Terms and Conditions - BOMAG TELEMATIC
(V1.0 – 25.01.2011)
1. General Terms and Conditions of Subscription.
“You” and “Your” refers to the subscriber to the BOMAG System.
“BOMAG” refers to BOMAG GmbH, Hellerwald, D- 56154 Boppard, its subsidiaries and affiliates, and its service providers.
The use of the BOMAG System without a valid subscription is prohibited. All software items relating to the BOMAG System delivered to You are licensed and not sold. The provisions of any relevant license agreement included with the software shall also govern Your use of any software relating to or used with the BOMAG System.
BOMAG, directly and through its service providers, reserves the right to access all data collected, transmitted and stored under the BOMAG System to track the use of and to make modifications and upgrades to the BOMAG System and for their own commercial purposes without Your prior written consent. Any such use of such data will be done on a “no-names” basis and will not be rebroadcasted, sold, transferred, licensed or sublicensed.
2. Term and Termination. The initial term of Your subscription to the BOMAG System is three years (the “Initial Term”). The Initial Term will commence upon the system installation. If You fail to pay any amounts due or are otherwise in substantial breach of Your obligations relating to the BOMAG System, and if You fail to remedy the breach within a reasonable time set by BOMAG, BOMAG may (i) without notice, terminate or suspend the BOMAG System immediately and receive from You all amounts due to it plus all costs of collection and/or (ii) pursue any other remedy. Upon termination of BOMAG System for any reason, You will discontinue use of the BOMAG System and either return, or certify as destroyed, all copies of software, and related materials and documentation obtained through the BOMAG System.
3. Subscription Renewal. So long as You are in compliance with Your obligations, You will have the option to renew Your subscription at the current or at a higher subscription level. The renewal term will be for (1) year from the end date of the current subscription term. BOMAG will provide You with a notification, via e-mail and within the BOMAG System web application that the subject subscription is subject to renewal. The notifications will be issued at ninety (90) and thirty (30) days prior to the end of the then current subscription term. You may renew the subscription term via the web application
4. Subscription Reactivation. If the You fail to renew the BOMAG System prior to expiration of any term, You will have the opportunity to reactivate the subscription for a period of fifteen (15) days following the expiration of the term. You will be charged with a reactivation fee of € 50,- in addition to the applicable renewal fee.
5. Subscription Upgrade. At any time, You may elect to upgrade the subscription through the BOMAG System website. The cost for any upgrade will be the cost difference between the cost of the current subscription level and the upgraded subscription level for the days remaining in the then current term. The upgraded subscription level will become effective after the subject vehicle’s next engine “on-off” cycle following payment. You shall not be entitled to downgrade Your level of service during the initial term or any renewal term of Your subscription
6. Risk of Loss. You are responsible for any damage to and risk of loss for any hardware related to the BOMAG System, from any cause unless, by evidence to be provided by You, such damage or loss was not caused by Your fault.
7. Data Retention Policy. The data generated by Your use of the BOMAG System is Your property. BOMAG and/or its service providers will maintain Your data for a minimum of two (2) years. BOMAG and/or its service providers shall have the right, but not the obligation, to store Your data indefinitely, or to delete the data at any time upon expiration of the two (2) year period. You acknowledge and agree that messaging and position data deleted from the BOMAG System server(s) cannot be retrieved or re-created. In addition, BOMAG and/or its service providers may retain Your data beyond the two (2) year period: (i) if BOMAG and/or its service providers is notified by a third party to preserve such data for evidentiary purposes in a civil or criminal investigation or proceeding and, in the judgment of counsel, failure to comply with such request may subject BOMAG and/or its service providers to civil or criminal liability, provided that in such event BOMAG shall notify You of such retention unless such disclosure is otherwise prohibited by law; (ii) for temporary use in analyzing any system performance anomalies or for similar maintenance purposes, provided that such data shall be deleted after such use is completed; and (iii) for use for other general purposes, provided that such data is used in combination with other compiled user data and any identification to You has been removed. In addition, the wireless network provider for the BOMAG System will generate call data records (“CDRs”) for billing and invoicing purposes, and the wireless network provider may retain the CDRs for longer than the two (2) year period. BOMAG may modify this customer data retention policy on notice to You.
8. Interruption of Service; Force Majeure. Interruptions in service may occur from time to time for a variety of reasons and, therefore, the availability of the BOMAG System or any data is not guaranteed.
Except for cases of intent, gross negligence and injuries of life, body and health, BOMAG and its service providersshall not be held liable by You or any third party for any loss or damage arising from the BOMAG System, or its delay or interruption, transmission errors, defects or any other causes, including, but not limited to, interruption caused by the underlying carrier unless such loss or damage is based on a substantial breach of any provision of the End User Terms and Conditions by BOMAG.. BOMAG and its service providers shall not have any liability for events beyond their control or the control of their subcontractors or licensors.
9. Misuse of the BOMAG System. You may not misuse or make fraudulent use of the BOMAG System. If You misuse or make fraudulent use of the BOMAG System, BOMAG may, without notice, take any action it deems reasonable, including interrupting, suspending or terminating Your subscription and You will be responsible to BOMAG for any costs incurred (including attorney’s fees) as a result.
10. Representations, No Warranties and Limitation of Liability. Use of the BOMAG System, and data provided by the BOMAG System is at Your sole risk. BOMAG makes no guarantees or warranties (express or implied) concerning the data from the BOMAG System. Neither BOMAG nor any of its service providers makes any assurance of successful reception of the data.
Neither BOMAG nor any of its service providers shall be responsible to You for lost revenues, lost profits, lost data, or other special, incidental, direct, indirect or consequential damages or loss or other expense directly or indirectly arising out of your use of or inability to use the BOMAG System or the data generated by the BOMAG System, even if BOMAG or its service providers have been advised of such damages. Neither BOMAG nor any of its service providers shall bear liability for problems caused by modifications made by You or made by third parties on Your behalf, problems with Your computer hardware, operating systems, or operating characteristics, or for problems in the interaction of the hardware or software with non-BOMAG System software components.
Unless for cases of intent, gross negligence and injuries of life, body and health, the entire liability of BOMAG and its service providers relating to the BOMAG System shall be limited to one-sixth (1/6) of your annual BOMAG System subscription fee, regardless of any defect in the service, software, communications networks, or negligence on the part of BOMAG or any of its service providers or their subcontractors or agents and regardless of the claim or form of action. You assume all risk of use of the BOMAG System, including but not limited to, traffic accidents while using the service. The BOMAG System is not guaranteed against third party access, including eavesdroppers or interceptors. Neither BOMAG nor any of its service providers shall be liable to You or any third party for lack of privacy or security.
You and Your affiliates shall defend, indemnify and hold BOMAG and their service providers harmless from and against any loss, liability, damage, judgment expense (including attorneys’ and consultants’ fees) or claims arising out of, or relating to, directly or indirectly: (i) any use or misuse of the BOMAG System by You or any third party using the BOMAG System through You and/or Your breach of any of the terms of these your subscription. This indemnity shall survive the termination of your subscription.
11. Service Provider and Carrier Required Disclosures.
A. You have no contractual relationship with BOMAG’s service providers and the underlying carrier and you are not a third party beneficiary of any agreement between BOMAG and its service providers or the underlying carrier. In any event, regardless of the form of the action for any cause whatsoever your exclusive remedy for claims arising in any way in connection with use of the BOMAG System and/or Your subscription shall be limited to one-sixth (1/6) of your annual BOMAG System subscription fee.
B. You shall indemnify and hold harmless BOMAG’s service providers and the underlying wireless service carrier against all claims in connection with Your subscription or the use, failure to use, or inability to use the BOMAG System except where the claims result from the service providers’ and/or underlying carrier’s gross negligence or willful misconduct. This indemnity shall survive the termination of Your subscription.
C. You have no proprietary right in any number assigned to You.
D. Neither BOMAG, its service providers, nor the underlying carrier can guarantee the security of wireless transmissions, and will not be liable for any lack of security relating to the use of the BOMAG System.
12. Miscellaneous. You may not transfer or assign any of its rights or obligations under your subscription in whole or in part without the prior written consent of BOMAG. The terms of Your subscription are severable and if any non-material provision is held to be invalid or unenforceable, the remaining provisions remain binding. The failure of either party to exercise any right herein shall not be deemed a waiver to exercise such right in the future. You are an independent contractor with entire control and operation of Your business subject to the terms hereof. Confidential information of BOMAG and its service providers that may be disclosed to You shall be kept confidential by You and shall not be disclosed to a third party.
The terms of Your subscription and all rights and obligations of the parties, are governed by German law (excluding conflicts of laws). Any dispute arising under or out of Your subscription shall be finally settled according to the Arbitration Rules of the German Institution of Arbitration e.V. (DIS) without recourse to the ordinary courts of law. The place of arbitration is Frankfurt (Main) in Germany. The arbitral tribunal consists of 3 (three) arbitrators. The language of the arbitral proceedings is English.
You agree that any claim arising out of or related to use of the BOMAG System must be filed within one (1) year after such claim arose or be forever barred.