OEM General Terms and Conditions, EMEA
This OEM Agreement (“Agreement”), supplement the Order and set forth the terms and conditions under which MapsPeople A/S (“MapsPeople”) will grant to you ("OEM") certain nonexclusive and nontransferable rights to use the software listed in the Order (“Software”) and related documentation (“Documentation”) solely as an integral part of OEM’s products specified in the Order (“Products”). Further, for purposes of this Agreement, the Documentation, and the Software and all derivative works thereof shall be referred to collectively as “Software”. Upon mutual written agreement, the parties may add additional Orders, number sequentially.
1. GRANT OF RIGHTS
a) MapsPeople hereby grants OEM a nonexclusive right to market and distribute the object code version of the Software to third parties solely as part of the Products, being OEM customers (the “End Users”) subject to the provisions specified herein and under the Order and Documentation.
b) Unless otherwise mutually agreed to in writing, OEM shall provide all maintenance and support (“OEM Maintenance”) for the Product and Software directly to End User(s).
c) No other rights are granted OEM hereunder.
2. OEM’S RESPONSIBILITIES
a) OEM warrants that it: (i) has the right to enter into this Agreement; (ii) will not misrepresent the functionality or performance of the Software; (iii) will allocate and apply sufficient resources and qualified personnel to promote the Software and Products; and (iv) will at all times protect and promote the goodwill of MapsPeople and will not disparage or otherwise speak ill of MapsPeople or the Software.
b) OEM agrees that during the term of this Agreement and for the period ending two (2) years thereafter, OEM will not develop or sell products which compete with the Software listed in the Order.
c) OEM agrees not to enter into Data Processing Agreements with undertakings by the OEM which exceeds the requirements and measures undertaken by MapsPeople according to the MapsIndoors Data Processing Agreement available at http://mapspeople.com/legal/data-processing-agreement-emea.
3. RIGHT TO USE SOFTWARE AND SERVICES
a) All rights to the Software must be evidenced by an agreement (the “End User Agreement”) agreed upon by OEM and each End User. Each End User Agreement shall contain at a minimum the following terms and conditions:
“Confidentiality” - OEM agrees to include all Software under the definition of confidential materials; “Warranty” - OEM agrees (i) not to offer any warranties regarding the Software which are inconsistent with a warranty that the Software will comply with MapsPeople’s user Documentation. However, OEM may choose the time period for which OEM warrants the Software, provided that OEM will be solely responsible for and shall indemnify MapsPeople from and against any and all liabilities to any End User arising from a breach of warranty claim regarding the Software and (ii) to include standard software industry disclaimers on behalf of MapsPeople; and “Limitation of Liability” – OEM agrees to (i) limit MapsPeople’s liability to an amount not to exceed that specified as the fees paid by the End User, and (ii) include those disclaimers of damages also specified.
Further, it is understood by the parties that sales to government entities and government contractors may be evidenced by multiple documents; those multiple documents shall be included in the term End User Agreement.
b) OEM shall ensure that all End User Agreements designate MapsPeople as a third-party beneficiary of the End User’s confidentiality and non-disclosure obligations and shall provide a right of action for MapsPeople against End User to enforce those rights.
c) OEM shall be responsible for all invoicing and collections for End User sales.
d) OEM agrees to retain copies of all executed End User Agreements and further agrees to make such agreements available to MapsPeople upon request in compliance with the General Data Protection Regulation of the EU.
e) All services provided by OEM shall be provided directly between OEM and the End User.
f) The use of the Software by each End User shall also be governed by the MapsPeople Terms of Service (“Terms of Service”) applicable at the time of use. OEM accepts by using or allowing third parties to use the Software to be bound by the Terms of Service. The Terms of Service are available at http://mapspeople.com/legal/end-user-terms-of-service.
g) MapsPeople offers a service level and remedies in case of non-compliance according to the MapsPeople Service Level Agreement, available at http://mapspeople.com/legal/service-level-agreement.
h) MapsPeople will provide Support and Enhancement Services (as defined in the Maintenance and Support Services document) directly to OEM and not to any End Users.
4. FEES AND PAYMENT
a) OEM shall pay the fees specified on The Order for the Software provided to each End User as described on The Order (“Fees”). Such Fees shall be due the earlier of the End User agreeing upon an End User Agreement or OEM providing the Software to End User. All other Fees due hereunder shall be payable within thirty (30) days of the date of MapsPeople’s invoice for such Fees.
b) OEM shall be responsible for paying the Fees specified on The Order regardless of whether OEM has been compensated by its End User.
Any other fees or charges shall be payable within fifteen (15) days of the date of the MapsPeople invoice.
c) Fees and charges specified in this Agreement do not include any amounts for duties, import or export fees, sales, use, VAT, property or other taxes which are based on this Agreement, or the payments required to be made under this Agreement. OEM shall pay all such duties, fees and taxes.
e) All past due amounts are subject to a late charge equal to one and one-half percent (1½%) per month or the maximum amount allowed by law, whichever is less.
5. RECORDS AND REPORTS
a) OEM shall keep accurate records and accounts in accordance with standard business practices in the software industry. Such records shall include, but shall not be limited to, the information required to produce the reports specified herein. MapsPeople may inspect OEM's records, including End User Agreements, on fifteen (15) days’ notice to OEM. Such inspections shall be conducted solely for the purpose of verifying OEM's compliance with the provisions of this Agreement. MapsPeople’ rights hereunder shall remain in effect through the period ending five (5) years from the expiration or termination of this Agreement.
b) OEM shall provide MapsPeople with written reports on a quarterly basis, in such form and format as MapsPeople may specify from time to time. Such reports shall, at a minimum, contain the names of the End Users, the location of the End User, the sales made to those End Users together with any and all information necessary to allow MapsPeople to confirm OEM has met its export control, payment and compliance obligations hereunder.
6. INSURANCE
OEM shall, at its expense, procure and maintain during the term of this Agreement, the following insurance: (i) worker’s compensation as required by applicable worker’s compensation laws; (ii) commercial general liability insurance covering all operations of OEM, including but not limited to its obligations hereunder, plus broad form contractual, broad form property damage, personal injury etc. with a combined single limit of not less than EUR 2,000,000 per occurrence/EUR 4,000,000 general aggregate.
7. TITLE, USE OF TRADE NAMES AND TRADEMARKS
a) All right, title, and interest in and to the Software shall at all times remain vested in MapsPeople and its third-party licensors. Nothing in this Agreement shall be deemed to convey any ownership rights in the Software or to restrict MapsPeople’s rights to grant licenses, sublicenses, distribution, or other rights to the Software to any other party.
b) Any reproduction, distribution, or use of MapsPeople’s logos, trademarks or trade names (the “Marks”) shall be approved in advance by MapsPeople. Any such permitted use, advertising, distribution, or reproduction of the Marks shall be solely in connection with OEM’s exercise of its rights hereunder. Upon termination of this Agreement, OEM shall have no further right to use, advertise, reproduce, or distribute the Marks. All benefit of the use of the Marks shall accrue to MapsPeople.
c) OEM shall not at any time do, permit, or cause to be done any act or thing that would tend to impair MapsPeople’s rights in the Software or the Marks.
d) The Product shall at all times include an attribution that indicates that the Product “Contains software provided by MapsPeople A/S”.
e) Nothing in this Agreement restricts MapsPeople from contacting any End User directly.
8. CONFIDENTIALITY
a) “Confidential Information” includes all information disclosed by a party, before or after the Effective Date of this Agreement, and generally not publicly known, whether tangible or intangible, and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from Confidential Information. Without limiting the generality of the foregoing, the following shall always be considered MapsPeople Confidential Information: (i) the Software and other related materials furnished by MapsPeople; (ii) the oral and visual information relating thereto and provided in MapsPeople’s training classes; and (iii) MapsPeople’s representation methods of modeled data.
b) The receiving party agrees at all times to use all reasonable efforts, but in any case no less than the efforts that The receiving party uses in the protection of its own Confidential Information of like value, to protect Confidential Information. The receiving party shall restrict access to Confidential Information only to those employees who (i) require access in the course of their assigned duties and responsibilities, and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.
c) The parties agree that Confidential Information of the other party shall not include any information to the extent that the information: (i) is, or at any time becomes, a part of the public domain through no act or omission of the receiving party; (ii) is independently discovered or developed by the receiving party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. The receiving party shall not be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government provided that notice is promptly given to the Discloser so that a protective order may be sought and other efforts employed to minimize the required disclosure. The receiving party shall cooperate with the disclosing party in seeking the protective order and engaging in such other efforts.
d) Nothing in this Agreement shall be construed to convey any title or ownership rights to the Confidential Information or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest in the Confidential Information to the receiving party. Except as expressly authorized herein, the receiving party shall not, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information.
e) The receiving party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the disclosing party imminent irreparable injury and that the disclosing party shall be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the receiving party does not fulfill its obligations under this Section.
f) OEM agrees not to disassemble, decompile, reverse engineer or modify the Software, or otherwise apply any procedure or process to those products to ascertain, derive, and/or appropriate the source code or source listings for any of the Software.
g) Notwithstanding this Section, unless expressly agreed in writing, all suggestions, solutions, improvements, corrections, certifications, and other contributions provided by OEM or End Users regarding the Software or other MapsPeople materials shall be owned by MapsPeople, and OEM hereby agrees to assign or effect assignment of any such rights to MapsPeople. Nothing in this Agreement shall preclude MapsPeople from using, in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by MapsPeople in the performance of services hereunder.
h) Upon termination of this Agreement, the receiving party shall return or destroy (and certify such destruction in a signed writing) all Confidential Information, including all copies thereof and materials incorporating such Confidential Information, whether in physical or electronic form. The confidentiality obligations set forth in this Agreement shall survive the termination of this Agreement and remain in full force and effect until such Confidential Information, through no act or omission of the receiving party, ceases to be Confidential Information as defined hereunder.
i) For the purpose of this entire Section, “MapsPeople” shall include all its Affiliates. “Affiliate” under this Agreement shall mean any entity, directly or indirectly, controlled by or under common control with or controlling MapsPeople.
9. TERM AND TERMINATION
a) This Agreement shall remain in effect for a period of two (2) years (“Initial Term”) and at the conclusion of the Initial Term shall automatically renew for additional one (1) year terms until terminated in accordance with the following: (i) by either party on sixty (60) days written notice prior to the end of the then current term; (ii) by either party if the other fails to perform any material obligation required of it hereunder and such failure is not cured within thirty (30) days from the date written notice of such failure was given; (iii) by either party if the other files a petition for bankruptcy or insolvency, has an involuntary petition under bankruptcy laws filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern; (iv) by MapsPeople if OEM is acquired by a competitor of MapsPeople; or (v) by MapsPeople, without notice to OEM and without any OEM opportunity to cure, upon OEMs breach of any warranty in Section 2.
b) Upon the expiration or termination of this Agreement, (i) OEM shall make payment to MapsPeople of all Fees due and payable at the time of such expiration or termination; (ii) OEM’s rights to sell the Software hereunder shall cease; (iii) MapsPeople shall have the right to contact each End User to notify the End User of such termination; and (iv) OEM shall, within thirty (30) days, return or destroy all copies of the Confidential Information, and shall certify, in writing delivery or destruction of all such Confidential Information and copies thereof.
c) The provisions of Sections General on the first page hereof, 2, 4, 5, 6, 7, 8, 9(c), 10, 11, 12, 13, 14, and 15 shall survive termination or expiration of this Agreement.
d) In the event this Agreement terminates or expires while there remains an active sales order, the terms and conditions of this Agreement shall apply to the sales order until the sales order expires or terminates.
10. MAPSPEOPLE WARRANTY. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT WARRANTIES OF ANY KIND. MAPSPEOPLE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
11. INDEMNIFICATION BY OEM. OEM shall indemnify, defend, and hold MapsPeople and its officers, directors, employees and contractors as well as MapsPeople’s Affiliates and officers, directors, employees and contractors of those Affiliates harmless from and against any (i) breach of OEM’s representations or warranties herein; (ii) misrepresentation made by OEM or its employees or agents to an End User regarding the Software or its capabilities; (iii) claims arising out of OEM’s Products and/or services; or (iv) claims brought by an End User against OEM.
12. LIMITATION OF LIABILITY. IN NO EVENT SHALL MAPSPEOPLE OR ITS THIRD PARTY LICENSORS BE LIABLE ON ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY OEM FOR THE SOFTWARE WHICH GAVE RISE TO SUCH DAMAGES IN THE TWELVE MONTHS PRIOR TO THE CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL MAPSPEOPLE OR ITS THIRD PARTY LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
13. INDEPENDENT CONTRACTOR. Both parties shall remain at all times independent contractors and nothing in this Agreement shall be deemed to create a joint venture, partnership, or agency relationship between the parties. Neither party has the right or authority to assume or to create any obligation or responsibility on behalf of the other.
14. IMPORT/EXPORT LAWS AND REGULATIONS
a) OEM agrees, represents and warrants that it will comply at all times with all applicable anti-bribery, anti-boycott, data security, privacy, trade embargo and export control laws, rules and regulations, including those of the EU, the UN, and the United States. For purposes of this Section, the term OEM shall include any entity, employee, agent, contractor or other person or organization acting hereunder on OEM’s behalf or at OEM’s request or direction.
b) Without limiting the generality of the foregoing, in connection with carrying out its obligations, OEM agrees, represents and warrants that it will not offer, promise, authorize or give, directly or indirectly, anything of value to any person in order to obtain or retain business for itself or MapsPeople (or any entity or person affiliated with MapsPeople), nor to secure any business advantage or offer, promise, authorize or give, directly or indirectly, anything of value to any person if OEM knows or is aware of a likelihood that all or part of such money, gift or thing of value will be offered, paid, given or promised, directly or indirectly, to a person in a position which can influence a decision to reward or retain business with MapsPeople.
c) Further, and without limiting the generality of the foregoing, OEM agrees, represents and warrants that it will not export or re-export (including any “deemed” export or re-export) any goods, software or technology (including without limitation, technical data), directly or indirectly, without first obtaining all written consents, permits, or authorizations and completing such formalities as may be required by any such laws, rules or regulations. OEM agrees, represents and warrants that no product of U.S. origin (or containing U.S. origin items) provided by MapsPeople may be exported or re-exported into or to a national or resident of Iran, North Korea, Sudan, Burma, or Syria or any country or group to which the U.S has any comprehensive or partial embargoed rules. OEM further agrees, represents and warrants that no U.S. origin product (or product containing U.S. origin items) provided by MapsPeople may be exported or re-exported to anyone on the US Treasury Department’s list of Specifically Designated Nationals and Blocked Persons, BIS’s Entity or Denied Persons list, or the Department of State’s Debarred Parties list. OEM agrees and warrants that it will keep records of its export and re-export related activities involving MapsPeople products for a minimum of five (5) years or such period as is required from time to time by all relevant laws, whichever is greater. OEM shall make such records available to MapsPeople upon reasonable request for inspection and copying. Without limiting the generality of the foregoing, OEM hereby represents that it has been, and is not currently, debarred, suspended, or otherwise prohibited or restricted from exporting, re-exporting, receiving, purchasing, processing or otherwise obtaining any item, product, article, commodity, software or technology regulated by any agency of the United States.
d) OEM further agrees, represents and warrants that it is not listed, nor will it sell to any individual or entity listed on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons, BIS’s Entity and Denied Persons lists, or the Department of State’s Debarred Parties list or the equivalent lists of the EU. OEM shall further certify, at the inception of each sale hereunder, that it is in compliance with this provision, and it shall further certify compliance with this provision at any other time upon MapsPeople’s request.
e) Notwithstanding anything to the contrary herein, any violations of this provision shall result in immediate termination of the Agreement, without notice.
f) OEM shall be responsible for all claims, liabilities, damages and costs arising from violations of this provision. OEM FURTHER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS MAPSPEOPLE AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES AND COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES DIRECTLY RELATED THERETO) TO THE EXTENT CAUSED BY ACTS OR OMISSIONS OF OEM IN VIOLATION OF THIS PROVISION.
15. MISCELLANEOUS
a) OEM may not assign this Agreement or otherwise transfer any rights created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of MapsPeople. MapsPeople may assign, delegate, subcontract or otherwise transfer this Agreement or any of its rights or obligations without OEM’s prior approval.
b) In the event an action, including arbitration, is brought to enforce any provision or declare a breach of this Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney's fees, incurred thereby.
c) Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party addressed. All notices shall be sent to contact name and address as indicated in the Order.
d) MapsPeople shall not be liable to OEM for any delay or failure of MapsPeople to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of MapsPeople. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by OEM in providing required resources or support.
e) The invalidity or unenforceability of any provision of this Agreement, or any terms thereof, shall not affect the validity of this Agreement as a whole, which will at all times remain in full force and effect.
f) The failure of either party to enforce at any time the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
g) This Agreement includes the accompanying terms and conditions and appendices, and constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all proposals and prior discussions and writings between the parties with respect thereto. This Agreement cannot be altered, amended, or modified except in writing that is signed by an authorized representative of each party. All terms respecting the subject matter of this Agreement and contained in purchase orders, invoices, acknowledgments, shipping instructions, or other forms exchanged between the parties shall be void and of no effect.
h) ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING DISPUTES REGARDING THE VALIDITY OF THIS SECTION, SHALL BE FINALLY SETTLED BY ARBITRATION. THE ARBITRATION SHALL BE ADMINISTERED BY THE DANISH INSTITUTE OF ARBITRATION IN ACCORDANCE WITH THE RULES OF ARBITRATION ADOPTED BY THE BOARD OF THE DANISH INSTITUTE OF ARBITRATION. THE PLACE OF ARBITRATION SHALL BE COPENHAGEN UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE IN WRITING. THE LANGUAGE OF THE PROCEEDING SHALL BE ENGLISH. THE ARBITRATION AWARD SHALL BE IN WRITING AND SHALL BE FINAL AND BINDING ON THE PARTIES. 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.
INFORMATION SUBMITTED BY THE PARTIES OR PREPARED BY THE COURT OR THE ARBITRATOR(S), AND THE FINAL AWARD SHALL BE DEEMED CONFIDENTIAL INFORMATION.
i) IN THE EVENT OF A BREACH OR THREATENED BREACH BY THE OEM OF ANY AGREEMENT WITH MAPSPEOPLE, THE OEM HEREBY CONSENTS AND AGREES THAT MAPSPEOPLE 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.