GENERAL TERMS AND CONDITIONS (SHUTTLES DEMAND)
These General Terms and Conditions (Shuttles Demand) (“Terms”) set forth the terms and conditions in accordance with which HERE agrees to provide to Partner and Partner agrees to receive from HERE, the access and license to use Mobility Shuttles Solution. These Terms are an integral part of the Mobility Shuttles License Agreement (Demand) and are incorporated by reference therein. All references to the term Agreement in these Terms shall have the meaning set forth in the Mobility Shuttles License Agreement. Capitalized terms not defined herein, in the Data Protection Addendum (“DPA”) or otherwise in the Agreement, shall have the meaning specified in Exhibit A (Definitions) attached hereto.
1 THE MOBILITY SHUTTLES SOLUTION
1.1. The Mobility Shuttles Solution provides Partner with the ability to efficiently manage and administer the third-party transportation services that Partner makes available to its Users. These transportation services are determined and set by Partner in accordance with its agreements with the Transport Provider(s). HERE merely acts as the technology provider; HERE is not, under any circumstances, a party to any transportation services agreement between Partner and the Transport Provider(s). Partner hereby agrees to only use the Mobility Shuttles Solution in accordance with their applicable documentation and any limitations set forth therein. Partner shall be solely responsible for all acts, omissions and activities of its Administrators, Users, Transport Providers and Drivers, to the extent applicable, in connection with the Mobility Shuttles Solution. Usage of the Transport Provider Account and the Driver App as part of the Mobility Shuttles Solution is optional and is at Partner’s discretion. Should Partner decide not to use the Transport Provider Account and the Driver App, the terms and conditions pertaining to the Transport Provider Account and/or the Driver App in this Agreement, shall not apply.
1.2. Partner represents and warrants that: (a) it will only disclose and share with HERE Transport Provider(s) information including its Administrator Data and Driver Data in accordance with its agreement with the Transport Provider(s) and applicable law including without limitation, Data Protection Law and industry practices, and (b) the routes, location and timetable of the transportation services are determined and set by it and therefore, it is solely responsible for all information (including its accuracy, reliability, safety, and fitness for purpose) presented or provided by it to HERE or otherwise in connection hereto.
1.3 Integration. If an integration between the Mobility Shuttles Solution and the Partner Products is required, each party agrees to be responsible for its development, use, and maintenance including without limitation, its own costs relating to such integration. HERE has no obligation to provide any type of technical or other support for the Partner Products as integrated with the Mobility Shuttles solution or any services or content related thereto.
1.4 HERE retains the exclusive right at its sole discretion, without liability, and at any time, to: (a) determine the features, services, products, software or other tools available to Partner as part of the Mobility Shuttles Solution; and (b) with or without notice to Partner, modify, update, upgrade, discontinue or remove, temporarily, in whole or in part, any part of the Mobility Shuttles Solution and change the settings and/or appearance of the Partner Account, or any elements thereof. Partner acknowledges that the Mobility Shuttles Solution or any part thereof may be temporarily unavailable during certain periods of time due to maintenance or upgrades.
2 ACCOUNTS
2.1. HERE will create an account for Partner through which Partner and the Administrator(s) shall be able to, inter alia (i) send invitations to Users to download the User App, and (ii) manage, supervise and administer the transportation services that Partner makes available to its Users; and (iii) view Reports upon their availability (“Partner Account”). Partner may designate one or more Administrators for the Partner Account. Partner (and not HERE) is solely responsible for maintaining the status of the Administrators and Users. Partner agrees to (a) maintain the Partner Account login credentials in confidence and that the Administrators shall safeguard and maintain the confidentiality of the Partner Account, (b) only permit Administrator(s) to access the Partner Account, and (c) update, as necessary, all information set forth in the Partner Account, including and if applicable, the contact details of the lead Administrator and other Administrators to ensure that it is true, accurate, complete, and up-to-date. Partner is solely responsible for all activities in the Partner Account, including without limitation, all activities of its Administrators, even if Partner was not aware of them. Partner agrees to notify HERE, immediately if the Partner Account has been compromised, or if Partner has reason to believe that fraudulent or unpermitted activity occurring in connection with the Partner Account. Partner is solely responsibility for keeping and maintaining an accurate list of its current Users and Administrators in the Partner Account. HERE may review the current list of Users and Administrators, as may be the case, from time to time, to maintain and support the Mobility Shuttles Solution and to ensure compliance with this Agreement. HERE reserves the right to suspend or terminate the access to the Partner Account to any Administrator, if any information provided as part of the Partner Account is or becomes inaccurate, false or misleading. Without limiting any other terms of this Agreement, if Partner (or its Administrators) does not access the Partner Account for a consecutive period of six (6) months or more, HERE may disable the Partner Account or suspend access to it without notice.
2.2. If applicable and upon its avaliability, Partner shall provide HERE with its Transport Provider(s) information so that HERE will be able to create an account for the Transport Provider(s) through which the Transport Provider(s) and their Administrator(s) shall be able to, inter alia (i) define Administrator(s) for the Transport Provider Account, (ii) send invitations to Drivers to download the Driver App, and (iii) manage and administer the transportation services that Transport Provider makes available to Partner and its Users (“Transport Provider Account”). Transport Provider may designate one or more Administrators for the Transport Provider Account. Partner (and not HERE) is solely responsible for maintaining the status of the Transport Provider Administrators and Drivers. Partner shall ensure that (a) Transport Provider(s) maintain the Transport Provider Account login credentials in confidence and that the Administrators shall safeguard and maintain the confidentiality of the Transport Provider Account, (b) Transport Provider(s) only permit Administrator(s) to access the Transport Provider Account, and (c) Transport Provider updates, as necessary, all information set forth in the Transport Provider Account, including and if applicable, the contact details of the lead Administrator and other Administrators to ensure that it is true, accurate, complete, and up-to-date. Partner is solely responsible for all activities in the Transport Provider Account, including without limitation, all activities of the Administrators, even if Partner was not aware of them. Partner agrees to notify HERE, immediately if the Transport Provider Account has been compromised, or if Partner and/or Transport Provider has reason to believe that fraudulent or unpermitted activity occurring in connection with the Transport Provider Account. Partner is solely responsibility for keeping and maintaining an accurate list of the current Administrators and Drivers in the Transport Provider Account. HERE may review the current list of Administrators and Drivers, as may be the case, from time to time, to maintain and support the Mobility Shuttles Solution and to ensure compliance with this Agreement. HERE reserves the right to suspend or terminate the access to the Transport Provider Account to any Administrator, if any information provided as part of the Transport Provider Account is or becomes inaccurate, false or misleading. Without limiting any other terms of this Agreement, if a Transport Provider (or its Administrators) does not access the Transport Provider Account for a consecutive period of six (6) months or more, HERE may disable such Transport Provider Account or suspend access to it without notice.
2.3. Partner agrees that HERE may provide Partner and Transport Provider (as applicable) with notices and messages about the Mobility Shuttles Solution, including without limitations, the Partner Account, the Transport Provider Account updates regarding new, existing, and discontinued features of the Mobility Shuttles Solution, in the following ways: (a) within the Partner Account and/or the Transport Provider Account (as applicable), or (b) via email to Partner’s contact e-mail that is available as part of the Partner Account, or to a Transport Provider’s contact e-mail that is available as part of the Transport Provider Account. Partner agrees to keep the Partner Account information and the Transport Provider Account information up-to-date. Partner and/or Transport Provider(s) will not be able to opt-out of receiving such service messages.
3 INTELLECTUAL PROPERTY
3.1 Subject to the terms and conditions of this Agreement, HERE hereby grants to Partner during the Term: (i) a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, revocable license access and use, and to permit its Administrators and Users (as applicable), to access and use, the Mobility Shuttles Solution, and if applicable (b) a limited right to sub-license its rights to the Transport Provider Account hereunder to the Transport Provider(s), for the sole purpose of enabling such Transport Provider(s) to access and use the Transport Provider Account and to invite Drivers to download the Driver App and provide Partner with the transportation services in accordance with the Transport provider(s) agreement with Partner; provided that each Transport Provider will be subject to the same obligations as Partner under this Agreement, including the DPA; all to the extent permitted hereunder. Partner shall remain liable for the performance, acts and/or omissions of the Transport Provider(s) to whom its sub-licenses its rights hereunder. The Mobility Shuttles Solution is licensed, not sold. All rights that are not expressly granted herein are reserved by HERE. Partner may not make any use of the Mobility Shuttles Solution, in whole or in part, not expressly permitted hereunder. Except as expressly specified in the Agreement, Partner will not, directly or indirectly, and will ensure that its Administrators and Users (as applicable) will not: (a) use, copy, create derivative works of or modify the Mobility Shuttles Solution or any part thereof, including without limitation, any proprietary notices contained therein; (b) sell, assign, transfer, sublicense, lease, lend, rent or otherwise distribute the Mobility Shuttles Solution to any other person or entity; (c) use the Mobility Shuttles Solution 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 Shuttles Solution, 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 Shuttles Solution or any content therein other than as expressly provided herein; (f) use or display the Mobility Shuttles Solution in a way that, in HERE's sole opinion, would constitute a Forbidden Usage; (g) sell, resell, rent, lease, sublicense, redistribute or syndicate access to the Mobility Shuttles Solution, without HERE's prior written consent; and/or (h) attempt to interfere with or disrupt the Mobility Shuttles Solution, or attempt to gain access to any systems or networks that connect thereto, except as expressly permitted herein. Partner further agrees not to directly or indirectly, disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the Mobility Shuttles Solution or any part thereof, or permit or authorize any other person or entity to do so.
3.2 Except as explicitly granted under this Agreement, HERE and its licensors, retain all right, title and interest in and to the Mobility Shuttles Solution, HERE Marks, and any derivatives thereof, including all 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, relating any part of the HERE Property or any other product, service, information or material provided by HERE, are hereby assigned or transferred to Partner. All use of the HERE Property shall inure to the benefit of HERE, and Partner shall not: (a) 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 (b) 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 its licensors. Partner hereby agrees to assign to HERE all rights including but not limited to Intellectual Property Rights in derivative works or customizations developed and/or created by Partner or any third party on its behalf, to HERE, at no cost.
3.3 During the Term, Partner may provide HERE with any suggestions, comments, or other feedback made by Partner, the Administrator(s), Users, Transport Provider(s) and/or Drivers with respect to the Mobility Shuttles Solution or any part thereof (“Feedback”). Partner acknowledges that any Feedback will be owned by HERE, including all Intellectual Property Rights therein, and will be and become HERE’s Confidential Information (as defined below). Partner acknowledges and agrees that HERE will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback in an anonymous aggregated manner as HERE sees fit, without obligation or restriction of any kind.
3.4 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 11.6 of the Agreement) 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.
4. DATA
4.1 The parties agree that the DPA sets forth the applicable terms and conditions regarding the roles and obligations of Partner and HERE with respect to the collection and processing of Data and is incorporated by reference in this Agreement. The parties agree that the subject matter, nature and purpose of the processing of Data is the access to and use of the Mobility Shuttles Solution in accordance with this Agreement. The types of Personal Data being processed, and the categories of Data Subjects are related to Partner Account Data, Data, Administrators Data, User Data and if applicable Transport Provider Account and Driver Data.
4.2 Partner represents and warrants that during the Term, it shall have all appropriate legal bases, for allowing Partner to access, collect, use and share the Data with HERE in accordance with this Agreement, including and where legally required to do so:
(a) receive the Partner’s Administrators and Users consent for accessing, collecting, using and sharing their applicable Data in an active, clear and distinguished manner in accordance with Data Protection Laws and ensure that it explains to the Partner’s Administrators and Users (i) what information it shares with HERE; (ii) why it shares such information with HERE; (iii) the delineation of roles between HERE and Partner as described in the DPA; and (iv) how the Partner’s Administrators and Users can access and update their information; and
(b) ensure that the Transport Provider(s) shall: (i) receive the Transport Provider’s Administrators and Drivers consent for accessing, collecting, using and sharing their applicable Data in an active, clear and distinguished manner in accordance with Data Protection Laws; and (ii) explain to the Transport Provider’s Administrators and Drivers (1) what information it shares with Partner and HERE; (2) why it shares such information with Partner and HERE; (3) the delineation of roles between HERE, Partner and the Transport Provider; and (4) how the Transport Provider’s Administrators and Drivers can access and update their information. Partner shall comply with and shall be responsible for, each of the Transport Providers, Administrators, Users and Drivers compliance with all Data Protection Laws.
4.3 Partner represents and warrants that prior to each Administrator’s access to and use of the Partner account and/or Transport Provider Account, respectively, it shall: (a) obtain or acquire from each such Administrator explicit, affirmative, informed and legally valid consent as required by Data Protection Law including without limitation, provide each Administrator with a copy of the Administrator Notice hereto as Exhibit B, and (b) Administrator Data of Administrators that do not consent to having their Administrator Data shared with HERE will not be available via the Mobility Shuttles Solution.
4.4. Partner acknowledges that each Driver in the Transport Provider’s fleet providing transportation services to Partner will be required to: (i) download the Driver App to the mobile device s/he uses while providing transportation services as a member of Transport Provider’s fleet; (ii) use the Driver App in connection with being part of Transport Provider’s fleet; and (iii) proactively agree to, and comply with, the Driver App Terms and Privacy Policy (collectively, “Driver App Terms”). Therefore, Partner represents and warrants that it shall ensure that: (a) each Driver provides its explicit, affirmative and legally valid consent, as required by Data Protection Laws to the provision of his/her Driver Data as part of the Transport Provider Account prior to sharing each Driver’s Driver Data with HERE, and to the Driver App Terms; and (b) Driver Data of Drivers that do not consent to having their Driver Data shared with HERE will not be available via the Mobility Shuttles Solution. HERE reserves the right to amend or update any or all the Driver App Terms at any time, in HERE’s sole discretion, and to provide notice to Partner and/or the Drivers with respect to any such changes as set forth in the Driver App Terms.
5. PAYMENT
5.1 The License Fees due to HERE and payable by Partner shall be stated in an applicable Order Form that shall be executed between the parties. HERE will provide Partner with an invoice on a monthly basis. Partner agrees to pay HERE the License Fees under each applicable invoice in full, without deduction or setoff of any kind, in the currency set forth in the Order Form, within 30 days of the date of the invoice. HERE will send all invoices to the email address associated with the Partner Account, or such other address as set forth in the applicable Order Form. Partner shall remit the License Fees to HERE by wire transfer to a bank account designated by HERE on each invoice issued by HERE to Partner.
5.2 Notwithstanding the foregoing, HERE shall be entitled to instruct Partner in writing to transfer the License Fees to any of HERE’s payment processing service providers (currently DLocal LLP or Adyen N.V., or as otherwise may be notified by HERE in writing, each a “Payment Provider”). In such case, payment by Partner to the Payment Provider in accordance with HERE’s instructions shall satisfy Partner’s payment obligation hereunder. Partner acknowledges and agrees that HERE may, at its sole discretion, change, add or replace any Payment Provider from time to time. Partner further agrees to provide all information and execute any documents, including undergoing a verification process, as HERE and/or Payment Providers may require, from time to time.
5.3 Partner shall be liable for all taxes, duties and governmental charges arising hereunder, except for taxes on HERE's net income. Value Added Tax (VAT), sales tax and similar taxes, if applicable, shall be applied and added to the License Fees 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 License Fees hereunder, and that insofar as any such taxes apply 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.
5.4 Payments received by HERE after the 30th day of a month will bear interest at 1.5% per month, or the maximum rate permitted by applicable law, whichever is less, calculated from the date such amount was due until the date that payment is received.
5.5 If payment of any amounts due hereunder is overdue by 14 days or more, then in addition to any of HERE’s other rights and remedies under the Agreement (including but not limited, to any termination rights set forth herein), HERE reserves the right to immediately suspend Partner’s and its Administrators access to the Partner Account and suspend Users access to the User App, in the event of any unpaid and due License Fees. HERE further reserves the right to pursue any and all remedies available to it under applicable law, in the event of any unpaid and due License Fees hereunder. Following full payment of such License Fees, HERE shall remove the suspension and allow access to Partner, Administrators, Users and Drivers, as applicable, to the Partner Account, Transport Provider Account, User App and Driver App, at HERE’s sole discretion.
6. CONFIDENTIALITY
This Agreement and all business, technical, operational, financial or otherwise proprietary information provided by one party to the other shall be treated as confidential information (“Confidential Information”). Without derogating from the generality of the foregoing, the structure, organization, and code of the Mobility Shuttles Solution is the valuable trade secrets and Confidential Information of HERE and/or its licensors. 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 or its Affiliates’ employees are bound by written confidentiality obligations that apply to the Confidential Information and that are 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, delete or destroy (and certify such destruction if so requested) 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 promptly a 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. The duty to protect Confidential Information shall expire three (3) years from the date of termination of the Agreement.
7. REPRESENTATIONS AND WARRANTIES
7.1 Each party hereby represents and warrants to the other that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (b) it has all requisite power and authority to enter into this Agreement and perform its obligations hereunder; and (c) the execution and delivery of this Agreement will not conflict with or violate any other agreement to which such party is a party; (d) it is not a party identified on any governmental export exclusion lists; (e) it will implement, maintain and comply with Data Protection Laws including without limitation, all applicable data privacy and security requirements in connection with its collection, processing, transfer and use of personal data, if any, under the Agreement including as set forth under the DPA and as required by applicable law; and (f) it is not insolvent under the laws of any jurisdiction in which it operates or is unable to pay, or has stopped paying, its debts as they fall due or is in liquidation, administration, receivership, winding up, bankruptcy or a similar insolvency process. In addition, each party will comply with anti-corruption laws, including without limitation, the US FCPA and the UK Bribery Act and any other anti-corruption legislation which have extraterritorial application, which applies to HERE, and 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 favorable 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 the Agreement. Each party will permit inspection of these records for the duration of the Agreement upon reasonable written notice from the other party.
7.2 Partner represents and warrants that it (a) is in compliance and shall remain in compliance during the term hereof, with all applicable rules and regulations; (b) is solely responsible for the Partner Products; (c) has and shall maintain during the term hereof all necessary rights, title and interest in the Partner Products, all Intellectual Property Rights, and the Data with respect to which Partner is a data controller, to grant the licenses and all other rights under this Agreement, (d) the Partner Products do not and will not violate, misappropriate, or infringe any applicable law, rule or regulations, Intellectual Property Rights, or other proprietary rights, rights of privacy, or rights of personality or any other right of any third party; (e) will only share and provide access to the Partner Account to Administrators and other Partner personnel who have a business need to access the Partner Account; (f) is responsible for all acts and omisisons of the Transport Providers, their Drivers and any third party accessing and using any part of the Mobility Shuttles Solution in connection hereof; and (g) the Partner Products do not and will not engage in any Forbidden Usage.
7.3 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE MOBILITY SHUTTLES SOLUTION INCLUDING WITHOUT LIMITATION, THE PARTNER ACCOUNT, THE TRANSPORT PROVIDER ACCOUNT, USER APP AND DRIVER APP (AS APPLICABLE) IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTY OF ANY KIND. HERE AND ITS LICENSORS MAKE NO WARRANTY THAT THE FUNCTIONALITY OF ANY COMPONENT OF THE MOBILITY SHUTTLES SOLUTION WILL MEET PARTNER’S REQUIREMENTS OR THAT THE OPERATION OF THE MOBILITY SHUTTLES SOLUTION WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE OR THAT ANY DEFECTS IN IT 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 SHUTTLES SOLUTION, 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. PARTNER ACKNOWLEDGES AND AGREES THAT THE MOBILITY SHUTTLES SOLUTION INCLUDING WITHOUT LIMITATION, THE PARTNER ACCOUNT, THE TRANSPORT PROVIDER ACCOUNT, USER APP AND DRIVER APP (AS APPLICABLE) PROVIDED HEREUNDER ARE MERELY TECHNOLOGY SERVICES THAT ENABLE, INTER ALIA, ACCESS TO REQUESTED TRANSPORTATION SERVICES PROVIDED BY TRANSPORT PROVIDERS. HERE IS NOT A PROVIDER OF TRANSPORTATION SERVICES. HERE DOES NOT GUARANTEE THE AVAILABILITY OF TRANSPORTATION SERVICES, ON-TIME ARRIVALS OF TRANSPORT PROVIDERS OR DEPARTURES THEREOF, OR ANY OTHER SERVICE LEVELS RELATED TO THE SERVICES PROVIDED BY TRANSPORT PROVIDERS THAT MAY BE OBTAINED AND/OR BOOKED VIA THE MOBILITY SHUTTLES SOLUTION.
8. INDEMNIFICATION
Partner (“Indemnifying Party”) will, at its sole expense, indemnify, defend (or settle, at Partner’s option and expense and subject to HERE’s prior approval as set forth below) and hold harmless HERE and its respective directors, officers, employees, agents, successors and assigns (“Indemnified Party”) from and against 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 including without limitation, an Administrator, User, Transport Provider or Driver (collectively, “Claim”) with respect arising out of or related to (i) a breach (or claim that, if true, would be a breach) of any of the Indemnifying Party’s representations, warranties or obligations set forth in this Agreement including without limitation under the DPA; (ii) any tortuous act of the Indemnifying Party in connection with the use of the Mobility Shuttles Solution; (iii) the infringement of a third party’s Intellectual Property Rights by the Indemnifying Party; (iv) inaccurate information provided by the Indemnifying Party regarding the Administrators, Transport Provider(s), Users or Drivers; (v) any Claim against the Indemnified Party arising out of or relating to the access and/or use by Indemnified Party of the Partner Products in accordance herewith, including without limitation, that such access and/or use infringes, misappropriates, or otherwise violates the rights of any third party including without limitation, privacy rights, and Intellectual Property Rights; or (vi) any death, personal injury or damage to property caused to any User and/or Driver. The Indemnified Party shall provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will: (a) assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party, and (b) not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s cost and expense. The Indemnified Party may join in the defense of the Claim, with counsel of its choice at its own expense.
9. LIMITATION ON LIABILITY
9.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY, ITS EMPLOYEES, LICENSORS 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 PARTNER THE USE OF, OR INABILITY TO USE THE MOBILITY SHUTTLES SOLUTION, 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 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. TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW AND EXCEPT FOR INTENTIONAL MISCONDUCT, GROSS NEGLIGENCE, BREACH OF REPRESENTATIONS AND WARRANTIES AND/OR OBLIGATIONS OF CONFIDENTIALITY AND NON-USE, AND EITHER PARTY’S INDEMNIFICATION OBLIGATIONS (“EXCLUDED LIABILITIES”) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED US$50,000. WITH RESPECT TO THE EXCLUDED LIABILITIES, EACH PARTY’S ENTIRE LIABILITY IN CONNECTION WITH, ARISING OUT OF, OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED US$500,000. THE PARTIES AGREE THAT WITH THE EXCEPTION OF THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ANY PART OF THIS AGREEMENT OR THE MOBILITY SHUTTLES SOLUTION, UNLESS SUCH CAUSE OF ACTION COMMENCES BY NO LATER THAN 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.
9.2 Partner acknowledges and agrees that: (i) the transportation services are made available to Users by Partner in accordance with its engagement with Transport Provider(s), and (ii) HERE will have no liability whatsoever in respect of Partner’s engagement with the Transport Provider(s) and/or any costs, expenses, liabilities (including any tax liability), injuries, direct, indirect and consequential loss (all three (3) of which terms include pure economic loss, loss of profits, loss of business and/or depletion of goodwill), damages, claims, demands, proceedings and/or legal costs incurred or suffered by any Transport Provider, Driver, User and/or Partner under or in connection with the transportation services.
10. TERMINATION
10.1 Termination; Suspension.
10.1.1 In addition to the termination rights set forth elsewhere in this Agreement, this Agreement may be terminated by either party: (a) for any reason and without liability, by providing the other party with 60 days’ prior written notice; or (b) immediately: (i) if the other party breached any of its obligations, representations or warranties set forth in the Agreement and failed to cure such breach within 7 days from receipt of a written notice thereof; or (ii) 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 (ii) shall immediately notify the other party in writing.
10.1.2 In addition to the foregoing, HERE reserves the right, at its sole discretion, to immediately terminate or suspend Partner’s and/or any of its Administrator's and/or Users' access to the Mobility Shuttles Solution (as applicable), in the event that: (i) HERE believes that there has been any breach of this Agreement, Forbidden Usage, fraudulent or otherwise illegal use, misuse or abuse of the HERE Property; and (ii) HERE believes that any violation by a Driver or a User of the Driver Terms or User Terms (as applicable).
10.2 Upon the termination of this Agreement: (a) all rights and licenses granted herein shall terminate immediately and Partner shall cease all use of the Mobility Shuttles Solution; (b) each party shall promptly return to the other party or destroy and certify the destruction of all Confidential Information of, the other party; and (c) to the extent applicable, Partner shall remove any access to and/or connection with the Mobility Shuttles Solution to its Administrators, its clients and their Administrators. No termination will affect Partner’s obligation to pay all License Fees that may have become due before such termination or entitle Partner to any refund. It is hereby further agreed and acknowledged that upon termination of the Agreement, HERE may, at its sole discretion, disable Partner’s continued access to or use of the Mobility Shuttles Solution.
10.3 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.
11. MISCELLANEOUS
11.1 Any heading, caption or section title contained herein is inserted for convenience purposes only, and in no way defines or explains any section or provision hereof.
11.2 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 the Agreement. If any provision of the 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.
11.3 If the HERE entity executing the Agreement is HERE North America LLC, then the Agreement shall be construed and governed by the substantive laws of the State of Illinois, USA. In any other event, the 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 if Dutch law applies and to the competent court in the State of Illinois, USA if Illinois law applies, in each case without prejudice to parties’ right to appeal. The provisions of this section 10.3 shall not prevent either party from seeking immediate injunctive relief in any court of competent jurisdiction.
11.4 Partner shall not disparage, bring in to disrepute and/or speak detrimentally of HERE or any of its or cause and/or carry out any activities that may cause damage to HERE’s or its Affiliates’ name, brand, reputation, goodwill, business or relationships with any of its partners and/or other third parties.
11.5 Partner acknowledges that Mobility Shuttles Solution 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 Shuttles Solution 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.
11.6 The rights and obligations of each party under the 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 the Agreement to any Affiliate or to an entity that acquires substantially all of its stock, assets, or business. For purposes of this Section 11.6, 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.
11.7 All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, with written verification of receipt. Notices to HERE shall be send to: Mobility_legal@here.com. Each communication and document made or delivered by one party to the other party pursuant to the Agreement shall be in the English language or accompanied by a translation thereof.
11.8 This Agreement is between HERE and Partner. No third-party beneficiaries are intended. Each party represents to the other that their respective rights to terminate, rescind or agree any amendment, variation, waiver or settlement under this Agreement are not subject to the consent of any person that is not a party to this Agreement.
11.9 In connection with the 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.
11.10 Neither party shall be liable to the other for a failure to perform any of its obligations under the Agreement, except for payment obligations, due to circumstances beyond its reasonable control, provided such party notifies the other of the delay.
11.11 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.
EXHIBIT A
DEFINITIONS
1 “Administrator(s)” means, as applicable, an employee or subcontractor of Partner which Partner designates as its representative(s) in the Partner Account, or an employee or subcontractor of a Transport Provider which Transport Provider designates as its representative(s) in the Transport Provider Account.
2 “Administrator Data” means information applicable to and/or relating to Administrators provided by Partner to HERE in connection herewith, including without limitation and as applicable, name, phone number and email address, and any other information which would allow the Administrator to be directly or indirectly identified.
3 “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. or is under common control with HERE; 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, and/or is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
4 “Data” means, collectively, Partner Account Data, Transport Provider Account Data, Administrator Data, User Data and Driver Data, all as applicable.
5 “Data Protection Law” means all laws and regulations applicable to the personal data under this Agreement, including, but not limited to, as applicable the laws and regulations of the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, including the EU General Data Protection Regulation (2016/679) (GDPR), the California Consumer Privacy Act (CCPA) and locally relevant privacy laws.
6 “Driver(s)” means, individuals employed or subcontracted by any Transport Provider who will be driving (and/or controlling) the vehicles with which the transportation services will be provided to Partner and its Users.
7 “Driver Data” means information applicable to and/or relating to Driver(s) provided to HERE directly or indirectly by the Transport Provider via the Transport Provider Account, and/or by HERE to Partner and/or Transport Provider in connection herewith, including without limitation and as applicable, name, phone number and location data (including pick up or drop off locations), and any other information which would allow the Driver to be directly or indirectly identified.
8 “Driver App” means the HERE’s proprietary mobile application that is part of the Mobility Shuttle Solution and which (a) the Driver must download from the applicable mobile app store and install on his/her mobile device; and (b) is connected to the Transport Provider Account and enables the Driver to communicate with the Partner, Transport Provider, the applicable Administrator and/or Users in connection with the transportation services the Driver provides.
9 “Forbidden Usage” means any of the following activities: (a) hacking the Mobility Shuttles Solution 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 Shuttles Solution; (c) engaging in or encouraging any activity or use of content that violates any applicable law, rule or regulation, including without limitation, Data Protection Law; (d) any installation of the User App or the Driver App (as applicable) that is generated without informed and active consent by the User or the Driver (as applicable); (e) use, endorsement, or promotion of any 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 Shuttles Solution 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, hacking, or extracting data from the Mobility Shuttles Solution or any part thereto; (h) using the Mobility Shuttles Solution for any purpose which or might overburden, impair or disrupt the Mobility Shuttles Solution or related servers or networks; (i) caching or storing any location data for the purpose of building a repository of location assets or scaling one request to serve multiple end users; (j) redistribution or sale of any part of the Mobility Shuttles Solution or creating a new product or service based on the Mobility Shuttles Solution; (k) removing, obscuring, or altering any of HERE’s applicable terms of service or privacy policies which are part of the Mobility Shuttle Solution or any links to or notices of those terms or privacy policies, or any copyright or HERE Marks; and/or (l) using the Mobility Shuttles Solution to violate the security or integrity of any IT or telecoms infrastructure, systems, devices, hardware or software.
10 “GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
11 “HERE” means the HERE entity whose signature appears on the Agreement on behalf of itself and its Affiliates.
12 “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.
13 “License Fees” means as such term is defined in the Order Form.
14 “Marks” means trademarks, service marks, trade names, brands, logos and other distinctive identification and/or proprietary indicia.
15 “Mobility Shuttles Solution” means HERE’s proprietary system that enables Partner to efficiently manage, control, optimize and administer the transportation services that it provides to its Users. The Mobility Shuttles Solution is comprised of four parts: Partner Account, User App, Transport Provider Account and Driver App. Partner may choose not to use the Transport Provider Account and Driver App in which case it will not be part of the Mobility Shuttles Solution for purpose hereof.
16 “Order Form” means the written or electronic form executed between the partied and which is subject to these Terms.
17 “Partner Account Data” means Personal Data of Partner that relates to Partner’s relationship with HERE including payment information, as well as the full names, phone numbers, email addresses (if relevant), home addresses (if relevant) and any other relevant information of its Administrators and Users
18 “Partner Products” means any software, hardware, mobile apps, websites, technology, services, content, information and materials owned and/or legally licensed by Partner (including without limitation, any third party internal systems), and Transport Providers Products, which are either provided by Partner to HERE in accordance with this Agreement, integrated by Partner or a Transport Provider with the Mobility Shuttles Solution, or otherwise, and including with respect to all of the above, any applicable Intellectual Property Rights and any derivatives thereof.
19 “Reports” mean any data or reports that HERE provides or makes available to Partner whether as part of the Partner Account or otherwise. Reports are considered part of the Mobility Shuttles Solution.
20 "Transport Providers Products" means any software, hardware, mobile apps, websites, technology, services, content, information and materials owned and/or legally licensed by a Transport Provider (including without limitation, any third party dispatch systems), which are accessed, integrated and/or used by Partner and/or a Transport Provider in connection with the Mobility Shuttles Solution, and including with respect to all of the above, any applicable Intellectual Property Rights and any derivatives thereof.
21 “Transport Provider Account Data” means Personal Data of Transport Provider that relates to Transport Provider’s relationship with Partner and access and use of the Mobility Shuttles Solution in accordance thereto including the full names, phone numbers, email addresses (if relevant), home addresses (if relevant) and any other relevant information of its Administrators and Drivers.
22 “User” means an individual who is an employee or subcontractor of the Partner, authorized by the Partner to download and access the User App and use the transportation services made available by Transport Provider.
23 “User App” means HERE’s proprietary mobile application that is part of the Mobility Shuttles Solution and which (a) the User must download from the applicable mobile app store and install on his/her mobile device; and (b) is connected to the Partner Account and enables the User to communicate with the Partner, the Administrator and the Drivers in connection with the transportation services the User choose to utilize.
24 “User Data” means information applicable to and/or relating to User(s) provided to HERE by Partner and/or by HERE to Partner in connection herewith, including without limitation and as applicable, name, phone number and location data (including pick up or drop off locations), and any other information which would allow the User to be directly or indirectly identified.
25 “User Terms” means the terms and conditions and privacy policy which the User must accept prior to accessing and using the User App, as may be updated by HERE from time to time.