Terms of Use
Vehicle Software and Technology in New Zealand
1. These terms and conditions govern access to and use of various software, technology and digital features/functions (Vehicle Software and Technology) contained within this vehicle (Vehicle) by any person (hereafter referred to as “you” or “your”).
2. You are taken to have accepted and are immediately bound by these Terms of Use if you are given access to the Vehicle Software and Technology and/or you commence using the Vehicle Software and Technology both of which shall constitute acceptance of the terms and conditions contained herein.
3. These terms and conditions are at all times subject to any specific terms and conditions applicable to your use of the Vehicle Software and Technology including but not limited to any Mercedes-Me Connect terms and conditions, Free Open Source Software (FOSS) terms and conditions and any third party terms and conditions (collectively, Specific Terms of Use). To the extent of any inconsistency, the terms of any Specific Terms of Use shall prevail over these general Terms of Use.
THIRD PARTY SOFTWARE AND FREE AND OPEN SOURCE SOFTWARE
4. You acknowledge and agree that:
a) the Vehicle Software and Technology is not free of third party rights and that portions of the Vehicle Software and Technology may contain FOSS and Third Party components, materials, cloud environments and/or software (Third Party Software); and
b) where applicable, access to or use of FOSS or Third Party Software shall:
i. be considered a supply by the FOSS or Third Party Software provider/rights holder, not MBNZ;
ii. be governed by any Specific Terms of Use of the FOSS or Third Party Software provider/rights holder;
iii. be deemed to form a separate agreement between you and the FOSS or Third Party Software provider/rights holder (excluding MBNZ) and it is your sole responsibility to ensure that the Specific Terms of Use and any requirements (including any consents) are met.
USE
5. MBNZ, either directly or on behalf of a third party (as the case may be), shall be taken to have granted you a simple, non-exclusive and non-transferable right to use the Vehicle Software and Technology for:
a) use within the Vehicle; and
b) use in New Zealand;
unless the consent of MBNZ is obtained to use the Vehicle Software and Technology otherwise.
6. MBNZ does not confer neither expressly nor implicitly any title or other rights or interests (including Intellectual Property Rights) to you in respect of the Vehicle Software and Technology unless obliged by law, the FOSS right holder(s) or the third party to do so.
7. You must at all times comply with the following in relation to your use of the Vehicle Software and Technology:
a) all relevant laws and regulations (including any road rules);
b) all warning notices and safety-related information associated with the Vehicle Software and Technology;
c) all manuals and instructions and any Specific Terms of Use associated with the Vehicle Software and Technology;
d) all and any reasonable directions provided by MBNZ from time to time.
8. You acknowledge and agree that:
a) you are responsible for ensuring proper driving behavior and lawful operation of the Vehicle in accordance with any country-specific laws and regulations when using or accessing the Vehicle Software and Technology, including any regulations governing the use of portable devices, mobile phones and smartphones;
b) use of certain functions, systems and devices which are integrated with the Vehicle Software and Technology (such as communications functions, systems and devices) can be distracting and may contribute to you losing control of your Vehicle and you must only access or use these functions, systems and devices if safe and lawful to do so. If this cannot be ensured, you must stop the Vehicle in accordance with applicable laws;
c) you are responsible for regularly checking for any updates, hardware and other compatibility elements required for the use of the Vehicle Software and Technology and ensuring that the Vehicle Software and Technology is kept up to date and that any updates, when available, are implemented by you as soon as practicable;
d) you are responsible for ensuring the confidentiality of any account, password and for restricting access to the Vehicle, any computers and mobile devices. You must take all necessary steps to ensure that your password is kept confidential and secure. To the extent permitted by law and excluding the acts or omissions of MBNZ and its Affiliates, you shall be responsible for all activities that occur under your account and/or password;
e) you must not use the Vehicle Software and Technology in a way that is likely to disrupt, damage or otherwise impair the Vehicle Software and Technology;
f) you must not use the Vehicle Software and Technology for fraudulent purposes or in connection with a crime, illegal activity, harassment or inconvenience;
g) MBNZ reserves the right to revoke any access and block you from the Vehicle Software and Technology in the event that it suspects or there is actual improper use or breach of these Terms of Use; and
h) if you are the initial purchaser of the Vehicle, you will have agreed to these Terms of Use as part of the purchase of the Vehicle and it is your responsibility to ensure that any subsequent owners or other uses/operators of the Vehicle and/or the Vehicle Software and Technology are made aware of and agree to be bound by these Terms of Use.
9. Clauses 5 to 8 inclusive shall survive termination of these Terms of Use.
INTELLECTUAL PROPERTY
10. MBNZ or any FOSS or Third Party Software provider/rights holder (as applicable) retains ownership of all rights, title and interests (including Intellectual Property Rights and without limitation moral rights) in the Vehicle Software and Technology, any Software Updates (as defined in clause 28) and related documentation (including without limitation the detailed specifications, the source code) whether in its original form or as modified by you including Developed IP.
11. You must not and must not attempt, directly or indirectly, to copy, reproduce, adapt, modify, reverse engineer, decompile or transmit the Vehicle Software and Technology or any related documentation (including without limitation the detailed specifications and the source code), in whole or in part without MBNZ's prior written consent.
12. Without prejudice to clause 11, if you do or attempt to adapt or modify the Vehicle Software and Technology or any related documentation, you shall fully indemnify and hold harmless MBNZ against any liability incurred if the said adaptation or modification infringes the Intellectual Property Rights of a third party. The Vehicle Software and Technology or documentation as adapted or modified (as the case may be) shall in MBNZ's absolute discretion be deemed the property of MBNZ.
13. You shall immediately notify MBNZ on becoming aware of any breach of clause 11 or any attack or threatened attack on the validity of MBNZ’s rights, title or interests (including Intellectual Property Rights) in the Vehicle Software and Technology or any related documentation.
14. In the event of any breach of this section or other misuse of MBNZ's Intellectual Property Rights, MBNZ shall, in addition to their other rights, be entitled to equitable relief including injunctive relief.
15. Clauses 10 to 14 inclusive shall survive termination of these Terms of Use.
AVAILABILITYOF SERVICES
16. MBNZ shall use its reasonable endeavors to provide undisrupted availability of the Vehicle Software and Technology however such availability is subject to disruption, interruption and unavailability arising from various matters including maintenance, updates and matters beyond the control of MBNZ.
17. For the purposes of clause 16 above, you expressly acknowledge and agree that:
a) it is technically impossible to make all Vehicle Software and Technology available 24 hours a day, 365 days a year and free of disruption, interruption, unavailability and errors of any kind;
b) errors can lead to temporary shutdown of the Vehicle Software and Technology and may impact the operation of the Vehicle; and
c) the availability of the Vehicle Software and Technology is dependent on conditions, performance and matters beyond the control of MBNZ, including but not limited to the availability of telecommunication and internet networks, transmission capacities and third parties making available any hardware, software or technical applications that the Vehicle Software and Technology are based on or rely on.
LIABILITY
18. Nothing in these Terms of Use, including the limitations imposed by the clauses below, has the effect of excluding, restricting or modifying any rights or remedies to which you are entitled as a consumer under the Consumer Guarantees Act 1993, to the extent these rights or remedies are not contracted out of.
19. Subject always to clause 18 above, and to the fullest extent permitted by law, MBNZ will not be liable for any loss, costs, expenses, damages, actions, claims and demands, including under any warranty or indemnity, however arising from or in relation to:
a) third party acts or omissions including but not limited to telecommunications failures and faults, defective networks or internet connections, the malfunction, degradation, suspension, discontinuance, maintenance or unavailability of any third party services, materials, cloud environments or software (including Third Party Software);
b) all documentation, material, software, hardware, content, goods or services not provided by MBNZ;
c) Force Majeure Events;
d) enhancements, adaptions, translations or modifications of the Vehicle Software and Technologies by anyone other than MBNZ or its Affiliates (unless permitted in writing by MBNZ);
e) any act or omission directly within your responsibility or control including:
i. any breach by you of these Terms of Use;
ii. misuse of any user ID or password;
iii. use of the Vehicle Software and Technologies in a manner not contemplated by these Terms of Use or as otherwise stated by MBNZ; or
iv. misuse, negligent use or abuse of the Vehicle Software and Technologies.
20. To the fullest extent permitted by law, MBNZ expressly disclaims all warranties, whether express, implied or statutory, including but not limited to the warranty of merchantability, fitness for a particular purpose, title, quality, accuracy and non-infringement of third party rights.
21. Without limiting clause 20 above, to the fullest extent permitted by law MBNZ expressly excludes any warranty that:
a) the Vehicle Software and Technology will be error free or complete;
b) the use of the Vehicle Software and Technology will be uninterrupted and free from failure;
c) the Vehicle Software and Technology will be absolutely secure from unauthorised access;
d) the Vehicle Software and Technology will meet your specific individual requirements;
e) the Vehicle Software and Technology will provide any functionality or performance not expressly stated or otherwise agreed to by MBNZ; and
f) any third party information, material, data or software which is made available to you via the Vehicle Software and Technology (including third party websites and Third Party Software) will always be available, is accurate, complete or of any quality.
22. To the extent permitted by law, each party’s liability howsoever arising including in contract (including repudiation) or tort (including negligence), misrepresentation, liability under an indemnity or for any other common law, equitable or statutory cause of action or otherwise will be reduced to the extent that the loss, damage, costs and/or expenses claimed arose as a result of an act or omission (negligent or otherwise) or breach of these Terms of Use by the other party and/or its Affiliates.
23. Clauses 18 to 22 inclusive shall survive termination of these Terms of Use.
VARIATIONS
24. MBNZ shall be entitled to make changes and amendments to the Terms of Use at any time if:
a) required by new technical developments or change in law; or
b) MBNZ, in its discretion, considers the change or amendments to be necessary.
25. Any changes and amendments will be notified to you by posting an updated version of these Terms of Use on our website. Your continued use of our Vehicle Software and Technology following any updates constitutes acceptance of the Terms of Use as amended. MBNZ recommend you regularly review its website. If you do not agree with any aspect of our updated Terms of Use, you must promptly notify MBNZ and cease using our Vehicle Software and Technology.
26. MBNZ may make changes to the Vehicle Software and Technology without prior written notice (using any information supplied) in the following circumstances:
a) where there is a change to MBNZ's third-party providers or their services;
b) where required by new technical developments;
c) where there is a regulatory change or a change in law which requires MBNZ to make changes to the Vehicle Software and Technology; and/or
d) to amend functionality and to make improvements to the Vehicle Software and Technology.
27. MBNZ reserves the right to further develop the Vehicle Software and Technology at any time and to add, change or remove individual functions of the Vehicle Software and Technology subject to providing reasonable prior notice to you (being any period required by law or that is reasonable having regard to the overall scope of the Vehicle Software and Technology). Such notice shall be deemed satisfied by MBNZ:
a. by sending notice to the last known address/contact information that MBNZ has on record for you (which may include but not be limited to sending you a letter, email, contacting you via phone, text message, or sending you a notification in the Vehicle head unit or to your Mercedes Me account); and/or
b. posting a notification on MBNZ's website.
28. In addition, you consent and otherwise acknowledge and agree that, from time to time, in the absolute discretion of MBNZ, MBNZ may initiate a software update (Software Update) without notifying you or seeking your consent. Software Updates may be installed automatically without the need for a workshop visit. The Software Update can be initiated from the Vehicle or from the Mercedes-Benz backend and can improve and enhance functions of the Vehicle and the Vehicle Software and Technology, as well as provide or facilitate new functions of the Vehicle and the Vehicle Software and Technology, or modify or remove functions of the Vehicle and the Vehicle Software and Technology. The Software Update cannot be deactivated by you, and you not entitled to demand or receive Software Updates. The period of time between individual Software Updates can vary.
29. Where a Software Update will materially affect the Services you receive, MBNZ will use reasonable endeavors to notify you and seek your consent to the Software Update. You may refuse to consent to the Software Update if it is not advantageous to you or if you could not be reasonably expected to accept the Software Update, taking the interests of MBNZ into account. However, you must not unreasonably withhold or delay consent to the Software Update. To the fullest extent permitted by law, MBNZ shall not be liable to you if you are not able to access or use all or any part of the Vehicle Software and Technology as a result of refusing to consent to the Software Update.
30. You acknowledge and agree that:
a) the Software Updates are subject to the availability and limitations of third parties (such as telecommunication and internet networks) and the equipment in the Vehicle and as such, the time it takes to download and install any Software Update may differ from Vehicle to Vehicle, and can take anywhere from a few minutes to several hours;
b) in some circumstances, Software Updates and hardware updates may be required for the unimpeded performance and operation of the Vehicle Software and Technology;
c) while the Software Updates are downloading and installing, the functionality of the Vehicle or individual components (e.g. the Infotainment System) may be restricted for a certain period of time. In the unlikely event that a technical error occurs during the installation of the Software Update, the functionality may continue to be restricted and a workshop repair may be needed.
GENERAL
31. For the duration of these Terms of Use, you shall provide MBNZ or its Affiliates (including authorised retailers, service providers and repairers), free of charge, all assistance, information, access, facilities and services reasonably required by MBNZ to enable it effectively to perform its obligations under these Terms of Use and otherwise grant you access to and use of the Vehicle Software and Technology including but not limited to:
a) access to the Vehicle, your remote devices or any other hardware, systems or IT environment;
b) your user name and password; and
c) any other relevant information or documentation.
32. MBNZ may at any time assign in whole or in part any of its rights or obligations under these Terms of Use, to Mercedes-Benz AG, any Mercedes-Benz AG Group company or related entity. You irrevocably consent to such assignment.
33. These Terms of Use shall be governed by and construed in accordance with the laws for the time being in force in New Zealand and the parties agree to submit to the non¬exclusive jurisdiction of the courts of New Zealand.
34. No forbearance, delay or indulgence by a party in enforcing the provisions of these Terms of Use shall prejudice or restrict the rights of that party, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
35. If a provision in these Terms of Use is held to be illegal, invalid, void, voidable or unenforceable, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable. If it is not possible to read down a provision as required in this clause that provision is to be severed to the extent necessary without affecting the validity or enforceability of the remaining part of that provision or the other provisions in these Terms of Use, and the rest of these Terms of Use remain in full force and effect.
36. These Terms of Use may be executed in any number of counterparts which, when taken together, constitute one instrument.
37. The rights, powers, and remedies of a party provided in these Terms of Use are cumulative with and not exclusive of, any right, power, or remedy provided by law. It is not necessary for a party to incur expense or make payment before enforcing an indemnity under these Terms of Use.
DEFINITIONS
"Affiliate" means any director, officer, employee, agent, contractor, subcontractor, consultant or adviser or related entity of a party;
"Authorised Mercedes-Benz Retailer" means an entity which has been authorised by MBNZ to operate as an authorised Mercedes-Benz dealer and/or repairer;
“Developed IP” means any Intellectual Property discovered, developed or which has otherwise come into existence as a result of, for the purposes of, or in connection with these general Terms of Use including without limitation in relation to the Authorised Mercedes-Benz Retailer’s use and inputs into the Applications, Software and Data Content;
“Force Majeure Event” means COVID-19 and anything outside the reasonable control of a party, including:
a) The failure, fault, defect, malfunction, degradation, suspension, discontinuance, maintenance or unavailability of third party services, hardware, software or applications including but not limited to telecommunications failures and faults, defective network or internet connections and the malfunction, degradation, suspension, discontinuance, maintenance or unavailability of any third party materials, cloud environments or software;
b) an act of God, lightning, fire, storm, explosion, flood, landslide, peril of sea or air, bushfire, volcano or earthquake;
c) strikes or other industrial action whether in New Zealand or overseas;
d) an act of public enemy, war (declared or undeclared), terrorism, piracy, sabotage, blockade, revolution, riot, insurrection, civil commotion, pandemic or epidemic;
e) any act or omission of a wharf or port authority, a government authority or agency or a shipping or transportation company;
f) the effect of any change in applicable laws; and
g) an embargo or power shortage;
"Intellectual Property/Intellectual Property Rights" means any present and future rights, title and interests in and to any industrial or intellectual property rights, whether registrable or not, including but not limited to any confidential information, copyright, moral rights, patents, ideas, concepts, methods, processes, procedures, systems, reports, computer programs, Software, techniques (including function, process, system and data models), templates, generalised features of the structure, sequence and organisation of software, user interfaces and screen designs, consulting and software tools, utilities and routines, logic, coherence and methods of operations of systems, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, data, databases, plant varieties, trade marks, brand names, business names, domain names, internet addresses, applications for any of the foregoing and any improvements, enhancements or modifications to any of the foregoing;
“MBNZ” means Mercedes-Benz New Zealand Limited.