Cat^®Embedded Software License Agreement

THIS PARAGRAPH CONTAINS AN IMPORTANT NOTICE. PLEASE READ IT CAREFULLY. SECTION 23 OF THIS DOCUMENT CONTAINS A BINDING ARBITRATION PROVISION THAT REQUIRES ARBITRATION ON AN INDIVIDUAL BASIS (RATHER THAN JURY TRIALS OR CLASS ACTIONS), LIMITS THE TIME PERIOD WITHIN WHICH YOU MAY BRING A CLAIM AGAINST CATERPILLAR, AND INCLUDES A WAIVER OF YOUR RIGHT TO A TRIAL BY A JUDGE OR JURY OR TO PARTICIPATE IN A COLLECTIVE OR CLASS ACTION AGAINST CATERPILLAR.

Cat^® Embedded Software License Agreement

Please read this Cat^® Embedded Software License Agreement (this “Agreement”) carefully. By clicking “ACCEPT” (or a similar term) to this Agreement, or by accessing or using the Software (as defined below), you consent to be bound by this Agreement.

This Agreement is between you as the owner or operator of the Machine (as defined below) (or if applicable, the entity that you represent, “Customer”), and Caterpillar Inc., a Delaware corporation, and applicable Affiliates, including Caterpillar SARL (“Caterpillar”). This Agreement governs Customer’s access to and use of Software installed, embedded or otherwise resident on Machines, and all related Documentation and Provided Data. Caterpillar and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

CATERPILLAR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING “ACCEPT,” ACCESSING, UPDATING OR USING THE SOFTWARE (OR ANY PORTION THEREOF), (A) YOU affirm and represent to Caterpillar that you are of legal age and have the legal capacity to enter into this Agreement on behalf of CUSTOMER, and (B) CUSTOMER ACCEPTS THIS AGREEMENT AND AGREES THAT IT IS LEGALLY BOUND BY ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CATERPILLAR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO CUSTOMER AND NEITHER CUSTOMER NOR ANY OTHER PERSON OR ENTITY ACTING ON BEHALF OF CUSTOMER MAY INSTALL, UPDATE, ACCESS OR USE THE SOFTWARE, DOCUMENTATION OR PROVIDED DATA.

1. Definitions.

“Affiliate” means any legal entity that controls, is controlled by or is under common control with a Party (but only for so long as such control exists), where “control” means ownership of more than fifty percent (50%) of the equity or other interests entitled to vote in the election of directors or corresponding managing authority of the Affiliate; provided that if the percentage of control permitted under applicable Laws is below the foregoing percentage, then such percentage shall apply.

“Authorized User Notice” means the Authorized User Notice presented to the Authorized User during normal operation of a Machine, including upon start-up.

“Authorized Users” means any person who Customer or Customer’s Affiliates authorize to access and use the Machines and Software.

“Provided Data” means the Machine Data specific to the Customer’s operation of the Machine and is made available to Customer via on-board machine interfaces, API(s), FTP or other similar data transfer service, including from related Caterpillar web-based applications (e.g., VisionLink®) for which Customer holds a then-current, valid subscription. Provided Data excludes (i) any Caterpillar confidential information, proprietary data, personal data, trade secrets, or data derived from, utilized with or describing proprietary algorithms, (ii) any data for training of computational models used for image classification, machine learning, and/or artificial intelligence systems, and (iii) any further processing of Machine Data.

“Documentation” means user manuals, technical manuals, and any other materials provided by Caterpillar, in printed, electronic, or other form, which describe the installation, operation, use, or technical specifications of the Machine or Software.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise known or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, including common law protection, in any part of the world.

“Law(s)” means all federal, state, provincial, local or municipal law, statute or regulation with which a Party is legally required to comply.

“Limited Warranty” means the Cat® Limited Warranty applicable to the purchase of a new Machine or Cat® Certified Rebuild, as applicable.

“Machine(s)” means the machine or equipment manufactured by or on behalf of Caterpillar or its Affiliates, including any components or subassemblies thereof, on which the Software is loaded, embedded, processed, stored or otherwise resides.

“Machine Data” means all data, messages, alerts and other information measured, observed, displayed, received, processed, generated or calculated by a Machine’s on-board systems including all Provided Data and Proprietary Data.

“Proprietary Data” means Machine Data that is not Provided Data and shall include test data (including, but not limited to, field follow data, prototype data, evaluation data, development data) shared from the Machine from time-to-time.

“Software” means the on-board application software provided by Caterpillar including operating system, user interface, embedded firmware, machine and software interfaces, drivers, networks or other software loaded, embedded or otherwise residing, in whole or in part, at any time and for any duration on the Machines, provided however, excluding third-party software.

“Trial Software” means the pre-production release of Software, which is licensed for the purpose of evaluation, testing or other non-commercial use.

“Update” means any updates, bug fixes, versioning, revisions, patches or other error corrections to the Software that Caterpillar makes available to Customer.

2. License Grant. Subject to and conditioned upon Customer’s compliance with all terms and conditions set forth in this Agreement (including Section 8) and to the extent not contradictory to the EU Data Act (Regulation EU 2023/2854) (i.e. where the EU Data Act applies to certain Provided Data), where applicable, or other applicable Laws, Caterpillar hereby grants to Customer a non-exclusive, non-sublicensable, limited license subject to the restrictions of Section 8 hereof during the Term to access and use, by and through its Authorized Users, the Software, Provided Data and Documentation solely in a reasonable and lawful manner in accordance with the Documentation. This license grants Customer the right, exercisable solely by and through Customer or Customer’s Authorized Users, as applicable, to:

2.1. Use and run the Software solely to operate the Machine for its intended purposes; and

2.2. Download and use the Documentation, solely in support of its licensed use of the Software in accordance herewith.

All copies of the Software and Documentation made by Customer will be the exclusive property of Caterpillar; will be subject to the terms and conditions of this Agreement; and must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original. The Software is made available only for use in Customer’s trade, business, craft, or profession, and is not intended or licensed for use by consumers in a personal capacity.

3. Trial Software. To the extent Software licensed under this Agreement is Trial Software, Customer may only use the Trial Software for evaluation, training, testing or other non-commercial uses. CUSTOMER UNDERSTANDS AND AGREES THAT TRIAL SOFTWARE MAY CONTAIN DEFECTS AND ERRORS AND ALL TRIAL SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OR REPRESENTATION OF ANY KIND AND CATERPILLAR WILL HAVE NO LIABILITY UNDER THIS AGREEMENT WITH RESPECT TO TRIAL SOFTWARE. Caterpillar reserves the right at any time without prior notice to change, discontinue, suspend or withdraw any Trial Software. Upon any such termination, Customer must install the most current recommended version of the Software to which the Trial Software relates, which may be the previously installed version.

4. OPERATIONAL RESPONSIBILITY. it is Customer’s sole responsibility to ensure that the software is only accessed and used in a safe manner. Without limiting the foregoing, (a) Customer acknowledges that it is Customer’s sole responsibility to exercise due care and observe all safety measures required by Laws while accessing and using the software and machine; and (b) Customer shall ensure that its Authorized Users have received all appropriate training and are otherwise competent to use the software and operate the Machines.

5. Reservation of Rights. The Software, Provided Data and Documentation are provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Software, Proprietary Data or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. As between the parties hereto, Caterpillar reserves and retains all right, title, and interest in and to the Software, Documentation and Machine Data and all Intellectual Property Rights arising out of or relating to the Software, Documentation and Machine Data, subject only to the rights expressly granted to the Customer in this Agreement. This clause does not apply if and to the extent the EU Data Act or other applicable Laws are applicable to certain Provided Data and this clause would contradict the EU Data Act, where applicable, or other applicable Laws.

6. Open-Source Software. Notwithstanding anything to the contrary in this Agreement, any Open-Source Software included as a part of the Software as identified in the Documentation does not constitute a portion of the Software as defined in this Agreement and is not licensed under the terms of this Agreement, but instead is subject to the terms of the applicable Open-Source Software license. Unless otherwise required pursuant to the terms of an Open-Source Software license, Caterpillar grants Customer no right to receive source code to the Open-Source Software; however, in some cases rights and access to source code may be available to Customer directly from the licensors. If Customer is entitled to receive the source code from Caterpillar for any Open-Source Software included with the Software, Customer may obtain the source code at no charge by written request to Caterpillar at the address indicated below. A list of Open-Source Software distributed with the Software is provided within the Software (or at such other location as designated by Caterpillar from time to time). For purposes of this Agreement, “Open-Source Software” means those software programs or libraries that are identified by Caterpillar as being subject to any open-source software license, and all modifications, derivative works and executables based on or derived from such software programs or libraries, if such modifications, derivative works and/or executables are also subject to the applicable open-source software license by its terms.

7. Optional Software Defined Features. The Software may contain optional features (“Software Features”) designed to enable optional features or functions within the Software, including the ability to interoperate or interface with Caterpillar products and services (“Caterpillar Integrations”) as well as third party products or services (“Third-Party Integrations”). Such Software Features may be provided to Customer at an additional fee on a subscription basis, which may be purchased from authorized Caterpillar distributors or Caterpillar as applicable and may be subject to separate terms and conditions. In the case of any Software Feature with a Third-Party Integration, any (i) operation or transaction completed via any Software Features with any Third-Party Integration is between the Customer and the relevant third party, and not Caterpillar, including the terms and conditions, fees, support and maintenance, and any system integration services related to the same; and (ii) services received from such Third-Party Integration are based on the latest service made available by that third party and Caterpillar is not responsible for its availability or accuracy or otherwise liable for such Third-Party Integrations. Software Features may be subject to network connectivity, service disruptions and availability beyond Caterpillar’s control. Caterpillar may cease supporting any Software Features at any time. To the extent Software connects or interoperates with Caterpillar Services, each Caterpillar Service may be subject to separate terms and conditions. Customer will only use the Caterpillar Services in compliance with the applicable terms and conditions.

8. Restrictions. Except with Caterpillar’s written consent or as required by applicable Laws and to the extent not contradictory to the EU Data Act, where applicable, or other applicable Laws, the license granted pursuant to Section 2 above specifically excludes the right to, and Customer shall not, and shall require its Authorized Users not to, directly or indirectly:

8.1. modify or create any derivative works of any Software or Documentation;

8.2. copy the Software or Documentation except as provided in this Agreement;

8.3. separate Software, which is licensed as a single product, into its component parts or use the Software in conjunction with any device or machine other than the Machine;

8.4. reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for any portion of the Software or the Machine or use the Provided Data to do the same;

8.5. remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software, or Documentation;

8.6. use the Software, Provided Data or Documentation in violation of any Law;

8.7. publish or make public any results of benchmark tests run on any Software or Proprietary Data to a third party;

8.8. use the Software, Machine Data, Documentation, Caterpillar confidential information, or Intellectual Property Rights for competitive analysis or to develop, or have developed, technology that is the same or similar to Caterpillar’s products and services (including Software);

8.9. attempt to gain or facilitate unauthorized access to any Software, authentication credentials related to the Software, or associated Caterpillar accounts;

8.10. access, discern or attempt to access or discern any Proprietary Data; or

8.11. use the Software for any purpose for which it was not intended.

9. Authorized Users. Customer is responsible and liable for all uses of the Software, Provided Data and Documentation through access thereto provided by Customer, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Software, Provided Data and Documentation by its Authorized Users or by any other person to whom Customer or an Authorized User may provide access to or use of the Software, Provided Data or Documentation, whether such access or use is permitted by or in violation of this Agreement . If supported by the applicable Machine, Customer shall cause each of its Authorized Users to acknowledge the Authorized User Notice of Use prior to accessing and using the Software.

10. Compliance Measures. The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, Documentation or Machine Data, including features to protect against any use of the Software, Documentation or Machine Data that is prohibited under Section 8 (Restrictions). Customer shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features. To the extent the Software has Caterpillar authentication credentials associated with Customer’s access to and use of the Software, Customer is responsible for maintaining the confidentiality of all such credentials. Customer must promptly notify Caterpillar if Customer discovers any possible misuse, loss, or disclosure of Customer’s credentials or any security incident related to the Software or associated Caterpillar accounts.

11. Updates. Caterpillar may develop and provide Updates in its sole discretion. All such Updates, to the extent provided, will be deemed Software, and related Documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement.

12. Remote Updates. To the extent not prohibited by applicable Laws and supported by the Software and Machine, Caterpillar may perform remote diagnostics and make available remote Software Updates. Caterpillar’s processes for delivering remote Updates are described in the Caterpillar’s policies related to remote updates, copies of which are available at https://www.cat.com/en_US/support/technologysolutionsnew/remoteservicesprocess.html and may be updated by Caterpillar from time-to-time. Customer acknowledges and agrees that it chooses to participate in remote services provided by Caterpillar (including, remote diagnostics and remote Updates and upgrades) and associated telematics devices and authorizes Caterpillar to remotely access, program and install such Updates in accordance with the Data Governance Statement and the processes described in the above referenced software update process. Caterpillar does not guarantee that user preferences and configuration settings that have been established by Customer will be preserved following any Update or upgrade, whether performed remotely or otherwise.

13. Data Collection and Use.

13.1. The Software may gather and transmit Machine Data to Caterpillar. Customer authorizes Caterpillar and its Affiliates, business associates and dealers to collect Machine Data. All Machine Data is collected, processed, and shared pursuant to this Agreement and Caterpillar’s Data Governance Statement and Data Privacy Statement, copies of which are available at https://www.caterpillar.com/en/legal-notices/data-governance-statement.html. The Machine Data collected, gathered, stored, transmitted or processed may change over time and vary based on the Software features and functions being provided. For the purposes of the EU Data Act, where applicable, or other applicable Laws, Customer agrees on the collection and use of Machine Data, to the extent the data consists of non-personal data, by Caterpillar and its Affiliates, business associates and dealers as set out in this Section 13.

13.2. Caterpillar may use Machine Data it collects to train computational models used for image classification, machine learning, and/or artificial intelligence systems for the purpose of improving Caterpillar’s products and services.

13.3. To the extent not already owned by Caterpillar and unless contradictory to the EU Data Act, where applicable, or other applicable Laws, Customer hereby assigns and will assign (and where possible assigns hereby by way of a present assignment of future rights) to Caterpillar all right, full legal and beneficial title, and interest, including all underlying Intellectual Property Rights, in and to the Machine Data and all goodwill howsoever arising in respect of the foregoing shall accrue to Caterpillar. To the extent the Machine Data includes any personal information, Caterpillar shall use personal information as set forth in the Caterpillar’s Data Governance Statement and Data Privacy Statement, copies of which are available at https://www.caterpillar.com/en/legal-notices/data-governance-statement.html.

13.4. Customer represents and warrants that it has obtained all required consents from and provided all required notices to, Authorized Users of Caterpillar’s collection, use, disclosure and processing of the Machine Data.

13.5. Unless contradictory to the EU Data Act, where applicable, or other applicable Laws, Customer represents and warrants that it will not, and must not allow third parties to, use the Software, Documentation and Machine Data, or any content, data, output or other information received or derived from the Software, Documentation and Machine Data, to directly or indirectly create, train, test or otherwise improve any machine learning, image classification, or artificial intelligence algorithms or systems, including but not limited to any architectures, models or weights.

14. Cybersecurity. Customer shall not take any steps to attempt to circumvent or defeat any security controls related to the Software, Proprietary Data or any of Caterpillar’s proprietary on-board technology. Customer shall not test the security of the Software or use any of the Software in any way to negatively impact the security, confidentiality, integrity, availability or performance of the Software, Machines or any of the Machine Data. Without limiting the generality of the foregoing, Customer acknowledges and agrees that it will not attempt (and will not authorize any third-party to attempt) to: (a) access any Proprietary Data, and (b) utilize any third-party devices that are not expressly approved by Caterpillar in the Documentation to access any Provided Data, including because such devices may negatively impact the security, confidentiality, integrity, availability or performance of the Software.

15. Confidentiality. Customer agrees that the Software, Documentation (to the extent labeled by Caterpillar as “confidential” or “proprietary”) and all Proprietary Data constitute confidential proprietary information of Caterpillar and trade secrets. Customer shall permit only Authorized Users to use the Software or to view the Documentation. Customer agrees to hold in strict confidence, and not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party, without the prior written consent of Caterpillar. Customer agrees to implement reasonable security measures to protect such confidential information, but without limitation to the foregoing, shall use best efforts to maintain the security of the Software provided to Customer by Caterpillar. Customer will use its best efforts to cooperate with and assist Caterpillar in identifying and preventing any unauthorized use, copying, distribution, preparation of derivative works, or disclosure of the Software, Documentation and Proprietary Data, or any portion thereof, which, Customer acknowledges and agrees, are Caterpillar’s confidential trade secrets and protected by Copyright.

16. Equitable Relief. If Customer breaches (or attempts or threatens to breach) its obligations related to confidentiality, intellectual property ownership or data security, Caterpillar will be entitled, without the need to post bond or prove damages, to proceed directly to any court of competent jurisdiction to seek the entry of an appropriate order compelling performance by Customer and restraining it from any further breaches (or attempted or threatened breaches).

17. Improvements. Any improvements or derivative works conceived, created, or developed to or based on the Software, Documentation, Machine Data, or Caterpillar’s confidential information will be owned by Caterpillar (“Improvements”); provided that to the extent Customer creates, conceives, develops, and/or owns Improvements and to the extent not contradictory to the EU Data Act (i.e. where the EU Data Act applies to certain Provided Data) or other applicable Laws, Customer hereby grants to Caterpillar a non-exclusive, perpetual, irrevocable, non-terminable, transferable, royalty-free, fully paid up, worldwide right and license (including the right to grant and authorize sublicenses through multiple levels) to Customer-created or Customer-owned Improvements and all Intellectual Property Rights pertaining thereto for any and all purposes and in any and all media, whether alone or together or as part of any material of any kind or nature, and Customer waives all moral and similar rights in connection therewith.

18. Feedback. If Customer (including any Authorized Users) provide any ideas, proposals, suggestions or other materials (“Feedback”) to Caterpillar, its Affiliates or distributors, including related to the Software, Documentation, Machine Data or the Machine, Customer acknowledges and agrees that all such Feedback is not confidential, and that provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Caterpillar under any fiduciary or other obligation. In addition, by submitting Feedback, Customer (including any Authorized Users) hereby grants to Caterpillar a non-exclusive, perpetual, irrevocable, non-terminable, transferable, royalty-free, fully paid up, worldwide right and license (including the right to grant and authorize sublicenses through multiple levels) to such Feedback and all Intellectual Property Rights pertaining thereto for any and all purposes and in any and all media, whether alone or together or as part of any material of any kind or nature, and Customer waives all moral and similar rights in connection therewith. Any disclosure of such Feedback by Caterpillar to third parties (other than to Caterpillar’s Affiliates and Caterpillar’s and its Affiliates’ licensors, service providers, suppliers, subcontractors or distributors) shall not attribute the Feedback to you (including any Authorized Users).

19. Limited Warranty. EXCEPT AS EXPRESSLY STATED IN THE LIMITED WARRANTY AND SUBJECT ALWAYS TO SECTION 21.2 AND, WHERE APPLICABLE, TO THE EXTENT NOT CONTRADICTORY TO THE EU DATA ACT OR OTHER APPLICABLE LAWS, CATERPILLAR AND ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS (THE “CATERPILLAR PARTIES”) PROVIDE NO WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES AND REPRESENTATIONS OF NON-INFRINGEMENT AND MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE, ITS CONTENT, PROVIDED DATA, DOCUMENTATION AND ANY OTHER MATERIALS PROVIDED WITH THE SOFTWARE, DOCUMENTATION AND PROVIDED DATA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND, WHERE APPLICABLE, TO THE EXTENT NOT CONTRADICTORY TO THE EU DATA ACT OR OTHER APPLICABLE LAWS, NONE OF THE CATERPILLAR PARTIES PROVIDE ANY WARRANTY THAT THE SOFTWARE OR PROVIDED DATA WILL BE FREE FROM ERRORS OR INTERRUPTION (INCLUDING INTERRUPTIONS DUE TO CYBERATTACKS OR MALICIOUS CODE OR OTHERWISE) OR BE COMPATIBLE OR INTEROPERABLE WITH ANY HARDWARE, DATA OR SOFTWARE NOT EXPLICITLY SPECIFIED IN THE DOCUMENTATION (INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY INTEGRATION). THE CATERPILLAR PARTIES DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM CUSTOMER’S (INCLUDING AUTHORIZED USERS’) ACCESS OR USE OF THE SOFTWARE, DOCUMENTATION OR PROVIDED DATA. CUSTOMER AGREES THAT CUSTOMER’S (INCLUDING AUTHORIZED USERS’) ACCESS OR USE OF THE SOFTWARE, DOCUMENTATION AND PROVIDED DATA IS AT CUSTOMER’S (AND ITS AUTHORIZED USERS’) OWN DISCRETION. NOTWITHSTANDING CUSTOMER’S (INCLUDING AUTHORIZED USERS’) ACCESS TO AND USE OF THE SOFTWARE, DOCUMENTATION AND PROVIDED DATA, CUSTOMER ASSUMES ALL RISK RELATED TO THE PROPER OPERATION, SUPPORT AND MAINTENANCE OF THE SOFTWARE, DOCUMENTATION AND PROVIDED DATA. THE FOREGOING EXCLUSIONS AND LIMITATIONS ARE NOT INTENDED TO APPLY TO: (A) DEATH OR BODILY INJURY TO THE EXTENT DIRECTLY CAUSED BY A CATERPILLAR PARTY’S GROSS NEGLIGENCE; OR (B) FRAUD OR WILLFUL OR GROSSLY NEGLIGENT MISCONDUCT. THE SOFTWARE, DOCUMENTATION AND PROVIDED DATA ARE NOT INTENDED TO PROVIDE ANY EMERGENCY, MISSION CRITICAL OR SAFETY RELATED FUNCTIONALITY AND CUSTOMER SHALL NOT USE THE SOFTWARE, DOCUMENTATION OR PROVIDED DATA IN THAT MANNER. EXCEPT AS EXPRESSLY STATED IN THE PRODUCT DOCUMENTATION, THE SOFTWARE, DOCUMENTATION, AND PROVIDED DATA ARE NOT DESIGNED FOR DIRECT OR INDIRECT USE IN OR IN ASSOCIATION WITH THE OPERATION OF ANY EMERGENCY, MISSION CRITICAL OR SAFETY RELATED APPLICATIONS, INCLUDING MEDICAL OR LIFE-SUPPORT SYSTEMS, ON-HIGHWAY VEHICLE OPERATION APPLICATIONS, OR ANY POLICE, FIRE, OR OTHER SAFETY RESPONSE SYSTEMS, OR MILITARY OR AEROSPACE APPLICATIONS, WEAPONS SYSTEMS, OR ENVIRONMENTS, OR OTHER APPLICATIONS OR USES THAT ARE NOT ORDINARY CONSTRUCTION OR MINING INDUSTRY SITE OPERATIONS OR INDUSTRIAL ENERGY AND TRANSPORTATION APPLICATIONS AND YOU ACCEPT ANY AND ALL RISK OF ANY USE IN SUCH CAPACITIES. CATERPILLAR DOES NOT GUARANTEE ANY RESULTS, OR THE ACCURACY OF ANY RESULTS, THAT CUSTOMER MAY OBTAIN FROM THE SOFTWARE, DOCUMENTATION OR PROVIDED DATA.

20. Indemnification.

20.1. Customer will defend and/or settle at your cost and expense any third-party claim, suit, action or proceeding (“Claim”) brought against Caterpillar, its Affiliates, or their respective directors, officers, employees, agents, licensors, service providers, suppliers, subcontractors, distributors or dealers (individually and collectively, the “Caterpillar Indemnified Party(ies)”) arising from or relating to (a) Customer’s (including Authorized Users’) access to or use of the Software in breach of any provision of this Agreement, (b) any Third-Party Integration, (c) any allegation that any information, materials or content that Customer (including Authorized Users) submit or otherwise make available under this Agreement, or any Third-Party Integration with third-party products or services infringe, misappropriate or violate the intellectual property or other rights of a third party, and, in each case you will pay all damages finally awarded and settlement amounts entered into to the extent based upon such a Claim (each a “Customer Indemnified Claim”). Upon your request and at your cost and expense, Caterpillar shall provide you with reasonable assistance with respect to the defense and/or settlement of such Claim.

20.2. Caterpillar will defend and/or settle at its cost and expense any Claim brought against you (the “Customer Indemnified Party”) alleging that the Software infringes any U.S. patents or U.S. registered copyrights (“Caterpillar Indemnified Claim”). Caterpillar will pay all damages finally awarded and settlement amounts entered into to the extent based upon a Caterpillar Indemnified Claim. Notwithstanding the foregoing, Caterpillar shall not be required to defend and/or settle any (i) Customer Indemnified Claim, or (ii) Claim that arises out of or in connection with: (A) any access to or use of the Software other than in adherence to this Agreement and the Documentation; (B) use of other than the then-current, unaltered version of the Software; (C) use, modification, operation or combination of the Software with non-Caterpillar software programs, data, equipment or documentation (including any Third-Party Integration) if such infringement would have been avoided but for such use, modification, operation or combination; (D) compliance with Customer’s (including Authorized Users’) designs, specifications or instructions; (E) any third party software components or Open Source Software; or (F) any Trial Software.

20.3. If the Software becomes (or in Caterpillar’s reasonable opinion is likely to become) the subject of a Caterpillar Indemnified Claim, Caterpillar shall have the right, at its sole option, to obtain for Customer the right to continue using the Software or to replace or modify the Software so that it is no longer infringing. If neither of the foregoing options is reasonably available to Caterpillar, then Caterpillar may terminate Customer’s access to or use of the Software and then Customer’s sole remedy shall be for the Caterpillar dealer which sold the Machine to Customer to provide a refund equal to the portion of the purchase price paid by Customer attributable to the allegedly infringing Software. Upon Caterpillar’s request and solely at Caterpillar’s expense, Customer shall provide Caterpillar with reasonable assistance with respect to Caterpillar’s defense and/or settlement of such Claim.

20.4. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAWS OR CONTRADICTORY TO THE EU DATA ACT OR OTHER APPLICABLE LAWS, THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF EITHER PARTY, ITS AFFILIATES AND THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, SUPPLIERS, SUBCONTRACTORS AND DISTRIBUTORS, AND THE OTHER PARTY’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT, MISAPPROPRIATION OR OTHER VIOLATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS RELATING TO THE SUBJECT MATTER HEREOF.

20.5. The Caterpillar Indemnified Party or the Customer Indemnified Party (as applicable) will promptly notify the indemnifying Party of any Claim subject to this Section 20, provided, however, that any such failure to notify will not relieve the indemnifying Party of its indemnification obligations under this Section 20 unless, and only to the extent that, the indemnifying Party can demonstrate that it was prejudiced by such failure. The Caterpillar Indemnified Party or the Customer Indemnified Party (as applicable) shall give the indemnifying Party full control and authority over, and reasonable assistance in connection with, the defense and settlement of the applicable Claim, except that: (a) no settlement requiring the Caterpillar Indemnified Party or the Customer Indemnified Party (as applicable) to admit liability, or to pay any money or otherwise take on any obligation may be made without the prior written consent of the Caterpillar Indemnified Party or the Customer Indemnified Party (as applicable), such consent not to be unreasonably withheld or delayed; and (b) the Caterpillar Indemnified Party or the Customer Indemnified Party may join in the defense with the indemnified Party’s own counsel at the indemnified Party’s own cost and expense.

21. Limitation of Liability.

21.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS AND TO THE EXTENT NOT CONTRADICTORY TO THE EU DATA ACT, WHERE APPLICABLE, OR OTHER APPLICABLE LAWS, (A) NONE OF THE CATERPILLAR PARTIES WILL BE LIABLE TO CUSTOMER, NOR WILL CUSTOMER OR ANY OF CUSTOMER’S AFFILIATES, LICENSORS, SERVICE PROVIDERS, SUPPLIERS, SUBCONTRACTORS OR DISTRIBUTORS BE LIABLE TO CATERPILLAR, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF PROFITS, REVENUES, DATA OR UNAVAILIBILITY OF DATA), CUSTOMERS, OPPORTUNITIES, BUSINESS, ANTICIPATED SAVINGS OR GOODWILL); AND (B) THE AGGREGATE LIABILITY OF THE CATERPILLAR PARTIES, UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE GREATER OF $100 USD OR THE TOTAL AMOUNTS PAID BY CUSTOMER TO CATERPILLAR OR AN AUTHORIZED CATERPILLAR DEALER FOR THE PRICE PAID FOR THE MACHINE ON WHICH THE SOFTWARE IS INSTALLED. FOR CLARITY THE FOREGOING CONSTITUTES A CUMULATIVE CAP THAT IS APPLIED TO ALL CAUSES OF ACTION HEREUNDER AND IS NOT TO BE APPLIED ON A CLAIM-BY-CLAIM BASIS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS A PARTY’S LIABILITY TO THE OTHER PARTY FOR: (I) DEATH OR BODILY INJURY TO THE EXTENT DIRECTLY CAUSED BY A PARTY’S GROSS NEGLIGENCE; OR (II) FRAUD OR WILLFUL OR GROSSLY NEGLIGENT MISCONDUCT.

21.2. The limitations and exclusions in this Agreement apply to the fullest extent permitted by law. Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by any applicable Laws that cannot be excluded, restricted or modified.

22. Term and Termination. This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).

22.1. Customer may terminate this Agreement upon notice to Caterpillar and ceasing use of the Software.

22.2. Caterpillar may terminate this Agreement, effective upon written notice to Customer, if Customer, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 10 business days after Caterpillar provides written notice thereof.

22.3. Caterpillar may terminate this Agreement, effective immediately, to comply with any applicable Laws.

22.4. Upon the termination of this Agreement, the license granted to Customer hereunder shall also terminate, and Customer shall cease using and destroy all copies of the Software and Documentation and any Caterpillar confidential information. No expiration or termination shall entitle Customer to any refund except as set forth in Section 20.3 of this Agreement. Sections 15-29 shall survive the termination or expiration of this Agreement for any reason.

23. Arbitration.

23.1. All disputes, claims and controversies relating to or arising out of this Agreement (collectively, “Dispute”) will be resolved by binding arbitration, rather than in court. If your principal place of business is in the United States, the Federal Arbitration Act applies to the arbitration of such Disputes.

23.2. If your principal place of business is in the United States or Canada, the arbitration will be administered by the American Arbitration Association (AAA) in accordance with the AAA’s Commercial Arbitration Rules and Mediation Procedures. If your principal place of business is in any country in APAC, then the arbitration will be administered by the Singapore International Arbitration Centre (SIAC) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre. If your principal place of business is outside of the United States, Canada or any country in APAC, then the arbitration will be administered by the International Chamber of Commerce (ICC) in accordance with ICC Rules of Arbitration. The arbitration rules specified in this subsection are referred to as the “Rules.” For the purposes of this Agreement, “APAC” means the geographic region that includes the following countries: Australia, Bangladesh, Brunei, Burma, Cambodia, China (including Hong Kong Special Administrative Region and Macau Special Administrative Region), Christmas Islands, Fiji, India, Indonesia, Japan, Kiribati, Laos, Malaysia, Marshall Islands, Federated States of Micronesia, Mongolia, Nauru, New Zealand, Palau, Papua New Guinea, Philippines, Samoa, Singapore, Solomon Islands, South Korea, Sri Lanka, Taiwan, Thailand, Timor-Leste, Tonga, Tuvalu, Vanuatu and Vietnam.

23.3. Either Party may commence the arbitration process called for by this Agreement by filing a written demand for arbitration with the applicable arbitration organization and delivering a copy of such demand to the other Party to this Agreement in accordance with the notice provision of this Agreement. In no event shall demand for arbitration be made or permitted after the date when the institution of legal or equitable proceedings based on such Dispute would be barred by the applicable statute of limitations. If your principal place of business is in the United States or Canada, the place of arbitration will be Chicago, Illinois, United States. If your principal place of business is in a country in APAC, the place of arbitration will be Singapore. If your principal place of business is outside of the United States, Canada or any country in APAC, the place of arbitration will be Geneva, Switzerland. The arbitration shall be conducted in English. Notwithstanding the foregoing, if your principal place of business is in the Netherlands, you may opt to resolve any Dispute before Dutch courts, provided that you notify Caterpillar of this election within thirty (30) days of Caterpillar notifying you of Caterpillar’s intention to commence arbitration.

23.4. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action, and that the Parties are waiving the right to a trial by jury. If for any reason a claim proceeds in court rather than in arbitration, each Party waives any right to a jury trial.

23.5. If the Dispute is for an amount less than US$100,000, the arbitration shall be heard in front of a single arbitrator, and if the Dispute is for an amount of US$100,000 or more, then the Dispute shall be heard by a panel of three (3) arbitrators. If the Dispute is to be heard in front of a single arbitrator, then the Parties shall attempt to mutually agree on the identity of the arbitrator, or if no such agreement can be reached within thirty (30) days of the commencement of the arbitration proceedings, the applicable arbitration organization shall appoint such arbitrator in accordance with the Rules. If the Dispute is to be heard in front of a panel of three (3) arbitrators, each Party shall nominate one arbitrator from a list of arbitrators provided by the applicable arbitration organization, and the two Party-nominated arbitrators shall select the third arbitrator who will serve as chairman. Notwithstanding anything to the contrary herein, either Party may seek injunctive relief in a court of competent jurisdiction to prevent irreparable harm from occurring at any time. Each Party shall bear its own cost of prosecuting or defending the arbitration (excluding any attorneys’ or other professional fees) and the Parties shall split the arbitrators’ fees and the applicable arbitration organization’s administrative costs, regardless of the outcome. The provisions of this Section 23 and judgment upon the award rendered by the arbitrator may be enforced by any court of competent jurisdiction. The arbitrator(s) shall render its decision as soon as reasonably possible after its appointment and must follow the terms of this Agreement.

23.6. This agreement to arbitrate shall be specifically enforceable in any court having jurisdiction thereof. Any award issued by the arbitrator pursuant to any arbitration shall be final and binding upon the Parties, and judgment may be entered upon in accordance with applicable Laws in any court of competent jurisdiction.

23.7. You have a right to opt-out of the arbitration provisions of Section 23. If you do not agree to this mandatory arbitration provision, then within thirty (30) days from your first agreement to these terms, you may opt-out of this part of these terms by sending an e-mail to cat_customer_care@cat.com. Any opt-out received after the thirty (30) day time period will not be valid and you must pursue your claim via arbitration pursuant to this Agreement.

24. Government Entity Rights and Obligations. The Software is commercial computer software and the Documentation is computer software documentation, as each such term is defined in 48 C.F.R. §2.101. Accordingly, if the Customer is the US Government or any contractor therefor, Customer shall receive only those rights with respect to the Software and Documentation as are granted in this Agreement, which is the license customarily provided to the public, to all other end users under license, in accordance with (a) 48 C.F.R. §227.7202-1 through 48 C.F.R. §227.7202-4, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

25. Compliance with Laws; Export Controls.

25.1. Without limiting any of Customer’s other commitments hereunder, Customer agrees to comply in all material respects with all Laws applicable to the performance of and exercise of Customer’s rights and obligations under this Agreement. Customer’s compliance with its obligations hereunder will extend to Laws that apply to the access to or use of the Software. Such Laws include those that apply to the transfer of data to and from Caterpillar’s, Customer’s, or their respective Affiliates’ country of residence as well as all environmental laws, anti-bribery laws and any laws related to financial transactions, anti-money laundering, and terrorism, including but not limited to sanctions, the USA Patriot Act (P.L. 107-56, as amended), and the Foreign Corrupt Practices Act (15 U.S.C. §§ 78dd-1, et seq.). Customer further represents and warrants that it will not use the Software in any manner that would violate applicable Laws (including environmental laws, anti-bribery laws and any laws related to financial transactions, anti-money laundering, and terrorism), including but not limited to sanctions, the USA Patriot Act (P.L. 107-56, as amended), and the Foreign Corrupt Practices Act (15 U.S.C. §§ 78dd-1, et seq.) or applicable sanctions. Customer will also cause its Authorized Users and any third parties acting on its behalf to comply with all such Laws.

25.2. Customer represents and warrants that none of its or its Affiliates’ Authorized Users, representatives, or other employees, consultants, contractors or agents (including but not limited to officers, directors, stockholders and representatives) is subject to sanctions or is a foreign official or is related to a foreign official (as defined in 15 U.S.C. §§ 78dd-1(f)(1) and 78dd-3(f)(2)), except to the extent previously disclosed to Caterpillar. Customer further represents and warrants that neither it nor any site where the Software and Machine are located is in a country subject to sanctions. If any of Customer or its Affiliates’ Authorized Users, employees, consultant, contractors or agents or relatives thereof becomes a foreign official during the Term of this Agreement, Customer will immediately notify Caterpillar in writing as contemplated by this Agreement.

25.3. Customer agrees that it will not use or otherwise export, re-export, transfer or release, whether oral, visual, or deemed to be an export or re-export, or otherwise (collectively, “export”) the Software, Documentation or Provided Data, except as authorized by United States Laws and the Laws of the jurisdictions in which the Software or Machines are accessed or used (including any related data). The Software, Documentation or Provided Data may not be exported (including by accessing the Software or any related applications), directly or indirectly: (a) to any person or entity subject to sanctions or otherwise listed or deemed to be a blocked, prohibited or trade-restricted person or party by the U.S. Commerce Department, U.S. Treasury Department, or U.S. Department of State by operation of law or otherwise; (b) for any purpose or use prohibited by the U.S. government, such as for nuclear, chemical, or biological weapons production or proliferation; or (c) to any destination or transit point subject to comprehensive sanctions by the U.S. government, as may be amended from time to time, without having obtained the required U.S. authorization(s) prior to such export. Customer will not, and will ensure its personnel and any third parties acting on its behalf will not, access or use the Software, Documentation or Provided Data (or any portion thereof) for any purposes prohibited by United States Laws, including the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

25.4. To the extent you are a user of the Software and have concerns about the content in the Software (including the legality thereof), please contact Caterpillar’s Office of Business Practices, BusinessPractices@cat.com, with the relevant information about the content.

25.5. Caterpillar is committed to making our sites and applications accessible to every site visitor and application user. For information on Caterpillar’s Accessibility Statement, please visit: https://www.caterpillar.com/en/legal-notices/accessibility-statement.html

26. Successors and Assigns. This Agreement shall be binding upon Customer and its successors and assigns and shall be enforceable by Caterpillar and its respective permitted successors and assigns. Caterpillar may assign or transfer this Agreement or its rights or obligations under it without Customer’s consent to its Affiliates or in connection with a merger, consolidation, corporate reorganization, or sale of all or substantially all of Caterpillar’s business or assets or of the business or assets associated with Caterpillar’s construction industries digital and technology solutions business.

27. Transfer. This Agreement will automatically be assigned to any purchaser or transferee of the Machine and the License grant will terminate with respect to the seller or transferor and its Affiliates. Customer should notify Caterpillar upon any sale or transfer of the Machines; if Caterpillar is not notified of sale or transfer of the Machine, Caterpillar will not be liable for sharing Customer´s Machine Data with any other party and Customer will indemnify Caterpillar and hold Caterpillar harmless in respect of any claims by purchaser or transferee of the Machine towards Caterpillar for use and sharing of Machine Data after the transfer. Any transferee must enter into this Cat^® Embedded End User Software License Agreement as a condition to transferee’s use of the Software, Documentation and Machine Data. To notify Caterpillar of any transfer, Customer may email Caterpillar using the appropriate customer service information provided on Cat.com. Notwithstanding anything to the contrary in this Agreement, Customer may only transfer the licenses granted to Customer in this Agreement in conjunction with the sale or transfer of Machines on which the Software is installed, embedded or otherwise resident.

28. Notice. Customer agrees that Caterpillar and its Affiliates may contact Customer by any reasonable means, including by e-mail, Machine display or related Caterpillar web-based service available to you (such as VisionLink® or any successor product or service) or Caterpillar website dedicated to our on-board software offerings or any successor website, to provide Customer with information and notices relating to the subject matter of this Agreement. Notices to Caterpillar will be delivered by registered or certified mail only, return receipt requested, to the following address: 5205 N. O'Connor Boulevard, Suite 100, Irving, TX 75039, Attention: Legal. Unless otherwise provided by applicable Laws, notices are effective (a) when delivered personally, (b) seven (7) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, (c) two (2) business days after deposit with a private industry express courier, with written confirmation of receipt, (d) for e-mail or other electronic transmission to Customer, when sent, or (e) if posted in the user interface for the Software (if applicable) for Customer, when posted. Customer is responsible for ensuring that the e-mail address and contact information on file with Caterpillar or the dealer which sold the Machine to Customer is accurate and current. Notices sent via e-mail will be effective when sent regardless of whether actually received.

29. Governing Law. This Agreement shall be governed by and interpreted in accordance with the Laws of the State of Delaware, United States of America, without regard for any conflict of laws provisions.

30. Force Majeure; Disasters. Caterpillar will not be liable for any failure to perform or delay in performing any obligation under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction, component or materials shortage or any other cause beyond the reasonable control of such party. Customer acknowledges and agrees that Caterpillar has no obligations with respect to disaster or data recovery, software or data backups or hosting.

31. Changes to this Agreement. Caterpillar reserves the right to change this Agreement at any time upon notice to Customer. We will give notice as described in Section 28 or by presenting an updated agreement to you upon access of the Software. Your continued use of the Machine following such changes will constitute your agreement to the terms of the updated Agreement. You can request from Caterpillar the most current version of this Agreement at any time. The provisions of this Section 31 apply to the fullest extent permitted by law. If for any reason any change to this Agreement is deemed to be unenforceable or invalid through arbitration in accordance with Section 23 or a court of competent jurisdiction, then this Agreement shall continue in force as in effect immediately prior to the adoption of such changes. Such invalidity, illegality or unenforceability shall not affect the validity, legality or enforceability of such provision in any other jurisdiction.

32. Entire Agreement. This Agreement, together with any additional terms referenced herein or available at https://www.caterpillar.com/onboard-eula.html, constitutes the complete and exclusive agreement between Customer and Caterpillar with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings, or agreements not specifically incorporated herein. Except as provided with respect to updates to this Agreement as set forth above, this Agreement may not be amended except in a writing duly signed by Customer and an authorized representative of Caterpillar. Additional terms, including jurisdiction-specific terms, will apply to you depending on your location or manner of use and are hereby incorporated into the Agreement by reference. Please review the additional terms, located at https://www.caterpillar.com/onboard-eula.html. Additional information regarding connected products and related services data can be found here: https://www.cat.com/en_US/support/technology/connected-solutions-principles/connected-product-dataprinciples.html

Cat^®Embedded Software License Agreement

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Cat^®Embedded Software License Agreement