This General License Agreement includes and incorporates each Supplement signed by the Parties, the HERE Policies, one or more Addenda, and any other documents referenced herein (collectively, the “Agreement”).
Agreed and accepted as of the Effective Date by each Party’s authorized representatives:
1 LICENSE GRANTS
1.1 License Supplements and Order Documents. The Parties may enter into one or more supplements or order documents under this Agreement (each, a “Supplement”). The Supplements shall include the licensed HERE materials, a description of the permitted use and the license fees. This Agreement governs Licensed Materials under each Supplement.
1.2 License Rights. Subject to Customer’s compliance with the Agreement, HERE grants to Customer a non-exclusive, non-transferable, non-sublicensable (unless otherwise permitted herein), revocable (for breach and at termination of this Agreement or the applicable Supplement), limited license during the Term to:
1.2.1 develop software, websites or comparable products and/or services that makes use of the Licensed Materials (each such product or service an “Application”) for the Permitted Use Case set out in the Supplement; and
1.2.2 to make available and distribute the Application directly or indirectly to End Users; and
1.2.3 if Customer is a reseller of Licensed Materials (as may be indicated in the Supplement), to sublicense the licenses granted in section 1.2.1 and/or 1.2.2, without rights of further sublicensing, to its business customers solely for the Permitted Use case.
1.3 Permitted Use Cases. The license granted in Section 1.2 is limited to Permitted Use Cases identified in the Supplement; no other license is granted to Customer.
1.4 Sublicensing. All sublicenses shall be granted under a written agreement with terms no less restrictive, and no less protective of HERE, than the Agreement. Customer shall remain liable under this Agreement for acts and omissions of sublicensees, and a breach of the terms hereof by a sublicensee shall be deemed a breach by the Customer.
1.5 Subcontractors. Any license granted in a Supplement includes Customer’s subcontractor(s) for the purposes of developing, prototyping, testing, maintaining and supporting Customer’s Application(s), so long as subcontractors are under written agreements no less protective of HERE than this Agreement. Customer shall remain liable under this Agreement for acts and omissions of subcontractors, and a breach of the terms hereof by a subcontractor shall be deemed a breach by the Customer.
1.6 HERE Policies. Customer’s use of the Licensed Materials and its Applications must comply with all HERE Policies.
2 GENERAL REPORTING
Unless otherwise set out in the respective Addendum or Supplement, on or before the 10th day of each calendar month, Customer shall provide HERE with a written fee report of Customer-reported units of measure for the previous month. The report shall set forth the fees and other charges due (“Fee(s)”) and the basis of calculation (such as asset, device or user volumes, as applicable), including applied discount percentage (if any expressly agreed in a Supplement), currency and such other information HERE may reasonably request, including such information as HERE may require to support its obligations to report and pay royalties to its suppliers. To ensure that the Parties account for each month, the Customer shall provide HERE with Fee reports even if no Fees are due.
3 FEES AND TAXES
3.1 Customer will pay all Fees and charges specified in a Supplement or alternatively, as applicable, price lists, price book or similar resources referenced in a Supplement, or in a separate letter agreement(s) mutually executed by the Parties. Additional Fees may become due if any limits (such as Transactions, number of users, or assets) are exceeded. Any amount not paid when due will accrue interest at a rate of the lesser of 1.5% per month or the highest rate allowed by law.
3.2 All Fees payable by Customer under the Agreement are nonrefundable and exclusive of applicable taxes and duties, including sales tax and VAT and any income taxes calculated on HERE's net income, for which HERE is solely responsible. If Customer is required by law to withhold taxes based upon HERE’s revenue, Customer may deduct such tax from the Fees payable to HERE and remit them to the appropriate government authorities provided that: (i) Customer may only deduct such tax to the extent that the revenue pertains to Fees paid by Customer to HERE; (ii) such deduction is in accordance with the valid tax treaty rates between the countries where the Parties reside; and (iii) Customer shall promptly send HERE a certificate showing the payment of such tax. Customer shall notify HERE of any deduction or withholding required by law.
Either Party may terminate the Agreement and/or Supplement(s) by written notice (i) due to an uncured material breach after thirty (30) days written notice, or immediately if such material breach cannot be remedied, or (ii) bankruptcy, insolvency or assignment for the benefit of creditors. Within thirty (30) days following termination or expiration of the Agreement, Customer will (a) discontinue use and distribution of all Licensed Materials and HERE Marks; and (b) return, remove or destroy (with certification) the Licensed Materials.
5 CHANGES TO LICENSED MATERIALS
5.1 HERE will inform Customer of changes to Documentation when HERE publishes updated copies. HERE may change or discontinue any of the beta, evaluation or demonstration uses of Licensed Materials at any time by informing Customer.
5.2 Subject to the time periods specified in the relevant Addendum or Supplement (except where a faster response is required to mitigate an emergency or threat to HERE’s operations, to comply with applicable laws, to respond to requests or demands of a government or regulatory entity or concerning third party privacy or intellectual property rights), HERE may change, discontinue, limit or remove functionality of certain Licensed Materials at any time. HERE will work in good faith with Customer to mitigate any material disruption to the Licensed Materials resulting from changes made pursuant to this clause 5.2.
6 USE OF MARKS
6.1 HERE Marks. Customer shall publish HERE’s Marks adjacent to Data or Results, in accordance with HERE brand guidance located at https://brandlive.here.com/. Customer may not remove any trademark symbols (®, ™ & etc.) affixed to or included in Data or Results delivered through Licensed Materials. Customer must indicate that HERE is the owner of HERE Marks. All goodwill from the use of HERE Marks inures to HERE.
6.2 Customer Marks. HERE may reproduce and publish in any media Customer’s brand/logo in accordance with Customer’s brand guidance to indicate Customer is a user of Licensed Materials, but may not remove any trademark symbols (®, ™ & etc.). HERE will not falsely imply any endorsement of HERE or that HERE is the owner of the Customer Marks. All goodwill from the use of Customer Marks shall inure to Customer.
7 INTELLECTUAL PROPERTY RIGHTS
Except as explicitly granted in clause 1.2, no other rights or licenses, express or implied, are granted under the Agreement, including any technologies that may be necessary for the use or enablement of the Licensed Materials by Customer. No ownership of any Intellectual Property Rights relating to the Licensed Materials, HERE Marks or any other product, service, information or material provided by HERE to Customer is assigned or transferred to Customer. The structure, organization, and code of the Licensed Materials and the products and services provided by HERE are the valuable trade secrets and Confidential Information of HERE, its licensors and/or Affiliates.
8 WARRANTIES; EXCLUSION OF WARRANTIES
8.1 Each Party represents and warrants to the other that: (i) it is duly organized and in good standing under the laws of the jurisdiction of its organization; (ii) it has all corporate authority to execute and perform the Agreement; (iii) its execution of the Agreement will not conflict with or violate any other agreement to which such Party is a party; and (iv) it is not a party identified on any governmental or export exclusion lists.
8.2 EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT OR AN ADDENDUM, THE LICENSED MATERIALS AND ANY HERE PRODUCTS AND HERE SERVICES ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS WITH ALL DEFECTS. HERE, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY THAT THE LICENSED MATERIALS OR SERVICE WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. HERE, ITS AFFILIATES AND THEIR LICENSORS SPECIFICALLY DISCLAIM, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE LICENSED MATERIALS OR SERVICE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY IMPLIED WARRANTIES ARISING FROM LAW, COURSE OF DEALING, PERFORMANCE OR OTHERWISE.
9.1 Each Party (“Indemnitor”) agrees to defend, indemnify and hold harmless the other Party and its Affiliates, contractors and suppliers (each, an “Indemnitee”) from and against all third party claims and all liabilities, assessments, losses, costs or damages resulting from or arising out of Indemnitor’s infringement or violation of any Intellectual Property Rights by paying the amounts Indemnitee is obligated to pay to the third party in accordance with a final judgment or settlement of the claims.
9.2 The indemnification obligations of the Parties specified above are subject to the following conditions: Indemnitee must (i) promptly notify the Indemnitor in writing; (ii) give the Indemnitor control over the defense of such claims; (iii) reasonably cooperate in the defense at Indemnitor’s expense, and (iv) not enter into any settlement and/or to acknowledge any liability without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld. Notwithstanding subsection (ii), Indemnitee may, at its own expense, select its own counsel to independently monitor and participate in any such defense.
9.3 If HERE determines action is needed to avoid potential infringement, HERE may, at its expense: (i) procure for Customer the continued right to the Licensed Materials; (ii) replace or modify the Licensed Materials, in whole or in part with functionally equivalent Licensed Materials, or (iii) request Customer to discontinue use of the Licensed Materials, in whole or in part, subject to a refund by HERE of the pro-rated amount of the Fees for the discontinued Licensed Materials received by HERE from Customer under the relevant Supplement.
9.4 HERE shall have no liability or obligations under this clause 9 if the claim, judgment or settlement is based on (i) any use or combination of the Licensed Materials with software, services, technologies or other material provided by or on behalf of Customer by a party other than HERE; (ii) any unauthorized modification of the Licensed Materials, or modifications done by HERE pursuant to a Customer specification; (iii) Customer continuing any allegedly infringing activity after being notified of any such allegedly infringing activity or after being informed of or provided with replacement Licensed Materials that would have avoided the alleged infringement; (iv) Customer’s breach of the license restrictions and rights granted under the Agreement; (v) the Application except where the claim is based wholly on the Licensed Materials; or (vi) any dispute between Customer and one of its subcontractors or sublicensees.
9.5 Notwithstanding anything to the contrary in the Agreement, this clause 9 shall be the sole and exclusive remedy for Customer by HERE regarding third party Intellectual Property Rights infringement claims.
10 LIMITATION OF LIABILITY
10.1 Except in cases of intentional misconduct, gross negligence, breach of confidentiality or breach of the scope of the licenses granted herein: Neither Party shall be liable to each other for any loss of profit, goodwill or any indirect, special, consequential, incidental or punitive damages or expense of any kind, howsoever arising under the Agreement.
10.2 Customer understands that HERE is not responsible for and will have no liability for hardware, software, technology, or other items or any services not provided by HERE.
10.3 Except in cases of intentional misconduct, gross negligence, breach of confidentiality or breach of the scope of the licenses granted herein: For any and all claims brought under the Agreement, regardless of the nature of the claim or the basis on which the claim is made (including, but not limited to, breach, negligence, misrepresentation, indemnification or other contract, tort or statutory claim), the aggregate, cumulative and total liability of HERE, its employees, licensors and Affiliates will in no event exceed the amount of any actual direct damages up to twice (2x) the Fees paid by Customer under the Supplement from which the claim arises.
11 GENERAL AUDIT
Customer will keep records which are reasonably necessary, in good faith, to verify the Fees and scope of use and distribution of Licensed Materials (“Records”). HERE may inspect records to verify Customer’s compliance with the Agreement, including but not limited to Fees, on Customer’s premises, without causing unreasonable disruption, 30 days following receipt of written notice. Any inspection will occur within three (3) years following the due date of the applicable Fee and will be at HERE’s expense, except if the inspection shows any underpayment for the period of 5% or more, then Customer will also reimburse the costs of the audit. Customer shall pay the underpayment plus interest and other sums owed within 30 days of the completion of the inspection.
The exchange of Confidential Information shall be governed by the nondisclosure agreement between the Parties.
13 ERROR REPORTING AND FEEDBACK
If Customer provides any information concerning errors, problems, complaints, or requests new features related to the Licensed Materials, Customer grants HERE and HERE’s Affiliates a nonexclusive, transferable, irrevocable, free-of-charge, sublicensable and perpetual right to use that information in any manner and for any purpose.
14.1 Notices. All legal or default notices or notifications must be written, delivered by hand or overnight/express mail addressed at the address of the Party set forth in the beginning of the Agreement. Such notices shall be effective upon receipt.
14.2 Export Control. Customer agrees to comply with all applicable export control and sanctions laws and regulations of the United States of America, of member States of the European Union, and any other relevant country (“Export Control Laws”). Customer will not violate, and will not cause HERE to violate, any Export Control Laws (e.g., by shipping or supplying goods or services to or from sanctioned countries). Licenses or other authorizations required for the export of Customer’s goods or services will be the responsibility of Customer.
14.3 U.S. Bankruptcy Act. All licenses granted under this Agreement are deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of right to "intellectual property" as defined in Section 101 of such Code.
14.4 Assignment. A Party may assign the Agreement to an Affiliate, or any entity that acquires substantially all its operations, stock, or assets and agrees in writing to be bound by this Agreement, excluding assignments by Customer to a competitor of HERE. Any other transfer or assignment is not permitted except with written consent of the non-assigning Party.
14.5 Severability. If any provision of the Agreement is held to be unenforceable, the remaining provisions shall be unaffected and enforceable as thought the unenforceable provision had not been included.
14.6 Waiver. No waiver will be effective unless set forth in writing and signed by the Party charged with such waiver, and no waiver of any right arising from any breach will be deemed to be a waiver or authorization of any other breach or of any other right arising under the Agreement.
14.7 Force Majeure. Excluding payment, confidentiality and indemnification obligations, neither Party shall be liable to the other for a failure to perform any of its obligations under the Agreement, due to circumstances beyond its reasonable control, provided such Party notifies the other of the delay.
14.8 Relationship of Parties. No third-party beneficiaries are intended. Each Party is an independent contractor. Neither Party has any authority to bind or commit the other. There is no joint venture, partnership or agency relationship between the Parties for any purpose.
14.9 Governing Law. The Agreement shall be construed and governed by the substantive laws of the Netherlands if HERE Europe B.V. is the signatory; and by the substantive laws of the State of Illinois, USA, if HERE North America LLC is the signatory, without giving effect to any conflict of law provisions. The United Nations Convention of Contracts for the International Sale of Goods is not applicable to the Agreement.
14.10 Dispute Resolution. Any dispute between the Parties as to matters covered by the Agreement, or the validity, enforceability or interpretation thereof such dispute shall be submitted to the competent court in Amsterdam, the Netherlands, if HERE Europe B.V. is the sole signatory; otherwise to the competent court in the State of Illinois, USA, without prejudice to Parties’ right to appeal or cassation. Either Party may seek immediate injunctive relief in any court of competent jurisdiction.
14.11 Entire Agreement. The Agreement, Addenda, Supplements, the HERE Policies, and any other documents expressly referred to herein, together constitute the entire agreement between the Parties regarding the subject matter hereof. The Agreement supersedes all prior oral or written communications, representations, undertakings and agreements of the Parties relating to the subject matter of the Agreement. The Agreement may be modified only by a written amendment duly executed by the Parties. The Agreement may be signed in duplicate originals, or in separate counterparts, which are effective as if the Parties signed a single original. Facsimile or scanned signature transmitted by one Party to the other Party are effective as if the original was transmitted.
14.12 Survival. Sections 1.7, 3, 7 - 10, and 13 - 15 survive expiration or termination of the Agreement for any cause or without cause. The same applies to any provisions in a Supplement or other referenced document which reasonably should survive. Section 11 shall survive for a period of three (3) years as specified therein.
15.1 Affiliate means (i) with respect to HERE, HERE International B.V. and any entity that directly or indirectly is Controlled by HERE International B.V. and (ii) with respect to Customer, any entity that directly or indirectly (a) is Controlled by Customer; (b) Controls Customer; or (c) is under common Control with Customer; (iii) “Control” means a situation in which an entity (the “Controlling” entity), in relation to another entity (the “Controlled” entity), (a) has fifty percent (50%) or more of votes in such entity, (b) is able to direct its affairs and/or (c) controls the composition of its board of directors or equivalent body.
15.2 Application has the meaning given to it in Section 1.2.1 above.
15.3 Confidential Information means this Agreement, Licensed Materials, and all business, technical, financial and other information that is not publicly available and that a Party receives from the other Party.
15.4 Data means the Base Map Data and Additional Content set forth in the Supplement.
15.5 End User means any entity or person who (i) receives or uses an Application, or (i) accesses all or any portion of Data for personal use in an Application with no right to sublicense the same.
15.7 Intellectual Property Rights means any and all rights existing from time to time under patent law, copyright law, trademark law, whether registered or unregistered, and any and all other similar proprietary rights, as well as any and all applications, renewals, extensions, divisionals, continuations, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
15.8 Internal Business Use means that the Application may be used by employees, contractors and agents of a business (and for the benefit of that business) to which the Application is licensed and specifically excludes use by consumers and the general public.
15.9 Licensed Materials means the Data, software development kits (“SDKs”) and/or APIs, and any associated documentation or other materials, provided by HERE as specified in each Supplement hereto.
15.10 Marks means trademarks, logos, service marks, trade names and similar designations.
15.11 Mainland China means the area of People’s Republic of China excluding Hong Kong, Macau and Taiwan.
15.12 Other HERE Materials means software, data, location or other content that HERE generally makes commercially available for use by its customers and that HERE has not already licensed to Customer for commercial use, subject to HERE’s additional evaluation terms and conditions (if any).
15.13 Permitted Use Case means any of the use cases for which the Licensed Materials may be used and so designated, selected or described in a Supplement or Addendum.
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