These HERE Platform Terms (“Terms”) govern your access to and use of HERE Materials (defined below) and are an agreement between the applicable HERE Contracting Party (also referred to as “HERE,” “we,” “us,” or “our”) and the person and/or entity) (“you” or “yours”) accepting these Terms and/or using HERE Materials. HERE and you are each referred to as a "Party" and collectively as "Parties". Additional definitions for specific terms used in these Terms are defined in Section 21.
1. YOU AND HERE
If you accept these Terms on behalf of your company, organization or other entity, you represent that you have full legal authority to bind your company, organization or such other entity to these Terms.
“HERE Contracting Party” refers to HERE Europe B.V., Kennedyplein 222-226, 5611 ZT Eindhoven, The Netherlands, or to (i) HERE North America, LLC, 425 West Randolph Street, 60606 Chicago, Illinois, USA if your registered address is in any country within the Americas, (ii) HERE Philippines, Inc. if your registered address is in the Philippines, (iii) HERE Solutions Korea Co. Ltd. if the territory for the license is South Korea only; or (iv) HERE LATAM Mexico, S. de R.L. de C.V. if the territory for the license is Mexico and your registered address is in Mexico.
You may not access or use the HERE Materials or accept these Terms, if (i) you are not of legal age in the country in which you reside; (ii) you are not authorized to form a binding agreement as intended herein; or (iii) you are prohibited from accessing or using HERE Materials under applicable laws, including the laws of the country in which you reside or from which you would access or use HERE Materials.
2. ACCEPTANCE OF TERMS
By confirming your acceptance of these Terms, by accessing the HERE platform (“Platform”) via platform.here.com or using the HERE Materials you agree to these Terms and form is a binding agreement between you and HERE.
3. APPLICABLE DOCUMENTS
3.1 These Terms include and consist of the following additional documents, which are incorporated by reference and include any future updates of these documents:
a) Exhibits including Partner Addendum and other terms related to HERE Materials;
b) Additional terms applicable to the Subscription Plans and pricing that you have selected;
c) HERE Policies:
i. HERE Acceptable Use Policy available at https://legal.here.com/en-gb/terms/acceptable-use-policy;
iii. HERE Lifecycle Policy available at https://developer.here.com/documentation/product-lifecycle-policy/custom...
d) HERE Supplier Terms available on https://legal.here.com/terms/general-content-supplier-terms-and-notices;
e) HERE Data Processing Agreement (“DPA”) available at https://here-legal-files-prd.s3.amazonaws.com/files/HERE_Platform_Data_P... applying to processing of Personal Data when and as specified in the Exhibits or Documentation; and
f) other terms, conditions, and/or documents that are referred to in any of the above or in the HERE Materials or on the Platform.
In the event there is conflict between any provisions in these Terms, the more specific provision will be given precedence over general provisions or terms.
The Platform may include third party software that is subject to open source software licenses or other similar requirements that HERE may be required to pass through to you with the delivery of the software. You must comply with all such license requirements or other similar terms. HERE reserves the right to amend or replace such requirements as needed.
3.2 Updates to these Terms
HERE reserves the right to change these Terms at any time. HERE will notify you of material changes to the Terms on the Platform, in your account, via email, or via other means of communication as determined appropriate by HERE. Your continued access to the Platform or use of HERE Materials is deemed an acceptance of the updated Terms. If you do not wish to accept the updated Terms, you must immediately cease accessing and using the Platform and HERE Materials. Your sole remedy is to terminate your subscription by providing a notice of termination to HERE. HERE may suspend or terminate your access to HERE Materials without notice if you choose not to accept the updated Terms.
4. ACCOUNT AND ACCESS CREDENTIALS
You must register for a Platform account to access and use HERE Materials. You agree to provide truthful and complete information and keep your registration information updated at all times. Any user acting on your behalf must create a HERE Account using a valid email address. You must ensure that only authorized users are able to access and use the Platform and/or HERE Materials.
You are responsible for all activities associated with your account regardless of whether the activities including noncompliance, were authorized or undertaken by you, your employees, a third party (including your contractors, agents or other users), or other users associated with your account. If you become aware of any actual or suspected violation(s) of these Terms by any of the above, you will immediately suspend all access of any user associated with the violation. HERE is not responsible or liable for your account.
HERE may analyze, monitor and evaluate your access and use of the Platform. HERE may use tools and/or processes (including machine learning) for the anonymized and/or aggregated learnings, findings, and outcome thereof to develop, improve and optimize HERE’s products, services and/or processes.
5. GRANTED RIGHTS
5.1 Subscription Plans and other HERE Product Offerings
You will have access to the Base Plan upon acceptance of the Terms. In addition you may choose different or additional Subscription Plans. You must comply with any additional terms for the selected Subscription Plan(s) and other product-specific terms.
5.2 Your Use Rights
Subject to your compliance with these Terms, including any additional terms under any relevant Exhibits, Subscription Plans(s) and/or other Documentation:
a) You may access and use HERE Services;
b) HERE grants you a non-exclusive, non-transferable, non-sub-licensable, revocable, limited license under its Intellectual Property Rights to download and/or use the applicable SDKs, tools and APIs for the sole purpose of developing Applications and integrating SDKs and APIs with your Applications. Any rights to distribute the SDKs or APIs as integrated into the Applications and other rights or limitations for the use are defined in the applicable Exhibit, Subscription Plan or other relevant Documentation;
c) You may use HERE Content only for the purposes of viewing the HERE Service where the relevant content has been made available unless there is an explicit right granted for any other purposes; and
d) You may use other HERE Materials to which you have subscribed pursuant to your Subscription Plan(s).
Any sublicenses and distribution rights granted by you must be in writing with terms no less restrictive and protective of HERE than these Terms. You will remain liable under these Terms for acts and omissions of sublicensees, and a breach of your written agreement by a sublicensee will be deemed a breach by you with these Terms.
5.3 HERE’s Use Rights
HERE may use your Applications and Your Content solely for the purpose of providing you with access to the Platform, HERE Materials, or other related services. HERE may, at its discretion, remove your Applications, Your Content and Results from the Platform at any time if there is in actual or suspected violation of these Terms. No ownership of your Intellectual Property Rights to your Applications or Your Content is transferred to HERE. You have the right to remove Your Content from the Platform at any time. You are responsible for any additional back-up of Your Content and acknowledge that HERE will not be responsible for any loss of, damage to, or unauthorized use of, Your Content that occurs as part of the Your Content processing workflows within the Platform. You may provide HERE with any recommendations, suggestions, feedback or other comments (“Feedback”) regarding the Platform or HERE Materials. You grant HERE and HERE’s Affiliates a non- exclusive, irrevocable, perpetual, worldwide, free-of charge, fully paid up, sub-licensable and transferable, license under your Intellectual Property Rights to use, display, disclose, copy, make, have made, sell, offer to sell, import, export and otherwise dispose the Feedback as part of Platform, HERE Materials and other HERE products and services. You acknowledge that HERE may have similar development ideas as are included into the Feedback.
6. YOUR USE OF THE PLATFORM AND HERE MATERIALS
6.1 Unless otherwise expressly stated herein, you are solely responsible for ensuring that Your Content, Applications, use of the Platform, and any HERE Materials you use comply with applicable laws (including but not limited to laws related to privacy, data protection, cybersecurity, and export controls and restrictions), the HERE Acceptable Use Policy (“AUP”) and these Terms. You are responsible for any noncompliance by your End User(s) with your obligations under the AUP and the use rights and restrictions in these Terms. If any actual or suspected violation occurs, you will immediately terminate or suspend the End User access to all HERE Materials.
6.2 Unless otherwise permitted in your Subscription Plan or additional terms, or to the extent your use is solely for your internal evaluation and testing purposes, you may not:
a. Integrate HERE Materials 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) (“no vehicle integration”); and
b. Use HERE Materials 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 (“no ADAS / HAD”).
6.3 You may not use HERE Materials in the following manner or for purposes not expressly stated in these Terms:
a. Combining datasets with HERE Content or Results, except, subject to compliance with the section 6.3b. you may layer Your Content and third-party content (including points of interest, visual content and dynamic content, including traffic) on top of HERE Content or Results, provided that the origin of the non-HERE content can be distinguished by including correct attribution;
b. Exposing the HERE Materials 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 HERE Materials (or any part thereof); (b) grant any licenses to any derivative works of any HERE Materials (or any part thereof); (c) cause redistribution of the HERE Materials (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 HERE Materials (or any part thereof);
c. Modifying HERE Content;
d. Creating a derivative geographic, Point of Interest or other content database based on HERE Content, Results 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 Platform any Results that include anything from the use of HERE Content or Location Services for up to 30 days, except within HERE Positioning services which can be cached or stored outside the Platform for 24 hours, unless it is solely for your internal testing and evaluation purposes;
f. Caching or storing Results from HERE Content and Location Services for Japan (with the exception of Geocoding and Search) for more than 24 hours, unless Results are generated using an Asset Subscription Plan or MAU HERE Navigate SDK Subscription Plan and are stored on a smartphone (or tablet that is diverting smartphone services), in which case Results can be cached or stored for a maximum of 30 days;
g. Creating any Results that contain unenhanced or unmodified HERE Content or scaling one Request to serve multiple End Users;
h. Using incorrect attribution of any information derived from the Platform;
i. Modifying in any manner the annotation data (including but not limited to island names and sea names) and national boundary lines in Japan content included in HERE Content; and
j. Using outdated versions of the Platform or HERE Materials.
7. SUPPORT AND SERVICE LEVELS
The support plan and support Add-Ons you select will determine the availability and level of support services HERE provides to you. The support plans are described at https://developer.here.com/support-plans. The Service levels and scope of support services are set out at https://developer.here.com/documentation/sla/customer_notice/index.html. HERE will not provide any support services to third parties.
The Platform or HERE Materials may not be available in or accessible from all locations, regions, or territories. HERE may, without liability to you, suspend, limit, or throttle access to and availability of, the Platform or all or any portion of HERE Materials: 1) to address an emergency, misuse, or actual or perceived threat(s) to the operation of the Platform or any HERE Materials; 2) in the event of a breach of these Terms including a payment default; 3) to comply with applicable legislation, trade compliance and export control laws and regulations; 4) to respond to requests or demands of a government entity or authority; and/or 5) pursuant to any privacy concerns, copyright ”notice and take down” requests, or violation of Intellectual Property Rights or other third-party rights. HERE will inform you of such suspension or limitation without undue delay.
HERE may amend, change, deprecate, or discontinue the Platform and/or HERE Materials or any part thereof, from time to time by providing a notification to you through the Platform, your account and/or as described in the HERE Lifecycle Policy. The changes become effective on the date identified in the notification or the HERE Lifecycle Policy.
9. FEES AND PAYMENT TERMS
Your access to, and use of, HERE Materials are subject to your timely payment to HERE of the fees set out in your Subscription Plan. Fees may be subject to any further terms associated with your Subscription Plan.
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.
Unless otherwise stated in your Subscription Plan or elsewhere in these Terms, the term of each Subscription Plan is open ended and will be billed monthly. HERE will charge the applicable fees (including overage fees) in accordance with the billing cycle using your selected payment method.
All fees are nonrefundable and exclusive of applicable taxes and duties, including sales tax and VAT and any income taxes calculated based on the payments under these Terms, for which HERE is solely responsible. If you are required by law to withhold taxes based upon fees paid by you to HERE , you may deduct such tax from the fees payable to HERE and remit them to the appropriate government authorities provided that: (i) you may only deduct such tax to the extent that the revenue pertains to fees paid by you to HERE; (ii) such deduction is in accordance with the valid tax treaty rates between the countries where the parties reside; and (iii) you will promptly send HERE a certificate showing the payment of such tax. You will notify HERE of any deduction or withholding required by law. You agree to comply with any certification, information, documentation and other requirements necessary to obtain reduced rates or exemptions under the applicable double tax treaty or any other regime.
Upon prior notice to you, HERE may change the billing cycle, Subscription Plan, and/or other fees. The effective date for any price change will not be any earlier than 30 days after the date on which HERE notifies you of the change.
10. YOUR RECORDS AND TRACKING OF UNITS
You will keep information that is sufficient to demonstrate the scope of your use and distribution of all HERE Materials for 3 years. If pricing for the HERE Materials is based on a unit of measure which is not tracked by HERE (e.g., assets or vehicles), you must track the number of such units, keep the respective records for 3 years, and provide the records to HERE upon request. If your Subscription Plan includes a maximum number of units not tracked by HERE and you exceed such maximum number, you must upgrade your Subscription Plan to the applicable volume tier before the start of your next billing cycle.
In order to verify your compliance with these Terms, including but not limited to your obligations under Section 10 above: 1) you will give HERE access to your Applications for our review; and 2) we may inspect your records on your 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 fees and will be at HERE’s expense, except if the inspection determines that you have underpaid any fees due and owing to HERE, you will pay the difference plus interest within 30 days of the completion of the inspection; and if the underpayment amounts to 5% or more of the fees due to HERE, you will also reimburse HERE the cost of the inspection together with such payment. This Section 11 will survive expiration or termination of the agreement under these Terms for a period of one (1) year.
12. TERM AND TERMINATION
These Terms take effect at the earliest of 1) the date on which you accept the Terms, 2) access the Platform, or 3) access or start using HERE Materials. These Terms will remain in effect until terminated by either Party.
Any additional Subscription Plan will take effect on the date on which you subscribe to the Subscription Plan and will remain in effect for the term as defined in the Subscription Plan (fixed term) or until terminated. Unless otherwise specified in the Subscription Plan, if either Party did not provide written notice of termination to the other Party at least one (1) month before the end of the term in effect (i.e., current term), a fixed-term Subscription Plan will automatically be extended for a new term of the same length as the current term; or if you provide your notice of termination to HERE later than one (1) month before the expiration of the current term, the Subscription Plan will be extended for an additional period of twelve (12) months. These Terms apply to all Subscription Plans and remain in effect throughout the duration of each Subscription Plan.
a) Termination for Breach: Either Party may terminate a Subscription Plan or these Terms 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, or (ii) with immediate effect in case of bankruptcy, insolvency or assignment for the benefit of creditors.
b) Termination for Convenience: You may terminate any open-ended Subscription Plan or the agreement under these Terms at any time with three (3) months prior written notice to HERE so that your individual Subscription Plan terminates at the end of the billing period following the end of the notice period. HERE may terminate any open-ended Subscription Plan and the agreement under these Terms by providing you with six (6) months prior notice.
c) Termination of Inactivity: HERE may close your account or terminate a Subscription Plan and/or these Terms if you have not signed into your account or accessed HERE Materials with your access credentials in the past six (6) months.
12.3 Effects of Termination
Immediately upon expiration or termination of any Subscription Plan(s) and/or the agreement under these Terms, your right to use the relevant HERE Materials under the terminated Subscription Plan(s) (“Terminated HERE Materials”) terminates automatically and you will no longer have access to the Terminated HERE Materials.
Within 30 days from expiry or termination, you must 1) discontinue all use and distribution of the Terminated HERE Materials and HERE Marks; 2) cease the distribution of and making available the Applications that use or include the Terminated HERE Materials or parts thereof; and 3) uninstall, delete and destroy all related software, backup copies, and all other related materials provided by HERE in relation to the Terminated HERE Materials. HERE will delete Your Content, Applications and other materials in your Platform account after the termination of your Subscription Plan and/or the agreement under these Terms.
Termination or expiration of your Subscription Plan(s) and/or any agreements between you and HERE shall never result in an obligation on HERE to undo payments received up until the moment of termination or expiration, nor shall termination or expiration affect accrued payment obligations.
13. USE OF MARKS AND MARKETING OPPORTUNITIES
13.1 You may not remove or obfuscate any HERE Marks, or copyright notices affixed to or included in HERE Materials or Result. You will ensure that all HERE Marks and copyright notices are present in the HERE Materials and Result in accordance with HERE brand guidance (https://brandlive.here.com/). You must indicate that HERE is the owner of HERE Marks. All goodwill from the use of HERE Marks inures to HERE.
13.2 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 you as part of a list of HERE customers, and b) marketing opportunities including but not limited to press releases, blog posts, analyst engagement, and case studies. Any such activities will be subject to the other Party’s brand guidelines, review, and express written consent prior to publication.
14. INTELLECTUAL PROPERTY RIGHTS
All right, title, and interest in and to the Platform (including any information comprising ideas, suggestions, complaints, relating thereto), HERE Materials or any parts thereof and HERE Marks are the property of HERE or its licensors and no part thereof will be considered a “work made for hire” or a work made in the course of employment. Except as explicitly granted in Section 5.2, an Exhibit, or a Subscription Plan, no other rights or licenses, express or implied, are granted under these Terms, including any technologies that may be necessary for your use or enablement of the Platform or HERE Materials. No ownership of any Intellectual Property Rights relating to the Platform, HERE Materials, HERE Marks, or any other product, service, information, or material provided by HERE to you are assigned or transferred by HERE to you. The structure, organization, and code of the Platform, HERE Materials and any other products and services provided by HERE are the valuable trade secrets and Confidential Information of HERE, its licensors and/or Affiliates.
15. WARRANTIES; EXCLUSION OF WARRANTIES
15.1 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 based on these Terms; (iii) its execution of these Terms 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.
15.2 EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW THE PLATFORM OR HERE MATERIALS 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 PLATFORM OR HERE MATERIALS WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. EXCEPT AS PROVIDED IN THESE TERMS, 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 PLATFORM, OR HERE MATERIALS, 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.
16.1 HERE (as “Indemnitor”) agrees to (a) defend you and your Affiliates, contractors and suppliers (as “Indemnitees”) from and against any third-party claims alleging that the HERE Materials as 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.
16.2 You (as “Indemnitor”) agree to (a) defend HERE and its Affiliates, contractors and suppliers (as “Indemnitees”) from and against any third-party claims alleging that any of Your Content or Applications, or instructions provided or made available by you 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.
16.3 HERE’s and your indemnification obligations 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 will 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.
16.4 If HERE determines action is needed to avoid potential infringement, HERE may, at its expense: (i) procure for you the continued right to the relevant parts of the HERE Materials; (ii) replace or modify the HERE Materials, in whole or in part with functionally equivalent to the original, or (iii) request you to discontinue use of the HERE Materials, 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 Materials received by HERE from you.
16.5 HERE will have no liability or obligations under this Section 16 if the claim, judgment or settlement is based on (i) any use or combination of the HERE Materials or parts thereof with software, services, technologies or other material provided by or on behalf of you by a party other than HERE; (ii) any modification of the HERE Materials or modifications done by HERE pursuant to your specification; (iii) you continuing any allegedly infringing activity after being notified of any such allegedly infringing activity or after being informed of or provided with a replacement that would have avoided the alleged infringement; (iv) your breach of the license restrictions and rights granted under these Terms.
16.6 Notwithstanding anything to the contrary in these Terms, this Section 16 will be the sole and exclusive remedy for you against HERE regarding third party Intellectual Property Rights infringement claims.
17. LIMITATION OF LIABILITY
17.1 To the maximum 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 Section 18 (Confidentiality), or (iv) breach of the license restrictions and rights granted under these Terms: Neither Party will 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 these Terms even if advised of the possibility of such damages.
17.2 To the maximum 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 Section 18 (Confidentiality), or (iv) breach of the license restrictions and rights granted under these Terms: For any and all claims brought under the agreement based on these Terms, 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 you under these Terms in the twenty-four (24) months preceding the first incident from which the claim arose. The foregoing limitations will not apply to your payment obligations or to either Party’s indemnity obligations under Section 16.
18.1 Each Party will hold in confidence and not use or disclose any Confidential Information received from the other party. 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 in the Terms. Confidential Information will be treated in the same manner that the receiving Party protects its own proprietary information of a similar nature.
18.2 Upon termination of the agreement based on these Terms 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 will be no obligation to treat as Confidential Information any information that: (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.
18.3 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.
19. EXPORT CONTROL AND ECONOMIC SANCTIONS
19.1 HERE Materials may be subject to export controls of various jurisdictions. You agree 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”). You are responsible for obtaining any required licenses or other authorizations for the export of HERE Materials, or any technology and/ or any Applications. You agree that you will not export or re-export, directly or indirectly, any HERE Materials 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), you will not import into or in any way make PRC maps usable or available from Mainland China, unless you obtain prior approval from applicable PRC authorities. With regard to the Republic of Korea (South Korea), you will not export or in any way transfer any map data for South Korea outside of South Korea unless you obtain prior approval from applicable South Korea authorities. To the extent any similar restrictions on the export of map data apply in other jurisdictions, you will comply with all such restrictions and obtain any required authorizations.
19.2 You agree 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”). You represent and warrant that you are 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”). You acknowledge 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. You agree that you will not provide, directly or indirectly, any HERE Materials, 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. You further agree and acknowledge that HERE may, without any penalty or other liability to you for such action, suspend or cease its provision of products, services or technology to you if you become a person or entity subject to Sanctions Laws that are applicable to HERE’s products, services or technology to be provided to you, until (in the case of suspension) such sanction is withdrawn or you are otherwise exempted from the application of the relevant Sanction Law by the applicable authority.
20.1 Notices. Any technical, administrative or other general notices may be posted through the Platform or sent to an e-mail addresses identified in the Platform. All legal notices must be written, delivered by hand or overnight/express mail addressed at the address of the other Party set forth in the Platform. Each Party will keep addresses up-to date and inform the other Party about changes without undue delay. Such notices will be effective upon receipt.
20.2 Language. All communications and notices made or given pursuant to these Terms must be in English. If HERE provides a translation of the English version of these Terms, the English version of the Terms will control in case of any conflict.
20.3 Entire Agreement. These Terms, 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 Terms supersede all prior oral or written communications, representations, undertakings and agreements of the Parties relating to the subject matter of the Terms.
20.4 Assignment. A Party may assign the agreement based on these Terms to an Affiliate, or any entity that acquires substantially all of the Party’s 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.
20.5 Severability. If any provision of the Terms is held to be unenforceable, the remaining provisions will be unaffected and enforceable as though the unenforceable provision had not been included.
20.6 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 Terms.
20.7 Force Majeure. Excluding payment, confidentiality and indemnification obligations, neither Party will be liable to the other for a failure to perform any of its obligations under the Terms due to circumstances beyond its reasonable control, provided such Party notifies the other of the delay.
20.8 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.
20.9 Governing Law. The agreement based on these Terms will be exclusively construed and governed by the substantive laws of the Netherlands, provided that if either HERE North America LLC or HERE LATAM Mexico, S. de R.L de C.V. is the HERE Contracting Party, it will be construed and governed 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.
20.10 Dispute Resolution. Any dispute between the Parties as to matters covered by the agreement based on these Terms or its validity, enforceability or interpretation will be submitted to the competent court in Amsterdam, the Netherlands, provided that if either HERE North America LLC or HERE LATAM Mexico, S. de R.L de C.V. is the HERE Contracting Party such dispute will 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.
20.11 Survival. Sections 9 and 14 - 18 survive expiration or termination of the agreement based on these Terms for any cause or without cause. The same applies to any provisions and any terms which reasonably could survive. Section 11 will survive for a period of one (1) years as specified therein.
21.1 Add-On means any HERE Materials you elect to access or use that are not included in your current Subscription Plan, and for which pricing and any additional terms may apply.
21.2 Affiliate means (i) with respect to HERE, its holding company HERE International B.V. and any entity that directly or indirectly is Controlled by HERE International B.V. and (ii) with respect to you, any entity that directly or indirectly (a) is Controlled by you; (b) Controls you; or (c) is under common Control with you. “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.
21.3 Application means each desktop, mobile or web application, data product, software, website, or comparable product and/or service developed by or on behalf of you that accesses or utilizes HERE Services or includes the HERE Content or parts of the SDK.
21.4 Base Plan means the subscription plan to the Platform for which you are entitled upon your acceptance of these Terms, subject to payment of the applicable fees. The Base Plan provides your access and use rights for the HERE Materials as defined in these Terms and any Documentation.
21.5 Confidential Information means all business, technical, financial, or other information not publicly available that a Party receives from the other Party. The HERE Platform information and HERE Materials are Confidential Information.
21.6 Documentation means any written materials and specifications for the Platform, HERE Materials or any parts thereof.
21.7 End User means any entity or person who (i) receives or uses an Application, or (ii) accesses all or any portion of the HERE Content or Services in or through an Application, with no right to sublicense.
21.8 HERE Content means the map content and/or other content licensed to you as made available by HERE.
21.9 HERE Marks means trademarks, logos, service marks, trade names and similar designations of HERE.
21.10 HERE Materials means, collectively, HERE Services, HERE Content, SDKs, software tools, application programming interface (“APIs”), and/or other HERE products, software or services, and any associated Documentation, made available through Platform and relevant HERE product-specific URLs.
21.12 HERE Services means any services offered or made available by HERE through Platform to you from time to time, as defined in the relevant Exhibit and/or Documentation (for instance Location Services, administrative services and web applications).
21.13 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.
21.14 Location Services means the HERE location services which return Results to End Users through an Application.
21.15 Request means each API call made to the respective HERE Services to request results as initiated by an end user using Application. Internal server requests performed to respond to each API call will not be counted as requests.
21.16 Result means each unique delivery of information delivered to an Application by the HERE Services in response to a Request. Results explicitly exclude link attributes which are not licensed under these Terms but which may be made available (if explicitly agreed in writing) by HERE or an authorized HEREdistributor in a separate offering.
21.17 Software Development Kit (SDK) means the software development kit(s), software libraries and other software tools.
21.18 Subscription Plan means the subscription for the Base Plan, Add-On or any other optional or alternative subscription plan for any HERE Materials and/or an additional or alternative pricing or usage model as are defined in the relevant Documentation and that may be subject to additional terms and fees.
21.19 Your Content means anything, including but not limited to content, data, software or information that you upload to the Platform.
TOOLS AND SDKS TERMS
This Exhibit defines the rights granted to you by HERE under the Base Plan for certain SDKs and software tools.
1. GRANTED RIGHTS
Subject to your compliance with these Terms and payment of the fees as described in the applicable Subscription Plan, HERE grants you under its Intellectual Property Rights a non-exclusive, non-transferable, non-sub-licensable, revocable, limited right to the following:
a) Software Tools: You may download and copy the software tools in the form made available to you by HERE to you through the Base Plan and use such software tools on your local machines (i.e., no downloading in any third-party server environment is permitted) solely for your internal development and testing purposes for your Application.
b) Open Standard Schema: You may download, copy, and use the Open Standard Schema in binary form to: i) develop and integrate into Applications; and ii) distribute the Open Standard Schema, as integrated into your Application, directly or through a distribution chain, to customers and End Users in accordance with the Documentation. Open Standard Schema refers to the SDII standard schema and/or other standard schema definitions and implementations as described in applicable Documentation.
c) SDKs: You may use the SDKs and software libraries in the form made available to you by HERE under the Base Plan to:
i. download, copy and use solely for accessing the relevant HERE Services included in your Subscription Plan;
ii. develop your Applications and integrate relevant parts of the SDKs into Applications that you market, distribute and make available to End Users for the purpose of enabling such Applications to access the HERE Services or make use of HERE Content; and
iii. distribute the relevant parts of the SDKs and software libraries as integrated into your Application, directly or through a distribution chain, to customers and End Users in accordance with any Documentation. Notwithstanding the foregoing, you may integrate the Location Library and the Data Processing Library that are part of the HERE Data SDK for Java and Scala into your Applications, i) for your internal evaluation and testing purposes; and ii) for commercial or production purposes, only when this Application is operated within the Platform, which operation may require you to subscribe to Workspace Add-on.
2. END USER TERMS
Certain SDKs may collect additional data when used in your Application, as described in available Documentation. You agree to include the necessary communication to End Users of the HERE Service including the required acceptance of terms and consents, as described in the applicable Documentation and as required by applicable laws. Upon request from HERE, you will provide evidence of such implementation to HERE.
HERE LOCATION SERVICES TERMS
This Exhibit defines the rights granted to you by HERE under the Base Plan for Location Services. This Exhibit incorporates by reference the HERE Platform Terms.
In addition to the definitions in the Terms, the following definitions will apply.
Location Services Access/ APIs means the access and use of the licensed HERE APIs for the Application through an application programming interface to access the Location Services as described in the Documentation.
2. SPECIFIC TERMS RELATED TO LOCATION SERVICES
2.1 Subject to your compliance with these Terms and payment of the fees as described in an applicable Subscription Plan, HERE grants you a non-exclusive, non-transferable, non-sub-licensable, revocable, limited right to download the Location Services APIs for the sole purpose of integrating APIs with your Applications and distribute the Location Services APIs as part of your Applications.
2.2 You will create an Application ID (“app ID”) in the Platform for each Application. Each app ID cannot be used by more than one (1) individual Application. Applications created for (i) specific customers or End Users; and/or (ii) mobile and server versions of the same Application, need different app IDs. You are liable for any unauthorized use of app IDs and responsible for fees accruing under the app ID issued to you. You will promptly notify HERE of any unauthorized use of app IDs.
2.3 In addition to the caching restrictions in the Terms, you may not use HERE Materials in a manner that pre-fetches, caches, or stores data or Results, except as explicitly allowed by the caching headers (HTTP/1.1 standard) returned by HERE Location Services.
3. END USER TERMS.
The following additional terms apply if you (the “Partner”) have been approved by HERE as a HERE Partner. Partner-specific terms prevail over more general provisions found in the Terms.
1. PARTNER’S USE OF THE HERE PLATFORM
1.1. In addition to using the Platform as specified in the Terms, Partner may provide its customers with Location Services Access pursuant to the Location Services Terms.
1.2. The use rights of Partner with respect to HERE Materials are described in the Terms above. In addition, and limited to the HERE SDK, the Location Services APIs, and the HERE Content Add-on, Partner may sublicense the rights provided by HERE under Sec. 5.2 b) of the Terms directly to its business customers, enabling them to create and distribute Applications including HERE Materials.
1.3. As further specified in Sec. 2.2 of the Location Services Terms, Partner shall use different app IDs for each Application.
2. PARTNER CERTIFICATION LEVEL AND DISCOUNT
2.1. The Partner Certification Program benefits and requirements are posted in the HERE Partner Portal.
2.2. The Fees are subject to the applicable discount based on Partner’s certification level (the “Partner Certification Discount”). The default certification level for a new Partner is “Registered Partner”. HERE reserves the right to change or add criteria which determine the Partner’s certification level in its sole discretion.
2.3. The Partner Certification Discount applies for the term during which Partner meets the criteria of the respective certification level, including but not limited to Partner’s Actual Achieved Revenue. HERE will re-evaluate Partner’s certification level and the Partner Certification Discount at least every 12 months in parallel with the review of the Actual Achieved Revenue calculation as set out below.
2.4. HERE will calculate the Partner’s Actual Achieved Revenue for each calendar year (January 1st to December 31st) of the Term by February 15th of the following year. “Actual Achieved Revenue” means the net license fees (after applying discounts and excluding impact of any tax payable by HERE, such as withholding tax, if applicable):
a. reported by the Partner to HERE (to the extent that the fees are based on self-reported units of measure),
b. invoiced by HERE directly (such as Platform transactions, as applicable) and
c. paid by Partner.
The calculation will be based exclusively on HERE’s records and will not be subject to adjustments. Amounts for any period will not carry over into subsequent calendar year(s). HERE will inform Partner of such Actual Achieved Revenue calculation in a timely manner.
The corresponding Partner Certification Discount shall apply as of the 1st of March of each calendar year of the Term. If Partner later revises its reports related to a calendar year on which a Partner Certification Discount is based, HERE shall have the right to adjust the Partner Certification Discount accordingly and charge any amounts to Partner that would have otherwise been due. No refunds shall be applied.
2.5. If the Partner Certification Discount is based on a minimum annual license fee (“MALF”) commitment, the corresponding Partner Certification Discount shall apply as of the beginning of the contract year for which the MALF commitment is made.
The following terms apply in addition to Sec. 9 of the Terms:
3.1 Orders/Quotes. Changes to Subscription Plan fees do not affect Partner “orders”. “Order” refers to a subscription for which Partner has created a quote that has been approved by HERE.
3.2 MALFs. If explicitly agreed between the Parties, Partner shall pay HERE a non-refundable (except for termination for cause by Partner) minimum annual license fee (“MALF”). The MALF agreed in the Commercial Conditions Confirmation shall be applied annually to all fees due. Fees or MALFs do not apply to any other fee periods and may not be credited toward or offset other amounts due to HERE.
Sec. 10 of the Terms about “Your records and tracking of units” also applies to the use of HERE Materials licensed by Partner’s customers. This means that, inter alia, Partner shall upgrade the Subscription Plan of his customers if needed.
The following terms apply in addition to Sec. 12 of the Terms about “Term and Termination”:
5.1 Upon termination or expiration, Partner shall not be entitled to any of the benefits of the HERE Partner Program. Partner shall immediately cease to represent itself as a HERE Partner and all rights and use of the HERE Marks shall terminate.
5.2 Except in case of a termination for breach by HERE, a subscription sold by Partner to its end customers shall remain in force, provided that:
a. Partner provides prompt written notice to Partner’s customers of the expiration or termination, subject to HERE’s written consent which will not be unreasonably denied or delayed;
b. Partner cooperates with HERE and provides all necessary information requested by HERE to enable HERE or its designee to continue to provide support, including but not limited to all billing and invoicing obligations;
c. Surviving Subscriptions shall survive no longer than 1 year from the effective date of termination; and
d. The Terms shall continue to apply to any Surviving Subscriptions.
6. USE OF MARKS, PARTNER INFORMATION AND MARKETING
The following terms apply in addition to Sec. 13 of the Terms:
6.1 Partner Marks. Partner authorizes HERE to display the Partner’s logo and corporate contact information on HERE’s online partner directory and to communicate the relationship between HERE and the Partner for marketing and advertising purposes.
6.2 Additional Co-Promotion/Marketing Opportunities. In addition to the above, the Parties will make good faith efforts to discuss mutually agreeable terms and/or language for additional use of either Party’s name or brand/logo in either Party’s internal and external marketing materials regarding the Parties’ relationship, including referencing Partner in a list of HERE’s Partners that use HERE products and services. Any such use of either Party’s name or brand/logo are subject to the other Party’s prior review and express written consent. HERE hereby consents to the use of HERE’s marks in co-branded material limited to the templates and documents provided by HERE on the Partner Marketing Platform. HERE reserves the right to review the material created by Partner.
6.3 Partner Information. Partner agrees to provide truthful and complete information, to keep that information current, and to update the information regularly. Partner agrees that HERE is not responsible for errors in the HERE partner directory, regardless of the cause, and agrees that HERE may take down information it reasonably believes is incorrect or misleading. Partner also acknowledges that the HERE partner directory contains contact information of other partners who may compete with Partner, and that HERE is not liable or responsible for any resulting harm to Partner, including lost opportunity, revenue, sales, or profit.
6.4.1 HERE may provide Partner with marketing materials that Partner may use for the marketing of HERE Materials or Applications.
6.4.2 Partner shall not alter or tamper with any HERE Marks, misrepresent the relationship between HERE and Partner, or communicate or imply any sponsorship and/or endorsement by HERE of Partner’s business unless such sponsorship or endorsement is explicitly stated in a written contract or agreement. Upon termination or expiration of the Terms, Partner must immediately cease all use of HERE Marks.
6.4.3 Partner shall not engage in any search engine marketing campaigns (e.g., via “Google Ads”) using the term “HERE” or HERE’s Marks without HERE’s prior written approval.
6.4.4 Partner Marketing Platform.
a. In cases where the Parties engage in joint marketing campaigns partly funded by HERE, Partner shall deploy and create co-branded material using the Partner Marketing Platform and allow HERE to maintain visibility on use, deployment methods, number and frequency of leads generated from all co-branded material.
b. Partner shall inform HERE about any use of the co-branded material outside of the Partner Marketing Platform, in particular concerning the following points: the number of generated leads directly generated by the views, impressions, clicks, attendance or any other action carried out by a target prospect which resulted in their expressed interest in the promoted marketing material containing HERE Marks, the average opportunity size for the corresponding end customer opportunity, if this metric is known, the average conversion rate from these leads into opportunities, when this metric is known as well as the average sales cycle length for the relevant opportunity, industry or target when appropriate. Such information from Partner shall not include any personal data of third parties.
c. Partner is responsible for their content uploaded to and created in the Partner Marketing Platform and shall indemnify HERE against third party claims with respect to such content as provided in the Terms.
6.4.5 HERE is committed to supporting every Partner to optimize the returns from their partnership with HERE. Therefore, for every HERE Partner a small amount of net revenue will be set aside in a general marketing fund to be used to activate joint solutions in the market and to increase the overall enablement and activation of our Partners based on certain requirements.
7. INNOVATION DEVELOPMENT PROGRAM
7.1 If Partner is a system integrator or a consultancy company, it may refer potential new end customer opportunities to HERE through the “Innovation Development Program Form” provided by HERE. Upon receiving the Innovation Development Program Form, HERE shall send a confirmation e-mail to the referred customer’s email address indicated in the form, to inform them that the submission has been received. HERE shall be responsible for the sales process subject to the Parties’ continued good-faith cooperation.
7.2 HERE shall pay to Partner an innovation development fee of 15% of the First Year Net Revenue of the Qualified End Customer Opportunity.
7.2.1 “Qualified End Customer Opportunity” means an end customer opportunity:
a. which is approved by HERE;
b. of which HERE has no record in connection with HERE’s products or services and which is not the subject of any contractual relations or ongoing negotiations or any discussions between HERE and the respective end customer about the licensing of HERE products and services;
c. for which, within ninety (90) days of being referred by Partner and at the respective end customer’s own discretion, without receiving any monetary or other incentive from Partner, a contract between HERE and the respective end customer about at least one annual subscription for a HERE product or service is closed; and
d. for which, within one hundred and twenty (120) days of being referred by Partner, the respective end customer has fully paid at least one invoice from HERE with respect to a HERE product or services.
On a case-by-case basis, the Parties may mutually agree in writing (email sufficing) to waive or extend the ninety-day (90-day) time limit for an end customer opportunity.
7.2.2 “First Year Net Revenue” means the license fees invoiced to and paid with respect to the Qualified End Customer Opportunity by the respective end customer to HERE for the 12 month period starting on the effective date of the qualified end customer’s first subscription, net of any discounts, taxes payable and subsequent refunds not due to HERE’s invoicing error or breach, and not including fees for support, implementation, customization, training, consulting or other professional services, or third-party products or services. For the avoidance of doubt, if the Qualified End Customer Opportunity relates to a multi-year subscription, innovation development fees will still be based only on the First Year Net Revenue, not on any revenue covering any period thereafter.
7.2.3 HERE will pay the innovation development fee to Partner within ninety (90) days of the anniversary of the effective date of the contract between HERE and the end customer for the Qualified End Customer Opportunity.
7.3 If multiple Partners submit potential end customer opportunities that result in a single opportunity, only the first submission entitles to innovation development fees.
7.4 Partner shall be responsible for payment of all taxes, duties, governmental charges, and other like charges levied on the innovation development fees, and Partner shall indemnify, defend, and hold HERE harmless from and against any claims arising out or relating to all charges emanating from HERE’s payment of innovation development fees.
7.5 In submitting personal data to HERE in connection with this innovation development program or another lead sharing initiative, Partner will comply with all applicable laws governing Partner’s collection, storage, processing, use and transfer of such information. Partner warrants that it has provided all appropriate notices to data subjects and ensured all appropriate legal requirements to transfer data to HERE and allow its processing according to the terms of the Agreement. For avoidance of doubt, Partner shall have ensured all appropriate legal requirements, to the extent required by applicable law, for HERE to be able to contact the individual to whom the personal data relates. Partner authorizes HERE to process such data as reasonably required to exercise HERE’s rights and perform HERE’s obligations under the Agreement; Partner acknowledges that HERE may be required to provide personally identifiable information to third parties to comply with legally mandated reporting, disclosure, or other legal process requirements.
7.6 For the avoidance of doubt, if Partner solely refers potential end customers to HERE and does not license HERE products or services, the provisions exclusively related to such licensing do not apply.
8. LEAD INFORMATION
8.1 Lead Information.
8.1.1 The Parties agree that all information HERE provides to Partner that describes or identifies sales leads (e.g., names, contact information, and information about leads’ interest in HERE products and/or services) (“Sales Leads”) remains the sole property of HERE and is HERE Confidential Information.
8.1.2 During the Term, Partner may use Sales Leads information as permitted by HERE based on Sales Leads’ consent, subject to the requirements identified herein, solely to promote and sell HERE products and services.
8.1.3 Unless prohibited by law, Partner will: (a) inform HERE of any requests at firstname.lastname@example.org to disclose Sales Leads information to a government agency with reasonable prior notice so HERE can seek a protective order or other relief as needed; and (b) take reasonable steps to cause the agency to make its request directly to HERE.
8.1.4 Unless prohibited by applicable law, Partner will inform HERE of any requests received by the Partner from individual users in exercising their data protection rights as defined in applicable law received by forwarding such requests to email@example.com within 3 business days to enable HERE to address such requests in accordance with timelines defined in applicable law.
8.1.5 If Partner knows or has reason to believe that there has been unauthorized access to, disclosure, or loss of any HERE Confidential Information, Partner will immediately inform HERE at firstname.lastname@example.org with all information Partner has available at the time. Partner will designate a contact person to work with HERE and collaborate on incident response efforts including but not limited to compliance with data breach notification and remediation requirements.
8.1.6 Partner will at all times maintain, operate, and continuously improve a comprehensive information security program that: (a) classifies HERE Confidential Information in a manner that entitles it to the same level of protection that Partner uses for its own Confidential Information; (b) employs reasonable and appropriate administrative, technical, and physical safeguards designed to protect HERE Confidential Information against unauthorized access, disclosure, or loss and ensure secure deletion in the event that it becomes necessary; (c) monitors access to and use of HERE Confidential Information in a manner that enables Partner to detect and report security incidents to HERE; (d) at least annually, and as part of any security incident response involving HERE Confidential Information, conduct an independent, third-party information security assessment to test the adequacy of Partner’s information security program or alternatively permit HERE to conduct such an assessment on its own; and (e) make commercially reasonable efforts to make improvements to Partner’s comprehensive information security program designed to correct defects identified during the assessments described in this section.
8.1.7 Partner will ensure that its employees and contractors handling HERE’s Confidential Information received training on how to appropriately handle confidential information and to detect and report information security incidents.
8.1.8 To the extent that HERE’s Confidential Information identifies, describes, or otherwise relates to individuals (personal information), Partner agrees to: (a) comply at all times with applicable data protection laws, including but not limited to, laws governing telemarketing and the distribution of commercial text and email messages; (b) indemnify HERE against claims alleging that HERE is liable for Partner’s security incidents involving personal information; (c) provide individual leads with the opportunity to access their personal information and to have it corrected or removed from Partner’s systems; (d) track requests by individual leads to opt out of further communication from HERE and provide information about opt outs to HERE; and (e) without undue delay notify HERE using the procedure defined in section d) of any actual or reasonably suspected data breaches, data security incidents, complaints of data subjects, objections or requests by regulators, and breaches of the Terms or any applicable laws or regulations.
8.1.9 Where Partner engages third parties to perform any of its obligations, Partner will enter into written agreements that require the third parties to: (a) comply with the confidentiality provisions of this agreement; (b) to employ safeguards to protect HERE Confidential Information that are at least as robust as those described herein; and (c) ensure, in coordination with HERE, an adequate level of protection for personal information within the meaning of applicable data protection law for Partner’s subcontractor, such as by having the subcontractor sign a data processing agreement based on the HERE Controller to Processor Data Transfer Agreement with HERE Global B.V. as data exporter and the subcontractor as data importer unless an adequate level of data protection is already ensured by applicable law or by other means.
8.1.10 If the Agreement is with HERE Europe B.V., and Partner is located outside the EU/EEA and not in a country which is found by a decision of the EU Commission to ensure an adequate level of data protection (https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-o...), HERE and Partner agree, in addition to the rights and obligations herein, to enter into a HERE Controller to Processor Data Transfer Agreement separate from these Terms. HERE Controller to Processor Data Transfer Agreement must be in writing and executed by both Parties.
8.1.11 Partner shall provide HERE with feedback with respect to Partner’s use of the information received from HERE, in particular with respect to the number of generated sales qualified leads (SQLs), quote resulted from this, the average opportunity size for the corresponding end customer opportunity, if this metric is known, the average conversion rate from these leads into opportunities, when this metric is known as well as the average sales cycle length for the relevant opportunity, industry or target when appropriate. Such information from Partner shall not include any personal data of third parties.
9. SUPPORT AND RESELLING SUPPORT
9.1 Partner may select a support plan and support Add-Ons as set out under section 7 of the Platform Terms.
9.2.1 HERE further grants to Partner the right to sublicence to Partner’s customers the access to the respective support services under the Support Plans “Essential” and “Advanced”.
9.2.2 The aforementioned sublicensing right is granted (i) without rights of further sublicensing, and (ii) solely for such customer’s “Internal Business Use”, meaning that the services may be used solely by employees, contractors and agents of Partner’s customer (and for the benefit of that business), specifically excluding use of the support services by consumers and customer’s customers.
9.2.3 Partner acknowledges that HERE is only able to provide support services to Partner’s customers for HERE Materials. HERE will not provide support services for derivatives or modifications of such HERE Materials and respective Applications.
9.2.4 The conditions for sublicences as set out in section 5.2. last paragraph of the Platform Terms apply and the respective written agreement between Partner and Partner’s customer shall provide for the customer’s obligations of confidentiality for any information received by such customer regarding the support services, no less restrictive, and no less protective of HERE than the respective terms in the PPA.
9.2.5 Partner’s customer will be granted access to the Support Portal on Platform.here.com and the relevant documentation.
WORKSPACE ADD-ON TERMS
If you have subscribed to the Workspace Evaluation Add-on or Workspace Commercial Add-On, the terms of this Exhibit apply and describe your use and access rights to the Workspace. This Exhibit 3 for Workspace Commercial Add-on incorporates the terms and conditions of the HERE Platform Terms.
HERE Workspace means the environment offered through the Platform for analyzing, processing, combining, enhancing, optimizing content and developing and testing Applications as described in the Documentation.
HERE Workspace Content means the HERE Content that is made available to you through the Workspace.
Workspace Services means the services offered by HERE to you through the Workspace Add-On, including but not limited to, any services for the processing, analyzing, enhancing and creating content and for the development of Applications, as described in any relevant Documentation.
2. GRANTED RIGHTS
2.1 Subject to your compliance with these Terms and payment of the applicable fees:
a) you may use the Workspace Services for (i) analyzing, processing, enriching, enhancing, optimizing or otherwise modifying Your Content; and (ii) you may use HERE Workspace Content to analyze, process, optimize, reference and layer with Your Content (subject to restrictions in the HERE Platform Terms); and (iii) developing and testing Applications solely on your local computers (i.e., development and testing in any third party server environment is not permitted); and iv) distributing your Applications, provided that HERE Workspace Content or Results generated from HERE Workspace Content are not utilized for or by the Applications.
b) HERE grants you a non-exclusive, non-transferable, non-sublicensable revocable, limited right to download, copy and use the HERE Workspace Content solely (i) on your local machines (i.e., no downloading in any third-party server environment is permitted) and (ii) for your internal testing, evaluation purposes and for development of Applications. You acknowledge and agree that any other use of the HERE Workspace Content, HERE Content, or Results by you and/or your End Users under this Exhibit is subject to a separate agreement with HERE.
2.2 HERE will store Your Content and Results in the HERE Workspace and make it available only to you for term of the Workspace Add-on, as applicable.
3. WORKSPACE EVALUATION ADD-ON
3.1 If you subscribed to the Workspace Evaluation Add-on You are entitled to use the Workspace Services and HERE Workspace content i) only for your internal testing and evaluation purposes, specifically excluding any distribution and commercial utilization rights described above in section 2.1.; and ii) in accordance with the free evaluation tier as is defined in your quote summary. Any use of the Workspace Services and HERE Workspace content in excess of the allocated free evaluation shall be charged at the rates specified in the price table, as applicable.
4. LIABILITY FOR RESULTS AND APPLICATIONS
You are solely responsible for the Results and for any claims and liabilities arising out of, or related to, the licensing or use of your Applications unless otherwise explicitly stated in these Terms. You will (i) test each Application before making it available to your customers or any End Users; and (ii) be solely responsible for any technical support for and any services related to your Applications.
5. DATA PROCESSING AGREEMENT
When HERE is a Processor or subprocesssor of Personal Data as defined in the DPA, the DPA will apply to the processing of Personal Data that you upload to the HERE Workspace.
HERE CONTENT TERMS
If you have subscribed to HERE Content, the terms of this Exhibit apply and describe the rights granted to you by HERE for your use and access to the specific HERE Content. This Exhibit 4 for HERE Content incorporates the terms and conditions of the HERE Platform Terms.
1. HERE CONTENT AVAILABILITY
3.1. HERE makes specific HERE Content available to you as an Add-On. HERE Content may be subject to additional terms, including but not limited to the description of permitted use cases and fees. HERE Content will be made available to you only after you approve and accept such additional terms.
3.2. You may not create, distribute, sublicense or otherwise make available any HERE Content or Results that contains unenhanced or unmodified HERE Content, unless permission is explicitly granted in the terms attached to the Listing or otherwise agreed by the Parties.
3.3. HERE Content for certain countries or areas of territories may not be completed and will only be available hereunder upon general release by HERE following completion of such map content.
Unless otherwise permitted in your Subscription Plan or other terms with HERE, the use of HERE Content is solely for your internal evaluation and testing purposes.
3. END-USER TERMS
In all instances where any portion of the HERE Content is delivered to End Users, you must 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 will not be less restrictive, and no less protective of HERE than these Terms and will, 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 the 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 you);
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 you, 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 your compliance with these Terms, HERE may make certain HERE beta materials and/or services (“Beta Materials”) available to you through HERE Labs, solely for your internal testing and evaluation purposes. You acknowledge and agree that the HERE Beta Materials are beta versions and are not ready or intended for commercial use. You cannot use HERE Beta Materials for any commercial purpose.
1.2 These Terms (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, applies to your use of the Beta Materials.
1.3 You cannot copy, modify, update, amend, create derivative works, disclose, export, sell, market, commercialize (e.g., develop commercial applications), sub-license, re-license or otherwise transfer to any other party whatsoever the HERE Beta Materials, or use any HERE Beta Materials for any purpose that is not expressly authorized in this Exhibit.
2. TESTING PERIOD AND TERMINATION
Your right to test and evaluate (“Testing Period”) the HERE Beta Materials starts on the date on which HERE grants you the right to access specific HERE Beta Materials. Your Testing Period may be for only a limited time period, depending on the relevant HERE Beta Materials. HERE has the right to terminate your access to HERE Beta Materials at any time and for any reason. Otherwise, your Testing Period ends upon termination of these Terms.
IN NO EVENT WILL HERE, ITS EMPLOYEES, SUPPLIERS OR AFFILIATES BE LIABLE FOR ANY OF LOSS OF PROFIT, GOODWILL, OR ANY INDIRECT, SPECIAL CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, EXPENSES OR LOSSES OF ANY KIND RELATING TO THE “HERE BETA MATERIALS” REGARDLESS OF THE BASIS OF ANY CLAIM INCLUDING ANY EQUITABLE THEORY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4. NO WARRANTY
ALL “HERE 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 HERE MATERIALS ARE ERROR-FREE OR VIRUS-FREE.