HERE Base License Terms and Conditions
As used herein, "You" or "Your" means the person(s) or entity using the HERE Materials and the Location Platform Service or otherwise exercising rights granted under this Agreement. If you are accepting this Agreement on behalf of your company, organization or other entity, (i) you represent that you have full legal authority to bind your company, organization or such entity to this Agreement, and (ii) in such case, "You" or "Your" refers to your company, organization or other entity and its employees and agents.
As used herein, "HERE" means either (i) HERE Europe B.V. with a principal place of business at De Run 1115, 5503 LB Veldhoven, the Netherlands, if Your business address is in any country within Europe, the Middle East or Africa, or (ii) HERE North America, LLC with offices at 425 West Randolph Street, Chicago, Illinois USA, if Your business address is in other country, and specifically excludes Nokia Corporation, Nokia Siemens Networks B.V. and Nokia, Inc. with respect to the HERE Materials. There may be additional conditions as referenced herein or in the documentation for the HERE Materials applicable to certain parts of the HERE Materials. You are not permitted to access and/or use the HERE Materials if You do not agree to this Agreement.
You may not use the Location Platform Services and may not accept the Agreement if (a) You are not of legal age to form a binding contract with HERE, or (b) You are a person prohibited from using or receiving the Location Platform Services under applicable laws, including the laws of the country in which You are resident or from which You use the Location Platform Services.
You agree to provide truthful and complete information when registering for access to the HERE Materials and to keep that information updated.
If You elect to register for access to the HERE Materials, HERE or a third party distributor authorized by HERE may provide you with a token and/or application ID that will enable You to create a Permitted Application that uses the Location Platform Services and API(s) and distribute such Licensed Application under the terms of this Agreement.
You are required to use a unique token and/or application ID for each Permitted Application ("Access Credentials"). You are personally responsible for any use of the Location Platform Services with Your Access Credentials. You agree to take due care in protecting Your Access Credentials against misuse by others and promptly notify HERE about any misuse.
Subject to Your compliance with the terms and conditions of this Agreement, including but not limited to any instructions, technical guidance or other requirements described in the HERE Materials, HERE grants You a non-exclusive, non-transferable, non-sublicensable (unless otherwise permitted herein), revocable, limited license during the Term solely to integrate the HERE Materials into Permitted Applications that You market and distribute within the Territory to End Users for the purpose of enabling such Permitted Applications to access the Location Platform Services.
The "HERE Materials" licensed hereunder mean the application programming interfaces and related documentation as made available by HERE for the sole purpose of enabling access to the Location Platform Services by End Users.
Notwithstanding anything to the contrary in this Agreement, except for the express limited license granted by HERE herein, no other, additional or broader licenses or releases and no covenants not to sue, non-asserts or any rights or immunities, whether express or implied or by estoppel, are granted hereunder under any Intellectual Property Rights by HERE or its Affiliates.
Nothing in this Agreement prevents HERE from developing, distributing and/or making use of any application that is directly or indirectly competing with Permitted Applications.
In addition to any restrictions set forth herein, You shall not:
- make available to any third party (including without limitation any of Your Affiliates and subcontractors) the HERE Materials (or any portions thereof) and/or the Location Platform Services as a standalone service or product, other than as explicitly permitted in this Agreement;
- create mash-ups, enhanced services or similar, if such use will result in (1) the creation of a derivative location platform or content product that is competitive with a substantially similar product or service of HERE unless otherwise permitted herein, (2) the degradation of the perceived quality of the HERE Materials, or (3) the incorrect attribution of Results;
- commingle Third Party Content with the Results (as further described in the Section herein entitled "Third Party Content and Services");
- use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Location Platform Services, and/or the Results, or collect information about users for any unauthorized purpose;
- allow Your Permitted Applications to enable access to the Location Platform Services by End Users outside of the countries and/or regions for which the Location Platform Services are made available by HERE;
- access or use the HERE Materials through any technology or means other than as permitted herein;
- issue queries not responsive to End User actions or otherwise modify queries to the HERE Materials. For sake of clarity, subsequent or automatic follow-up queries related to an initial query or End User action are not permitted (e.g., triggering of any automatic API call based on an End User's search result);
- use the HERE Materials in a manner that stores or caches any Results except as otherwise specified in the HTTP/1.1 standard where the cache-control header explicitly allow it. With the exception of (1) geocoding and reverse geocoding Results, and (2) Places Results, HERE Materials may be stored or cached to the extent that such caching is necessary for enabling or improving (x) an End User's near term or future usage; or (y) storage of location references and IDs
- use Results to generate sales lead information in the form of ASCII or other text-formatted lists of category-specific business listings which (i) include complete mailing address for each business, and (ii) contain a substantial portion of such listings for a particular county, city, state or zip code region;
- make any modifications, additions, omissions, adaptations, derivative works or alterations of or to the HERE Materials and/or the Results; interfere with the performance of the HERE Materials and/or the Results; complete mass downloads or bulk feeds of any content or information derived from the HERE Materials (including without limitation, numerical latitude or longitude coordinates); use benchmarking methods, e.g., robots, to access or analyze the HERE Materials and/or the Results; or alter or manipulate the HERE Materials and/or the Results, or modify the default settings, operation, look and/or feel of the Location Platform Services (including but not limited to displayed logos, terms and notices) in any way;
- use the HERE Materials and/or the Results in connection with any unlawful, offensive, obscene, pornographic, harassing, libelous or otherwise inappropriate content or material;
- use any data, content or materials made available by HERE not specified in this Agreement or any other agreement between the Parties;
- reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of all or any portion of the HERE Materials and/or Location Platform Services;
- exceed the Daily Usage Limits, including without limitation by using any programming methods to circumvent the applicable Daily Usage Limits.
- use the HERE Materials to perform load testing, performance testing, health check testing and/or any other testing that may adversely impact any server environment without HERE's prior written consent; or
- create a "wrapper" or similar abstraction layer for the Location Platform Services by means of Your Permitted Application or an API or service that You provide to third parties.
"Permitted Applications" means only those consumer-facing mobile and/or web applications developed by or for You and marketed and distributed to End Users, and that integrate the HERE Materials solely to enable access to the Location Platform Services. Permitted Applications exclude: (i) applications marketed for use in a vehicle, (ii) Vehicle Integrated applications, (iii) applications with fleet management, dispatch or similar applications; (iv) geomarketing applications (i.e., an application that analyzes and displays geographic, demographic, census and behavioral data to assist End Users in understanding and modeling relevant business data and making business decisions, including, without limitation: (a) marketing analysis and segmentation, (b) You prospecting and analysis, (c) sales territory analysis and definition or (d) distribution network site selection); or (v) any systems or functions for automatic or autonomous control of vehicle behavior, including, for example, systems or functions for the control of vehicle speed, braking, suspension, fuel, emissions, headlights, stability, drive train management, visibility enhancement and steering.
No Vehicle Integration
As used above, "Vehicle Integrated" means that the application is capable of interacting with a vehicle system, or any component thereof, to enable, assist or augment the delivery of Location Platform Services through such application to an End User, including without limitation vehicle positioning sensors (including, without limitation, GPS, triangulation, odometer, compass, gyroscope or accelerometer), navigation terminals or "black boxes", and display screens installed in the vehicle (including a windshield display). Without limiting the generality of the foregoing, functionality that would qualify an application as being Vehicle Integrated includes, without limitation, (i) where such Permitted Application is 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/or (ii) to allow the End User to control or operate the mobile device through the vehicle head unit or vice versa.
Notwithstanding the foregoing, an application shall not be deemed to be Vehicle Integrated hereunder simply by virtue of any or all of the following: (a) a power adapter is used; (b) the application device is capable of being inserted by an End User into a cradle for hands-free use; (c) the application communicates with a system installed in the vehicle for the purpose of delivering spoken instructions to provide information in connection with one or more functions of navigation, routing and/or route guidance, or positioning; (d) the Permitted Application is controlled by a remote control and such remote control is permanently mounted to the vehicle; or (e) an Permitted Application uses the vehicle reverse sensor to enable the display of images from a backup camera.
Requirements for Permitted Applications
The Permitted Application and use of the HERE Materials must comply with the following criteria and requirements:
- You shall provide each End User with any legally required and otherwise appropriate instructions, warnings, notices and safety information as required by applicable Laws;
- if screen size or other technical constraints prevent Results from being displayed, then You shall display a conspicuous notice informing the End User that the Results cannot be displayed;
- neither the HERE Materials nor any information accessed through the Location Platform Services may be used to develop or enable features and/or functionality which provides an End User with (a) individual maneuvers of a calculated route derived from the Results such that a textual, audible or visual alert is provided as to the next maneuver on the route as the End User proceeds along such route, or (b) automatic recalculation of routes (e.g., where an End User deviates from the original route) within the Permitted Application.
- the Results must be used according to the intended flow by following the links made available within the Result and such links shall only be accessed by deliberate and specific user interaction. You shall not implement shortcuts and/or automatic means to access the links and/or other information within the Results. All Results must be used in accordance with the documentation and other instructions provided by HERE;
- Your Permitted Application will be developed and used in compliance with the this Agreement or any applicable law or regulation, including without limitation, any intellectual property or other proprietary rights, any right of any person, rights of privacy, or rights of personality;
- Your Permitted Application will be developed in compliance with the documentation, technical guidelines and other requirements as HERE may provide from time to time;
- Your Permitted Application does not and will not, to the best of Your knowledge, violate, misappropriate, or infringe any copyright, patent, trademark, trade secret, rights of privacy or other proprietary or legal right of any third party or of HERE;
- Your Permitted Application must not contain nor transfer any viruses, files, code malware or any other malicious software programs that may harm or disrupt the normal operation of the device or network;
- Your Permitted Application must identify the nature and provider (including contact details) of the Permitted Application, function as promoted and not contain any false, fraudulent or misleading information or representations;
- You will clearly communicate to the users of Your Permitted Application (e.g. in the Permitted Application user interface) that the use of the Permitted Application creates data traffic which may result in costs to users;
- You will not design or market the Permitted Application, or any part thereof, for use in or with systems, devices or products that are critical to health and/or security of other people and property (e.g. intended for surgical implant into the body or other Permitted Applications intended to support or sustain life or for any aviation or nuclear reactor Permitted Application) or any other Permitted Application in which the software or its failure, malfunction or inadequacy could directly or indirectly cause or contribute to personal injury or death or significant property damage;
- Your Permitted Application must not enable push notifications routed from other notification systems and servers provided by third parties;
- Your Permitted Application shall not send any push notifications without first obtaining user consent, (e.g. unsolicited messages, advertising, promotions, or direct marketing of any kind or for the purposes of phishing and spamming) and Your Permitted Application(s) will include easy settings to disable any such notifications; and
- Your Permitted Application shall not distribute or post spam, unreasonably large files, chain letters, pyramid schemes, any malicious code, viruses or any other technologies or content that may harm the Location Platform Services, other users, servers or networks or send any messages for the purpose of phishing or spamming, or enable anonymous or prank phone calls or SMS/MMS messaging.
Term and Termination
The term of this Agreement begins on the Effective Date and continues until terminated as provided herein ("Term").
You may terminate this Agreement at any time by permanently uninstalling, deleting and/or destroying, at Your own expense, the HERE Materials and any related software, all backup copies and all related materials provided by HERE as well as stopping use of the Location Platform Services.
HERE may terminate Your access to all or any portion of the HERE Materials if HERE becomes aware of any End User being in breach or violation of the End User Terms. Upon request by HERE, You shall immediately terminate or deny access to any End User of the Permitted Application who is in violation of End User Terms. Additionally, HERE May terminate or suspend Your access to all or any portion of the HERE Materials if you exceed the Daily Usage Limits.
HERE may terminate this Agreement for its convenience at any time without liability to You.
All of Your rights shall automatically and immediately terminate without notice from HERE if You fail to comply with any provision of this Agreement. In such an event, You must immediately uninstall, delete and/or destroy, at Your own expense, any related software, all backup copies, and all other related materials provided by HERE as well as stop using the HERE Materials and the Location Platform Services.
After termination, You will no longer have access to the Location Platform Services. HERE may terminate Your registration or restrict Your access to certain parts of the Location Platform Services if there is an indication that You have breached this Agreement or if You have not signed into the Location Platform Services with Your username or Access Credentials in the past three (3) months.
Immediately following termination or expiration of this Agreement, You shall cease all distribution of the Permitted Application that use the HERE Materials and You shall no longer make use of the HERE Materials and/or HERE Marks. You shall uninstall, return or destroy (and certify such destruction of) all related software, backup copies, and all other related materials provided by HERE within thirty (30) days of termination or expiration of this Agreement. Those provisions that naturally survive termination of the Agreement shall survive such termination.
Restrictions on Third Party Content and Services
Third Party Content may not be commingled with the Results, including without limitation, substituted for, appended to, and/or otherwise supplemented by the Results. Additionally, You may not use Results (i) without a HERE map or underlying imagery with exception of standalone usage for directions, places, geocoding and traffic, or (ii) in connection with a third party map, street level or satellite imagery.
End User and Supplier Terms
You are required to (a) make the End User Terms available to End Users in connection with the Permitted Applications; and (b) cause each End User to accept the End User Terms in such a manner that the End User Terms are enforceable against the End User by the HERE. HERE reserves the right to amend or replace End User Terms from time to time at its sole discretion. Additionally, HERE reserves the right to (i) review the manner in which You causes End Users to accept the End User Terms; and (ii) require You to change the implementation of acceptances and/or acquire additional consents from End Users if deemed necessary at HERE's sole discretion.
HERE Materials may include data, content or services provided by third parties. You shall comply with all Supplier Terms. Recipient shall comply with all requirements and restrictions imposed by such third party suppliers in connection with use of the HERE Materials as licensed hereunder ("Supplier Terms"). Supplier Terms are set forth at http://corporate.navteq.com/developer_supplier_terms.html as updated from time to time by HERE. HERE reserves the right to amend or replace the Supplier Terms from time to time at its sole discretion.
Daily Usage Limits
The number of Requests submitted by Your Permitted Application may be subject to certain daily limits ("Daily Usage Limits") as updated from time to time by HERE and as available under http://developer.here.com/get-started (Click "View available features and limits").
HERE reserves the right to include advertising and/or third party advertising within the Results provided through the Location Platform Services. You may not remove, alter, interfere, tamper with, or otherwise obscure such advertising activities when displaying Results to End Users through the Permitted Applications.
Support and Maintenance
HERE has no obligation to furnish You with technical or other support unless otherwise agreed between the Parties or specified in this Agreement. HERE may, in its sole discretion, change, improve and correct the Location Platform Services from time to time. HERE may also provide updates, upgrade or modifications ("Updates") to the Location Platform Services and/or HERE Materials that are considered as important or critical by HERE, and in such case You may not continue using the previous version of the Location Platform Services and/or HERE Materials and the use of the previous version of the Location Platform Services and/or HERE Materials may be prevented without installation of the update. HERE has no obligation to provide maintenance, bug fixes, patches or Updates to the Location Platform Services. To the extent such Updates are provided, they shall be deemed part of the applicable Location Platform Services and/or HERE Materials.
Update to Terms and Services
HERE reserves the right to modify or amend the terms and conditions of this Agreement at any time without prior notice. If the terms are changed in a materially adverse way, HERE will provide a separate notice advising of such change. In order to continue using the HERE Materials and the Location Platform Services, You must accept and agree to the new terms of this Agreement. If You do not agree to new terms, Your access to the Location Platform Services will be suspended or terminated by HERE. Your continued use of the HERE Materials and/or the Location Platform Services shall be deemed to be Your acceptance of any such modified terms and conditions. If a modification is unacceptable to you, you may terminate this agreement by ceasing use of the HERE Materials and/or Location Platform Services.
Use of Your Marks and Permitted Application
HERE may reference Your entity and Your Permitted Applications as well as display Your trade name, trademarks, logos, and company and product descriptions and similar information and designations (collectively "Your Marks"), relating to Applications which use all or any portion of the Location Platform Services, on web pages, in advertisements, brochures, exhibits, press releases, and other marketing and promotional material of HERE (collectively "HERE Collateral"). You grant HERE a non-exclusive, non-transferable, non-sublicensable right to use Your Marks as permitted in the preceding sentence. Nothing stated herein shall constitute a grant or other transfer to HERE of any right, title or interest in Your Marks. Upon termination of this Agreement for any reason, HERE shall immediately cease all use of Your Marks. In addition to the foregoing, You agree that HERE is permitted to use screen shots of Your Application, showing the use of the Location Platform Services, in its sales collateral and other promotional materials.
When prototype versions of Your Permitted Application become available from You, You shall provide HERE with a copy of such prototype versions, upon request from HERE. HERE is permitted to use such prototypes as well as the commercial versions of Your Permitted Applications, for public demonstration purposes relating to the promotion of the Location Platform Services and/or related HERE products or services.
Use of HERE Notices and Marks
You shall prominently display HERE's copyright notices and other proprietary rights legends ("HERE Notices") and trademarks, logos, service marks, trade names and similar designations ("HERE Marks") provided and as specified by HERE, in connection with the Permitted Application and in accordance with HERE branding guidelines as provided to You and on all product and marketing materials related to the Permitted Application ("Your Material"); provided that HERE may require, at its sole discretion, that any use of the HERE Materials be modified or stopped. Without limiting the foregoing, in connection with the Permitted Application and in all instances where a reference to the Location Platform Services is made, You shall attribute HERE as the source of origin of the Location Platform Services and shall not in any way mislead, represent or imply that You or any third party is the source of origin of the Location Platform Services.
HERE grants You a limited, non-exclusive, non-transferable, royalty-free right to use the HERE Marks solely for purposes of displaying HERE Marks (i) in connection with the Your Material as specified above; and (ii) as incorporated in the Location Platform Services, subject to HERE's usage policies that may be updated by HERE from time to time. HERE reserves the right to update, modify and remove HERE branding, including HERE Marks, within the Location Platform Services, in its sole discretion.
Upon termination or expiration of this Agreement for any reason, You shall immediately cease all use of HERE Notices and HERE Marks unless otherwise provided herein.
HERE reserves the right, in its sole discretion, to make changes to the HERE Materials and the Location Platform Services from time to time. The availability of features and/or capabilities of the HERE Materials and/or Location Platform Services may be limited and/or subject to changes by HERE. The Location Platform Services may not be available in all countries and may be provided only in selected languages. HERE expressly disclaims any representation or warranty that any particular data, feature or capability will be available. The Location Platform Service may not be available during maintenance breaks and other times.
You agree that all material and information in any form received from HERE, including, but not limited to the Location Platform Services, as well as all translations of computer programs contained in the Location Platform Services, HERE's products, designs, business plans, business opportunities, finances, research, development, know-how, personnel, or third-party confidential information, will be considered and referred to collectively as "Confidential Information". Confidential Information, however, does not include: (a) information that HERE makes generally available to the public; (b) information that You can demonstrate to have had rightfully in Your possession prior to disclosure to You by HERE; (c) information that is independently developed by You without the use of any Confidential Information; or (d) information that You rightfully obtain from a third party who has been given the right to transfer or disclose it by HERE. Each party may disclose Confidential Information of the other to the receiving party's affiliates, provided that employees receiving such Confidential Information are bound by confidentiality obligations at least as restrictive as those contained in this Section. You agree to keep confidential and not to disclose, publish, or disseminate any Confidential Information to any third party. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information. You agree not to use Confidential Information otherwise for Your own or any third party's benefit without the prior written approval of an authorized representative of HERE in each instance.
Intellectual Property Rights
By virtue of this Agreement, no ownership of any Intellectual Property Rights relating to the HERE Materials, Location Platform Services, Results, HERE Marks or any other information or material provided by HERE to You is assigned or transferred to You and such Intellectual Property Rights are protected by international treaty provisions and applicable Laws. The structure, organization, and code of the HERE Materials and Location Platform Services are the valuable trade secrets and Confidential Information of HERE, its licensors and/or Affiliates. Except as explicitly set forth in this Agreement, no right, license, release, covenant not to sue or other rights or immunities, express or implied, by estoppels or otherwise are granted to any part of the HERE Materials, Location Platform Services, Results or HERE Marks. For purposes of clarity and notwithstanding anything to the contrary in this Agreement, the limited license granted in this Agreement does not include any licenses, releases, covenants not to sue or any other rights or immunities, whether expressly, impliedly or by estoppel or otherwise, to any Enabling Technologies, even if such Enabling Technologies are necessary for the use of the HERE Materials or otherwise used in connection with the HERE Materials.
You agree that during the Term, You and Your Affiliates, as the case may be, covenant and agree not to bring suit before any court or administrative agency or otherwise assert any claim against HERE and/or any of its Affiliates, suppliers or customers based on any of Your or Your Affiliate's Intellectual Property Rights due to the use of the HERE Materials and HERE Marks or implementations thereof under this Agreement.
You agree that it and its Affiliates shall impose the obligation stated above on any third party to whom You or Your Affiliates may assign or transfer Your Intellectual Property Rights. This obligation is restricted to suits or other assertions based on such assigned or transferred Intellectual Property Rights.
You shall be released from Your covenant and agreement not to sue under this Section in relation to a particular beneficiary (but not in relation to any other beneficiary) in the following event if: (i) You are first sued for Intellectual Property Rights infringement related to the HERE Materials by such other beneficiary who benefits from Your covenant and agreement as set forth herein; and (ii) the suit is based on Your infringement of such other beneficiary's Intellectual Property Rights which if held by You would be subject to the covenant and agreement not to sue provided for above in this Section.
Error Reporting and Feedback
You may provide to HERE any information You become aware concerning errors, problems, complaints, and other matters related to the HERE Materials and/or Location Platform Services including any suggestions for improvements to the HERE Materials and/or Location Platform Services (collectively, "Feedback").
You acknowledge and agree that: (i) You shall not retain, acquire or assert any Intellectual Property Right or other right, title or interest in or to the Feedback; (ii) HERE may have similar development ideas to the Feedback; (iii) Feedback does not contain Confidential Information or proprietary information of You or any third party; and (iv) HERE is not under any obligation of confidentiality with respect to the Feedback. In view of the foregoing, You grant HERE and HERE's Affiliates an exclusive, transferable, irrevocable, free-of-charge, sublicensable and perpetual right to use Feedback in any manner and for any purpose.
Representations and Warranties
Each Party hereby represents and warrants to the other that:
- It has all requisite corporate power and authority to execute these HERE Materials Terms and Conditions and to perform its obligations hereunder;
- The execution and delivery of these HERE Materials Terms and Conditions will not conflict with or violate any other agreement to which such Party is a party; and
- It is not a party identified on any governmental export exclusion lists.
You represent and warrant that:
- You shall comply with all applicable Laws with respect to its obligations and use of the HERE Materials under these HERE Materials Terms and Conditions;
- You will implement and comply with appropriate data privacy and security measures in connection with Your collection, processing, transfer and use of personal data, if any, under the Agreement;
- Use of the HERE Materials shall be in compliance with this Agreement, any documentation, technical guidelines and other requirements as HERE may provide from time to time and any applicable Laws;
- You shall not violate, misappropriate, or infringe any Intellectual Property Rights, or other proprietary rights, rights of privacy, or rights of personality or any other right of any third party or of HERE;
- The Permitted Application shall not contain nor distribute any viruses, spam, files, code malware or any other malicious software programs, technology or content that may harm or disrupt the operation of the HERE Materials or Location Platform Services; and
- You shall exercise all legally required care and diligence in connection with the design, manufacture, workmanship, testing, distribution and operation of the Permitted Application.
EXCEPT AS OTHERWISE PROVIDED IN THESE HERE MATERIALS TERMS AND CONDITIONS, THE HERE MATERIALS AND LOCATION PLATFORM SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS; HERE, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY THAT THE HERE MATERIALS AND LOCATION PLATFORM SERVICES WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, OR THAT DEFECTS IN THE HERE MATERIALS AND LOCATION PLATFORM SERVICES WILL BE CORRECTED; AND; HERE, ITS AFFILIATES AND THEIR LICENSORS SPECIFICALLY DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE HERE MATERIALS AND LOCATION PLATFORM SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE.
You agree to defend, indemnify and hold harmless HERE and its Affiliates, contractors and suppliers from and against all third party claims and all liabilities, assessments, losses, costs or damages resulting from or arising out of (i) Your breach of any term of the Agreement, (ii) any use of the HERE Materials and/or Location Platform Services and/or any information or Results derived therefrom by You or any third party as a result of the license granted to You hereunder; and (iii) Your infringement or violation of any Intellectual Property Rights or other rights of a third party.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HERE, ITS EMPLOYEES,LICENSORS OR AFFILIATES BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES, DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SOFTWARE, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, ECONOMIC, COVER, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE LOCATION PLATFORM SERVICE OR THE HERE MATERIALS, EVEN IF HERE OR ITS LICENSORS OR AFFILIATES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME COUNTRIES/STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY, BUT MAY ALLOW LIABILITY TO BE LIMITED, IN SUCH CASES, HERE, ITS EMPLOYEES OR LICENSORS OR AFFILIATES' LIABILITY SHALL BE LIMITED TO U.S. $500.
You acknowledge and agree that HERE is not responsible for and will have no liability for hardware, software or other items or any services provided by any persons other than HERE.
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 (including but not limited to, breach, negligence, misrepresentation, indemnification or other contract, tort or statutory claim), the aggregate, cumulative and total liability of HERE, its employees, licensors or Affiliates will in no event exceed the amount of any actual direct damages up to the license fees paid or payable by You from which the claim arises during the twelve (12) months preceding the date on which the claim arose.
You acknowledge and agree that the fees and allocation of the risks (as expressed in the indemnities and the limits on warranties, liabilities, damages and remedies) contained herein reflect the economic basis of the Agreement, in the absence of which the Agreement would not have been made.
Nothing contained in the Agreement shall prejudice the statutory rights of any party dealing as a consumer. Nothing contained in this Agreement limits HERE's liability to You in the event of death or personal injury resulting from HERE's negligence. HERE is acting on behalf of its employees and licensors or affiliates for the purpose of disclaiming, excluding, and/or restricting obligations, warranties, and liability as provided in this Agreement, but in no other respects and for no other purpose.
All notices provided to HERE under this Agreement shall be delivered to:
HERE North America, LLC
Attn: Vice President, Legal and Intellectual Property
425 W. Randolph Street
Chicago, IL 60606
Except as otherwise agreed, in any case where any notice, consent, approval, agreement or other communication is required or permitted to be given hereunder to HERE, such notice, approval, agreement or communication must be in writing and delivered by certified mail (return receipt requested), hand delivery, or by a reputable overnight service.
Notices to HERE will be considered given on the day the notice is received. HERE may update its notice address from time to time.
You agree that HERE may provide you with notices, including those regarding changes to this Agreement, by email, regular mail, or through postings to the Location Platform Service.
The rights and obligations of each Party under this Agreement may not be transferred or assigned directly or indirectly without the prior written consent of the other Party, which consent will not be unreasonably withheld, except that HERE may assign this Agreement to an Affiliate or any entity that acquires substantially all of its respective stock, assets or business. Any transfer or assignment attempted in contravention of this Section is void.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining provisions shall be unaffected and remain valid and enforceable as if such provision had not been set forth herein. The Parties agree to substitute for such provision a valid provision that most closely approximates the intent of such severed provision.
No waiver will be deemed 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 this Agreement.
Limitation on Action
Except for any breach of Your payment obligations or any unauthorized use of HERE's Intellectual Property Rights, any action by either Party in connection with this Agreement must be brought within two (2) years after the cause of action arose.
Neither Party shall be liable to the other for a failure to perform any of its obligations under this Agreement, except for payment obligations, due to circumstances beyond its reasonable control, provided such Party notifies the other of the delay.
This Agreement is between HERE and You. For the sake of clarity, "HERE" shall not include Nokia Corporation, Nokia Siemens Networks or Nokia, Inc. and the Parties acknowledge that such entities are not Parties of this Agreement. No third party beneficiaries are intended. In connection with this Agreement, each Party is an independent contractor and as such does not have any authority to bind or commit the other. Nothing herein shall be deemed or construed to create a joint venture, partnership or agency relationship between the Parties for any purpose.
All media releases, public announcements and public disclosures relating to the terms or existence of this Agreement must be approved in writing by the other Party prior to their release unless the disclosure is required by applicable law, provided that in the case of required legal disclosure, the disclosing Party will provide to the other Party prompt notice of such required disclosure and comply with any protective order imposed on such disclosure.
Governing Law and Dispute Resolution
This Agreement shall be construed and governed by the substantive laws of (i) The Netherlands if Your business address is in any country within Europe, the Middle East or Africa, or (ii) the State of Illinois (USA) if Your billing address is in other country, in either case without giving effect to the conflict of laws provisions. The United Nations Convention of Contracts for the International Sale of Goods shall not apply to this Agreement.
If there is a dispute between the Parties as to matters covered by this Agreement, or the validity, enforceability or interpretation thereof (each, a "Dispute"), then (i) if Your business address is in any country within Europe, the Middle East or Africa, the Dispute shall be submitted to the competent court in the district of Amsterdam without prejudice to Parties' right to appeal and/or cassation or (ii) if Your billing address is in other country, then each Party irrevocably submits to the exclusive jurisdiction of the Illinois State courts in Chicago and U.S. federal courts in the District of Illinois for the purpose of any suit, action or other proceeding arising under this Agreement. The provisions of this Section do not prevent either Party from seeking immediate injunctive relief in any court of competent jurisdiction.
This Agreement, together with all of the documents referenced herein, constitute the entire agreement between the Parties regarding the subject matter hereof. This Agreement supersedes all prior oral or written communications, representations, undertakings and agreements of the Parties relating thereto and prevails over any conflicting or additional terms of any quote, order, acknowledgement, purchase order or similar communication. This Agreement may be modified or amended only by a written amendment duly executed by the Parties.
"Affiliate" of a Party means an entity (i) which is directly or indirectly controlling such Party; (ii) which is under the same direct or indirect ownership or control as such Party; or (iii) which is directly or indirectly owned or controlled by such Party. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty percent (50%) or more of votes in such entity, is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
"Enabling Technologies" means any underlying, enabling or other technologies which are not wholly part of the HERE Materials, including but not limited to operating systems, communication protocols and cellular and other radio connectivity technologies (e.g. GSM, UMTS, CDMA, LTE, WLAN 802.11, Wimax), positioning technologies (e.g. A-GPS), hardware, user interfaces (e.g. screen based interaction), near field communication technologies (e.g. NFC) and video coding technologies (e.g. MPEG-4 AVC, MPEG-4 Visual, VC-1, VP8).
"End User" shall mean any person who receives Results solely through use of a Permitted Application.
"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.
"Laws" means all applicable foreign, federal, state, provincial and local statutes, orders and regulations, including but not limited to privacy and import/export laws, and those of any governmental agency, as the foregoing may change from time to time.
"Location Platform Services" means the services made available to End Users by HERE as accessed through the HERE Materials are as further described at http://developer.here.com/.
"Party" means You or HERE.
"Request" means each call made to the server through the HERE Materials to request Results as initiated by an End User using the Permitted Application to access the Location Platform Services.
"Result" means each unique delivery of geographic map data and other content made available by HERE through the Location Platform Services and delivered to an End User through a Permitted Application in response to a Request.