HERE Mobility Marketplace License Agreement Terms and Conditions (Demand Side)
These General Terms and Conditions (Demand Side) are between HERE (as defined below) and the Partner that has executed the HERE Mobility Marketplace License Agreement (Demand Side), the HERE Mobility Order Form (Marketplace Demand) or the HERE Mobility Partner Terms of Use, that incorporates these General Terms and Conditions (Demand Side) by reference. These General Terms and Conditions (Demand Side) are made a part of the HERE Mobility Marketplace License Agreement (Demand Side), and are incorporated by reference therein. Any capitalized terms used but not defined herein shall have the meanings set forth in the HERE Mobility Marketplace License Agreement (Demand Side). All references to the term Agreement in these General Terms and Conditions (Demand Side) shall have the meaning set forth in the HERE Mobility Marketplace License Agreement (Demand Side).
1. DEFINITIONS
1.1 “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.; and (b) with respect to Partner, any entity that directly or indirectly: (i) is controlled by Partner; (ii) controls Partner; or (iii) is under common control with Partner. An entity is “Controlled” by another if that other entity has 50% or more of votes in such entity, is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
1.2 “Data” means, collectively, all User Data and Passenger Data collected using, or entered into, the HERE Mobility Marketplace, as applicable, and/or data relating to the User and/or Passenger, or the Mobility Services.
1.3 “Forbidden Usage” means any of the following activities: (a) hacking the HERE 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 HERE 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 HERE Products that are generated without informed and active consent; or (e) use, endorsement, or promotion of content which is pornographic, obscene, excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, libelous, gambling-related, or discriminatory, offensive, misleading or deceptive, or encourages or facilitates violence, terrorism, or illegal activity, including activities that risk national security (f) including or using the HERE Products in, or in connection with, any application, website or other product or service that includes content that is disparaging of HERE, libelous or may otherwise be perceived as detrimental or harmful to HERE and its business and reputation, in HERE’s sole discretion; (g) scraping, harvesting, or extracting data from the HERE Products (to the extent applicable); or (h) using the HERE Products for any purpose which or might overburden, impair or disrupt the HERE Products or related servers or networks.
1.4 “HERE” means HERE International, B.V., and all of its Affiliates.
1.5 “HERE Mobility Marketplace” means HERE’s proprietary open mobility marketplace including all Mobility Services made available thereto, as is operated by HERE and made available by or on behalf of HERE, which enables Partner and other partners or Passengers to be matched with transportation supply providers that are directly or indirectly connected to the marketplace.
1.6 “HERE Products” means the HERE Mobility Marketplace, HERE Website(s), the applicable Mobility Marketplace Service Suite(s) and all technology, information, data, content, products, tools, mobile applications, software, and/or APIs, and any associated documentation or materials that are from time to time operated, provided or made available by or on behalf of HERE under or in connection with this Agreement, including without limitation, any data that is available in the HERE Mobility Marketplace that is made available and used by Partner or a User and all elements, programming, source art, graphics, images and metadata, together with any associated HERE Marks, Third Party Software, look and feel of the HERE Mobility Marketplace, the applicable Mobility Marketplace Service Suite(s), or HERE Website(s), any content and technology on or offered through the HERE Mobility Marketplace, or HERE Website(s), and all Intellectual Property Rights in any of the foregoing, including all derivatives thereof conceived or developed by or on behalf of HERE or its Affiliates. For the avoidance of doubt, HERE Products shall not include the Partner Materials or any part thereof.
1.7 “HERE Website(s)” means any website owned and/or operated by HERE, in whole or in part, including without limitation, any website that includes a login mechanism to view reports and analysis regarding the HERE Product(s) and their use, as applicable.
1.8 “Intellectual Property Rights” means all of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) Marks, corporate names, and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data, data compilations and databases (whether or not copyrightable); (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case, whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and any and all other similar or equivalent proprietary rights, forms of protection provided by applicable law in any jurisdiction throughout the world now or hereafter in force and effect worldwide.
1.9 “Marks” means trademarks, service marks, trade names, brands, logos and other distinctive identification and/or proprietary indicia.
1.10 “Mobility Marketplace Service Suite(s)” means the HERE Mobility Marketplace service(s) that Partner will use to make the Mobility Services available to Passengers and Users (if applicable), as indicated on the first page of the Agreement, and which include the Mobility Web Widget, the Mobility Kiosk App, the Mobility Demand API, the Mobility SDK and the Mobility for Concierge.
1.11 “Mobility Services” means the transportation services provided by transportation supply partners to Passengers via any HERE Products.
1.12 “Open Source Software” means: (a) any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software (e.g., under the GNU General Public License, GNU Lesser General Public License, Apache Software License, Creative Commons license, Mozilla license, BSD-style license), or pursuant to similar licensing and distribution models; and (b) any software that requires as a condition of use, modification, or distribution of such software that such software or other software incorporated into, derived from, or distributed with such software: (i) be disclosed or distributed in source code form; (ii) be licensed for the purpose of making derivative works; or (iii) be redistributable at no or minimal charge.
1.13 “Partner Materials” means any technology, content, information and materials provided by Partner to HERE, or integrated by Partner into and/or with the HERE Product(s), in connection with any Integration Services or otherwise, and all applicable Intellectual Property Rights and any derivatives thereof, excluding any information that is provided by Partner to HERE that shall be owned by HERE as set forth in this Agreement.
1.14 “Passenger(s)” means consumers (including prospective consumers) of the Mobility Services at Partner’s locations, facilities and/or via Partner’s software, hardware or digital interfaces, including but not limited to hotel guests, airport travelers, and other consumers seeking to book rides and/or hail taxi cabs via the Mobility Services as the same are made available via the applicable Mobility Marketplace Service Suite(s) and in connection with the Partner Materials.
1.15 “Passenger Data” means all information, data and records of, applicable to and/or relating to Passenger(s) available and/or provided to Partner, its Users and/or to HERE as part of the HERE Products, including without limitation and as applicable, names, email addresses, telephone numbers, location information, and all communications, transactions, and all other information associated with each Passenger’s access and/or use of the Mobility Services.
1.16 “User” means an individual or entity utilizing (including indirectly, on behalf of Passengers): (a) the Mobility Services, whether by use of the HERE Products or otherwise; and/or (b) any applicable HERE Products
1.17 “User Data” means all information, data and records of, applicable to and/or relating to Users available and/or provided to Partner and/or to HERE as part of the HERE Products, including without limitation and as applicable, names, identification number (if applicable), email addresses, telephone numbers, account information such as username and password, usage statistics, and all communications, transactions and all other information facilitated by and/or associated with each User’s access and/or use of the Mobility Services.
1.18 “Third-Party Software” means any content and software or other technology that is owned by a third party and licensed or otherwise provided to a party herein.
2. HERE PRODUCTS
2.1 Subject to the terms and conditions contained herein, HERE shall provide Partner with access to the applicable HERE Mobility Marketplace Service Suite(s) that Partner elected on the executed Agreement.
2.2 HERE reserves the right to: (i) review the situations where, and the manner in which, Partner obtains acceptance to the collection of Data; (ii) require Partner to change the implementation of such acceptances; and (iii) acquire or require Partner to acquire additional consents from Users and Passengers if deemed necessary, all at HERE's sole discretion.
2.3 Upon its availability during the Term, Partner shall have access to an online account made available on a HERE Website (“Account”) via which Partner will be able to view reports and analysis regarding the applicable HERE Product(s). Partner is responsible for safeguarding and maintaining the confidentiality of the Account and all information provided therein, including without limitation, its username and password. Without limiting any other terms of the Agreement, if Partner does not access its Account for a consecutive period of six (6) months or more, HERE may disable the Account or suspend access to it without notice. HERE retains the exclusive right at its sole discretion and at any time to: (i) determine the features, services, products, software or other tools available to Partner as part of the Account; (ii) add, modify or remove any materials and/or functionality made available in the Account; and (iii) change the settings and/or appearance of the Account or any elements thereof. HERE reserves the right to upgrade and update the HERE Products including without limitation, the Account, at its sole discretion. Should such upgrade or update be material, HERE shall provide Partner with written notice thereof.
2.4 The parties shall agree on: (a) the scope of the integration of the licensed HERE Product(s) with the Partner Materials, as well as any milestones that may be required as part of the integration (“Integration Services”); and (b) the date by which the licensed HERE Product(s) shall be made available to the public (“Launch Date”). If integration of any third party software or products with the HERE Product(s) is necessary, the parties shall agree on an appropriate fee payable to HERE for such additional work.
2.5 Partner, and not HERE, is responsible for providing all customer and technical support and maintenance for the Partner Materials as integrated with the HERE Products. HERE has no obligation to provide any type of technical or other support for the Partner Materials as integrated with the HERE Products or any services or content related thereto.
2.6 HERE reserves the right, at its sole discretion, to modify, improve and/or discontinue, temporarily or permanently, any part of the HERE Products at any time with or without notice to Partner. Partner acknowledges and agrees that HERE has no obligation to ensure that any upgrade of the HERE Products will be compatible with existing or planned Partner Materials.
2.7 Partner represents and warrants that during the term of this Agreement, it shall: (i) maintain and publish adequate terms of use and privacy policy in accordance with the requirements of applicable laws, including without limitation Data Protection Laws (as defined below), with respect to the Users’ and/or Passengers’ use of the Partner Materials as integrated with the HERE Products, and Partner’s access and/or use of such User Data and/or Passenger Data (collectively, “Partner Terms”); (ii) receive the Users’ and/or Passengers’ consent (where legally required to do so) in an active, clear and distinguished manner in accordance with applicable Data Protection Laws; and (iii) ensure that its privacy policy explains (a) what information Partner collects; (b) why Partner collects such information; (c) how Partner uses such information; (d) the delineation of roles between HERE and Partner as described in Section 4 below; and (e) how Users and Passengers can access and update information. The Partner Terms shall also disclose to Users and Passengers that Partner allows HERE to collect information as set forth in HERE’s applicable privacy notice, available at https://legal.here.com/en-gb/privacy. The Partner Terms shall be in compliance with applicable law and regulations, and the terms of this Agreement. The Partner Terms are an agreement between Partner and the Users or Passengers (as applicable) and HERE has no obligation and/or liability with respect to the Partner Terms. Partner may not impose any terms on the Passengers that are inconsistent with the terms of this Agreement, and/or impose any liability on HERE unless otherwise set forth herein. To the extent any such conflict exists, the parties agree that HERE’s privacy notice shall prevail. Partner may only access and/or collect Data subject to the Users’ and/or Passengers’ (as applicable) prior and express consent (where legally required to do so) and in accordance with applicable laws and regulations.
2.8 Upon reasonable notice to Partner, HERE may audit and inspect Partner’s use of the HERE Products and its compliance with this Agreement, including but not limited to Partner’s practices and procedures relating to the delivery, quality, security, and operational aspects of the HERE Products. Upon request by HERE, Partner will give HERE access to its facilities, offices, and any information required by HERE to evaluate the provision of the HERE Products. Notwithstanding any right that HERE has under this Agreement, Partner agrees to correct any deficiencies found during an audit at its expense.
3. GRANT OF LICENSE
3.1 Subject to and conditioned on Partner’s payment of all fees (if applicable) and compliance with the terms and conditions of this Agreement by Partner and its Users, HERE hereby grants to Partner a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, revocable license during the Term to access and use the HERE Products identified on the first page of this Agreement (including such additional HERE Products that are necessary to access or use the HERE Products identified on the first page of this Agreement) and the Passenger Data for which HERE is a data controller (“HERE-Controlled Passenger Data”) as further described in the applicable Annex(es) that relate to the applicable Mobility Marketplace Service Suite(s), including without limitation the applicable HERE Products related thereto, to the extent permitted hereunder. All rights that are not expressly granted herein are reserved by HERE. The HERE Products, the applicable HERE-Controlled Passenger Data, the HERE Marks and all other Intellectual Property Rights in the HERE Products, and any license rights, applications and registrations therefor, are reserved by HERE and its respective third party licensees and licensors. Partner may not make any use of the HERE Products, in whole or in part, not expressly permitted hereunder. Partner will not attempt to interfere with or disrupt the HERE Products or attempt to gain access to any systems or networks that connect thereto except as expressly permitted herein. Except as otherwise provided in the Agreement, HERE shall not be responsible for the HERE Products, the applicable HERE-Controlled Passenger Data, Open Source Software or Third Party Software contained in the HERE Products.
3.2 Except as expressly specified in this Agreement, Partner will not, and will not encourage or authorize others, to: (a) use, copy, create derivative works of or modify the HERE 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 HERE Products to any other person or entity, or export, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the HERE Products or any part thereof, whether by operation of law or otherwise; (c) use the HERE Products in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement or any applicable law; (d) integrate or combine the HERE Products, in whole or in part, with any other service, software or hardware not delivered or pre-approved in writing by HERE under this Agreement; or (e) directly or indirectly attempt to resell, redistribute, syndicate, otherwise commercials the HERE Products or any HERE content available therein in any way. Partner agrees not to disassemble, decompile, attempt to derive the source code of, or otherwise reverse engineer the HERE Products or any part thereof, or permit or authorize any other person or entity to do so. HERE reserves the right, at its sole discretion, to immediately terminate or suspend Partner’s and/or any of Partner’s Passengers, guests or customers’ access to the HERE 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 Products; or (ii) HERE believes that Partner provided false, inaccurate or misleading information to HERE and/or any third party. HERE has absolute editorial control over all HERE Products and any content available therein or in connection thereto, which HERE may modify, in whole or in part, at any time without prior notice.
3.3 Subject to the terms and conditions of this Agreement, Partner hereby grants to HERE a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable license during the Term to access and use and distribute the Partner Materials and the applicable User Data and Passenger Data (except with respect to HERE-Controlled Passenger Data and/or Passenger Data for which HERE is a data controller pursuant to a separate agreement between HERE and the applicable Passenger) solely as part of the integration and use of the HERE Products and the Partner Materials to the extent permitted herein. All rights that are not expressly granted herein are reserved by Partner. HERE may not make any use of the Partner Materials, in whole or in part, not expressly permitted hereunder. HERE will not attempt to interfere with or disrupt the Partner Materials, or attempt to gain access to any systems or networks that connect thereto, except as expressly permitted herein.
3.4 The parties agree that in consideration for the license granted by HERE herein, Partner shall provide HERE with access to potential Passengers who will utilize the HERE Products via the Partner Materials.
3.5 PARTNER MAY NOT DIRECTLY OR INDIRECTLY ATTEMPT TO RE-SELL, REDISTRIBUTE, SYNDICATE OTHERWISE COMMERCIALIZE THE HERE PRODUCTS OR HERE CONTENT IN ANY WAY.
4. DATA
Additional terms and conditions regarding the roles and obligations of Partner and HERE with respect to the collection and processing of Data are set forth in the Annex applicable to the Mobility Marketplace Service Suite(s) selected by Partner (as applicable, the Mobility Web Widget, the Mobility Kiosk App, the Mobility Demand API, the Mobility SDK, or the Mobility for Concierge).
5. CONFIDENTIALITY
The Agreement and all business, technical, financial or otherwise proprietary information provided by one party to the other shall be treated as confidential information (“Confidential Information”). The party receiving Confidential Information shall not disclose it to any third party, excluding the receiving party’s employees, or its Affiliates’ employees, and then only on a need-to-know basis and only if such employees are bound by written confidentiality obligations at least as restrictive as those contained herein. The party receiving Confidential Information shall keep it confidential using the same degree of care used to protect its own confidential information, and in no event less than a reasonable degree of care. Upon termination of the Agreement or upon request of disclosing party, the party receiving Confidential Information will return or destroy (and certify such destruction) all of the disclosing party’s Confidential Information, including all documents and media containing such Confidential Information, and all copies or extracts thereof. The receiving party shall not have any duty to maintain in confidence any information that: (a) is publicly available without restriction through no fault of the receiving party or its employees, Affiliates or agents; (b) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information, as evidenced by written documentation; (c) was rightfully in the possession of the receiving party without restriction prior to its disclosure by disclosing party, as evidenced by written documentation; or (d) was independently developed by receiving party’s employees or consultants without access to the disclosing party’s Confidential Information, as evidenced by written documentation. Notwithstanding the foregoing, the receiving party may disclose Confidential Information if required by law, or by order of a court of competent jurisdiction, provided that (to the extent permitted by law) the receiving party provides to the disclosing party prompt written notice of such requirement sufficient to allow the disclosing party to seek a protective order. If such order is not given, the receiving party shall only disclose that portion of the disclosing party’s Confidential Information that its counsel advises is legally required to be disclosed. Unless otherwise specified in the Agreement, HERE may, and Partner hereby grants to HERE the limited, non-exclusive, royalty-free and fully-paid up, non-transferable (except in connection with Section 11.6 of these General Terms and Conditions (Demand Side)) right and license to, refer to Partner as one of HERE’s customers and use Partner’s logo as part of such reference, provided that HERE complies with any trademark usage requirements notified to it by Partner. All media releases, public announcements and public disclosures relating to the terms or existence of this Agreement must be approved by the other party prior to their release. The duty to protect Confidential Information shall expire three (3) years from the date of termination of this Agreement.
6. INTELLECTUAL PROPERTY
By virtue of the Agreement, no ownership of any Intellectual Property Rights relating to the HERE Products or any other product, service, information or material provided by HERE (including, without limitation, HERE-Controlled Passenger Data to Partner is assigned or transferred to Partner. The structure, organization, and code of the HERE Products and the products and services provided by HERE are the valuable trade secrets and Confidential Information of HERE, its licensors and/or Affiliates. Except as explicitly granted under this Agreement, HERE, its licensors and/or Affiliates, retain all right, title and interest in and to the HERE Products (including, without limitation, HERE-Controlled Passenger Data), and any derivatives thereof, including any Intellectual Property Rights therein (collectively, “HERE Property”), and no other right, license, release, covenant not to sue or other rights or immunities, express or implied, by estoppel, or otherwise, are granted to any part of the HERE Products or any other product, service, information or material provided by HERE (including, without limitation, HERE-Controlled Passenger Data). All use of the HERE Property shall inure to the benefit of HERE, and Partner shall not: (i) contest, or assist others to contest, HERE’s rights or interests in and to the HERE Property or the validity of HERE’s rights in and to the HERE Property and all applications, registrations or other legally recognized interests therein, or (ii) seek to register, record, obtain or attempt to pursue any Intellectual Property Rights or other proprietary rights or protections in or to the HERE Property. All rights in the HERE Property that are not expressly granted herein are reserved by HERE, its licensors and/or Affiliates.
7. REPRESENTATIONS AND WARRANTIES
7.1 Each party hereby represents and warrants to the other that: (i) it is a legal entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (ii) it has all requisite power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement; (iii) the execution and delivery of this Agreement will not conflict with or violate any other agreement to which such party is a party; (iv) it is not a party identified on any governmental export exclusion lists; and (v) it will implement, maintain and comply with all applicable data privacy and security measures in connection with its collection, processing, transfer and use of personal data, if any, under this Agreement or as required by applicable law.
7.2 Partner represents and warrants that it shall: (i) have all necessary rights, title and interest in the Partner Materials, including without limitation, all Intellectual Property rights, and the User Data, and Passenger Data for which HERE is not a data controller) to grant the license and other rights under this Agreement; (ii) comply with all laws and regulations with respect to the Partner Materials, its provision of the Mobility Services, including Data Protection Laws, and the access and use of the HERE Products; (iii) not violate, misappropriate, or infringe any Intellectual Property Rights, or other proprietary rights, rights of privacy, or rights of personality or any other right of any third party or of HERE; (iv) not engage in any Forbidden Usage; and (v) only use the HERE Products for the purposes and in the manner expressly permitted by this Agreement.
7.3 EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, THE HERE PRODUCTS AND HERE-CONTROLLED PASSENGER DATA, AND ANY OTHER SERVICE OR PRODUCT PROVIDED BY HERE ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS; HERE, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY THAT THE HERE PRODUCTS OR DATA WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, OR THAT DEFECTS IN THE HERE PRODUCTS AND HERE-CONTROLLED PASSENGER DATA WILL BE CORRECTED. HERE, ITS AFFILIATES AND LICENSORS SPECIFICALLY DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE HERE PRODUCTS AND HERE-CONTROLLED PASSENDER DATA, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE.
8. INDEMNIFICATION
8.1 Partner shall defend, indemnify and hold harmless HERE and its Affiliates, directors, officers, employees, agents, successors and permitted assigns (collectively, “HERE Indemnified Party”) from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses and/or liabilities of any kind, (including but not limited to reasonable attorneys’ fees) threatened, asserted or filed brought or made by any third party (collectively, “Claims”) against the HERE Indemnified Party arising out of or resulting from: (a) a breach or alleged breach of any warranty, representation or obligation made by Partner under this Agreement; or (b) any claim that Partner’s implementation of HERE Products, the Mobility Marketplace Service Suites, or the Partner Materials infringes, misappropriates, or otherwise violates the proprietary rights of such third party.
8.2 HERE shall defend, indemnify and hold harmless Partner from and against any and all Claims against Partner alleging that the HERE Products or Mobility Marketplace Service Suites infringe, misappropriate or otherwise violate the proprietary rights of such third party.
8.3 The party entitled to indemnification (the “Indemnified Party”) shall: (i) promptly notify the party obligated to provide indemnification (the “Indemnifying Party”) of the Claim; (ii) provide the Indemnifying Party, at the cost of the Indemnifying Party, with reasonable information, assistance and cooperation in defending the Claim; and (iii) give the Indemnifying Party full control and sole authority over the defense and settlement of the Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior approval (which approval shall not be unreasonably withheld or delayed). The Indemnified Party may join in the defense of the Claim with counsel of its choice at its own expense.
8.4 If the HERE Products are found to infringe the Intellectual Property Rights of any third party and a final injunction is obtained in a competent court against HERE or Partner’s use of any of the HERE Products or if in HERE’s opinion actions are needed to avoid potential infringement, HERE may, at its expense and option, replace or modify the affected HERE Products in whole or in part, with substantially similar, functionally equivalent, non-infringing HERE Products.
8.5 HERE shall have no liability and HERE’s foregoing obligations do not apply to the extent any claim, judgment or settlement is either partially or in whole based on: (i) any software or services provided to HERE by or on behalf of Partner; (ii) any modification of the HERE Products or related services without HERE’s prior written authorization; (iii) a combination of the HERE Products with any other material not supplied by HERE under the Agreement; (iv) any underlying or enabling technologies that are not wholly part of the HERE Products`, including but not limited to operating systems, communication protocols, radio connectivity, positioning technologies (including but not limited to A-GPS), devices, hardware, user interfaces (including but not limited to touch screen based interaction) and which are used or incorporated by Partner in connection with the licenses granted herein, even if such underlying or enabling technologies are necessary for use of the HERE Products; (v) Partner continuing any use of the HERE Products after being notified of any allegedly infringing activity or after being informed of or provided with modifications that would have avoided the alleged infringement; or (vi) Partner’s use of the HERE Products that is not strictly in accordance with the licenses granted under the Agreement.
8.6 Notwithstanding anything to the contrary in this Agreement, the remedies set forth in this Section 8 shall be the sole and exclusive remedy for Partner regarding third party Intellectual Property Rights infringement claims.
9. LIMITATION ON LIABILITY
9.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL HERE, ITS AFFILIATES, ITS OFFICER, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO THE PARTNER OR ANY THIRD PARTY FOR ANY 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, PROPERTY DAMAGE 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, THE HERE PRODUCTS OR THE MOBILITY MARKETPLACE SERVICE SUITES OR DATA UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, TO CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT PARTNER 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.
9.2 IN NO EVENT SHALL HERE’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED USD $1,000. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION 9 SHALL NOT LIMIT PARTNER’S LIABILITY FOR BREACH OF ITS OBLIGATIONS SECTIONS 2, 3, 5, 6, 7, 8 AND THE INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 8 OR FOR FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
9.3 THE PARTIES AGREE THAT WITH RESPECT TO ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ANY PART OF THIS AGREEMENT OR THE PRODUCTS OR SERVICES CONTEMPLATED HEREIN, UNLESS SUCH CAUSE OF ACTION COMMENCES WITHIN TWELVE (12) MONTHS AFTER SUCH CAUSE OF ACTION ACCRUES (OR THE SHORTEST PERIOD OF TIME OTHERWISE PERMITTED UNDER APPLICABLE LAW, WHICHEVER IS SHORTER), SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
10. TERMINATION
10.1 The term of this Agreement shall commence as of the Effective Date and shall continue in effect until terminated as provided herein. In addition to the termination rights set forth elsewhere in this Agreement, this Agreement may be terminated by either party: (i) for any reason and without liability, by providing the other party with 90 days’ prior written notice; or (ii) immediately: (a) if the other party breached any of its obligations, representations or warranties set forth in the Agreement and failed to cure such breach within 10 days from receipt of a written notice thereof; or (b) by written notice to the other party, if such party becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency, or suffers or permits the commencement of any form of insolvency, administration or receivership proceeding, or has any petition under bankruptcy, insolvency or administration law filed against it, which petition is not dismissed within 30 days of such filing, or has a trustee, administrator or receiver appointed for a material portion of its business or assets. A party that becomes subject to any of the events described in the foregoing sub-clause (b) shall immediately notify the other party in writing.
10.2 Upon the termination of this Agreement: (i) all rights and licenses granted herein shall terminate immediately and Partner shall cease all use of the HERE Products; and (ii) each party shall promptly return to the other party, or destroy and certify the destruction of all Confidential Information of, the other party. No termination will affect Partner’s obligation to pay all Fees that may have become due before such termination, or entitle Partner to any refund.
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 HERE may modify this Agreement at any time, after a reasonable prior written notice to Partner (which may be made by email); provided, however, that any modification that may have material impact on Partner, shall only be made subject to the parties’ mutual written consent.
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 this Agreement.
11.3 If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions hereof shall be unaffected thereby and remain valid and enforceable as if such provision had not been set forth herein. The parties agree to substitute for such provision a valid provision that most closely approximates the intent of such severed provision.
11.4 This Agreement shall be construed and governed by the substantive laws of the Netherlands if HERE Europe B.V. is the signatory and by the substantive laws of the State of Illinois, USA, if HERE North America LLC is the signatory. If several HERE Affiliates sign the Agreement, the law of the domicile of the first HERE Affiliate signatory governs. 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 shall not prevent either party from seeking immediate injunctive relief in any court of competent jurisdiction.
11.5 Partner acknowledges that HERE 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 HERE 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.
11.6 The rights and obligations of each party under this Agreement may not be transferred or assigned directly or indirectly without the prior written consent of the other party, which consent will not be unreasonably withheld, except that HERE may assign this Agreement to a parent, subsidiary, or any other affiliates. For purposes of this Section, a change in control of Partner shall be regarded as an assignment. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto.
11.7 Any notice given by one party to the other party shall be deemed properly given if specifically acknowledged by the receiving party in writing or when delivered to the recipient by hand, fax or special courier during normal business hours to the addresses set forth at the beginning of this Agreement (or such other address as may be notified in writing from time to time by either party). Notices shall be deemed to be received on the first business day following receipt. Each communication and document made or delivered by one party to the other party pursuant to this Agreement shall be in the English language or accompanied by a translation thereof.
11.8 This Agreement is between HERE and Partner. No third party beneficiaries are intended. In connection with this Agreement each party is an independent contractor and as such does not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, partnership or agency relationship between the parties for any purpose.
11.9 Neither party shall be liable to the other for a failure to perform any of its obligations under this Agreement, except for payment obligations, due to circumstances beyond its reasonable control, provided such party notifies the other of the delay.
11.10 It is expressly agreed that a breach by a party of the applicable license granted in the Agreement, an infringement by a party of the Intellectual Property Rights of the other party, or a breach by a party of its confidentiality obligations set forth herein, may cause irreparable harm to the other party which harm cannot be adequately compensated for in damages. Therefore, in addition to any and all remedies available at law, the non-breaching party will be entitled to seek an interim injunction or other interim equitable remedies, in a court of competent jurisdiction, in the event of any threatened or actual breach or infringement of any or all of the above provisions.
11.11 Each party will comply with all applicable anti-corruption laws, including those that prohibit the promise, the payment, the authorization of, or the giving directly or indirectly of money or things of value to any person or entity for the purpose of inducing or rewarding any 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 this Agreement. Each party will permit inspection of these records for the duration of this Agreement upon reasonable written notice from the other party.
Annex 1 - Mobility Web Widget
Annex 2 - Mobility Kiosk App
Annex 3 - Mobility Demand API
Annex 4 - Mobility SDK
Annex 5 - Mobility for Concierge