End user license agreement
END USER LICENSE AGREEMENT (EULA)
The following terms and conditions apply to your use of the iSMART app (the “App”) and those functions of the receiver built into your vehicle (the “Receiver”) that interact with or are controlled by the App (together the “Services”) provided by SAIC Motor Europe BV, a limited company duly organized and existing under the laws of the Netherlands, having its registered office at Oval Tower, 15th floor, De Entree 159, 1101 HE Amsterdam, The Netherlands (“SAIC”). By accepting this EULA you accept the following license terms:
- SERVICE: SAIC provides you the Services to enable specific functionalities of your SAIC vehicle, e.g. remote control of your vehicle functions, enhanced navigation services, voice control of your audio visual and navigation system and access to third party services (the “Third-Party Services”). To use the Services, including the Third-Party Services, you will have to connect the App to the Receiver.
- REPRESENTATION: In case you are acting on behalf of your employer or any (other) third party (the “Represented Party”), this EULA is concluded between the relevant Represented Party and SAIC. Moreover, you agree that the Represented Party is responsible for your compliance with this EULA as well as that SAIC may enforce this EULA also directly against you.
- GRANT OF LICENSE: The Services are provided to you on a revocable, non-transferable, non-exclusive and free of charge basis. You may only use the Services for your personal use and/or use of the Represented Party (where applicable), in particular to install the App on your end device and use the App solely in combination with the Receiver. If any software is provided as part of the Services, you are only entitled to use the binary form of such software and have no right to receive the source code. If upgrades, updates or supplements to the Services are obtained or made available to you, the use of such upgrades, updates or supplements are subject to this EULA unless other terms accompany such upgrades, updates or supplements in which case those terms apply. All other rights not specifically granted under this paragraph are reserved by SAIC.
- SAFETY: The Services are intended to be used for providing information and services related to your vehicle only and are not intended to be used as a safety related tool and cannot warn you about all dangers and hazards with respect to the usage of vehicles. Therefore, it remains your duty to treat your vehicle in a careful and safe manner (paying all due care and attention to your vehicle). It is your responsibility not to use the Services in a manner that would distract you from driving safely.
- UPDATES AND CHANGES TO THE SERVICES AND THESE TERMS: SAIC reserves the right, with or without notice, to discontinue, update, modify, upgrade and supplement the Services. SAIC is entitled to amend this EULA, provided that the changes are reasonable for you. SAIC shall notify you of the changes in good time before they come into force by means of a notification by e-mail and/or notification via the Service. If you do not object to the changes in text form (e.g. by e-mail) within one month of notification and continue to use the Service, you thereby agree to the changes. SAIC will specifically inform you of this consequence in the notification.
- RESTRICTIONS: You are prohibited from renting, lending, public presentation, performance or broadcasting or any other kind of distribution of the Services. You will not, and you will not allow any person to, copy or modify the Services or any part thereof or to reverse engineer, decompile or disassemble the Services except as indispensable to install the App on your end device and to obtain the information necessary to establish the interoperability with an independently created computer programme. You may not use the Services in connection with any illegal, fraudulent, dishonest, unethical activity or behaviour and/or use the Services to store or transmit malicious code, interfere with the integrity or performance of the Services or attempt to gain unauthorised access to the Services and/or any systems or networks connected thereto. You shall keep your login credentials unavailable to others, except vis-a-vis your representatives which use the Services on behalf of you as Represented Party.
- OWNERSHIP: All intellectual property rights related to the Services are owned by SAIC and/or its suppliers.
- LIMITED WARRANTY: You acknowledge that the Services have not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Services meet your requirements. SAIC provides the Services “as is” and, therefore, does not and cannot warrant that the Services operate uninterrupted or error-free. You should be particularly aware of the fact that calculation errors may occur when using software and system which may, for example, be caused by local environmental conditions and/or incomplete data. SAIC does not warrant that the Services are capable of interoperating with any other system, device or product (e.g. software or hardware).
- LIMITATION OF LIABILITY: SAIC’s aggregate liability shall at all times be limited to an amount of USD 110,000 per event. To the extent this limitation is not upheld, SAIC’s aggregate liability shall be limited to the amount that its insurers actually pay out for damages caused. To the extent this limitation is not upheld, SAIC shall be liable for damages in accordance with the statutory provisions. In the event of attributable breaches of obligations or duty - irrespective of the legal grounds - SAIC shall in such case be liable for intent and wilful recklessness. In all other events, and subject to a less strict standard of liability under statutory provisions, SAIC shall then only be liable: (i) for damages resulting from injury to life, body or health, and (ii) for damages arising from the breach of a material contractual obligation (an obligation the fulfilment of which is a prerequisite for the proper performance of the contract and the observance of which you regularly rely on and may rely on); in this case, however, liability shall be limited to compensation for the foreseeable, typically occurring damage. The above limitations of liability shall also apply in the event of breaches by persons for whose fault SAIC is responsible in accordance with statutory provisions. The limitations of liability do not apply if guarantees have been assumed. Liability product liability remains unaffected. The liability for defects already existing at the time the EULA is concluded is excluded. If you are, or the Represented Party is, not a consumer, all claims become statute-barred after one year.
- APP STORE TERMS: If you obtain access or download the App through a third-party app store, the third-party operator of such app store may have additional terms to which you agree. Nothing in this EULA shall be interpreted as limiting such additional terms, in particular the Apple Media Services Terms and Conditions and the Google Play Terms of Service. In accordance with Section 10 of Apple's Instructions for Minimum Terms of Developer's End-User License Agreement, Apple and Apple's subsidiaries shall have the right - but not the obligation - by way of a contract for the benefit of third parties to this EULA, as a third party beneficiary, to enforce provisions of this EULA against you.
- THIRD-PARTY SERVICES: SAIC is not responsible for the contents of any Third Party Services, in particular any links contained in Third-Party Services, or any changes or updates to Third-Party Services which are delivered by the Services or otherwise. SAIC is providing these links and access to Third-Party Services to you only as a convenience, and the inclusion of any link or access does not imply an endorsement by SAIC or any third parties of the Third-Party Services. Any use by you of such Third-Party Services and the manner in which you use such Third-Party Services shall be your responsibility and at your risk. You warrant to use such Third Party Services in accordance with any third party terms and conditions as applicable.
- TERM: This EULA is concluded for indefinite time. You may terminate this EULA by deleting your user account. SAIC reserves the right to discontinue the Service or terminate this EULA by giving 3-month notice. Without prejudice to any other rights, SAIC may immediately terminate this EULA if you fail to comply with any of its terms and conditions. Any right to terminate the EULA for cause shall remain unaffected. The provisions of this EULA, which by their nature are intended to survive termination, will remain in effect after termination of this EULA.
- SALE OF THE VEHICLE: If you sell the vehicle you are obliged to reset the Receiver and delete all data stored therein before you deliver the vehicle to the new owner.
- NO AGREEMENT AT THE EXPENSE OR FOR THE BENEFIT OF THIRD PARTIES: This EULA is concluded between you and SAIC and does not create any obligations for or rights of third parties, in particular with regard to warranty, liability, maintenance and service.
- DECLARATION OF NON-EXISTENCE OF EXPORT RESTRICTIONS: You warrant and represent that you are not a resident of or located in any country that is subject to an embargo by the U.S. Government or that has been designated by the U.S. Government as a "terrorist supporting country" and that you are not on any U.S. Government list of prohibited or restricted parties.
- SEVERABILTY: If any part of this EULA is held to be invalid or unenforceable, the remainder of the EULA shall nonetheless remain in full force and effect.
- CHOICE OF LAW AND VENUE: The laws of the Netherlands (with the exclusion of UN international trade law) apply. If you conclude this EULA for purposes that predominantly are outside your trade, business or profession (as a consumer) this choice of law may not, however, have the result of depriving you of the protection afforded to you by the mandatory laws of your country of habitual residence. If you are not a consumer, the exclusive jurisdiction in first instance to settle all disputes between you and SAIC arising in relation to or under the EULA between you and SAIC rests with the District Court of Amsterdam, the Netherlands.