These Terms of Service and End User License Agreement were last updated on, and are effective as of, April 29, 2019.
PLEASE READ THE FOLLOWING TERMS OF SERVICE AND END USER LICENSE AGREEMENT (“TOS/EULA”) CAREFULLY BEFORE USING THIS SITE. ALL USERS OF THIS SITE AGREE THAT ACCESS TO AND USE OF THIS SITE ARE SUBJECT TO THIS TOS/EULA AND OTHER APPLICABLE LAW. IF YOU DO NOT AGREE TO THIS TOS TOS/EULA, PLEASE DO NOT USE THIS PRODUCT.
- downloading, installing or using any of the programs or services made available through this application or site; or
- clicking on the “Accept” button below
- acknowledge that you have read and understood this TOS/EULA and the additional terms of service for each of the Third-Party Services listed in Annex 1 below;
- represent that you are at least 18 years old and that you have the capacity to enter into and agree to this TOS/EULA and the additional terms of service for Third Party Services provided through the Platform; and
- accept and agree to be bound by (i) this TOS/EULA, (ii) the terms of service for those Third-Party Services listed in Annex 1, and (iii) the terms of service for those other third party services provided through the Platform that you choose to access.
If you do not agree to this TOS/EULA you may not use the HARMAN Spark Platform or any of the services provided through the Platform, and you must remove the HARMAN Spark Device and stop using the HARMAN Spark Platform.
Your vehicle must be compatible with the HARMAN Spark Platform. Do not use the HARMAN Spark Platform in a Vehicle other than the one that you register with us. We assess the compatibility of your vehicle with the HARMAN Spark Platform based on information you provide to us, including the Vehicle Identification Number (“VIN”) or year, make, and model of your vehicle. You agree to provide us with true and accurate information to assess your vehicle's compatibility. YOU ASSUME THE RISK ASSOCIATED WITH PROVIDING US WITH ANY FALSE OR INACCURATE INFORMATION REGARDING YOUR VEHICLE, INCLUDING WITHOUT LIMITATION ANY ISSUES ARISING FROM VEHICLE INCOMPATIBILITY WITH THE HARMAN SPARK PLATFORM.
Your vehicle must have a working electrical system for the HARMAN Spark Device and many aspects of the HARMAN Spark Service to operate properly. The HARMAN Spark Device operates when plugged into the OBD-II port. The HARMAN Spark Device will not work without adequate electrical and battery power, and it may not work at all if you attempt to modify the HARMAN Spark Device or add any equipment or software in or to your vehicle that is not expressly authorized by us or is otherwise incompatible with the HARMAN Spark Device, including other aftermarket devices or products. The operation of the HARMAN Spark Service may vary in different vehicles depending on the electrical systems of the vehicle and the version of the system or software in the vehicle.
This TOS/EULA is a legal agreement between the person who agrees to this ToS/EULA as an individual, or between the corporation, organization or other entity on whose behalf the person who agrees this ToS/EULA is acting (“you”) and HARMAN Connected Services, Inc., (the "Service Provider" or "we" or "us"):
- for the use and license of:
- our proprietary hardware OBD-II dongle and related software, the data supplied with the software, and any updates or supplements to it (the “HARMAN Spark Device”);
- our proprietary mobile application software, the data supplied with the software, and any updates or supplements to it (the "App");
- the associated documentation for the App (the "Documentation"); and
- images and videos, audio files, data files, animations and text provided by the Service Provider or its licensors (the "Content");
- 1.1.2 for the access to a suite of our proprietary mobile application services provided by us through this website or mobile application or other of our websites and/or mobile applications, from time to time, that also allow you to access the App, Content and/or Documentation (collectively, the "HARMAN Spark Service");
- for the access to various Third-Party Services ("Third-Party Services" and each a "Third-Party Service"), which access is provided through this website or mobile application or other of our websites and/or mobile applications, from time to time.
- All of the foregoing, exclusive of the Third-Party Services, are sometimes collectively referred to as the "HARMAN Spark Platform." The HARMAN Spark Service and the Third-Party Services are sometimes collectively referred to herein as the "Services."
- Within the HARMAN Spark Platform, you may access and request Third-Party Services that are provided by third parties with whom we work. Access to and use of such Third-Party Services are also subject to additional terms of service specified by the applicable Third-Party service provider. For the Third-Party Services listed on Annex 1 (the "Required Third Party Services") we require that you view and accept or reject the applicable terms of service for the Third-Party Services listed on Annex 1. If you do not accept the terms of service for the Required Third-Party Services, you may not access or use the HARMAN Spark Platform. Other Third-Party Services are optional services that you may request from time-to-time, and in those cases, you will be informed in the App when any such optional Third-Party Service is first accessed by you that you will need to accept the applicable terms of service of that particular Third-Party Service to access those services. Annex 2 lists the optional Third-Party Services that are available as of the above-noted date for this TOS/EULA. We may update the list of Required Third Party Services and optional Third-Party Services from time to time.
- We notify you that communication and transmission of information using the Internet can never be completely secure or private. Any information that you send using the App may therefore be read or accessed by others even if that transmission is encrypted.
- By using the HARMAN Spark Platform or any of the Services, you agree to our collection and use of technical information about the Devices (and related software, hardware and peripherals) through which you access or use the HARMAN Spark Platform or Services to help us improve our services and products and to provide any Services to you. The HARMAN Spark Platform may automatically download and install updates. These updates may take the form of bug fixes, new features, or new versions. You agree to receive such updates from HARMAN as part of your use of the HARMAN Spark Platform.
- Some of the Services available via the App will make use of and may rely on location data sent from your Devices. For the HARMAN Spark Services you can turn off this functionality at any time by turning off the location services settings for the App on the Device. For Third Party Services you should check the applicable terms of service for any location-based services and data use and settings options. However, you acknowledge and agree that if you turn off location-based functionality certain Services may not be able to function properly. If you use these location-based Services, you consent to our and our affiliates’ and licensees’ transmission, collection, retention, maintenance, processing and use of your location data to provide and improve location-based and road traffic-based products and services.
- In addition to websites for Third Party Services, the App or HARMAN Spark Service may contain links to other independent websites that are not provided by us. Such independent sites are not under our control, and we are not responsible for and have not checked or approved their content, their terms of service or their privacy policies (if any). You will need to make your own independent judgement about whether to use any such independent websites, including whether to buy any products or services offered through such websites.
Appstore Terms and Conditions also Apply to Your Use of the App
If you obtain access or download the App through a Third-Party app store the third party operator of such app store may have additional terms to which you will need to adhere.
- The HARMAN Spark Platform requires use of a Device with a minimum of 32 GB of memory and the IOS or Android operating system.
- Some of the services that are accessible via the App require your vehicle to be fitted with and connected to in-vehicle connected hardware and there may be other relevant requirements that you will need to adhere to in order to access or use certain services via the App from time-to-time which are set out in Annex 3.
Changes and Updates to This TOS/EULA, the HARMAN Spark Platform and the Services
- This TOS/EULA may be modified by us without notice at any time, for any reason; provided that if we decide to modify this TOS/EULA, we will note at the top of this TOS/EULA the date of the last update, which should alert you to changes in this TOS/EULA since your prior visit to our website or use of the HARMAN Spark Platform. In addition, we may also choose to notify you of any changes when you next use the HARMAN Spark Platform or a Service. The new terms may be displayed on-screen and you may be required to read and accept such new terms to continue your use of the HARMAN Spark Platform or the Service.
- From time to time we may make updates or changes to the features, functionalities or offerings of the HARMAN Spark Platform, the App or any of the Services. Depending on the update or change, you may not be able to use the App or the Service until you have downloaded and installed the latest version of the HARMAN Spark Platform, App, Service or other feature, browser or any other required components and accepted any applicable updated terms.
- We also reserve the right, without notice and for any reason, to discontinue the offering of all or any portion of the HARMAN Spark Platform, the App, and/or any and all Services. The foregoing are in addition to the reasons specified in Clause 15 below for a termination.
- Subject to your compliance with this TOS/EULA, we grant you a personal, limited, non-exclusive, non-transferable license to use the HARMAN Spark Platform, the App and the Documentation on the terms of this TOS/EULA until terminated in accordance with this TO/EULA.
- You may:
- Download, stream, install and use the HARMAN Spark Platform and App on your Device and view, use and display the App and the HARMAN Spark Service on such Devices;
- transfer the App from one computer to another, provided that both Devices are owned and used by you or that you have permission to use such Device;
- receive and use any free supplementary App code or update of the App incorporating “patches” and corrections of errors as may be provided by us from time to time; and
- use any Documentation in support of the use permitted under clause 6.2.1.
- in each case solely for your personal purposes only, which must be for non-profit, non-commercial purposes.
- At any time, we may update or require you to install updated versions of the HARMAN Spark Platform or App.
- The HARMAN Spark Platform, the HARMAN Spark Service, App, and the applicable Third-Party Services available through the HARMAN Spark Platform may be upgraded or changed by us from time to time.
- This license is not a sale of software or permission to lend, sell, redistribute, sublicense, lease or rent the HARMAN Spark Platform, the App or Documentation to other parties.
- Except as expressly set out in this TOS/EULA or as permitted by any local law, you undertake:
- not to copy any part of the HARMAN Spark Platform, except where it is necessary for the purpose of preparing a backup copy or for operational security;
- not to rent, lease, sub-license, loan, translate, merge, adapt, vary, alter or modify, the whole or any part of the HARMAN Spark Platform, nor permit the HARMAN Spark Platform, or any part of it to be combined with, or become incorporated in any other programs;
- not translate, merge, adapt, vary, alter or modify, the whole or any part of the HARMAN Spark Platform, the App, Documentation or HARMAN Spark Service nor permit the App or the HARMAN Spark Service or any part of them to be combined with, or become incorporated in any other programs, except as necessary to use the App and the HARMAN Spark Service on Devices as permitted in these terms;
- not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the HARMAN Spark Platform or App nor attempt to do any such things, except to the extent that (by virtue of applicable law) such actions cannot be prohibited because they are necessary to obtain the information necessary to create an independent program to be operated with the HARMAN Spark Platform or App ("Permitted Objective"), and provided that the information obtained by you during such activities:
- is used only for the Permitted Objective;
- is not disclosed or communicated without our prior written consent to any third party to whom it is not necessary to disclose or communicate it in order to achieve the Permitted Objective; and
- is not used to create an application or program that is substantially similar to the App, the HARMAN Spark Service or the HARMAN Spark Platform;
- not to provide, or otherwise, make available, the HARMAN App in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person; and
- to comply with all applicable laws in connection with your use of the HARMAN Spark Platform and App, including all applicable technology control or export laws and regulations.
- You acknowledge and agree that:
- commercial use or unauthorized copying of the Content, the App or HARMAN Spark Platform is not permitted; and
- you will not represent or cause others to believe that the Content, the App or HARMAN Spark Platform is your original work, or that we endorse or are affiliated with you; and you will display our (and our relevant licensors’) copyright and proprietary notice(s) with all of the Content, the App or HARMAN Spark Platform, or any portion(s) thereof, that you use.
- Without limiting the above in any way, you must not:
- use the HARMAN Spark Platform, the App or the Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this ToS/EULA, or act fraudulently or maliciously, for example, by using another user’s account, or by hacking into or inserting malicious code, including viruses, or harmful data, into the HARMAN Spark Platform, the App, any Service or any operating system;
- infringe our intellectual property rights or those of any relevant licensor or any third party through your use of the HARMAN Spark Platform, the App or any Service;
- transmit any material that is defamatory, offensive or otherwise objectionable in relation to using the HARMAN Spark Platform, the App or any Service; and
- use the HARMAN Spark Platform, 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
- 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.
- NOTE: By using any of the HARMAN Spark Services, you may encounter content that may be offensive, indecent, or objectionable to you. Your sole remedy is to simply stop viewing or accessing the content. Pages describing the HARMAN Spark Services may be accessible worldwide, but this does not mean all HARMAN Spark Services or service features are available, or that user-generated content available via the HARMAN Spark Services is legal. HARMAN may block access to certain HARMAN Spark Services (or certain service features or content). It is your responsibility to make sure your use of the HARMAN Spark Services is legal where you use them. HARMAN Spark Services are not available in all languages.
Other Obligations for Use of the HARMAN Spark Platform
- You will keep a secure password for your use of the HARMAN Spark Platform and App and you will keep such password confidential. You confirm that you will not disclose or allow any third party to access, and will keep strictly confidential:
- your password, profile and login details; and
- the details, including profile details, of any digital certificate or digital passes issued by us to you,
- in connection with your use of the HARMAN Spark Platform, the App or any of the Services.
- You will:
- provide us with:
- all necessary co-operation in relation to this TOS/EULA; and
- all necessary access to such information as may be required by us, in order to provide the HARMAN Spark Platform to you;
- provide us with:
- ensure that the Device, network and systems comply with the relevant specifications provided by us from time to time;
- be solely responsible for procuring and maintaining network connections and telecommunications links from your Device to our data centers, and for all problems, causes, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet; and
- be responsible for any Internet or network access or charges by any Internet or network service provider or carriers with respect to the use of the HARMAN Spark Platform, the App or Services on the Device (or otherwise).
Terms and Conditions Specific to your Driving Score
- One of the Services that may be provided via the App is a Driving Score, telematics data (driving behaviour, including where you drive), your state location, and information regarding your driving behaviour is collected from your vehicle and may be utilized by Octo Advisory Inc. to generate a Driving Score (“Driving Score”). This Driving Score may then be utilized by the third parties listed in Annex 2 for optional services you can select via the App.
- You accept that we may collect that information that identifies you as an individual, relates to an identifiable person, or that can be identifiable to a specific device ("Personal Information"). We may collect Personal Information through your Device; the use of the App; through Third Party Services and through communications voluntarily provided by you. We may share this Personal Information with the optional Third Party Services you have select. You accept that the optional Third Party Service may require further Personal Information that we may have collected, or that we may require you to volunteer to allow you use of the selected Third Parties Service..
- BY SUBMITTING PERSONAL INFORMATION RELATING TO OTHER PEOPLE TO US OR TO OUR THIRD-PARTY SERVICE PROVIDERS IN CONNECTION WITH THE SERVICES, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO DO SO AND TO PERMIT US TO USE THE INFORMATION IN ACCORDANCE WITH THIS TOS/EULA AND RELATED PRIVACY LAWS.
- THE DRIVING SCORE FEATURE OF THE SERVICES MAY BE IMPACTED BY FACTORS INCLUDING BUT NOT LIMITED TO NETWORK COVERAGE, CAPACITY, AND RECEPTION, AND, IN ANY EVENT, WE DO NOT GUARANTEE THE ACCURACY OF YOUR DRIVING SCORE PROVIDED THROUGH THE USE OF THE SERVICES.
- You accept in this TOS/EULA that we may use Personal Information to;
- qualify you for offers of insurance products and services to present to you from our optional Third-Party Services; send administrative information to you; provided that you acknowledge that your Driving Score derived from the Services does not guarantee you any insurance discount or other benefits even if it shows that you have good driving habits; and
- for our business purposes, such as data analysis, audits, fraud monitoring and prevention, developing new products, enhancing, improving or modifying our Services, identifying usage trends, determining the effectiveness of our promotional campaigns and operating and expanding our business activities
Support for the App and How to Tell Us About Problems
- If you want to learn more about the HARMAN Spark Platform, the App or the Services or have any problems using any of them you may access selected support resources at https://services.HARMAN.com/industries/automotive-connected-car/automoti....
- If you think that the HARMAN Spark Platform, the App or any of the Services are faulty or not as described or wish to contact us for any other reason, please email our customer service team at spark_support@HARMAN.com.
- If we have to contact you, we will do so by email, by SMS or by pre-paid post, using the contact details you have provided to us. By registering such information you authorize us to send you electronic communications in accordance with the settings specified with your account. You should be aware that your network carrier may charge you applicable text messaging rates for each text message sent or received.
- You acknowledge that all intellectual property rights of whatever nature in and to the HARMAN Spark Platform, the HARMAN Spark Service, the App, the Content and Documentation, including, without limitation all copyrights, patents, trademarks, and trade names therein and throughout the world, belong to us (or our licensors), that any rights granted to you in the HARMAN Spark Platform, the HARMAN Spark Service, the App, the Content and Documentation hereunder are only licensed (not sold) to you, and that you have no intellectual property rights in, or to, any of the HARMAN Spark Platform, the HARMAN Spark Service, the App, the Content and Documentation other than the right to use the foregoing strictly in accordance with the terms of this TOS/EULA.
- Without limitation of the foregoing Clause 12.1, you also acknowledge that you have no right to have access to the HARMAN Spark Platform or the App in source code form.
- It is our policy (i) to block access to or remove postings or other content that we believe in good faith infringes the copyrights of third parties, and (ii) to remove and discontinue service to repeat infringers. If you believe that content posted on this website infringes your or a third party’s copyright, please send a notice of claimed copyright infringement along with further details so that we may address such matter, including the identification and contact of a party with authority to address such matter, a description of the infringing material and the infringed material, and a statement that the notification is accurate and that you have the authority to act on behalf of the owner of the allegedly infringed material. Please send any such notices to spark_legal@HARMAN.comAttention: DMCA Compliance.
- EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN CLAUSE13.3, THE HARMAN SPARK PLATFORM IS PROVIDED "AS IS" AND ON AN “AS AVAILABLE” BASIS AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE HARMAN SPARK PLATFORM, THE APP, THE HARMAN SPARK SERVICE OR ANY OF THE THIRD PARTY SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, BE AVAILABLE OR OPERATE IN ALL GEOGRAPHIC AREAS, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF OR ANY RELIANCE UPON ANY INFORMATION OR CONTENT AVAILABLE THROUGH THE SERVICE IS SOLELY AND COMPLETELY AT YOUR OWN RISK AND RESPONSIBILITY, AND THAT THIS INFORMATION OR CONTENT MAY NOT ALWAYS BE ACCURATE. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOU (AND/OR ANY OTHER USER OR OCCUPANT OF YOUR VEHICLE) EXERCISE GOOD JUDGMENT AND OBEY TRAFFIC RULES AND ALL OTHER APPLICABLE LAWS AND REGULATIONS WHEN OPERATING YOUR VEHICLE, ACCESSING AND/OR USING THE SERVICE, PERMITTING OTHERS TO USE YOUR VEHICLE AND/OR EVALUATING WHETHER THE USE OF ANY OF THE SERVICE FEATURES IS SAFE AND LEGAL UNDER THE CIRCUMSTANCES. THE SAFETY SCORE, DIAGNOSTIC DATA, AND MECHANICS HOTLINE SERVICE FEATURES ARE INFORMATIONAL ONLY, ARE DESIGNED TO HELP IDENTIFY THE LIKELY SOURCE OF A PROBLEM BASED ON THE DIAGNOSTIC CODES TRIGGERED, AND ARE NOT INTENDED TO REPLACE ACTUAL IN-PERSON SERVICE EVALUATIONS..
- We warrant that the HARMAN Spark Device and the App will, when properly used on an operating system for which it was designed, perform substantially in accordance with the functions described in the Documentation for a period of twelve months from the date of installation of the App (the "Warranty Period").
- If, within the Warranty Period you notify us in writing of any defect or fault in the HARMAN Spark Device and/or the App as a result of which it fails to perform substantially in accordance with the Documentation, we will, at our sole option, either repair or replace the HARMAN Spark Device and/or the App, provided that you make available all the information that may be necessary to help us to remedy the defect or fault, including sufficient information to enable us to recreate the defect or fault.
- The warranty in Clause 16.2 does not apply:
- if the defect or fault results from you having altered or modified the HARMAN Spark Device or the App; or
- if the defect or fault results from you having used the HARMAN Spark Device or the App in breach of the terms of this TOS/EULA.
- Although we make reasonable efforts to update the information provided by or through the HARMAN Spark Platform, the App and the HARMAN Spark Service, we make no representations, warranties or guarantees, whether express or implied, that any such information is accurate, complete or up to date.
Limitations on Losses or Damages Suffered by You
- SUBJECT TO THE LIMITATIONS ON WARRANTIES, LIABILITY AND DAMAGES SET FORTH IN THIS CLAUSE 14 AND ELSEWHERE IN THIS TOS/EULA, IF WE FAIL TO COMPLY WITH OUR OBLIGATIONS IN THIS TOS/EULA WE SHALL ONLY BE RESPONSIBLE FOR LOSS OR DAMAGE THAT YOU SUFFER FROM YOUR USE OF ANY PART OF THE HARMAN SPARK PLATFORM THAT IS A FORESEEABLE RESULT OF OUR FAILURE TO SO COMPLY, AND WE SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT IS NOT FORESEEABLE. LOSS OR DAMAGE IS FORESEEABLE IF EITHER IT IS OBVIOUS THAT IT WILL HAPPEN OR IF, AT THE TIME THIS TOS/EULA WAS MADE, BOTH WE AND YOU KNEW IT MIGHT HAPPEN
- IN ADDITION, SUBJECT TO CLAUSE 14.4 BELOW, WE ARE NOT LIABLE TO YOU FOR ANY OF THE FOLLOWING IN CONNECTION WITH YOUR USE OF THE HARMAN SPARK PLATFORM, THE APP, THE CONTENT, THE DOCUMENTATION, THE HARMAN SPARK SERVICE OR ANY THIRD-PARTY SERVICE:
- ACTS OR OMISSIONS OF THIRD PARTIES;
- MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, FAILURES TO TRANSMIT, DELAYS, OR DEFECTS IN ANY PART OF THE HARMAN SPARK PLATFORM OR ANY OF THE SERVICES PROVIDED BY US OR ANY THIRD PARTIES;
- DAMAGE OR INJURY CAUSED BY YOUR USE OF ANY PART OF THE HARMAN SPARK PLATFORM OR ANY OF THE SERVICES PROVIDED BY US OR ANY THIRD PARTIES;
- ANY CLAIMS AGAINST YOU BY THIRD PARTIES;
- ANY DAMAGE OR INJURY CAUSED BY ANY SUSPENSION OR TERMINATION OF ALL OR ANY PART OF THE HARMAN SPARK PLATFORM OR ANY OF THE SERVICES PROVIDED BY US OR ANY THIRD PARTIES;
- ANY INDIRECT OR CONSEQUENTIAL LOSSES, LOST PROFITS OR REVENUES, LOSS OF BUSINESS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS OPPORTUNITY CAUSED BY YOUR USE OF ANY PART OF THE HARMAN SPARK PLATFORM OR ANY OF THE SERVICES PROVIDED BY US OR ANY THIRD PARTIES;
- ANY SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF YOUR USE OF ANY PART OF THE HARMAN SPARK PLATFORM OR ANY OF THE SERVICES PROVIDED BY US OR ANY THIRD PARTIES; AND
- ANY DAMAGE OR INJURY CAUSED BY A FAILURE OR DELAY IN CONNECTING ANY CALL OR OTHER COMMUNICATION OR MESSAGE TO AN EMERGENCY SERVICE PROVIDER.
- We are not responsible to you for any loss or damage that you suffer as a result of using any Third Party Services. You should refer to the terms of service of the particular Third-Party Service if you suffer a loss or damage as a result of using that Third Party Service.
- If defective digital content that we have supplied damages a HARMAN Spark Device or digital content belonging to you, we will either repair the damage or pay you compensation. However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us or reasonable security safeguards.
- We do not exclude or limit our liability to you where it would be unlawful to do so. This includes liability for death or personal physical injury caused by our negligence or the negligence of our employees, agents or sub-contractors or for fraud or fraudulent misrepresentation
- You acknowledge that the HARMAN Spark Platform and the Services available through it have not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the features and functions of the HARMAN Spark Platform and the Services meet your requirements.
- We will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
- If for some reason we are found to be liable to you, our maximum aggregate liability under or in connection with your use of the HARMAN Spark Platform, the App, the Content, the Documentation, the HARMAN Spark Service or any Third Party Service or under this ToS/EULA whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to no more than the amount paid by you to us for use of the HARMAN Spark Platform during the twelve months immediately preceding the claim asserted by you..
- APPLICABLE LAW MAY NOT ALLOW CERTAIN LIMITATIONS OF EXCLUSIONS OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
- Without limitation of our right to discontinue offering all or any portion of the HARMAN Spark Platform as addressed elsewhere in this TOS/EULA, we may terminate your access to and/or use of the HARMAN Spark Platform, the App, the Content, the Documentation or the HARMAN Spark Service immediately by written notice to you if you commit a material breach of this TOS/EULA which you fail to remedy (if remediable) within seven (7) days after our written notice to you of such breach..
- Upon termination for any reason:
- all rights and licenses granted to you under this TOS/EULA shall cease;
- you must cease all activities authorized by this TOS/EULA;
- we may remotely access your Devices and remove the HARMAN Spark Platform, the App, the Content, the Documentation or the HARMAN Spark Service from such Devices and cease providing you with access to any and all of the foregoing; and
- you must immediately delete or remove the HARMAN Spark Platform, App, Content and Documentation from all computer equipment in your possession and immediately destroy or return to us (at our option) all copies of the HARMAN Spark Platform, App, Content and Documentation then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
The HARMAN Spark Platform are subject to export controls under applicable laws and regulations. You must comply with such laws and regulations governing export, re-export, import, transfer and use of the HARMAN Spark Platform and will obtain all required U.S. and local authorizations, permits, or licenses. In particular, but without limitation, the HARMAN Spark Platform may not be exported or re-exported (a) into any embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons or Entity List. By using the HARMAN Spark Platform, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the HARMAN Spark Platform for any purposes prohibited by United States law, including without limitation, the development, design, manufacture or production of nuclear, chemical, or biological missiles or weapons. You agree to provide any other information, support documents, and assistance as may reasonably be required in connection with securing authorizations or licenses
The HARMAN Spark Platform may qualify as "Commercial Items," as that term is defined at Federal Acquisition Regulation ("FAR") (48 C.F.R.) §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation" as such terms are used in FAR §12.212. Consistent with FAR §12.212 and DoD FAR Supp. §227.7202-1 through §227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which these terms may be incorporated, you may provide to a Government end user or, if these terms are direct, a Government user will acquire, the HARMAN Spark Platform with only those rights set forth in these terms. Use of The HARMAN Spark Platform constitutes agreement by the Government that the HARMAN Spark Platform is "Commercial Computer Software" and "Commercial Computer Software Documentation," and constitutes acceptance of the rights and restrictions in these terms.
- We may transfer our rights and obligations under this TOS/EULA to another organization.
- Other than a Third-Party service provider as to its offering of a Third Party Service, a person who is not a party to this TOS/EULA shall have no rights to enforce any term of this TOS/EULA.
- Each of the clauses of this TOS/EULA operates separately. If any court or relevant authority decides that any of clauses of this TOS/EULA are unlawful, the remaining clauses will remain in full force and effect.
- No failure by us to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this TOS/EULA shall operate or be construed as a waiver thereof; nor shall any single or partial exercise by us of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- If you have any questions about this TOS/EULA, please contact email@example.com.
- This TOS/EULA will be governed by and interpreted in accordance with the laws of the State of California, without giving effect to any of its conflict of laws provisions.
- Any legal suit, action or proceeding arising out of or related to TOS/EULA or the licenses granted under TOS/EULA shall be instituted exclusively in the federal or state courts located in Atlanta, Georgia, and we and you hereby irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action or proceeding