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OTHERWISE), THE ENTIRE LIABILITY OFTELENAV AND OF ALL OF TELENAV'SSUPPLIERS SHALL BE LIMITED TO THEAMOUNT ACTUALLY PAID BY YOU FORTHE TELENAV SOFTWARE. SOMESTATES AND/OR JURISDICTIONS DONOT ALLOW THE EXCLUSION ORLIMITATION OF INCIDENTAL ORCONSEQUENTIAL DAMAGES, SO THEABOVE LIMITATIONS OR EXCLUSIONSMAY NOT APPLY TO YOU.
6. Arbitration and Governing Law
•You agree that any dispute, claim orcontroversy arising out of or relating tothis Agreement or the TeleNav Softwareshall be settled by independentarbitration involving a neutral arbitratorand administered by the AmericanArbitration Association in the County ofSanta Clara, California. The arbitratorshall apply the Commercial ArbitrationRules of the American ArbitrationAssociation, and the judgment upon theaward rendered by the arbitrator may beentered by any court having jurisdiction.Note that there is no judge or jury in an
arbitration proceeding and the decisionof the arbitrator shall be binding uponboth parties. You expressly agree towaive your right to a jury trial. ThisAgreement and performance hereunderwill be governed by and construed inaccordance with the laws of the State ofCalifornia, without giving effect to itsconflict of law provisions. To the extentjudicial action is necessary in connectionwith the binding arbitration, both TeleNavand you agree to submit to the exclusivejurisdiction of the courts of the County ofSanta Clara, California. The UnitedNations Convention on Contracts for theInternational Sale of Goods shall notapply.
7. Assignment
•You may not resell, assign, or transferthis Agreement or any of your rights orobligations, except in totality, inconnection with your permanent transferof the TeleNav Software, and expresslyconditioned upon the new user of theTeleNav Software agreeing to be boundby the terms and conditions of this
Agreement. Any such sale, assignmentor transfer that is not expressly permittedunder this paragraph will result inimmediate termination of this Agreement,without liability to TeleNav, in which caseyou and all other parties shallimmediately cease all use of the TeleNavSoftware. Notwithstanding the foregoing,TeleNav may assign this Agreement toany other party at any time withoutnotice, provided the assignee remainsbound by this Agreement.
8. Miscellaneous
8.1
This Agreement constitutes the entireagreement between TeleNav and you withrespect to the subject matter hereof.
8.2
Except for the limited licenses expresslygranted in this Agreement, TeleNav retainsall right, title and interest in and to theTeleNav Software, including withoutlimitation all related intellectual propertyrights. No licenses or other rights which are
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not expressly granted in this Agreement areintended to, or shall be, granted or conferredby implication, statute, inducement, estoppelor otherwise, and TeleNav and its suppliersand licensors hereby reserve all of theirrespective rights other than the licensesexplicitly granted in this Agreement.
8.3
By using the TeleNav Software, you consentto receive from TeleNav all communications,including notices, agreements, legallyrequired disclosures or other information inconnection with the TeleNav Software(collectively, "Notices") electronically.TeleNav may provide such Notices byposting them on TeleNav's Website or bydownloading such Notices to your wirelessdevice. If you desire to withdraw yourconsent to receive Notices electronically,you must discontinue your use of theTeleNav Software.
8.4
TeleNav's or your failure to requireperformance of any provision shall not affectthat party's right to require performance atany time thereafter, nor shall a waiver of anybreach or default of this Agreementconstitute a waiver of any subsequent breachor default or a waiver of the provision itself.
8.5
If any provision herein is held unenforceable,then such provision will be modified to reflectthe intention of the parties, and theremaining provisions of this Agreement willremain in full force and effect.
8.6
The headings in this Agreement are forconvenience of reference only, will not bedeemed to be a part of this Agreement, andwill not be referred to in connection with theconstruction or interpretation of thisAgreement. As used in this Agreement, thewords "include" and "including" andvariations thereof, will not be deemed to beterms of limitation, but rather will be deemedto be followed by the words "withoutlimitation".
9. Other Vendors Terms and Conditions
•The Telenav Software utilizes map andother data licensed to Telenav by thirdparty vendors for the benefit of you andother end users. This Agreement includesend-user terms applicable to thesecompanies (included at the end of thisAgreement), and thus your use of theTelenav Software is also subject to suchterms. You agree to comply with thefollowing additional terms and conditions,which are applicable to Telenav’s thirdparty vendor licensors::
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communication with any positioning devicesor any mobile or wireless-connectedelectronic or computer devices, includingwithout limitation cellular phones, palmtopand handheld computers, pagers, andpersonal digital assistants or PDAs.
Warning. The Data may contain inaccurateor incomplete information due to thepassage of time, changing circumstances,sources used and the nature of collectingcomprehensive geographic data, any ofwhich may lead to incorrect results.
No Warranty. This Data is provided to you“as is,” and you agree to use it at your ownrisk. Telenav and its licensors (and theirlicensors and suppliers) make no guarantees,representations or warranties of any kind,express or implied, arising by law orotherwise, including but not limited to,content, quality, accuracy, completeness,effectiveness, reliability, fitness for aparticular purpose, usefulness, use or resultsto be obtained from this Data, or that theData or server will be uninterrupted orerror-free.
Disclaimer of Warranty: TELENAV AND ITSLICENSORS (INCLUDING THEIR LICENSORSAND SUPPLIERS) DISCLAIM ANYWARRANTIES, EXPRESS OR IMPLIED, OFQUALITY, PERFORMANCE,MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE ORNON-INFRINGEMENT. Some States,Territories and Countries do not allow certainwarranty exclusions, so to that extent theabove exclusion may not apply to you.
Disclaimer of Liability: TELENAV AND ITSLICENSORS (INCLUDING THEIR LICENSORSAND SUPPLIERS) SHALL NOT BE LIABLE TOYOU: IN RESPECT OF ANY CLAIM, DEMANDOR ACTION, IRRESPECTIVE OF THENATURE OF THE CAUSE OF THE CLAIM,DEMAND OR ACTION ALLEGING ANY LOSS,INJURY OR DAMAGES, DIRECT ORINDIRECT, WHICH MAY RESULT FROM THEUSE OR POSSESSION OF THEINFORMATION; OR FOR ANY LOSS OFPROFIT, REVENUE, CONTRACTS ORSAVINGS, OR ANY OTHER DIRECT,INDIRECT, INCIDENTAL, SPECIAL ORCONSEQUENTIAL DAMAGES ARISING OUTOF YOUR USE OF OR INABILITY TO USE
THIS INFORMATION, ANY DEFECT IN THEINFORMATION, OR THE BREACH OF THESETERMS OR CONDITIONS, WHETHER IN ANACTION IN CONTRACT OR TORT OR BASEDON A WARRANTY, EVEN IF TELENAV ORITS LICENSORS HAVE BEEN ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES.Some States, Territories and Countries donot allow certain liability exclusions ordamages limitations, so to that extent theabove may not apply to you.
Export Control. You shall not export fromanywhere any part of the Data or any directproduct thereof except in compliance with,and with all licenses and approvals requiredunder, applicable export laws, rules andregulations, including but not limited to thelaws, rules and regulations administered bythe Office of Foreign Assets Control of theU.S. Department of Commerce and theBureau of Industry and Security of the U.S.Department of Commerce. To the extent thatany such export laws, rules or regulationsprohibit HERE from complying with any of itsobligations hereunder to deliver or distributeData, such failure shall be excused and shallnot constitute a breach of this Agreement.
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Entire Agreement. These terms andconditions constitute the entire agreementbetween Telenav (and its licensors, includingtheir licensors and suppliers) and youpertaining to the subject matter hereof, andsupersedes in their entirety any and allwritten or oral agreements previouslyexisting between us with respect to suchsubject matter.
Governing Law. The above terms andconditions shall be governed by the laws ofthe State of Illinois [insert “Netherlands”where European HERE Data is used], withoutgiving effect to (i) its conflict of lawsprovisions, or (ii) the United NationsConvention for Contracts for the InternationalSale of Goods, which is explicitly excluded.You agree to submit to the jurisdiction of theState of Illinois [insert “The Netherlands”where European HERE Data is used] for anyand all disputes, claims and actions arisingfrom or in connection with the Data providedto you hereunder.
Government End Users. If the Data is beingacquired by or on behalf of the United Statesgovernment or any other entity seeking orapplying rights similar to those customarilyclaimed by the United States government,this Data is a “commercial item” as that termis defined at 48 C.F.R. (“FAR”) 2.101, islicensed in accordance with these End-UserTerms, and each copy of Data delivered orotherwise furnished shall be marked andembedded as appropriate with the following“Notice of Use,” and shall be treated inaccordance with such Notice:
NOTICE OF USE
CONTRACTOR (MANUFACTURER/SUPPLIER) NAME: HERE
CONTRACTOR (MANUFACTURER/SUPPLIER) ADDRESS: c/o Nokia, 425 WestRandolph Street, Chicago, Illinois 60606
This Data is a commercial item as definedin FAR 2.101 and is subject to these End-User Terms under which this Data wasprovided.
© 1987 – 2014 HERE – All rights reserved.
If the Contracting Officer, federal governmentagency, or any federal official refuses to usethe legend provided herein, the ContractingOfficer, federal government agency, or anyfederal official must notify HERE prior toseeking additional or alternative rights in theData.
I. US/Canada Territory
A. United States Data. The End-UserTerms for any Application containing Datafor the United States shall contain thefollowing notices:
“HERE holds a non-exclusive licensefrom the United States Postal Service®to publish and sell ZIP+4® information.”
“©United States Postal Service® 20XX.Prices are not established, controlled orapproved by the United States PostalService®. The following trademarks andregistrations are owned by the USPS:United States Postal Service, USPS, andZIP+4.”
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B. Canada Data. The following provisionsapply to the Data for Canada, which mayinclude or reflect data from third partylicensors (“Third Party Data”), includingHer Majesty the Queen in Right of Canada(“Her Majesty”), Canada Post Corporation(“Canada Post”) and the Department ofNatural Resources of Canada (“NRCan”):
1. Disclaimer and Limitation: Clientagrees that its use of the Third PartyData is subject to the following provi-sions:
a. Disclaimer: The Third Party Data islicensed on an “as is” basis. Thelicensors of such data, including HerMajesty, Canada Post and NRCan,make no guarantees, representationsor warranties respecting such data,either express or implied, arising bylaw or otherwise, including but notlimited to, effectiveness, complete-ness, accuracy or fitness for a partic-ular purpose.
b. Limitation on Liability: The ThirdParty Data licensors, including HerMajesty, Canada Post and NRCan,shall not be liable: (i) in respect of anyclaim, demand or action, irrespectiveof the nature of the cause of the claim,demand or action alleging any loss,injury or damages, direct or indirect,which may result from the use orpossession of such Data; or (ii) in anyway for loss of revenues or contracts,or any other consequential loss of anykind resulting from any defect in theData.
2. Copyright Notice: In connection witheach copy of all or any portion of theData for the Territory of Canada, Clientshall affix in a conspicuous manner thefollowing copyright notice on at leastone of: (i) the label for the storage mediaof the copy; (ii) the packaging for thecopy; or (iii) other materials packagedwith the copy, such as user manuals orend user license agreements: “This dataincludes information taken with permis-
sion from Canadian authorities, including© Her Majesty the Queen in Right ofCanada, © Queen's Printer for Ontario,© Canada Post Corporation, GeoBase®,© The Department of Natural ResourcesCanada. All rights reserved.”
3. End-User Terms: Except as otherwiseagreed by the parties, in connection withthe provision of any portion of the Datafor the Territory of Canada to End-Usersas may be authorized under the Agree-ment, Client shall provide such End-Users, in a reasonably conspicuousmanner, with terms (set forth with otherend user terms required to be provided
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under the Agreement, or as otherwisemay be provided, by Client) which shallinclude the following provisions onbehalf of the Third Party Data licensors,including Her Majesty, Canada Post andNRCan:
The Data may include or reflect dataof licensors, including Her Majesty theQueen in the Right of Canada (“HerMajesty”), Canada Post Corporation(“Canada Post”) and the Departmentof Natural Resources Canada(“NRCan”). Such data is licensed onan “as is” basis. The licensors,including Her Majesty, Canada Postand NRCan, make no guarantees,representations or warrantiesrespecting such data, either expressor implied, arising by law or otherwise,including but not limited to, effective-ness, completeness, accuracy orfitness for a particular purpose. Thelicensors, including Her Majesty,Canada Post and NRCan, shall not beliable in respect of any claim, demandor action, irrespective of the nature ofthe cause of the claim, demand or
action alleging any loss, injury ordamages, direct or indirect, which mayresult from the use or possession ofthe data or the Data. The licensors,including Her Majesty, Canada Postand NRCan, shall not be liable in anyway for loss of revenues or contracts,or any other consequential loss of anykind resulting from any defect in thedata or the Data.End User shall indemnify and saveharmless the licensors, including HerMajesty, Canada Post and NRCan, andtheir officers, employees and agentsfrom and against any claim, demandor action, irrespective of the nature of
the cause of the claim, demand oraction, alleging loss, costs, expenses,damages or injuries (including injuriesresulting in death) arising out of theuse or possession of the data or theData.
4. Additional Provisions: The termscontained in this Section are in additionto all of the rights and obligations of theparties under the Agreement. To theextent that any of the provisions of thisSection are inconsistent with, or conflictwith, any other provisions of the Agree-ment, the provisions of this Section shallprevail.
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II. Mexico. The following provision appliesto the Data for Mexico, which includescertain data from the Instituto Nacional deEstadística y Geografía (“INEGI”):
A. Any and all copies of the Data and/orpackaging containing Data for Mexicoshall contain the following notice: “Fuente:INEGI (Instituto Nacional de Estadística yGeografía)”
III. Latin America Territory
A. Third Party Notices. Any and all copiesof the Data and/or packaging relatingthereto shall include the respective ThirdParty Notices set forth below and used asdescribed below corresponding to theTerritory (or portion thereof ) included insuch copy:
NoticeTerritory
“INSTITUTO GEOGRAFICOMILITAR DEL ECUADORAUTORIZACION N° IGM-2011-01- PCO-01 DEL 25 DE ENERODE 2011”
Ecuador
“source: © IGN 2009 - BDTOPO ®”
“Fuente: INEGI (InstitutoNacional de Estadística yGeografía)”
Guade-loupe,FrenchGuianaandMarti-niqueMexico
IV. Middle East Territory
A. Third Party Notices. Any and all copiesof the Data and/or packaging relatingthereto shall include the respective ThirdParty Notices set forth below and used asdescribed below corresponding to theTerritory (or portion thereof ) included insuch copy:
NoticeCountry
“© Royal Jordanian GeographicCentre”. The foregoing noticerequirement for Jordan Data isa material term of the Agree-ment. If Client or any of itspermitted sublicensees (if any)fail to meet such requirement,HERE shall have the right toterminate Client’s license withrespect to the Jordan Data.
Jordan
B. Jordan Data. Client and its permittedsublicensees (if any) are restricted fromlicensing and/or otherwise distributingHERE’s database for the country of Jordan(“Jordan Data”) for use in EnterpriseApplications to (i) non-Jordanian entitiesfor use of the Jordan Data solely in Jordanor (ii) Jordan-based customers. In addition,Client, its permitted sublicensees (if any)and End-Users are restricted from usingthe Jordan Data in Enterprise Applicationsif such party is (i) a non-Jordanian entityusing the Jordan Data solely in Jordan or(ii) a Jordan-based customer. For purposesof the foregoing, “Enterprise Applications”
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shall mean Geomarketing applications,GIS applications, mobile business assetmanagement applications, call centerapplications, telematics applications,public organization Internet applicationsor for providing geocoding services.
V. Europe Territory
A. Use of Certain Traffic Codes in Europe
1. General Restrictions Applicable toTraffic Codes. Client acknowledges andagrees that in certain countries of theEurope Territory, Client will need toobtain rights directly from third partyRDS-TMC code providers to receive anduse the Traffic Codes in the Data and todeliver to End-Users Transactions in anyway derived from or based on suchTraffic Codes. For such countries, HEREshall deliver the Data incorporatingTraffic Codes to Client only afterreceiving certification from Client of itshaving obtained such rights.
2. Display of Third Party Rights Legendsfor Belgium. Client shall, for each Trans-action that uses Traffic Codes forBelgium, provide the following notice tothe End-User: “Traffic Codes for Belgiumare provided by the Ministerie van deVlaamse Gemeenschap and theMinistèrie de l’Equipement et desTransports.”
B. Paper Maps. With respect to any licensegranted to Client relating to making,selling or distributing paper maps (i.e., amap fixed on a paper or paper-likemedium): (a) such license with respect toData for the Territory of Great Britain isconditioned on Client’s entering into andcomplying with a separate written agree-ment with the Ordnance Survey (“OS”) tocreate and sell paper maps, Client’spaying to the OS any and all applicablepaper map royalties, and Client’scomplying with the OS copyright noticerequirements; (b) such license for sellingor otherwise distributing for charge withrespect to Data for the Territory of CzechRepublic is conditioned on Client’sobtaining prior written consent from
Kartografie a.s.; (c) such license for sellingor distributing with respect to Data for theTerritory of Switzerland is conditioned onClient’s obtaining a permit fromBundesamt für Landestopografie ofSwitzerland; (d) Client is restricted fromusing Data for the Territory of France tocreate paper maps with a scale between1:5,000 and 1:250,000; and (e) Client isrestricted from using any Data to create,sell or distribute paper maps that are thesame or substantially similar, in terms ofdata content and specific use of color,symbols and scale, to paper mapspublished by the European nationalmapping agencies, including withoutlimitation, Landervermessungämter ofGermany, Topografische Dienst of theNetherlands, Nationaal GeografischInstituut of Belgium, Bundesamt fürLandestopografie of Switzerland,Bundesamt für Eich-und Vermessung-swesen of Austria, and the National LandSurvey of Sweden.
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