END USER LICENCE AGREEMENT
IMPORTANT NOTICE TO ALL USERS:
- By downloading the App, installing or using the App, you agree to the terms of this licence which will bind you and/or your employees, contractors or representatives.
- If you do not agree to the terms of this licence, we will not licence the App to you and you must discontinue the download, installation or use of the App.
- In addition to this licence, you must comply with the Usage Rules set out in the Google Play Store Terms of Service found here https://play.google.com/intl/en_us/about/movies-tv-usage-rules.html.
TERMS OF LICENCE
1.1 This licence agreement (Licence) is a binding agreement between you (Licensee or you) and the EROAD Limited (EROAD or we) for:
a. EROAD mobile application software, which consists of EROAD Assist and its accompanying application and the services accessible through the application (together referred to as the App); and
b. accompanying App help, guidance and training documents supplied by EROAD together with any updates provided to you (the Documents).
1.2 By installing and using the App, you represent and warrant that you have the legal capacity and authority to enter into a binding agreement to adhere to the terms of this Licence, and that the App will be used only in accordance with the terms of this Licence and with all applicable laws.
1.4 The App requires, at a minimum, a mobile device with resolution of at least 300 PPI (pixel density), internet connectivity access and the Android Operating System version 7.x or above. As future versions of the Android Operating System are released, EROAD may not continue to support superseded versions of the Android Operating System.
2.1 We may change this Licence at any time by notifying you of a change when you next start the App. You may be required to read and accept new terms to continue your use of the App.
2.2 From time to time updates to the App may be issued through the Appstore. Depending on the update, you may not be able to use the App until you have downloaded the latest version of the App and accepted any new terms.
2.3 You or the owner of the mobile device onto which the App has been downloaded (the Device) may be charged by your or their internet service provider. You or the owner of the Device are solely responsible for all internet charges incurred in connection with using the App.
2.4 You must use the App in accordance with the recommended protocols and processes outlined in the Documents, including the protocols and directions for when the App crashes, ceases functioning, is out of cellular range, displays any warnings or faults, or is unable to transmit or email information or data to government organisations, entities or enforcement officers.
2.5 You must use the App in accordance with all applicable laws and ordinances (including driving laws). You must act in accordance, and comply, with all rules, regulations and legislation and you are solely responsible for your records and your compliance with all local, state and federal laws. You will hold EROAD harmless for any violation or failure to observe any rule, regulation or legislation which occurs from your use of the App or any act or omission by EROAD.
2.6 EROAD has developed the App to assist you in your compliance obligations. You acknowledge that the App has not been developed to meet your individual requirements and it is therefore your responsibility to ensure that the App meets your requirements and is suitable for your purposes. Except as otherwise provided in this Licence, your access to and use of the App is on an “as-is” basis and at your own risk. You also acknowledge that EROAD is not in the business of providing professional advice and you are therefore responsible for verifying any information given by EROAD before relying on or making use of it.
2.7 You warrant that all information and data that is collected by, or inputted into, the App is accurate and you will be required to certify the accuracy of such information and data prior to submitting any information with a government organisation, enforcement officer or entity using the App. You are solely responsible for all errors, inaccuracies and omissions in the information and data on the App that you submit to the EROAD customer, government organisation or enforcement officer.
2.8 You authorise EROAD to submit to the EROAD customer, reports containing your data on your behalf in connection with the App. You authorise EROAD to use, copy, modify, store, disclose and communicate the data to the extent necessary to enable you to use the App. You also acknowledge that EROAD is under no obligation to store and make available to you, data collected by the App following the termination or expiry of this Licence.
2.9 You acknowledge that you will log in to the App using the mobile number that is associated with your driver profile in MyEroad or, if you wish, a code available on EHubo.
2.10 EROAD may use data provided by you and other data it collects about you to market and promote its products and services to you. EROAD will not provide your data to any other party so they can use it to market their products to you.
2.11 By using the App you consent to us collecting and using technical information about the devices and related software, hardware and peripherals for services that are internet-based or wireless to improve our products and to provide any services to you.
2.12 EROAD strives to provide you with a great App, and while EROAD intends to make the App available 24 hours a day, 365 days a year, the App may be interrupted for scheduled maintenance or for reasons beyond EROAD’s control. EROAD will not be responsible for any such interruptions, but if the App is likely to be interrupted for extended periods, EROAD will use reasonable efforts to provide advance notice of such interruption on its website https://depot.eroad.co.nz or any other website operated by EROAD. During any interruptions you agree to follow the recommended protocols and processes outlined in the Documents.
2.13 The App depends on the availability and proper performance of third-party systems which can be unpredictable, and which may from time to time interfere with use of or limit access to the App, including leading to latency issues with the collection of data and potential loss of data if the App fails to synch with EROAD’s servers. In such cases, you agree to follow the recommended protocols and processes outlined in the Documents.
2.14 EROAD has a technology platform for storing data inputted into the App that meets or exceeds internationally accepted control objectives and practices for privacy, security and information systems. EROAD also intends to maintain a back-up of the data, however, no back-up system is completely failsafe, and you will not hold EROAD responsible, nor bring any claims against EROAD, for any loss, corruption, destruction or alteration of data.
3 Additional Terms for the App on Google Play Store Branded Products
3.1 To the maximum extent permitted by applicable law, Google Play will have no warranty obligation whatsoever with respect to the App, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, failure to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation or any claim that your possession and use of the App infringes a third party’s intellectual property rights.
3.2 You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S Government as a “terrorist supporting” country, and (ii) you are not listed on any U/S. Government list of prohibited or restricted parties.
3.3 You and we acknowledge and agree that Google Play, and Google Play subsidiaries, are third party beneficiaries of this Licence and this Licence is enforceable by Google Play and its subsidiaries for the purposes of Part 2, Subpart 1 of the Contract and Commercial Law Act 2017.
4 GRANT AND SCOPE OF LICENCE
4.1 To use the App, you must be an Authorized User as defined in EROAD’s Terms. Subject to all applicable terms, we grant you a non-transferable, non-exclusive, non-sublicensable, revocable license to use the App and Documents in accordance with this Licence.
4.2 You may:
a. download or stream a copy of the App onto the Device and to view, use and display the App on the Device; and
b. use the Documents,
for the purpose set out in this Licence.
5 Restrictions on Use
5.1 You must:
c. not copy the App or Documents except where such copying is incidental to normal use of the App, or where it is necessary for the purpose of back-up or operational security;
d. not rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the App or Documents;
e. not make alterations to, or modifications of, the whole or any part of the App, or permit the App or any part of it to be combined with, or become incorporated in, any other programs;
f. not disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the App or attempt to do any such thing;
g. keep all copies of the App secure and maintain accurate and up-to-date records of the number and locations of all copies of the App;
h. include our copyright notice on all entire and partial copies you make of the App on any medium;
i. not use the App or the Documents for any commercial, business or resale purposes;
j. not provide or otherwise make available the App in whole or in part (including object and source code), in any form to any person without prior written consent from us; and
k. comply with all technology control or export laws and regulations that apply to the technology used or supported by the App or any Service (Technology), together the License Restrictions.
6 Acceptable Use Restrictions
6.1 You agree that you will:
a. ensure that the Device is in proper working condition and meets the minimum specifications to download and stream the App, including having sufficient cellular and data connection services with third party providers to optimize the use of the App; b. not use the App in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Licence, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App or any operating system;
c. not infringe our intellectual property rights or those of any third party in relation to your use of the App, including the submission of any material (to the extent that such use is not licensed by this Licence);
d. not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service;
e. not use the App or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
f. not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service, together the Acceptable Use Restrictions.
7 Intellectual Property
7.1 You acknowledge that all intellectual property rights in the App, the Documents and the Technology anywhere in the world belong, or is licensed, to us, that rights in the App are licensed (not sold) to you, and that you have no rights in, or to, the App, the Documents or the Technology other than the right to use each of them in accordance with the terms of this Licence. You acknowledge that you have no right to have access to the App in source-code form.
8 Limitation of Liability
8.1 To the maximum extent permitted by law, EROAD excludes all liability in contract, tort (including negligence) and under statute and EROAD shall not be liable for any direct, indirect, special, punitive or consequential loss or damage (including loss of data or information, or loss of profits, revenue, or opportunities or any fines, penalties or levies that you may receive due to your use of the App or Services) however caused, arising out of the use of the App or Services.
8.2 In the event of any breach, or any negligent performance, of this license by EROAD which causes you loss, your sole and exclusive remedy from EROAD is that EROAD will use commercially reasonable endeavours to restore the App, Services or data.
9.1 We may terminate this Licence immediately by written notice to you:
a. if you are no longer an Authorised User;
b. if EROAD and the EROAD customer of which you are an employee or contractor terminates the EROAD Terms;
c. if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so; and
d. if you breach any of the License Restrictions or the Acceptable Use Restrictions.
9.2 On termination for any reason:
a. all rights granted to you under this Licence shall cease;
b. you must immediately cease all activities authorised by this Licence, including your use of any Services;
c. you must immediately delete or remove the App from all Devices, and immediately destroy all copies of the App and Documents then in your possession, custody or control and certify to us that you have done so; and
d. we may remotely access the Devices and remove the App from all of them and cease providing you with access to the Services.
10.1 If you wish to contact us in writing, or if any condition in this Licence requires you to give us notice in writing, you can send this to us by e-mail at email@example.com. We will confirm receipt of this by contacting you in writing, normally by e-mail.
10.2 If we have to contact you or give you notice in writing, we will do so by e-mail or by posting the notice on the Website.
11 Events Outside our Control
11.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Licence that is caused by any act or event beyond our reasonable control, including failure of public or private telecommunications networks (Event Outside Our Control).
11.2 If an Event Outside Our Control takes place that affects the performance of our obligations under this Licence, we will use our reasonable endeavours to find a solution by which our obligations under this Licence may be performed despite the Event Outside Our Control.
12.1 We may transfer our rights and obligations under this Licence to another organization, but this will not affect your rights or our obligations under this Licence.
12..2 You may only transfer your rights or obligations under this Licence to another person if we agree in writing.
12.3 If we fail to insist that you perform any of your obligations under this Licence, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
12.4 Each of the conditions of this Licence operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
12.5 Clauses 2.5, 2.7, 2.8, 3.1, 3.3, 7.1, 8.1, 8.2 together with those other provisions of this Licence which are incidental to, and required in order to give effect to those clauses, will remain in full force and effect.
12.6 Please note that this Licence, its subject matter and its formation, are governed by the laws of New Zealand and the parties submit to the jurisdiction of the High Court of New Zealand.
V.1 December 2021