This HERE Platform Agreement, including all exhibits and any referenced documents (collectively, the “Agreement”), is an agreement between Customer and the HERE Contracting Party including its Affiliates (collectively “HERE”). The Agreement takes effect when it is approved by Customer or, if earlier, when Customer accesses the HERE Platform for the first time (“Effective Date”). When approving the terms on behalf of Customer, you represent that you have the legal authority to bind the entity on behalf of which you accept this Agreement. Capitalized terms are defined in Section 17 below.
1 ACCESS TO THE HERE PLATFORM
1.1 Subject to Customer’s compliance with this Agreement and the relevant Exhibits, Customer may access the HERE Platform. The HERE Platform consists of 1) the Administrative Services to monitor, operate and manage Customer’s operations within the HERE Platform; 2) HERE Platform development environment for uploading, storing, processing, and/or enhancing Customer Content, and developing Applications with the Platform Services and for downloading the SDKs (Exhibit 1); 3) HERE Marketplace for licensing or otherwise making available the Customer Offering to Marketplace Consumers and licensing the Customer Offering offered by Marketplace Providers (Exhibit 2); 4) Location Services for using the location related services through APIs (Exhibit 3); 5) HERE Content offered by HERE through HERE Marketplace, subject to additional terms, (Exhibit 4); and 6) HERE Labs for testing and evaluating beta products and services (Exhibit 5).
1.2 To access the HERE Platform, each Customer’s user must create a HERE Account associated with a valid email address. Customer will ensure that all users that access HERE Platform through Platform Organization are authorized by the Customer do so and comply with Customer’s obligations under this Agreement. If users should no longer have access to Platform Organization or Customer becomes aware of any violation of Customer’s obligations under this Agreement caused by a user, Customer will immediately suspend access to Platform Organization and to HERE Platform by such user.
1.3 Customer is responsible for all activities that occur under Platform Organization regardless of whether the activities are authorized or undertaken by Customer, Customer’s employees or a third party (including Customer’s contractors, agents or other users). HERE is not responsible for unauthorized access to Platform Organization.
1.4 Any sublicenses and distribution rights granted by Customer shall be subject to Customer’s compliance with the terms of this Agreement and shall be granted under a written agreement with terms no less restrictive, and no less protective of HERE, than the Agreement. Customer shall remain liable under this Agreement for acts and omissions of sublicensees, and a breach of the terms hereof by a sublicensee shall be deemed a breach by Customer.
1.5 HERE will provide the level of support services and service level according to the applicable Support Plan as agreed by the Parties. HERE will not provide any support services to third parties within the Platform Organization unless HERE has a separate agreement with Customer.
1.6 HERE has the right to analyze, monitor and evaluate, either through machine learning or other processes, Customer’s access and use of the HERE Platform. HERE may use the anonymized and/or aggregated learnings, findings, and outcome thereof to develop, improve and optimize HERE products, services and processes, and to verify Customer’s compliance with the terms of this Agreement.
2 AVAILABILITY AND CHANGES
2.1 The HERE Platform may not be available in or accessible from all territories. HERE may, without liability to Customer, suspend, limit or throttle the access to and availability of HERE Platform and/or any Customer Offering, 1) to address any emergency, misuse or threat to the operation of the HERE Platform and/or any Customer Offering, actual or perceived; 2) in the event of breach of the Agreement or a payment default, 3) to comply with the applicable legislation, to respond to requests or demands of a government entity; and 3) pursuant to a privacy or copyright ”notice and take down” request and violation of trade compliance and export control regulations, Intellectual Property Rights, or other third party rights. HERE shall inform Customer of such suspension or limitation as soon as practical.
2.2 HERE may amend, change, deprecate or discontinue the HERE Platform or any part thereof, from time to time by providing a notification to Customer through HERE Platform, Platform Organization and/or as described in the HERE Lifecycle Policy. The changes become effective on the date identified on the notification or HERE Lifecycle Policy.
3.1 Unless otherwise expressly set out elsewhere in this Agreement, Customer will ensure and be solely responsible for ensuring that its Customer Offering and Customer Content and its use of the HERE Platform comply with applicable laws (including but not limited to privacy laws and export control restrictions), the HERE Platform Acceptable Use Policy (“AUP”) and rights and restrictions in this Agreement. Customer is responsible for ensuring that all Customer End Users comply with Customer’s obligations under the AUP and the use rights and restrictions in this Agreement.
3.2 Unless otherwise expressly set out elsewhere in this Agreement or agreed by the Parties, or to the extent the use is solely for Customer’s internal evaluation and testing purposes, the Licensed Materials or Services may not:
a. be integrated into a vehicle system or any component thereof, including vehicle positioning sensors (for example GPS, triangulation, odometer, compass, gyroscope or accelerometer), navigation terminals or black boxes, and display screens installed in the vehicle (including a windshield display);
b. be used to provide individual maneuvers and/or individual maneuver alerts along a route in real-time, including the automatic recalculation of a route if an End User deviates from the original route;
c. be used for a solution stored on a mobile device that is capable of connecting to a vehicle head-unit, in order to transfer or emulate the mobile device’s screen image onto an in-vehicle head-unit display, and allowing the end user to control or operate the mobile device through the vehicle head unit or vice versa;
d. be used for or in connection with any systems or functions for automatic or autonomous control of vehicle (either ground, aerial, manned or unmanned) behavior, including systems or functions for the control of vehicle speed, braking, suspension, fuel, emissions, headlights, stability, drive train management, visibility enhancement and steering, commonly known as Advanced Driver Assistance System (ADAS) or Highly Autonomous Driving (HAD) functionalities;
e. be used for applications with or for fleet management such as asset tracking (in motion or at rest), dispatch, private or commercial transportation applications, including taxi and vehicle-for-hire, usage based insurance, and telematics applications for collecting and analyzing historical driving information related to an asset, grouping, managing and/or optimizing (or any possible combination of the aforementioned) a plurality of vehicles together into a platoon, generating platooning plans (pre-scheduled or ad-hoc), platoon routes, platoon stops, and a platoon target arrival times.
3.3 Unless otherwise expressly set out elsewhere in this Agreement or agreed by the Parties, the following is not permitted:
a. exposing the Licensed Materials or Services to any open source software, open content or open database licenses or other resembling terms where such licenses or terms would (a) cause the disclosure or distribution of the Licensed Materials or Services (or any part thereof); (b) grant any licenses to any derivative works of any Licensed Materials or Services (or any part thereof); (c) cause redistribution of the Licensed Materials or Services (or any part thereof) at no charge, as a condition for use, modification or distribution of such other material; or (d) otherwise restrict or impact the licensing or other use of the Licensed Materials or Services (or any part thereof);
b. combining datasets with HERE Content, except Customer may layer its own content and third-party content (including points of interest, visual content and dynamic content, including traffic) on top of HERE Content, provided that the origin of the non-HERE content can be distinguished by including correct attribution;
c. modifying HERE Content;
d. creating a derivative geographic, Point of Interest (PoI) or other content database based on HERE Content or other HERE Intellectual Property Rights including any translation, or other alteration of HERE Content or HERE Intellectual Property Rights;
e. caching or storing outside the HERE Platform any Output that includes anything from use of HERE Content or Location Services for more than 30 days, unless it is solely for Customer’s internal testing and evaluation purposes;
f. caching or storing Output from HERE Content and Japan Location Services for Japan (with the exception of Geocoding and Search) for more than 24 hours, unless Customer provides a prior written notice to HERE, in which case Customer can cache for a maximum of 7 days;
g. creating any Output that contains unenhanced or unmodified HERE Content or scaling one request for Output to serve multiple End Users;
h. use incorrect attribution of any information derived from the HERE Platform;
i. modify in any manner the annotation data (including but not limited to the island names and sea names) and national boundary lines in the Japan content included in HERE Content;
j. using outdated versions of the HERE Platform.
4 HERE POLICIES AND ADDITIONAL TERMS
4.1 The HERE Platform Acceptable Use Policy (https://legal.here.com/en-gb/terms/here-platform/acceptable-use-policy) and the Supplier Terms Applicable to Location and other Content (https://legal.here.com/terms/general-content-supplier-terms-and-notices) apply with respect to any use of the HERE Platform. To the extent the Customer Content includes any personal data the HERE Data Processing Agreement applies to the processing of such personal data.
4.2 The HERE Platform may include software provided by third parties that is subject to open source software or other similar terms that HERE may be obligated to pass through to Customer with the delivery of the software. Customer shall comply with all such open source software license or other similar terms, as applicable. HERE reserves the right to amend or replace such terms from time to time.
5 CUSTOMER RECORDS AND REPORTING
5.1 If pricing for the Licensed Materials or Services is based on a Customer reported unit of measure as described in Listing or additional terms for specific Licensed Materials or Services, Customer shall, on or before the 10th day of each calendar month, provide HERE with a written fee report of Customer-reported units of measure for the previous month (“Sell-out Report”). The Sell-out Report shall set forth the fees, the units of measure (e.g. Assets, Monthly Active Users, etc.), any applicable discount, currency and other information HERE may request. Customer shall provide HERE with monthly Sell-out Reports even if no fees are due.
5.2 Customer shall, for each individual Customer Offering and for three (3) years after any fees accrue, keep records concerning (i) the number of units of measure agreed under the respective Listing (such as Assets, Monthly Active Users etc.); and (ii) information sufficient to demonstrate the scope of use and distribution of the Licensed Materials and Services.
HERE may verify Customer’s compliance with this Agreement, including but not limited to fees, by inspecting Customer’s records on Customer’s premises upon 30 days’ prior written notice and without causing unreasonable disruption. Any inspection will occur within three (3) years following the due date of the applicable fee and will be at HERE’s expense, except as follows: If the inspection determines that Customer has underpaid, Customer will pay the difference plus interest within 30 days of the completion of the inspection; and if underpayment is 5% or more of the inspection findings, Customer shall, within 30 days of the completion of the inspection, pay the difference plus interest, and reimburse HERE the cost of the inspection. This Section 6 shall survive expiration or termination of this Agreement for a period of three (3) years.
7 FEES AND TAXES
7.1 Customer will pay all fees and other charges due to HERE as are defined in the HERE price list available through the Platform Organization, any additional agreement for add-on materials to be accessed via the HERE Platform, Listing or other document agreed by the Parties.
7.2 HERE may change the fees by providing a notification of the change and the updated price information to Customer through Platform Organization and platform.here.com. The changes become effective on the date identified in the platform.here.com page or in case new Licensed Materials and/or Services are added, when Customer starts using the new Licensed Materials and/or Services. The effective date for price increases shall not be earlier than 60 days after the date of the notification of the change. If the price increases, Customer may terminate this Agreement in accordance with Section 8.
7.3 Unless otherwise explicitly agreed by the Parties for a specific Licensed Materials or Service, each payment is due 30 days from the invoice date. Amounts not paid when due will accrue interest at a rate of the lesser of 1.5% per month or the highest rate allowed by law.
7.4 All fees are nonrefundable and exclusive of applicable taxes and duties, including sales tax and VAT and any income taxes calculated on HERE's net income, for which HERE is solely responsible. If Customer is required by law to withhold taxes based upon fees paid by Customer to HERE under this Agreement, Customer may deduct such tax from the fees payable to HERE and remit them to the appropriate government authorities provided that: (i) Customer may only deduct such tax to the extent that the revenue pertains to fees paid by Customer to HERE; (ii) such deduction is in accordance with the valid tax treaty rates between the countries where the Parties reside; and (iii) Customer shall promptly send HERE a certificate showing the payment of such tax. Customer shall notify HERE of any deduction or withholding required by law.
8 TERM AND TERMINATION
Either Party may terminate the Agreement by notice to the other Party (i) due to an uncured material breach after thirty (30) days prior notice, or immediately if such material breach cannot be remedied, (ii) with immediate effect in case of bankruptcy, insolvency or assignment for the benefit of creditors, or (iii) with six (6) months prior notice. Within thirty (30) days following termination or expiration of the Agreement, Customer will (a) discontinue use of the HERE Platform, and parts thereof and HERE Marks; and (b) return, remove or destroy (with certification) the Licensed Materials. If Customer terminates the Agreement without cause, HERE may charge and Customer shall pay the total of Customer’s committed minimum fees/consumption (if any) for the then remaining minimum contract term.
9 USE OF MARKS AND MARKETING OPPORTUNITIES
9.1 Customer may not remove or obfuscate any HERE Marks, or copyright notices affixed to or included in the Licensed Materials or Output. Customer shall ensure that the HERE Marks and copyright notices are present in the Licensed Materials and Output in accordance with HERE brand guidance (https://brandlive.here.com/). Customer must indicate that HERE is the owner of HERE Marks. All goodwill from the use of HERE Marks inures to HERE.
9.2 The Parties will discuss in good faith a) the rights to use either Party’s name and/or logo in either Party’s marketing materials regarding the Parties’ relationship, including referencing Customer among a list of HERE customers and b) marketing opportunities such as press releases, blog posts, analyst engagement, case studies or similar. Any such activities shall be subject to the other Party’s brand guidelines, review and express written consent prior to publication.
10 INTELLECTUAL PROPERTY RIGHTS
All right, title, and interest in and to the HERE Platform (including any, information comprising ideas, suggestions, complaints, relating thereto), and HERE Marks are the property of HERE or its licensors and no part thereof shall be considered a “work made for hire” or a work made in the course of employment unless explicitly agreed to in writing. Except as explicitly granted in Section 1.1 or an Exhibit, no other rights or licenses, express or implied, are granted under the Agreement, including any technologies that may be necessary for the use or enablement of the HERE Platform by Customer. No ownership of any Intellectual Property Rights relating to the HERE Platform, HERE Marks or any other product, service, information or material provided by HERE to Customer is assigned or transferred to Customer. The structure, organization, and code of the HERE Platform and any other products and services provided by HERE are the valuable trade secrets and Confidential Information of HERE, its licensors and/or Affiliates.
11 WARRANTIES; EXCLUSION OF WARRANTIES
11.1 Each Party represents and warrants to the other that: (i) it is duly organized and in good standing under the laws of the jurisdiction of its organization; (ii) it has all corporate authority to execute and perform the Agreement; (iii) its execution of the Agreement will not conflict with or violate any other agreement to which such Party is a party; and (iv) it is not a party identified on any governmental or export exclusion lists.
11.2 EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, TO THE EXTENT PERMITTED BY LAW THE HERE PLATFORM, AND ANY PARTS THEREOF ARE PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS WITH ALL DEFECTS. HERE, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY THAT THE HERE PLATFORM WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. EXCEPT AS PROVIDED IN THE AGREEMENT HERE, ITS AFFILIATES AND THEIR LICENSORS SPECIFICALLY DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE HERE PLATFORM, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY IMPLIED WARRANTIES ARISING FROM LAW, COURSE OF DEALING, PERFORMANCE OR OTHERWISE. HERE IS NOT RESPONSIBLE FOR AND WILL HAVE NO LIABILITY FOR HARDWARE, SOFTWARE, TECHNOLOGY, OR OTHER ITEMS OR ANY SERVICES NOT PROVIDED BY HERE.
12.1 HERE (as “Indemnitor”) agrees to (a) defend Customer and its Affiliates, contractors and suppliers (as “Indemnitees”) from and against any third party claims alleging that HERE Platform provided by HERE infringes or misappropriates such third party’s Intellectual Property Rights, and (b) will indemnify and hold harmless Indemnitees against any damages, attorney fees and costs finally awarded to the extent they result from such claims.
12.2 Customer (as “Indemnitor”) agrees to (a) defend HERE and its Affiliates, contractors and suppliers (as “Indemnitees”) from and against any third party claims alleging that any Customer Content, Customer Offering or instructions provided or made available by Customer infringes or misappropriates such third party’s Intellectual Property Rights, and (b) will indemnify and hold harmless Indemnitees against any damages, attorney fees and costs finally awarded to the extent they result from such claims.
12.3 The indemnification obligations of the Parties specified above are subject to the following conditions: Indemnitee must (i) promptly notify the Indemnitor in writing; (ii) give the Indemnitor control over the defense of such claims; (iii) reasonably cooperate in the defense at Indemnitor’s expense, and (iv) not enter into any settlement and/or acknowledge any liability without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld. Notwithstanding subsection (ii), Indemnitee may, at its own expense, select its own counsel to independently monitor and participate in any such defense.
12.4 If HERE determines action is needed to avoid potential infringement, HERE may, at its expense: (i) procure for Customer the continued right to the relevant parts of the HERE Platform ; (ii) replace or modify the HERE Platform, in whole or in part with functionally equivalent to the original, or (iii) request Customer to discontinue use of the HERE Platform, in whole or in part, subject to a refund by HERE of the pro-rated amount of the fees for the discontinued parts of the HERE Platform received by HERE from Customer.
12.5 HERE shall have no liability or obligations under this Section 12 if the claim, judgment or settlement is based on (i) any use or combination of the HERE Platform or parts thereof with software, services, technologies or other material provided by or on behalf of Customer by a party other than HERE; (ii) any unauthorized modification of the HERE Platform or modifications done by HERE pursuant to a Customer specification; (iii) Customer continuing any allegedly infringing activity after being notified of any such allegedly infringing activity or after being informed of or provided with replacement HERE Platform that would have avoided the alleged infringement; (iv) Customer’s breach of the license restrictions and rights granted under the Agreement or (v) the Customer Offering except where the claim is based wholly on the HERE Platform.
12.6 Notwithstanding anything to the contrary in the Agreement, this Section 12 shall be the sole and exclusive remedy for Customer by HERE regarding third party Intellectual Property Rights infringement claims.
13 LIMITATION OF LIABILITY
13.1 To the extent permitted by law, except in cases of (i) intentional misconduct or gross negligence, (ii) death, personal injury or physical property damage, (iii) breach of a nondisclosure obligation under 14, or (iv) breach of the scope of the licenses granted herein: Neither Party shall be liable to each other for any loss of profit, goodwill or any indirect, special, consequential, incidental or punitive damages or expense of any kind, howsoever arising under the Agreement even if advised of the possibility of such damages.
13.2 To the extent permitted by law, except in cases of (i) intentional misconduct or gross negligence, (ii) death, personal injury or physical property damage, (iii) breach of a nondisclosure obligation under 14, or (iv) breach of the scope of the rights and licenses granted herein: For any and all claims brought under the Agreement, regardless of the nature of the claim or the basis on which the claim is made, the aggregate, cumulative and total liability of each Party, its employees, licensors and Affiliates will in no event exceed the amount of fees paid by Customer under this Agreement in the 24 months preceding the first incident from which the claim arose. The foregoing limitations will not apply to Customer’s payment obligations or to either Party’s indemnity obligations under Section 12.
14.1 Unless a separate Non-Disclosure Agreement is in effect between the Parties and except as expressly permitted, each Party will hold in confidence and not use or disclose any Confidential Information received hereunder. Each Party may disclose Confidential Information of the other to those of its (and its Affiliates’) employees with a need to know, provided that such employees are bound by confidentiality obligations at least as restrictive as those contained herein. Confidential Information will be treated in the same manner that the receiving Party protects its own proprietary information of a similar nature.
14.2 Upon termination of the Agreement or upon request of the disclosing Party, the receiving Party will return to the disclosing Party or destroy (and confirm such destruction in writing) all Confidential Information of the disclosing Party including any and all copies or extracts thereof. There shall be no obligation to treat as Confidential Information any information the receiving Party can document: (a) is or has become readily 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 empowered to disclose such information; (c) was rightfully in the possession of the receiving Party without restriction prior to its disclosure by the other Party; or (d) was independently developed by employees or consultants of the receiving Party without access to Confidential Information.
14.3 A Party may disclose Confidential Information received from the other Party to the extent it is required to be disclosed by law or by judicial or regulatory process, provided that the receiving Party gives prompt notice of the requirement of the disclosure (where it is lawful to do so) to the disclosing Party to allow the disclosing Party a reasonable opportunity to seek a protective order before the required disclosure, and to the extent lawful and practical to do so, consult with the disclosing Party as to the disclosure requirement with a view to agreeing the extent, content, and timing of the disclosure.
15 EXPORT CONTROL AND ECONOMIC SANCTIONS
15.1 Licensed Materials and Services may be subject to export controls of various jurisdictions. Customer agrees to comply with all applicable export control laws and regulations, including without limitation, those of the United States, the United Kingdom, and the European Union (“Export Controls”). Customer shall be responsible for obtaining any required licenses or other authorizations for the export of License Materials, Services, or any technology and/ or any Customer Offering. Customer agrees that it will not export or reexport, directly or indirectly, any Licensed Materials, Service or any technology in any form, destined for any restricted or prohibited destinations, end users, or end uses, or cause HERE to do the same, without obtaining any prior authorizations required by the applicable Export Controls. With regard to the People’s Republic of China (PRC), Customer will not import or in any way make PRC maps usable or available from Mainland China, unless Customer obtains prior approval from applicable PRC authorities. With regard to the Republic of Korea (South Korea), Customer will not export or in any way transfer any map data for South Korea outside of South Korea unless Customer obtains prior approval from applicable South Korea authorities. To the extent any similar restrictions on the export of map data apply in other jurisdictions, Customer shall comply with all such restrictions and obtain any required authorizations.
15.2 Customer agrees to comply with all applicable laws and regulations, including without limitation those of the United States, the United Kingdom, and the European Union, concerning trade restrictions, embargoes, and economic sanctions (“Sanctions Laws”). Customer represents and warrants that it is not a person subject to economic sanctions imposed by any relevant government entity, including a person designated on the Specially Designated Nationals (“SDN”) and Blocked Persons List or any other economic sanctions laws administered by the U.S. Office of Foreign Assets Control (“OFAC”). Customer acknowledges that certain destinations may be subject to comprehensive embargoes maintained by the United States, the United Kingdom, the European Union, or another relevant authority or government entity. Under applicable Sanctions Laws, dealings with certain entities and persons, including SDNs and those owned 50 percent or more by SDNs, are restricted or prohibited. Customer agrees that it will not provide, directly or indirectly, any Licensed Materials or Service, or technology to any embargoed destination or to any restricted or prohibited entity or person in violation of applicable Sanctions Laws, or cause HERE to do the same, without obtaining the required licenses or other authorizations from the relevant authority or government entity. Customer further agrees and acknowledges that HERE may, without any penalty or other liability to Customer for such action, suspend or cease its provision of products, or services or technology to Customer if Customer becomes a person or entity subject to Sanctions Laws that are applicable to HERE’s products, services or technology to be provided to Customer, until (in the case of suspension) such sanction is withdrawn or Customer is otherwise exempted from the application of the relevant Sanction Law by the applicable authority.
16.1 Notices. The notices may be posted to through the HERE Platform or sending a message to e-mail address identified for Customer in the Platform Organization or for HERE in the HERE Platform portal. All legal or default notices or notifications must be written, delivered by hand or overnight/express mail addressed at the address of the other Party set forth in this Agreement. Any Party shall keep the e-mail addresses up-to date and inform the other Party about changes to their address without undue delay. Such notices shall be effective upon receipt.
16.2 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If HERE provides a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
16.3 Entire Agreement and Modifications. The Agreement, Exhibits, the HERE Policies, and any other documents expressly referred to herein, together constitute the entire agreement between the Parties regarding the subject matter hereof. The Agreement supersedes all prior oral or written communications, representations, undertakings and agreements of the Parties relating to the subject matter of the Agreement. In the event there is a conflict between the terms of this Agreement and any of the Exhibits, the Exhibits shall prevail. HERE may modify this Agreement (including any HERE Policies) at any time by posting the updated terms on-line to the HERE Platform or by providing a notice of a material change to Customer through HERE Platform and/or e-mail as described in Section 16.1. The modified terms will become effective upon posting or, if a notice of a material change is provided, as specified in the notice. Customer agrees to be bound by the modified terms, if the Customer continues using the HERE Platform after the effective date of the modified terms.
16.4 Assignment. A Party may assign the Agreement to an Affiliate, or any entity that acquires substantially all its operations, stock, or assets and agrees in writing to be bound by this Agreement. Any other transfer or assignment is not permitted except with the prior written consent of the non-assigning Party.
16.5 Severability. If any provision of the Agreement is held to be unenforceable, the remaining provisions shall be unaffected and enforceable as though the unenforceable provision had not been included.
16.6 Waiver. No waiver will be effective unless set forth in writing and signed by the Party charged with such waiver, and no waiver of any right arising from any breach will be deemed to be a waiver or authorization of any other breach or of any other right arising under the Agreement.
16.7 Force Majeure. Excluding payment, confidentiality and indemnification obligations, neither Party shall be liable to the other for a failure to perform any of its obligations under the Agreement due to circumstances beyond its reasonable control, provided such Party notifies the other of the delay.
16.8 Relationship of Parties. No third-party beneficiaries are intended. Each Party is an independent contractor. Neither Party has any authority to bind or commit the other. There is no joint venture, partnership or agency relationship between the Parties for any purpose.
16.9 Governing Law. The Agreement shall be construed and governed by the substantive laws of the Netherlands; if either HERE North America LLC or HERE LATAM Mexico, S. de R.L de C.V. is the HERE Contracting Party, by the substantive laws of the State of Illinois, USA, without giving effect to any conflict of law provisions. The United Nations Convention of Contracts for the International Sale of Goods is not applicable to the Agreement.
16.10 Dispute Resolution. Any 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 either HERE North America LLC or HERE LATAM Mexico, S. de R.L de C.V. is the HERE Contracting Party such dispute shall be submitted to the competent court in the State of Illinois, USA, without prejudice to Parties’ right to appeal or cassation. Either Party may seek immediate injunctive relief in any court of competent jurisdiction.
16.11 Survival. Sections 4.1, 7 and 10 - 14 survive expiration or termination of the Agreement for any cause or without cause. The same applies to any provisions any terms herein or other referenced document which reasonably should survive. Section 6 shall survive for a period of three (3) years as specified therein.
17.1 Administrative Services mean the services, including but not limited to Access Manager, Projects Manager, Logs and Monitoring, offered by HERE to Customer for monitoring, operating and managing the use of the HERE Platform through the Platform Organization as are described in the relevant Documentation.
17.2 Affiliate means (i) with respect to HERE, HERE International B.V. and any entity that directly or indirectly is Controlled by HERE International B.V. and (ii) with respect to Customer, any entity that directly or indirectly (a) is Controlled by Customer; (b) Controls Customer; or (c) is under common Control with Customer; (iii) “Control” means a situation in which an entity (the “Controlling” entity), in relation to another entity (the “Controlled” entity), (a) has fifty percent (50%) or more of votes in such entity, (b) is able to direct its affairs and/or (c) controls the composition of its board of directors or equivalent body.
17.3 Application means data product, software, websites or comparable products and/or services developed by or on behalf of Customer that make use of the Licensed Material(s) or Services and as may be further defined in an Exhibit.
17.4 Confidential Information means this Agreement, HERE Platform and all business, technical, financial and other information that is not publicly available and that a Party receives from the other Party. For clarity, Personal Information (where the parties expressly agree to include) is defined and addressed in separate schedule or addendum and is not included in the definition of Confidential Information.
17.5 Customer means the legal entity on behalf of which these terms have been approved.
17.6 Customer Content means anything, including but not limited to content, data, software or information that Customer licenses via HERE Marketplace or otherwise transfers to HERE Platform. Customer Content excludes HERE Content, Location Services and Customer Content which has been enriched, enhanced, optimized or otherwise modified using Platform Services.
17.7 Customer Offering means the Application or other data product, software, API or service that Customer makes available through Marketplace Listing.
17.8 Platform Organization means Customer specific organization which scopes all the users, applications, resources, materials and activities within the same security namespace.
17.9 Documentation means any written materials and specifications for the HERE Platform or any parts thereof.
17.10 End User means any entity or person who (i) receives or uses a Customer Offering, or (i) accesses all or any portion of the HERE Content or Services in or through a Customer Offering, with no right to sublicense.
17.11 HERE Content means the HERE map and other content and data described in the relevant Listing or other Documentation and licensed to Customer under the terms as set forth in an Exhibit, in the Listing and/or as otherwise agreed by the Parties.
17.12 HERE Contracting Party means HERE Europe B.V. with offices at Kennedyplein 222-226, 5611 ZT Eindhoven, The Netherlands, or (i) HERE North America, LLC with offices at 425 West Randolph Street, 60606 Chicago, Illinois, USA, if Customer’s registered address is in any country within the Americas, (ii) HERE Philippines, Inc. if Customer’s registered address is in the Philippines, iii) HERE Solutions Korea Co. Ltd. if the territory for the license is South Korea only, or (c) HERE LATAM Mexico , S. de R.L. de C.V. if the territory for the license is Mexico and the Customer’s registered address is in Mexico.
17.13 HERE Marketplace means the marketplace, including related services, and APIs, provided by HERE to Customer acting as Marketplace Provider and/to Marketplace Consumer under the terms of this Agreement and Exhibit 2, as applicable.
17.14 HERE Marks means trademarks, logos, service marks, trade names and similar designations of HERE.
17.16 HERE Platform means the Licensed Materials, Services and the platform portal including various tools, materials and services offered by HERE through platform.here.com.
17.17 Intellectual Property Rights means any and all rights existing from time to time under patent law, copyright law, trademark law, whether registered or unregistered, and any and all other similar proprietary rights, as well as any and all applications, renewals, extensions, divisionals, continuations, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
17.18 Licensed Materials means the Documentation, HERE Content, software development kits (“SDKs”), application programming interface (“APIs”), Platform APIs, Platform Tools and/or other HERE products, software or services, and any associated Documentation, provided by HERE as specified in an Exhibit or this Agreement.
17.19 Listing means the description of the Customer Offering in HERE Marketplace by Marketplace Provider.
17.20 Location Services means the HERE location services which return Results to End Users through Application.
17.21 Mainland China means the area of People’s Republic of China excluding Hong Kong, Macau and Taiwan
17.22 Marketplace Consumer means a customer who accesses the HERE Marketplace for the purpose of discovering and licensing Customer Offering.
17.23 Marketplace Provider means a customer who uses the HERE Marketplace to license Customer Offering to Marketplace Consumers.
17.24 Output has the meaning set forth in Exhibit 1.
17.25 Services means any services, including but not limited to the Administrative Services, Platform Services, Marketplace Services and Location Services, offered or made available by HERE through the HERE Platform to Customer from time to time as are defined in the relevant Exhibit and/or Documentation.
SDKs AND PLATFORM SERVICES TERMS
Open Standard Schema means the SDII standard schema and/or other standard schema definitions and implementations thereof as described in applicable Documentation.
Output means Results, data or other information created by Customer with Platform Services, Location Services or HERE Content.
Platform Services means the services offered by HERE to Customer through HERE Platform, including but not limited to for the processing, analyzing, enhancing and creating for the development of Applications, as described in Documentation.
SDK(s) means software development kits and other software including the data client library as are described in the relevant Documentation.
2. GRANTED RIGHTS
2.1 Subject to Customer’s compliance with the Agreement, during the Term, HERE agrees to
1) provide Customer the Platform Services as specified in Documentation;
2) grant Customer a non-exclusive, non-transferable, non-sublicensable (unless otherwise permitted herein), revocable (on termination for breach or expiration of this Agreement), limited right to download, copy and use the SDKs in binary form solely for:
a) accessing and using the Platform Services for development and internal testing on Customer’s local computers only (i.e., developing and testing in any third party server environment is not permitted);
b) analyzing, processing, enriching, enhancing, optimizing or otherwise modifying Customer Content and licensed HERE Content with Platform Services;
c) creating Output and developing and running Applications in HERE Platform as specified in Documentation;
3) grant Customer the right to:
a) copy, modify and create derivative works from Output;
b) integrate Output, derivative works of Output, parts of the SDKs (as specified in the Documentation), data APIs and/or Open Standard Schema (“Redistributables”) into Applications to provide services to (i) End Users of Customer’s products and services (“Customer End Users”) and/or (ii) its third-party business customers (“Customer Partners”);
c) distribute Redistributables as embedded into Customer’s Applications to its Customer End Users and/or Customer Partners, either directly or through HERE Marketplace; and/or
d) grant its Customer Partners the right to integrate the Redistributables as embedded into Applications into such Customer Partners’ products and further distribute Redistributables to End Users, through multiple levels of distribution.
3. LIMITED RIGHTS GRANTED BY CUSTOMER
HERE agrees to store Customer Content and Output and make it available only to Customer. HERE has the right to use Customer Content only for the purpose to provide HERE Platform and related services to Customer. HERE shall have the right to remove Customer Content from HERE Platform at any time if, in HERE’s reasonable discretion such content is in violation of the HERE Policies. No ownership of any Intellectual Property Rights to Customer Content is transferred to HERE in this Agreement. Customer has the right to remove Customer Content from HERE Platform at any time. Customer shall be responsible for any additional back-up of Customer Content and acknowledges that HERE shall not be responsible for any loss of, damage to or unauthorized use of Customer Content that occurs as part of the Customer Content processing workflows.
4. LIABILITY FOR OUTPUT AND APPLICATIONS
Customer shall have the sole responsibility for the Output and for any claims and liabilities arising out of or related to the licensing or the use of Applications unless otherwise explicitly stated in this Agreement. Customer shall (i) test each Application before making it available to any Customer Partners or End Users; and (ii) be solely responsible for any technical support for and any services related to Applications.
5. END USER TERMS
HERE MARKETPLACE TERMS
In addition to the definitions in the HERE Platform Agreement, the following definitions shall apply.
Marketplace Services means the services offered by HERE to Customer through HERE Marketplace, as are described in relevant Documentation.
Sample Customer Offering means a portion of Customer Offering that is provided by the Marketplace Provider to Marketplace Consumers for internal testing and evaluation purposes for a limited period of time as described in Documentation.
2. HERE MARKETPLACE
2.1. Subject to Customer’s compliance with the Agreement, during the Term, HERE agrees to grant the Customer a right to access the HERE Marketplace to
1) download, copy and install the APIs, as described in Documentation, and use them for the purposes described below;
2) use the Marketplace Services as described in the Documentation;
3) view and discover the Listings and to license the Customer Offerings from Marketplace Providers, subject to separate agreement with the relevant Marketplace Provider; and
4) subject to additional terms agreed by the Parties, act as Marketplace Provider, create Listings, upload Customer Offerings into the HERE Marketplace and license Customer Offerings to Marketplace Consumers under separate agreement with the Marketplace Consumer.
3. LISTINGS AND CUSTOMER OFFERING
3.1. HERE agrees to make the Customer Offering available through HERE Marketplace to those Marketplace Consumers to whom Marketplace Provider has granted access to that Customer Offering. HERE shall have no liability or responsibility for providing any technical support or service related to the Customer Offering unless otherwise explicitly stated in this Agreement. HERE shall have the right to remove Customer Offering from HERE Marketplace at any time if, in HERE’s reasonable discretion such content is in violation of this Agreement or HERE Policies or applicable laws.
3.2. Marketplace Provider shall be responsible for additional back-up copying of Customer Offering and acknowledges that HERE shall not be responsible for any loss of, damage to or unauthorized use of Customer Offering that occurs when transferring the Customer Offering within or making it available through HERE Marketplace.
3.3. Notwithstanding anything to the contrary under Section 13.2 of the Platform Agreement, Marketplace Provider shall be solely responsible for its compliance with applicable laws and use, distribution and licensing with respect to its Listings and Customer Offering, including any and all claims, disputes and liabilities arising therefrom and made against HERE or other third parties, unless otherwise explicitly stated in this Agreement. Marketplace Provider shall
1) comply with applicable laws and regulations;
2) make the Customer Offering to Marketplace Consumers available in accordance with the agreements between Marketplace Provider and Marketplace Consumer; and
3) provide any technical support and any services related to its Customer Offering excluding the technical support HERE provides for the HERE Marketplace.
3.4. The agreement for the use of the Customer Offering shall be made by and between Marketplace Provider and Marketplace Consumer outside the HERE Marketplace. Such agreement may not conflict with any of the restrictions as are defined in this Agreement. To the extent the Customer Offering involves processing of personal data by the Marketplace Provider, the Marketplace Consumer agrees that such processing will be governed by the separate agreement between the Marketplace Provider and the Marketplace Consumer. The Marketplace Provider shall not be a sub-processor to HERE, and by using the Customer Offering, the Marketplace Consumer instructs HERE to disclose the personal data to the Marketplace Provider. HERE may at its sole discretion decide to assist in any dispute, if the dispute relates to any features, functionalities or otherwise to the HERE Marketplace or to any interests of HERE.
HERE LOCATION SERVICES TERMS
In addition to the definitions in the Platform Agreement the following definitions shall apply.
Location Services APIs means the APIs described in the Documents used access the Location Services.
Request means each call to a HERE API from an Application.
Result means each unique delivery of information in response to a Request.
2. SPECIFIC TERMS RELATED TO LOCATION SERVICES
2.1 Subject to Customer’s compliance with the Agreement, during the Term, HERE agrees to grant the Customer a right to download the Location Service APIs and integrate into and distribute in the Applications.
2.2 In addition to what is mentioned in the Platform Agreement for caching, Customer may not use any Licensed Materials in a manner that pre-fetches, caches, or stores data or Results, except:
1) as explicitly allowed by the caching headers (HTTP/1.1 standard) returned by HERE Location Services; or
2) to the extent Customer is storing or caching for no more than thirty (30) days only to the extent necessary for enabling or improving an End User's use of the HERE Location Services.
3) HERE Positioning Results can be cached for 24 hours.
3. END USER TERMS.
HERE CONTENT TERMS
1. HERE CONTENT AVAILABILITY
1.1 HERE makes HERE Content available through Listings in the HERE Marketplace. In addition to the terms of this Agreement, the HERE Content will be subject to the additional terms, including but not limited to the description of the permitted use cases, defined in the relevant Listing. The HERE Content will be made available to Customer only once the additional terms in the Listing have been approved by Customer.
1.2 Customer may not create, distribute, sublicense or otherwise make available any HERE Content or Output that contains unenhanced or unmodified HERE Content, unless explicitly granted in the terms attached to the Listing or otherwise agreed by the Parties.
1.3 HERE Content for certain countries or areas of the territories may not be completed and will only be available hereunder upon general release by HERE following completion of such map content.
2. END-USER TERMS
In all instances where any portion of the HERE Content is delivered to End Users, Customer shall provide End Users with conspicuous notice and access to, and cause each End User to assent to the End User terms (referenced below) in such a manner that the End User terms are enforceable against the End User by HERE, prior to such End User’s access to any portion of the HERE Content. End User terms shall not be less restrictive, and no less protective of HERE than this Agreement and shall, at a minimum, include the below provisions:
1) restrict use of the HERE Content to the End User's own use with the Application;
2) prohibit use of the HERE Content with geographic data from competitors of HERE;
3) prohibit reverse-engineering and archiving of the HERE Content;
4) prohibit any export of the HERE Content (or derivative thereof) except in compliance with applicable export laws, rules and regulations;
5) require the End User to cease using the HERE Content if End User fails to comply with the terms and conditions of the End User terms;
6) provide notice to the End User of the applicable regulatory and third-party supplier restrictions and obligations (including copyright notices), which may be satisfied by including a link to a URL to be hosted by HERE, which is currently contained at https://legal.here.com/terms/general-content-supplier/terms-and-notices/ (or as notified by HERE to Customer);
7) provide notice to United States Government End Users (and others who wish to claim similar rights) that the HERE Content is a "commercial item", as that term is defined at 48 C.F.R. 2.101, and is licensed in accordance with the End User terms under which the HERE Content is provided;
8) affirmatively disclaim any warranties, express implied or otherwise, of quality, performance, merchantability, fitness for a particular purpose and non-infringement;
9) affirmatively disclaim liability for any claim, demand or action, irrespective of the nature of the cause of the claim, demand or action arising out of the use or possession of the HERE Content; or for any loss of profit, revenue, contracts or savings, or any other direct, indirect, incidental, special or consequential damages arising out of the use of, or inability to use the HERE Content, any defect or inaccuracy in the HERE Content, or the breach of these terms or conditions, whether in an action in contract or tort or based on a warranty, even if Customer, HERE or their affiliates or suppliers have been advised of the possibility of such damages.
10) do not make or imply any warranties on behalf of HERE its affiliates or their data suppliers or provide any right of liability or indemnity against HERE its affiliates or their data suppliers; and
11) include any legally required and otherwise appropriate instruction, warnings, disclaimers and safety information relating to the use of the Application.
HERE LABS BETA TESTING TERMS
1. TESTING AND EVALUATION OF BETA MATERIALS
1.1 Subject to Customer’s compliance with the Agreement, during the Term, HERE may make certain HERE beta materials and/or services (“Beta Materials”) available to Customer through HERE Labs, solely for Customer’s internal testing and evaluation. Customer understands and acknowledges that the HERE Beta Materials are beta versions and not ready or intended for commercial use or any utilization for commercial purposes.
1.2 The terms of the Platform Agreement (excluding the rights granted for commercial use or distribution, warranties or indemnification granted by HERE or the SLAs or Platform Lifecycle Policy) including the HERE Data Processing Agreement shall apply in addition to the term of this Exhibit.
1.3 Customer shall have no right to copy, modify, update, amend, create derivative works, disclose, export, sell, market, commercialize (incl. developing commercial Applications or Data Products), sub-license, re-license or otherwise transfer to any other party whatsoever Beta Materials, or use the same for any purpose that is not expressly stated herein.
2. TERM AND TERMINATION
The testing and evaluation period (“Testing Period”) starts when HERE has granted Developer access to the specific Beta Materials. HERE has the right to terminate the Testing Period for any Beta Materials any time and for any reason. The Testing Period shall in any case end when the Agreement is terminated.
IN NO EVENT WILL HERE, ITS EMPLOYEES, SUPPLIERS OR AFFILIATES BE LIABLE FOR ANY OF DEVELOPER’S DIRECT OR INDIRECT DAMAGES AND LOSSES OF ANY KIND RELATING TO THE “HERE BETA MATERIALS” REGARDLESS OF THE BASIS OF A CLAIM INCLUDING ANY EQUITABLE THEORY.
4. NO WARRANTY
THE “BETA MATERIALS” ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND EXPRESS OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THAT THE HERE MATERIALS ARE ERROR-FREE OR VIRUS-FREE.