THESE TERMS ARE A LEGAL AGREEMENT GOVERNING YOUR ACCESS TO AND USE OF THE SERVICES. PLEASE REVIEW THEM CAREFULLY. BY CLICKING "ACCEPT" BELOW OR OTHERWISE AFFIRMATIVELY INDICATING YOUR AGREEMENT TO THESE TERMS VIA ANY SIMILAR MECHANISM AS MAY BE UPDATED BY US FROM TIME TO TIME, OR BY ACCESSING, DOWNLOADING, INSTALLING, OR USING ANY OF THE SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND (B) ACCEPT AND AGREE TO BE BOUND BY (AND SHALL COMPLY WITH) ALL OF THESE TERMS, INCLUDING THE RIDE COMMAND PRIVACY NOTICE. IF YOU DO NOT AGREE TO THESE TERMS, (I) CLICK THE “I DECLINE” BUTTON AND (II) DO NOT ACCESS, DOWNLOAD, INSTALL, OR USE ANY OF THE SERVICES.
THESE TERMS INCLUDE AN AGREEMENT TO MANDATORY ARBITRATION AND A CLASS-ACTION WAIVER, WHICH MEANS THAT, AS PERMITTED BY APPLICABLE LAW, YOU AGREE, WITH LIMITED EXCEPTIONS, TO SUBMIT ANY DISPUTE RELATED TO THESE TERMS OR YOUR USE OF THE SERVICES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT, AND THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF ANY CLASS OR REPRESENTATIVE ACTION. FOR MORE INFORMATION, SEE SECTION 14, BELOW.
THE PROVISIONS OF THESE TERMS REGARDING INDEMNIFICATION, WARRANTY DISCLAIMERS, LIMITATION OF LIABILITY, ARBITRATION, AND CLASS ACTION WAIVER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusion of implied warranties, the exclusion or limitation of incidental or consequential damages or other rights, or indemnification by certain users for third-party infringement claims, so those provisions of these Terms may not apply to you. Specifically, you may continue to benefit from certain protections provided by applicable consumer protection law, depending on where you reside.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATES OF THE SERVICES. IF YOU DO NOT AGREE, DO NOT ACCESS, DOWNLOAD, INSTALL, OR USE THE SERVICES. PLEASE NOTE THAT SECTIONS 4 AND 5 DESCRIBE IMPORTANT LIMITATIONS OF THE SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
1. Overview; Eligibility; Customer Service; Term and Termination
(a) Overview and Relation to Other Agreements. These Terms govern your use of the Services. Your purchase of any Product is subject to the limited warranty provided to you by us with that Product (if any). Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features. All such additional guidelines, terms, rules, and the RIDE COMMAND Privacy Notice are incorporated by reference into these Terms, and you hereby accept and agree to abide by them.
(b) Eligibility. You represent and warrant that you (i) have reached the age of majority in the jurisdiction where you reside and have full legal capacity to form a binding contract with us or (ii) are at least 16 years of age (or equivalent minimum age in the jurisdiction where you reside) and will use the Services only where a parent or legal guardian has agreed to be bound by these Terms. You may use the Services only if you meet these eligibility requirements; you agree to these Terms; and you are in compliance with these Terms and all applicable local, state/provincial, national, and international laws, rules, and regulations. If you do not meet these requirements, you may not access, download, install, or use the Services. The Services are not available to any users previously prohibited from using the Services by Polaris.
(c) Customer Service. If you have any questions or concerns regarding the Services or these Terms, please contact Polaris here. If you contact Polaris from outside the United States, please be aware that you may incur additional charges from your mobile carrier. YOU UNDERSTAND AND AGREE THAT CUSTOMER SERVICE, CARE, AND SUPPORT OFFERED AND PROVIDED BY OR THROUGH POLARIS IS NOT A 911, 999, 112, OR OTHER EMERGENCY SERVICE OR DISPATCH CENTER, AN EMERGENCY SERVICE PROVIDER OR DISPATCH SERVICE, OR A LIFESAVING SOLUTION FOR PEOPLE AT RISK. PLEASE DO NOT CONTACT CUSTOMER SERVICE OR ANY CUSTOMER CARE AND SUPPORT OFFERED BY OR THROUGH POLARIS WITH ANY LIFE/SAFETY EMERGENCY, ANY MEDICAL EMERGENCY, OR ANY OTHER EMERGENCY. IF YOU HAVE ANY SUCH EMERGENCY, YOU SHOULD IMMEDIATELY CONTACT THE POLICE, FIRE DEPARTMENT, OR OTHER APPROPRIATE EMERGENCY RESPONSE SERVICE.
(d) Term and Termination. These Terms will remain in full force and effect so long as you continue to access or use any of the Services, or until terminated in accordance with these Terms. At any time, Polaris may (i) suspend or terminate your right to access or use the Services, or (ii) terminate these Terms with respect to you if Polaris in good faith believes that that you have used the Services in violation of these Terms, including any incorporated guidelines, terms, or rules. If you transfer a Product to a new owner, your right to use the Services with respect to that Product automatically terminates, and the new owner will have no right to use the Services under your Account (as described below); is not permitted to act as an Authorized User; and will need to register for a separate Account with Polaris and accept these Terms. In order for you to terminate these Terms, you must cease access and use of the Services.
(e) Effect of Termination. Upon termination of these Terms, your Account and any and all of your rights to use the Services will automatically terminate, and you must stop using the Services immediately. All provisions of these Terms which by their nature survive termination shall survive termination of these Terms.
(a) You may have the option—or be required—to create or log into a Polaris account (“Account”) to use the Services. Creating an account requires that you provide Polaris your designated email address and enter a password.
(b) You represent and warrant that: (i) all information you provide in connection with your Account is truthful and accurate; (ii) you will maintain the accuracy of such information; and (iii) your use of the Services will not violate any U.S. or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are solely and fully responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to maintain your password securely to prevent others from gaining access without your permission. You agree to notify us promptly of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. We are not liable for any loss or damage arising from your failure to comply with the above requirements or from any losses resulting from unauthorized access to or use of your Account or the Services. You may be liable to Polaris or third parties for such unauthorized access or use.
(c) Subject to any limitations in Section 1(d), any user you authorize to access or use the Services through your Account or Product is an “Authorized User.” Authorized Users may be responsible for their own actions in connection with the Services, but you also agree to be fully responsible for all actions taken by Authorized Users in connection with Services accessed or used through your Account or Product. You agree to inform Authorized Users of these Terms, the RIDE COMMAND Privacy Notice, and any privacy-related choices you have made within the Services. You permit Authorized Users at your own risk, including regarding the security of your Account and the Products and Services.
(a) Licenses. Subject to these Terms and zyour compliance with them, Polaris grants to you a non-transferable, non-sublicensable, non-exclusive, revocable right during the term of these Terms to:
(i) access and use the Sites (a) solely for your personal, non-commercial purposes and (b) strictly in accordance with these Terms and all Polaris standards, rules, policies, and procedures as specified by us from time to time (“Polaris Policies”);
(ii) download, install, access, and use an object code version of one or more of the Mobile Apps on your personal mobile device (a) solely to monitor or control the Products that you own for your personal, non-commercial purposes and (b) strictly in accordance with these Terms, all of the relevant Mobile App(s)’ documentation, and all Polaris Policies; and
(iii) use an object code version of the Product Software and the RIDE COMMAND+ Features, if any, that we provide to you for your use with such Product Software (a) solely on the Products that you own, in conjunction with such Products, for your personal, non-commercial purposes, and (b) strictly in accordance with these Terms, all Product, Product Software, and RIDE COMMAND+ Feature documentation, and all Polaris Policies. Notwithstanding the preceding sentence, to the extent that the RIDE COMMAND+ Features include TSYS Products (as defined in Section 4(f) below), such TSYS Products are subject to the licensing provisions set forth in Section 4(f).
(b) Updates. Polaris may from time to time (but has no obligation to) develop patches, bug fixes, updates, upgrades, and other modifications to improve the performance, security, or functionality of the Services, or to ensure conformity with applicable legal requirements (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You hereby consent to these automatic updates. If you do not want such Updates, your remedy is to terminate your Account and stop using the Services. If you do not terminate a previously created Account, you may receive Updates automatically. You acknowledge that you also may be required to install Updates to use the Services, and you agree to promptly install any Updates that Polaris provides. Any Update provided to you by Polaris shall be deemed part of the associated “Service” for purposes of these Terms. Your failure to install an Update that we make available to you may result in Service malfunctions or interruptions, for which Polaris is not liable.
(c) Polaris-Provided Interface to Third-Party Products & Services. Over time, Polaris may provide the opportunity for you to interface the Services to one or more third-party products and services, through and using the Services (“Third-Party Products & Services”). You decide whether and with which Third-Party Products & Services you want to interface. The Third-Party Products & Services are provided to you under separate terms and conditions offered by the relevant third parties and do not form part of the Services. When you choose to connect Third-Party Products & Services to the Services, you may be shown details about any proposed exchanges of data between Polaris and the third party that is providing the product or service. Your activation is required through the Services or a third-party mobile application, product, or service to allow these exchanges, and the connection between the Services and a third-party product or service will not be possible without your activation. You agree that Polaris may exchange information collected through the Services, including your personal information, in order to enable the interface you have authorized. Once this information is shared with the particular Third-Party Product & Service, its use will be governed by the third party's terms and conditions and privacy documentation, and not by Polaris' privacy documentation. Without limiting anything set forth in Section 9 below, you acknowledge and agree that Polaris makes no representation or warranty about the quality, availability, or safety of any Third-Party Products & Services or the interface thereof with the Services, and Polaris is not responsible for your use of any Third-Party Products & Services and does not assume any liability for any personal injury, death, property damage, or other harm or losses arising from or relating to your use of any Third-Party Products & Services. You should contact the relevant third party with any questions about its Third-Party Products & Services. Your use of any Third-Party Products & Services is at your own choice and risk.
(d) Content and User Submissions. Certain materials may be displayed or performed on the Services (including, but not limited to text, graphics, articles, photographs, video, images, and illustrations) (“Content”). “Content” also includes all materials (including all text, graphics, articles, photographs, video, images, and illustrations), feedback, comments, questions, and other information that you and other users provide us in the course of using or otherwise in connection with the Services (collectively, “User Submissions”), which we may use for any purpose, including to provide, maintain, and/or improve the Services. Some of your User Submissions may be visible to others.
(ii) You are solely responsible for all User Submissions that you upload, post, email, transmit, or otherwise disseminate using, provide to us in connection with, or contribute in any manner to any of, the Services. You represent and warrant that you: (a) have all rights necessary to provide all of your User Submissions to us, in the manner in which you provide such User Submissions, and to make all grants made by you hereunder, free and clear of any conflicting agreement, adverse claim, or interest of any third party; and (b) will not contribute to any of the Services or otherwise provide to us any User Submission that (i) violates any law, statute, ordinance, or regulation or is otherwise illegal, (ii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable, or (iii) impersonates any person, including any employee or representative of Polaris.
(iii) You hereby grant to Polaris an irrevocable, perpetual, worldwide, royalty-free, assignable, sublicensable, transferable right and license to use, modify, transfer, distribute, create derivative works from, reproduce, display, perform, and otherwise utilize in any manner and for any purpose to be determined in our sole discretion (i) all such User Submissions, (ii) your name, photograph, likeness, image, voice, and appearance to the extent any of the foregoing is included or provided in connection with any of your User Submissions, and (iii) any and all patent, trademark, trade secret, copyright, or other proprietary rights in and to each of the foregoing. If you reside in the European Union, the license granted under this Section is granted for the duration of the applicable intellectual property rights in the Content, in any means and media, in whatever form, whether known or unknown, existing, or future.
(iv) You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose whatsoever any Content or third-party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third-party right. Polaris reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence), or for no reason at all.
(e) Certain Restrictions. You shall not, and you shall not permit or encourage any person to, do any of the following: (i) license, sublicense, market, sell, rent, lease, transfer, assign, distribute, publish, post, transmit, host, or otherwise commercially exploit any of the Services; (ii) modify, alter, translate, make derivative works of, disassemble, decompile, or reverse engineer any part of any of the Services; (iii) access or use any of the Services in order to build a similar or competitive service or product; (iv) except as expressly authorized herein, copy, reproduce, download, or display in any form or by any means any part of any of the Services; (v) upload, transmit, or distribute any computer virus, worm or other software, code, technique, or security vulnerability intended to damage or alter (or which could be capable of damaging or altering) any of the Services and/or the processing environment in which any of the Services is used or received; (vi) interfere with, disrupt, or gain (or attempt to gain) unauthorized access to any of the Services or any of the servers or networks connected to any of the Services, or violate any of the regulations, policies, or procedures of or applicable to any such network; (vii) access (or attempt to access) any of the Services by means other than through the interface(s) that is provided by Polaris; (viii) remove, obscure or alter any proprietary rights notice (including copyrights and trademark notices) which may be contained in or displayed in connection with any of the Services; (ix) obtain or access (or attempt to obtain or access) any password, account, product, device, system, or other security information from any other Service user or third party; or (x) access or use any of the Services in any manner that (a) infringes, misappropriates, or violates any intellectual property right or other right of any person, (b) violates any applicable law, rule, or regulation, (c) jeopardizes the security of your Account or anyone else’s Account (including by allowing someone else to log in to the Services as you), (d) runs Mail list, Listserv, or any form of auto-responder or “spam” on the Services, or (e) violates or is otherwise inconsistent with any provision of this Agreement.
(f) Open Source. Certain items of independent, third-party code may be included in the Services that are subject to certain open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license agreement under which such Open Source Software is distributed or to which it is subject.
(g) Privacy. Please review the RIDE COMMAND Privacy Notice, which describes our practices regarding the information that Polaris may collect from users of the Services.
(h) Modification. Polaris reserves the right, at any time, to modify, suspend, or discontinue the Services or any part of the Services with or without notice. You agree that Polaris will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part of the Services. Where required by law, such modifications are made without prejudice to your rights relating to legal warranties in Section 9 of these Terms.
(i) Access Outside Certain Countries. Although some of the Services may be accessible worldwide, the Services are not available to all persons or in all countries. If you choose to access the Services from outside a country in which Polaris supports the Services ("Target Country"), you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Services are not designed for use in a non-Target Country, and some or all of the features may not work or be appropriate for use in such a country. To the extent permissible by law, Polaris accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Services in a non-Target Country. You will be bound by these Terms wherever you use the Services.
(j) U.S. Government Owners and Authorized Users. The Services are a "Commercial Item," as that term is defined at 48 C.F.R. § 12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, and, if applicable, the Services are being licensed to U.S. Government end users (i) only as a "Commercial Item," and (ii) only with those rights as are granted to all other Owners and Authorized Users pursuant to these Terms. The contractor/manufacturer is Polaris Industries Inc., 2100 Hwy 55, Medina, MN 55340.
4. Additional Services Terms
(a) Intended Use of Polaris Services. The Services are intended to be accessed and used for non-time-critical information and services, including monitoring and control of Products. While we aim for the Services to be highly reliable and available, the Services are subject to sporadic interruptions and failures for a variety of reasons beyond Polaris’ control, including Wi-Fi or Bluetooth intermittency, power disruptions, service provider uptime, mobile notifications, and carriers, among others, and may not be reliable or available 100% of the time. You acknowledge these limitations and agree that, to the fullest extent permitted by applicable law, Polaris is not responsible for any damages allegedly caused by the failure or delay of the Services due to causes outside of Polaris’ reasonable control.
(b) No Life-Safety or Critical Uses of the Services. You acknowledge and agree that none of the Services—whether standing alone or when interfaced with any Third-Party Products & Services—are certified for emergency response or monitored continuously by Polaris personnel. Polaris makes no warranty or representation that use of any of the Services, whether standing alone or with any Third-Party Products & Services, will affect or increase any level of safety. YOU UNDERSTAND THAT NONE OF THE SERVICES, WHETHER STANDING ALONE OR INTERFACED WITH ANY THIRD-PARTY PRODUCTS & SERVICES, ARE A THIRD-PARTY MONITORED EMERGENCY NOTIFICATION SYSTEM. FURTHER, YOU UNDERSTAND THAT UNDER NO CIRCUMSTANCE WILL POLARIS DISPATCH EMERGENCY AUTHORITIES TO YOU OR YOUR HOME IN THE EVENT OF AN EMERGENCY. In addition, none of the Services are designed, manufactured, or intended for use as control software in hazardous environments or emergency services requiring fail-safe performance in which the failure thereof could lead to death, personal injury, or severe physical or environmental damage. POLARIS DISCLAIMS ALL DAMAGES (INCLUDING DIRECT, INDIRECT AND CONSEQUENTIAL DAMAGES) RELATING TO THE FAILURE OF ANY SUCH SERVICE.
(c) Reliability of Services. You acknowledge that the Services, including remote access and mobile notifications, are not error-free or 100% reliable and 100% available, and Polaris is under no obligation to ensure a certain availability or reliability of the Services. Proper functioning of the Services may rely and depend on factors outside of Polaris’ reasonable control, including among other things, the transmission of data through a Bluetooth connection, your Wi-Fi network, enabled wireless device (such as a phone or tablet) and broadband internet access, for which Polaris is not responsible, and which may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations, and priority access by emergency responders in the event of a disaster or emergency (collectively “Service Interruptions”). You understand that Service Interruptions may result in the Services being unreliable or unavailable for the duration of the Service Interruption. We cannot and do not guarantee, and assume no obligation under these Terms, that you will receive notifications in any given time or at all. YOU AGREE THAT YOU WILL NOT RELY ON THE SERVICES FOR ANY LIFE-SAFETY OR CRITICAL PURPOSES. There is no way for Polaris to provide specific information relating to a situation at issue. You acknowledge that it is your responsibility to educate yourself on how to respond to an emergency and to respond according to the specifics of your situation.
(d) Service Interruptions; no refund or rebate. The Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Polaris does not offer any specific uptime guarantee for the Services.
(e) System Requirements. The Services may not be accessible without: (i) an Account; (ii) an enabled and supported wireless device, such as a phone or tablet (required for some features and functionalities of the Service); and/or (iii) other system elements that may be specified by Polaris from time to time. It is your responsibility to ensure that you have all required system elements and that they are compatible and properly configured. You acknowledge that the Services may not work as described when the requirements and compatibility have not been met. If you modify, substitute, move, or otherwise change any of the required system elements, it is your sole duty and responsibility to be sure they are compatible and properly configured to work with the Services.
(f) RIDE COMMAND+ Features. Certain Products may be equipped with one or more RIDE COMMAND+® features (formerly known as RIDE COMMAND connected services) (“RIDE COMMAND+ Features”). Such RIDE COMMAND+ Features may be provided free of charge for a limited time starting on the date of purchase of the applicable Product (after which fees apply). Product Software for certain Products equipped with RIDE COMMAND+ Features may include TSYS MapKit, NavKit, and SearchKit (the “TSYS Products”). Use of any TSYS Product, including as part of any of the Services, is subject to (and you hereby agree to and shall comply with) the TSYS Product End User License Agreement at Exhibit B.
RIDE COMMAND+ Features use wireless communication networks and global position system (“GPS”) satellite networks to function. Not all RIDE COMMAND+ Features are available everywhere, particularly in remote or enclosed areas, or on all relevant Products at all times. The area in which you are riding may affect the availability or quality of your RIDE COMMAND+ Features.
Without limiting anything set forth in Section 9 below, the RIDE COMMAND+ Features are available only in places where Polaris has retained a wireless service provider for wireless service in that area and only if the wireless service provider has coverage, network capacity, reception, and technical compatibility with the RIDE COMMAND+ features. RIDE COMMAND+ Features that use location information about your Product only work if GPS satellite signals are unobstructed, available in that place and compatible with RIDE COMMAND+ Features. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOU HAVE NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS AND THAT YOU ARE NOT A THIRD-PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN POLARIS AND THE UNDERLYING CARRIER. YOU HEREBY WAIVE ANY AND ALL CLAIMS OR DEMANDS THEREFOR.
(g) Product Information. The Services may provide you with information regarding the Products and/or their connection with other products and services (“Product Information”). All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date despite our commercially reasonable efforts to maintain such information. In cases where it is critical, accessing Product Information through the Services is not a substitute for direct access of the information.
(h) Information Reliability. Without limiting anything in any of Sections 4(g), 9, or 11 of these Terms: (i) all Content (including Content and trail information and other information posted, made available, or transmitted through any of the Services) is the sole responsibility of the person from which (or from whose Account) such Content originated, and Polaris will not be liable for any errors or omissions in any Content; (ii) Polaris cannot guarantee, and does not assume any obligation to confirm, the identity of any other users with whom you may interact in the course of using the Services; (iii) we cannot guarantee, and do not assume any obligation to ensure, the authenticity of any User Submissions that users or merchants may provide; (iv) you acknowledge and agree that all Content accessed by you through or using the Services is accessed at your own risk and you will be solely responsible for all damages and losses to any party resulting therefrom; and (v) we cannot control and have no duty to take any action regarding how you interpret and/or use any Content or what actions you take as a result of having been exposed to the Content, and you hereby release us from all liability arising from or relating to any Content you acquire (or attempt to acquire) through or using any of the Services.
(i) Compliance with Trade Control Laws. The Products and Services are subject to U.S. and other applicable export control and sanctions laws, regulations, and requirements (collectively, “Trade Control Laws”). By using or accessing the Products or Services, you warrant, represent and agree that you (i) will comply with all applicable Trade Control Laws in your activities related to the Products and Services; (ii) are not located in a country or territory subject to comprehensive economic sanctions (currently including without limitation Cuba, Iran, North Korea, Syria, the Crimea region, and the so-called Donetsk People’s Republic and Luhansk People’s Republic regions) (collectively, “Sanctioned Territories”); (iii) are not an individual or entity identified on U.S. or non-U.S. government lists of restricted parties (including without limitation the Entity List, Denied Persons List, Unverified List and Specially Designated Nationals and Blocked Persons List) or owned or controlled by or acting on behalf of such listed parties (collectively, “Restricted Parties”); and (iv) will not export, re-export or transfer, whether directly or indirectly, the Products or Services, or any portion thereof, directly or indirectly to or for use or access in or by any Sanctioned Territories, Restricted Parties, or otherwise contrary to applicable Trade Control Laws.
(j) Safety. It is your responsibility to observe all safety measures required by applicable law or regulations while accessing or using the Services. Your access and use of the Services are at your own risk, and you should access and use the Services only when you can operate them safely.
(k) Smart Device Standards/Use. The Services may use various open or commonly available standards or means to communicate and work with smart or connected devices that are also similarly used by other systems or services not manufactured by Polaris, including Wi-Fi, Bluetooth, and IP devices. HOWEVER, SMART, CONNECTED OR OTHER DEVICES AND RELATED SERVICES (“SMART DEVICES”) THAT ARE NOT DESIGNATED BY POLARIS AS COMPATIBLE WITH THE SERVICES MAY NOT WORK WITH THE SERVICES, OR MAY HAVE LIMITED FEATURES OR FUNCTIONALITY, EVEN IF DESIGNED, SPECIFIED, OR MARKETED TO OPERATE USING THE SAME OR SIMILAR STANDARDS OR MEANS OF COMMUNICATION. YOU AGREE ONLY TO USE SMART DEVICES DESIGNATED BY POLARIS AS COMPATIBLE WITH THE SERVICES. FURTHER, YOU AGREE THAT POLARIS IS NOT RESPONSIBLE FOR, AND YOU HEREBY RELEASE AND HOLD POLARIS HARMLESS FROM AND AGAINST, ALL LIABILITY AND DAMAGES, INJURIES, OR LOSS OF LIFE ARISING FROM, RELATED TO, OR CAUSED BY, ANY ATTEMPT BY YOU TO CONNECT, OR YOUR CONNECTION AND USE OF, SMART DEVICES THAT ARE NOT CERTIFIED BY POLARIS AS COMPATIBLE WITH THE SERVICES.
5. Limitations of Polaris Services Due to Third Parties
(a) General. The Services rely on or interoperate with third-party products and services. These third-party products and services are beyond Polaris’ control, but their operation may impact or be impacted by the use and reliability of the Services. You acknowledge and agree that: (i) the use and availability of the Services is dependent on third-party product vendors and service providers, (ii) these third-party products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the Services operate, and (iii) Polaris is not responsible for damages and losses due to the operation of these third-party products and services.
(b) Third Party Service Providers Used by Polaris. You acknowledge that Polaris uses third-party service providers to enable some aspects of the Services—such as, for example, data storage, synchronization, and mobile device notifications through mobile operating system vendors and mobile carriers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE AND HOLD HARMLESS THIRD-PARTY SERVICE PROVIDERS FROM ALL LIABILITY, DAMAGES, OR LOSSES OF ANY KIND OR SORT, PERSONAL INJURY, OR LOSS OF LIFE ARISING FROM YOUR USE OF THE SERVICES.
If you are using one or more of the Mobile Apps on a mobile device that runs on iOS, you further acknowledge and agree that: (i) Polaris, and not Apple, is solely responsible for the Mobile Apps and their Content; (ii) Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the Mobile Apps; (iii) Polaris, and not Apple, is responsible for addressing any and all claims that you have arising out of your use of or otherwise relating to the Mobile Apps, including (a) product liability claims, (b) any claim that one or more of the Mobile Apps fails to conform to any applicable legal or regulatory requirement, (c) any claim arising under consumer protection, privacy or similar legislation, and (d) any claim that one or more of the Mobile Apps, or your possession or use of one or more of the Mobile Apps, infringes any intellectual property or proprietary right or any third party (each of the claims described in (a) through (d), a “Mobile App Claim”); (iv) Polaris reserves the right to investigate, defend, settle, and discharge of (and Apple will have no responsibility whatsoever for the investigation, defense, settlement, or discharge of) any Mobile App Claim; and (v) Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary.
If you downloaded one or more of the Mobile Apps from Google Play or a successor mobile application marketplace, you agree that Google will have no responsibility to undertake or handle support and maintenance of the App or any complaints about the App.
(e) Third-Party Website Links and Referrals. The Services may contain links to other web sites operated by third parties (“Third-Party Sites”) and referrals to third-party vendors (“Referred Vendors”). Such Third-Party Sites and Referred Vendors are not under our control. Polaris provides these links and referrals only as a convenience and for informational purposes, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Sites or Referred Vendors. Your use of these Third-Party Sites is at your own risk.
(f) User’s Behavior. Polaris is not responsible for any user’s behavior or for any personal injury, death, property damage, or other harm or losses arising from or relating to their use of the Services.
(g) Release Regarding Third Parties. Polaris is not responsible for third parties or their products and services, including, without limitation, the App Stores, Third-Party Products & Services, Third-Party Sites, Referred Vendors, Equipment, ISPs, and Carriers. Polaris hereby disclaims and you hereby discharge, waive and release Polaris and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services.
6. Consent to Notice by Electronic Communication
We may issue notices via the Sites, Mobile Apps, Product Software, or other Services, or emails to an address you provide us (including through your communications with us). You acknowledge and agree that such notices shall have binding, legal effect. You also agree that any notices sent to you by email satisfy any requirement that notices to you be provided in writing. You may have the right to withdraw your consent to receive certain emails and notices via the Mobile Apps or other Services, and when required by law, we will provide you with paper copies of such notices upon request. You agree that you may submit a request to withdraw your consent under this Section by contacting us using the contact information provided in these Terms. To receive, access, and retain the notices we send via email, you must have Internet access and a computer or device with a compatible web browser. You also may need software capable of viewing files in PDF format. Your device or computer must have the ability to print, or download and store, emails, and PDF files. By accepting these Terms, you confirm that you are able to receive, access, and retain the notices we may send.
7. Ownership and Intellectual Property
(a) Polaris Property. You acknowledge that all intellectual property and proprietary rights, including without limitation copyrights, patents, trademarks, source code, and trade secrets, in and to the Services are owned by Polaris or our affiliates or licensors. Your possession, access, download, installation, or use of the Services does not transfer to you or any third party any right, title, or interest in or to any such intellectual property or proprietary right. Polaris and its affiliates and licensors and suppliers reserve all rights not granted in these Terms. Other than with respect to User Submissions, Polaris retains full and complete title to all Content, including any and all software and data that accompanies such Content.
(b) Claims of Copyright Infringement. Polaris respects the intellectual property rights of others, and we require that users of our Services do the same. If you believe any Content, including any User Submission, made available in or otherwise accessible through any of the Services infringes any copyright, please submit a notice of claimed copyright infringement to Polaris’ designated copyright agent in accordance with our Notices and Procedure for Making Claims of Copyright Infringement.
8. Indemnity for Third-Party Actions
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE, AND HOLD POLARIS AND ITS LICENSORS AND SUPPLIERS, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND AGENTS (COLLECTIVELY THE “POLARIS PARTIES”) HARMLESS FROM AND AGAINST: (I) ALL CLAIMS, ACTIONS, LAWSUITS AND ANY OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE POLARIS PARTIES ARISING FROM OR RELATING TO (A) YOUR USE AND YOUR AUTHORIZED USERS’ USE OR MISUSE OF THE SERVICES, (B) YOUR VIOLATION AND YOUR AUTHORIZED USERS’ VIOLATION OF THESE TERMS, (C) ANY USER SUBMISSION (INCLUDING ANY FEEDBACK) YOU PROVIDE, OR (D) YOUR VIOLATION AND YOUR AUTHORIZED USERS’ VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY (COLLECTIVELY “THIRD PARTY-ACTIONS”); AND (II) ANY AND ALL RELATED LOSSES, DAMAGES, SETTLEMENTS, AND JUDGMENTS (INCLUDING PAYMENT OF THE POLARIS PARTIES’ ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE POLARIS PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE POLARIS PARTIES, OR MADE BY ANY OF THE POLARIS PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD-PARTY ACTION (“THIRD-PARTY RELATED LOSSES”).
YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATION TO THE POLARIS PARTIES APPLIES EVEN IF SUCH THIRD-PARTY ACTION AND/OR THIRD-PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE POLARIS PARTIES. HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL, OR RECKLESS MISCONDUCT OF THE POLARIS PARTIES, OR GROSS NEGLIGENCE OF THE POLARIS PARTIES IN THOSE JURISDICTIONS THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. “THIRD PARTY” IS DEFINED HEREIN TO INCLUDE, AMONG OTHERS, AN AUTHORIZED USER, INCLUDING WITHOUT LIMITATION, A SPOUSE, PARTNER, FAMILY MEMBER, GUEST, NEIGHBOR, TENANT, EMPLOYEE, OR INSURANCE COMPANY. Polaris reserves the right to assume the exclusive defense and control of any matter for which you are required to indemnify Polaris, and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Polaris’ prior written consent. Polaris will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DO NOT GUARANTEE YOU UNINTERRUPTED SERVICES OR CONNECTIVITY FOR SERVICES. THE SERVICES ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE,” AND POLARIS AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM (AND YOU HEREBY WAIVE) ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUORY, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT.
(b) WITHOUT LIMITING ANY OF THE FOREGOING IN THIS SECTION 9, POLARIS AND ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT ANY DEFECT WILL BE CORRECTED OR THAT ANY OF THE SERVICES: (I) WILL MEET YOUR REQUIREMENTS; (II) WILL BE COMPATIBLE WITH YOUR COMPUTER OR MOBILE DEVICE; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM POLARIS OR THOUGH THE SERVICES SHALL CREATE ANY WARRANTY.
(c) WITHOUT LIMITING ANY OF THE FOREGOING IN THIS SECTION 9, POLARIS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH OR IN CONNECTION WITH ANY THE SERVICES (INCLUDING ANY OF THE THIRD-PARTY PRODUCTS & SERVICES) OR ANY THIRD-PARTY SITE, AND POLARIS WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND SUCH THIRD-PARTY PROVIDERS.
(d) WITHOUT LIMITING ANY OF THE FOREGOING IN THIS SECTION 9, POLARIS MAKES NO REPRESENTATIONS CONCERNING ANY USER SUBMISSIONS CONTAINED IN OR ACCESSED THROUGH ANY OF THE SERVICES, AND POLARIS WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, RELIABILITY, AVAILABILITY, COPYRIGHT COMPLIANCE, LEGALITY, OR DECENCY OF ANY USER SUBMISSIONS CONTAINED IN OR ACCESSED THROUGH ANY OF THE SERVICES. POLARIS MAKES NO REPRESENTATION OR WARRANTY REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
(e) WHEN YOU INSTALL, SETUP, ACCESS, OR USE THE SERVICES, YOU MAY BE GIVEN THE OPPORTUNITY TO CHANGE DEFAULTS OR CHOOSE PARTICULAR SETTINGS IN SUCH SERVICES. THE CHOICES YOU MAKE CAN CAUSE NON-RECOMMENDED OR UNINTENDED OPERATION OR NON-OPERATION OF YOUR PRODUCTS OR SERVICES AND ANY CONNECTED EQUIPMENT OR SYSTEMS. YOU ASSUME ALL LIABILITY FOR ANY AMD ALL DAMAGES AND LOSSES CAUSED BY, ARISING OUT OF OR RELATED TO ANY OF THE CHOICES OR CHANGES YOU MAKE REGARDING ANY SUCH SETTING OR DEFAULT.
(f) This Section 9 shall apply to the maximum extent permitted by applicable law. Nothing in these Terms attempts to exclude or limit your rights under local consumer protection laws in any way that is impermissible under such laws. If you reside in France, to the extent required by applicable law, you may benefit from the legal warranty of conformity and the legal warranty against hidden defects under applicable law, as stated in Exhibit A.
10. Insurance and Waiver of Subrogation
The Services do not provide insurance for your Product or otherwise. You should protect against any risk of loss with the appropriate insurance coverage, and you are responsible for obtaining all insurance coverage, including without limitation for property or medical losses, that you believe is necessary. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND THE APPLICABLE POLICY OR POLICIES OF INSURANCE YOU OBTAIN AND MAINTAIN, YOU RELEASE POLARIS AND ITS LICENSORS AND SUPPLIERS FROM ALL LIABILITY FOR ANY LOSS, OCCURRENCE, EVENT OR CONDITION COVERED BY YOUR INSURANCE.
11. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL POLARIS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT, OR OTHER PROCEEDING ARISING FROM OR RELATED TO THESE TERMS OR THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR OTHERWISE.
IN EVERY EVENT, POLARIS' TOTAL MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATED TO THESE TERMS OR THE SERVICES SHALL BE LIMITED TO THE GREATER OF TOTAL FEES ACTUALLY PAID TO POLARIS BY YOU FOR THE SERVICES OR ONE HUNDRED ($100.00) US DOLLARS. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES MAY NOT APPLY TO YOU.
12. Fees and Payment
Certain Services may be provided for a fee. You shall pay all applicable fees for such Services selected by you in accordance with (and you shall otherwise comply with in all respects) the terms governing your purchase of those Services.
13. Governing Law
These Terms are governed by and construed in accordance with the laws of the State of Minnesota, U.S.A., without regard to principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms.
14. Dispute Resolution
(a) Arbitration. Except as provided in Section 14(d) below, all disputes, controversies, and claims arising from or relating to these Terms or your use of the Services shall be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the provisions of its commercial arbitration rules and any supplementary procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The AAA rules are available at www.adr.org. The arbitration shall be conducted in Hennepin County, Minnesota, U.S.A. by one independent arbitrator mutually agreed upon by you and Polaris. In the event you and Polaris are unable to agree on an arbitrator, then you agree that a single arbitrator shall be appointed by the AAA in accordance with its rules. If this location is not convenient for you, please notify us and we will work with you to determine a mutually convenient location or arrange for remote hearings. Any disagreements regarding the location or format of arbitration hearings will be settled by the arbitrator. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising from or relating to these Terms, including without limitation any claim relating to its enforceability, interpretation, performance, or breach. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with these Terms. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. This dispute resolution provision will be governed by the Federal Arbitration Act. The parties understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court. The European Commission provides for an online dispute resolution platform for European consumers, which you can access here: https://ec.europa.eu/consumers/odr. Subject to local law, such as if you reside in France, you may be entitled to alternative dispute resolution including consumer mediation. Polaris does not, and is not willing to, participate in any alternative dispute resolution proceedings before a consumer arbitration board per the German Consumer Dispute Resolution Act.
(b) Class Action Waiver. THE PARTIES AGREE THAT ANY ARBITRATION SHALL BE CONDUCTED IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES ONLY, AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. IF ANY COURT OR ARBITRATOR DETERMINES THAT THE CLASS ACTION WAIVER SET FORTH IN THIS SECTION 14(B) IS VOID OR UNENFORCEABLE FOR ANY REASON, OR THAT AN ARBITRATION CAN PROCEED ON A CLASS BASIS, THEN THE ARBITRATION PROVISION SET FORTH ABOVE SHALL BE DEEMED NULL AND VOID IN ITS ENTIRETY, AND THE PARTIES SHALL BE DEEMED TO HAVE NOT AGREED TO ARBITRATE DISPUTES.
(c) Time Limitation. YOU AGREE THAT ANY CLAIM YOU MAY HAVE ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF ANY OF THE SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER THE EVENTS GIVING RISE TO SUCH CLAIM. OTHERWISE SUCH CLAIM WILL BE FOREVER BARRED WHERE PERMITTED BY APPLICABLE LAW.
(d) Intellectual Property Rights; Equitable Relief. Notwithstanding the foregoing, any controversy or claim arising out of or relating to the ownership, infringement, validity, or use of any of our intellectual property or proprietary rights may, at our option, be submitted to the state or federal court(s) located in Hennepin County, Minnesota, U.S.A. and shall not be resolved by arbitration. You hereby waive any and all objections to jurisdiction of or venue in any such court. In addition, (i) you acknowledge that the Services contain valuable trade secret and proprietary information of Polaris, that any actual or threatened breach of Section 3(e) above will constitute immediate, irreparable harm to Polaris for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach, and (ii) we may, without waiving any right or remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect any of our intellectual property or proprietary rights.
15. Changes to the Terms; Severability
We reserve the right to make changes to these Terms. Any changes we make to these Terms will be effective immediately upon notice, which we may provide by any means including, without limitation, posting on the Sites or Mobile Apps. Your use of the Services and Product Software after such notice will be deemed acceptance of such changes.
If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
These Terms set out the entire agreement between you and Polaris relating to the subject matter herein and supersede any and all prior or contemporaneous written or oral agreements between you and Polaris. These Terms are not assignable, transferable, or sub-licensable by you except with Polaris’ prior written consent. These Terms may be assigned by Polaris, by operation of law or otherwise, without the consent or approval of you or any other person, firm, or entity. These Terms shall not be construed as a teaming, joint venture, or other such arrangement, unless the parties expressly and explicitly execute an agreement to that effect. Where required by applicable law, Polaris will take additional necessary steps to assign or transfer these Terms to another entity.
Failure to enforce or delay in enforcing any provision of these Terms will not constitute a waiver of any rights under any provision of these Terms. A waiver of any provision of these Terms shall only be effective if in writing and signed by the party against which the waiver is claimed. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption, or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. For purposes of these Terms, the word “including” and words of similar import means “including, without limitation”. Each and all of the covenants, terms, provisions, and agreements herein contained will be binding upon and inure to the benefit of the parties hereto and, to the extent expressly permitted by these Terms, their respective heirs, legal representatives, successors, and assigns. Although there may be multiple translations of these Terms available to you, the version in the language of your place of residency shall govern in the event of any conflict between the Terms as translated.
Additional Warranties for Residents of France
For the purposes of the legal disclaimer below, “consumer” shall mean “you”; “professional” shall mean “Polaris”; and “X” shall mean “the contractual period(s) of supply of digital content or Services that are offered by Polaris as indicated in the applicable terms on the Sites and/or Mobile Apps”.
1) For single act of supply
The consumer has a period of two years from the date of supply of the digital content or digital service to obtain the implementation of the legal guarantee of conformity in the event of a lack of conformity. During a period of one year from the date of supply, the consumer is only required to establish the existence of the lack of conformity and not the date of its appearance. The legal guarantee of conformity entails the obligation to provide all updates necessary to maintain the conformity of the digital content or digital service. The legal guarantee of conformity gives the consumer the right to have the digital content or digital service brought into conformity without undue delay following his request, at no cost and without major inconvenience to him. The consumer may obtain a reduction in price by keeping the digital content or digital service, or he may terminate the contract by obtaining a full refund in exchange for renouncing the digital content or digital service, if: 1. the trader refuses to bring the digital content or digital service into conformity; 2. the digital content or digital service is unreasonably delayed in coming into conformity; 3. the digital content or digital service cannot be brought into conformity free of charge for the consumer; 4. conformity with the digital content or digital service causes significant inconvenience to the consumer; 5. the digital content or digital service is still not in conformity despite the trader's unsuccessful attempt to bring it into conformity. The consumer is also entitled to a reduction in price or rescission of the contract where the lack of conformity is so serious as to justify immediate reduction in price or rescission of the contract. In such cases, the consumer is not required to request that the digital content or digital service be brought into conformity beforehand. In cases where the lack of conformity is minor, the consumer is only entitled to rescind the contract if the contract does not provide for payment of a price. Any period of unavailability of the digital content or digital service for the purpose of restoring its conformity suspends the warranty that was still running until the digital content or digital service is supplied in conformity again. The rights mentioned above result from the application of articles L. 224-25-1 to L. 224-25-31 of the Consumer Code. A trader who obstructs in bad faith the implementation of the legal guarantee of conformity is liable to a civil fine of up to 300,000 euros, which can be increased to 10% of the average annual turnover (article L. 242-18-1 of the Consumer Code). The consumer also benefits from the legal guarantee of hidden defects in application of articles 1641 to 1649 of the Civil Code, for a period of two years from the discovery of the defect. This guarantee gives the right to a price reduction if the digital content or the digital service is kept or to a full refund against renunciation of the digital content or the digital service.
2) For continuous supply over a period of time
The consumer is entitled to the implementation of the legal guarantee of conformity in the event of the appearance of a lack of conformity during a period of X as from the supply of the digital content or digital service. During this period, the consumer is only required to establish the existence of the lack of conformity and not the date of its appearance. The legal guarantee of conformity entails the obligation to provide all updates necessary to maintain the conformity of the digital content or digital service during X. The legal guarantee of conformity gives the consumer the right to have the digital content or digital service brought into conformity without undue delay following his request, free of charge, and without causing significant inconvenience to him. The consumer may obtain a reduction in price by keeping the digital content or digital service, or the trader should reimburse the price paid by the consumer for the digital content or digital service, if: 1. the trader refuses to bring the digital content or digital service into conformity; 2. the conformity of the digital content or digital service is unjustifiably delayed; 3. the digital content or digital service cannot be brought into conformity free of charge to the consumer; 4. the conformity of the digital content or digital service causes significant inconvenience to the consumer; 5. the lack of conformity of the digital content or digital service persists despite the trader's unsuccessful attempt to bring it into conformity. The consumer is also entitled to a price reduction or to rescission of the contract the lack of conformity is of such a serious nature as to justify an immediate price reduction or termination of the contract. In such cases, the consumer is not required to request that the digital content or digital service be brought into conformity beforehand. In cases where the lack of conformity is minor, the consumer is only entitled to rescission of the contract if the contract does not provide for payment of a price. Any period of unavailability of the digital content or digital service for the purpose of bringing it back into conformity suspends the warranty that remained until the digital content or digital service is provided in conformity again. These rights result from the application of articles L. 224-25-1 to L. 224-25-31 of the Consumer Code. A trader who obstructs in bad faith the implementation of the legal guarantee of conformity is liable to a civil fine of up to 300,000 euros, which can be increased to 10% of the average annual turnover (article L. 242-18-1 of the Consumer Code). The consumer also benefits from the legal guarantee of hidden defects in application of articles 1641 to 1649 of the civil code, for a period of two years from the discovery of the defect. This guarantee entitles the consumer to a price reduction if the digital content or digital service is retained, or to a full refund in exchange for the digital content or digital service being waived.
TSYS Product End User License Agreement
IMPORTANT - THIS IS A LEGAL DOCUMENT. BEFORE ACCESSING OR USING ANY PART OF THE TSYS PRODUCT, YOU SHOULD READ THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS LICENSE AGREEMENT (THE "AGREEMENT") CAREFULLY AS THEY GOVERN YOUR USE OF THE TSYS PRODUCT. YOUR RIGHT TO ACCESS OR USE THE TSYS PRODUCT IS CONDITIONED ON YOUR ACCEPTANCE AND AGREEMENT TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU ARE NOT GRANTED PERMISSION TO ACCESS, OR OTHERWISE USE THE TSYS PRODUCT.
Capitalized terms used in this Agreement shall have the meaning set forth below:
a. “Information” means the information transmitted to you via the Product Connected Services.
b. “TSYS Product” means TSYS MapKit, NavKit and SearchKit.
2. Polaris’ grant to you of the licenses to the TSYS Product are conditioned upon your agreement to these standard terms and conditions.
3. You acknowledge that the TSYS Product may be interrupted from time to time. You further acknowledge that the TSYS Product is not error-free.
4. You understand that Polaris and its licensors may be required by law enforcement agencies to disclose information regarding your use of the TSYS Product and that Polaris and its licensors will comply with such requests.
5. You agree that the TSYS Product and all upgrades, corrections, and enhancements thereto shall be and remain at all times the property of Polaris and its licensors and/or suppliers (including all copyrights and other intellectual property rights relating thereto). Polaris grants to you a non-exclusive, non-transferable license, without the right to sublicense, to use the TSYS Product, provided you do not copy, adapt, reverse engineer, decompile, disassemble, create derivative works of, or modify any of the Product.
6. You agree to abide by all laws and regulations applicable to the TSYS Product and their content.
7. Polaris may terminate this Agreement with immediate effect by written notice given by Polaris if you commit any material breach of any term of this Agreement that (in the case of a breach capable of being remedied) shall not have been remedied within five (5) business days of a written request to remedy same.
8. POLARIS AND ITS LICENSORS DO NOT MAKE ANY WARRANTIES, TERMS, REPRESENTATIONS OR STATEMENTS WHATSOEVER WHETHER EXPRESSED OR IMPLIED BY STATUTE, CUSTOM, USAGE OR OTHERWISE WITH RESPECT TO THE TSYS PRODUCT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCT CONNECTED SERVICES, AND NON-INFRINGEMENT, OF MERCHANTABILITY OR QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY THAT THE TSYS PRODUCT IS ACCURATE OR COMPLETE, AND ALL SUCH WARRANTIES ARE DISCLAIMED HEREBY. THE TSYS PRODUCT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. 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 POLARIS AND ITS LICENSORS ARE AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
9. POLARIS AND ITS LICENSORS SHALL IN NO CIRCUMSTANCES HAVE ANY LIABILITY WHATSOEVER TO YOU FOR:
a. ANY INDIRECT OR CONSEQUENTIAL LOSS OR ANY LOSS OF ACTUAL OR ANTICIPATED PROFIT, REVENUE OR GOODWILL OR LOSS OF USE OF THE TSYS PRODUCT 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
b. 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 US$1,000; OR
c. ANY TECHNOLOGICAL, ELECTRONIC OR OTHER MALFUNCTIONING OF ANY TELECOMMUNICATIONS COMPUTER OR ELECTRONIC EQUIPMENT ON OR OVER WHICH ANY INFORMATION IS RECEIVED BY OR TRANSMITTED BY Polaris AND ITS LICENSORS.
10. You undertake to indemnify and hold Polaris, its licensors, successors, and affiliates, and, collectively, their respective partners, directors, officers, employees or agents, or anyone else who has been involved in the creation, production or delivery of the TSYS Product (collectively the “Indemnified Parties”) harmless from and against all damages, cost, claims and liabilities (including reasonable attorney’s fees) suffered or incurred by the Indemnified Parties as a consequence of any claims or proceedings made or brought against the Indemnified Parties by any person in connection with your use of the TSYS Product.
11. Polaris and its licensors accepts liability only for (a) death or personal injury caused by Polaris or its licensors’ negligence; or (b) any other direct loss or damage caused by Polaris or its licensors’ gross negligence or willful misconduct. To the extent permitted by law and except for section 11(a), under no circumstances will Polaris and its licensors’ liability under this Agreement exceed US$1,000 for the TSYS Product, regardless of the cause or form of action.
12. You agree that this Agreement is enforceable by Polaris and its licensors.