General Terms and Conditions (Supply)
These General Terms and Conditions (Supply) (“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 Products. These General Terms and Conditions are an integral part of the Mobility Marketplace License Agreement (Supply), and are incorporated by reference therein. All references to the term Agreement in these Terms shall have the meaning set forth in the Mobility Marketplace 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. ACCESS AND USE OF THE MOBILITY PRODUCTS
1.1 Access. HERE shall provide Partner with access credentials through which Partner shall connect to the Mobility Products and any other applicable Mobility Products, as well as any applicable documentation. Partner is solely responsible for: (i) keeping safe and confidential the access credentials provided by HERE, and (ii) its Personnel’s access and use of the Mobility Products. Partner shall be responsible for all actions taken in connection with the access credentials and Mobility Products. 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. If required, Partner agrees to provide and update, such Partner Products and information as HERE may require in order to set up and operate the Mobility Products in connection with the Partner Products.
1.2 Integration. If an integration between the Mobility Products 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 Products or any services or content related thereto.
1.3 Account. Partner and its Personnel will be able to activate and/or create a user account via the Business Portal, through which Partner and its Personnel will be able to access, use and manage the Mobility Products (“Account”). Partner is solely responsible for maintaining the status of its Personnel base. Partner will, and will ensure that its Personnel will, safeguard and maintain the confidentiality of the Account, and all information provided therein, including without limitation, its and its Personnel username and password, as applicable. Partner agrees to notify HERE, immediately if the Account has been compromised, or if Partner has reason to believe that the Account has been compromised. Partner shall ensure that each of its Personnel accessing and/or using the Mobility Products in accordance herewith shall review, accept and comply with the Terms of Use, and the Privacy Policy (collectively, “HERE Terms”). HERE reserves the right to suspend or terminate the Account or any individual Personnel Account, if any information provided as part of the Account is or becomes inaccurate, false or misleading. Partner agrees to provide and maintain true, accurate, complete, and up-to-date information in the Account, which includes all its Personnel Accounts (if relevant) and that HERE may rely on the information that is in the Account. Partner is responsible for all activities that occur under the Account. Without limiting any other terms of the Agreement, if Partner does not access the Account for a consecutive period of six (6) months or more, HERE may disable the Account or suspend access to it without notice.
1.4 Customization. Partner acknowledges that the inclusion of Partner Products such as Partner’s logo and brand colours, as part of the Mobility Products, may require customization of the Mobility Products via the Account. Subject to the parties’ mutual agreement, HERE may provide Partner with assistance in any such customization. Partner acknowledges and agrees that making the Mobility Products as customized with the Partner Products available to the public via the Partner Products, constitutes Partner’s acceptance and confirmation of any such customization (whether made by HERE or otherwise).
1.5 Partner’s Terms and Privacy Policy. Partner represents and warrants that during the Term, it shall comply at all times with applicable laws and regulations, including without limitation, consumer laws and Data Protection Laws, including without limitation, maintain and publish terms of use and privacy policy (“Partner Terms”) with respect to Partner, its Personnel and/or Consumers access to and/or use of the Partner Products including without limitation and as applicable, their integration with the Mobility Products; The Partner Terms are between Partner and its Personnel and/or Consumers (as applicable) and HERE has no obligation and/or liability with respect to the Partner Terms. Partner may not impose any terms on its Personnel and/or Consumers (as applicable) that are inconsistent with the terms of this Agreement and the HERE Terms and/or impose any liability on HERE, unless otherwise specifically set forth herein. To the extent any such conflict exists, the parties agree that HERE Terms shall prevail. Partner acknowledges and agrees that in certain Mobility Products where HERE is an independent controller for the Consumers Personal Data, the HERE Terms shall prevail.
1.6 Updates and Upgrades. 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 Products; and (b) with or without notice to Partner, modify, update, upgrade, discontinue or remove, temporarily or permanently, in whole or in part, the Mobility Products and change the settings and/or appearance of the Mobility Products, or any elements thereof. Partner acknowledges that the Mobility Products or any part thereof may be temporarily unavailable during certain periods of time due to maintenance or upgrades.
1.7 Mobility Products Notices. Partner agrees that HERE may provide Partner with notices and messages about the Mobility Products, including without limitations, the Account, updates regarding new, existing, and discontinued features of the Mobility Products, in the following ways: (a) within the Mobility Products, or (b) sent to Partner’s contact information provided to HERE (e.g., e-mail) as part of the Account. Partner agrees to keep the Account information up-to-date. Partner will not be able to opt-out of receiving such service messages.
1.8 Dispatch System Additional Terms. Partner acknowledges that in order to provide Mobility Services, each Driver in its fleet will be required to: (i) download the Driver App to the mobile device s/he uses while providing transportation services as a member of Partner’s fleet; (ii) use the Driver App in connection with being part of the Partner’s fleet; and (iii) proactively agree to, and comply with, the Driver App Terms of Use and the Driver App Privacy Policy (collectively, “Driver App Terms”). Therefore, Partner represents and warrants that it shall: (a) obtain from each Driver explicit, affirmative, informed and legally valid consent as required by Data Protection Laws prior to sharing each Driver’s Driver Data with HERE including without limitation for the purpose of creating each such Driver’s account with the Driver App; (b) it will not provide HERE with any Data of Drivers that do not consent to having their Driver Data shared with HERE and available via the Marketplace Dispatcher; and (c) ensure that each Driver in its fleet: (1) receives sufficient instructions on how to download and use the Driver App; and (2) understands that in order to use the Driver App s/he is required to review and explicitly accept the Driver App Terms. 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.
1.9 Micro-Mobility Additional Terms. Partner acknowledges and agrees that: (a) it shall provide HERE with all relevant information with respect to its Micro-Mobility Vehicles, including without limitation, location, availability, Vehicles type, status (for example, battery level) in real time; (b) the Consumers may be: (i) able to receive directions to the Partner’s Micro-Mobility Vehicle of their choosing via the Mobility Products, and/or (ii) be referred by Deep Link from the Mobility Products, to the Partner’s mobile app, to book the Partner’s Micro-Mobility Vehicle of their choosing; and (c) should the Mobility Products have the ability to fully integrate with the Partner Products such that Consumers will be able to book the Partner’s Micro-Mobility Vehicles directly from the Mobility Products, the parties will negotiate, in good faith, new License Fees. In addition, Partner shall ensure that the locations in which it makes its Micro-Mobility Vehicles available to Consumers and the locations in which it allows Consumers to leave its Micro-Mobility Vehicles, are in compliance with all applicable local laws and municipal ordinances.
1.10 No Solicitation. Partner will not directly solicit, or persuade any Consumer to contract directly with it or otherwise divert orders for transportation services from the Consumers away from HERE.
2. LICENSES
2.1 HERE’s License. Subject to and conditioned on Partner’s and its Personnel full compliance with the terms and conditions of this Agreement, HERE hereby grants to Partner a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, revocable license during the Term, to access and use, and to permit its Personnel, to access and use, the applicable Mobility Products and the associated Data solely in the geographic locations in which the Partner makes available the Partner Products as integrated with the Mobility Products, all to the extent permitted hereunder. The Mobility Products are licensed, not sold. All rights that are not expressly granted herein are reserved by HERE. Partner may not make any use of the HERE Property, 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 Personnel will not: (a) use, copy, create derivative works of or modify the Mobility Products 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 Products and/or the Data (as applicable) to any other person or entity; (c) use the HERE Property 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 HERE Property, 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 HERE Property or any content therein 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) sell, resell, rent, lease, sublicense, redistribute or syndicate access to the Mobility Products, without HERE's prior written consent; and/or (h) 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. Partner further agrees not to directly or indirectly, disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the HERE Property or any part thereof, or permit or authorize any other person or entity to do so.
2.2 Partner’s License. Subject to the terms and conditions of this Agreement, Partner hereby grants to HERE a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, royalty free, fully paid, license during the Term to: (i) access, use and distribute the Partner Products and the Data with respect to which Partner is a controller pursuant to the DPA solely in connection with the subject matter hereof, as required to access and use the Mobility Products and to the extent permitted herein; and (ii) use, process, display, copy and store the Partner Account Data, Partner Personnel Data, applicable Consumer Data and Driver Data (if applicable) in order to provide the Mobility Products to Partner and administer and make improvements to the Mobility Products. All rights that are not expressly granted herein are reserved by Partner. HERE may not make any use of the Partner Products and applicable Data, in whole or in part, not expressly permitted hereunder. HERE will not attempt to interfere with or disrupt the Partner Products or attempt to gain access to any systems or networks that connect thereto, except as expressly permitted herein. Except as expressly specified in the Agreement, HERE will not, directly or indirectly: (a) use, copy, create derivative works of or modify the Partner Products or any part thereof, including without limitation, any proprietary notices contained therein; (b) sell, assign, transfer, sublicense, lease, lend, rent or otherwise distribute the Partner Products to any other person or entity; (c) use the Partner Products in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Agreement or any applicable law; (d) change, edit, add to, copy or extract content and/or Data from or produce summaries of the Partner Products other than as expressly provided herein; (e) sell, resell, rent, lease, sublicense, redistribute or syndicate access to the Partner Products, without Partner's prior written consent; and/or (f) attempt to interfere with or disrupt the Partner Products, or attempt to gain access to any systems or networks that connect thereto, except as expressly permitted herein. HERE further agrees not to directly or indirectly, disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the Partner Products or any part thereof, or permit or authorize any other person or entity to do so.
3. DATA
3.1 Data Protection Addendum. 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 provision of Mobility Services and/or access to the Mobility Services in accordance with this Agreement. The types of Personal Data being processed, and the categories of Data Subjects are related to Partner Account Data, Partner Personnel Data, Driver Data (if applicable) and Consumer Data. 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 the DPA.
3.2 Compliance. Partner represents and warrants that during the Term, it shall: (a) have all appropriate legal bases, for allowing Partner to access, collect, use and share the applicable Data in accordance with this Agreement, including and where legally required to do so, receive its Personnel, Drivers and/or Consumers (as applicable) consent for accessing, collecting, using and sharing the applicable Data in an active, clear and distinguished manner in accordance with Data Protection Laws; and (b) ensure that its Partner Privacy Policy explains (i) what information it collects; (ii) why it collects such information; (iii) how Partner uses and shares such information, including without limitation, with HERE; (iv) the delineation of roles between HERE and Partner as described in the DPA; and (v) how its Personnel, Drivers and/or Consumers (as applicable) can access and update information. Partner shall comply with and shall be responsible for, each of its Personnel's compliance with all Data Protection Laws with respect to the applicable Data and information that is provided to or by, or made available to or by, Partner and/or is under its control. Partner must ensure that any Data or data otherwise related to the integration of any Mobility Product with the Partner Products, is encrypted and transmitted over a secure, encrypted channel (e.g., HTTPS). HERE reserves the right to: (1) review the situations where, and the manner in which, Partner obtains acceptance to the collection of Data; (2) require Partner to change the implementation of such acceptances; and (3) acquire or require Partner to acquire additional consents from its Personnel, Drivers and/or Consumers, if deemed necessary, all at HERE's sole discretion.
3.3 Partner-Controlled Consumer Data. Partner represents and warrants that it will: (i) only add, include and make available Partner-Controlled Consumer Data via the Marketplace Dispatcher following the establishment of a legal basis including and where required, receipt of each Consumer whose Data is considered as Partner-Controlled Consumer Data, consent and approval and making all notices (as applicable) required for Partner and HERE to Process Personal Data of such Consumers, including without limitation, by making such required disclosure in the Partner Terms as set forth in Section 1.5 of the Agreement and obtaining express consent from Consumers, therefor; and (ii) not provide HERE with any Partner-Controlled Consumer Data of Consumers from which Partner did not receive consent to make their Consumer Data available via the Marketplace Dispatcher, or has established another legal basis with these Consumers.
4. PAYMENTS
4.1 For the purposes of this Section 4 the following definitions shall have the following meaning:
4.1.1 “Processing Fees” means any processing, banking or other charges, cost, exchange rates and expenses incurred by or imposed on HERE in relation to processing, collecting and exchanging payments from Consumers in connection with their use of the Mobility Services, in the aggregate amount of up to 5% of the Service Charges.
4.1.2 “Service Charge” means any payment made by a Consumer to Partner in connection with or with respect to a Consumer’s use of the Mobility Services, including without limitation, tips, tolls, parking fees, taxes, and any other related charges.
4.2 Partner agrees to pay HERE, when due (a) the License Fees applicable to the licensed Mobility Product(s); and (b) the Processing Fees (if applicable) (together, the “Fees”).
4.3 Taxes and Other Charges. 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 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 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.
4.4 Invoice. HERE shall invoice the Fees to Partner on a monthly basis. Partner shall remit Fees to HERE by wire transfer to a bank account designated by HERE on each invoice issued by HERE to a Partner. Alternatively, HERE shall be entitled to instruct Partner, in writing, to transfer the Fees to a Payment Provider (as defined below). In such case, payment by Partner to the Payment Provider in accordance with HERE’s instructions, shall satisfy Partner’s payment obligation hereunder.
4.5 Payment Terms; Late Payment. All payments hereunder 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. Payments received by a party hereunder 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.
4.6 VAT Invoice. Partner shall be responsible for and shall provide the Consumers, upon written request, with a valid VAT invoice for the Service Charge.
4.7 Collection of Service Charges by HERE. When HERE collects the Service Charges on Partner’s behalf:
4.7.1 Partner authorizes HERE to represent and act as Partner's agent to conclude the contract between Partner and the Consumer for the provision of the Mobility Services to the Consumer, to receive, and collect on Partner's behalf, the Service Charge from the Consumer (if applicable), and to issue on Partner’s behalf invoices, receipts and payment confirmation to the Consumer (if applicable).
4.7.2 Partner acknowledges and agrees that payment of the Service Charge by a Consumer to HERE for remittance to Partner, satisfies and discharges a Consumer’s obligations to pay the Service Charge to Partner. Partner shall be the party to the contract with the Consumer for the booking of Mobility Services. HERE shall not, under any circumstances, be a party to the contract between the Partner and the Consumer for the booking of Mobility Services. Partner agrees that HERE may describe or otherwise reflect the terms contained herein in any terms of service, receipts, disclosures, or notices including, but not limited to, receipts provided to Consumers that HERE may deem necessary or prudent.
4.7.3 HERE shall remit the Service Charges minus the Fees (“Net Amount”) to Partner by wire transfer to a bank account designated by Partner. Partner hereby authorizes HERE to deduct from the Service Charge received by HERE from each Consumer, the amount corresponding to any assessment, fine, sanction, fees or any action, claim, demand, loss, expense or liability due from the Partner and/or any Fees due to HERE from the Partner, by way of a set-off.
4.8 Use of Payment Providers. HERE partners with third-party payment processing service providers (each a “Payment Provider”) for purposes of, inter alia, processing and collecting payments from Consumers and remittance of such payments to Partner and collecting payments from Partner and remittance of such payments to HERE. The current Payment Providers is Adyen N.V. 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.
4.9 Currency. When Partner collects the Service Charge, the Fees shall be paid by Partner in the currency set forth on the applicable invoice issued by HERE, and when HERE collects the payment in accordance with Section 4.7 of this Part B of the Agreement, HERE shall transfer the Net Amount to Partner in the currency of the territory in which Partner provides the Mobility Services, all unless otherwise agreed by the parties, in writing.
4.10 Payment Disputes. Each party can raise payment disputes with the other party via email to HERE at mobility.ar@here.com and to Partner at the email address provided by Partner as part of the Account or which is otherwise associated with Partner (“Dispute Notice”). Each Dispute Notice shall clearly identify the specific booking of Mobility Services with respect to which the dispute is raised and provide a clear rationale for the dispute. Any payment due from one party to the other with respect to any such dispute may be excluded from the payments process until the dispute is resolved. The parties shall have 30 days in which to resolve the dispute, and if no resolution is reached, the matter shall be escalated to the appropriate commercial and sales representatives of the parties. If these representatives are unable to resolve the dispute within 30 days, it will be further escalated to the management level of each party and, if agreement is still not reached within 30 additional days, then the parties agree that it will be arbitrated by a multinational reputable accountancy firm agreed by the parties for such purpose, whose costs for resolving the dispute will be split equally between the parties.
4.11 No Additional Fee. Partner will not charge any 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.
5. REPORTS/AUDITS
5.1 Partner reports. If applicable, Partner shall provide HERE, on a monthly basis, with reports via email to: mobility.ar@here.com that shall include the following: (i) the number of bookings of Mobility Services made by Consumers and all applicable details pertaining to each such bookings, including without limitation, location data (including pick up and drop off locations, times and dates), Driver Data (if applicable), and Vehicle, Service Charge and currency; (ii) the calculation of the Service Charges, including without limitation, breakdown; (iii) if applicable, the number of New Users and Reoccurring Users referred to Partner App or otherwise from the Mobility Products; and (iv) any additional reports as shall be reasonably requested by HERE.
5.2 HERE Reports. If applicable, HERE shall provide Partner, on a bi-monthly schedule (on the 15th and the 30th of each applicable calendar month of the Term), with reports via email to the email address provided by Partner as part of the Account or which is otherwise associated with Partner, that shall include: (i) if Partner uses the Marketplace Dispatcher, analytics on the usage of the Marketplace Dispatcher including, without limitation, details on the types and quantity of usage by Consumers, number of rides etc., and (ii) any additional reports as shall be mutually agreed upon by the parties. The HERE Reports shall be provided as part of the Dispatch Portal. HERE shall not be liable for temporary inaccuracy or unavailability of any data provided online.
5.3 Audit. During the Term and for a period of seven (7) years thereafter, Partner shall maintain accurate and complete records sufficient to verify: (i) Partner’s use of the Mobility Products and its compliance with the Agreement, including but not limited to, Partner’s practices and procedures relating to the delivery, quality, security, and operational aspects of the Mobility Products, and (ii) 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 5. 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: (a) in the event of an overpayment, HERE shall reimburse Partner for such overpayment; and (b) in the event of an underpayment, Partner shall pay HERE for such underpayment within 30 days 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. If an audit finds that there are compliance deficiencies, Partner agrees to address and fix such deficiencies as soon as commercially practical, at its cost and expense.
6. CONFIDENTIALITY
6.1 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 Products and the products and services provided by HERE are 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.
6.2 Press Releases. 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.
7. INTELLECTUAL PROPERTY
7.1 HERE Property. Except as explicitly granted under this Agreement, HERE and its licensors, retain all right, title and interest in and to the Mobility Products (including, without limitation, any applicable Data with respect to which HERE is a data controller), Data that has been de-identified, the HERE Marks, and any derivatives thereof (including without limitation, those developed and created by Partner or any third party on its behalf), 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, its licensors and/or Affiliates. 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.
7.2 Partner Property. Except as explicitly granted under this Agreement, Partner and its licensors, retain all right, title and interest in and to the Partner Products (including, without limitation, any applicable Data with respect to which Partner is a data controller), Data that has been de-identified and any derivatives thereof, including all Intellectual Property Rights therein (collectively, “Partner 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 Partner Property or any other product, service, information or material provided by Partner. All use of the Partner Products shall inure to the benefit of Partner, and HERE shall not: (a) contest, or assist others to contest, Partner’s rights or interests in and to the Partner Products or the validity of Partner’s rights in and to the Partner Products 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 Partner Products. All rights in the Partner Products that are not expressly granted herein are reserved by Partner, its licensors and/or Affiliates. Unless otherwise specified in this 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 10.6 of the Agreement).
8. REPRESENTATIONS AND WARRANTIES
8.1 Each party hereby represents and warrants to the other that: (a) it is a legal entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (b) it has all requisite power and authority to execute and deliver the Agreement and to perform its obligations under the Agreement; (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 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.
8.2 Partner represents and warrants as follows: (a) it is in compliance with and shall continue to be in compliance during the terms hereof with all applicable laws, rules and regulations (including without limitation, and consumer laws and Data Protection Laws, rules or regulations), and industry best practices applicable to the Partner Products; (b) it is solely responsible for any Third Party Software which is part of the Partner Products, (c) it 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 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) it will use the Mobility Products only in accordance with their applicable documentation and/or any additional directions provided by HERE; and (f) it and the Partner Products do not and will not engage in any Forbidden Usage.
8.3 EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE HERE PROPERTY IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; HERE AND ITS LICENSORS MAKE NO WARRANTY THAT THE HERE PROPERTY WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, OR THAT DEFECTS IN THE HERE PROPERTY 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 HERE PROPERTY, 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.
9. INDEMNIFICATION
9.1 Each party (“Indemnifying Party”) shall defend, indemnify and hold harmless the other party its Affiliates, and its and their 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, “Claim”) against (a) the Indemnified Party arising out of, or relating to a breach or alleged breach of any warranty, representation or obligation made by the Indemnifying Party under this Agreement (including without limitation, under Section 3 hereof and the DPA); (b) with respect to HERE as the Indemnifying Party, any Claim against the Indemnified Party arising out of or relating to an allegation that the use by Partner of the Mobility Products in accordance herewith infringes, misappropriates, or otherwise violates the Intellectual Property Rights of any third party; and (c) with respect to Partner as the Indemnifying Party, any Claim against the Indemnified Party arising out of or relating to: (i) the use by HERE of the Partner Products in accordance herewith, infringes, misappropriates, or otherwise violates the rights of any third party including without limitation, privacy rights, and Intellectual Property Rights; (ii) any material breach or negligent performance or non-performance by Partner, its Personnel and/or Drivers of the warranties and obligations contained in Schedule 1; and (iii) the Mobility Services, and as applicable, the Drivers, the Vehicles, and the Micro-Mobility Vehicles, or any act or omission of Partner, its Personnel and if applicable, of its Drivers (including in respect of death, personal injury or damage to property).
9.2 The Indemnifying Party shall have no liability and its 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 it by or on behalf of Indemnified Party; (ii) any modification of the Indemnifying Party’s respective Products or related services without Indemnifying Party’s prior written authorization; (iii) a combination of the Indemnifying Party’s respective Products with any other material not supplied by the Indemnifying Party under the Agreement; (iv) any underlying or enabling technologies that are not wholly part of the Indemnifying Party’s respective 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 Indemnified Party in connection with the licenses granted herein, even if such underlying or enabling technologies are necessary for use of the Indemnifying Party’s respective Products; (v) the Indemnified Party continuing any use of the Indemnifying Party’s respective 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) Indemnified Party’s use of the Indemnifying Party’s respective Products that is not strictly in accordance with the licenses granted under this Agreement. If the Indemnifying Party’s respective Products are found to infringe the Intellectual Property Rights of any third party and a final injunction is obtained in a competent court against Indemnified Party’s use of any of the Indemnifying Party’s respective Products or if in the Indemnifying Party’s opinion actions are needed to avoid potential infringement, the Indemnifying Party may, at its expense and option, replace or modify the affected Indemnifying Party’s respective Products, in whole or in part, with substantially similar, functionally equivalent, non-infringing Indemnifying Party’s respective Products.
9.3 The indemnification obligations set forth in Section 9.1 of the Agreement shall be conditioned upon the Indemnified Party: (a) promptly notifying the Indemnifying Party, of a Claim; (b) providing the Indemnifying Party, at the cost of the Indemnifying Party, with reasonable information, assistance and cooperation in defending the Claim; and (c) giving 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. LIMITATION ON LIABILITY
10.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY AND ITS AFFILIATES, ITS AND THEIR 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 THE USE OF, OR INABILITY TO USE, ITS RESPECTIVE PRODUCTS OR APPLICABLE 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 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 CONFIDENTIALITY AND NON-USE, AND EACH 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 OR ITS RESPECTIVE PRODUCTS, 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 OR ITS RESPECTIVE PRODUCTS 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 PRODUCTS OR SERVICES CONTEMPLATED HEREIN, 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.
10.2 Partner acknowledges and agrees that: (i) each booking of Mobility Services is made between Partner and the relevant Consumer(s), and (ii) HERE will have no liability whatsoever in respect of 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 Consumer and/or Partner (its Personnel and if applicable, its Drivers) under or in connection with any booking or provision of Mobility Services and/or the Mobility Services.
11. INSURANCE
Throughout the Term and for a period thereafter as required by applicable law, Partner shall, at its own expense, maintain in force and effect all relevant insurance coverage as required by law where Partner operates its business activities, including without limitation and as applicable, public liability insurance, vehicle insurance (covering damage and injury to or caused by Vehicles and the Drivers and Consumers), issued by a reputable insurance company and with no less than the minimum amount of insurance cover required by law in such territory or such other amount of cover as HERE may reasonably specify from time to time. Upon HERE’s written request, Partner will provide HERE with copies of the insurance policies and/or insurance policy certificates and evidence that the premiums have been paid up to date. Partner shall promptly notify HERE if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change. Partner’s liability under this Agreement shall not be deemed to be released or limited by it taking out the foregoing insurance policies.
12. TERMINATION
12.1 Termination; Suspension.
12.1.1 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 90 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 10 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.
12.1.2 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 Personnel, Consumers and if applicable Drivers access to the Mobility Products, or request that Partner terminate or blocks any of its Personnel, Consumers and if applicable Drivers access to the Mobility Products, in the event that: (i) HERE believes that there has been any Forbidden Usage, fraudulent or otherwise illegal use, misuse or abuse of the HERE Property; and (ii) HERE believes that Partner, any of its Personnel or if applicable any of its Drivers provided false, inaccurate or misleading information to HERE and/or any third party. If Partner fails or refuses to block any of its Personnel’s, Consumers or if applicable Driver’s access pursuant to HERE’s request, then HERE shall have the right to immediately block Partner’s access to all or any portion of the Mobility Products, at HERE’s sole discretion.
12.2 Effect of Termination. 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 Products; (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 Products from the Partner Products. 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. 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 Products as integrated into the Partner Products.
12.3 Survival. 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 Heading. 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.
13.2 Waiver; Severability. 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.
13.3 Governing Law. 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 13.3 shall not prevent either party from seeking immediate injunctive relief in any court of competent jurisdiction.
13.4 Reputation. 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.
13.5 Export Control. 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 Assignment. 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 13.6, 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.
13.7 Notices. 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.
13.8 No Third-Party Beneficiaries. 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.
13.9 Relationship of the Parties. 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.
13.10 Force Major. 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.
13.11 Equitable Relief. 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 “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.
2 “Business Portal” means a HERE Website through which Partner may create, manage, customize and view usage data and reports on the Mobility Products it utilizes.
3 “Consumer” means an individual who wishes to consume Mobility Services and has made a booking of Mobility Services.
4 “Consumer Data” means information applicable to and/or relating to Consumer(s) which is provided by HERE to Partner and/or by Partner to HERE in connection herewith, including without limitation and as applicable, the Consumer name, email address (if applicable), phone number, location data (including pick up and drop off locations, times and dates), addresses, and any other information which would allow the Consumer to be directly or indirectly identified.
5 “Data” means, collectively, Partner Account Data, Partner Personnel Data, Driver Data and/or Consumer Data.
6 “Data Protection Laws” means all applicable laws and regulations, including laws and regulations of the European Union (including the GDPR), the European Economic Area and their member states, Switzerland and the United Kingdom and CCPA, as applicable to the Processing of Personal Data under the Agreement.
7 “Deep Link” means a hyperlink or a uniform resource identifier (URI) (as applicable) that links from the Mobility Products to, as applicable, the Partner’s website or the Partner’s mobile app (“Partner App”).
8 “Dispatch Portal” means the HERE developed and owned web-based software that enables Partner and its Personnel to manage, supervise and communicate with all the Drivers in its fleet, and includes without limitations, maps, rides and Driver statuses, Premium Features (if applicable), reports (as available) and any other content or materials as may be provide by HERE.
9 “Driver(s)” means, individuals employed or subcontracted by Partner, with all applicable and necessary skill, qualifications and experience of driving vehicles that are the same as or are similar to the Vehicle who will be driving (and/or controlling) the Vehicles that will be used by them to provide Mobility Services.
10 “Driver App” means the HERE developed and owned mobile application that is part of the Marketplace Connector and which (a) the Driver must download from the applicable mobile app store and install on his/her mobile device; (b) is connected to the Marketplace Dispatcher and enables the Partner to supervise the Driver and his/her associated vehicle; and (c) enables the interaction and communication between the Partner and the Driver for the purpose of facilitating the provision of Mobility Services to Consumers.
11 “Driver Data” means information applicable to, and/or relating to Driver(s) which is provided by Partner to HERE, including without limitation and as applicable, the Driver name, email address (optional), phone number, photo (optional), location data (including pick up and drop off locations, times and dates), Vehicle or any other information, which would allow the Drivers to be directly or indirectly identified.
12 “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 by the Consumer; (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 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, hacking, or extracting data from the Mobility Products (to the extent applicable); (h) using the Mobility Products for any purpose which or might overburden, impair or disrupt the Mobility Products 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 Products or creating a new product or service based on the Mobility Products; (k) removing, obscuring, or altering any of HERE’s terms of service or privacy policies or any links to or notices of those terms or privacy policies, or any copyright or HERE Marks; and/or (l) using the Mobility Products to violate the security or integrity of any IT or telecoms infrastructure, systems, devices, hardware or software.
13 “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).
14 “HERE” means the HERE entity whose signature appears on the Agreement on behalf of itself and its Affiliates.
15 “HERE Website(s)” means any website owned and/or operated by HERE, in whole or in part, including without limitation, the Business Portal and any other 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).
16 “HERE-Controlled Consumer Data” means Consumer Data for which HERE Global is the data controller or independent controller pursuant to a separate agreement between HERE and the applicable Consumer.
17 “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.
18 “License Fees” means the license fees set forth in Part A of the Agreement.
19 “Marks” means trademarks, service marks, trade names, brands, logos and other distinctive identification and/or proprietary indicia.
20 “Marketplace Dispatcher” or “Marketplace Connector” means HERE’s proprietary system that enables Partner to manage, operate, control, optimize and administer its fleet. The Marketplace Dispatcher is comprised of two parts, the Dispatch Portal and the Driver App.
21 “Micro-Mobility Solution” means the Mobility Marketplace vertical available for third-party providers of Micro-Mobility Vehicles, that enables such third-party providers to offer Mobility Services to Consumers.
22 “Micro-Mobility Vehicles” means vehicles such as bicycles, electric bicycles, electric scooters and small electric cars, whether they run on charged batteries or not, that can carry one or two Consumers and include options.
23 “Mobility Marketplace” means HERE’s proprietary open mobility marketplace with its applicable Mobility Marketplace Supply Verticals that enables the interaction between Consumers, providers of Mobility Services and providers of access and/or means to consume Mobility Services.
24 “Mobility Marketplace Supply Verticals” means the Mobility Marketplace verticals that Partner may use to make the Mobility Services available to Customers, as indicated on Part A of the Agreement, which include the Taxi and Private Hire Vertical and the Micro-Mobility Vertical.
25 “Mobility Products” means the Mobility Marketplace, the HERE Website(s), and if applicable the Marketplace Dispatcher and all technology, information, data, content, products, tools, mobile applications, software, and any associated documentation or materials that are from time to time provided or made available by or on behalf of HERE under or in connection with the Agreement, including without limitation, any data that is made available by HERE to Partner or its Personnel, all as applicable, and all Intellectual Property Rights in any of the foregoing, including all derivatives thereof conceived or developed by or on behalf of HERE.
26 “Mobility Services” means the services provided by Partner (via its fleet or otherwise) to Consumers through or by using any Mobility Products.
27 “Mobility Supply API” means the mobility application programming interface, software developer kit, documentation, and any software, materials or data that HERE makes available to Partner for integration with the Partner Products such that Partner shall be able to provide Mobility Services to individuals and third parties.
28 “New User” means a Consumer that has installed the Partner App for the first time.
29 “Partner Account Data” means personal data of Partner and Partner Personnel that relates to Partner’s relationship with HERE, including the names and/or contact information of Partner Personnel who have Partner Personnel Accounts and payment information.
30 “Partner-Controlled Consumer Data” means Consumer Data for which Partner is a Controller pursuant to a separate engagement between the Partner and the applicable Consumer, and which includes the following: (a) an occasional Consumer (namely occasional taxi street hailing by a Consumer), (b) a direct contact with a Consumer (namely a Consumer that contacts the Partner directly via phone or otherwise), or (c) a Consumer whose Consumer Data is uploaded by Partner to the Marketplace Dispatcher, in accordance with a contractual obligation between Partner and other third parties; all of the foregoing provided that such Consumer Data was not provided to HERE directly from the Customer or by any other source.
31 “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, Third Party Software) which are either provided by Partner to HERE in accordance with the Agreement, integrated by Partner with any Mobility Products, or otherwise; and if applicable Micro-Mobility Vehicles, and including with respect to all of the above, any applicable Intellectual Property Rights and any derivatives thereof.
32 “Personnel” means any individual who is an employee or independent contractor of Partner, its Affiliates, or its or their consultants or subcontractors, and who is authorized by Partner to access and/or use the Mobility Products, including the access and use of any administrative features and functionality of the Mobility Products..
33 “Personnel Data” means all information, data and records of, applicable to and/or relating to the Personnel available, provided by and/or provided to 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 Personnel’s access to and/or use of the Mobility Products.
34 “Reoccurring User” means a Consumer that has the Partner App installed on his/her device.
35 “Taxi and Private Hire Vertical” means the Mobility Marketplace Vertical available 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.
36 “Third Party Software” means any content, software or other technology that is owned by a third party and which is licensed or otherwise provided or made available by a party to the other party hereunder, including and if applicable, any third party dispatch system licensed by Partner as part of the Partner Products.
37 “Vehicles” means the vehicles (make, types etc.) that are used in connection with the provision of the Mobility Services.