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End User License Agreement
End User License Agreement (Navigon Fresh/Applications.11-14-13) The download that you are making may contain an application, content, or both. If an application, the application, including its embedded software (collectively, the “Application”) is owned by Garmin Würzburg GmbH or its affiliates and sold under the brand Navigon (collectively, “Navigon”). The map data that may be embedded in the Application or downloaded separately (the “Map Data”) is either owned by Navigon, or by HERE North America LLC and/or its affiliates (“HERE”) or another a third party and licensed to Navigon. Navigon also owns, or licenses from third party providers, information, traffic data, text, images, graphics, photographs, audio, video, images and other applications and data that may be embedded in the Application or downloaded separately (“Other Content”). The Map Data and Other Content are collectively the “Content”. Both the Application and Content are protected under copyright laws and international copyright treaties. The Application and Content are licensed, not sold. The structure, organization and code of the Application are valuable trade secrets of Navigon and/or its thirdparty providers. The Application and Content are provided under this License Agreement and are subject to the following terms and conditions which are agreed to by End User (“you” or “your”), on the one hand, and Navigon and its licensors and affiliated companies of Navigon and its licensors, on the other hand. If you are obtaining the Application from a third party application vendor (the “Application Vendor”), you acknowledge that Navigon, and not the Application Vendor, is responsible for the Application. Navigon’s licensors, including the licensors, service providers, channel partners, suppliers and affiliated companies of Navigon and its licensors, are each a direct and intended third party beneficiary of this Agreement and may enforce their rights directly against you in the event of your breach of this Agreement. IMPORTANT: CAREFULLY READ THIS ENTIRE LICENSE AGREEMENT BEFORE PURCHASING OR USING THIS APPLICATION. PURCHASING, INSTALLING, COPYING, OR OTHERWISE USING THIS APPLICATION INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ THIS LICENSE AGREEMENT AND AGREE TO ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT PURCHASE, INSTALL OR USE THE APPLICATION. Certain Navigon Products contain OpenStreetMap data. Please see “OpenStreetMap Terms and Conditions” below for the terms and conditions applicable to such OpenStreetMap Data Products. License Terms and Conditions Navigon (“we” or “us”) provides you with the Application and the embedded or accompanying Content, including any “online” or electronic documentation and printed materials, and grants you a limited, nonexclusive license to use the Application and Content in accordance with the terms of this Agreement. You agree to use the Application and Content for solely personal use, or if applicable, for use in your business’ internal operations, and not for service bureau, time-sharing, resale or other similar purposes. Accordingly, but subject to the restrictions set forth in the following paragraphs, you may copy the Application and Content only as necessary for your use to (i) view it, and (ii) save it, provided that you do not remove any copyright notices that appear and do not modify the Application or Content in any way. Your use of the Application must not violate any usage rules of the Application Vendor or any other third party service provider you use to enable the Application. You agree not to otherwise reproduce, copy, archive, modify, decompile, disassemble, reverse engineer or create derivative works of any portion of the Application and Content, and may not transfer or distribute it in any form, for any purpose, except to the extent permitted by mandatory laws. Navigon also reserves the right to discontinue offering any Content supplied by any third party supplier if such supplier ceases to supply such content or Navigon’s contract with such supplier terminates for any reason. Support. If purchased your Application from a third party application vendor and you need operational or technical support and assistance regarding the installation, un-installation, use or operation of the Application, or if you have questions, complaints or claims regarding the Application, contact Navigon at: [email protected]. Acknowledgement of Application Vendor Responsibility. If you purchased your Application from a third party application vendor, the Application Vendor shall have no maintenance or support obligation for the Application, nor any responsibility for addressing any claims from you or any third party regarding the possession or use of the Application, including without limitation product liability claims, claims of failure to meet legal or regulatory requirements or consumer protection laws claims. Further, the Application Vendor shall have no responsibility regarding third party claims of intellectual property rights violations as a result of your possession or use of the Application. Restrictions. Except where you have been specifically licensed to do so by Navigon, and without limiting the preceding paragraphs, you may not use the Application or Content with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, and which are capable of dispatch, fleet management or similar applications where the Content is used by a central control center in dispatching a fleet of vehicles. In addition, you are prohibited from renting or leasing the Application or Content to any other person or third party. Data Transfer. Certain services in connection with the Application may result in a transfer of data from your device. In that case, additional charges for data transfer may arise, depending on your device data plan. Please contact your data provider for details about any additional charges. Navigon Live Services. Navigon Live services may be a “one-time” Live services purchase or a purchase for a specific term. If a “one-time” purchase is made, purchasers of that service will receive Navigon Live services for the (i) useful life of the purchaser’s Navigon device, (ii) the useful life of the purchaser’s smartphone, or (iii) as long as Navigon receives Content from its third party content supplier, whichever of the three periods is shortest. A device’s “useful life” means the period during which the device (a) has the required technical capabilities to utilize the then-current Live services (including a Live services-compatible operating system) and (b) is capable of operating as intended without major repairs. A device will be deemed to be out of service and its useful life to be ended if no updates have been downloaded for such device for a period of 24 months or more. Navigon Live services content not available for all areas. Navigon may terminate a Live services subscription immediately for violations of the Live services terms of use. Live services subscriptions may not be transferred to another person or another Navigon product, even if the application remains on the smartphone. Navigon Live Services are in part - depending on the service - geographically restricted to the reception and transmission range of the radio transmitters, operated by the respective network operators. They can be affected by atmospheric conditions, topographical conditions, the vehicles location or position as well as obstacles (for example bridges and buildings). Some services are generally not available in every country. The extent and characteristics of the available services differ from country to country. You are personally responsible for the compliance with the laws and regulations of the respective countries. No Warranty. The Application and the Content are provided to you “as is,” and you agree to use them at your own risk. Navigon and its licensors including the licensors, service providers, channel partners and suppliers, and affiliated companies of Navigon and its licensors, make no guarantees, representations or warranties of any kind, express or implied, arising by law or otherwise, including but not limited to, content, quality, accuracy, completeness, effectiveness, reliability, merchantability, fitness for a particular purpose, usefulness, use or results to be obtained from the Application or Content, or that the Content or server will be uninterrupted or error-free. The Application and Content are intended to be used only as supplementary travel aids and must not be used for any purpose requiring precise measurement of direction, distance, location or topography. NAVIGON MAKES NO WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF THE MAP DATA OR THE CONTENT. Disclaimer of Warranty. NAVIGON AND ITS LICENSORS, INCLUDING THE LICENSORS, SERVICE PROVIDERS, CHANNEL PARTNERS, SUPPLIERS AND AFFILIATED COMPANIES OF NAVIGON AND ITS LICENSORS, DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY NAVIGON OR ITS SUPPLIERS AND LICENSORS SHALL CREATE A WARRANTY, AND YOU ARE NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION. THIS DISCLAIMER OF WARRANTIES IS AN ESSENTIAL CONDITION OF THIS AGREEMENT. Some States, Territories and Countries do not allow certain warranty exclusions, so to that extent the above exclusion may not apply to you. Disclaimer of Liability. NAVIGON AND ITS LICENSORS , INCLUDING THE LICENSORS, SERVICE PROVIDERS, CHANNEL PARTNERS, SUPPLIERS AND AFFILIATED COMPANIES OF NAVIGON AND ITS LICENSORS, SHALL NOT BE LIABLE TO YOU: IN RESPECT OF ANY CLAIM, DEMAND OR ACTION, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND OR ACTION ALLEGING ANY LOSS, INJURY OR DAMAGES, DIRECT OR INDIRECT, WHICH MAY RESULT FROM THE USE OR POSSESSION OF THE APPLICATION; OR FOR ANY LOSS OF PROFIT, REVENUE, CONTRACTS OR SAVINGS, OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE APPLICATION, ANY DEFECT IN THE CONTENT OR INFORMATION, OR THE BREACH OF THESE TERMS OR CONDITIONS, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY AND WHETHER RESULTING FROM THE USE, MISUSE, OR INABILITY TO USE THE APPLICATION OR FROM DEFECTS OR ERRORS IN THE APPLICATION, EVEN IF NAVIGON OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NAVIGON’S AND ITS LICENSORS’ TOTAL AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS LICENSE AGREEMENT OR OTHERWISE WITH RESPECT TO THE APPLICATION OR THE CONTENT SHALL NOT EXCEED $1.00. Some States, Territories and Countries do not allow certain liability exclusions or damages limitations, so to that extent the above may not apply to you. If you purchased your Application from a third party application vendor, THE SOLE AND MAXIMUM RESPONSIBILITY OF THE APPLICATION VENDOR IN THE EVENT OF A WARRANTY FAILURE IS A REFUND OF THE APPLICATION PURCHASE PRICE. Collection of Information. We may collect information relating to how often you use the Application or the frequency with which certain applications and features of the Application are used. This information would be collected anonymously, in a way that does not personally identify you. We may use this information to detect broad user trends and to otherwise enhance our products or applications. The use of location-based services on the Application, which may include weather, movie times, traffic information, fuel prices, or information regarding local events, will cause the physical location of your device to be collected in order to provide you with such location-based services. This location data is collected anonymously in a form that does not personally identify you. If you provide your consent then Garmin will collect and upload from your device information such as your location, speed and direction (known as “traffic probe data” or “floating car data”) in order to enhance the quality of the traffic data and other content provided by Garmin or content providers. If you provide your consent, then Garmin may also share this data with or sell this data to third parties. This data is shared and sold anonymously in a form that does not personally identify you. . The collection and use of this location information are described in more detail in the privacy statement for the Application. Disclaimer of Endorsement; Change of Content Providers. Reference to any products, services, processes, hypertext links to third parties or other Content by trade name, trademark, manufacturer, supplier or otherwise does not necessarily constitute or imply its endorsement, sponsorship or recommendation by Navigon or its licensors. Product and service information are the sole responsibility of each individual vendor. The HERE name and logo, the HERE and HERE ON BOARD trademarks and logos, and other trademarks and trade names owned by HERE North America LLC that are included in the Application may not be used in any commercial manner without the prior written consent of HERE. Providers of Map Data and Other Content may be changed by Navigon during the term of this Agreement, and your experience with the Content provided by a new provider may not duplicate your experience with the previous Content supplier. Export Control. You agree not to export from anywhere any part of the Content or any direct product thereof except in compliance with and with all licenses and approvals required under, applicable export laws, rules and regulations. Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Indemnity. You agree to indemnify, defend and hold Navigon and its licensors, including the respective licensors, service providers, channel partners, suppliers, assignees, subsidiaries, affiliated companies, and the respective officers, directors, employees, shareholders, agents and representatives of Navigon and its licensors, free and harmless from and against any liability, loss, injury (including injuries resulting in death), demand, action, cost, expense, or claim of any kind or character, including but not limited to attorney’s fees, arising out of or in connection with any use or possession by you of the Application or Content. Map Data. Use of the Map Data is subject to certain restrictions and/or requirements imposed by third party suppliers and/or governmental or regulatory authorities as further set forth at http://corporate.navteq.com/supplier_terms.html. Traffic. Navigon’s traffic service provider (the “Traffic Service Provider”) holds the rights to the traffic incident data included in the Content (the “Traffic Service Data”) and the network through which it is delivered. You may not modify, copy, scan, or use any other method to reproduce, duplicate, republish, transmit, or distribute in any way any portion of Traffic Service Data. You agree to indemnify, defend, and hold harmless the Traffic Service Provider (and its affiliates) and Navigon against any and all claims, damages, costs, or other expenses that arise directly or indirectly out of (a) your unauthorized use of the Traffic Service Data or the traffic network and/or (b) any unauthorized or unlawful activities by you in connection herewith. The Traffic Service Data is informational only. You assume all risk of use. The Traffic Service Provider, Navigon, and their suppliers make no representations about content, traffic and road conditions, route usability, or speed. Navigon and its Traffic Service Provider(s) make no warranty of fitness or compatibility of the Traffic Service Data with the Application you have chosen to download or your device and no warranty that the Traffic Service Data will operate properly as integrated and interfaced with the Application or your device . In addition, Navigon and its Traffic Service Provider(s) make no warranty with regard to the reliability, accuracy, exhaustiveness and completeness of the Traffic Service Data, which may contain inaccuracies and/or errors from time to time. To the maximum extent permitted by applicable law, any and all warranties of any kind whatsoever with regard to the Traffic Service Data are hereby expressly waived and excluded, including, but not limited to, those of merchantability, fitness for a particular purpose, accuracy or completeness of the Traffic Service Data, and/or a lack of viruses. Navigon and its Traffic Service Provider(s) disclaim all liability for any loss, injury, or damage resulting from use of or inability to use the Application and Traffic Service Data as a result of weather difficulties, the destruction of transmitters and/or other broadcasting infrastructures, a natural disaster, and/or a lack of reliability, completeness or accuracy of the Traffic Service Data. In no event shall Navigon or its Traffic Service Provider(s) be liable to you or any other party for any compensatory, indirect, incidental, special, or consequential damages (including, without limitation, indirect, direct, special, punitive, or exemplary damages for loss of business, loss of profits, business interruption, or loss of business information) arising out of the use of or inability to use the Application or the Traffic Service Data, even if Navigon has been advised of the possibility of such damages. Special Provisions - NAVIGON Select 1 General. In cooperation with mobile operators and manufacturers of mobile phones, Navigon offers the possibility of licensing a special version of a Navigon application for selected mobile phones (“Navigon Select”) via their mobile network provider or mobile phone manufacturer. 2 Duration of the Software License. The general license period of Navigon Select is limited to 24 months. It is linked to the mobile phone. It will automatically be extended indefinitely if you, in addition to the base license, have purchased and activated further functions that are subject to charges. Those additional functions cannot be transferred to a new mobile phone. If you terminate the contract with your mobile phone provider prior to the end of the license period, the license ends automatically even if you have previously purchased further functions subject to charges. Individual mobile phone providers and manufacturers may offer extended licensing provisions for the benefit of their customer. 3 Costs. Navigon Select is usually offered without the imposition of a license fee. However, mobile phone operators cooperating with Navigon will verify the customer’s eligibility to use Navigon Select through regular authorization checks. During these authorization checks, small amounts of data are transmitted from the customer’s mobile phone to a verification server. Additional charges for data transfer may arise, depending on the customer’s mobile phone contract. For details about additional charges, such customers should contact their mobile phone provider. HERE Traffic™ End User License Agreement. Your Application may be embedded with, or your downloaded Content may contain, HERE Traffic. If so, you are subject to the terms and conditions of the following End User License Agreement. In the event of a conflict between the terms set forth under “Traffic” above and those set forth under “HERE Traffic End User License Agreement”, the terms set forth under “HERE End User License Agreement” shall prevail. HERE North America LLC and/or its affiliates including Traffic.com (“HERE”) holds the rights to the traffic incident data (“Traffic Data”). By subscribing to, receiving or otherwise accessing the Traffic Data, you acknowledge that you have read this Agreement, that you understand it, that your agree to be bound by the terms and conditions of this Agreement, and that you are at least 18 years of age. If you do not agree to the terms and conditions of this Agreement, decline the subscription or, if the subscription is bundled as part of your Navigon product, return the product within 7 days for a full refund to the dealer from which you purchased the product. You agree to use the Traffic Data together with your Navigon product solely for personal, noncommercial purposes, and not for service bureau, time-sharing or other similar purposes. You may not modify, copy, scan, decompile, disassemble or reverse engineer any portion of the Traffic Data, or use any other method to reproduce, duplicate, republish, transmit, or distribute in any way any portion of the Traffic Data. You agree to indemnify, defend, and hold harmless HERE (and its affiliates) and Garmin Ltd. (and its subsidiaries) against any and all claims, damages, costs, or other expenses that arise directly or indirectly out of (a) your unauthorized use of the Traffic Data networks, (b) your violation of this Agreement, and/or (c) any unauthorized or unlawful activities by you in connection herewith. The Traffic Data is informational only. You assume all risk of use. HERE (and its affiliates), Garmin Ltd. (and its subsidiaries), and their suppliers make no representations about content, traffic and road conditions, route usability, or speed. The Traffic Data is provided to you “as is,” and you agree to use it at your own risk. HERE (and its affiliates) and Garmin Ltd. (and its subsidiaries) make no warranty of fitness or compatibility of the Traffic Data with the Application or your Navigon device and no warranty that the Traffic Data will operate properly as integrated and interfaced with the Application or your Navigon device. In addition, HERE (and its affiliates) and Garmin Ltd. (and its subsidiaries) make no warranty with regard to the reliability, accuracy, exhaustiveness, and completeness of the Traffic Data, which may contain inaccuracies and/or errors from time to time. To the maximum extent permitted by applicable law, any and all warranties of any kind whatsoever with regard to the Traffic Data are hereby expressly waived and excluded, including, but not limited to, those of merchantability, fitness for a particular purpose, accuracy or completeness of the Traffic Data, and/or a lack of viruses. HERE (and its affiliates), Garmin Ltd. (and its subsidiaries), and their suppliers disclaim all liability for any loss, injury, or damage resulting from use of or inability to use the Navigon product and the Traffic Data as a result of weather difficulties, the destruction of transmitters and/or broadcasting infrastructures, a natural disaster, and/or a lack of reliability, completeness, or accuracy of the Traffic Data. In no event shall HERE (and its affiliates), Garmin Ltd. (and its subsidiaries), and their suppliers be liable to you or any other party for any compensatory, direct, indirect, incidental, special, or consequential damages (including, without limitation, indirect, direct, special, punitive, or exemplary damages for loss of business, loss of profits, business interruption, or loss of business information) arising out of the use of or inability to use the Application, your Navigon device or the Traffic Data, even if HERE or Navigon have been advised of the possibility of such damages. Use of Traffic Data is subject to certain restrictions and/or requirements imposed by third party suppliers and/or governmental or regulatory authorities as further set forth at http://corporate.navteq.com/supplier_terms.html. Governing Law. The above terms and conditions shall be governed by the laws of the State of Illinois, without giving effect to (i) its conflict of laws provisions, or (ii) the United Nations Convention for Contracts for the International Sale of Goods, which is explicitly excluded. You agree to submit to the jurisdiction of the State of Illinois for any and all disputes, claims and actions arising from or in connection with the Traffic Data provided to you hereunder. Government End Users. If the Traffic Data is being acquired by or on behalf of the United States government or any other entity seeking or applying rights similar to those customarily claimed by the United States government, this Data is a “commercial item” as that term is defined at 48 C.F.R. (“FAR”) 2.101, is licensed in accordance with this Agreement, and the Traffic Data delivered or otherwise furnished shall be marked and embedded as appropriate with the following “Notice of Use,” and shall be treated in accordance with such Notice: Notice of Use Contractor (Manufacturer/ Supplier) Name: HERE Contractor (Manufacturer/supplier) Address: 425 West Randolph Street, Chicago, Illinois 60606 This Data is a commercial item as defined in FAR 2.101 and is subject to the HERE Traffic™ End User License Agreement under which this Data was provided. © 1987-2014 HERE – All rights reserved. If the Contracting Officer, federal government agency, or any federal official refuses to use the legend provided herein, the Contracting Officer, federal government agency, or any federal official must notify HERE prior to seeking additional or alternative rights in the Traffic Data. HERE is a trademark in the U.S. and other countries. © 1987-2014 HERE; All rights reserved. Additional Terms and Privacy Policy for Location Platform Services. If your Application is provided access to Location Platform Services, by accessing such Location Platform Services you agree to application of the Nokia Terms of Service at http://here.com/services/terms and the Nokia Privacy Policy at http://www.nokia.com/global/privacy/privacy/policy/privacy-policy/ Additional Terms and Conditions for the use of Travel and Traffic Information Services Provided in Finland, Sweden, Norway, Denmark and Poland – Mediamobile Nordic End User License Agreement. Your Application may be embedded with, or your downloaded Content may contain, Mediamobile Nordic Traffic. If so, you are subject to the terms and conditions of the following End User License Agreement. In the event of a conflict between the terms set forth under “Traffic” above and the terms of this Mediamobile Nordic End User License Agreement, the terms of this Mediamobile Nordic End User License Agreement shall prevail. 1 Scope 1.1 This Mediamobile Nordic Oy End User License Agreement (“MEULA”) contains the terms and conditions regarding your use of the Services (as defined below in section 2.6) provided by the Service Provider (as defined below in section 2.7) in the Territory (as defined below in section 2.8) and material limitations to your rights in that regard. If you are acting as an agent or other representative of a company or another legal person, such as an officer or other employee acting for your employer, then “you” and “your” mean your principal, the entity or other legal person for whom you are acting. 1.2 This MEULA has been made publicly available in the Mediamobile Nordic Traffic web service on the Service Provider’s official Web site (www.mediamobilenordic.com/eula/). However, if you have not reviewed this MEULA prior to downloading the application containing this MEULA, you should read this MEULA carefully as it is a legal agreement between you and the Service Provider as if the Service Provider and you physically signed this MEULA. If you would like to get an unofficial translation of this MEULA from English to your respective local language in the Territory, please visit the above-mentioned website. By downloading and installing the application you have purchased containing this MEULA and thereafter commencing the use of the Services, you automatically accept and agree to be bound by the terms and conditions contained in this MEULA. However, if you do not agree to all of the terms and conditions contained in this MEULA, you may not use the Services. 2 Definitions 2.1 “Act” shall mean the applicable local consumer protection laws and regulations. 2.2 “Data” shall mean collectively the travel and traffic information and the related location data made available to you through the Services by the Service Provider. 2.3 “Intellectual Property Rights” shall mean all copyrights, trademarks, trade secrets, patents and other intellectual property rights recognized in any jurisdiction worldwide, including all applications and registrations with respect thereto. 2.4 “Manufacturer” shall mean the manufacturer of the Product and its affiliates. 2.5 “Product” shall mean the personal navigation application that enables your device to receive the Services manufactured, marketed, sold and distributed by the Manufacturer. 2.6 “Services” shall mean the provision of the Data to you by the Service Provider. 2.7 “Service Provider” shall mean Mediamobile Nordic Oy with the Finnish Corporate ID 2163026-3 and registered address Kumpulantie 11, PO BOX 73, 00521 Helsinki, Finland. 2.8 “Territory” shall mean Finland, Sweden, Norway and Denmark. 3 License Grant 3.1 The Service Provider hereby grants to you a nonexclusive right to use the Services in the Territory for the life of the Product, or when the third party licenses, services and information required for providing the Services become unavailable on commercially reasonable terms, or until the Service Provider discontinues providing the Services in the form as they were provided when you purchased the Product, whichever is the shortest. 3.2 There are no implied licenses granted under this MEULA, and all rights save for those expressly granted to you above, shall remain with the Service Provider. 4 Intellectual Property And Other Rights 4.1 Title and all Intellectual Property Rights to or associated with the Services and/or the Data shall always be vested in the Service Provider, its licensors or other suppliers. 5 Warranty Disclaimer 5.1 The Service Provider shall provide the Services with due care and professional skill in the Territory until the expiry or termination of the license grant as agreed in section 3.1 above. For the avoidance of any doubt, the Service Provider’s warranty provided hereunder shall cover only the Services expressly excluding the Product. 5.2 NOTWITHSTANDING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT THE SERVICES, DUE TO THEIR NATURE AND CONTENT, MIGHT NOT ALWAYS BE FREE FROM DEFECTS, COMPLETE, REAL-TIME OR AVAILABLE, AND THAT THEY ARE PROVIDED ON “AS IS” BASIS IN LIEU OF ALL OTHER SERVICE PROVIDER OBLIGATIONS ARISING FROM THE ACT OR OTHER APPLICABLE STATUTORY LAWS, TRADE USAGE, GENERAL PRINCIPLES OR OTHER SOURCES OF LAW, WHICH ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY THE MANDATORY OBLIGATIONS IMPOSED ON THE SERVICE PROVIDER IN THE ABOVE REFERRED SOURCES OF LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE MANUFACTURER, ITS DISTRIBUTORS AND/OR RESELLERS SHALL IN ANY WAY EXTEND THE SCOPE OF THIS WARRANTY. 5.3 IN CASE THE SERVICES HAVE NOT BEEN PERFORMED WITH DUE CARE AND PROFESSIONAL SKILL AS AGREED IN SECTION 5.1 ABOVE, YOUR SOLE REMEDY IS REPERFORMANCE OF THE SERVICES EXPRESSLY EXCLUDING OTHER REMEDIES ARISING FROM THE ACT OR OTHER APPLICABLE STATUTORY LAWS, TRADE USAGE, GENERAL PRINCIPLES OR OTHER SOURCES OF LAW, WHICH ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY THE MANDATORY REMEDIES AVAILABLE TO YOU UNDER THE ABOVE-REFERRED SOURCES OF LAW. 6 Limitation of Liability 6.1 FOR THE AVOIDANCE OF ANY DOUBT, YOU HAVE A RIGHT TO CLAIM DAMAGES FROM THE SERVICE PROVIDER ONLY IN SITUATIONS IN WHICH SUCH RIGHT CANNOT BE EXCLUDED BASED ON SECTION 5.3. 6.2 EXCLUDING THE SITUATIONS IN WHICH LIABILITY FOR (A) INDIRECT DAMAGES CANNOT BE LIMITED BASED ON THE MANDATORY PROVISIONS IN THE ACT AND OTHER APPLICABLE LOCAL LAWS, THE SERVICE PROVIDER SHALL NOT BE LIABLE FOR INDIRECT DAMAGES; AND (B) DIRECT DAMAGES CANNOT BE LIMITED BASED ON THE MANDATORY PROVISIONS IN THE ACT AND OTHER APPLICABLE LOCAL LAWS, THE SERVICE PROVIDER SHALL NOT BE LIABLE FOR DIRECT DAMAGES TO THE EXTENT THEY EXCEED THE FEES, WHICH YOU HAVE ACTUALLY PAID FOR THE SERVICES EXPRESSLY EXCLUDING THE PRICE OF THE PRODUCT. 6.3 TO THE EXTENT PERMITTED BY THE MANDATORY PROVISIONS IN THE ACT AND OTHER APPLICABLE LOCAL LAWS, THE LIMITATION PERIOD FOR YOUR CLAIMS FOR DAMAGES SHALL BE TWO (2) YEARS FROM THE POINT IN TIME WHEN THE CLAIM AROSE AND YOU BECAME AWARE THEREOF. REGARDLESS OF YOUR KNOWLEDGE THE LIMITATION PERIOD SHALL ALWAYS BE THREE (3) YEARS FROM THE DAMAGING EVENT. 6.4 WITH THE EXCEPTION OF LIABILITY FOR PERSONAL INJURY OR PROPERTY UNDER THE APPLICABLE LOCAL PRODUCT LIABILITY LAWS, THE ABOVE LIMITATIONS SHALL APPLY TO ALL CLAIMS FOR DAMAGES, IRRESPECTIVE OF THEIR LEGAL BASIS. 7 General Terms 7.1 This MEULA constitutes the entire agreement and understanding by and between you and the Service Provider. This MEULA supersedes any prior and contemporaneous proposals, purchase orders, advertisements, and all other communications in relation to the subject matter of this MEULA, whether oral or written. Any additions or modifications hereto must be made in writing and signed by a duly authorized Service Provider representative. This also applies to any waiver of this requirement of written form. For the avoidance of any doubt, the Manufacturer and their distributors do not have a permission to modify this MEULA on behalf of the Service Provider. 7.2 If for any reason a court finds any provision of this MEULA, or any portion thereof, to be unenforceable, that provision of this MEULA will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this MEULA will continue in full force and effect. 7.3 Subject to section 6.3 above, a failure of a party to insist upon the performance of one or more of the terms of this MEULA will not be deemed to be a waiver of its right to enforce such term, or of any rights or remedies that party may have under this MEULA. 7.4 This MEULA shall be governed in all respects by the laws of the country within the European Economic Area (EEA) in which you are domiciled. If you are domiciled outside the European Economic Area (EEA), this MEULA shall be governed in all respects by the laws of the country in the European Economic Area (EEA) from which you purchased the license to use the Services. The United Nations Convention on Contracts for the International Sale of Goods, done at Vienna April 11, 1980, is excluded. 7.5 All disputes arising under this MEULA shall be brought in the public court in the country within the European Economic Area (EEA) in which you are domiciled. If you are domiciled outside the European Economic Area (EEA), the forum for all disputes shall be the public court in the country within the European Economic Area (EEA) from which you purchased the license to use the Services. SUNA Traffic Channel. Your device may be embedded with, or your downloaded Content may contain, or provide access to, the SUNA Traffic Channel, SUNA Predictive or other content or material provided by Intelematics (together, SUNA Products and/or Services). By activating, using and/or accessing SUNA Products and/or Services, in addition to the provisions stated above under “Traffic”, you must accept certain terms and conditions. The following is a brief summary of the terms and conditions that apply to you. To view the full terms and conditions relevant to your use of the SUNA Products and/or Services, please consult www.sunatraffic.com.au/termsandconditions/ (Website). In the event of a conflict between the terms set forth under “Traffic” above and those set forth in this SUNA Traffic Channel End User License Agreement, the terms of this SUNA Traffic Channel End User License Agreement shall prevail. 1. Acceptance. By using SUNA Products and/or Services, you will be deemed to have accepted and agreed to be bound by the terms and conditions fully detailed at the Website. Intelematics reserves the right to vary the terms and conditions in whole or in part from time to time and amendments will be effective immediately upon posting of the amended terms and conditions on the Website. Your continued use of the SUNA Products and/or Services will represent your agreement to be bound by the terms and conditions as varied. 2. Intellectual Property. SUNA Products and/or Services are for your personal use. You may not record, or retransmit the content, nor use the content in association with any other traffic information or route guidance service or device not approved by Intelematics. You obtain no right of ownership in any Intellectual Property Rights (including copyright) in the data that is used to provide SUNA Products and/or Services. 3. Appropriate Use. SUNA Products and/or Services are intended as an aid to personal motoring, and do not provide comprehensive or accurate information on all occasions. On occasions, you may experience additional delay as a result of using SUNA Products and/or Services. You acknowledge that it is not intended, or suitable, for use in applications where time of arrival or driving directions may impact the safety of the public or yourself. 4. Use of SUNA Products and Services while Driving. You, and other authorised drivers of the vehicle in which SUNA Products and/or Services are installed and active, remain at all times responsible for observing all relevant laws and codes of safe driving. In particular, you agree to only actively operate SUNA Products and/or Services when the Vehicle is at a complete stop and it is safe to do so. 5. Service Continuity and Reception of the SUNA Traffic Channel. Intelematics will use reasonable endeavours to provide the SUNA Traffic Channel 24 hours a day, 365 days a year. The SUNA Traffic Channel may occasionally be unavailable for technical reasons or for planned maintenance. Intelematics will try to perform maintenance at times when congestion is light. Intelematics reserves the right to withdraw SUNA Products and/or Services at any time. Also, Intelematics cannot assure the uninterrupted reception of the SUNA Traffic Channel RDS-TMC signal at any particular location. 6. Limitation of Liability. If you access and/or use SUNA Products and/or Services in Australia and except for any representations, guarantees and warranties that are implied by law into this Agreement, or which are otherwise granted to you by law (including any consumer guarantees provided under schedule 2 of the Australian Competition and Consumer Act (2010) (Australian Consumer Law)), which cannot lawfully be excluded or modified, the SUNA Traffic Channel is provided to you “as is” with all faults, and neither Intelematics nor its suppliers or the manufacturer of your device (collectively, Suppliers) provide any representations, guarantees or warranties in respect of the SUNA Traffic Channel. If you access and/or use SUNA Products and/or Services in New Zealand and where the SUNA Products and/or Services are supplied for personal, domestic, or household use or consumption, the consumer guarantees provided under Parts 1 and 4 of the Consumer Guarantees Act 1993 (New Zealand Consumer Law) will apply. Except for those guarantees which cannot lawfully be excluded or modified, none of Intelematics, the Device Manufacturer or any Data Supplier make or provide any other representations, guarantees or warranties in respect of the SUNA Traffic Channel. Except for any liability that cannot lawfully be excluded (including any liability under the Australian or New Zealand Consumer Laws) under no circumstances will Intelematics or any of the Suppliers be liable to you for any loss, damages, claims or costs whatsoever (including any consequential, indirect or incidental damages), regardless of how they arise. For the avoidance of doubt, nothing in this Agreement purports to modify or exclude the representations, guarantees and warranties and other legal rights provided to you under the Australian or New Zealand Consumer Laws or any other laws of any jurisdictions. 7. Please Note. Great care has been taken in preparing this manual. Constant product development may mean that some information is not entirely up-to-date. The information in this document is subject to change without notice. 8. Navigon Terms and Conditions. You shall indemnify, defend, and hold harmless Navigon against any and all claims, damages, costs, or other expenses that arise directly or indirectly out of (a) your unauthorized use of SUNA Products and/or Services, (b) your violation of this Agreement and/or (c) any unauthorized or unlawful activities by you in connection herewith. The SUNA Products and/or Services are informational only. You assume all risk of use. Navigon makes no representations about content, traffic and road conditions, route usability, or speed. Navigon makes no warranty of fitness or compatibility of SUNA Products and/or Services with the Application or your Navigon device and no warranty that SUNA Products and/or Services will operate properly as integrated and interfaced with the Application or your Navigon device. Navigon disclaims all liability for any loss, injury, or damage resulting from use of or inability to use the Application or your Navigon device as a result of weather difficulties, the destruction of transmitters and/or other broadcasting infrastructures, a natural disaster, and/or a lack of reliability, completeness or accuracy of the traffic data. _______________________________________ Term. This Agreement is effective until such time as (i) if applicable, your subscription term is either terminated (by you or by Navigon) or expires, or (ii) Navigon terminates this Agreement for any reason, including, but not limited to, if Navigon finds that you have violated any of the terms of this Agreement. In addition, this Agreement shall terminate immediately upon the termination of an agreement between Navigon and any third party from whom Navigon (a) obtains services or distribution necessary to support the Application, or (b) licenses Content. You agree, upon termination, to destroy all copies of the Content. The Disclaimers of Warranty and Liability set out above shall continue in force even after any termination. Entire Agreement. These terms and conditions constitute the entire agreement between Navigon and its licensors, including the licensors, service providers, channel partners, suppliers and affiliated companies of Navigon and its licensors, and you pertaining to the subject matter hereof, and supersedes in their entirety any and all written or oral agreements previously existing between us with respect to such subject matter. Governing Law. Unless specified otherwise in specific sections of this Agreement, the following Governing Law provisions shall apply to this Agreement: (a) For European Union HERE Data The above terms and conditions shall be governed by the laws of the Netherlands, without giving effect to (i) its conflict of laws provisions, or (ii) the United Nations Convention for Contracts for the International Sale of Goods, which is explicitly excluded. You agree to submit to the jurisdiction of the Netherlands for any and all disputes, claims and actions arising from or in connection with the HERE Data provided to you hereunder. (b) For North American HERE Data and other non-European Union HERE Data The above terms and conditions shall be governed by the laws of Illinois, without giving effect to (i) its conflict of laws provisions, or (ii) the United Nations Convention for Contracts for the International Sale of Goods, which is explicitly excluded. You agree to submit to the jurisdiction of Illinois for any and all disputes, claims and actions arising from or in connection with the HERE Data provided to you hereunder. (c) For disputes, claims and actions not related to the HERE Data The above terms and conditions shall be governed by the laws of Kansas, without giving effect to (i) its conflict of laws provisions, or (ii) the United Nations Convention for Contracts for the International Sale of Goods, which is explicitly excluded. You agree to submit to the jurisdiction of Kansas for any and all disputes, claims and actions arising from or in connection with the Application or Content. Any translation of this Agreement from English is provided as a convenience only. If this Agreement is translated into a language other than English and there is a conflict of terms between the English version and the other language version, the English version will control. Government End Users. If End User is an agency, department, or other entity of the United States Government, or funded in whole or in part by the U.S. Government, then use, duplication, reproduction, release, modification, disclosure or transfer of the Application and accompanying documentation is subject to restrictions as set forth in DFARS 252.227-7014(a)(1) (JUN 1995) (DOD commercial computer software definition), DFARS 27.7202-1 (DOD policy on commercial computer software), FAR 52.227-19 (JUN 1987) (commercial computer software clause for civilian agencies), DFARS 252.2277015 (NOV 1995) (DOD technical data – commercial items clause); FAR 52.227-14 Alternates I, II, and III (JUN 1987) (civilian agency technical data and noncommercial computer software clause); and/or FAR 12.211 and FAR 12.212 (commercial item acquisitions), as applicable. In case of conflict between any of the FAR and DFARS provisions listed herein and this License Agreement, the construction that provides greater limitations on the Government’s rights shall control. The contractor/manufacturer is Garmin International, Inc., 1200 East 151st Street, Olathe, Kansas 66062, USA. If HERE Data is included, HERE North America LLC, 425 West Randolph Street, Chicago, Illinois 60606 USA is also a contractor/manufacturer. Navigon® is a trademark of Garmin Ltd. or its subsidiaries, registered in the USA and other countries. These trademarks may not be used without the express permission of Navigon. HERE is a trademark in the U.S. and other countries. All other company names and trademarks mentioned or referenced in this documentation are the properties of their respective owners. All rights reserved. OpenStreetMap Terms and Conditions Certain Navigon Products include OpenStreetMap data (http://www.openstreetmap.org). Navigon OpenStreetMap Products are not subject to the End User License Agreement Terms outlined above, but rather are subject to the Terms and Conditions set forth below. OpenStreetMap data is copyright OpenStreetMap contributors and is subject to the Open Database license (http://opendatacommons.org/licenses/odbl/1.0/). Any rights in individual contents of the OpenStreetMap data are licensed under the Database Contents License: http://opendatacommons.org/licenses/dbcl/1.0/. No Warranty. Navigon OpenStreetMap Products are provided to you “as is,” and you agree to use it at your own risk. Navigon and its licensors including the licensors, service providers, channel partners and suppliers, and affiliated companies of Navigon and its licensors, make no guarantees, representations or warranties of any kind, express or implied, arising by law or otherwise, including but not limited to, content, quality, accuracy, completeness, effectiveness, reliability, merchantability, fitness for a particular purpose, usefulness, use or results to be obtained from the Navigon OpenStreetMap Products, or that the Content or server will be uninterrupted or error-free. The Navigon OpenStreetMap Products are intended to be used only as a supplementary travel aid and must not be used for any purpose requiring precise measurement of direction, distance, location or topography. NAVIGON MAKES NO WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF MAP DATA IN THE OPENSTREETMAP PRODUCTS. Disclaimer of Warranty. NAVIGON AND ITS LICENSORS, INCLUDING THE LICENSORS, SERVICE PROVIDERS, CHANNEL PARTNERS, SUPPLIERS AND AFFILIATED COMPANIES OF NAVIGON AND ITS LICENSORS, DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY NAVIGON OR ITS SUPPLIERS AND LICENSORS SHALL CREATE A WARRANTY, AND YOU ARE NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION. THIS DISCLAIMER OF WARRANTIES IS AN ESSENTIAL CONDITION OF THIS AGREEMENT. Some States, Territories and Countries do not allow certain warranty exclusions, so to that extent the above exclusion may not apply to you. Disclaimer of Liability. NAVIGON AND ITS LICENSORS , INCLUDING THE LICENSORS, SERVICE PROVIDERS, CHANNEL PARTNERS, SUPPLIERS AND AFFILIATED COMPANIES OF NAVIGON AND ITS LICENSORS, SHALL NOT BE LIABLE TO YOU: IN RESPECT OF ANY CLAIM, DEMAND OR ACTION, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND OR ACTION ALLEGING ANY LOSS, INJURY OR DAMAGES, DIRECT OR INDIRECT, WHICH MAY RESULT FROM THE USE OR POSSESSION OF THE OPENSTREETMAP PRODUCTS; OR FOR ANY LOSS OF PROFIT, REVENUE, CONTRACTS OR SAVINGS, OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE OPENSTREETMAP PRODUCTS, ANY DEFECT IN THE CONTENT OR INFORMATION, OR THE BREACH OF THESE TERMS OR CONDITIONS, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY AND WHETHER RESULTING FROM THE USE, MISUSE, OR INABILITY TO USE THE OPENSTREETMAP PRODUCTS OR FROM DEFECTS OR ERRORS IN THE APPLICATION, EVEN IF NAVIGON OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NAVIGON’S AND ITS LICENSORS’ TOTAL AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS LICENSE AGREEMENT OR OTHERWISE WITH RESPECT TO THE OPENSTREETMAP PRODUCTS OR THE CONTENT SHALL NOT EXCEED $1.00. Some States, Territories and Countries do not allow certain liability exclusions or damages limitations, so to that extent the above may not apply to you. If you purchased your Application from a third party application vendor, THE SOLE AND MAXIMUM RESPONSIBILITY OF THE APPLICATION VENDOR IN THE EVENT OF A WARRANTY FAILURE IS A REFUND OF THE APPLICATION PURCHASE PRICE. Collection of Information. We may collect information relating to how often you use the OpenStreetMap Products or the frequency with which certain features of the OpenStreetMap Products are used. This information would be collected anonymously, in a way that does not personally identify you. We may use this information to detect broad user trends and to otherwise enhance our products or applications. If you elect to use location-based services on the OpenStreetMap Products, which may include weather, movie times, traffic information, fuel prices, and information regarding local events, the physical location of your device will be collected in order to provide you with such location-based services. This location data is collected anonymously in a form that does not personally identify you. If you provide your consent then Garmin will collect and upload from your mobile device information such as your location, speed and direction (known as “traffic probe data” or “floating car data”) in order to enhance the quality of the traffic data and other content provided by Garmin or content providers. If you provide your consent, then Garmin may also share this data with or sell this data to third parties. This data is shared and sold anonymously in a form that does not personally identify you.
