GARMIN MOBILE™ FOR BLACKBERRY®
ONE-TIME PURCHASE END USER LICENSE AGREEMENT
IMPORTANT – READ THESE TERMS AND CONDITIONS OF THIS ONE-TIME PRUCHASE END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE PURCHASING, USING OR OTHERWISE SUBSCRIBING TO GARMIN MOBILE™ SOFTWARE, TECHNOLOGY, AND/OR DATA PLANS (“GARMIN MOBILE APPLICATION”) FOR YOUR BLACKBERRY DEVICE (“DEVICE”). BY PURCHASING, SUBSCRIBING TO, DOWNLOADING, INSTALLING, USING, OR OTHERWISE ACCESSING THE GARMIN MOBILE APPLICATION, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, THAT YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND THAT YOU ARE AT LEAST 18 YEARS OF AGE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT LOAD THE GARMIN MOBILE SOFTWARE ONTO YOUR DEVICE. DURING THE GARMIN MOBILE APPLICATION SUBSCRIPTION PROCESS, YOU MAY ALSO BE REQUIRED TO READ AND ACCEPT A SEPARATE END-USER LICENSE AGREEMENT WITH TRAFFIC.COM, A THIRD-PARTY DATA PROVIDER TO THE GARMIN MOBILE APPLICATION.
Grant of License. Subject to the terms and conditions set forth herein, Garmin International, Inc. and/or its affiliated companies (collectively “Garmin”) grants you a non-transferable, non-exclusive, and non-sub-licensable limited right and license to view, use, and access the Garmin Mobile Application to (i) retrieve maps, directions, and turn-by-turn navigation data for North America, text, images, graphics, audio, and other images, and (ii) receive other third-party content data, text, images, graphics, photographs, audio, video, and other images from non-Garmin data providers, including such data as fuel price data, weather data, hotel data, and/or traffic data (hereinafter “third-party content data”) for display on your Device, solely for your informational purposes and for your immediate, private, individual, and non-commercial use provided you retain all copyright and proprietary notices contained in the navigation data and/or third-party content data applicable to either Garmin or any third-party provider.
This One-Time Purchase subscription applies to only one (1) Device. During the first twelve (12) months of your subscription, if your original Device becomes non-operational you may be permitted, at Garmin’s sole discretion, to make a one-time transfer of the Garmin Mobile Application to another supported Blackberry Device. To make a request for such transfer, please contact the Garmin Customer Service department via http://www.garmin.com/garmin/cms/site/us/support/supportcontact. No transfers are permitted, for any reason, after twelve (12) months from the purchase of your subscription. Although software fixes, updates and patches are included in the One-Time Purchase, a free upgrade to the next version(s) of Garmin Mobile is not.
All rights not expressly stated herein are reserved by Garmin, and Garmin disclaims any and all implied licenses. Without limiting the foregoing, you agree not to: (i) reverse engineer, decompile, reverse compile, create compilations or derivative works, translate, adapt, or disassemble the Garmin Mobile Application or any part thereof, including the third-party content data; (ii) copy or reproduce the Garmin Mobile Application or any part thereof, including the third-party content data, in any form; (iii) publish, display, disclose, sell, rent, lease, store, loan, distribute, publicly display or perform, co-brand, frame, or permit third parties to link to the Garmin Mobile Application or any part thereof, including the third-party content data; (iv) assign, sublicense, convey, transfer, pledge as security, or otherwise encumber the rights and licenses granted hereunder; (v) use the Garmin Mobile Application in any fashion that may infringe any patent, copyright, trademark, trade secret, or any other intellectual property or proprietary right of Garmin, its third-party data providers, or any other third-party; (vi) directly or indirectly use, broadcast, or distribute the Garmin Mobile Application in connection with a television, radio, web, telephone, or telematics application without the specific written approval of Garmin; (vii) provide any portion of the Garmin Mobile Application to a government agency; or (viii) enter into any agreement with any third-party that in any way restricts, prevents, or hinders the ability of Garmin to provide to such third-party the Garmin Mobile Application or any other product or service made available by Garmin from time to time.
Data Plan Fees. You are responsible for any applicable charges and fees associated with any data plan fees or other subscription charges or fees of any kind whatsoever that may be required by your carrier to access the Garmin Mobile Application.
Ownership of Application. You acknowledge and agree that Garmin owns all right, title, and interest in or, if applicable, licenses to the Garmin Mobile Application, including, but not limited to, all trademarks, data, and content, except to the extent any such third-party content data is owned by the respective third-party data provider. Any reference to products, services, processes, hypertext links to third parties, or other data by trade name, trademark, manufacturer, supplier, or otherwise does not necessarily constitute or imply its endorsement, sponsorship or recommendation by Garmin or its licensors. Product and service information are the sole responsibility of each individual vendor.
Term. The One-time Purchase term shall mean the useful life of the Garmin Mobile Application or until otherwise terminated in accordance with the terms and conditions of this Agreement (“Term”). Garmin may terminate this Agreement for any reason, including, but not limited to, if Garmin finds that you have violated any of the terms of this Agreement. In addition, this Agreement shall terminate immediately upon the termination of the agreement between Garmin and any third-party from whom Garmin licenses third-party content data for use as part of or in the Garmin Mobile Application. All provisions relating to confidentiality, indemnity, proprietary rights, and non-disclosure shall survive the termination of this Agreement. All other rights and obligations of the parties shall cease upon termination including, but not limited to, all licenses granted hereunder..
Confidentiality. At all times during the Term and thereafter, you shall keep confidential and not disclose, directly or indirectly, and shall not use for your benefit or any other individual or entity any Confidential Information of Garmin or any of its third-party data providers. “Confidential Information” means any trade secrets or confidential or proprietary information whether written, digital, oral, or other form which is unique, confidential, or proprietary to Garmin or its third-party data providers, including, but not limited to, the Garmin Mobile Application, and any other materials or information related to the business or activities of Garmin which are not generally known to others engaged in similar businesses or activities. You shall return to Garmin any of its Confidential Information upon request and/or upon termination of this Agreement.
Restricted rights: You agree not to export or re-export the Garmin Mobile Application or its Host Product to any country in violation of the export control laws of the United States of America.
Indemnity. You agree to indemnify, defend and hold Garmin and its licensors and suppliers (including, but not limited to, their respective assignees, subsidiaries, affiliated companies and their respective officers, directors, employees and shareholders, agents and representatives) harmless from and against any and all liability, loss, injury, demand, action, cost, expense, or claim of any kind or character, including, but not limited to, attorneys’ fees, arising out of or in connection with your use of or subscription to the Garmin Mobile Application.
Limited Warranty. This Garmin Mobile Application (excluding the map data and other third-party content data) is warranted to perform substantially as described in the product documentation for one (1) year from the date of purchase. Within this period, Garmin will, at its sole option, repair or replace the Application. Such repairs or replacement will be made at no charge to you provided that you shall be responsible for any transportation cost. This warranty does not cover failures due to abuse, misuse, accident or unauthorized alteration or repairs.
The Garmin Mobile Application is intended to be used only as a travel aid and must not be used for any purpose requiring precise measurement of direction, distance, location or topography. GARMIN MAKES NO WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF MAP DATA OR OTHER THIRD-PARTY CONTENT IN THE APPLICATION.
THE WARRANTIES AND REMEDIES CONTAINED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM TRADE USAGE OR COURSE OF CONDUCT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND OTHER EXPRESS OR IMPLIED WARRANTIES OF ACCURACY, COMPLETENESS, “REAL-TIME” INFORMATION, TITLE OR ANY OTHER TYPE OF WARRANTIES RELATING TO THE GARMIN MOBILE APPLICATION OR ITS PERFORMANCE HEREUNDER.
Limitation of Liability. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE USE OF THE GARMIN MOBILE APPLICATION, AND GARMIN DISCLAIMS ALL LIABILITY FOR ANY LOSS, INJURY, OR DAMAGE RESULTING FROM USE OF THE GARMIN MOBILE APPLICATION AND ANY THIRD-PARTY DATA OR CONTENT. IT IS YOUR RESPONSIBILITY TO USE THE GARMIN MOBILE APPLICATION PRUDENTLY AND TO VISUALLY VERIFY STREETS, ROADS, ROAD SIGNS, DIRECTIONS, WEATHER CONDITIONS, AND TRAFFIC CONDITIONS. IN NO EVENT SHALL GARMIN OR ITS SUPPLIERS, INCLUDING THIRD-PARTY DATA PROVIDERS, 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 GARMIN MOBILE APPLICATION AND ANY THIRD-PARTY DATA OR CONTENT, EVEN IF GARMIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO THE FOREGOING, GARMIN’S AND ITS SUPPLIERS’ TOTAL AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE GARMIN MOBILE APPLICATION SHALL NOT EXCEED $1.00. SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Miscellaneous. This Agreement constitutes the entire understanding and agreement of the parties (except for any separate end-user license agreements required by Garmin’s third-party data providers, which shall be read in conjunction with this Agreement), and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to its subject matter. No delay or failure by Garmin to exercise or enforce at any time any right or provision hereof will be considered a waiver thereof. No single waiver will constitute a continuing or subsequent waiver. No waiver, modification or amendment of any provision hereof will be effective against Garmin unless it is in a signed writing by Garmin. You may not assign your rights or obligations hereunder (including as a change of control) without the prior written consent of Garmin. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and permitted assigns of the parties. This Agreement shall be governed and construed in all respects by the laws of the State of Kansas, without regard to principles of conflict of laws and without application of the Uniform Computer Information Transaction Act. The parties agree that the exclusive jurisdiction and venue of any dispute amongst the parties shall be entered in the state or federal courts within the State of Kansas, and each of the parties hereby waives any right to a trial by jury. If any provision of this Agreement or the application thereof to any party or circumstance is held to be invalid, illegal, or unenforceable in any respect, that provision to the extent permitted by law (not otherwise) shall be severed from this Agreement and shall not affect the remainder hereof, and the parties agree to substitute for such provision a valid provision which most closely approximates the intent and economic effect of such severed provision. The parties to this Agreement are independent contractors. Garmin shall not be liable to you for a failure to perform any of its obligations under this Agreement during any period in which such performance is delayed due to circumstances beyond its reasonable control. All notices hereunder must be in writing and mailed by certified mail, return receipt requested, or by prepaid courier service, or by facsimile with receipt confirmed by telephone, to each party’s address.