1. Contract Formation.
These Terms and Conditions set out the terms under which TomTom International BV ("TomTom") is prepared to grant an evaluation license for certain TomTom Historical Traffic products (the "Licensed Products").
Any individual or entity which requires use of the Licensed Products (hereafter a "Licensee") shall submit an order form via the TomTom website available at www.tomtom.com/mobility (the "Website") requesting an evaluation license of the Licensed Products and specifying the Licensed Products which Licensee requires to evaluate (an "Order").
Any Order sent by Licensee to TomTom will be accepted entirely at TomTom's discretion. Any acceptance by TomTom will take place by means of TomTom confirming an Order by an "Order Confirmation" email (hereinafter an "Order Confirmation"). No Order shall be deemed to be accepted and no binding agreement shall be formed unless and until Licensee receives an Order Confirmation.
For the avoidance of doubt, any e-mail which Licensee receives that acknowledges receipt of Licensee's completed Order and indicates that it shall be subject to TomTom's review and approval shall not be deemed to be an Order Confirmation.
All prices and product offerings specified on the Website in connection with the Licensed Products are indicative only and shall be deemed to be an "invitation to treat". Under no circumstances shall such prices or product offerings be deemed to be an offer which is capable of acceptance. For these purposes an offer shall only be made upon Licensee's submission of an Order and such offer shall only be accepted once Licensee receives an Order Confirmation as set out above.
These Terms and Conditions will override any different or additional terms or conditions contained or referred to in an Order or other document or correspondence from Licensee to TomTom in connection with the Licensed Products. No addition, alteration or substitution of these Terms and Conditions will bind TomTom or form part of any Order unless expressly accepted in writing by a person authorized to represent TomTom. TomTom explicitly rejects the applicability of Licensee's terms and conditions.
2. Access Codes.
Upon TomTom's Acceptance of Licensee's Order in accordance with Section 1 above, TomTom shall provide to Licensee an access code (the "Access Code") which shall enable Licensee to access the Licensed Products directly from the Portal (as defined under article 3 below).
Licensee shall be responsible for keeping the Access Code confidential and shall not, except as permitted under these terms and conditions, permit any third party to have access to or use of the Access Code.
In the event Licensee loses the Access Code, TomTom shall be under no obligation to provide a new Access Code and Licensee shall not be entitled to receive any form of refund, rebate, discount or compensation.
TomTom shall be entitled to revoke the Access Code at any time and for any reason without notice. Without prejudice to the foregoing sentence, TomTom shall be entitled to revoke the Access Code at any time in the event Licensee (i) loses the Access Code, or (ii) the Portal is accessed by any third party other then Licensee using the Access Code; or (iii) TomTom, acting reasonably, believes Licensee is in breach of the terms of this Agreement.
Licensee acknowledges that the Access Code and the Licensed Products are programmed to allow Licensee access to the Licensed Products solely in connection with the scope, duration, number of searches or such other criteria as Licensee may have purchased or been granted by TomTom and that the Access Codes and Licensed Evaluation Agreement
Products may be programmed with a time bomb or other form of disabling code which is designed to limit Licensee's use of the Licensed Products to that which is permitted by TomTom. Licensee hereby agrees and acknowledges that such time bomb and other disabling codes may install themselves on Licensee's systems and that Licensee shall have no claim whatsoever against TomTom in respect of such time bomb and other disabling codes.
3. Grant of Limited License.
Subject to TomTom's acceptance of an Order as set out above, TomTom hereby grants to Licensee a non-transferable, non-exclusive, revocable License of a discrete area of the territory selected (such discrete area to be determined by TomTom in its sole discretion) to access and use the Licensed Products (which shall be accessed via the TomTom access portal which is available at www.trafficstats.tomtom.com (the "Portal")) to generate Search Results for the limited purpose of internal evaluation only. Any other use of the Licensed Products by Licensee is not permitted. "Search Results" for the purpose of this Agreement shall mean travel time reports which detail, without limitation, speeds and travel times including their statistics per road segment on the specified routes which is produced using the Licensed Products.
Licensee shall not be permitted to supply any Search Results to any third party. Where Licensee is a government body or department, a quango, a regulatory body, a quasiadministrative body, a public entity or a statutory body (together a "Government Entity"), transfer by Licensee of the Search Results (whether in an aggregated form, compiled form, edited form or otherwise) to any other Government Entity shall be deemed to be a transfer to a third party and shall be prohibited unless explicitly authorised in writing by TomTom.
Licensee acknowledges that information and Search Results generated by the Licensed Products shall be made available to Licensee by TomTom in aggregated form only. For the avoidance of doubt, Licensee shall not be permitted to access or use the underlying raw data contained in TomTom Historical Traffic database (the "Database") which the Licensed Products use in order to derive the Search Results and Licensee shall make no attempt to access such raw data.
Licensee acknowledges that it is prohibited from making any additions, modifications, adaptations, or other alterations of or to the Licensed Products or Search Results, adding any data to or in combination with the Search Results, or reverse engineering, decompiling, or making derivative works thereof. Licensee is not entitled to compile a database by using, or reutilizing the Licensed Products or Search Results in combination with any other database of Licensee or any third party whether or not to check, compare or benchmark the Licensed Products or Search Results against such other database. Licensee is prohibited from distributing the Licensed Products or Search Results in any fashion other than as permitted by this Agreement or as required by law. In no event shall Licensee use the Licensed Products or Search Results for commercial or revenue generating purposes or for the performance of a public function. All rights not specifically granted herein are reserved.
In the event the Search Results comprise any map data ("Map Data") then the following shall also apply: The Map Data may not be used for in-flight navigation. If the Map Data generates either hard copy or electronic maps, the following notice must appear on each map image: "© 2006-2014 TomTom". Additional Provisions with respect to the data for China: Licensee agrees that any Search Results which contain Map Data relating to China may be subject to additional terms and conditions which shall be provided to Licensee when available to TomTom. Chinese Map Data may not be exported from China. Additional Provisions with respect to the data for India: Licensee agrees that any Search Results which contain Map Data of India may be subject to additional terms and conditions which shall be provided to Licensee when available to TomTom. Additional Provisions with respect to the data for Korea: Licensee agrees that any Search Results which contain Map Data of Korea may be subject to additional terms and conditions which shall be provided to Licensee when available to TomTom. Korean Map Data may not be exported from Korea. Korean Map Data cannot be shipped to Licensee in an open format (such as ESRI shapefile).
4. Use of Search Results for Law enforcement Purposes
NOTWITHSTANDING ANYTHING TO THE CONTRARY UNDER THIS AGREEMENT, LICENSEE SHALL NOT (AND SHALL PROCURE THE SAME IN RESPECT OF ANY THIRD PARTY WHICH TOMTOM HAS PERMITTED LICENSEE TO SUPPLY THE SEARCH RESULTS TO), USE THE SEARCH RESULTS (WHETHER IN AN AGGREGATED FORM, COMPILED FORM, EDITED FORM OR OTHERWISE) TO ASCERTAIN AREAS OF A SELECTED ROAD NETWORK IN WHICH MOTORISTS EXCEED THE APPLICABLE SPEED LIMIT FOR THE PURPOSES OF SELECTING POTENTIAL LOCATIONS FOR THE INSTALLATION OF SPEED CAMERAS (OR THE IMPLEMENTATION OF OTHER SUCH PERMANENT OR TEMPORARY SPEED TRACKING DEVICES) USED FOR THE PURPOSE OF ISSUING SPEEDING FINES OR OTHER SUCH CIVIL OR CRIMINAL PENALTIES TO MOTORISTS.
5. Proprietary Rights.
5.1 Confidentiality and Protection of Licensed Products.
The Licensed Products, Search Results and the Database include confidential and proprietary information and materials of TomTom (together the "TomTom IPR"). Accordingly, Licensee agrees to hold the TomTom IPR in confidence and trust. Licensee agrees to take reasonable steps to protect the TomTom IPR from misappropriation or misuse. Licensee agrees not to publish any part of the TomTom IPR without the prior written consent of TomTom. Licensee may disclose relevant aspects of the Search Results and Licensed Products only to its employees, agents or representatives with a need to know for the purposes of the license granted in this Agreement and who are bound by confidentiality obligations at least as protective as this provision. Licensee acknowledges that the terms of this Agreement are confidential and it will not disclose such information to third parties. On all copies of any media containing the Search Results or parts thereof, Licensee shall reproduce any copyright or proprietary rights notices contained on the original media and in the user manual(s).
5.2 US Government Agency.
If Licensee is a US state, US federal or other US public entity ("US Government"), Licensee agrees to protect the TomTom IPR from public disclosure. In the event that Licensee is required to disclose the TomTom IPR under any law or regulation that permits public access and/or reproduction or use of the TomTom IPR, Licensee shall notify TomTom in writing prior to such disclosure and if TomTom is unable to comply with such disclosure, this Agreement shall be automatically terminated and considered immediately null and void. Under such Circumstances, TomTom shall immediately be entitled to revoke any Access Code. Any data, software, and/or documentation delivered hereunder are subject to the terms of this Agreement. Any computer software, data, database, documentation and/or technical data delivered hereunder to the Government, either directly under a prime contract, or indirectly through subcontract, is subject to the terms of this Agreement. In no event shall the Government acquire rights greater than LIMITED or RESTRICTED rights as described in any applicable DFAR or FAR. In case of conflict between any of the FAR and/or DFARS that may apply to the TomTom IPR, the construction that provides greater limitations on the Government's rights shall control.
6. Return of the TomTom IPR.
Promptly upon termination or expiration of this Agreement (and to the extent Licensee's access to the Licensed Products is not automatically restricted by the expiry of an Access Code), Licensee shall cease use of and destroy, all copies of Search Results and other materials developed by or belonging to TomTom which are in the possession or control of Licensee and, where requested by TomTom, an officer of Licensee shall certify in writing to TomTom that all such materials have been destroyed..
7. Fees and Payment.
No fees shall be payable in respect of Licensee's evaluation of the Licensed Products in accordance with this Agreement unless otherwise agreed. To the extent a fee is applicable, Licensee shall pay TomTom the fees agreed (whether in an Order or otherwise) within thirty (30) days from the date of invoice (or within such other period as specified on an invoice).
The TomTom IPR is licensed and not sold. Title to the TomTom IPR including all intellectual property rights therein remains with TomTom and/or its third party providers and all rights not expressly granted herein are reserved. If the TomTom IPR or any portion are modified, merged, incorporated or combined into any software, hardware, or other data, or are converted or translated into another data format, they shall continue to be subject to the provisions of this Agreement, and TomTom and/or its licensors retain ownership of all such TomTom IPR and all such portions thereof.
Licensee acknowledges that a breach by Licensee of its obligations under this Agreement would cause TomTom irreparable harm and, in the event Licensee breaches or threatens to breach its obligations under this Agreement, TomTom shall be entitled to injunctive and other appropriate equitable relief (such as, but not limited to, immediate termination of this Agreement) without posting bond or proving that damages would not be an adequate remedy.
THE LICENSED PRODUCTS (AND ALL SEARCH RESULTS DERIVED USING THE LICENSED PRODUCTS) ARE PROVIDED ON AN "AS IS" AND "WITH ALL FAULTS" BASIS AND TOMTOM AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY TOMTOM OR ANY OF ITS AGENTS, EMPLOYEES OR THIRD PARTY PROVIDERS SHALL CREATE A WARRANTY, AND LICENSEE IS NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION. THIS DISCLAIMER OF WARRANTIES IS AN ESSENTIAL CONDITION OF THE AGREEMENT. LICENSEE ACKNOWLEDGES THAT IT MAY BE RECEIVING A SAMPLE VERSION OF THE LICENSED PRODUCTS THAT IS PRELIMINARY IN BOTH FORMAT AND CONTENT, AND THAT SUCH LICENSED PRODUCTS MAY NOT BE USED AS A BASIS FOR A FINAL OR RELEASED PRODUCT, AND THAT TOMTOM IS IN NO WAY OBLIGATED TO PRODUCE A FINAL OR RELEASED PRODUCT BASED ON SUCH SAMPLE.
11. Limitation of Liability.
NEITHER TOMTOM NOR ITS SUPPLIERS SHALL BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING LOST PROFITS OR COSTS OF COVER, LOSS OF USE OR BUSINESS INTERRUPTION OR THE LIKE, REGARDLESS OF WHETHER TOMTOM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE TOTAL LIABILITY OF TOMTOM OR ITS SUPPLIERS ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNTS PAID TO TOMTOM IN CONNECTION WITH THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.
12. Indemnification by Licensee.
Except with respect to the claims for defects solely attributable to the Licensed Products, Licensee shall protect, defend, indemnify and hold TomTom harmless from any and all claims, demands, liabilities, obligations, damages, suits, judgments or settlements, including reasonable costs and attorneys' fees, that arise from a breach of this Agreement by Licensee.
This Agreement will commence on the date an Order Confirmation is issued by TomTom and shall continue for the period of two (2) weeks from such date or for such other period as is agreed by the Parties in writing. In all cases, this Agreement may be terminated immediately by TomTom on providing Licensee with written notice.
Nothing in this Agreement shall create a joint venture, partnership or principal-agent relationship between TomTom and Licensee. The laws of The Netherlands shall govern this Agreement. Sections 4, 9, 10, 11 and 13 shall survive the expiration or termination of this Agreement. This is the exclusive and complete Agreement between TomTom and Licensee regarding its subject matter. This Agreement may be amended, altered, or modified only by a written agreement executed by both parties. Licensee may not assign any part of this Agreement without TomTom's prior written consent. This Agreement shall terminate automatically, without notice, if Licensee breaches any of its obligations hereunder. Licensee acknowledges and understands that the Licensed Product and Search Results may be subject to restrictions on exportation and agrees to comply with any applicable export laws. In the event that any provision or part of a provision of this Agreement is determined to be invalid, illegal, or unenforceable, such provision or part thereof shall be stricken from this Agreement and the remainder of this Agreement shall be valid, legal, and enforceable to the maximum extent possible. Any notice under this Agreement shall be delivered by email to email@example.com or by overnight courier to TomTom's Legal Department at De Ruyterkade 154, 1011 AC Amsterdam, The Netherlands.
15. Governing Law
In the event you are an individual or entity living or incorporated outside of the United States, this Agreement, and any dispute arising under or in connection with this Agreement (including any non-contractual claim or dispute) shall be governed by and construed in accordance with the laws of the Netherlands. The parties hereby irrevocably and unconditionally agree that the courts of Amsterdam, shall have exclusive jurisdiction over all such disputes and claims.
In the event you are an individual or entity living or incorporated in the United States, this Agreement, and any dispute arising under or in connection with this Agreement (including any non-contractual claim or dispute) shall be governed by and construed in accordance with the laws and regulations of the State of New York. The parties hereby irrevocably and unconditionally agree that the competent court in New York, New York, shall have exclusive jurisdiction over all such disputes and claims.
In the event that you are a US Government entity, any dispute arising under or in connection with it (including any non-contractual claim or dispute) shall be governed by and construed in accordance with the laws and regulations of the State in which you are situated. The parties hereby irrevocably and unconditionally agree that the competent court in the capital city of the State in which you are situated, shall have exclusive jurisdiction over all such disputes and claims.