TERMS AND CONDITIONS FOR USAGE OF THE JCB APP



By ticking the I agree with the terms and conditions the Customer confirms having understood both the benefits and features of APP service, to opt to avail the APP services and, therefore, enters into this Agreement with JCB India Limited ("JCB India") for the use of the APP Service (defined below) including Hardware, Software; Web Services etc. The Customer accepts that the usage of the Service (defined below) would give the Customer the advantage of JCB Machines Diagnostics, a server managed application by JCB India and it will also allow JCB India to identify certain predefined details of Machine and user. 

  1. DEFINITIONS
    In this Agreement the following words and expressions shall have the following meaning unless the context otherwise requires:

"Agreement" shall mean this Agreement, together with the recitals and any amendments thereto;

"Applicable Laws" shall mean any law, statute, rule, regulation, ordinance, direction, guideline, judgment, award, decree, writ or other binding action or condition imposed by any government department/agency or instrumentality of any governmental authority, or any court or arbitral tribunal or any self-regulatory body in India which is applicable to a Party or to which its business or assets may be subject.

"Confidential Information" means information received/downloaded from "App", and other information received as SMS, email etc generated by/through machine data and also includes customer’s user id or password or Phone number

"DSM Service" shall mean the data and software management services, including acquiring, processing, analysing and utilizing the machine and user data for diagnostic and operational purposes

"Effective Date" shall mean the date of execution of this Agreement and/or the date on which the Customer purchases the equipment, whichever is earlier;

"Equipment" shall mean Construction and Earth Moving Equipment e.g. Excavators, Loaders etc. and Parts amp; Components thereof manufactured by JCB India;

"JCB Dealer" shall mean a person, persons or corporate body who has entered into a Dealership Agreement with JCB India in relation to JCB Equipment’s, and any other dealer authorized by JCB;

"JCB India" shall mean JCB India Limited;

"APP Service" shall mean a service which enables the Customer to Diagnose the Equipment via a mobile phone, described in detail in Clause 2.2 hereof;

"Machine Data" shall mean the data that is generated by the use of, collected by, or stored in the Equipment;

"Service" shall mean the Web Service and the DSM Service collectively.

"System Data" shall mean the Machine Data and Web Application Data collectively;

"Term" shall have the meaning ascribed in Clause 6.1 hereof;

"Unauthorized Purpose" shall have the meaning ascribed to in Clause 2.3 hereof;

"Web Application Data" shall mean the subset of Machine Data accessible via the Web Service and any other data added to the Web Service by the Customer;;

"Web Service" shall mean the web based solution which enables the Customer to use, view and manage data pertaining to the Customer or the Equipment or other information and data regarding JCB Products., on one or more servers managed by JCB India.

"Web Service Account" shall mean the account of the Customer on the Web Service accessed through a username and password. 

“APP Data” shall mean Data collected from APP during diagnostic procedure 

 

“Customer” shall mean the person using the APP , here its Dealer or Service Engineer

  1. SERVICE

    1. APP Service

      1. APP Service shall be provided to the Customer, enabling the Customer to monitor and manage the Equipment via a Phone or Tablet. 

      2. To enable the Customer to use the APP Service on Equipment, the APP Service for that Equipment must first be activated. The activation will be performed by JCB Dealer acting at the discretion of and on behalf the JCB India. 

      3. Upon expiration of APP Service initial subscription period, the APP Service will cease unless Customer elects to re activate the subscription

 

  1. The Customer may receive short message service ("SMS") on his/ her registered mobile phone and/ or an e-mail on the registered email address as part of the APP Service. The Customer hereby authorizes JCB India to send SMS and/ or emails to the Customer. The customer may unsubscribe to the above mentioned messages by contacting the area service manager 

  2. The customer acknowledges that information received through SMS, email or any other information may be delayed/not received which shall not be attributable to JCB India and JCB India shall not be liable and responsible for the same. 

  1. Passwords, Security and Authorizations

    The Customer shall be assigned a username and password for access to and use of the APP Service. The Web Service Account will enable the Customer to control access to and use of the Web Service. The Customer agrees to the following terms to ensure proper use of the Web Service: 

    1. The Customer agrees not to allow anyone else to use the APP Service Account.

    2. The Customer agrees to not use the APP Service or any information provided therein for an illegal or improper purpose, or take steps that would have a negative impact on the security, integrity or functioning of the System. The Customer further agrees not to use a third party’s APP, software or service to access JCB Equipment.

  2. Misuse of Service

    The Customer shall not use the Service for any Unauthorized Purpose or in such a manner as to interfere with the use by other customers of the System. "Unauthorized Purpose" includes, but is not limited to: 

    1. Use with intent to avoid payment of charges due under this Agreement;

    2. Access to, use of, alteration of, or destruction of the System Data files, programs, procedures, or information related to the Customer or any other customer of JCB India; 

    3. Use with the intent to reverse engineer or clone the System;

    4. Use for any unlawful, illegal or fraudulent purpose;

    5. Bypass the APP System.

    6. Store, transmit and distribute any virus and other malwares. 

    7. Hacking the Web Service. 

  3. Transfer of service 

    1. In the event of the Customer moving out from JCB, Customer will not be eligible for any Services from the JCB Dealer and JCB India shall have the right to terminate the Services. 

    2. During the Term, the Customer shall have access to and shall be permitted to use the Service as may be provided by JCB India. 

  1. APP Services

    The hardware and software shall together constitute the  APP Service which enables the System to connect and exchange data with the APP and hardware ECU- 

    1. The Customer accepts that the collection and storage of data pertaining to the Equipment is to the Customers’ advantage and for the benefit of the customer. The customers shall at no stage have any objection or raise any issues in regard to the data collected by JCB pertaining to the Equipment. 

    2. JCB India reserves the right to deactivate the APP or its service, and to bill the Customer for the reimbursement of any of the additional expenses incurred by JCB India as a result of the Customer using the APP for any purpose other than utilizing the APP Service. 

    3. The APP may contain proprietary software code of JCB India or any third party software code licensed as part of this software. JCB India grants to Customer a non-exclusive, revocable license to use the APP and Services. 

 

  1. DATA

    1. Access/ use of Data by JCB India and JCB Dealers

      1. JCB India may provide access to and not restrict and use of APP Data 

      2. The Customer hereby agrees that JCB India and JCB Dealers including any subsequent purchasers of such JCB Dealers shall have the right to access and not restrict use of System Data. 

      3. Further, the Customer acknowledges and agrees that the System Data may be shared with the JCB HQ and JCB group of companies for global level analysis.
        The Customer hereby consents to the collection, use and disclosure of personal information as contained in the System Data for business purposes. 

    2. Data Retention Policy
      JCB India will store the APP Data in compliance with all applicable laws. JCB India shall have the right to delete the APP Data at any time upon expiration of the retention period in compliance to applicable laws.
      Permission is granted to electronically copy and print in hard copy data from the Web Service for the sole purpose of using the Web Service as a resource in regard to the Equipment. Any other use of data on the Web Service, including reproduction for purposes other than those noted above, such as the modification, distribution or republication, without JCB India’s prior written consent is prohibited. 

  2. TERM AND TERMINATION

    1. Term This Agreement shall become effective immediately upon the Purchase Date of the Equipment. This Agreement shall continue to be in full force for as long as the Customer is using the Equipment ("Term"), unless terminated in accordance with Clause 5.2 below. Upon expiry of this Term, the Customer may renew the Agreement subject to acceptance of JCB India. 

    2. Termination The occurrence of any of the events mentioned in this clause 5.2 shall constitute a material default and breach of this Agreement, and shall allow the non-defaulting party to terminate this Agreement and/ or the applicable Service subscription after the expiration of the applicable period of cure, if any. This Agreement may be terminated prior to the expiry of the Term, upon the occurrence of the following events: 

      1. The Customer fails to pay all/ any sums when due, which it is obligated to pay hereunder;

      2. An unauthorized disclosure is made by the Customer or if the Customer uses the Service for an Unauthorized Purpose; 

      3. Any material default by either party other than those set forth above, which is not cured within 30 (thirty) calendar days after the defaulting party receives written notice of such default; or 

    3. Termination for Convenience by JCB India
      JCB India shall have the right to terminate this Agreement and/ or any Services upon thirty (30) day notice to the Customer. Unless such termination is for the purpose of compliance with Applicable Laws, regulations, or court orders, upon such Termination, JCB India shall reimburse the Customer a prorated portion of the Service fees Customer has paid to JCB India. Any such reimbursement shall be JCB India’s sole liability to the Customer for any such termination for convenience. 

  3. CONFIDENTIALITY

    During the Term and for the period of three (3) years thereafter, the Customer shall:

  1. disclosure such Confidential Information to its employees and consultants on a need to know basis and only in the course of fulfilling their scope of work; and 

  2. not disclose such information to any third party, without prior written approval of JCB India.

  1. LIMITATION OF LIABILITY AND REMEDIES 

  1. To the extent permitted by Applicable Law, JCB India’s entire liability and Customer’s sole and exclusive remedies for any damages arising from the performance or non-performance under this Agreement related to the use of the Service shall be the remedies set forth herein. JCB India shall not be liable for any loss or damage arising from the Customer’s failure to comply with the provisions set forth in this Agreement. JCB India makes reasonable efforts to place accurate, current content on the Web Service. However, JCB India makes no warranties or representations as to its accuracy and assumes no liability or responsibility for any errors or omissions in the content of the Web Service. Under no circumstances, including, but not limited to, negligence and gross negligence shall JCBI Limited be liable to Customer for all damages, losses and causes of action exceed the amount paid by the Customer, if any, for accessing the Web Service. In no event shall JCB India be liable for any direct or  indirect or incidental or special or consequential damages or for any damages whatsoever including without limitation damages for loss of use data or profits arising out of or in any way connected with the use or performance of the Web Service for interrupted communications delay lost data or lost profits arising out of or in connection with this agreement even if JCB India has been advised of the possibility of damages or inability to use the JCB APP Service or related services the provision of or failure to provide services or for any information software products services and related graphics obtained through the Web Service or otherwise arising out of the use of the Web Service whether based on contract or negligence strict liability or otherwise even if JCB India or any of the JCB Dealers have been advised of the possibility of damages. JCB India does not endorse in anyway any advertisers/ contents of advertisers on its webpages. 

  2. The Customer acknowledges and agrees that: 

  1. The service provided to JCB India by the Service Provider shall be available for use only with Equipment’s or other equipment’s approved by the Service Provider.

  1. DISCLAIMER OF WARRANTIESM

    The warranty of the APP would run concurrent to standard warranty as per JCB India’s Terms and conditions. 

  2. ASSIGNMENT

    Neither this Agreement, nor any rights, duties or interest herein, shall be assigned, transferred or sublicensed by Customer without JCB India’s prior written consent, not to be unreasonably withheld. Any such action shall be void and shall constitute a material default entitling JCB India to terminate this Agreement. 

  3. GOVERNING LAW / JURISDICTION

    This Agreement and the relationship between the Parties hereto shall be governed by, and interpreted in accordance with the laws in India. The courts at Faridabad shall have the exclusive jurisdiction in relation to all matters arising out of this Agreement. 

  4. AMENDMENTS

    This Agreement and/ or the Web Service may be changed at any time. The Customer’s (a) written or electronic signature, (b) use of the Web Service, (c) access or use of the website or (d) download or use of any of the information from the website (where allowed), shall mean that the Customer accepts the changes made to the Agreement and/ or Web Service. If the Customer does not agree to the change in the Agreement, it should immediate cease using the website, or the Web Service 

  5. AUTHORITY AND ENFORCEABILITY

    This Agreement and the written obligations entered into and undertaken in connection with the transactions contemplated hereunder shall be considered as valid and legally binding, enforceable in accordance with its respective terms. 

  6. FORCE MAJEURE

    Except for the payment of money, neither party shall be liable to the other for failure or delay in the performance of a required obligation if such failure or delay is caused by acts of God, natural disasters, strikes, war, acts of terrorism, civil disturbances, compliance with governmental laws or orders, or any other events which are beyond the reasonable control of such party, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided that the other party may terminate this Agreement if such condition continues for a period of sixty (60) days without demonstration by the non-performing party of the ability to resume performance of its obligations within a reasonable period. 

  7. NO BREACH, CONSENT

    The execution, delivery and performance of this Agreement do not:

  1. Require the consent of any third parties;

  2. conflict with or result in a violation, contravention or breach of any of the terms, conditions or provisions its constitutional documents, if any; and 

  3. Violate or result in a breach under any agreement or Applicable Law or other legal requirement as applicable. 

  1. ACKNOWLEDGEMENT

    The Customer accepts and acknowledges receipt of this Agreement by performing any of the following: (a) purchase of the equipment (b) activating or setting up the App Service or using the Web Service account (c) accessing.

  2. CUSTOMER SUPPORT

    Contact Area Service Manager