HERE Mobility Marketplace License Agreement General Terms and Conditions (Supply side)
These General Terms and Conditions (Supply Side) are between HERE (as defined below) and the Partner that has executed the HERE Mobility Marketplace License Agreement (Supply Side) that incorporates these General Terms and Conditions (Supply Side) by reference. These General Terms and Conditions (Supply Side) are made a part of the HERE Mobility Marketplace License Agreement (Supply 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 (Supply Side). All references to the term Agreement in these General Terms and Conditions (Supply Side) shall have the meaning set forth in the HERE Mobility Marketplace License Agreement (Supply 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 Driver Data collected using, or entered into, the HERE Mobility Marketplace, as applicable, and/or data relating to the User, the Driver and/or the Mobility Services.
1.3. “Driver” means any employee or subcontractor of Partner who has a vehicle assigned to it as part of Partner’s fleet and which Partner utilizes for the provision of Mobility Services.
1.4. “Driver Data” means all information, data and records of, applicable to, and/or relating to, the Driver that are available as part of the HERE Products, including without limitation and as applicable, names, telephone numbers, location information, routes, license plate number of vehicle assigned, vehicle model, Driver photo, and all communications, transactions and all other information associated with each Driver’s provision of Mobility Services, including such information, data and records uploaded into the HERE Products by Partner.
1.5. “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; (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.
1.6. “HERE” means HERE International, B.V., and all of its Affiliates.
1.7. “HERE Mobility Marketplace” means HERE’s proprietary open mobility marketplace including all mobility services made available thereto and Premium Features (if applicable), as is operated by HERE and made available by or on behalf of HERE, which enables transportation demand partners or Users to be matched with transportation supply providers (such as Partner) that are directly or indirectly connected to the marketplace.
1.8. “HERE Products” means the HERE Mobility Marketplace, HERE Website(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 Driver 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, 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.
1.9. “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.
1.10. “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.
1.11. “Marks” means trademarks, service marks, trade names, brands, logos and other distinctive identification and/or proprietary indicia.
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 the HERE Product(s), excluding (Driver Data), in connection with any Integration Services, and all applicable Intellectual Property Rights and any derivatives thereof.
1.14. “Premium Features” means fleet utilization tools and demand predictions of ride requests at a specific area and time which may be provided to Partner as part of the HERE Mobility Marketplace.
1.15. “Mobility Services” means the transportation services provided by Partner to Users by using any HERE Products.
1.16. “User” means an individual or entity consuming the Mobility Services, whether by use of the HERE Products or otherwise.
1.17. “User Data” means all information, data and records of, applicable to and/or relating to Users available and/or provided to Partner or Driver 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 User’s access to 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 HERE reserves the right to: (i) review the situations where, and the manner in which, Partner obtains acceptance to the collection of User Data and Driver Data; (ii) require Partner to change the implementation of such acceptances; and (iii) acquire or require Partner to acquire additional consents from Users or Drivers if deemed necessary, all at HERE's sole discretion.
2.2 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 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.
2.3 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.
3. GRANT OF LICENSE
3.1 Subject to and conditioned on Partner’s payment of all fees and compliance with the terms and conditions of this Agreement by Partner and its Drivers, 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 associated Data to the extent permitted hereunder. All rights that are not expressly granted herein are reserved by HERE. The HERE Products, 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, Open Source Software or Third Party Software contained in the HERE Products.
3.2 Except as expressly specified in this Agreement, Partner will not: (a) use, copy, create derivative works of or modify the HERE Products or any part thereof; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the HERE Products to any other person or entity; (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; and (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. 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 Drivers’ access to the HERE Products in the event that: (i) HERE believes that there has been fraudulent or otherwise illegal use, misuse or abuse of the HERE Products; or (ii) HERE believes that Partner provided false, inaccurate or misleading information; or (iii) Partner fails to make payments that are due and payable pursuant to this Agreement in a timely manner.
3.3 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, use and distribute the Partner Materials, the Driver Data and the User Data 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.
4. DATA
4.1 In the course of providing the HERE Products to Partner pursuant to the Agreement, HERE may process Data on behalf of Partner. The parties agree that with regard to the processing of Data, Partner is the data controller and HERE Global B.V. is a data processor, and to the extent the Parties are deemed to be co-controllers of such Data under applicable law, the parties shall apportion data protection compliance responsibilities between one another for purposes of compliance with the requirements of applicable data protection laws in the country in which Partner provides Mobility Services(“Data Protection Laws”). To the extent Data provided by Partner includes “personal data” or “personally identifiable information” (as defined under applicable Data Protection Laws), HERE’s processing of such Data shall be within a dedicated, logically segregated platform and limited to the following purposes: (i) the processing, use, storage, disclosure and disposal of such Data for purposes of matching transportation demand partners or Users with transportation supply providers (such as Partner) that are directly or indirectly connected to the HERE Mobility Marketplace; and (ii) the processing of such Data such that it no longer relates to an identified or identifiable natural person or is rendered anonymous in such a way that a data subject is no longer identifiable (“De-Identified Data”), for purposes of utilizing such De-Identified Data in HERE Products. Partner agrees and acknowledges that HERE may maintain, use and distribute such De-Identified Data derived from the Data for its own purposes and Partner agrees to include the relevant language and terms in its privacy policy, and inform the Users and the Drivers, and to the extent legally required, obtain legal and valid consent or establish another legal basis regarding such usage by HERE in accordance with Data Protection Laws. Partner shall comply with, and shall be responsible for each Driver’s compliance with all applicable Data Protection Laws with respect to the Data and information that is provided to or by, or made available to or by, Partner and/or is under its control. Partner shall provide each Driver with a copy of the notice set forth herein below as Annex 1 (“Driver Notice”) together with any and all legally required and otherwise appropriate instructions, warnings, notices and safety information and obtain such affirmative, informed and legally valid consents from each Driver and User as required by applicable laws and regulations prior to accessing and/or receiving Data with respect to each such User and Driver.
4.2 Partner shall, in its use or receipt of the HERE Products, process User Data in accordance with the requirements of applicable Data Protection Laws and Partner will ensure that its instructions for the processing of Data shall comply with applicable Data Protection Laws. Partner shall have sole responsibility for the accuracy, quality, and legality of the Data and the means by which Partner acquired the Data. Notwithstanding the foregoing, Partner acknowledges that Data may be stored and/or processed in a different country than where Mobility Services are provided. Data from a Partner in the European Economic Area (“EEA”) or Switzerland may only be exported or accessed by HERE or its subprocessors outside the EEA or Switzerland, if: (i) the recipient, or the country or territory in which it processes or accesses Data, ensures an adequate level of protection as determined by the European Commission; or (ii) Standard Contractual Clauses (as defined below) for the transfer of personal data to processors established in third countries apply.
4.3 To the extent Partner, in its use or receipt of the HERE Products, does not have the ability to correct, amend, block or delete Data as required by applicable Data Protection Laws, HERE shall comply with any commercially reasonable request by Partner to facilitate such actions to the extent HERE is legally permitted and technically able to do so. HERE shall, to the extent legally permitted, promptly notify Partner if it receives a request from a User and/or a Driver for access to, correction, amendment or deletion of that person’s Data. HERE shall not respond to any such request without Partner’s prior written consent except to confirm that the request relates to Partner. HERE shall provide Partner with commercially reasonable cooperation and assistance in relation to handling of a request for access to that person’s Data, to the extent legally permitted and to the extent Partner does not have access to such Data through its use or receipt of the HERE Products.
4.4 Partner authorizes HERE to subcontract the processing of Data to subprocessors, as required for the functioning of the HERE Products under this Agreement. In case of any subprocessing, HERE shall enter into a written contract with its subprocessor which imposes at least equivalent obligations on the subprocessor as are imposed on HERE under this Agreement; such contract shall include a description of the technical and organizational measures, which the subprocessor has to implement in such a manner that the processing will meet the requirements of the applicable Data Protection Laws. If Partner requests, HERE will inform Partner of the name, address and role of each involved subprocessor. HERE´s use of subprocessors is at HERE´s sole discretion. HERE will notify Partner in advance (by email or by posting on a protected web portal) of any changes to the list of subprocessors in place on the Effective Date (except for emergency replacements or deletions of subprocessors without replacement). If Partner has a legitimate reason that relates to the subprocessor´s processing of personal data, Partner may object to HERE´s use of a subprocessor, by notifying HERE in writing within thirty days after receipt of HERE`s notice. If Partner objects to the use of the subprocessor, the parties will discuss a resolution in good faith. HERE may choose to: (i) refrain from using the subprocessor, or (ii) take the corrective steps requested by Partner as specified in its objection and use the subprocessor. If none of these options are reasonably possible and Partner continues to object for a legitimate reason, either party may terminate the Agreement on thirty days´ written notice. If Partner does not object within thirty days of receipt of the notice, Partner is deemed to have accepted the new subprocessor. Where legally required, HERE has entered into the unchanged version of the Standard Contractual Clauses for the transfer of personal data to processors established in third countries pursuant to Commission Decision 2010/87/EU (“Standard Contractual Clauses”) prior to the subprocessor´s processing of Data. Partner hereby accedes to the Standard Contractual Clauses between HERE and the subprocessor.
4.5 HERE shall ensure that its personnel and subprocessors engaged in the processing of Data and are informed of the confidential nature of the Data and have received appropriate training on their responsibilities and are subject to obligations of confidentiality and such obligations survive the termination of that persons’ or subcontractors’ engagement with HERE. HERE shall ensure that HERE and its Affiliates’ access to Data and is limited to those personnel who require such access to perform the Agreement. HERE has appointed a data protection officer where such appointment is required by Data Protection Laws who may be reached by email at privacy@here.com.
4.6 If HERE becomes aware of any unlawful access to any Data stored on HERE’s equipment or in HERE’s facilities, or unauthorized access to such equipment or facilities resulting in loss, disclosure, or alteration of Data for which notice is required under applicable Data Protection Laws (“Security Breach”), HERE will promptly: (a) notify Partner of the Security Breach; (b) investigate the Security Breach and provide Partner with information about the Security Breach; and (c) take reasonable steps designed to mitigate the effects and to minimize any damage resulting from the Security Breach. Partner agrees that an unsuccessful Security Breach attempt will not be subject to this Section. An unsuccessful Security Breach attempt is one that results in no unauthorized access to, or loss, disclosure or alteration of, Data or to any of HERE’s equipment or facilities storing Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers) or similar incidents; and HERE’s obligation to report or respond to a Security Breach under this Section 4.6 is not and will not be construed as an acknowledgement by HERE of any fault or liability with respect to the Security Breach. Notification(s) of Security Breaches, if any, will be delivered to one or more of Partner’s business, technical or administrative contacts by any means HERE selects, including via email. It is Partner’s sole responsibility to ensure it maintains accurate contact information on HERE’s support systems at all times.
4.7 HERE shall comply with the requirements relating to the security of processing personal data as required by applicable Data Protection Laws. In particular, HERE shall implement and maintain appropriate technical and organizational measures ensuring a level of protection that is reasonable and sufficient in terms of the risks related to the processing and the nature of the involved personal data. A description of the technical and organizational measures, implemented by HERE, is set forth herein below as Annex 2 (“HERE Technical and Organizational Measures”).
4.8 Partner may audit HERE´s security practices relevant to personal data processed by HERE only if: (i) HERE has not provided sufficient evidence of its compliance with the technical and organizational measures through providing a certification as to compliance with ISO 27001 or other standards; (ii) a Security Breach has occurred; (iii) Partner has reasonable grounds to suspect that HERE is not in compliance with its obligations under this Section 4; (iv) an audit is formally requested by Partner´s competent data protection authority; or (v) mandatory Data Protection Laws provides Partner with a direct audit right. Where Partner audits HERE´s environment upon reasonable advance notice of at least sixty days, HERE will reasonably support Partner in its auditing process. The Partner audit will be limited to once in a calendar year and limited to a maximum of one business day without disrupting HERE´s regular course of business. Partner and HERE will each bear their own audit costs.
4.9 HERE shall return Data to Partner and/or delete Data in accordance with HERE’s procedures and applicable Data Protection Laws and/or consistent with the terms of the Agreement; provided that HERE shall have no obligation to delete Data that has been de-identified.
5. REPORTS/AUDIT
5.1 Partner shall provide HERE with a written report on or before the 10th day of each calendar month during the Term, by emails to: (a) licensefeereports@here.com and mobilityfees@here.com, if HERE Europe B.V. is the signatory; and (b) licensefees@here.com and mobilityfees@here.com, if HERE North America LLC is the signatory. Each such report shall include: (i) the number of rides booked by Users and the number of rides actually taken by Users, (ii) the calculation of the Fees, (iii) the length of each ride in miles or kilometers; (iv) the fee paid by the User for each ride; and (v) any additional reports as shall be mutually agreed upon by the parties (collectively, “Partner Reports”).
5.2 During the Term and for a period of two (2) years thereafter, Partner shall maintain accurate and complete records sufficient to verify the accuracy of payments made hereunder including, without limitation, the information contained in each Partner Report. HERE, at its expense and no more than twice per calendar year (unless required by law or a regulatory agency with jurisdiction over HERE), shall be entitled to retain a reputable, independent certified public accounting firm (“Auditor”) solely for the purpose of examining and auditing such records for such purpose, at a mutually agreed upon time during normal business hours. HERE shall limit any such audit to only those records of Partner that are reasonably necessary to audit the Partner for the purposes set forth in this Section 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: (i) in the event of an overpayment, HERE shall reimburse Partner for such overpayment; and (ii) in the event of an underpayment, Partner shall pay HERE for such underpayment and shall also reimburse HERE for HERE’s actual and reasonable out of pocket costs for such audit. Each audit shall cover the prior twelve (12) months under the Agreement.
6. 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 12.6 of these General Terms and Conditions (Supply 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.
7. 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 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, 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. 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.
8. REPRESENTATIONS AND WARRANTIES
8.1 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.
8.2 Partner represents and warrants that it shall: (i) have all necessary rights, title and interest in the Partner Materials, including without limitation, all Intellectual Property Rights, to grant the license and other rights under this Agreement; (ii) comply with all laws and regulations with respect to the Partner Materials, its provision of the Mobility Services, 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.
8.3 EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, THE HERE PRODUCTS, 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 OR 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 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.
9. INDEMNIFICATION
9.1 Each party (“Indemnifying Party”) shall defend, indemnify and hold harmless the other party and/or its Affiliates, directors, officers, employees, agents, successors and permitted assigns (collectively, “Indemnified Party”) from and against any and all claims, damages, losses, suits, actions, demands, proceedings, expenses and/or liabilities of any kind, (including but not limited to reasonable attorneys’ fees) threatened, asserted or filed brought or made by any third party (collectively, “Claims”) against the Indemnified Party arising out of or resulting from a breach or alleged breach of any warranty, representation or obligation made by the Indemnifying Party under this Agreement. The Indemnified Party shall: (i) promptly notify the Indemnifying Party of the Claim; (ii) provide the Indemnifying Party, at the cost of the Indemnifying Party, with reasonable information, assistance and cooperation in defending the Claim; and (iii) give the Indemnifying Party full control and sole authority over the defense and settlement of the Claim; provided, however, that any settlement will be subject to the Indemnified Party’s prior approval (which approval shall not be unreasonably withheld or delayed). The Indemnified Party may join in the defense of the Claim with counsel of its choice at its own expense.
9.2 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.
9.3 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.
9.4 Notwithstanding anything to the contrary in this Agreement, the remedies set forth in this Section 9 shall be the sole and exclusive remedy for Partner regarding third party Intellectual Property Rights infringement claims.
10. LIMITATION ON LIABILITY
10.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, ITS EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION TO DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR WITH RESPECT TO HERE, THE USE OF, OR INABILITY TO USE, THE HERE PRODUCTS OR DATA UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, TO CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT A PARTY HERETO WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
10.2 IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, TO THE FULLEST EXTENT POSSIBLE UNDER APPLICABLE LAW, EXCEED THE AMOUNTS RECEIVED BY HERE UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM IS MADE. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION 10 SHALL NOT LIMIT EITHER PARTY’S LIABILITY FOR BREACH OF ITS OBLIGATIONS IN SECTIONS 2, 3, 5, 6, 7, 8 AND THE INDEMNIFICATION PROVISIONS SET FORTH IN SECTION 9 OR FOR FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR WITH RESPECT TO PARTNER, THE FEES PAYABLE TO HERE.
10.3 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.
11. TERMINATION
11.1 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.
11.2 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.
11.3 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.
12. MISCELLANEOUS
12.1 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.
12.2 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.
12.3 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.
12.4 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.
12.5 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.
12.6 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.
12.7 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.
12.8 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.
12.9 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.
12.10 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.
12.11 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
Driver Notice
You are receiving this document (“Driver Notice”) because the entity that employs you (or contracts for your services, as applicable, your “Contracting Entity”) has entered into an agreement with HERE (“Company”) in order to participate in the Company’s Mobility Marketplace (“Marketplace”). The Marketplace enables transportation demand partners to be matched with transportation supply partners. You are being asked to participate as a driver that will provide transportation services in connection with the Marketplace.
PLEASE READ THIS DRIVER NOTICE CAREFULLY BEFORE TAKING ANY FURTHER ACTION REGARDING THE MARKETPLACE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE MARKETPLACE (E.G., THE TERMS OF USE AND THE PRIVACY NOTICE, WHICH YOU CAN FIND (https://legal.here.com/en-gb/terms/here-mobility-products-supplemental-t... and https://legal.here.com/en-gb/terms/here-mobility-products-supplemental-p...), YOU SHOULD PROMPTLY CONTACT YOUR CONTRACTING ENTITY TO INDICATE THAT YOU DO NOT WISH TO PROVIDE TRANSPORTATION SERVICES IN CONNECTION WITH THE MARKETPLACE.
1. Participation in the Marketplace as a Driver. In order to participate in the Marketplace, you simply need to continue providing transportation services as part of your engagement with the Contracting Entity, in the same way you currently do.
1.1. Continue to log all relevant ride information (e.g., pick-up and drop-off locations; pick-up and drop-off times; number of passengers, etc.).
1.2. Provide your logs to your Contracting Entity.
1.3. Your Contracting Entity will input the relevant information into the Marketplace to facilitate matching riders with transportation services.
2. Notice Regarding Privacy and Terms of Use. We are providing this Driver Notice to make you aware of the following:
2.1. The Terms of Use and the Privacy Notice referenced above implicate your legal rights, so you should be sure to read and understand them. If you have any questions regarding them, please contact your Contracting Entity or the Company at the addresses below.
2.2. The information entered by your Contracting Entity into the Marketplace may identify you personally (e.g., your name, license number, phone number, vehicle identification number, license plate, recent locations, etc.), and such information will be available to third parties using the Marketplace.
2.3. With respect to information uploaded into the Marketplace that may identify you personally (“Driver Personal Data”), your Contracting Entity is the data controller and the Company is the data processor for purposes of compliance with the requirements of applicable data protection laws in the country in which you provide transportation services (“Privacy Laws”). The Company’s processing of your Driver Personal Data shall be within a dedicated, logically segregated platform and limited to the following purposes: (i) the processing, use, storage, disclosure and disposal of such Driver Personal Data for purposes of matching riders with your transportation services; and (ii) de-identifying your Driver Personal Data such that it no longer relates to you or is rendered anonymous in such a way that you are no longer identifiable (“Anonymous Data”), for purposes of utilizing such Anonymous Data in the Company’s other products. Notwithstanding the foregoing, in the event the Company and your Contracting Entity are deemed to be joint data controllers with regard to Driver Personal Data, the Company and your Contracting Entity shall apportion data protection compliance responsibilities between one another for purposes of compliance with applicable Privacy Laws.
Please direct any questions regarding the Marketplace or this Driver Notice, including questions related to privacy, to: support@heremobility.com.
Annex 2
HERE Technical and Organizational Measures
In order to protect personal rights while processing personal data on behalf of Partner, HERE has implemented the following technical and organizational measures (as may be amended from time to time by HERE, at its sole discretion, by providing Partner with written notice thereof):
SECURITY POLICIES AND MANAGEMENT
HERE has ensured that its senior management assigns security responsibilities and reviews the implementation of security within the organization. Senior management has nominated an individual responsible for the overall security, risk management, information security, privacy and controls for handling personal data.
HERE has established and demonstrated commitment to security through an organization-wide security policy (“Security Policy”). This Security Policy and related guidelines are communicated to all employees working on Partner engagement.
HERE has its own, dedicated information classification schema based on information sensitivity (for example, internal, confidential, and secret) and established measure to ensure that information ownership is defined at all times. This schema includes appropriate security controls to protect Partner information, personal data and assets, where applicable.
HERE conducts security risk assessments either for Partner engagement or as part of its normal business operations at least at an annual frequency, incorporating emerging threats, possible business impacts and probabilities of occurrence. HERE modifies the security related processes, procedures and guidelines based on the findings in such security risk assessments.
INDEPENDENT CERTIFICATIONS AND AUDIT RIGHTS
For the production systems which run the HERE services provided under the Agreement and during the term of the Agreement, HERE maintains applicable certifications based on ISO 27001. Upon Partner’s request or at least annually, HERE shall inform Partner about the applicable certifications and/or reports and provide a copy of such certifications and/or reports, including scope of such certifications (including any identified deficiencies), for Partner to review. Information and copies of such certifications and reports shall be confidential information of HERE.
SECURITY INCIDENT MANAGEMENT
HERE has established adequate issue and/or incident response procedures (or plans) and nominated persons to react and minimize in a timely fashion further damage caused by security or privacy issues, vulnerabilities and incidents. HERE notifies and escalates events related to unauthorized disclosure, modification or misuse of Partner´s personal data under the Agreement. HERE shall use agreed incident communications channels in communicating the incident(s) in a timely fashion. HERE shall attempt to mitigate the incident, related to Partner´s personal data, already at the time of noticing and shall report to Partner only such incidents which cannot be excluded from being identified as false alerts. HERE shall have competent people to conduct investigations.
EMERGENCY RESPONSE AND BUSINESS CONTINUITY
HERE has a documented and implemented up-to-date emergency response plan for provided services, focusing on the availability and integrity of the services in scope as well as on the safety of people, premises and assets. Where applicable and necessary, HERE has communicated this plan to its employees.
HERE has appropriate workaround solutions in place for delivering as per agreed applicable Service Level Agreement (SLA), if any. These measures shall be documented in form of a plan and tested as part of Business Continuity testing cycle of HERE.
PERSONNEL AND SUBCONTRACTOR SECURITY
HERE personnel, their subcontractors and their external service providers shall have valid, signed, written confidentiality obligations prior to accessing environments, where Partner’s personal data is processed. HERE shall ensure that there is a verifiable and auditable trail of confidentiality obligations at all times between Partner, HERE and their subcontractors and/or external service providers.
HERE ensures that there is an appropriate entry and exit procedure for personnel changes that includes granting and disabling of user access and returning of assets when terminating the employment with HERE or upon personnel changes related to Services provisioning targeted to Partner.
AWARENESS
HERE conducts security and privacy awareness trainings (or refresher sessions) during induction and thereafter at least annually to all relevant existing employees and new hires. HERE ensures that due emphasis is given to the handling of client confidentiality and specifically unlaunched product information and social media guidelines (and restrictions).
IT SECURITY
HERE has implemented appropriate access control and access rights management designed to ensure that data is only processed by a minimum number of authorized persons who have access to requisite data needed to perform their work-related duties (i.e., role-based access control with least privileges).
HERE maintains the following: processes for authorizing and terminating user access and subcontractor access, including emergency access termination procedure; password management policy including password complexity requirements, no common or shared user accounts in use, password aging where systems do not support use of password managers, and secure delivery of credentials to users; audit records of all existing user privileges, shall be retained and reviewed regularly to remove excess privileges, and processes which ensure segregation of duties.
HERE further maintains a sufficient audit trail and the use of access privileges (changes, who, what, when) is in place when dealing with sensitive (confidential or secret) information.
HERE collects logs pertaining to user access to Partner Data and stores such logs for at least three (3) months unless otherwise restricted by local legislation.
HERE has implemented reasonable and appropriate information security measures (e.g., hardening, patching, antivirus, IDS, etc.) to protect Partner Data against unauthorized or accidental access, use, disclosure, deletion, destruction, loss, alteration or amendment.
HERE only stores and processes Partner Data in an environment where requisite security controls have been implemented. HERE ensures that IT infrastructure and networks are designed and managed to protect IT systems, information, users and electronic communications.
HERE uses industry standard techniques to secure the connectivity between Partner and HERE against eavesdropping and alteration (including wireless access or remote connection), in solutions and services.