End-User License Agreement

Transcription

1 End-User License Agreement This is a legal agreement between you and Beijing Oriental Telematics Services Company ( BOTS ) with support from Verizon Telematics (China) Co., Ltd. ( VZTC ) regarding software ( Software ) and data ( Data ) that are provided for your personal receipt of part of the Mercedes-Benz Connect Services only on your personal mobile device and not for resale. By electronically indicating that you agree or accept by clicking or marking in the appropriate location below or by installing or using the Software or Data, you agree to be bound by the terms of this End-User License Agreement (this EULA ). If you do not agree to the terms of this EULA, you are not entitled to use the Software and Data and must electronically indicate that you Decline or otherwise terminate the installation process. The Software and Data are protected by copyright, and are subject to the following terms and conditions which are agreed to by you, on the one hand, and BOTS, VZTC and their licensors (including their licensors and suppliers) on the other hand. Mercedes-Benz Companies (as defined in the Terms and Conditions between you and BOTS together with VZTC regarding Mercedes-Benz Connect Services, the Terms and Conditions ) shall be third-party beneficiaries under this EULA. The terms of the license will govern any upgrades provided by BOTS, VZTC and theirs licensors that replace and/or supplement the original Software or Data, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. The terms and conditions of this EULA shall not limit any right of BOTS, VZTC or the protection afforded to BOTS, VZTC or Mercedes-Benz Companies or any consent of yours or obligation of yours contained in the Terms and Conditions, a copy of which is available at me.mercedes.cn, the terms of which you reaffirm by entering into this EULA. This EULA is concluded between you and BOTS together with VZTC and BOTS together with VZTC are responsible for the Software and content thereof in accordance with the terms of this EULA. TERMS AND CONDITIONS Personal Use Only. You agree to use the Software and Data together with BOTS mobile application only in connection with your receipt of Mercedes-Benz Connect Services and solely for the personal purpose for which you were licensed, and not for service bureau, time-sharing or other similar purposes. Accordingly, but subject to the restrictions set forth in this EULA, you may copy the Data only as necessary for your personal 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 Data in any way. You agree that the Software and Data and all upgrades, corrections, and enhancements thereto shall be and remain at all times the property of BOTS, VZTC or their licensors or suppliers, or Mercedes-Benz Companies, as the case may be (including all copyrights and other intellectual property rights relating thereto). BOTS together with VZTC grant to you a terminable, limited, non-exclusive, nontransferable license, without the right to sublicense, to use the Software and Data within the territory of the People s Republic of China and, to the extent any or all of Data constitutes Vehicle and Subscriber Data (as defined in the Terms and Conditions), you

2 agree to use such Data in accordance with the provisions as set forth in the Terms and Conditions; provided, that you do not (a) make available or distribute all or any part of the Software, Data or documentation to any third party whether by assignment, sublicense, electronic transmission or by any other means; or (b) copy, adapt, reverse engineer, decompile, disassemble, create derivative works of, or modify any portion of the Software or Data, and may not transfer or distribute it in any form, for any purpose, except to the extent permitted by mandatory laws. You agree that this EULA is enforceable by BOTS, VZTC or their licensors. You agree to abide by all laws and regulations applicable to the Software, their content, the Data and these terms. Termination. The license is effective until terminated by you, or BOTS and VZTC. Your rights under this license will terminate automatically without notice from BOTS or VZTC if you fail to comply with any term(s) of this license. Upon termination of the license and subject to the Terms and Conditions, you shall cease all use of the Software and Data, and delete all copies, full or partial, of the Software, and if requested by BOTS or VZTC, certify to BOTS or VZTC or their licensors that such deletion occurred. BOTS, VZTC and their licensors will be entitled, on reasonable grounds, including the reasonable belief of fraud or illegal activity by you in your use of the Software or Data, to suspend access by you to some or all Software or Data. In addition, this license may be terminated by BOTS or VZTC with immediate effect by electronic notice if BOTS or VZTC s agreement with a supplier or licensor of the Software or Data is terminated or restricted for any reason. You understand that BOTS, together with VZTC and their licensors may be required by law enforcement agencies to disclose information regarding your use of the Software or Data and that BOTS or VZTC and its licensors will comply with such requests. Services; Third Party Materials. The Software may enable access to services and web sites provided or established by BOTS, its contractors (including VZTC) or an independent third party, as well as the Mercedes-Benz Connect Services (collectively and individually, "Services"). None of BOTS, VZTC or Mercedes-Benz Companies warrants or endorses or assume and will have any liability or responsibility to you or any other person for any Services, web sites or for any other materials, products, or services of third parties ( Third Party Materials ). Third Party Materials and links to other web sites are provided solely as a convenience to you. You agree to comply with any applicable third-party terms of agreement when using the Software or Data. Location data may not be accurate. The Services are not intended to be relied upon in situations where precise location information is needed or desired, or where erroneous, inaccurate or incomplete location data may lead to inconvenience, harm or damages including but not limited to death, personal injury, harm to property or environmental damage. Use of the Services may require wireless communication services, global navigation satellite system services, and Internet access, and that you accept additional terms of service.

3 LOCATION DATA AND OTHER SERVICES WILL NOT BE PROVIDED FOR VEHICLES THAT ARE NOT LOCATED WITHIN THE PEOPLE S REPUBLIC OF CHINA WHICH FOR PURPOSES OF THIS AGREEMENT SHALL INCLUDE: Beijing Municipality, Tianjin Municipality, Shanghai Municipality, Chongqing Municipality, Hebei Province, Shanxi Province, Inner Mongolia Autonomous Region, Guangxi Zhuang Autonomous Region, Hainan Province, Xinjiang Uygur Autonomous Region, Tibet Autonomous Region, Qinghai Province, Yunnan Province, Guizhou Province, Shaanxi Province, Gansu Province, Ningxia Hui Autonomous Region, Liaoning Province, Jilin Province, Heilongjiang Province, Jiangsu Province, Zhejiang Province, Anhui Province, Fujian Province, Jiangxi Province, Shandong Province, Henan Province, Hubei Province, Hunan Province, Guangdong Province and Sichuan Province. ABSENT WIRELESS COVERAGE, NO SERVICE WILL BE AVAILABLE. Warning. The Data may contain inaccurate or incomplete information due to the passage of time, changing circumstances, sources used and the nature of collecting comprehensive geographic data, any of which may lead to incorrect results. Disclaimer of Warranties. THE SOFTWARE AND DATA IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND. YOU AGREE TO USE IT AT YOUR OWN RISK. BOTS, TOGETHER WITH VZTC AND THEIR LICENSORS, OR MERCEDES-BENZ COMPANIES, AS THE CASE MAY BE, DO NOT MAKE ANY WARRANTIES, GUARANTEES, REPRESENTATIONS OR STATEMENTS WHATSOEVER WHETHER EXPRESSED OR IMPLIED BY STATUTE, CUSTOM, USAGE OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND DATA INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF TITLE, INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES, AND NON- INFRINGEMENT, OF MERCHANTABILITY OR QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY THAT THE SOFTWARE AND DATA IS ACCURATE, COMPLETE, EFFECTIVE, RELIABLE AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. BOTS, VZTC AND ANY MERCEDES-BENZ COMPANIES DO NOT WARRANT THAT THE SOFTWARE, DATA OR SERVICE WILL MEET YOUR REQUIREMENTS IN ANY RESPECT, OR THAT THE OPERATION OF THE SOFTWARE, DATA OR SERVICES WILL BE UNINTERUPTED OR ERROR-FREE OR THAT ERRORS IN THE SOFTWARE, DATA OR SERVICES CAN OR WILL BE CORRECTED. YOU AGREE THAT NO COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE SHALL APPLY TO THIS AGREEMENT. YOU ACKNOWLEDGE THAT YOUR ONLY REMEDIES IN RESPECT OF ANY CLAIM WHATSOEVER THAT YOU MAY WISH TO BRING AGAINST BOTS OR VZTC AND ITS LICENSORS OR ANY MERCEDES-BENZ COMPANIES ARE AS EXPRESSLY PROVIDED IN THIS AGREEMENT. Some territories or countries do not allow certain warranty exclusions, so solely to that limited extent the above exclusion may not apply to you. Limitation on Liability. NEITHER BOTS, HTI CHINA NOR THEIR LICENSORS, ANY

4 THIRD PARTY SUPPLIER NOR MERCEDES-BENZ COMPANIES SHALL HAVE ANY LIABILITY WHATSOEVER TO YOU FOR: ANY INDIRECT OR CONSEQUENTIAL LOSS OR ANY LOSS OF ACTUAL OR ANTICIPATED PROFIT, REVENUE OR GOODWILL OR LOSS OF USE OF THE SOFTWARE AND DATA BY YOU OR FOR ANY OF YOUR LIABILITY TO ANY OTHER PARTY OF WHATEVER KIND HOWSOEVER ARISING (INCLUDING BUT NOT LIMITED TO ECONOMIC LOSS, CLAIMS FOR DAMAGES OR AWARDS OR OTHERWISE); OR ANY OTHER LOSS OR DAMAGE SUFFERED BY YOU UNDER OR IN CONNECTION WITH THIS AGREEMENT(WHETHER ARISING IN CONTRACT OR IN TORT OR OTHERWISE AND WHETHER AS A RESULT OF NEGLIGENCE OR OTHERWISE) EXCEPT TO THE EXTENT OF AN AMOUNT EQUAL TO THE AMOUNT YOU PAID TO BOTS OR VZTC IN THE PRIOR YEAR FOR THE USE OF SOFTWARE OR DATA PROVIDED UNDER THIS AGREEMENT MEASURED AT THE DATE THE CLAIM ARISES; OR ANY INACCURACIES, INCOMPLETENESS, DELAYS, FAILURES TO TRANSMIT, INTERRUPTIONS, ERRORS OR OMISSIONS RELATING TO THE SERVICES, DATA, SOFTWARE OR OTHER INFORMATION, LACK OF SECURITY IN DELIVERY OF THE SERVICES, DATA OR OTHER INFORMATION, REGARDLESS OF CAUSE; OR ANY TECHNOLOGICAL, ELECTRONIC OR OTHER MALFUNCTIONING OF ANY TELECOMMUNICATIONS COMPUTER OR ELECTRONIC EQUIPMENT ON OR OVER WHICH THE SERVICES OR ANY DATA OR OTHER INFORMATION IS RECEIVED BY OR TRANSMITTED BY BOTS, VZTC AND ITS LICENSORS OR MERCEDES-BENZ COMPANIES. Consent to Use of Data: You agree that BOTS together with support from VZTC may collect and use technical data and related information including, but not limited to, technical information about your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Software or Data. BOTS together with VZTC may use such information to improve its products or to provide services or technologies to you, or provide Mercedes-Benz Companies with such information, as long as such information is in a form that does not personally identify you. Export Control. You agree not to export from anywhere any part of the Software or Data provided to you or any direct product thereof except in compliance with all licenses and approvals required under, applicable export laws, rules and regulations. Entire Agreement. These terms and conditions constitute the entire agreement between

5 BOTS, VZTC (and their licensors, including their licensors and suppliers) and you pertaining to the licensing of the mobile application, and supersedes in their entirety any and all written or oral agreements previously existing between us with respect to the Software and Data, but shall not in any way supersede or limit any term of the Subscriber Agreement and Terms and Conditions. Governing Law and Dispute Resolution. THE ABOVE TERMS AND CONDITIONS SHALL BE GOVERNED BY THE LAWS OF THE PEOPLE S REPUBLIC OF CHINA. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS EULA, OR TO SOFTWARE OR DATA, WILL BE SETTLED BY CONFIDENTIAL INDEPENDENT ARBITRATION INVOLVING A NEUTRAL ARBITRATOR AND ADMINISTERED BY THE CHINA INTERNATIONAL ECONOMIC AND TRADE ARBITRATION COMMISSION ( CIETAC ) IN BEIJING IN ACCORDANCE WITH THE ARBITRATION RULES OF CIETAC THEN BEING IN FORCE WHICH RULES ARE DEEMED TO BE INCORPORATED BY REFERENCE TO THIS CLAUSE. THIS ARBITRATION AWARD SHALL BE FINAL AND BINDING, NOT SUBJECT TO ANY APPEAL AND SHALL DEAL WITH THE QUESTION OF COSTS OF ARBITRATION AND ALL MATTERS RELATED THERETO, AND THE IMMUNITY POWER, IF ANY, IS WAIVED Third-Party Beneficiaries. Without limitation of anything else set forth herein, with respect to the subject matter of this Agreement, you have no contractual relationship whatsoever with Mercedes-Benz Companies, and this EULA does not give you any rights against any Mercedes-Benz Company. You are not a third party beneficiary of any agreement between us and any of our licensor, supplier or any Mercedes-Benz Company. None of our licensor, supplier or any Mercedes-Benz Company has any legal, equitable, or other liability of any kind to you under this EULA. You expressly waive any and all claims or demands for such liability against any of the Mercedes-Benz Companies. The Mercedes-Benz Companies are a third party beneficiary under this EULA. You may notify us by postal mail: Room 2607, Block A, Focus Square, No.6 Futong East Avenue, Wangjing, Chaoyang District, Beijing, PRC , or by phone: , ) with any questions, complaints or claims with respect to the Software or Data. Such notices will be considered effective after we receive them. In particular, any written notice from you will be considered given when we receive it at our address provided above.