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LICENSE
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TOMTOM DIGITAL COCKPIT SDK EXAMPLES LICENSE AGREEMENT (“AGREEMENT”)
By downloading, accessing these TomTom Digital Cockpit SDK Examples (the “TomTom
Digital Cockpit SDK Examples”) you are entering into a binding agreement with
TomTom Global Content B.V. (“TomTom”). Your agreement with TomTom includes the
following terms and conditions. You should not use the TomTom Digital Cockpit
SDK Examples if you cannot agree to this Agreement.
You may not use the TomTom Digital Cockpit SDK Examples and may not accept the
Agreement if you are a person barred from receiving the TomTom Digital Cockpit
SDK Examples under the laws of the United States or other countries, including
the country in which you are resident or from which you use the TomTom Digital
Cockpit SDK Examples. If you agree to be bound by the Agreement on behalf of
your employer or other entity, you represent and warrant that you have full
legal authority to bind your employer or such entity to the Agreement. If you do
not have the requisite authority, you may not accept the Agreement or use the
TomTom Digital Cockpit SDK Examples on behalf of your employer or other entity.
1. GRANT OF LICENSE: Subject to and conditional upon your compliance at all
times with this Agreement, TomTom grants to you a limited, non-exclusive,
non-transferable and non-sublicensable, revocable, royalty-free license during
the Term (as defined in Clause 8) to use the TomTom Digital Cockpit SDK Examples
for i) evaluation purposes; and ii) if you have entered into a license agreement
with TomTom for use of TomTom Digital Cockpit, for the development of
applications to be used in connection with the TomTom Digital Cockpit platform.
For the avoidance of doubt, any use of the TomTom Digital Cockpit SDK Examples
shall be subject to TomTom’s standard terms of use applicable to TomTom Digital
Cockpit as made available on the TomTom developer portal or any other specific
written agreement that you and TomTom have executed regarding the use of the
TomTom Digital Cockpit product.
2. UPDATES AND CHANGES TO THE TOMTOM DIGITAL COCKPIT SDK EXAMPLES AND THIS
AGREEMENT: TomTom reserves the right, with or without notice and at its sole
discretion, to discontinue, update, modify, upgrade and supplement any of the
TomTom Digital Cockpit SDK Examples or any features within the TomTom Digital
Cockpit SDK Examples and to modify this Agreement. You agree that future
versions of the TomTom Digital Cockpit SDK Examples may be incompatible with
applications that were developed on previous versions of the TomTom Digital
Cockpit SDK Examples.
3. YOUR FURTHER OBLIGATIONS:
3.1. You agree to use the TomTom Digital Cockpit SDK Examples only for purposes
that are permitted by (a) this Agreement and (b) any applicable law, regulation
or generally accepted practices or guidelines in the relevant jurisdictions
(including any laws regarding the export of data or software to and from the
United States or other relevant countries).
3.2. Other than as permitted by applicable legislation, you are prohibited from
copying (except for backup purposes), modifying, adapting, (re)distributing,
renting, lending, publicly presenting, decompiling, reverse engineering,
disassembling, or creating derivative works of the TomTom Digital Cockpit SDK
Examples or any part of the TomTom Digital Cockpit SDK Examples.
3.3. You may not use the TomTom Digital Cockpit SDK Examples in connection with
any illegal, fraudulent, dishonest or unethical activity or behaviour.
3.4. The TomTom Digital Cockpit SDK Examples may include data which TomTom
licenses from third parties, or open source software. You shall comply with all
requirements and restrictions which such third parties may require TomTom to
impose on you (and as may be updated and amended by TomTom from time to time).
All applicable OSS Licenses are included within the TomTom Digital Cockpit SDK
Examples download package. It shall be your responsibility to check, review and
comply with any updated or amended terms that would apply to the TomTom Digital
Cockpit SDK Examples licensed to you under this Agreement. For the avoidance of
doubt, any such software is made available to you under the terms and conditions
of the applicable licenses.
4. INTELLECTUAL PROPERTY RIGHTS AND COPYRIGHT NOTICES:
4.1. All intellectual property rights related to the TomTom Digital Cockpit SDK
Examples and to TomTom Digital Cockpit are owned by TomTom and/or its licensors
and suppliers.
4.2. Your use of any trade names, logos, trademarks, service marks and other
marks of TomTom is subject to TomTom’s prior written approval. Any goodwill
arising out of the use thereof shall inure to the benefit of TomTom. In
addition, you agree not to remove, obscure, mask or change any logo and/or
copyright notice placed on or automatically generated by the TomTom Digital
Cockpit SDK Examples or TomTom Digital Cockpit.
5. WARRANTIES:
5.1. YOU ACKNOWLEDGE THAT THE TOMTOM DIGITAL COCKPIT SDK EXAMPLES HAVE NOT BEEN
DEVELOPED TO MEET YOUR INDIVIDUAL REQUIREMENTS AND THAT IT IS THEREFORE YOUR
RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS OF THE TOMTOM DIGITAL
COCKPIT SDK EXAMPLES MEET YOUR REQUIREMENTS. TOMTOM DOES NOT AND CANNOT WARRANT
THAT THE TOMTOM DIGITAL COCKPIT SDK EXAMPLES OPERATE UNINTERRUPTED OR
ERROR-FREE. TOMTOM DOES NOT WARRANT THAT THE TOMTOM DIGITAL COCKPIT SDK EXAMPLES
ARE CAPABLE OF INTEROPERATING WITH ANY OTHER SYSTEM, DEVICE OR PRODUCT (EITHER
SOFTWARE OR HARDWARE).
5.2. YOUR USE OF THE TOMTOM DIGITAL COCKPIT SDK EXAMPLES AND ANY MATERIAL
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE TOMTOM DIGITAL COCKPIT
SDK EXAMPLES IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICES OR ANY LOSS OF DATA THAT
RESULTS FROM SUCH USE.
5.3. WITHOUT LIMITING CLAUSES 5.1 AND 5.2 ABOVE, THE TOMTOM DIGITAL COCKPIT SDK
EXAMPLES ARE PROVIDED ON AN “AS IS” AND WITH “ALL FAULTS BASIS” AND TOMTOM
EXPRESSLY DISCLAIMS 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.
5.4 YOU WARRANT THAT YOU WILL NOT COMBINE THE TOMTOM DIGITAL COCKPIT SDK
EXAMPLES WITH ANY OPEN SOURCE SOFTWARE OR OTHER DATA IN ANY MANNER WHICH MAY
RESULT IN THE TOMTOM DIGITAL COCKPIT SDK EXAMPLES BECOMING SUBJECT TO THE TERMS
OF A COPYLEFT LICENSE. “COPYLEFT LICENSE” FOR THESE PURPOSES MEANS A LICENSE
THAT REQUIRES, AS A CONDITION OF USE, MODIFICATION AND/OR DISTRIBUTION OF
SOFTWARE OR MATERIALS, THAT SUCH SOFTWARE OR MATERIALS, OR OTHER SOFTWARE OR
MATERIALS INCORPORATED INTO, DERIVED FROM, USED, OR DISTRIBUTED WITH SUCH
SOFTWARE OR MATERIALS: (I) IN THE CASE OF SOFTWARE, BE MADE AVAILABLE OR
DISTRIBUTED IN A FORM OTHER THAN BINARY (E.G., SOURCE CODE FORM), (II) BE
LICENSED FOR THE PURPOSE OF PREPARING DERIVATIVE WORKS, (III) BE LICENSED UNDER
TERMS THAT REQUIRE THE LICENSOR TO ALLOW THE OTHER MATERIALS OR INTERFACES
THEREFOR TO BE REVERSE ENGINEERED, REVERSE ASSEMBLED, OR DISASSEMBLED, OR (IV)
BE REDISTRIBUTABLE AT NO LICENSE FEE.
5.5. THE PROVISIONS OF THIS CLAUSE DO NOT AFFECT ANY OF YOUR LEGAL RIGHTS UNDER
APPLICABLE MANDATORY NATIONAL LEGISLATION, INCLUDING BUT NOT LIMITED TO ANY
MANDATORY STATUTORY WARRANTIES. IF ANY PART OF THIS LIMITED WARRANTY IS HELD TO
BE INVALID OR UNENFORCEABLE, THE REMAINDER OF THE LIMITED WARRANTY SHALL
NONETHELESS REMAIN IN FULL FORCE AND EFFECT.
6. LIMITATION OF LIABILITY:
6.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER TOMTOM NOR ITS
LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS OR EMPLOYEES SHALL BE LIABLE TO YOU OR
TO ANY THIRD PARTY FOR ANY DAMAGES, WHETHER DIRECT, SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO DAMAGES FOR THE
INABILITY TO USE OR ACCESS THE TOMTOM DIGITAL COCKPIT SDK EXAMPLES OR TOMTOM
DIGITAL COCKPIT, LOSS OF DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS
INTERRUPTION OR THE LIKE) ARISING OUT OF OR RELATED TO THE USE OF, THE INABILITY
TO USE OR ACCESS, OR OTHERWISE THE PERFORMANCE OF THE TOMTOM DIGITAL COCKPIT
EXAMPLE APP SOURCES, EVEN IF TOMTOM HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
6.2. TO THE EXTENT TOMTOM IS NOT PERMITTED UNDER APPLICABLE LAW TO EXCLUDE ITS
LIABILITY PURSUANT TO CLAUSE 6.1 ABOVE, TOMTOM’S TOTAL AGGREGATE LIABILITY TO
YOU SHALL BE LIMITED TO THE AMOUNT OF US $100.00.
6.3. THE ABOVE LIMITATIONS OF LIABILITY UNDER THIS CLAUSE 6 DO NOT: (I) AFFECT
YOUR RIGHTS UNDER ANY APPLICABLE MANDATORY NATIONAL LEGISLATION; (II) EXCLUDE OR
LIMIT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
7. IPR INDEMNITY: To the maximum extent permitted by law, you agree to defend,
indemnify and hold TomTom and its respective directors, officers, employees,
affiliates, agents and suppliers harmless from and against any and all claims,
actions, suits or proceedings, as well as any and all losses, liabilities,
damages, costs and expenses (including reasonable attorney’s fees) arising out
of or accruing from (a) your use of the TomTom Digital Cockpit SDK Examples, (b)
any application you develop in connection with the TomTom Digital Cockpit SDK
Examples that infringes any copyright, trademark, trade secret, trade dress,
patent or other intellectual property right of any person or defames any person
or violates their rights of publicity or privacy, and (c) any non-compliance by
you with this Agreement.
8. TERM AND TERMINATION AND DIRECT ENFORCEMENT:
8.1. This Agreement begins on either (a) the date you demonstrate your
acceptance of the terms and conditions of this Agreement or (b) when you first
use the TomTom Digital Cockpit SDK Examples, and shall continue until terminated
(jointly the “Term”) by either TomTom or you subject to and in accordance with
this Agreement. The provisions of this Agreement, which by their nature are
intended to survive termination, will remain in effect after termination of this
Agreement. Furthermore, you agree that TomTom may directly enforce these
provisions against you.
8.2. Without prejudice to any other rights, TomTom may immediately terminate
this Agreement if (i) you fail to comply with any of its terms and conditions,
or (ii) TomTom decides to no longer provide the TomTom Digital Cockpit SDK
Examples or certain parts of the TomTom Digital Cockpit SDK Examples either
entirely or in certain territories related to your use.
8.3. You may terminate this Agreement by ceasing your use of the TomTom Digital
Cockpit SDK Examples at any time.
9. GOVERNING LAW AND DISPUTE RESOLUTION:
9.1. If you, your employer or the entity on whose behalf you act is incorporated
in the United States, then this Agreement and any dispute arising under or in
connection with it, including any non-contractual claims and disputes, shall be
governed by and construed in accordance with the laws of the State of New York.
The applicability of the United Nations Convention on Contracts for the
International Sale of Goods is explicitly excluded. You and TomTom hereby
irrevocably submit to the exclusive jurisdiction of the courts of the State of
New York in New York, New York in respect of any dispute arising under or in
connection with this Agreement, including any non-contractual claims or
disputes.
9.2. If you, your employer or the entity on whose behalf you act is incorporated
in the European Union then this Agreement and any dispute arising under or in
connection with it, including any non-contractual claims and disputes, shall be
governed by and construed in accordance with the laws of the Netherlands. The
applicability of the United Nations Convention on Contracts for the
International Sale of Goods is explicitly excluded. You and TomTom hereby
irrevocably submit to the exclusive jurisdiction of the courts of Amsterdam, the
Netherlands in respect of any dispute arising under or in connection with this
Agreement, including any non-contractual claims or disputes.
9.3. If you, your employer or the entity on whose behalf you act is incorporated
outside of the United States or European Union, then this Agreement and any
dispute arising under or in connection with it, including any non-contractual
claims and disputes, shall be governed by and construed in accordance with the
laws of the Netherlands. All disputes arising in connection with the Agreement,
including any non-contractual claims or disputes, shall be settled in accordance
with the Arbitration Rules of the Netherlands Arbitration Institute. The
arbitral tribunal shall be composed of three (3) arbitrators. The place or
arbitration shall be Amsterdam and the language of the arbitration shall be
English. Consolidation of the arbitral proceedings with other arbitral
proceedings, as provided for in Article 1046 of the Dutch Code of Civil
Procedure and Article 39 of the Arbitration Rules of the Netherlands Arbitration
Institute, is excluded.
9.4. Notwithstanding this, TomTom shall still be allowed to apply for injunctive
remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
10. OTHER LEGAL TERMS:
10.1. No failure or delay by TomTom to exercise any right or remedy provided
under this Agreement or by law shall constitute a waiver of that or any other
right or remedy, nor shall it preclude or restrict the further exercise of that
or any other right or remedy. No single or partial exercise of such right or
remedy shall preclude or restrict the further exercise of that or any other
right or remedy.
10.2. Should for any reason, or to any extent, any provision of this Agreement
be held invalid or unenforceable, such invalidity or enforceability shall not
affect or render invalid or unenforceable the remaining provisions of this
Agreement and the application of that provision shall be enforced to the extent
permitted by law.
10.3. The rights granted to you in this Agreement may not be assigned or
transferred by you without TomTom’s prior written approval.
10.4. TomTom Digital Cockpit and the TomTom Digital Cockpit SDK Examples are
provided as “Commercial Computer Software” or “restricted computer software”.
Use, duplication, or disclosure by the U.S. Government or U.S. Government
subcontractor is subject to the restrictions set forth in 48.C.F.R. Section
12.212 or 48 C.F.R.227.2702, as applicable or successor provisions.