Last Updated: November 1, 2024

PLEASE READ THESE TERMS OF USE (“TERMS OF USE”) CAREFULLY.  THESE TERMS ARE PROVIDED TO YOU BY DAEDONG-USA, INC. (DBA KIOTI TRACTOR), IF YOU ARE GEOGRAPHICALLY LOCATED WITHIN THE UNITED STATES, OR DAEDONG-CANADA, INC. (DBA KIOTI TRACTOR), IF YOU ARE GEOGRAPHICALLY LOCATED IN CANADA  (IN EITHER CASE, “KIOTI”, “WE” OR “US”).  YOUR ACCEPTANCE OF THESE TERMS OF USE IS A CONDITION PRECEDENT TO YOUR ACCESS TO AND USE OF (1) THE TELEMATICS SOFTWARE AND DEVICES AND THE ASSOCIATED SERVICES (“SERVICES”) CONNECTED TO YOUR KIOTI MACHINES, EQUIPMENT AND VEHICLES (“EQUIPMENT”);  (2)  THE KIOTICOONECT MOBILE APP; AND (3) THE WEB PAGE ON WHICH THESE TERMS OF USE ARE LOCATED AND ANY OTHER WEB PAGES ACCESS BY YOU UNDER THE KIOTICONNECT.COM DOMAIN  (COLLECTIVELY, (1) AND (2), THE “KIOTI APPLICATION”). 

BY ACCEPTING THESE TERMS OF USE OR BY ACCESSING, DOWNLOADING OR USING THE KIOTI APPLICATION, YOU REPRESENT THAT: (1) YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS OF USE, (2) YOU ARE OF THE LEGAL AGE TO CONSENT TO AND FORM A BINDING CONTRACT IN YOUR JURISDICTION, AND (3) THESE TERMS OF USE CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND KIOTI.  IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU ARE NOT PERMITTED TO ACCESS OR USE THE KIOTI APPLICATION.   

ARBITRATION AND WAIVER OF CLASS ACTION NOTICE:  THESE TERMS OF USE INCLUDE A MANDATORY BINDING ARBITRATION AGREEMENT, INCLUDING A WAIVER OF ANY RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.  ADDITIONAL DETAILS ARE SET FORTH IN THE “ARBITRATION AGREEMENT” SECTION BELOW.

1. Services 

The Services are designed to gather and process data and information pertaining to your use of the Equipment (“Data”).  The Data will be collected by KIOTI through certain KIOTI-supplied monitoring devices (“Devices”) installed in your Equipment and processed as set forth herein and in the Privacy Policy, as may be updated from time to time in accordance with these Terms of Use and the terms of the Privacy Policy.  The Privacy Policy is hereby incorporated into and made a part of these Terms of Use by this reference.

You agree that the KIOTI Application will be accessed and used only by you and those personnel of yours whom you authorize to access and use the KIOTI Application (“Authorized Users”).  Subject to your compliance with these Terms of Use, KIOTI grants you and the Authorized Users a limited, non-exclusive, non-transferable, non-assignable, revocable license to use the KIOTI Application for your personal business purposes only and not for resale or other distribution.  All rights not expressly granted to you herein are reserved by KIOTI.

You acknowledge and agree that some features of the KIOTI Application may require use of third party communications systems, such as Internet access or wireless or satellite-based communication systems (each, a “Communications Service”).  UNLESS THE COMMUNICATION SERVICE IS EXPLICITLY MADE PART OF A SERVICE PLAN, CUSTOMER SHALL PURCHASE THESE COMMUNICATION SERVICES SEPARATELY AS ITS OWN RESPONSIBILITY.  KIOTI HAS NO RESPONSIBILITY FOR THE AVAILABILITY, QUALITY OR PERFORMANCE OF ANY COMMUNICATIONS SERVICE NOT FURNISHED BY KIOTI.

The KIOTI Application may permit the communication, transfer and exchange of data between the KIOTI Application and KIOTI-branded devices or systems as well as certain third-party manufactured devices or systems (“Third-Party Assets”).  You acknowledge and agree that KIOTI does not exercise control over the form or quality of data generated or transmitted by or to such Third Party Assets (collectively, “Third-Party Data”).  Additionally, you understand and agree to the following: 

• Data may only be exchanged between the KIOTI Application and Third-Party Assets approved by KIOTI; 
• KIOTI’s approval of a Third-Party Asset does not guarantee that it will operate properly with the KIOTI Application; 
• KIOTI is not responsible for the quality or accuracy of, or the ability to receive, access or use Third-Party Data that may be sent from or received by Third-Party Assets; 
• KIOTI may control all Third-Party Data transmitted to and from the KIOTI Application, and may stop or block any Third-Party Data that KIOTI believes may adversely affect performance of the KIOTI Application.

You hereby acknowledge and agree that any third-party software and services that may be bundled with the KIOTI Application (“Third-Party Software and Services”) are being provided to you by third party suppliers and not by KIOTI.  You hereby acknowledge and agree that your access to or use of any such Third-Party Software and Services is governed by your agreement with such third-party suppliers, and in absence of such terms or agreement, by these Terms of Use.  KIOTI EXPRESSLY DISCLAIMS ANY LIABILITY IN CONNECTION WITH ANY THIRD PARTY SOFTWARE OR SERVICES OR YOUR USE THEREOF.

1. Modifications 

KIOTI may, at any time, update, modify, change suspend, or permanently discontinue any aspect of the KIOTI Application, including, but not limited to, any features, functionality, services, and content made available on or through the KIOTI Application, without notice.  

KIOTI may also modify any terms contained in these Terms of Use at any time, with or without prior notice to you.  Unless we designate a later effective date, such changes will become effective on the date we post the updated version on the KIOTI Application or at KIOTICONNECT.COM (the “Site”).  Your continued use of the KIOTI Application following such modification constitutes your consent to such modifications and your agreement to be bound by the updated Terms of Use.  You are responsible for periodically reviewing the current Terms of Use and the Site, so that you are aware of any modifications.

1. Restrictions on Use of the KIOTI Application 

Your use of the KIOTI Application is limited to those uses expressly permitted under these Terms and Conditions.  You agree that as a condition of your use of the KIOTI Application, you will not:

• use the KIOTI Application for any purpose not expressly permitted by these Terms of Use;
• access data not intended for you or log onto a server or an account that you are not authorized to use;
• circumvent or modify, attempt to or assist another in circumventing or modifying any security technology or software that is part of the KIOTI Application;
• interfere with service to any other user, or the software, networks or systems that we use to bring the KIOTI Application to you, such as by submitting a virus or overloading, "flooding," “spamming,” “mailbombing” or “crashing” the KIOTI Application;
• remove, obscure, or alter any copyright, trademark, or other proprietary notices embedded in, affixed to or accessed in conjunction with the KIOTI Application;
• modify, alter or prepare other works based on the KIOTI Application, or distribute copies of or publicly perform or display the KIOTI Application, or engaged in any effort to decompile, reverse engineer or otherwise attempt to derive source code, underlying ideas, algorithms, structure or organization of the KIOTI Application;
• use or attempt to use any engine, software, tool, agent or other device or mechanism (including without limitation any type of spider, web crawler or robot) to navigate, search, and/or extract information from the KIOTI Application other than the search tools available on or through the KIOTI Application;
• transmit or disseminate any kind of material that contains malware, viruses, bots, worms or any other computer code, files or programs that interrupt, destroy or limit the functionality or operation of the KIOTI Application; 
• use the KIOTI Application to develop a competing product or services; or
• use the KIOTI Application in a manner that is inconsistent with any and all applicable laws and regulations.

Any violation of these Terms of Use or unauthorized use of any information or materials accessible through the KIOTI Application may violate copyright laws, trademark laws, laws of privacy and publicity and other laws and regulations and may result in, among other things, termination of your access to the KIOTI Application by KIOTI in its sole discretion.  

1. Account Creation

In order to use the KIOTI Application, you must establish an account with us (an “Account”).  You and your Authorized Users are not permitted to share, sell, distribute or otherwise transfer your Account or allow your login credentials to be used by any other individual.  You are responsible for maintaining, and shall cause all Authorized Users to maintain, the confidentiality of your usernames and passwords (including any related security questions and answers), and for restricting access to your computer or other device used to access your Account.  You shall notify us immediately of any unauthorized use of your Account or Authorized Users login credentials or devices.  YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ANY ACTIVITIES OR ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT AUTHORIZED BY YOU OR THE AUTHORIZED USERS.  KIOTI WILL NOT BE LIABLE FOR ANY LOSSES INCURRED BY YOU AS A RESULT OF YOUR FAILURE TO COMPLY WITH THIS SECTION.  

You represent and warrant that any information you or the Authorized Users provide to us for this purpose or otherwise submit to the KIOTI Application (“User Information”) is accurate, current and complete, and that you or the Authorized Users provide such User Information to us only after having obtained all required consents or other legal authority.  In the event of any changes to your User Information, you and the Authorized Users agree to promptly update your User Information in your Account.  If any User Information you provide to us is untrue, inaccurate, not current, incomplete, or provided to us without the required consents or other legal authority, we reserve the right to terminate your or the Authorized Users’ use of the KIOTI Application.

1. Consent to Use and Collection of Data

You acknowledge that KIOTI retains all rights, title and interest in and to the data transmitted through the Services, Equipment and KIOTI Application, and any interest you may have shall be assigned to KIOTI.

You agree that the KIOTI Application may transfer Data to KIOTI and its affiliates, including its and their respective directors, officers, employees, licensors, suppliers, dealers, partners, service providers, and agents (“KIOTI Parties”).  

Certain information (feeds, definition files, etc.) may be synchronized or updated automatically from time to time through the KIOTI Application, including when: (i) the KIOTI Application is successfully installed by you; (ii) you fail to install the KIOTI Application successfully; (iii) the KIOTI Application has been successfully configured and (iv) the KIOTI Application is uninstalled.  You acknowledge and consent that any Data collected may be sent to any KIOTI office or any KIOTI Party for processing.  You may be required to download software and you acknowledge that we may from time to time issue updated or upgraded versions of the KIOTI Application, and may (subject to your device settings) automatically electronically update or upgrade the version of the KIOTI Application that you are then currently using on your device. You consent to receive updates or upgrades to the KIOTI Application automatically without providing further consent each time. The KIOTI Application (including any updates or upgrades) may: (i) cause your mobile device to automatically communicate with our servers to deliver the functionality described in the KIOTI Application description or through new features as they are introduced, and to record usage metrics; (ii) affect preferences or data stored on your device; and (iii) collect personal information as set out in our Privacy Policy. We are not responsible if an update or upgrade affects how the KIOTI Application works if this is caused by your own equipment or device not supporting the update or upgrade. You can withdraw consent at any time by uninstalling the KIOTI Application or by contacting us at customer@kioticonnect.com.  You can also disable the GPS telematics system of your connected KIOTI equipment at any time by contacting your dealer for assistance, though disabling the GPS telematics system may affect the functionality of certain features of your machine.

Data may be transmitted and used through the KIOTI Application for the following purposes: (a) providing the Services to you; (b) checking or maintaining Devices and Equipment supported by the KIOTI Application; (c) monitoring the location, operation, health, performance, and other pertinent machine information regarding your Equipment; (d) evaluating or improving the KIOTI Application and other products and services (including the Equipment); (e) complying with legal requirements and valid court orders, as applicable; and (f) for any other business purpose (including those set forth in the Privacy Policy).  KIOTI may also combine the Data imported from your Devices and Equipment with that of other users of the KIOTI Application to create aggregated data (“Aggregated Data”) for the principal purposes of tracking market trends and developing new or improved service offerings.  The Data is transmitted to KIOTI or to one or more of its affiliates.  KIOTI may transmit and share some or all of the collected Data, including the Aggregated Data, with any of the KIOTI Parties and any necessary governmental entities.

To the extent that you have any ownership or other interests in the Data, you hereby grant to the KIOTI Parties, a non-exclusive, perpetual, worldwide, paid-up, and irrevocable license to collect, use, process, manipulate and modify, copy, perform, compile and create derivative works from the Data, including using the Data for any business purpose.  All other data and information that is collected, transmitted, recorded, or accessed by or through the KIOTI Application that is not Data identifiable to you and your Authorized Users, and all data, reports, derivative works, compilations, modifications and other materials created from or with use of Data will be, in each case, the sole and exclusive property of KIOTI; and you, on your behalf and on behalf of your Authorized Users, hereby assign all of your and their right, title and interest, if any, in and to such items to KIOTI without any fees and without rights to future royalties.

You agree that you shall not (directly or indirectly) export, re-export, import, transfer, or divert the KIOTI Application in whole or in part (i) without all necessary authorizations required by law, or (ii) to any prohibited destination or to any prohibited person, entity or end user as specified by U.S. export control laws.  Current information regarding the export regulations of the United States may be found through the Department of Commerce Bureau of Industry & Security website at http://www.bis.doc.gov/.  You agree to comply with all applicable local laws of the jurisdictions in which you conduct business, including the laws and regulations of the United States and of other jurisdictions (national, state and local) to the extent that they may govern your use of the KIOTI Application, access to the Data, and performance of your other activities under these Terms of Use.  You agree to use the Data for internal business purposes only and to not use the information for any other purpose, including without limitation, establishing, maintaining or terminating any employment relationship (or similar).  You will indemnify and hold the KIOTI Parties harmless from any and all Losses (as defined in the Indemnification Section below) incurred by any KIOTI Party arising from your failure to comply with the terms of this provision, which shall also be considered a material default hereof entitling KIOTI to immediately terminate these Terms of Use and your use of the  KIOTI Application in addition to any other remedy available at law or equity.  Your obligations under this provision shall survive the termination of these Terms of Use for any reason whatsoever.

1. Payment

KIOTI reserves the right to charge You and any Authorized Users for the use of the Services at any time. In such event, we will notify You in accordance with the notice provisions of these Terms of Use and will provide additional information pertaining to when and how You may make such payment, including the amount of the payments themselves. In such event, payment in accordance with those terms will be required in order to access and use the Services. 

1. Third Party Materials

The KIOTI Application may contain links to websites owned or operated by third parties or otherwise contain content provided by third parties (“Third Party Materials”).  Such Third Party Materials are provided solely as a convenience to you, and KIOTI is not responsible for, does not endorse, and makes no representation regarding any Third Party Materials.  YOU UNDERSTAND THAT YOUR ACCESS AND USE OF THIRD PARTY MATERIALS ARE AT YOUR OWN RISK AND THAT KIOTI WILL NOT BE LIABLE FOR ANY SUCH ACCESS AND USE UNDER ANY CIRCUMSTANCE.  

1. Termination by KIOTI; Surviving Terms

KIOTI reserves the right, in its sole discretion, to limit or terminate or suspend your, and your Authorized Users’, access to or use of the KIOTI Application, in whole or in part, at any time without notice.  Termination of such access or use will not waive or affect any other right or relief to which KIOTI may be entitled at law or in equity.  

Upon any such termination or suspension, your, and your Authorized Users’, right to use the KIOTI Application will immediately cease and you and your Authorized Users’ must discontinue use of the KIOTI Application and delete or uninstall the KIOTI Application from your, and your Authorized Users’, devices, as applicable.  KIOTI reserves the right to immediately and permanently deactivate your Account and the Authorized Users credentials and delete any information or content stored through your Account or your Authorized Users’ credentials.  

In the event of any termination of these Terms of Use, any terms intended to survive such termination shall so survive.

1. Privacy Policy

You understand that your personal information and the personal information of Authorized Users (including Data) will be collected, used, disclosed, or otherwise processed in accordance with our Privacy Policy, found here.

1. Intellectual Property Rights

You hereby agree and acknowledge that KIOTI, and as applicable, Third Party Suppliers of any software you may license in connection with the KIOTI Application, own all right, title and interest in and to and any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other intellectual property rights in connection with or relating to the KIOTI Application.

All content on the KIOTI Application, including but not limited to text, graphics, images, software, features, tools, code, information and other content (collectively, the “Content”), is the property of KIOTI and its licensors and is protected under United States and foreign copyright laws and other laws.  In connection with your use of the KIOTI Application, KIOTI grants you a limited, non-transferable, non-sublicensable, non-exclusive, revocable license to access, view, use, print and download a single copy of the Content for your personal use, provided you do not modify or delete any copyright, trademark or other proprietary notice that appears in the Content.  KIOTI may revoke this license at any time for any or no reason.  Other than as expressly allowed in these Terms of Use, any other use of the KIOTI Application or Content is expressly prohibited.  You may not sell or modify Content or reproduce, display, distribute or otherwise use Content in any way for any public or commercial purpose without KIOTI’s prior written consent.  Use of Content on any online or digital platform or in a networked environment other than as expressly authorized herein is prohibited.  Unauthorized use of Content may be in violation of copyright, trademark and other laws.

The Content we choose to make available from time to time may be used solely for personal, noncommercial purposes in compliance with all laws and regulations that apply to you. 

Without limitation of the foregoing, the KIOTI Application may contain certain content from third parties which may be subject to its own additional license terms and policies.  You should refer to the terms and policies posted on third party websites prior to using any such site.  KIOTI does not endorse, oppose or edit any opinion, claim, or analysis expressed by any third party.  You agree that KIOTI is not responsible for the substance or accessibility of any THIRD-PARTY Content accessible through the KIOTI APPLICATION and understand that you bear all risks associated with your access to and/or use of such content.

1. Trademarks

The names, marks and logos appearing in the KIOTI Application and the Content are, unless otherwise noted, trademarks owned by or licensed to KIOTI.  The use of these marks, except as provided in these Terms of Use, is prohibited.  From time to time, KIOTI makes fair use in the Content of trademarks owned and used by third parties.  KIOTI makes no claim to ownership of those marks.

You may not use KIOTI’s trade name, trademarks, service marks or other intellectual property assets or its branded products and services, for promotional, advertising or any other commercial purpose, unless and to the extent KIOTI specifically agrees in writing.  

1. User Submissions

KIOTI welcomes your comments and contributions to the KIOTI Application.  However, you acknowledge that if you send or submit to KIOTI any suggestions, ideas, comments, photos, videos or other user-generated content (collectively, “Submissions”) through or in connection with the KIOTI Application, including on the KIOTI Application’s interactive features, such as product reviews, or on third party social media platforms (through your use of promotional hashtags designated by KIOTI), you are granting KIOTI a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, sublicensable and transferable license to use, copy, modify, prepare derivative works based on and publicly perform, display and distribute such Submission for any purpose whatsoever, without restriction and without compensating you in any way.  You also grant and are authorized to grant KIOTI the right to use, without consideration, any name or likeness you submit with any Submission.  You agree this license is effective automatically (without further action by you) when you submit the Submission to KIOTI.

You should not send us any Submission that: you are legally prohibited from sharing or disclosing to us, contains product or service ideas that you intend to derive revenue from, or includes information you wish to remain confidential.  You understand that your Submission may be made publicly available and KIOTI is not responsible for any use or misuse (including any distribution) by any third party.  IF YOU CHOOSE TO SUBMIT ANY PERSONAL INFORMATION THROUGH OR IN CONNECTION WITH THE KIOTI APPLICATION, YOU DO SO AT YOUR OWN RISK.

You represent and warrant that: (i) you own or otherwise control all the rights in any Submission you submit and otherwise have all required consents or legal authority to share any information in any Submissions you submit, and (ii) that the Submission is non-infringing and does not otherwise violate the rights, including the privacy rights, of any person or entity.  You will indemnify and hold harmless the KIOTI Parties for all claims resulting from Submissions you submit to or through the KIOTI Application. 

As a user of the KIOTI Application, you are responsible for your communications and the consequences of their posting.  Therefore, you agree to not do any of the following things on or through the KIOTI Application: 

• transmit to KIOTI material that is copyrighted, unless you are the copyright owner or have the permission of the copyright owner to post it; 
• send material that reveals trade secrets, unless you own them or have the permission of the owner; 
• send material that infringes on any other intellectual property rights of others or on the privacy or publicity rights of others; 
• send material that is false or fraudulent; 
• send material that is unlawful, harmful, offensive threatening, abusive, defamatory, libelous, harassing, vulgar, obscene, profane, hateful, fraudulent, sexually explicit, racially, ethnically or otherwise objectionable;
• send advertisements or solicitations of business; 
• send chain letters, pyramid schemes, political campaigning or spam; 
• send material containing viruses or other malware; or 
• impersonate another person.

KIOTI is under no obligation to post, forward, transmit, distribute or otherwise provide any material available through the KIOTI Application, including any Submission you provide to KIOTI; accordingly, KIOTI has an absolute right to remove any material available through the KIOTI Application in its sole discretion at any time.  KIOTI reserves the right to expel users and prevent their further access to and use of the KIOTI Application for violating these Terms of Use or the law and reserves the right to remove any communications from the KIOTI Application.

1. Use of the KIOTI Application

You agree to use the KIOTI Application in accordance with these Terms of Use and any applicable third party terms, rules or agreements, such as those published by your third-party mobile phone or tablet operating system, wireless data service provider, or the third party from whom you are downloading the KIOTI Application using the Apple App Store or Google Play (each, an “App Store”), as applicable.  

10.1  App Stores.  You acknowledge and agree that the availability of the KIOTI Application is dependent on the App Store from whom you received the KIOTI Application license.  You acknowledge that these Terms of Use is between you and KIOTI and not with the App Store.  KIOTI, not the App Store, is solely responsible for the KIOTI Application, the Content thereof, maintenance, support services, and addressing any claims relating thereto.  You agree to comply with, and your license to use the KIOTI Application, is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the KIOTI Application.

10.2  Additional Terms for Apple Apps.  With respect to any KIOTI Application accessed through or downloaded from the Apple App Store (an “App Store Sourced KIOTI Application”), you will only use the App Store Sourced KIOTI Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.  In addition, the following terms apply to any App Store Sourced KIOTI Application: 

• You acknowledge and agree that (i) these Terms of Use are made between you and KIOTI only, and not Apple Inc. (“Apple”); and (ii) KIOTI, not Apple, is responsible for the App Store Sourced KIOTI Application and the Content thereof. 
• You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the App Store Sourced KIOTI Application. 
• In the event of any failure of the App Store Sourced KIOTI Application to conform to any applicable warranty, you may notify Apple and, if applicable, Apple will refund the purchase price of the App Store Sourced KIOTI Application to you.  To the maximum extent permitted by applicable law, you agree that your recourse for warranty failure in connection with the App Store Sourced KIOTI Application pursuant to these Terms of Use shall be through KIOTI, and Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced KIOTI Application, nor be responsible for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty.  
• You agree that your recourse for product claims arising from the App Store Sourced KIOTI Application shall be through KIOTI, and that Apple is not responsible for addressing any claims from you or any third party relating to the App Store Sourced KIOTI Application or your possession and/or use of the App Store Sourced KIOTI Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced KIOTI Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.  
• In the event of any third party claim that the App Store Sourced KIOTI Application or your possession and use of the App Store Sourced KIOTI Application infringes that third party’s intellectual property rights, you agree that your recourse under these Terms of Use will be through KIOTI and that Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. 
• You acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Use and, upon your acceptance of these Terms of Use, will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary hereof; notwithstanding the foregoing, our right to enter into, rescind or terminate any variation, waiver or settlement under these Terms of Use is not subject to the consent of any third party.

1. Consent to Electronic Communications 

Where permitted by applicable law, when you sign up for an Account, you have, by default, “opted in” to receiving promotional emails from KIOTI.  You may at any time opt out of receiving such promotional emails by logging into your account and adjusting your profile settings, or by using the opt-out functionality embedded in such promotional emails.  We may communicate and transact with you electronically through the KIOTI Application or through other electronic means.

1. WARRANTY DISCLAIMERS

THE KIOTI PARTIES DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM YOUR USE OF THE KIOTI APPLICATION. 

KIOTI MAKES NO REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF ONLINE MATERIAL OR ABOUT THE RESULTS TO BE OBTAINED FROM USING THE KIOTI APPLICATION.  YOUR ACCESS AND USE OF THE KIOTI APPLICATION AND ANY OF ITS CONTENT IS AT YOUR OWN RISK.  

KIOTI DOES NOT WARRANT THAT THE KIOTI APPLICATION WILL OPERATE ERROR-FREE OR THAT THE KIOTI APPLICATION OR ANY COMPUTER SERVER ARE FREE OF VIRUSES OR OTHER HARMFUL MATERIAL.  IF YOUR USE OF THE KIOTI APPLICATION RESULTS IN ANY COSTS OR EXPENSES, INCLUDING, WITHOUT LIMITATION, THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, KIOTI SHALL NOT BE RESPONSIBLE FOR THOSE COSTS OR EXPENSES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE KIOTI APPLICATION AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, AND KIOTI DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.  KIOTI MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT, SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS. 

NOTWITHSTANDING YOUR USE OF THE KIOTI APPLICATION, AND REGARDLESS OF ANY ACCURATE OR INACCURATE INFORMATION PROVIDED THROUGH THE KIOTI APPLICATION REGARDING THE OPERATION, MAINTENANCE OR PERFORMANCE STATUS OF YOUR EQUIPMENT-- YOU REMAIN SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISK RELATED TO, THE PROPER OPERATION, SUPPORT AND MAINTENANCE OF THE EQUIPMENT.  YOU AGREE THAT YOU ARE SOLELY LIABLE FOR ANY DAMAGE OR LOSS RELATED TO OR ARISING OUT OF ANY ACTION TAKEN BY YOU, YOUR AUTHORIZED USERS, OR AFFILIATES OF YOU OR YOUR AUTHORIZED USERS BASED ON DATA OBTAINED FROM A DEVICE OR EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, UTILIZING OR ACTIVATING ANY FEATURE ON YOUR DEVICE OR EQUIPMENT THAT MAY IMPACT THE OPERABILITY, PERFORMANCE, AND FUNCTIONING OF YOUR EQUIPMENT.

YOU ARE RESPONSIBLE FOR ANY RISK OF LOSS FOR ANY ITEMS REQUIRED TO COMMUNICATE WITH OR THROUGH THE KIOTI APPLICATION, INCLUDING, WITHOUT LIMITATION, DUE TO EQUIPMENT FAILURE, THEFT, FIRE, COLLISION, TAMPERING, AND VANDALISM.

1. LIMITATION OF LIABILITY

EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL KIOTI  BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION, RESULTING FROM YOUR USE OR INABILITY TO USE ANY PART OF THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KIOTI IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL KIOTI’S AGGREGATE LIABILITY TO YOU, DIRECT OR OTHERWISE, EXCEED THE GREATER OF: (I) AVERAGE MONTHLY FEE PAYABLE FOR YOUR USE OF THE KIOTI APPLICATION, OR (ii) ONE HUNDRED DOLLARS ($100).  

THE LAWS OF CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSIONS AND LIMITATIONS OF DAMAGES IN THIS SECTION, IN WHICH CASE KIOTI’S LIABILITY FOR DAMAGES IN CONNECTION WITH THESE TERMS IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY THE LAWS OF SUCH JURISDICTION.

1. Indemnification

By using the KIOTI Application, you agree to defend, indemnify and hold harmless the KIOTI Parties, from and against any and all losses, actions, claims, damages, fines, costs and expenses (including reasonable legal, expert and accounting fees) and all other amounts (collectively, “Losses”) arising from or related to your use of the KIOTI Application, including the Content, or your breach of these Terms of Use.  KIOTI reserves the right to assume or participate, at your expense, in the investigation, settlement and defense of any such action or claim.

1. Governing Law 

These Terms of Use are governed by [the Federal Arbitration Act and] the substantive laws of the State of North Carolina, without regard to its conflict of laws principles. 

1. Arbitration Agreement 

All disputes in connection with your use of the Portal or these Terms of Use will be resolved in accordance with this Section (the “Arbitration Agreement”). 

Mandatory Arbitration. YOU AND KIOTI AGREE THAT ANY DISPUTE OR CLAIM BETWEEN YOU AND KIOTI OR ANY AFFILIATE OF KIOTI OR ANY OF THEIR DIVISIONS, SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS THAT RELATE IN ANY WAY TO THE KIOTI APPLICATION, INCLUDING DISPUTES OR CLAIMS UNDER FEDERAL OR STATE STATUTES OR TORT LAW (“DISPUTE”) MUST BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION.  YOU UNDERSTAND THAT YOU ARE GIVING UP THE RIGHT TO RESOLVE A DISPUTE IN COURT, ON A CLASS-WIDE OR COLLECTIVE BASIS, OR IN FRONT OF JURY.

Arbitration Process.  In arbitration, Disputes are resolved by a neutral arbitrator instead of a judge or jury, discovery is more limited than in court, and the arbitrator's decision is subject to limited review by courts. A single arbitrator with the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) will conduct the arbitration, and the award may not exceed the relief allowed by applicable law or these Terms of Use.  If you and we are unable to mutually agree on an arbitrator, then JAMS will select an arbitrator.  The arbitrator can award on an individual basis the same damages and relief as a court, including monetary damages, injunctive relief, and declaratory relief. Judgment on the arbitrator's award may be entered in any court having jurisdiction thereof.  The arbitration will be conducted in  Raleigh, North Carolina. The JAMS Streamlined Arbitration Rules & Procedures will apply. If JAMS will not apply those rules, then JAMS’ Comprehensive Arbitration Rules & Procedures will apply. The JAMS' rules and a form that can be used to initiate arbitration proceedings are available at https://www.jamsadr.com. You and KIOTI agree that if for any reason JAMS will not conduct or becomes unavailable to conduct the arbitration, then a court may appoint a substitute arbitrator, and further agree that the choice of JAMS as a forum is not integral to this Arbitration Agreement. 

Interpretation.  The Federal Arbitration Act (“FAA”) applies to this Arbitration Agreement and governs its interpretation and enforcement. The arbitrator will decide all issues relating to the enforceability, interpretation, scope, and application of the Terms, including this Arbitration Agreement (including “gateway” issues of arbitrability, whether the Arbitration Agreement is unconscionable or illusory and any defense to arbitration), in relation to the Portal, except that a court will resolve any question regarding the validity or enforceability of the “Arbitration Class Action Waiver” Section below.  The term “Dispute” and the requirement to arbitrate will be broadly interpreted.   

Arbitration Class Action Waiver. You and KIOTI agree that the arbitration will be conducted solely on an individual basis and not on a class, representative, collective, consolidated, or private attorney general basis.  A Dispute may not be consolidated with a claim brought or discovery by any person or entity that is not a party to the arbitration proceeding.  The arbitrator may not award relief to any person or entity other than a party to the arbitration proceeding and may only award such relief as is necessary to provide relief to a party to the arbitration proceeding.

Arbitration Fees and Costs.  Each party will bear its own legal and administrative fees incurred in connection with the arbitration proceeding, provided that the non-prevailing party shall bear the arbitrator fees charged by the arbitration tribunal at the conclusion of arbitration.

1. Export Control

KIOTI controls and operates the KIOTI Application from the United States and does not claim that any part of the KIOTI Application is appropriate or may be accessed or used outside of the United States.  Access to the KIOTI Application may not be legal by certain persons or in certain countries.  If you access the KIOTI Application from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of the jurisdiction from which you access the KIOTI Application.  You agree to comply with all U.S. or other export and re-export control restrictions.  You represent and warrant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or similar restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; (b) listed on any U.S. government lists of prohibited or restricted parties.

1. General

If any provision of these Terms of Use is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect.  No waiver of any provision in these Terms of Use shall be a further or continuing waiver of such provision or any other provision in these Terms of Use.  The section names in the Terms of Use are for convenience only and have no legal or contractual effect.  You may not assign these Terms of Use, or any of your rights or obligations hereunder, without the prior written consent of KIOTI.  We may assign, transfer or sublicense any or all of our rights or obligations under these Terms of Use at any time without your prior consent.  Except as expressly provided elsewhere in these Terms of Use (inclusive of the Privacy Policy) and any other terms and conditions expressly incorporated by reference into these Terms of Use by KIOTI constitute the entire agreement between you and KIOTI with respect to your use of the KIOTI Application.  The official language of the Terms of Use is English.  For purposes of interpretation, or in the event of a conflict between the English version of the Terms of Use and versions in any other language, the English language version shall control.

1. Contact Information

If you have any questions, comments or concerns about the KIOTI Application or these Terms of Use or need to provide notification to KIOTI, please contact us at:

  ■ Company name:

     DAEDONG KIOTI

  ■ Address :

    - DD USA : Daedong-USA, Inc., KIOTI Tractor Division, 6300 Kioti Drive, Wendell NC 27591 USA

    - DD Canada : Daedong Canada, KIOTI Tractor Division, 6500 Kitimat Road, Mississauga, ON L5N 2B8, Canada

Internet: https://www.kioti.com/contact

E-mail: contact@kioticonnect.com

Telephone: 1-877-GOKIOTI(select 1.kioticonnect)