General Terms and Conditions of Partnering
Appendix 1, Mapspeople General Terms and Conditions - Partnering (Americas)
March, 2022
Recitals
These General Terms and Conditions – Partnering shall apply between MapsPeople Inc. (“MapsPeople”) and any party (the “Partner”) with whom MapsPeople enters an agreement on the sale and/or marketing of its Products and Services. These General Terms and Conditions shall be an integrated part of the Partner Agreement entered by MapsPeople Inc. and the Partner (the Partner Agreement with its appendices and these General Terms and Conditions all together the “Partner Agreement”).
1. Partner Inputs and Partner Program
1.1. Partner Inputs. MapsPeople’s performance of its obligations under the Partner Agreement will require the Partner to provide information and/or material to MapsPeople (“Partner Inputs”). The Partner shall provide all necessary Partner Inputs in a timely manner, and the Partner shall ensure that all Partner Inputs are complete and accurate in all respects. The Partner further acknowledges that MapsPeople’s performance of one or more obligations hereunder may be delayed by the Partner’s failure to provide Partner Inputs. 1.2. MapsPeople may introduce a partner program ranking and placing its partners in tiers based on discretionary criteria by MapsPeople such as but not limited to performance, commitment, growth potential and engagement. Different tiers will be awarded varying benefits by MapsPeople.
2. Marketing
2.1. Marketing and promotion. Marketing of the Products shall comply with the partner marketing guidelines which will be available at the MapsPeople Partner Drive. 2.2. Reporting. The Partner shall keep records of its activities with current and potential Customers related to the Products. The Partner shall comply with applicable privacy laws in keeping such records such as the General Data Protection Regulation of the EU (“GDPR”). MapsPeople shall be granted access to the information recorded in accordance with applicable privacy laws.
3. Customer Agreements
3.1. Customer Agreements. The Partner shall ensure that any resale of the Products to a Customer by the Partner is governed by an enforceable customer agreement.
3.2. Liability for Customer Agreements. Except to the extent expressly undertaken in the Partner Agreement, MapsPeople is not responsible for and will have no liability to the Partner or to the Customer in relation to any customer agreement between the Partner and the Customer. The Partner will not make or give any representations, conditions or warranties concerning the Products on behalf of MapsPeople and MapsPeople will not be responsible for any such representations, conditions or warranties.
3.3. Permitted Use by Customer. Unless agreed between MapsPeople and the Partner the Partner may in no event permit a Customer to use the Product(s) for any other purpose than for the Customers own use, nor may the Customer be permitted or entitled to exploit any Product(s) commercially such as but not limited to sub-licensing unless agreed.
3.4. Technical Support and Service Level Remedies. The Partner shall offer first line technical support to the Customers. The Partner shall be the contact point for the Customer and shall at its own costs take reasonable steps to resolve the requests of the Customer before requesting support from MapsPeople. The Partner shall make the remedies of the MapsPeople Service Level Agreement available to the Customers.
3.5. Customer Information. The Partner agrees to procure the appropriate and required consents from Customers and provide relevant Customer contact details to allow MapsPeople to communicate directly with Customers for purposes within the objectives of the Agreement. MapsPeople has access to and ownership of the information provided by the Partner. The contact details shall include: Name and surname of the main point of contact (person in charge of the project); the role of this person, email and phone number. The Partner shall ensure that the customer information is updated at all times.
3.6. Access to Products. For each Customer a customer identification number for using and administering the Products is required. The Partner must request a customer identification number for each Customer and no Customers may use the same customer identification number. MapsPeople may forward customer identification numbers directly to Customers or Partner may do so on MapsPeople’s behalf.
4. Intellectual Property Rights and Business Marks
4.1. Intellectual Property Rights. No agreement shall be construed or interpreted as an assignment by any of the Parties of any present or future Intellectual Property Rights or similar rights whatsoever to the other Party. The Sale of a Product by MapsPeople by subscription or in any other way constitutes merely the provision of user rights in accordance with the MapsPeople Terms of Service
4.2. Modify or Reverse Engineer. The Partner is not allowed in any way to modify, compile, decompile, recompile or disassemble the Products, reproduce, translate, amend or upgrade the underlying code or subject the Products to reverse engineering.
4.3. Use of Trademarks and Symbols. In order to carry out marketing activities both Parties grant to the other Party, during the term of the Partner Agreement, a non-exclusive right to loyally use and display the other Party’s trademarks, trade names, service marks, and logos (“Marks”) on their respective websites to promote their status as Collaborators and solution providers and may use the other Party and its Marks as a reference in its marketing activities related to the Products. The use of Marks of MapsPeople shall be in accordance with the marketing guidelines made available by MapsPeople.
5. Confidentiality and Trade Secrets
5.1. Confidential information. From time to time, each Party and its parent companies, affiliates and subsidiaries (collectively the "Disclosing Party"), may disclose or make available to the other Party or its parent companies, affiliates and subsidiaries (collectively the "Receiving Party"), confidential information about its business including but not limited to data, specifications, drawings, documents, files and software, trade secrets, third-party confidential information and other sensitive or proprietary information (collectively, "Confidential Information").
5.2. Confidentiality obligations. The Receiving Party shall: (A) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (B) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Partner Agreement; and (C) not disclose any such Confidential Information to any person or entity except on a need to know basis to such person or entity who is providing services to the Receiving Party.
5.3. Return. On the expiration or termination of the Partner Agreement, or at any time during or after the term of the Partner Agreement, at the Disclosing Party's written request, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
5.4. Exceptions. The Disclosing Party agrees that the obligations of clauses 5.1 - 5.4 shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.
5.5. Ownership. All Confidential Information shall remain the exclusive property of the Disclosing Party. 5.6. Confidentiality after Termination. The confidentiality obligations in this section 11 shall survive the termination or expiration of the Partner Agreement, regardless of whether the Partner Agreement is terminated for cause or without cause.
6. Unfair Competition and Infringements
6.1. Duty to Inform. The Partner shall inform MapsPeople of all acts of unfair competition affecting the Products or MapsPeople and of all infringements of the industrial and Intellectual Property Rights of MapsPeople that come to its knowledge.
7. Termination
7.1. Termination Without Cause. Termination of the Partner Agreement for convenience shall be in accordance with the notice agreed in the Partner Agreement.
7.2. Termination for Cause. Either Party may terminate the Partner Agreement immediately in the event the other Party has materially breached the Partner Agreement and failed to cure such breach within 30 days after receiving written notice of the breach from the non-breaching Party.
7.3. Termination for Other Reasons. MapsPeople may terminate the Partner Agreement immediately by providing written notice to the Partner if: a) the Partner fails to pay any amount when due under the Partner Agreement and the failure continues for 8 days after the Partner’s receipt of written notice of non-payment; b) the Partner becomes insolvent or files or has filed against it, a petition for insolvency proceedings of any kind or is generally unable to pay its debts as they fall due.
7.4. Following Termination. Following termination, a Customer may apply the solution in the remaining part of the contract period for which MapsPeople has received payment unless the termination is due to a material breach by the Customer. At termination MapsPeople is entitled to direct and transfer the Customer to another Partner or continue the Customer relationship itself with no compensation whatsoever payable to the Partner. MapsPeople is entitled to contact the Customers of the Partner to ensure that Customers are notified of available options to maintain continuity in Product provisioning. The Partner shall provide reasonable assistance to migrate such Customers as requested by the Customer or by MapsPeople.
8. Indemnification and Defence
8.1. MapsPeople Indemnification. MapsPeople shall indemnify and hold harmless the Partner against losses and damages, including attorneys' fees, arising out of or resulting from a claim by a third Party that the Products infringes such third party’s Intellectual Property Rights unless such claim is caused by the wilful or negligent acts or omissions of the Partner.
8.2. Defending. MapsPeople may choose to defend the Partner against, or at MapsPeople’s option, settle, any lawsuit, claim or other legal action brought against the Partner alleging that the Products infringes a third party’s Intellectual Property Rights. The Partner shall promptly advise MapsPeople of any such lawsuit, claim or action. If MapsPeople decides to defend the Partner the Partner shall cooperate with MapsPeople in the defence and/or settlement thereof and MapsPeople shall have exclusive control of the defence against such actions and of all negotiations for settlement or compromise thereof.
8.3. Partner Indemnification. The Partner shall indemnify, hold harmless, and defend MapsPeople, and the MapsPeople Group, against any and all losses, damages, liabilities, claims, and expenses arising out of or resulting from any claim of a third party (hereunder a Customer) or a Party to the Partner Agreement directly or indirectly relating to:
a) any products or services offered by the Partner; or
b) Partner Inputs; or
c) infringement of any third party’s Intellectual Property Rights by the use of the Partner’s Intellectual Property Rights; or
d) a purchase of a Product by any person or entity purchasing directly or indirectly through the Partner; or any bodily injury, death of any person or damage to real or tangible personal property caused by the Products or caused by the wilful or negligent acts or omissions of the Partner.
Unless such claim is ruled by final judgment of a competent court to be valid and caused by the wilful or negligent acts or omissions of MapsPeople.
9. Limitation of Liability
9.1. Exclusions of Consequential Damages, etc. Except as otherwise specifically provided in this Section 9, in no event shall either Party or their parent companies, subsidiaries or affiliates or their directors, officers, employees, agents, shareholders, members and personnel be liable to the other Party or to any third Party for any loss of use, loss of revenue or profit, or loss of data or for any consequential, incidental, indirect, exemplary, special or punitive damages, including but not limited to any damages for business interruption, loss of production, anticipated savings, loss of goodwill or loss of business opportunities, whether arising out of breach of contract, tort (including negligence), breach of statutory duty, restitution or otherwise, regardless of whether such damage was foreseeable and whether or not the other Party has been advised of the possibility of such damage.
9.2. Maximum Liability. Notwithstanding anything in the Partner Agreement to the contrary, but except as otherwise specifically provided in this Section, in no event shall MapsPeople’s, its parents’, subsidiaries’ or affiliates’ aggregate liability arising out of or related to the Partner Agreement, whether arising out of or related to breach of contract, tort (including negligence), breach of statutory duty, restitution or otherwise, exceed the total subscription fees paid to MapsPeople by the Partner in the 6 months period preceding the event giving rise to the claim and in no event exceed an amount of USD 100,000. The foregoing limitations shall apply even if the remedies under the Partner Agreement fail of their essential purpose.
9.3. Limitations and Exclusions. The limitations and exclusions set forth in paragraph 9.1. and paragraph 9.2. shall not apply to damages relating to or arising from:
a) third-party claims for death or personal injury to the extent caused by gross negligence or wilful acts or omissions by the Party being claimed ; or
b) fraud or fraudulent misrepresentation by the Party being claimed; or
c) liability that cannot be excluded or limited by law.
9.4. Limitations. The limitations set forth in paragraph 9.2 shall not apply to damages relating to or arising from valid third-party claims that the Products or any element thereof infringes upon any copyright, patent, trademark, trade secret, right of publicity or privacy, or any other proprietary right, of such third party.
9.5. Contractual Time Limitation to File Claim. No action arising out of breach of the Partner Agreement or the transactions related to the Partner Agreement may be brought by either Party more than 180 days after the cause of action accrued, regardless of the form of the action. The Parties’, on behalf of themselves and their successors and assigns, specifically waive the right to file any action under any longer statute of limitation.
9.6. Reliance. Each Party understands, covenants and represents that the limitations and exclusions of liability set forth in this Section 9 represent the Parties' agreement as to the allocation of risk between the Parties in connection with the Parties’ obligations under the Partner Agreement. The fees payable to MapsPeople hereunder reflect, and are set in reliance upon, the allocation of risk and the exclusions and limitations of liability set forth in the Partner Agreement.
9.7. Liability Related to Partner's Sale. Notwithstanding anything in the Partner Agreement to the contrary, in no event shall MapsPeople have any liability whatsoever to the Partner for any claims, whether for damages or other compensation, resulting from, arising out of or in connection with the Partner’s sale of Products to Customers. 9.8. Force Majeure. Neither Party shall be liable for any failure to perform their obligations hereunder (except timely payment of monies due) due to events or circumstances outside their reasonable control, including but not limited to pandemics including COVID-19, cyber attack, computer virus, fire, explosion, flood, lightning, Acts of God, acts of terrorism, war, rebellion, riot or other civil disorder, sabotage, orders or requests by any authority, strikes, lockouts or other labor disputes.
10. Governing Law and Arbitration
10.1. Governing Law. This Partner Agreement and all matters arising out of or relating to the Partner Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of New York.
10.2. Mandatory Arbitration. Any dispute, controversy or claim arising out of or relating to the Partner Agreement (whether contractually or in tort), including disputes regarding the validity of this Section, shall be finally settled by arbitration. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. The place of arbitration shall be New York City, NY, USA, unless the Parties mutually agree otherwise in writing. The arbitration award shall be in writing and shall be final and binding on the Parties. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the Parties or their assets. In agreeing to this arbitration provision, the Parties understand and acknowledge, and willingly agree, that they are waiving any right they may have to a court or jury trial. Despite the arbitration procedure agreed upon above, MapsPeople shall not be precluded from seeking preliminary injunctions or other equitable relief via the appropriate judicial authority anywhere in the world in accordance with Section 10.4.
10.3. Confidentiality. Any dispute, controversy or claim arising out of or relating to the Partner Agreement, including but not limited to the possibility or existence of the proceedings, the proceedings themselves, oral statements made during the course of the proceedings, documents and other information submitted by the Parties or prepared by the court or the arbitrator(s), and the final award shall be deemed Confidential Information.
10.4. Injunctive Relief. Notwithstanding Section 10.2, in the event of a breach or threatened breach by the Partner of any of the provisions of the Partner Agreement, the Partner hereby consents and agrees that MapsPeople and the MapsPeople Group shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages or other available forms of relief.
11. General
11.1. Severability. The provisions of the Partner Agreement shall be severable. In the event that any provision of the Partner Agreement is found to be invalid, illegal or unenforceable, such finding shall not affect the validity and enforceability of any of the remaining provisions of the Partner Agreement.
11.2. No Waiver. No failure by a Party to pursue any remedy resulting from a breach by the other Party of the Partner Agreement shall be construed as a waiver of that breach by the former Party or as a waiver of any subsequent or other breach.
11.3. Survival of Provisions. All provisions which by their nature shall survive termination or expiration of the Partner Agreement will survive any termination or expiration of the Partner Agreement.
11.4. Effect of Headings. The headings used throughout the Partner Agreement are inserted for reference purposes only.
11.5. Notices. Each Party agrees that any notice required or permitted by the Partner Agreement may be given via e-mail to the other Party to an e-mail address provided by each Party for purposes of notices or to an e-mail published by the respective Party.