNH in asserting any available defenses.
11. Limitation of Liability
11. EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CNH SHALL NOT BE LIABLE FOR:
i. PRELIMINARY DEFECTS, UNLESS THE EVENTS SET FORTH IN ARTICLE 10.1 OCCURRED.
ii. INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, OR BUSINESS) ARISING FROM OR RELATING TO THIS AGREEMENT, OR TO THE USE OF OR INABILITY TO USE THE EST OR SERVICES, REGARDLESS OF THE FORM OF ACTION (WHETHER CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE).
iii. IMPROPER, INAPPROPRIATE AND/OR INCORRECT USE OF THE EST, OR ANY OF ITS COMPONENTS, WHERE IMPROPER, INAPPROPRIATE AND/OR INCORRECT USE MEANS NOT USED IN COMPLIANCE WITH CNH SPECIFICATIONS, INSTRUCTIONS AND GUIDELINES, OR FAILURE TO INSTALL ANY EST SOFTWARE UPDATES;
iv. USE OF COMPONENTS AND/OR ACCESSORIES WHICH ARE NOT SUPPLIED NOR AUTHORIZED IN WRITING BY CNH;
v. VIRUS OCCURRING BECAUSE THE COMPANY HAS NOT INSTALLED AND/OR UPDATED THEIR ANTIVIRUS SOFTWARE;
vi. ELECTRICAL DISCHARGES AND VOLTAGE NOT SUITED TO THE EST TECHNICAL FEATURES, DESCRIBED IN THE CNH SPECIFICATIONS OR IN THE APPROPRIATE PLATES OF REFERENCE;
vii. FOR THE LOSS OF DATA AND/OR COMPUTER PROGRAMS TO THE EXTENT THAT THE COMPANY HAS NOT PERFORMED ADEQUATE BACKUP-COPIES AS PER ARTICLE 8;
viii. FOR THE LOSS OF DATA AND/OR SET UP INSTALLED ON DATA STORING HARDWARE OF THE COMPANY;
ix. LIGHTNING, CARELESSNESS, FLOODS, FIRES, DECLARED AND/OR UNDECLARED WAR, REVOLUTION, INSURRECTION, RIOT, ACT OF TERRORISM.
11. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, CNH’S AND ITS AFFILIATES’ AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, OR TO THE USE OF OR INABILITY TO USE THE EST SOFTWARE, EST HARDWARE OR RELATED SERVICES, WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN NO EVENT EXCEED THE FEES RECEIVED BY CNH FROM THE COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE. 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) OR IN THE EVENT OF PERSONAL INJURY ARISING SOLELY FROM A CNH’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11. COMPANY’S SOLE AND EXCLUSIVE REMEDIES AND CNH’S SOLE AND EXCLUSIVE LIABILITIES ARE SET FORTH IN THIS AGREEMENT
12.Fees and payment
12. The COMPANY undertakes to pay to CNH, or the CNH approved dealer / partner, the applicable Fees as set forth on the CNH website or through the CNH Dealer where the EST software is ordered.
12. It is agreed that settlement of the Fees shall be subject to accounting periods defined by CNH as described herein.
12. Without prejudice to the above, CNH reserves the right to modify and/or adjust the Fees at its sole discretion, giving the COMPANY a prompt notice, should:
a) The EST Hardware be installed by the COMPANY at a different location in respect of the one designated upon signature of the present Agreement; and/or
b) Upgrades and/or enhancements and/changes as per Article 5 deployed by the COMPANY have implied an increment of services to be carried out by CNH.
c) The EST be updated with any additional features.
13. Audit
13. During the term of this Agreement, and for a period of twelve (12) months after its expiration or termination for whatever reason, CNH will have the right to audit and inspect - during normal business hours and upon reasonable notice - also through third parties, at the COMPANY’s premises or at any other place where the Services are carried out, the files and documents in order to verify the use of the EST, in accordance with the provisions of this Agreement and with CNH specifications, instructions and guidelines.
13. The COMPANY shall fully cooperate with any reasonable request(s) made by CNH in connection with auditing COMPANY’s use and performance
13. If the results of the audit show anomalies or misuse of EST, the COMPANY shall indemnify CNH for any damage, loss, cost and expense suffered or incurred by it as a consequence of such anomalies or misuse and will pay the cost of audit.
14. Confidentiality
14. The Parties agree to treat as confidential all confidential information of which it becomes aware in connection with the contractual relationship herein and to use same vis-à-vis third parties only with the prior written agreement of the other Party. Confidential information includes information that the Party providing it has expressly designated as “confidential” and such information whose confidentiality is clearly apparent from the circumstances of the provision thereof, including without limitation to the EST Software, application data, program parts, access codes, access procedures, documentation, and any and all other knowledge associated with EST of which the COMPANY has become aware. The Parties hereby undertake to place their employees and any subcontractors and/or third subject appointed to perform obligations herein under the same duty of confidentiality and to provide corresponding proof of same upon request.
14. The obligations under Article 14.1 do not apply to such information, or parts thereof, for which the receiving Party can show that same:
a) was known and/or generally accessible to it prior to the date of receipt;
b) was known and/or generally accessible to the public prior to the date of receipt;
c) was made known and/or generally accessible to the public without the Party receiving the information being responsible for this.
14. The obligations under Article 14.1 will survive after expiration or termination of this Agreement for further ten (10) years.
15. Term and termination
15. This Agreement enters into force on the Effective Date and shall remain valid and effective for a period of two (2) years.
15. This Agreement may be automatically renewed at CNH’s sole discretion for subsequent periods of twelve (12) months, unless terminated by a Party with one (1) month prior written notice, effective at the end of the respective term. Fifteen (15) days before the one (1) month notice CNH shall communicate to COMPANY any new conditions, if existing, for the following year.
15. This Agreement may be terminated early by CNH after the first twelve (12) months by giving the COMPANY written notice.
15. This Agreement will automatically terminate in the event that the CNH authorized repair agreement in force between CNH Dealer and the COMPANY is expired or terminated for whatever reasons or no longer in force. In such a case, the effective date of termination of this Agreement shall be the effective date of expiry or termination of the authorized repair agreement.
15. In addition to the above, CNH may terminate at any time this Agreement without notice in the following causes:
a. the COMPANY violates the provisions set forth under Articles 4 and 8 concerning the use of EST Software;
b. the COMPANY fails to pay CNH Dealer the Fees when due, in accordance with the terms and conditions set forth in Articles 12;
c. any act of bankruptcy or insolvency by the COMPANY or requests or application of arrangement with its creditors for liquidation of its debts by composition or otherwise;
d. if the COMPANY is a company or partnership, any change in the constitution of the COMPANY or compulsory or voluntary winding up of the COMPANY, or the appointment of a Receiver or Administrative Receiver in relation to the COMPANY’s assets or any of them;
e. judicial proceedings against the COMPANY that could compromise its image and its goodwill, or the image and goodwill of CNH;
f. as set forth in Section 9.4;
g. as set forth in Section 15.6.
15. CNH may, at any time, modify, suspend or permanently discontinue the EST Software, or any portion of its features, functions or products or associated support (including Training and Assistance services), from time to time, with or without advance notice, for any or no reason. CNH will not be liable to the COMPANY or to any third party for any such modification, suspension or discontinuance, nor will CNH be obligated to continue offering support for any suspended or discontinued EST Software or portions thereof.
16. Obligations upon expiry or termination
16. Upon expiry or termination of this Agreement, for whatever reason, the COMPANY shall without delay:
a. immediately pay all sums owing to CNH Dealer whether or not the time for payment has yet arrived;
b. immediately and permanently discontinue using the EST Software, including all EST Software Updates made available by CNH till expiry or termination of this Agreement;
c. remove all installed copies of the EST Software from its computers;
d. either promptly return to CNH Dealer or destroy any created Back-up Copy, at CNH’s sole discretion;
e. return to CNH dealer any EST Hardware not owned by the COMPANY.
16. In the event of expiry or termination of this Agreement, for whatever reason, the COMPANY shall not be entitled to claim any indemnity or compensation whatsoever from CNH.
17. Data and Data protection laws
“Data Protection Laws”means laws, in multiple jurisdictions worldwide, that relate to (i) the confidentiality, collection, use, handling, processing, security, protection, transfer or free movement of personal data, personally-identifiable information or customer information, (ii) electronic data privacy, (iii) trans-border data flow, (iv) data protection or (v) the national provisions applicable to the protection of personal data. The COMPANY is compliant to California Consumer Privacy Act (CCPA) of 2018 and Massachusetts Data Privacy Law (S-120), New York Privacy Act (S5642), Hawaii Consumer Privacy Protection Act (SB418), Maryland Online Consumer Protection Act (SB613) and North Dakota’s (HB 1485). The COMPANY agrees to comply with all applicable Data Protection Laws with respect to collection, use and processing of data and information from or relating to CNH Vehicles and Equipment that is collected, processed or transmitted through the EST Software or the EST Hardware, including without limitation, personal data, error codes, system abuse data and other data relating to the operation of vehicles (“Vehicle Data”) and to place an obligation on its employees deployed in connection with this Agreement and its performance to comply with all applicable Data Protection Laws. Upon request by CNH, the COMPANY shall make available to CNH all information that is reasonably necessary to demonstrate such compliance. The Parties acknowledge and agree that the COMPANY and CNH each act as a separate data controller in connection with Vehicle Data.
17. CNH shall have the right to collect and use all Vehicle Data. CNH shall have the right to use such Vehicle Data for performance of this Agreement, and for purposes of confirming legal compliance and complying with laws, regulations, court orders and subpoenas or similar requests for information by authorities, enforcing and protecting CHN’s legal rights, benchmarking, research, product development and product improvement. CNH is entitled to transmit such data to its affiliated companies and service providers. The COMPANY agrees to the collection and use of such data and agrees to assist CNH in exercising such right.
17. The COMPANY in using the EST software and Hardware to connect to CNH Vehicles and Equipment, represents and warrants that (a) it has obtained all permission and consent from the legal owner of the CNH Vehicle or Equipment necessary (i) for the COMPANY to collect and transmit the Vehicle Data to CNH and for CNH to collect, use, and transmit the data in accordance with Section 17.2, and (ii) as otherwise required by Data Protection Laws, and (b) it has provided all notices to the legal owner of the CNH Vehicle or Equipment necessary to appropriately inform the owner, at the time of data collection, of the collection, use and transmission of Vehicle Data, including the collection of geolocation information, and as otherwise required by Data Protection Laws. The COMPANY shall be exclusively liable for any collection of data without the proper authorization of the legal owner, and indemnify and hold harmless CNH and its affiliated companies from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees and court costs, arising out of COMPANY’s breach of the foregoing obligation.
17. The COMPANY agrees to process Vehicle Data fairly and lawfully, and only to the extent that is necessary to achieve the agreed purposes as set forth in this Agreement. The Company agrees not to use Vehicle Data for any other purposes. CNH takes no responsibility for obtaining consent or making notifications for any processing activities. As a separate controller, the COMPANY is responsible for ensuring that all uses of the Vehicle Data are in compliance with all applicable laws and regulations-
17. Without limiting its obligations in Section 8.3, the COMPANY agrees to take appropriate technical and organizational measures against the unauthorized or unlawful processing of, accidental loss or destruction of, or damage to, Vehicle Data and will review and update the same as may be required for so long as the COMPANY is processing Vehicle Data, having regard to the state of technological development together with the cost of implementing any measures and given the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
17. The COMPANY agrees that, to the extent legally permitted, it will promptly notify CNH of any enquiries or communications (including subject access requests) from data subjects relating to their personal data comprised in Vehicle Data or its processing and in relation to which CNH is a controller. The Company shall bear its own costs and expenses with respect to the provision of such assistance.
17. The COMPANY agrees to provide such reasonable assistance in order to enable CNH to comply with requests from data subjects and/or any supervisory authority and to respond to any other queries, investigations or complaints from data subjects and/or any supervisory authority in relation to which CNH is a controller. The COMPANY shall bear its own costs and expenses with respect to the provision of such assistance.
17. The COMPANY agrees to promptly (and in any event within a timescale to enable compliance with Data Protection Laws) notify CNH of any data breach involving the Vehicle Data in its possession or control, and of any risks of which it becomes aware to the security of Vehicle Data in its possession or control, and the categories of data subjects that may be affected. The COMPANY agrees to provide full and thorough assistance, information and co-operation in connection with any steps that CNH may carry out for the purposes of compliance with Data Protection Laws.
17. At the request of CNH, the COMPANY shall enter into with CNH or its affiliates the standard contractual clauses approved by the European Commission for transfers from controllers to controllers established outside the EEA (the “Standard Contractual Clauses”).
18. Applicable law and Competent jurisdiction
18. Without prejudice to Clauses 7 (Mediation and Jurisdiction) and 9 (Governing Law) of the Standard Contractual Clauses, the Parties agree that this Agreement shall be subject to and governed by the laws of the jurisdiction where the registered office of CNH is located.
18. The Parties acknowledge that in case of disputes arising out and/or connected to the present Agreement shall be exclusively competent the Courts of the place where the registered office of CNH is located.
19.Notice
19. Any notice given hereunder shall be sent by prepaid registered mail or by email to the Parties at the addresses set out below:
a. If to CNH, at one of the mails address: SRI-CNHI@cnhind.com
b. If to COMPANY: The address provided by COMPANY upon registration for the EST Software.
20. Assignment
20. The COMPANY’s rights and obligations under the present Agreement shall not be transferable, assignable or saleable to third parties without the prior written authorization of CNH.
21. Miscellaneous
21. This Agreement sets forth the general understanding of the Parties hereto with respect to the matters covered herein and therein and supersedes all prior contracts, arrangements, communications, representa¬tions and warranties, whether oral or written, by any officer, employee or representative of any of the Parties.
21. Except as expressly provided in this Agreement, the waiver by either Party or the failure by either Party to claim a breach of any provision of this Agreement shall not constitute a waiver of any subsequent breach or effect in any way the effectiveness of that provision.
21. Should any provision of this Agreement be and/or become ineffective and/or unenforceable, all other provisions shall remain in full force and effect. In such case, the Parties undertake to replace the ineffective or unenforceable provision with an effective or enforceable arrangement that corresponds as far as possible to the spirit and purpose of the provision to be replaced, insofar as dispositive law lacks any gap-filling norm.
21. The Product is administered by or for CNH from offices at various locations globally. The COMPANY may not use or export or re-export the EST Software or its content or any copy or adaptation in violation of any applicable local laws or regulations including, without limitation, United States export laws and regulations.
22. Annexes
22. The following Annexes shall be considered as integral part of the present Agreement:
a) Annex 1: EST Diagnostic System - Description of EST and configurations
b) Annex 2: EST Hardware
c) Annex 3: EST Software
d) Annex 4: Assistance Service
Annex 1 EST Diagnostic System: Description of EST
The EST ( Electronic Service Tool ) is the software used to communicate with CNH vehicles and equipment. The software can be configured in the following manner
1. Read only,
2. Read, Calibrate and configure
Note:- Not all software configurations will be available on all vehicles.
Annex 2 EST HARDWARE
The EST ( Electronic Service Tool ) Hardware consists of
1. A recommended Panasonic Laptop from the approved model range (as available through the CNH approved Dealer / Partner)
2. A VCI (Vehicle Communication Interface) (as available through the CNH approved Dealer / Partner)
Annex 3 EST SOFTWARE – Brand configuration
The EST ( Electronic Service Tool ) may be configured in any combination of the following brands dependent on the licence configuration and contract.
1. Case IH
2. Case Construction
3. New Holland Agriculture
4. New Holland Construction
5. Flexicoil
6. Miller
Each brand may have an associated regional brand depending on local contract. CNH reserves the right to change, update or modify the brand configuration at any time.
Annex 4
Training and Assistance
5A. The Training and Assistance available through the CNH Dealer is aimed to cover exclusively the following services for the EST Hardware and Software:
a) Correct installation of the EST software on the approved CNH Hardware;
b) Correct usage of the EST software and approved hardware; (product specific)
c) Support (if required) during training in the event of a restore (EST Software only);
5B. CNH shall not provide Training and Assistance in the following cases:
a) delivery and/or replace of additional equipment not expressly listed hereof;
b) external cleaning of the EST Hardware;
c) delivery of accessories;
d) set-up of the equipment;
e) alteration of machine functions;
f) usage of non-recommended hardware for the operation of the EST Software.
g) if the COMPANY carried out modifications and/or changes and/or enhancements to the EST Hardware in use after EST software installation, and these modifications caused the EST software to malfunction.
h) if interventions on the EST Hardware are performed by personnel not authorised by the COMPANY or CNH.
5C. If needed by CNH Dealer to perform the Training and Assistance services hereunder, the COMPANY shall provide any on-site CNH dealer personnel, and/or third party engaged by CNH with suitable office space, common office equipment support and adequate computer resources which may be necessary to enable CNH’s personnel to perform, or any third party engaged by the latter, to perform the activities under the present Agreement.
5D. The Training and Assistance services are provided during the normal business hours at a CNH Dealer or authorised third party location.
eTim - Terms and Conditions
General Terms and Conditions for access to and use of the Site
1. Agreement
1. 1.This Agreement shall deem to enter into force by and between the Customer and the Company only upon acceptance by the Customer of the present Terms and Conditions.
2. Subject and scope of the Agreement
2. 1.The present Agreement governs the access and registration by the Customer on the Site, as well as the purchase by the Customer of the Services, according to the Terms and Conditions expressly defined hereunder.
2. 2. Technical Information shall include all information supplied to authorised Mechanics for the repair and/or maintenance of Company's machines or which related parties may have introduced to the market.
2. 3. The material contained on the Site can be consulted on-line after the Dealer’s Agreement.
2. 4. Aside from members of the Authorised Service Network, only the following subjects may access the Site: companies and individuals supplying vehicle repair and maintenance services, as well as companies operating directly or indirectly in vehicle repair and maintenance, in particular independent producers or distributors of tools or equipment for repairs; independent distributors of spare parts; publishers of technical information; automobile clubs and associations; roadside assistance operators; operators offering testing and inspection services; producers and mechanics for alternative fuel systems; and producers of diagnostics and test equipment.
2. 5. Registration is required to be able to use the Site: by registering, the Customer accepts the Terms and Conditions expressly laid down in this Agreement.
3. Registration process
3.1. Registration is required in order to gain access to and use the Site. This is performed by completing the form found on the Site, certifying full and complete acknowledgment and agreement with all these Terms and Conditions. The registration form must be filled out in full, truthfully and in good faith. The Company reserves the right to definitively withdraw access to the Site without prior notice if the Customer concerned is found to have supplied incomplete or untruthful information, or if they are found not to meet the requirements indicated above in section 2.4.
3.2. Registration requires the Customer to supply information regarding: personal data and contact details including email address and other information necessary for registration or, where authorized, sending of commercial information.
3.3. After supplying and confirming the required information, the Customer will receive an email with a username and a temporary password which will allow his to specify a personalized password giving access to the Site and available Services.
3.4. Information on handling of personal data is given in the Privacy section.
3.5. The Customer is solely responsible for safeguarding its username and password and any access and use of the Site resulting from it.
3.6. The Customer is solely responsible for any and all expenses relating to the procurement of hardware, software and telecommunications services necessary to use the Services. The Customer must immediately notify the Company of any unauthorized use of its password, and promptly disconnect from the Site in this case.
4. Fees for use of the Site
4.1. Site access methods and durations are determined by the agreement with Your Dealer.
4.2. In the case of the online reprogramming/configuration service for control units/electronic components of the machines, the connection duration runs from the date and time the service is activated, whatever the day of registration. The Customer, once registered, activates the connection for the service which finishes when the service has been correctly supplied, independently of the actual connection time. The Customer shall be responsible for ensuring the suitability of the equipment and infrastructure at its disposal (PC, software, connection speed and hardware).
4.3. The Customer must activate the connection to the Technical Information purchased as per above within 6 (six) months of the date of purchase: after this time the purchase will expire and no refund shall be due by the Company.
4.4. The Customer must complete transaction-based services purchased as per above within 6 (six) months of the date of purchase: after this time the purchase will expire and no refund shall be due by the Company.
5. Access to the Site
5.1. Access to the Site is possible 24 hours a day, 7 days a week, except for situations caused by force majeure or scheduled maintenance. It is hereby expressly agreed that the Company CNH INDUSTRIAL may, at any time, interrupt, limit, suspend, or fully or partially restrict access to the Site or Services in order to perform updates or maintenance operations or to resolve technical problems relating to the servers, networks or software used for their supply, or due to breach by third-party suppliers of services. The Company may also modify, add to or suspend a service at any time, in which case the Customer shall be informed.
5.2. The Customer nevertheless hereby recognizes that the public nature of the internet prevents the Company from guaranteeing that: i) The Customer is able to access the Site or a particular service at any time, ii) Access not be interrupted, and iii) Access be free from any errors.
5.3. The Customer recognizes that neither the Company nor its suppliers are responsible for, and shall not be liable for any damages due to, the interruption, suspension, modification or withdrawal of the Site or any of its services.
6. Intellectual property rights
6.1. All text, drawings, images, graphics and other materials found on the Site are intellectual property of the Company, its affiliates and licensees. The Company or its affiliates hold all rights regarding the selection, organization and management of materials on the Site.
6.2. All trademarks displayed on the Site are subject to exclusive rights on Company's or its affiliates' brands. Unauthorized use of any trademark displayed on this Site is absolutely forbidden.
6.3. The Site, including all materials, is protected worldwide by applicable legislation regarding intellectual property rights and its use, whether or not there is a declaration present on the Site regarding such rights for the materials. The Customer commits to respect all worldwide laws on intellectual property rights with regard to the Site and its use, and to prevent and not carry out unauthorized reproduction of these materials.
7. Guarantees, responsibility and limits of responsibility
7.1. The Customer commits to respect all regulations under this Agreement governing the use of the Site, Services and Technical Information, as well as all national and international laws and regulations governing the Customer's use of the Site, directly or via third parties.
7.2. The Customer commits above all to:
- Not use the Site fraudulently, illegally or without authorization
- Not use the Site and its Services in violation of current laws and regulations, intellectual property legislation and requirements laid out by the Company
- Not use the Site in such a way as to impede or interfere with access by other Customers
- Not remove, hide or damage any declaration of copyright, trademark or declaration of property rights added to or contained within the Site and its Services.
- Not permit unauthorized disclosure or reproduction of any part of the Site or information obtained from it
- Not authorize any third party to access, use or benefit from the Site or its contents
- Not create frames on other websites using information elements obtained through or referring to the Services
- Assume responsibility for security and/or use of their personal username and password and not to give these to third parties
- Use the Site in conformity with the terms of this Agreement
7.3. The Company, taking circumstances into account, may take all measures deemed necessary and suitable as regards the Customer's use of the Site. Specifically, the Company may interrupt, limit, suspend, or fully or partially restrict access to the Site, without prior notice or compensation, due to incorrect behavior or failure to observe applicable laws and regulations or the terms laid out in this Agreement by the Customer.
7.4. The Company shall not be responsible for direct or indirect damages incurred by the Customer or a third party due to the Customer's use of or reliance on the Technical Information and Services provided by the Site. The Customer shall indemnify and guarantee the Company against any action, indemnity or request for damages resulting from or linked to an action or omission on the Customer's part or resulting from or linked to use of the Site or Services.
7.5. The Company makes the Site available purely for informational purposes. It shall remain the full responsibility of the Customer, as an expert in service and repair of Company's Products, to ensure the suitability and accuracy of any information downloaded from the Site and the manner in which this is used. The Company makes no guarantee that the information available through this Site is accurate, complete or up to date; or that the Site or anything contained within is free from errors and omissions.
7.6. The Company shall not and cannot be held responsible for repair and maintenance operations performed on the Products by the Customer or by third parties using the Technical Information and/or Services offered by the Site, inasmuch as full responsibility rests with those actually performing these operations.
8. Duration of the Agreement
8.1. This Agreement enters into force only upon acceptance by the Customer of the present Terms and Conditions for an indefinite period. Both Parties may withdraw from the Agreement at any time by serving to the other Party a written notice via registered letter with return receipt.
8.2. Notwithstanding the above, it is agreed that the Parties may terminate this Agreement at any time in case of breach by one Party of one or more obligations under this Agreement.
9. Auditing rights
9.1. The Company shall have the right to perform a periodic audit of the Customer's use of the Site, in full respect of this Agreement's privacy clauses, in order to ensure that the Customer is respecting the terms of the Agreement.
10. Site Updates
10.1. The Company reserves the right to modify and/or update at any time the methods for accessing the Site. These modifications and/or updates require of the Customer that they regularly consult the Site to check the applicable conditions.
11. General Provisions
11. 1.Assignment.
The Customer may not transfer any right or obligation under this Agreement without prior written authorization from the Company.
11.2. Waiving of rights
The fact that one Party does not make use of a right, power or prerogative recognized by these Terms and Conditions, or delays in doing so, shall not be interpreted as waiving said right, power or prerogative. The waiving of a right shall be effective only if established by a document signed by the Party subject to its effects.
11.3. Notices.
All notices and servings regarding the present Agreement must be sent by post or fax and confirmed by registered letter with return receipt.
11.4. Independence of clauses.
The full or partial invalidity or inapplicability of any term or clause in this Agreement shall not result in the invalidity or inapplicability of the remaining terms or clauses with regard to current laws and regulations.
11.5. Force Majeure
The following shall expressly be considered acts of force majeure under this Agreement, in addition to those normally considered as such under Italian law: industrial action and strikes both internal and external to the company, severe weather, governmental and legal restrictions and modifications of commercial practices, computer faults and communications outages, deterioration of Company's servers, and any and all other cases outside Company's express control.
The occurrence of a case of force majeure shall initially cause the suspension, under law, of the execution of the present Agreement. If, after a period of 3 (three) months, the Company and the Customer find that the case of force majeure is still in effect, this Agreement shall automatically be terminated under the law, save for agreement to the contrary between the Company and the Customer.
12. Resolution of disputes
12.1. The Parties shall act in good faith to resolve any disputes which should arise regarding this Agreement. Disputes shall include, but not be limited to, the following: application/interpretation of the Agreement, availability of technical documentation (repair manuals, time schedules, spare parts catalogues, training), completeness of the technical documentation, languages in which the documentation is available, correctness of the technical documentation, website subscriptions, technical documentation and diagnostic equipment purchase orders, prices and discounts, payments, website interruptions/outages (if ascribable to the Company). The mediation procedure shall not apply to disputes not directly ascribable to this Agreement and to the Technical Information present on the Site, including, but not limited to: delays in delivery of spare parts and/or Company's original equipment, delays in the repair of Company's vehicles owing to delays in the delivery of spare parts and/or Company's original equipment, warranty and product claims regarding Company's vehicles, general claims regarding Company's vehicles, claims regarding dealers and/or mechanics of the Company's network, claims regarding vehicle assistance and servicing.
12.2. Unless otherwise agreed between the Parties, whenever they should not have settled the dispute via mediation within 45 (forty five) days of its start, the dispute may be submitted to the Civil Court.
12.3. The mediation procedure shall not pre-empt any rights the Customer may have to file a claim directly with the Civil Court, .
13. Approval of this Agreement
13.1. The Customer declares they have read and agree with this Agreement in its entirety.
Technical Requirements
The technical requirements which Independent Operators will have to meet to reprogram vehicles are listed below The technical requirements are organized into:
• PC configuration requirements
• VCI/ECI requirements
PC configuration requirements
Minimum recommended configuration:
a. 1.50 Ghz (1500 Mhz) processor minimum
b. 4 GB RAM minimum
c. Minimum 10 GB free hard-disk space
d. Display resolution 1024x768 minimum
e. High-speed internet connection (>=6Mbps)
Software requirements:
a. Microsoft Windows™ 10 64 bit OS
b. User signed on as administrator
c. Internet Explorer 10.0 or later web browser
d. Adobe Acrobat Reader version 10 or later
VCI requirements
A VCI is required, available from Company compatible with RP1210 standards, meeting the following requirements:
1. The link between the PC and VCI/ECI must use a USB connection
2. The VCI driver and relative software must be installed by the independent operator
3. D-PDU API setup must conform with Windows 64 bit
4. The link between the vehicle and VCI/ECI must be compatible with the pin-out of the connector present on the vehicle
IMPORTANT:
The Company does not deal with third-party VCI performance. The Company SW and relative vehicles conform to RP1210 as regards connections to the VCI, while the VCI manufacturers are responsible for their devices' correct operation with each Company vehicle using Company SW.
Important:
The information contained in this Site may not be up to date due to modifications that the Manufacturer may make at any time for technical and/or commercial reasons. Therefore, information on repairing some components may not be present in as much as they require repair operations to be performed directly by the service network of the Manufacturer of the component itself.
This Site is continuously updated in order to best respect legislative changes and requirements. Some search methods may not yet be completely optimised, such as searching by term, by component or wiring diagram, by DTC or by symptom, even though the information necessary for the repair operation to be performed on the Company's vehicle is available on the Site. In this case it is recommended you consult the document indices, or else perform further filtering of the results using the search tools offered by the portal. The technical evolution of this site will allow vehicle identification by product features and type-approval number publication.