Magellan End-User
License Agreement
This End-User License Agreement ("Agreement") is made by and between MiTAC Digital Corp. and its affiliates ("Magellan") and the end-user of the
Software ("Customer"). By clicking the acceptance button, installing,
downloading or using the Software onto a computer, personal navigation device,
cell phone or other product intended for use with the Software
("Product"), Customer agrees to be bound by all of the terms and
conditions of this Agreement, including the use restrictions, warranty disclaimer
and limitation of liability set forth below. If Customer does not agree to be bound by
all of the terms and conditions of this Agreement, Customer must (i) immediately stop the installation, downloading and/or
use of the Software and delete any Software downloaded from the web from its
computer, as applicable, and (ii) where Software was acquired with Product,
return the Software to the retailer who sold the Software.
1. Grant of License to Software.
Magellan hereby grants to Customer anon-exclusive, personal and
non-assignable license to install, operate and usethe
Magellan software covered by this Agreement ("Software") and use the documentation provided with the same ("Documentation"), subject to the following
restrictions:
(i) Customer shall use the Software for non-commercial purposes
only and, for Software intended for download onto a computer, on a single
computer owned or leased by Customer, provided that Customer may transfer the
Software from one computer to another so long as the Software is operated only
on one (1) computer at any time;
(ii)
Customer shall use the Software solely to download data for use solely with a
single Product, and shall not sell, trade, lease, rent or hire out the Software
to any third party or otherwise act as a service bureau (which restriction, for
the avoidance of doubt, shall extend to any situation in which Customer becomes
subject to any bankruptcy or insolvency laws or otherwise makes any assignment
for the benefit of its creditors);
(iii)
Customer shall not modify, reverse engineer, decompile or disassemble or create
derivative works of the Software; and
(iv) Customer shall not copy the
Documentation.
Magellan(and,
where applicable, its third party suppliers) retain all rights not expressly
granted to Customer under this Agreement, to the Software and any software
program(s) and/or data compiled into same and supplied by Magellan under
license from third party suppliers, including without limitation, NAVTEQ North
America, LLC and Tele Atlas N.V. ("Third Party Software").
2. Third Party Software.
Customer acknowledges that certain Third Party Software may be compiled
into the Software. As such,
Customer may be required in connection with its use of the Software to agree to
the terms and conditions the applicable third party supplier requires of its
end users. For installable and/or
downloadable Software, such terms and conditions may require additional steps
for Customer to manifest consent.
For boxed software, Customer shall be provided with copies of such terms
and conditions and is required to review and comply with same. In any event, Customer acknowledges and
agrees that its rights to and use of each item of Third Party Software shall be
subject to the terms and conditions governing the same.
3. Copies of Software.
Customer shall have the right to make one (1) copy of the Software for
archival and backup purposes, provided that such copy shall also reproduce all
copyright and intellectual property rights notices found on the original.
4. Ownership of Software and Certain Intellectual Property Rights. The license granted to Customer under
Section 1 is not a sale of the Software.
The Software, Third Party Software and Documentation are copyrighted
works of authorship and contain valuable secret and confidential information
proprietary to Magellan and its third party suppliers, as applicable. Any and all intellectual property rights
in or to the Software and Documentation shall be and remain the sole property
of Magellan, and any and all intellectual property rights in or to any Third
Party Software shall be and remain the sole property of the applicable third
party supplier. Customer shall
exercise due care in connection with the use, storage and copying of the
Software and will treat the Software, Third Party Software and the
Documentation with the same degree of care that it uses for its own
confidential information. For the avoidance of doubt, as between Customer and
Magellan, Magellan shall retain exclusive use and ownership of all trademarks
related to the Software.
5. Disclaimer of Warranties.
MAGELLAN AND ITS THIRD PARTY SUPPLIERSMAKE NO WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, REGARDING THESOFTWARE, THIRD PARTY
SOFTWARE, MEDIA, DOCUMENTATION, RESULTS OR ACCURACY OFDATA AND HEREBY EXPRESSLY
DISCLAIM, TO THE FULLEST EXTENT PERMITTED UNDERAPPLICABLE LAW, ANY WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE OR NON-INFRINGEMENT. THESOFTWARE AND THIRD PARTY SOFTWARE ARE
PROVIDED ON AN "AS IS" AND"AS AVAILABLE" BASIS, AND
MAGELLAN AND ITS THIRD PARTY SUPPLIERS DONOT WARRANT THAT THE SOFTWARE WILL MEET
CUSTOMER'S REQUIREMENTS OR THAT ITSOPERATION WILL BE UNINTERRUPTED OR
ERROR-FREE.
This provision
shall not affect the consumer's statutory rights under applicable laws in force
in their locality as provided in Section 10. CUSTOMER MAY HAVEOTHER RIGHTS WHICH
VARY FROM LOCALITY TO LOCALITY.
6. Warning. The Software reflects conditions as they existed at various
points in time before Customer purchased its copy of the Software. Accordingly, the Software may contain in
accurate or incomplete data or information due to the passage of time, road construction
and changing conditions or otherwise.
The Software does not include, analyze, process, consider or reflect any
of the following: legal restrictions (such as vehicular type, weight, height,
width, load and speed restrictions); road slope or grade; bridge height, width,
weight or other limits; population density; neighborhood quality or safety;
availability or proximity of law enforcement, emergency rescue, medical or
other assistance; construction work zones or hazards; road or lane closures;
road, traffic or traffic facilities safety or condition; weather conditions;
pavement characteristics or conditions; special events; traffic congestion;
travel time.
7. Limitation of Liability. TO
THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, INNO EVENT SHALL MAGELLAN OR
ITS THIRD PARTY SUPPLIERS BE LIABLE UNDER THISAGREEMENT OR OTHERWISE TO
CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL,CONSEQUENTIAL, INCIDENTAL, INDIRECT
OR PUNITIVE DAMAGES, INCLUDING LOSS OFPROFITS OR SAVINGS, LOSS OF BUSINESS,
BUSINESS INTERRUPTION, LOSS OF USE,DAMAGE TO OR REPLACEMENT OF EQUIPMENT AND
PROPERTY, OR RECOVERY OR REPLACEMENTOF PROGRAMS OR DATA ARISING FROM CLAIMS
BASED IN WARRANTY, CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY, OR
OTHERWISE EVEN IF MAGELLAN OR ITSTHIRD PARTY SUPPLIERS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH CLAIMS ORDAMAGES; PROVIDED, HOWEVER, THAT NOTHING IN THIS
SECTION 7 SHALL BE DEEMED TOLIMIT THE LIABILITY OF MAGELLAN FOR DEATH OR
PERSONAL INJURY ARISING FROM ITSNEGLIGENCE.
Some
national, state, or local laws do not allow the exclusion or limitation of
incidental, consequential damages or tort liability, so the above limitation or
exclusion may not apply to Customer and Customer may also have other legal
rights that vary from locality to locality.
The total
liability of Magellan under this Agreement, whether arising from negligence or
willful misconduct of Magellan, its employees, officers or other agents, and under
contract, tort or any other theory of liability, for any reasons, including
with respect to (i) death or injury to persons, or
(ii) physical loss or damage to property, shall be limited to the amount of
damages foreseeable atthe time of entering into this
Agreement, which in no event shall exceed one hundred dollars ($100).
8. Term and Termination
8.1 Term. This Agreement shall remain in full force
and effect for the duration of the intellectual property rights owned by
Magellan, except that this Agreement shall immediately and automatically
terminate in the event that Customer materially breaches this Agreement, or
(ii) Customer becomes bankrupt or insolvent under the bankruptcy laws of the
8.2 Effect of
Termination. Upon any
termination of this Agreement by Magellan, all rights granted to Customer
hereunder shall immediately terminate, and Customer shall delete and/or destroy
all Software, Third Party Software and Documentation and any copies thereof.
8.3 Remedies
not Limited. The exercise of any termination right under
this Section 8 by Magellan shall not limit or prejudice any right of Magellan
to recover damages or other rights or remedies, or give rise to any right or
recovery by Customer.
9. Indemnification.
Customer shall indemnify Magellan and its third party suppliers against
any claims related to Customer's use of the Software, Third Party Software and
Documentation, including claims for loss of data and business interruption.
10.
Consumer End Users Only. The limitations or
exclusions of warranties and liability contained in this Agreement do not
affect or prejudice the statutory rights of a consumer, i.e., a person
acquiring goods otherwise than in the course of a business. The limitations or
exclusions of warranties, remedies or liability contained in this Agreement
shall apply to you only to the extent such limitations or exclusions are
permitted under the laws of the jurisdiction where you are located.
110. General
Provisions
11.1 Force
Majeure. Neither Customer nor
Magellan shall be liable in any circumstances for failure to perform under this
Agreement where such failure is due to a cause beyond such party's reasonable
control.
11.2 Notices.
Any notices required or permitted to be given hereunder to Magellan, or any
other communications related hereto, shall be sent to the appropriate Magellan
address set forth below by internationally-recognized overnight courier.
11.3 Confidentiality. Any information disclosed by Magellan to
Customer shall be held by Customer in confidence and not disclosed, and
Customer shall ensure that such information is not disclosed to a third party
in any manner except with the prior written consent of Magellan.
11.4 Entire
Agreement; No Waiver. This
Agreement represents the entire understanding of the parties with respect to
the subject matter hereof, and supersedes any other prior understanding of the
parties, whether written or oral.
No amendment, alteration or waiver of this Agreement shall be effective
unless made in writing and signed by both parties.
11.5 Governing
Law. This Agreement shall be
governed and construed in accordance with the laws of the State of
11.6 Construction
and Severability. In the event
any portion of this Agreement is determined to be invalid or unenforceable by a
court of competent jurisdiction, the remainder of this Agreement shall remain
in effect and such provision shall be replaced with a valid and enforceable
provision with an effect as close as possible to the invalid or unenforceable
provision. As used in this Agreement,
the terms "include" and its correlative terms shall be deemed to be
terms of example and not limitation.
11.7 Injunctive
Relief. Magellan shall have the
right to enforce the terms and conditions of this Agreement by equitable relief
where applicable, including injunctive relief and specific performance, without
the necessity of posting a bond.
11.8 Assignment.
Customer shall have no right to
assign or transfer all or any portion of this Agreement by operation of law or
otherwise (including by merger, acquisition, consolidation or sale of all or
substantially all assets of Customer).
11.9 Export
Control. Customer agrees not to
export from anywhere any part of the Software, including Third Party Software,
provided to Customer or any direct product thereof, except in compliance with,
and with all licenses and approvals required under, applicable export laws,
rules and regulations.
11.10 Government End
Users. If the Software is being
acquired by or on behalf of the
MiTACDigital Corp.
471
El Camino Real
Santa Clara, CA, 95050
USA
www.magellanGPS.com