GENERAL LICENSE AGREEMENT v2.0
This General License Agreement includes and incorporates each Supplement signed by the Parties, Addenda and any other documents referenced herein such as the HERE Policies (collectively, the “Agreement”). This GLA will only apply in connection with the HERE Content License Supplement.
a) LICENSE GRANTS
1.1 License Supplements. The Parties may enter into one or more license supplements or other documents under this Agreement which specify the HERE products and/or services, a description of the Permitted Use Case(s) and any applicable fees (each, a “Supplement”), as applicable.
1.2 License Rights. Subject to Customer’s compliance with the Agreement, unless otherwise specified in a Supplement, LocalEyes grants to Customer a non-exclusive, non-transferable, non-sublicensable (unless otherwise permitted herein), revocable (on termination for breach or expiration of this Agreement or the applicable Supplement), worldwide, limited license during the Term to use the Licensed Materials solely for the Permitted Use Case to:
a) develop Application(s) and
b) make available and distribute the Application(s) directly or indirectly to End Users.
1.3 Restrictions. Unless expressly permitted in a Supplement, in addition to any other terms and restrictions set forth in the Agreement, Customer may not:
(1) use the Licensed Materials in or with Applications lacking any legally-required and otherwise appropriate instructions, warnings, notices and safety information; or
(2) use or combine any Licensed Materials with any other material or otherwise that may subject the Licensed Materials to any open source software, open content, open database, licenses or other resembling terms where such licenses or terms would (a) cause the disclosure or distribution of the Licensed Materials (or any part thereof); (b) grant any licenses to any derivative works of any Licensed Materials (or any part thereof); (c) cause redistribution of the LicensedMaterials (or any part thereof) at no charge, as a condition for use, modification or distribution of such other material; or (d) otherwise restrict or impact the licensing or other use of the Licensed Materials (or any part thereof).
1.4 Layering Unless otherwise agreed to by LocalEyes, Customer may not combine datasets with or make any modifications, adaptations, additions or alterations to content provided by LocalEyes, except Customer may layer its own content and third-party content (including points of interest, visual content and dynamic content, including traffic) on top of LocalEyes Content and Results, provided that the origin of the non- LocalEyes content can be distinguished by including correct attribution.
1.5 Sublicensing. Subject to Customer’s compliance with this Agreement, Customer may sublicense its rights hereunder to its Affiliates. Affiliates means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Customer shall remain liable under this Agreement for acts and omissions ofsublicensees, and a breach of the terms hereof by a sublicensee shall be deemed a breach by the Customer.
1.6 Subcontractors. Any license granted in a Supplement includes Customer’s subcontractor(s) for the purposes of developing, prototyping, testing, maintaining and supporting Application(s),. Customer shall remain liable under this Agreement for acts and omissions of subcontractors, and a breach of the terms hereof by a subcontractor shall be deemed a breach by the Customer.
1.7 Acceptable Use and Supplier Terms. The HERE Acceptable Use Policy (https://legal.here.com/en-gb/terms/acceptable-use-policy) and the General Content Supplier Terms and Notices (https://legal.here.com/terms/general-content-supplier-terms-and-notices) apply.
2 CUSTOMER RECORDS, REPORTING AND AUDIT
2.1 Customer shall, for each individual Application or other Customer offering and for three (3) years after any fees accrue, keeprecords concerning (i) the number of units of measure agreed under the respective Supplement (such as Assets, Monthly Active Users etc.) (unless otherwise specified in a Supplement or Addendum); and (ii) information sufficient to demonstrate the scope of use and distribution of the Licensed Materials.
2.2 At least 10 days before the end of each contract year, Customer shall upon written request provide LocalEyes with a written feereport of Customer-reported units of measure for the then current contract year via email or LocalEyes’client portal.
2.3 LocalEyes may request Customer to substantiate the Customer-reported units of measure in order to verify Customer’s compliance with the number of Assets specified in Section 11 of the Supplement Customer will send such substantiation within 30 days’ after receipt of the written notice. Any request by LocalEyes may occur within three (3) years following the duedate of the applicable fee and will be at LocalEyes’ expense, except as follows: If the substantiation determines that the Customer has underpaid, Customer will pay the difference plus interest within 30 days of the completion of the substantiation;and if underpayment is 5% or more, Customer shall, within 30 days of the completion of the substantiation, pay the differenceplus interest in accordance with Section 1, and reimburse LocalEyes the cost of the inspection. This Section 2.3 shall surviveexpiration or termination of the Agreement for a period of three (3) years. Only if LocalEyes has reasonable doubts in Customer’s substantiation, LocalEyes may in consultation with Customer inspect Customer’s records on Customer premises upon 30 days’ prior written notice and without causing unreasonable disruption.
3 FEES AND TAXES
3.1 Customer will pay all Fees and charges specified in a Supplement or alternatively, as applicable, price lists, price book orsimilar resources referenced in a Supplement, or in a separate letter agreement(s) mutually executed by the Parties.Additional Fees may become due if any limits (such as Transactions, number of users, or assets) are exceeded. Anyamount 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.
3.2 All Fees payable by Customer under the Agreement are nonrefundable and exclusive of applicable taxes and duties,including sales tax and VAT and any income taxes calculated on LocalEyes’ net income, for which LocalEyes is solely If Customer is required by law to withhold taxes based upon LocalEyes’ revenue, Customer maydeduct such tax from the Fees payable to LocalEyes and remit them to the appropriate government authoritiesprovided that:
(i) Customer may only deduct such tax to the extent that the revenue pertains to Fees paid by Customer to LocalEyes;
(ii)such deduction is in accordance with the valid tax treaty rates between the countries where the Parties reside; and
(iii)Customer shall promptly send LocalEyes a certificate showing the payment of such tax. Customer shall notify LocalEyesof any deduction or withholding required by law.
4 TERMINATION
Either Party may terminate the Agreement and/or Supplement(s) by written notice (i) due to an uncured material breachafter thirty (30) days written notice, or immediately if such material breach cannot be remedied, or (ii) bankruptcy,insolvency or assignment for the benefit of creditors. Within thirty (30) days following termination or expiration of theAgreement, Customer will (a) discontinue use and distribution of all Licensed Materials and HERE Marks; and (b) return,remove or destroy (with certification) the Licensed Materials.
5 CHANGES TO LICENSED MATERIALS
5.1 LocalEyes will inform Customer of changes to Documentation when HERE publishes updated copies. LocalEyes may change or discontinue any of the beta, evaluation or demonstration uses of Licensed Materials at any time by informing Customer.
5.2 Subject to the time periods specified in the relevant Addendum or Supplement (except where a faster response is required to mitigate an emergency or threat to LocalEyes’ operations, to comply with applicable laws, to respond torequests or demands of a government or regulatory entity or concerning third party privacy or intellectual propertyrights), LocalEyes may change, discontinue, limit or remove functionality of certain Licensed Materials at any LocalEyes will work in good faith with Customer to mitigate any material disruption to the Licensed Materials resulting from changes made pursuant to this clause 5.2.
6 USE OF MARKS
6.1 HERE Marks. Customer shall publish HERE’s Marks adjacent to Data or Results, in accordance with HERE brandguidance located at https://brandlive.here.com/. Customer may not remove any trademark symbols (®, ™ & ) affixedto or included in Data or Results delivered through Licensed Materials. Customer must indicate that HERE is the ownerof HERE Marks. All goodwill from the use of HERE Marks inures to HERE.
6.2 Customer Marks. HERE may reproduce and publish in any media Customer’s brand/logo in accordance withCustomer’s brand guidance to indicate Customer is a user of Licensed Materials, but may not remove any trademarksymbols (®, ™ & etc.). HERE will not falsely imply any endorsement of HERE or that HERE is the owner of the Customer All goodwill from the use of Customer Marks shall inure to Customer.
7 INTELLECTUAL PROPERTY RIGHTS
Except as explicitly granted in clause 1.2, no other rights or licenses, express or implied, are granted under the Agreement, including any technologies that may be necessary for the use or enablement of the Licensed Materials by Customer. No ownership of any Intellectual Property Rights relating to the Licensed Materials, HERE Marks or anyother product, service, information or material provided by LocalEyes to Customer is assigned or transferred to Customer. The structure, organization, and code of the Licensed Materials and the products and services provided by LocalEyes are the valuable trade secrets and Confidential Information of LocalEyes, its licensors and/or Affiliates.
8 WARRANTIES; EXCLUSION OF WARRANTIES
8.1 Each Party represents and warrants to the other that: (i) it is duly organized and in good standing under the laws of the jurisdiction of its organization; (ii) it has all corporate authority to execute and perform the Agreement; (iii) its execution of the Agreement will not conflict with or violate any other agreement to which such Party is a party; and (iv) it is not aparty identified on any governmental or export exclusion lists.
8.2 EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT OR AN ADDENDUM, THE LICENSED MATERIALS AND ANY HERE PRODUCTS AND HERE SERVICES ARE PROVIDED ON AN “AS IS,” AND “AS AVAILABLE” BASISWITH ALL HERE, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY THAT THE LICENSEDMATERIALS OR SERVICE WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. HERE, ITS AFFILIATES AND THEIR LICENSORS SPECIFICALLY DISCLAIM, TO THE MAXIMUMEXTENT NOT PROHIBITED BY APPLICABLE LAW, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS,IMPLIED, OR STATUTORY, REGARDING THE LICENSED MATERIALS OR SERVICE, INCLUDING ANY IMPLIEDWARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, TITLE OR ANY IMPLIED WARRANTIES ARISING FROM LAW, COURSE OF DEALING, PERFORMANCE OR OTHERWISE.
9 INDEMNITY
9.1 Each Party (“Indemnitor”) agrees to defend, indemnify and hold harmless the other Party and its Affiliates, contractors and suppliers (each, an “Indemnitee”) from and against all third party claims and all liabilities, assessments, losses,costs or damages resulting from or arising out of Indemnitor’s infringement or violation of any Intellectual PropertyRights by paying the amounts Indemnitee is obligated to pay to the third party in accordance with a final judgment or settlement of the claims.
9.2 The indemnification obligations of the Parties specified above are subject to the following conditions: Indemnitee must (i) promptly notify the Indemnitor in writing; (ii) give the Indemnitor control over the defense of such claims; (iii)reasonably cooperate in the defense at Indemnitor’s expense, and (iv) not enter into any settlement and/or toacknowledge any liability without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld. Notwithstanding subsection (ii), Indemnitee may, at its own expense, select its own counsel to independently monitor and participate in any such defense.
9.3 If LocalEyes determines action is needed to avoid potential infringement, LocalEyes may, at its expense: (i) procurefor Customer the continued right to the Licensed Materials; (ii) replace or modify the Licensed Materials, in whole or in part with functionally equivalent Licensed Materials, or (iii) request Customer to discontinue use of the Licensed Materials, in whole or in part, subject to a refund by LocalEyes of the pro-rated amount of the Fees for the discontinuedLicensed Materials received by LocalEyes from Customer under the relevant Supplement.
9.4 LocalEyes shall have no liability or obligations under this clause 9 if the claim, judgment or settlement is based on (i)any use or combination of the Licensed Materials with software, services, technologies or other material provided by or on behalf of Customer by a party other than LocalEyes; (ii) any unauthorized modification of the LicensedMaterials, or modifications done by LocalEyes pursuant to a Customer specification; (iii) Customer continuing any allegedly infringing activity after being notified of any such allegedly infringing activity or after being informed of or provided with replacement Licensed Materials that would have avoided the alleged infringement; (iv) Customer’s breach of the license restrictions and rights granted under the Agreement; (v) the Application except where the claim is based wholly on the Licensed Materials; or (vi) any dispute between Customer and one of its subcontractors or sublicensees.
9.5 Notwithstanding anything to the contrary in the Agreement, this clause 9 shall be the sole and exclusive remedy for Customer by LocalEyes regarding third party Intellectual Property Rights infringement claims.
10 LIMITATION OF LIABILITY
10.1 Except in cases of intentional misconduct, gross negligence, breach of confidentiality or breach of the scope of thelicenses granted herein: Neither Party shall be liable to each other for any loss of profit, goodwill or any indirect, special, consequential, incidental or punitive damages or expense of any kind, howsoever arising under the Agreement.
10.2 Customer understands that LocalEyes is not responsible for and will have no liability for hardware, software, technology, or other items or any services not provided by LocalEyes.
Except in cases of intentional misconduct, gross negligence, breach of confidentiality or breach of the scope of the licenses granted herein: For any and all claims brought under the Agreement, regardless of the nature of the claim or the basis on which the claim is made (including, but not limited to, breach, negligence, misrepresentation, indemnification or other contract, tort or statutory claim), the aggregate, cumulative and total liability of LocalEyes, its employees, licensors and Affiliates will in no event exceed the amount of the license fees paid from Customer to HERE under the agreement.
11 GENERAL AUDIT
Customer will keep records which are reasonably necessary, in good faith, to verify the Fees and scope of use and distribution of Licensed Materials (“Records”). LocalEyes may inspect records to verify Customer’s compliance with theAgreement, including but not limited to Fees, on Customer’s premises, without causing unreasonable disruption, 30 days following receipt of written notice. Any inspection will occur within one (1) years following the due date of the applicable Fee and will be at LocalEyes’ expense, except if the inspection shows any underpayment for the period of 5% or more, then Customer will also reimburse the costs of the audit. Customer shall pay the underpayment plus interest and other sumsowed within 30 days of the completion of the inspection.
12 CONFIDENTIALITY
12.1 Unless a separate Non-Disclosure Agreement is in effect between the Parties and except as expressly permitted, each Party will hold in confidence and not use or disclose any Confidential Information received hereunder. Each Party may disclose Confidential Information of the other to those of its (and its Affiliates’) employees with a need to know, provided that suchemployees are bound by confidentiality obligations at least as restrictive as those contained herein. Confidential Information will be treated in the same manner that the receiving party protects its own proprietary information of a similar nature.
12.2 Upon termination of the Agreement or upon request of the disclosing Party, the receiving Party will return to the disclosingParty or destroy (and confirm such destruction in writing) all Confidential Information of the disclosing Party including any and all copies or extracts thereof. There shall be no obligation to treat as Confidential Information any information the receiving Party can document: (a) is or has become readily publicly available without restriction through no fault of the receiving Party or itsemployees, Affiliates or agents; (b) is received without restriction from a third party lawfully empowered to disclose suchinformation; (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.
12.3 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.
13 ERROR REPORTING AND FEEDBACK
If Customer provides any information concerning errors, problems, complaints, or requests new features related to theLicensed Materials, Customer grants HERE and HERE’s Affiliates a nonexclusive, transferable, irrevocable, free-of-charge,sublicensable and perpetual right to use that information in any manner and for any purpose.
14 GENERAL
14.1 Notices. All legal or default notices or notifications must be written, delivered by hand or overnight/express mailaddressed at the address of the Party set forth in the beginning of the Agreement. Such notices shall be effective upon receipt.
14.2 Export Control. Customer agrees to comply with all applicable export control and sanctions laws and regulations ofthe United States of America, of member States of the European Union, and any other relevant country (“ExportControl Laws”). Customer will not violate, and will not cause LocalEyes to violate, any Export Control Laws (e.g., by shipping or supplying goods or services to or from sanctioned countries). Licenses or other authorizations required for the export of Customer’s goods or services will be the responsibility of Customer.
14.3 U.S. Bankruptcy Act. All licenses granted under this Agreement are deemed to be, for purposes of Section 365(n) ofthe U.S. Bankruptcy Code, licenses of right to “intellectual property” as defined in Section 101 of such Code.
14.4 Assignment. A Party may assign the Agreement to an Affiliate, or any entity that acquires substantially all itsoperations, stock, or assets and agrees in writing to be bound by this Agreement, excluding assignments by Customer to a competitor of HERE. Any other transfer or assignment is not permitted except with written consent of the non-assigning Party.
14.5 Severability. If any provision of the Agreement is held to be unenforceable, the remaining provisions shall beunaffected and enforceable as thought the unenforceable provision had not been included.
14.6 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 ofany other right arising under the Agreement.
14.7 Force Majeure. Excluding payment, confidentiality and indemnification obligations, neither Party shall be liable to the other for a failure to perform any of its obligations under the Agreement, due to circumstances beyond its reasonablecontrol, provided such Party notifies the other of the delay.
14.8 Relationship of Parties. No third-party beneficiaries are Each Party is an independent contractor. NeitherParty has any authority to bind or commit the other. There is no joint venture, partnership or agency relationshipbetween the Parties for any purpose.
14.9 Governing Law. The Agreement shall be construed and governed by the substantive laws of the Netherlands TheUnited Nations Convention of Contracts for the International Sale of Goods is not applicable to the Agreement.
14.10 Dispute Resolution. Any dispute between the Parties as to matters covered by the Agreement, or the validity,enforceability or interpretation thereof such dispute shall be submitted to the competent court in Amsterdam, the Either Party may seek immediate injunctive relief in any court of competent jurisdiction.
14.11 Entire Agreement. The Agreement, Addenda, Supplements, the HERE Policies, and any other documents expressly referred to herein, together constitute the entire agreement between the Parties regarding the subject matter The Agreement supersedes all prior oral or written communications, representations, undertakings and agreements of the Parties relating to the subject matter of the Agreement. The Agreement may be modified only by a written amendment duly executed by the Parties. The Agreement may be signed in duplicate originals, or in separatecounterparts, which are effective as if the Parties signed a single original. Facsimile or scanned signature transmitted byone Party to the other Party are effective as if the original was transmitted.
14.12 Survival. Sections 1.6, 3, 7 – 10, and 13 – 15 survive expiration or termination of the Agreement for any cause orwithout cause. The same applies to any provisions in a Supplement or other referenced document which reasonablyshould Section 11 shall survive for a period of three (3) years as specified therein.
15 DEFINITIONS
15.1 Affiliate means (i) with respect to LocalEyes, HERE International V. and any entity that directly or indirectly isControlled by HERE International B.V. and (ii) with respect to Customer, any entity that directly or indirectly
(a) is Controlled by Customer; (b) Controls Customer; or (c) is under common Control with Customer; (iii) “Control”means a situation in which an entity (the “Controlling” entity), in relation to another entity (the “Controlled” entity), (a)has fifty percent (50%) or more of votes in such entity, (b) is able to direct its affairs and/or (c) controls the composition ofits board of directors or equivalent body.
15.2 Application has the meaning given to it in Section 1.2.1 above.
15.3 Confidential Information means this Agreement, Licensed Materials, and all business, technical, financial and otherinformation that is not publicly available and that a Party receives from the other Party.
15.4 Data means the Base Map Data and Additional Content set forth in the Supplement.
15.5 End User means any entity or person who (i) receives or uses an Application, or (i) accesses all or any portion of Data for personal use in an Application with no right to sublicense the same.
15.6 HERE Policies means the B2C end user terms at https://legal.here.com or the B2B terms at https://legal.here.com/terms/b2bserviceterms, as context may require, the HERE Acceptable Use Policy (currently at https:/legal.here.com/acceptable-use-policy), General Content Supplier Terms and Notices at https://legal.here.com/terms/general-content-supplier-terms-and-notices, and HERE Privacy Policy (currently available at https://legal.here.com/privacy).
15.7 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.
15.8 Internal Business Use means that the Application may be used by employees, contractors and agents of abusiness (and for the benefit of that business) to which the Application is licensed and specifically excludes use by consumers and the general public.
15.9 Licensed Materials means the Data, software development kits (“SDKs”) and/or APIs, and any associateddocumentation or other materials, provided by HERE as specified in each Supplement hereto.
15.10 Marks means trademarks, logos, service marks, trade names and similar designations.
15.11 Mainland China means the area of People’s Republic of China excluding Hong Kong, Macau and Taiwan.
15.12 Other HERE Materials means software, data, location or other content that HERE generally makes commercially available for use by its customers and that HERE has not already licensed to Customer forcommercial use, subject to HERE’s additional evaluation terms and conditions (if any).
15.13 Permitted Use Case means any of the use cases for which the Licensed Materials may be used and so designated, selected or described in a Supplement or Addendum.
* * *
HERE CONTENT ADDENDUM
This HERE Content Addendum incorporates the terms and conditions of the Agreement.
1 HERE Content Availability
1.1 LocalEyes will make available one copy of the HERE Content to Customer within 10 business days following execution of the Supplement.
1.2 HERE Content for certain countries or areas of the territories may not be completed or may not be produced within the Term and will only be available hereunder upon general release by HERE following completion of such map content.
2 Specific Terms Related to HERE Content and Applications
2.1 HERE Content. HERE reserves the right to modify the HERE Content specifications, including adding, deleting and re- categorizing map data elements. HERE will inform Customer at least 6 months prior to any material adverse modifications to the HERE Content specifications.
2.2 Supplier Terms and Local Regulations. Customer acknowledges and agrees that; (i) Customer shall comply with all applicable laws and regulations, including any required licenses or approvals to distribute the Application incorporating HERE Content in such respective countries and (ii) Customer will implement and comply with appropriate data privacy and security measures in connection with its collection, processing, transfer and use of personal data.
2.3 Traffic Codes. Customer acknowledges and agrees that, in certain countries, Customer is responsible for obtaining rights directly from third party RDS-TMC code providers to use the traffic codes in the HERE Content and to deliver to End Users information, data, applications, products or services in any way derived from or based on such traffic codes.
2.4 Modifications. Without prejudice to other restrictions that may apply in accordance with the Agreement, Customer shall notmake any modifications, adaptations, or alterations of or to the HERE Content (collectively “Modifications”) or associate or add any data to or in combination with the HERE Content (collectively “Additions”), without HERE’s prior written approval,except that Customer may (i) reformat or recompile the HERE Content for use in Applications, (ii) add or associate features or attributes to the HERE Content of a type not available from HERE.
3 Protection of HERE Content and HERE’s Supplier Terms
Customer will implement the HERE Content in Customer’s Application using state of the art technical protection measures to ensure that the HERE Content is sufficiently protected from being reverse engineered, archived or exported by any third party.
Customer shall 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 LocalEyes to Customer).