General Terms and Conditions (Marketplace Supply/EU)
These General Terms and Conditions (Marketplace Supply /EU) are between HERE (as defined below) and the Partner that has executed the HERE Mobility Order Form (Marketplace Supply /EU) that incorporates these General Terms and Conditions (Marketplace Supply EU) by reference. These General Terms and Conditions (Marketplace Supply/EU) are made a part of the HERE Mobility Order Form (Marketplace Supply/EU) and are incorporated by reference therein. Any capitalized terms used but not defined herein shall have the meanings set forth in the HERE Mobility Order Form (Marketplace Supply/EU). All references to the term Agreement in these General Terms and Conditions (Marketplace Supply/EU) shall have the meaning set forth in the HERE Mobility Order Form (Marketplace Supply/EU).
1. DEFINITIONS
1.1. “Access Package” means the HERE credentials, access keys, documentations and any other libraries or code examples that HERE may make available to Partner for the purpose of accessing the Mobility Supply API.
1.2 “Affiliate” means: (a) with respect to HERE, HERE International B.V., and any other entity that directly or indirectly is Controlled by HERE International B.V.; and (b) with respect to Partner, any entity that directly or indirectly: (i) is controlled by Partner; (ii) controls Partner; or (iii) is under common control with Partner. An entity is “Controlled” by another if that other entity has 50% or more of votes in such entity, is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
1.3. “Consumer” means an individual who consumes (or wishes to consume) Mobility Services from Partner.
1.4. “Consumer Data” means all information, data and records of, applicable to and/or relating to Consumer(s) available and/or provided to Partner as part of the Mobility Products, including without limitation and as applicable, names, phone numbers, location information, and any other information related thereto.
1.5. “Data” means, collectively, all User Data and Consumer Data collected by using and/or available as part of the Mobility Marketplace or otherwise in connection thereto, as applicable, and/or any data relating to a User, a Consumer and/or the Mobility Services.
1.6. “Fees" has the meaning given to it under Section 4.1
1.7. “Forbidden Usage” means any of the following activities: (a) hacking the Mobility Products or any part thereof; (b) using any content that may include, link to, or distribute any viruses, spam, files, code malware or any other malicious software programs, technology or content that may harm or disrupt the operation of the Mobility Products or any other HERE product or service; (c) engaging in or encouraging any activity or use of content that violates any applicable law, rule or regulation, including without limitation, privacy laws and regulations; (d) installation of any applicable Mobility Products that are generated without informed and active consent; (e) use, endorsement, or promotion of content which is pornographic, obscene, excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, libelous, gambling-related, or discriminatory, offensive, misleading or deceptive, or encourages or facilitates violence, terrorism, or illegal activity, including activities that risk national security; (f) including or using the Mobility Products in, or in connection with, any application, website or other product or service that includes content that is disparaging of HERE, libelous or may otherwise be perceived as detrimental or harmful to HERE and its business and reputation, in HERE’s sole discretion; (g) scraping, harvesting, or extracting data from the Mobility Products (to the extent applicable); or (h) using the Mobility Products for any purpose which or might overburden, impair or disrupt the Mobility Products or related servers or networks.
1.8. "Gross Revenue" means the gross revenue generated and received by Partner from Mobility Services, including without limitation, tips, tolls and any other charges received by the Partner in connection with its provision of the Mobility Services.
1.9. “HERE” means HERE International, B.V., and all of its Affiliates.
1.10. “HERE Website(s)” means any website owned and/or operated by HERE, in whole or in part, including without limitation, any website that includes a login or account creation mechanism and enables Partner to access and view reports and analysis regarding its use of the applicable Mobility Product(s).
1.11. “Intellectual Property Rights” means all of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) Marks, corporate names, and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data, data compilations and databases (whether or not copyrightable); (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case, whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and any and all other similar or equivalent proprietary rights, forms of protection provided by applicable law in any jurisdiction throughout the world now or hereafter in force and effect worldwide.
1.12. "License Fees" means the license fees set forth in the HERE Mobility Order Form (Marketplace Supply/EU).
1.13. “Marks” means trademarks, service marks, trade names, brands, logos and other distinctive identification and/or proprietary indicia.
1.14. “Mobility Marketplace” means HERE’s proprietary open mobility marketplace and any applicable Premium Features that may be available thereto, which enables individuals or any other third parties to consume transportation and/or rental services (as applicable) provided by other third parties (such as Partner), as is operated by HERE and made available by or on behalf of HERE.
1.15. "Mobility Marketplace Supply Verticals” means the Mobility Marketplace verticals that Partner may use to make the Mobility Services available to Customers, which include the Taxi and Private Hire Vertical and the Rental Vertical.
1.16. “Mobility Products” means the Mobility Marketplace, HERE Website(s) and all the technology, information, data, content, products, tools, mobile applications, software and/or APIs, and any associated documentation or materials that are from time to time operated, provided or made available by or on behalf of HERE under or in connection with this Agreement, including without limitation, any data that is available in the Mobility Marketplace that is made available and used by Partner or a User and all elements, programming, source art, graphics, images and metadata, together with any associated HERE Marks, Third Party Software, look and feel of the Mobility Marketplace, or HERE Website(s), any content and technology on or offered through the Mobility Marketplace, or HERE Website(s), and all Intellectual Property Rights in any of the foregoing, including all derivatives thereof conceived or developed by or on behalf of HERE. For the avoidance of doubt, Mobility Products shall not include the Partner Materials or any part thereof.
1.17. “Mobility Services” means the transportation and/or rental services provided by Partner to Consumers through or by using any Mobility Product(s), including without limitation and with respect to rental services, the rental of any accessories to Consumers and/or any other related services that may be rented, leased and/or used by Consumers and provided by Partner in connection thereof.
1.18 “Mobility Supply API” means the HERE mobility application programming interface, software developer kit, documentation, and any software, materials or data that HERE makes available to Partner for the purpose of integrating the Partner Materials with the Mobility Marketplace, in HERE’s sole discretion, including any access credentials and tools that may be provided by HERE to Partner from time to time.
1.19 “Open Source Software” means: (a) any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software (e.g., under the GNU General Public License, GNU Lesser General Public License, Apache Software License, Creative Commons license, Mozilla license, BSD-style license), or pursuant to similar licensing and distribution models; and (b) any software that requires as a condition of use, modification, or distribution of such software that such software or other software incorporated into, derived from, or distributed with such software: (i) be disclosed or distributed in source code form; (ii) be licensed for the purpose of making derivative works; or (iii) be redistributable at no or minimal charge.
1.20. “Partner Materials” means any software, hardware, technology, content, information and materials provided by Partner to HERE in accordance with this Agreement or integrated by Partner with the Mobility Product(s) in connection with any Integration Services (as defined below) or otherwise, including any applicable Intellectual Property Rights and any derivatives thereof.
1.21. “Premium Features” means features and/or tools that are not generally made available by HERE to third parties as part of the Mobility Marketplace.
1.22 "Processing Fees" means any third party processing, banking or other charges, costs and expenses incurred by or imposed on HERE in relation to such payment, if applicable, will be included in the Fees in the aggregate amount of up to 5% of the Gross Revenue.
1.23. “User” means a representative of Partner, which may be it’s employee, subcontractor, or otherwise, who accesses and/or uses the Mobility Products on Partner's behalf, and if applicable, accesses, uses and/or manages the Partner’s Account (as defined below).
1.24. “User Data” means all information, data and records of, applicable to and/or relating to Users available to and/or provided by Partner as part of the Mobility Products, including without limitation and as applicable, names, email addresses, phone numbers, account information such as username and password, usage statistics, and all communications, transactions and all other information associated with each User’s access to and/or use of the Mobility Products.
1.25. “Rental Vertical” means the Mobility Marketplace Vertical for third party providers of rental services that allows such third party providers to offer applicable Mobility Services to Consumers.
1.26. "Service Charge" means the payment made by the Consumer to the Partner with respect to the Consumer’s use of the Mobility Services.
1.27. “Taxi and Private Hire Vertical” means the Mobility Marketplace Vertical for third party providers of taxi and/or private hire transportation services that allows such third party providers to offer applicable Mobility Services to Consumers.
1.28. “Third-Party Software” means any content and software or other technology that is owned by a third party and licensed or otherwise provided to a party herein.
2. MOBILITY PRODUCTS
2.1 Subject to the terms and conditions contained herein, HERE shall provide Partner with access to the applicable Mobility Marketplace Verticals that Partner elected to use.
2.2 HERE shall provide Partner with access to the Mobility Marketplace Verticals in one of the following manners: (i) if Partner chooses to receive the access to the Mobility Marketplace by connecting to the Mobility Supply API, then HERE shall provide Partner with the Access Package; and (ii) if Partner chooses to receive the access to the Mobility Marketplace by providing HERE with access credentials to the Partner’s third party dispatch system or any other system that Partner uses to provide transportation and/or rental services to consumers, then Partner shall provide such access credentials to HERE.
2.3 The parties shall agree on: (i) the date on which the licensed Mobility Product(s) shall be made available to the public (“Launch Date”); and (ii) the scope of any integration of the licensed Mobility Product(s) with the Partner Materials that may be required including and if relevant, any fee payable to HERE for such additional work ("Integration Services").
2.4 Upon its availability during the Term, Partner shall have access to an online account made available on a HERE Website (“Account”) via which Partner will be able to view reports and analysis regarding the Mobility Product(s). Partner is responsible for safeguarding and maintaining the confidentiality of the Account and all information provided therein, including without limitation, its username and password. Without limiting any other terms of the Agreement, if Partner does not access its Account for a consecutive period of six (6) months or more, HERE may disable the Account or suspend access to it without notice. HERE retains the exclusive right at its sole discretion and at any time to: (i) determine the features, services, products, software or other tools available to Partner as part of the Account; (ii) add, modify or remove any materials and/or functionality made available in the Account; and (iii) change the settings and/or appearance of the Account or any elements thereof. HERE reserves the right to upgrade and update the Mobility Products including without limitation, the Account, at its sole discretion. Should such upgrade or update be material, HERE shall provide Partner with written notice thereof.
2.5 Partner authorises HERE to act as Partner's agent to conclude the contract between Partner and the Consumer for the provision of the Mobility Services by Partner to the Consumer, and to receive on Partner's behalf the Service Charge from the Consumer (if applicable). Use of the Mobility Marketplace by Partner shall be conditional upon Partner providing such Partner Materials as HERE may require in order to set up and operate Mobility Marketplace including the payment facility referred to above, other provisions of these General Terms and Conditions (Marketplace Supply/EU) and any policy or manual issued by HERE in relation to the Mobility Products.
2.6 Partner shall be the party to the contract with the Consumer for the provision of the Mobility Services by Partner to the Consumer. HERE shall not, under any circumstances, be a party to the contract between the Partner and the Consumer for the provision of the Mobility Services by Partner to the Consumer.
2.7 Partner will not charge additional fee or service charge on top of any Service Charge (if applicable) in any way without HERE’s prior written consent. Partner may not, and may not encourage or allow any third party to interfere with, hinder, limit, or modify any applicable fare amount, applicable fare multiple or any associated fees.
2.8 HERE reserves the right, at its sole discretion, to modify, improve and/or discontinue, temporarily or permanently, any part of the Mobility Products at any time with or without notice to Partner. Partner acknowledges and agrees that HERE has no obligation to ensure that any upgrade of the Mobility Products will be compatible with existing or planned Partner Materials.
2.9 The Mobility Products are subject to certain limitations on access, data requests, and use as set forth on the Mobility Products documentation. Partner hereby agrees to only use the Mobility Products in accordance with their applicable documentation and any limitations set forth therein. If HERE believes that Partner has attempted to exceed or circumvent these limitations, Partner’s use to and/or access to the applicable Mobility Products may be temporarily or permanently blocked.
2.10 Partner may not, and may not encourage or allow any third party to interfere with, hinder, limit, or modify any notices or authorization or consent requests provided by HERE. HERE may use the information collected from the Mobility Products for the following general purposes: to customize and improve the Mobility Products; to prevent potentially prohibited or illegal activities; to enforce its legal rights; and as otherwise contemplated under Section 5 below.
2.11 Upon reasonable notice to Partner, HERE may audit and inspect Partner’s use of the Mobility Products and its compliance with this Agreement, including but not limited to Partner’s practices and procedures relating to the delivery, quality, security, and operational aspects of the Mobility Products. Upon request by HERE, Partner will give HERE access to its facilities, offices, and any information required by HERE to evaluate the provision of the Mobility Products. Notwithstanding any right that HERE has under this Agreement, Partner agrees to correct any deficiencies found during an audit at its expense.
3. GRANT OF LICENSE
3.1 Subject to and conditioned on Partner’s payment of all the Fees and compliance with the terms and conditions of this Agreement by Partner and its Users, HERE hereby grants to Partner a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, revocable license during the Term to access and use the Mobility Products identified on the HERE Mobility Order Form (Marketplace Supply/EU) (including such additional Mobility Products that are necessary to access or use the Mobility Products identified on the HERE Mobility Order Form (Marketplace Supply/EU)) and the associated Data to the extent permitted hereunder. All rights that are not expressly granted herein are reserved by HERE. The Mobility Products, the HERE Marks and all other Intellectual Property Rights in the Mobility Products, and any license rights, applications and registrations therefor, are reserved by HERE and its respective third party licensees and licensors. Partner may not make any use of the Mobility Products, in whole or in part, not expressly permitted hereunder. Partner will not attempt to interfere with or disrupt the Mobility Products or attempt to gain access to any systems or networks that connect thereto except as expressly permitted herein.
3.2 Except as expressly specified in this Agreement, Partner will not, directly or indirectly: (a) use, copy, create derivative works of or modify the Mobility Products or any part thereof; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Mobility Products to any other person or entity; (c) use the Mobility Products in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement or any applicable law; (d) integrate or combine the Mobility Products, in whole or in part, with any other service, software or hardware not delivered or pre-approved in writing by HERE under this Agreement; (e) change, edit, add to, copy or extract content and/or Data from or produce summaries of the Mobility Products or any content on any HERE Website other than as expressly provided herein; (f) use or display the Mobility Products in a way that, in HERE's sole opinion, would constitute a Forbidden Usage; (g) use the Mobility Products in any manner that is competitive to HERE or the Mobility Products, including, without limitation, in connection with any application, website or other product or service that also includes, features, endorses, or otherwise supports in any way a third party that provides services competitive to the HERE products and services (including without limitation, the Mobility Products), as determined in HERE’s sole discretion; and (h) charge Consumers in any manner for access to or use of the Mobility Products or functionality included in or related to the Mobility Products. Without limiting the foregoing, Partner may not sell, rent, lease, sublicense, redistribute or syndicate access to the Mobility Products, and without HERE's prior written consent, Partner may not charge any kind of service, booking or similar fee in connection with any services made available via the Mobility Products.
3.3 Partner further agrees not to disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the Mobility Products or any part thereof, or permit or authorize any other person or entity to do so. HERE reserves the right, at its sole discretion, to immediately terminate or suspend Partner’s access to the Mobility Products in the event that: (i) HERE believes that there has been fraudulent or otherwise illegal use, misuse or abuse of the Mobility Products; (ii) HERE believes that Partner provided false, inaccurate or misleading information; or (iii) Partner fails to make payments that are due and payable pursuant to this Agreement in a timely manner.
3.4 Subject to the terms and conditions of this Agreement, Partner hereby grants to HERE a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable license during the Term to access, use and distribute the Partner Materials and the User Data solely as part of the integration and use of the Mobility Products and the Partner Materials to the extent permitted herein. All rights that are not expressly granted herein are reserved by Partner. HERE may not make any use of the Partner Materials, in whole or in part, not expressly permitted hereunder. HERE will not attempt to interfere with or disrupt the Partner Materials or attempt to gain access to any systems or networks that connect thereto, except as expressly permitted herein.
4. PAYMENTS
4.1 Partner agrees to pay HERE, when due, the License Fees applicable to the Licensed Mobility Product(s) and all other amounts payable by the Partner under or in connection with the license granted to it (whether under these General Terms and Conditions or otherwise) as specified on each invoice or payment instruction received from HERE, including any Processing Fees (if applicable) (“Fees”). If Partner uses any Premium Features, additional license fees may apply, as agreed by the parties in writing. Partner shall be liable for all taxes, duties and governmental charges arising hereunder, except for taxes on HERE's net income. Value added and similar taxes, if applicable, shall be applied and added to the Fee and reimbursement of expenses in accordance with applicable law, and HERE shall not be held liable for any such taxes, all of which shall (insofar as applicable) be borne by Partner. Partner agrees that no withholding taxes shall be applied to the Fees hereunder, and that insofar as any such taxes must be applied under applicable law, Partner shall gross up such taxes such that HERE shall receive a net amount equal to the amount HERE would have received had no such tax applied.
4.2 HERE shall invoice the Fees to Partner on a monthly basis or give relevant payment instructions to Partner. All payments are due thirty (30) days (or earlier to the extent required under applicable law) after the end of the month with respect to which Fees are attributable subject to receipt of an invoice by Partner (when applicable) or the relevant payment instructions.
4.3 Partner hereby authorises HERE to deduct from the Service Charge received by HERE from each Consumer, the amount corresponding to any Fees due to HERE from the Partner, by way of a set-off against the Fees.
4.4 All Fees shall be paid in the currency set forth in the HERE Mobility Order Form (Marketplace Supply/EU).
5. DATA
The applicable terms and conditions regarding the roles and obligations of Partner and HERE with respect to the collection and processing of Data are set forth in the Annex applicable to the Mobility Marketplace Vertical utilized by Partner (as applicable, the Taxi and Private Hire Vertical or the Rental Vertical).
6. REPORTS/AUDIT
6.1 Partner shall provide HERE with a written report on or before the 10th day of each calendar month during the Term, by emails to: licensefeereports@here.comand mobilityfees@here.com. The details of the reports are set forth in the Annex applicable to the Mobility Marketplace Vertical utilized by Partner (as applicable, the Taxi and Private Hire Vertical or the Rental Vertical) (“Partner Reports”).
6.2 During the Term and for a period of one (1) year thereafter, Partner shall maintain accurate and complete records sufficient to verify the accuracy of payments made hereunder including, without limitation, the information contained in each Partner Report. HERE, at its expense and no more than twice per calendar year (unless required by law or a regulatory agency with jurisdiction over HERE), shall be entitled to retain a reputable, independent certified public accounting firm (“Auditor”) solely for the purpose of examining and auditing such records for such purpose, at a mutually agreed upon time during normal business hours. HERE shall limit any such audit to only those records of Partner that are reasonably necessary to audit the Partner for the purposes set forth in this Section 6. Prior to an audit, Partner may require the Auditor to sign a confidentiality agreement reasonably acceptable to it. The results of the audit and all information reviewed during such audit shall be deemed Partner’s Confidential Information. Such audit shall be conducted in accordance with generally accepted auditing standards. In the event any such audit reveals an error by Partner in the Partner Reports of more than five percent (5%) for the period reviewed, then: (i) in the event of an overpayment, HERE shall reimburse Partner for such overpayment; and (ii) in the event of an underpayment, Partner shall pay HERE for such underpayment and shall also reimburse HERE for HERE’s actual and reasonable out of pocket costs for such audit. Each audit shall cover the prior twelve (12) months under the Agreement.
7. CONFIDENTIALITY
The Agreement and all business, technical, financial or otherwise proprietary information provided by one party to the other shall be treated as confidential information (“Confidential Information”). The party receiving Confidential Information shall not disclose it to any third party, excluding the receiving party’s employees, or its Affiliates’ employees, and then only on a need-to-know basis and only if such employees are bound by written confidentiality obligations at least as restrictive as those contained herein. The party receiving Confidential Information shall keep it confidential using the same degree of care used to protect its own confidential information, and in no event less than a reasonable degree of care. Upon termination of the Agreement or upon request of disclosing party, the party receiving Confidential Information will return or destroy (and certify such destruction) all of the disclosing party’s Confidential Information, including all documents and media containing such Confidential Information, and all copies or extracts thereof. The receiving party shall not have any duty to maintain in confidence any information that: (a) is publicly available without restriction through no fault of the receiving party or its employees, Affiliates or agents; (b) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information, as evidenced by written documentation; (c) was rightfully in the possession of the receiving party without restriction prior to its disclosure by disclosing party, as evidenced by written documentation; or (d) was independently developed by receiving party’s employees or consultants without access to the disclosing party’s Confidential Information, as evidenced by written documentation. Notwithstanding the foregoing, the receiving party may disclose Confidential Information if required by law, or by order of a court of competent jurisdiction, provided that (to the extent permitted by law) the receiving party provides to the disclosing party prompt written notice of such requirement sufficient to allow the disclosing party to seek a protective order. If such order is not given, the receiving party shall only disclose that portion of the disclosing party’s Confidential Information that its counsel advises is legally required to be disclosed. Unless otherwise specified in the Agreement, HERE may, and Partner hereby grants to HERE the limited, non-exclusive, royalty-free and fully-paid up, non-transferable (except in connection with Section 13.6 of these General Terms and Conditions (Marketplace Supply/EU)) right and license to, refer to Partner as one of HERE’s customers and use Partner’s logo as part of such reference, provided that HERE complies with any trademark usage requirements notified to it by Partner. All media releases, public announcements and public disclosures relating to the terms or existence of this Agreement must be approved by the other party prior to their release. The duty to protect Confidential Information shall expire three (3) years from the date of termination of this Agreement.
8. INTELLECTUAL PROPERTY
By virtue of the Agreement, no ownership of any Intellectual Property Rights relating to the Mobility Products or any other product, service, information or material provided by HERE to Partner is assigned or transferred to Partner. The structure, organization, and code of the Mobility Products and the products and services provided by HERE are the valuable trade secrets and Confidential Information of HERE and/or its licensors. Except as explicitly granted under this Agreement, HERE and/or its licensors, retain all right, title and interest in and to the Mobility Products, and any derivatives thereof, including any Intellectual Property Rights therein (collectively, “HERE Property”), and no other right, license, release, covenant not to sue or other rights or immunities, express or implied, by estoppel, or otherwise, are granted to any part of the Mobility Products or any other product, service, information or material provided by HERE. All use of the HERE Property shall inure to the benefit of HERE, and Partner shall not: (i) contest, or assist others to contest, HERE’s rights or interests in and to the HERE Property or the validity of HERE’s rights in and to the HERE Property and all applications, registrations or other legally recognized interests therein, or (ii) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to the HERE Property. All rights in the HERE Property that are not expressly granted herein are reserved by HERE and/or its licensors.
9. REPRESENTATIONS AND WARRANTIES
9.1 Each party hereby represents and warrants to the other that: (i) it is a legal entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (ii) it has all requisite power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement; (iii) the execution and delivery of this Agreement will not conflict with or violate any other agreement to which such party is a party; (iv) it is not a party identified on any governmental export exclusion lists; and (v) it will implement, maintain and comply with all applicable data privacy and security measures in connection with its collection, processing, transfer and use of personal data, if any, under this Agreement or as required by applicable law.
9.2 Partner represents and warrants that it shall: (i) have all necessary rights, title and interest in the Partner Materials, including without limitation, all Intellectual Property Rights, to grant the license and other rights under this Agreement; (ii) comply with all laws and regulations with respect to the Partner Materials, its provision of the Mobility Services, and its and the Users' access and use of the Mobility Products including without limitation, applicable data protection laws, rules or regulations; (iii) not violate, misappropriate, or infringe any Intellectual Property Rights, or other proprietary rights, rights of privacy, or rights of personality or any other right of any third party or of HERE; (iv) not engage in any Forbidden Usage; and (v) only use the Mobility Products for the purposes and in the manner expressly permitted by this Agreement.
9.3 EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, THE MOBILITY PRODUCTS (INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SOFTWARE AND/OR OPEN SOURCE SOFTWARE CONTAINED THEREIN), AND ANY OTHER SERVICE OR PRODUCT PROVIDED BY HERE ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS; HERE AND ITS LICENSORS MAKE NO WARRANTY THAT THE MOBILITY PRODUCTS OR DATA WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, OR THAT DEFECTS IN THE MOBILITY PRODUCTS OR DATA WILL BE CORRECTED. HERE AND ITS LICENSORS SPECIFICALLY DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE MOBILITY PRODUCTS (INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SOFTWARE AND/OR OPEN SOURCE SOFTWARE CONTAINED THEREIN) AND DATA, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE.
10. INDEMNIFICATION
10.1 Each party (“Indemnifying Party”) shall defend, indemnify and hold harmless the other party and/or its Affiliates, directors, officers, employees, agents, sub-contractors, successors and permitted assigns (collectively, “Indemnified Party”) from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses and/or liabilities of any kind, (including but not limited to reasonable attorneys’ fees) threatened, asserted or filed brought or made by any third party (collectively, “Claims”) against the Indemnified Party arising out of or resulting from a breach or alleged breach of any warranty, representation or obligation made by the Indemnifying Party under this Agreement.
10.2 In addition to Section 10.1 above, Partner shall defend, indemnify and hold harmless HERE and its Indemnified Parties from and against any Claims which any of them suffers or incurs in relation to any direct or indirect dispute, reversal, chargeback or debit of revenue or payment received by HERE from a Consumer, card or payment scheme or other third party because of the Gross Revenue being invalid, disputed, unauthorized (or there are grounds to believe it was not authorized), suspicious, the Mobility Services were not delivered at all or as agreed, or otherwise for any reason.
10.3 Where Section 10.1 or 10.2 applies, the Indemnified Party shall: (i) promptly notify the Indemnifying Party of the Claim; (ii) provide the Indemnifying Party, at the cost of the Indemnifying Party, with reasonable information, assistance and cooperation in defending the Claim; and (iii) give the Indemnifying Party full control and sole authority over the defense and settlement of the Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior approval (which approval shall not be unreasonably withheld or delayed). The Indemnified Party may join in the defense of the Claim with counsel of its choice at its own expense.
10.4 If the Mobility Products are found to infringe the Intellectual Property Rights of any third party and a final injunction is obtained in a competent court against HERE or Partner’s use of any of the Mobility Products or if in HERE’s opinion actions are needed to avoid potential infringement, HERE may, at its expense and option, replace or modify the affected Mobility Products in whole or in part, with substantially similar, functionally equivalent, non-infringing Mobility Products.
10.5 HERE shall have no liability and HERE’s foregoing obligations do not apply to the extent any claim, judgment or settlement is either partially or in whole based on: (i) any software or services provided to HERE by or on behalf of Partner; (ii) any modification of the Mobility Products or related services without HERE’s prior written authorization; (iii) a combination of the Mobility Products with any other material not supplied by HERE under the Agreement; (iv) any underlying or enabling technologies that are not wholly part of the Mobility Products`, including but not limited to operating systems, communication protocols, radio connectivity, positioning technologies (including but not limited to A-GPS), devices, hardware, user interfaces (including but not limited to touch screen based interaction) and which are used or incorporated by Partner in connection with the licenses granted herein, even if such underlying or enabling technologies are necessary for use of the Mobility Products; (v) Partner continuing any use of the Mobility Products after being notified of any allegedly infringing activity or after being informed of or provided with modifications that would have avoided the alleged infringement; or (vi) Partner’s use of the Mobility Products that is not strictly in accordance with the licenses granted under the Agreement.
10.6 HERE shall be entitled without prior notice to set-off the whole or any part of Partner's liabilities to HERE (whether such liabilities are present or future, actual or contingent, or liquidated or unliquidated) against any sums held by HERE for Partner from time to time including the Gross Revenue received on the Partner's behalf in accordance with Section 2.5.
10.7 Notwithstanding anything to the contrary in this Agreement, the remedies set forth in this Section 10 shall be the sole and exclusive remedy for Partner regarding third party Intellectual Property Rights infringement claims.
11. LIMITATION ON LIABILITY
11.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, ITS EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR WITH RESPECT TO HERE, THE USE OF, OR INABILITY TO USE, THE MOBILITY PRODUCTS OR DATA UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, TO CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT A PARTY HERETO WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
11.2 IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNTS RECEIVED BY HERE UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM IS MADE. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION 11 SHALL NOT LIMIT EITHER PARTY’S LIABILITY FOR BREACH OF ITS OBLIGATIONS IN SECTIONS 2, 3, 4.3, 6, 7, 8, 9 AND THE INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 10 OR FOR FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR WITH RESPECT TO PARTNER, THE FEES PAYABLE TO HERE.
11.3 THE PARTIES AGREE THAT WITH RESPECT TO ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ANY PART OF THIS AGREEMENT OR THE PRODUCTS OR SERVICES CONTEMPLATED HEREIN, UNLESS SUCH CAUSE OF ACTION COMMENCES WITHIN TWELVE (12) MONTHS AFTER SUCH CAUSE OF ACTION ACCRUES (OR THE SHORTEST PERIOD OF TIME OTHERWISE PERMITTED UNDER APPLICABLE LAW, WHICHEVER IS SHORTER), SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
12. TERMINATION
12.1 The term of this Agreement shall commence as of the Effective Date and shall continue in effect until terminated as provided herein. In addition to the termination rights set forth elsewhere in this Agreement, this Agreement may be terminated by either party: (i) for any reason and without liability, by providing the other party with 90 days’ prior written notice; or (ii) immediately: (a) if the other party breached any of its obligations, representations or warranties set forth in the Agreement and failed to cure such breach within 10 days from receipt of a written notice thereof; or (b) by written notice to the other party, if such party becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency, administration or receivership proceeding, or has any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed within 30 days of such filing, or has a trustee, administrator or receiver appointed for a material portion of its business or assets. A party that becomes subject to any of the events described in the foregoing sub-clause (b) shall immediately notify the other party in writing.
12.2 Upon the termination of this Agreement: (i) all rights and licenses granted herein shall terminate immediately and Partner shall cease all use of the Mobility Products; and (ii) each party shall promptly return to the other party or destroy and certify the destruction of all Confidential Information of, the other party. No termination will affect Partner’s obligation to pay all Fees that may have become due before such termination or entitle Partner to any refund.
12.3 All the provisions that by their nature need to survive termination of the Agreement, and any accrued rights related to payments shall survive such termination. The termination of this Agreement, in part or in whole, shall not limit either party from pursuing other remedies available to it, nor shall either party be relieved of its obligation to pay any fees that are due and owing under this Agreement through the effective date of termination, unless otherwise stated herein. Neither party shall be liable to the other for any damages resulting solely from termination as permitted herein.
13. MISCELLANEOUS
13.1 HERE may modify this Agreement at any time with or without notice to Partner; provided, however, that any modification that may have material impact on Partner, shall only be made subject to the parties’ mutual written consent.
13.2 Waiver of any right arising from any breach will not be deemed to be a waiver or authorization of any other breach or of any other right arising under this Agreement.
13.3 If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions hereof shall be unaffected thereby and remain valid and enforceable as if such provision had not been set forth herein. The parties agree to substitute for such provision a valid provision that most closely approximates the intent of such severed provision.
13.4 This Agreement shall be construed and governed by the substantive laws of the Netherlands. Regardless of the applicable law, no effect is given to conflict of law provisions. The United Nations Convention of Contracts for the International Sale of Goods shall not apply to the Agreement. If there is a 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, without prejudice to parties’ right to appeal. The provisions of this section shall not prevent either party from seeking immediate injunctive relief in any court of competent jurisdiction.
13.5 Partner acknowledges that Mobility Products and any services related to them may be subject to export control restrictions of various countries. Partner shall fully comply with all applicable export license restrictions and requirements as well as with all laws and regulations relating to the importation of Mobility Products or services related to them and shall procure all necessary governmental authorizations, including without limitation, all necessary licenses, approvals, permissions or consents, where necessary for the re-exportation.
13.6 The rights and obligations of each party under this Agreement may not be transferred or assigned directly or indirectly without the prior written consent of the other party, which consent will not be unreasonably withheld, except that HERE may assign this Agreement to a parent, subsidiary, or any other affiliates. For purposes of this Section, a change in control of Partner shall be regarded as an assignment. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto.
13.7 Any notice given by one party to the other party shall be deemed properly given if specifically acknowledged by the receiving party in writing or when delivered to the recipient by hand, fax or special courier during normal business hours to the addresses set forth at the beginning of this Agreement (or such other address as may be notified in writing from time to time by either party). Notices shall be deemed to be received on the first business day following receipt. Each communication and document made or delivered by one party to the other party pursuant to this Agreement shall be in the English language or accompanied by a translation thereof.
13.8 This Agreement is between HERE and Partner. No third party beneficiaries are intended. In connection with this Agreement each party is an independent contractor and as such does not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, partnership or agency relationship between the parties for any purpose.
13.9 Neither party shall be liable to the other for a failure to perform any of its obligations under this Agreement, except for payment obligations, due to circumstances beyond its reasonable control, provided such party notifies the other of the delay.
13.10 It is expressly agreed that a breach by a party of the applicable license granted in the Agreement, an infringement by a party of the Intellectual Property Rights of the other party, or a breach by a party of its confidentiality obligations set forth herein, may cause irreparable harm to the other party which harm cannot be adequately compensated for in damages. Therefore, in addition to any and all remedies available at law, the non-breaching party will be entitled to seek an interim injunction or other interim equitable remedies, in a court of competent jurisdiction, in the event of any threatened or actual breach or infringement of any or all of the above provisions.
13.11 Each party will comply with all applicable anti-corruption laws, including those that prohibit the promise, the payment, the authorization of, or the giving directly or indirectly of money or things of value to any person or entity for the purpose of inducing or rewarding any favourable action or inaction related to the Agreement or the parties' relationship hereunder. Each party will maintain written, complete, and accurate records for the duration of the Agreement relating to any payments such party make to third parties related to the Agreement or the parties' relationship under this Agreement. Each party will permit inspection of these records for the duration of this Agreement upon reasonable written notice from the other party.