General Terms and Conditions for Online Sales
TomTom International B.V.
De Ruyterkade 154, 1011 AC Amsterdam, The Netherlands,
TomTom Sales B.V. (ABN 14 117 652 712)
Suite 1/3, Richardson Place, North Ryde, NSW 2113, Australia
any affiliates(together, “TomTom”)
a)These Terms and Conditions shall apply to all orders submitted or to be submitted by you for any item, service or subscription offered to you on or via the TomTom website, TomTom HOME, a TomTom device or other TomTom application (referred to in these Terms and Conditions as the “Products”), including, but not limited to, (i) hardware devices, accompanying items and accessories including devices, items or accessories containing pre-installed software ("Software"), referred to in these Terms and Conditions as the “Hardware” and (ii)services offered by TomTom from time to time (“Services”), which may include (separately or bundled) Internet-based services or location based services, data services, real time information services such as traffic information and weather forecasts, or the provision of other data, information, (third party) functionality or content, whether offered to you on a subscription basis (“Subscription”) or on a pre-paid basis and delivered in one or more parts.
b)These Terms and Conditions shall apply to all orders submitted or to be submitted by you for any Product, Hardware, Software, Services and/or Subscription outside the European Union or the United States of America or Canada.
a)Any order submitted is subject to acceptance by TomTom. Only upon acceptance by TomTom by way of an order confirmation the agreement is concluded.
b)TomTom reserves the right to reject any orders in full or in part or to apply a maximum order amount.
c)All orders for Hardware are subject to stock availability.
3) Price and payment
a)Prices indicated on the website are including VAT. Shipping and handling charges (if any) will apply in addition to the price indicated on the website. You are responsible for any local sales taxes, other taxes and government levies, if any, associated with the order. Prices are subject to change at any time but will not affect orders for Hardware, Software or Services made prior to the date of the change (subject to clause 6(c)).
b)All orders must be paid for through the payment service as made available by TomTom (“Payment Service”). In order to submit orders and use the Payment Service you must supply details of your preferred payment method, billing and shipping address (if applicable) and/or any other details necessary to complete the order.
c)If, for whichever reason, collection through the Payment Service should fail TomTom will invoice you by post for the amount payable, which must be paid by cheque, postal order or credit card within 15 days from the date of invoice.
4) Delivery and risk of loss
a)TomTom will endeavour todeliver or activate the Product within30 days of order acceptance. If multiple Products are ordered, TomTom reserves the right to deliver or activate each Product separately.
b)Products will be delivered either to your delivery address or possession, or electronically. The risk of loss or damage to the Products will pass to you at the moment the Products are delivered to you.
c)If you refuse or neglect to take delivery of the Products, TomTom reserves the right to charge you for the reasonable cost of storing the Products until delivery can be made.
d)If delivery to you should fail for any reason outside of TomTom’s control, TomTom reserves the right to cancel the agreement and refund any monies paid.
e)If TomTom delivers a Product to you or activates a Product on your device by mistake, you shall immediately inform TomTom of its mistake by email via http://www.tomtom.com/support and you shall, at TomTom’s request, immediately arrange for the return of the Product (the costs of which shall be met by TomTom), de-install or destroy the Product, which ever option is most suitable.
f)Acceptance of a non-ordered Product does not relieve you from acceptance and payment of the Product you initially ordered, unless otherwise agreed with TomTom.
5)Licence, Copyright & Confidentiality
a)Subject to payment for the Software, you are granted a licence to use the Software and/or the data, information, (third party) functionality or other content (“Content”) provided to you as part of the Hardware or via the Services for personal and private use only on the terms set out in this clause 5 (“Licence”). You may install and use the Software and Content on only one computer or device at any time and in combination with only one navigation system. You may not provide the Software or Content to others, directly or indirectly for their or anyone else’s use. This Licence is non-exclusive and non-transferable, which means that TomTom is free to license the Software and Content to other customers and that your right to use the Software and Content cannot be transferred by you to someone else. This Licence does not include any right to obtain future upgrades, updates or supplements to the Software or Content, unless TomTom has specifically indicated that obtaining such updates, upgrades or supplements is an integral part of the Product. If upgrades, updates or supplements to the Software or Content are obtained, the use of such upgrades, updates or supplements will be governed by these Terms and Conditions or such other terms and conditions as you shall be asked to accept prior to TomTom supplying you with the relevant upgrade, update or supplement.
b)TomTom reserves the right, with or without notice, to discontinue update, upgrade and supplement services provided to you or made available to you through the use of the Software or Content, unless the provision of such updates, upgrades or supplements forms an integral part of the Product, as indicated by TomTom at the time of sale.
c)Without prejudice to any other rights, TomTom may immediately terminate the Licencewithout notice of default being requiredif you fail to comply with any material term of these Terms and Conditions which shall be understood to include clauses 5 and 8. In such event, you must destroy all copies of the Software and all of its component parts as well as any Content.
d)Copyright and other intellectual, industrial and/or proprietary rights to the Software, to the Content, and to any copies made of it are owned by TomTom and/or its suppliers. TomTom permits you to use the Software and Content only in accordance with these Terms and Conditions. All rights not specifically granted in these Terms and Conditions are reserved by TomTom. You may either (a) make one copy of the Software solely for backup or archival purposes, or (b) transfer the Software to a single medium provided the original is kept solely for backup or archival purposes. Product manual(s) or written materials may not be copied, except for your own use. You may not copy, download, upload or in any other way reproduce Content, except for creating one copy solely for backup or archival purposes. You do not acquire ownership of the Software or Content.
e)You acknowledge and agree that the Products were developed at considerable time and expense by TomTom and are confidential to, and a trade secret of, TomTom and/or other third parties. You undertake to maintain the Products in strict confidence and not to disclose or provide access to the Product to any third party.
a)Subscriptions will be entered into for an indefinite period of time, unless TomTom and you have agreed on a fixed period of time.
b)If your Subscription is for an indefinite period of time, either you or TomTom may terminate your Subscription by taking a notice period into account of 30 days (your notice to be sent: bye-mail viahttp://www.tomtom.com/support). This notice period starts on the first collection date after receipt of your notice of termination by TomTom. If your Subscription is for a fixed period of time, it will automatically end upon expiration of such period of time.
c)TomTom reserves the right to change the prices for or the terms and conditions applicable to your Subscription, subject to giving you reasonable prior notice thereof (either via email, the TomTom website or otherwise). If such change will result in higher prices or otherwise works towards your disadvantage (but not in case the higher prices result from higher government levies or taxes), you may terminate your Subscription prior to and against the date such change comes into effect by sending an e-mail viahttp://www.tomtom.com/support.
d)TomTom may terminate your Subscriptionor a separate service within bundled Services by providing at least 30 days prior noticeif TomTom decides to discontinue offering such Subscription or such separate service respectively.
e)TomTom may terminate or restrict your Subscription with immediate effect without notice of default being required if (i)you fail to comply with any material term of these Terms and Conditions which shall be understood to include clauses 5 and 8, (ii) collection through the Payment Service for Subscriptions should fail after a second attempt, or (iii) the use of the Service is in breach of TomTom’s Fair Use Policy.
f)Upon termination of your Subscription, your License as detailed in clause 5 will terminate simultaneously.
7) Third Party Materials
TomTom Products may make use of third party software codes, data, information functionality, other content and algorithms (“Third Party Materials”). The use of Third Party Materials included in the Products may be subject to other terms and conditions. The official copyright notices and specific licence conditions of these Third Party Materials are to be found in or via our website http://www.tomtom.com/legal. You hereby agree that the submission of any order implies that you have read and accepted the terms and conditions for any Third Party Materials included in the Products ordered.
8) Other Restrictions
Renting, lending, public presentation, performance or broadcasting or any other kind of distribution of the Products is prohibited. Other than as permitted by applicable legislation, you will not, and will not allow any person to, modify the Products or any part thereof, to analyse it by means of reverse engineering, to decompile or disassemble the Products, to break or circumvent encryption or to allow or enable third parties to do so.
a)TomTom does not and cannot warrant that the Products operate in a manner that is completely error-free nor that any information provided is always accurate. Calculation errors may occur when using navigation systems such as those caused by local environmental conditions and/or incomplete or incorrect data.
b)TomTom offers a limited warranty that the Hardware will be free from defects in workmanship and materials under normal use (“Defects”) for a period of one (1) year from the date the Hardwarewaspurchased, or from the date of purchase until such date as you breach any of these Terms and Conditions, whichever is the shorter period (“Warranty Period”). During the Warranty Period, the Hardware will be repaired or replaced by TomTom (“Limited Warranty”) without charge for either parts or labour. If the Hardware is repaired, at your cost, after the Warranty Period has expired, the Warranty Period for the repair will expire six (6) months after the date of repair. This warranty does not cover Services.
c)This Limited Warranty does not cover damage caused by normal wear and tear or as a result of the Hardware being opened or repaired by someone not authorized by TomTom, and does not cover damage caused by: misuse, moisture, liquids, proximity or exposure to heat and accident, abuse, non-compliance with the instructions supplied with the Hardware, neglect or misapplication. The Limited Warranty does not cover physical damage to the surface of the Hardware.
d)TomTom does not provide any warranties in respect of the Products in addition to the Limited Warranty stated in this clause 9. In particular, and to the maximum extent permitted by applicable law, TomTom and its suppliers provide the Products “AS IS AND WITH ALL FAULTS”, and hereby disclaims all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of satisfactory quality, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of reasonable care and skill, all with regard to the Products, and the provision of or failure to provide support or other services, information, software, and related content through the Products or otherwise arising out of the use of the Products. Also, there is no warranty or condition of quiet enjoyment, quiet possession, or non-infringement with regard to the Products. This exclusion does not apply to (i) any implied condition as to title and (ii) any implied warranty as to conformity with description.
e)In order to make a claim under the Limited Warranty of a Defect, you must contact TomTom by email during the Warranty Period via http://www.tomtom.com/support to explain the Defect and to obtain a Return Materials Authorisation number if necessary. The Software or Hardware must be returned to TomTom as soon as possible following your notification of the Defect, along with an explanation of the Defect, to the address provided by TomTom. You must comply with any other return procedures stipulated by TomTom, if any.
f)This Limited Warranty is the only express warranty made to you and is provided in place of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications.
g)The provisions of this clause 9 do not affect any of your legal rights under applicable national legislation governing the sale of consumer goods.
h)This Limited Warranty is not transferable.
10) Limitation of Liability
a)To the maximum extent permitted by applicable law, neither TomTom nor its suppliers and subcontractors shall be liable to you or to any third party for any damages either direct, indirect, incidental, consequential or otherwise (including in each case, but not limited to, damages for the inability to use or access the Products, loss of data, loss of business, loss of profits, business interruption or the like) arising out of the use of or inability to use the Products, even if TomTom has been advised of the possibility of such damages.
b)Notwithstanding any damages that you or any third party might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the maximum aggregate liability of TomTom and any of its suppliers arising from or related to the use of the Products shall be limited to the extent permitted by law and at the option of TomTom, to any one or more of the following (i) the amount actually paid by you for the Products concerned (ii) the replacement of the Products concerned or the supply of equivalent products and (iii) the repair or the cost of repairing the Products concerned.
c)TomTom shall not be liable for (i) any fraud on the part of its employees and/or agents; or (ii) any fraudulent misrepresentation on the part of its employees and/or agents.
d) TomTom's liability will also be reduced or limited to the extent (if any) that you cause or contribute to the loss or damage to the Product or fail to comply with any instruction about the use of the Product.
e)Notwithstanding any of the above or anything else contained in these Terms and Conditions, nothing in these Terms and Conditions shall limit either party’s liability for death or personal injury resulting from its own negligence or for any other liability that cannot be excluded or limited by law.
f)The above limitation of liability does not affect any legal rights or remedies, any guarantees, warranty or other term or condition implied or imposed under the applicable national legislation, which cannot be lawfully excluded or limited.
Force majeure means circumstances that impede the fulfilment of TomTom’s obligations under these Terms and Conditions which are not within TomTom’s reasonable control, including late and/or delayed deliveries and incomplete deliveries by TomTom caused by circumstances beyond TomTom’s reasonable control. In a force majeure situation all of TomTom’s obligations shall be suspended. Should the period in which TomTom cannot fulfil its obligations as a result of force majeure continue for longer than ninety (90) calendar days, both parties shall be entitled to dissolve the purchase agreement in writing without there being an obligation to pay any compensation whatsoever arising out of or in connection with that dissolution.
13) Links to Third Party Websites
TomTom is not responsible for the content of any third-party websites or services, any links contained in third-party websites or services, or any changes or updates to third-party websites or services. Where TomTom provides links and/or access to third-party websites and/or services it is only as a convenience to you, and the inclusion of any link or access does not imply an endorsement by TomTom of the third-party site or service.
14) Third Party Rights
Third parties have no rights under applicable legislation in relation to the rights of third parties to rely upon or to enforce any term of these Terms and Conditions but that does not affect any right or remedy of a third party which exists or is available apart from such applicable legislation.
Any provisions in these Terms and Conditions which by their nature extend beyond the termination or expiration of any sale or license of the Products will remain in effect.
If any provision of these Terms and Conditions is deemed to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. You and TomTom are deemed to have agreed to new terms and conditions in substitution for such invalid provisions. These new terms and conditions shall be interpreted, as regards their contents and effect, as closely as possible to the original text as written but in such a way that rights can indeed be derived from them.
17) Governing law
These Terms and Conditions and any disputes related to these Terms and Conditions or to the purchase and use of the Products or otherwise are subject to the laws of the country where you have legal domicile or are in residence. The United Nations Convention on Contracts for the International Sales of Goods is hereby excluded from application to these Terms and Conditions. All disputes arising out of these Terms and Conditions shall be settled by the courts of the place where you have legal domicile or are in residence, which will have exclusive jurisdiction in respect of any such disputes.
The English version of these terms and conditions is the prevailing version for your purchase.
Should you have any questions, suggestions or complaints concerning your order, your purchase, these Terms and Conditions, or if you desire to contact TomTom for any reason, please do so by email by visiting TomTom’s website at http://www.tomtom.com/support.
Version May 2014.