Mappedin Inc.

Software Developer Toolkit License Agreement

Please read this Mappedin Inc. Software Developer Toolkit License Agreement (“Agreement”) carefully before downloading, installing, accessing and/or otherwise using the Mappedin Software Developer Toolkit (along with related intellectual property rights, the “SDK”).  By indicating your acceptance of the terms and conditions of this Agreement, whether on behalf of yourself or another person or entity (in each instance “Licensee”), Licensee is entering into a binding legal agreement with Mappedin Inc. (the “Company”) whether on behalf of yourself or another person or entity.  

By accessing, downloading and/or otherwise using the SDK, Licensee hereby certifies that Licensee (a) is at least eighteen (18) years of age, and that, if Licensee is acting on behalf of any person or entity, Licensee is authorized to act on behalf of such party; and (b) has read this Agreement and agreed to be legally bound by this Agreement.

If Licensee is not prepared to agree to the terms and conditions of this Agreement, please do not attempt to download, install, access and/or otherwise use any portion of the SDK.  If Licensee has any questions or concerns about this Agreement, please do not hesitate to contact the Company at help@mappedin.com.  

IF LICENSEE LIVES IN (OR IS A BUSINESS WITH A PRINCIPAL PLACE OF BUSINESS IN) THE UNITED STATES, PLEASE READ THE “CLASS ACTION WAIVER” SECTION BELOW.  IT AFFECTS HOW DISPUTES ARE RESOLVED.

IF AT ANY TIME DURING THE TERM (AS DEFINED HEREINAFTER) LICENSEE USES THE SDK TO CREATE A LICENSEE APPLICATION FOR COMMERCIAL USE BY LICENSEE OR FOR A CUSTOMER OF LICENSEE, THEN LICENSEE SHALL BE DEEMED TO HAVE IMMEDIATELY ACCEPTED THE TERMS AND CONDITIONS OF THE COMPANY’S THEN-CURRENT LICENSE AGREEMENT FOR SUCH USE (INCLUDING, BUT NOT LIMITED TO, THE PAYMENT OF ROYALTIES).

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, (I) IF YOU ARE A LICENSEE OF COMPANY PRODUCTS OR SERVICES IN WHICH THE SDK IS OFFERED FREE OF CHARGE OR (II) IF YOU ARE A LICENSEE OF COMPANY PRODUCTS OR SERVICES WHERE THE SDK IS OFFERED AS AN ADD-ON TO THE LICENSE, AND LICENSEE PURCHASED SUCH ADD-ON, THEN THE FOREGOING RESTRICTION ON COMMERCIAL USE DOES NOT APPLY TO YOU.

Definitions.

“Affiliates” means, with respect to a party to this Agreement, any other such entity Controlling, Controlled by, or under common Control with such party.  Licensee agrees to be jointly and severally liable for any acts or omissions of an Affiliate that constitute a breach of this Agreement or would constitute a breach of this Agreement if performed or omitted by Licensee.  Entities shall remain Affiliates only for as long as the Control exists.

“Confidential Information” means any information provided or otherwise made available by the Company to Licensee that is: (a) marked as confidential; (b) otherwise identified as confidential at the time of disclosure; or (c) would obviously be considered confidential in the context in which it was given that: (i) is not publicly available at the time of its disclosure and does not later become publicly available through no fault of Licensee; (ii) was not in the possession of Licensee prior to its disclosure; and (iii) was not independently developed by Licensee.    

“Control” means direct or indirect: (i) ownership of more than fifty percent (50%) of the outstanding shares representing the right to vote for members of the board of directors or other managing officers of such entity; or (ii) for an entity that does not have outstanding shares, more than fifty percent (50%) of the ownership interest representing the right to make decisions for such entity. 

“Documentation” means user manual(s) and other documentation published by the Company from time to time for the SDK.   

“IT Contractor” means outsourcing company(ies) or independent third party developer(s) contracted by Licensee or its Affiliates who have access to the SDK or the Licensee Application. 

“Licensee Application” means the software application and/or service that is developed from or otherwise utilizes all or a portion of the SDK and excludes any application where the SDK is all or substantially all of the functionality of the application and/or service.

“Personal Information” means information that can be used to identify an individual and is subject to legal obligations or restrictions under applicable federal, provincial, or local privacy laws.  
“Term” means the period of time set forth in Section 5.

“Users” means the individuals that Licensee permits to access, license and/or otherwise use the Licensee Application.

Intellectual Property.

Scope of License.  The SDK is licensed, not sold.  During the Term, the Company hereby grants to Licensee and its Affiliates a non-exclusive, non-transferable, revocable, royalty-free license to: (a) install and use any number of copies of the SDK to develop and test the Licensee Application; and (b) to distribute (i.e., make available to third parties) the SDK subject to the limitations set forth herein, all only for their internal evaluation, development and demonstration purposes.  The Company reserves all other rights not set forth herein and disclaims all implied licenses.

Unless applicable law gives Licensee more rights despite this limitation, Licensee will not (and has no right to): (i) work around or circumvent (including security technologies) any technical limitations in the SDK that only allow Licensee to use it in certain ways; (ii) reverse engineer, decompile or disassemble the SDK; (iii) remove, minimize, block, or modify any notices of the Company or its suppliers in the SDK; (iv) use the SDK in any way that is against the law including creating or propagating malware; (v) share, resell or attempt to resell, publish, or lend the SDK (except for any distributable code, subject to the terms herein); or (vi) provide the SDK as a standalone or stand-alone hosted solution for others to use, or transfer the SDK or this Agreement to any third party.

Additional Restrictions on Use.  

Without limiting the generality of the foregoing, Licensee, its Affiliates, IT Contractors or Users will not use the SDK for the purpose of developing or having developed any products or services competitive with products or services made commercially available by the Company.  Licensee, its Affiliates or any of their IT Contractors shall not knowingly, after making such inquiries as a reasonable person in their position would undertake, use or permit others to use the SDK, or any portion thereof, in isolation or with any other software, digital product, or data, in a manner that in the Company’s reasonable judgment interferes with, degrades or adversely affects any software, system, network or data used by any person including the Company or its partners or otherwise has a detrimental effect upon the Company or any of its respective customers or products or services, and Licensee shall, and shall ensure that its Users, Affiliates and any of their IT Contractors immediately cease any such activity upon the Company delivering written notice requiring same to Licensee.  Licensee, its Affiliates or any of their IT Contractors will not use or permit others to use the SDK to commit a crime or for any tortious purpose.  Licensee, its Affiliates, or any of their IT Contractors shall not, nor permit any other person to, access the SDK in a manner designed to use the SDK for anything other than for evaluation purposes.

Installation and Use Rights.  The SDK may include other Company products and/or services and the terms and conditions of this Agreement shall apply to those included products and/or services, if any, unless other license terms are provided with the other Company products and/or services, in which case, any conflicts between the agreements shall be resolved in accordance with Section 6.11.  The SDK may include third party code libraries that, in some cases, the Company, not the third party, licenses to Licensee.  

Distributable Code, Rights and Requirements.  Licensee is permitted to distribute (i.e., make available for third parties) the SDK solely in connection with the Licensee Application in the manner set forth herein.  Licensee may permit distributors of the Licensee Application to copy and distribute any of the SDK as embedded in the Licensee Applications.  For any code Licensee distributes, (i) the Licensee portion of the code must add significant primary functionality beyond the SDK’s functionality in the Licensee Application; and (ii) Licensee must require distributors and Users to agree to terms and conditions that protect it and the Company at least as much as this Agreement.  Licensee may not (i) use the Company’s trademarks or trade dress in the Licensee Application in any way that suggests that the Licensee Application comes from or is endorsed by the Company; or (ii) modify or distribute the source code in the SDK so that any part of it becomes subject to any license that requires that the code, distributable code, any other part of the SDK, or any of the Company's other intellectual property be disclosed or distributed in source code form, or that others have the right to modify it.

Ownership of SDK.  Mappedin owns all right, title and interest in and to the SDK. Nothing herein transfers to Licensee any ownership right, title or interest to any intellectual property rights associated with the SDK, or to any portion thereof.  Licensee shall have the right to use the SDK solely to provide the Licensee Application to Users.  Licensee and its IT Contractors agree to sign such further documents and take such further steps as the Company indicates are reasonably necessary to give effect to this provision and further agree that neither of them shall challenge the enforceability or validity of this provision. 

Feedback and Innovations.  Licensee, its Affiliates, and any of their IT Contractors agree to provide the Company with feedback on the SDK and any portion thereof, as reasonably requested by the Company, and hereby grant to Company a worldwide, non-exclusive, perpetual, irrevocable, royalty-free and sublicensable (through multiple tiers), transferable right and license to use and create derivative works of such feedback for any legal purposes whatsoever whether now known or hereinafter becomes known.   

Licensee acknowledges and agrees that the knowledge it has with respect to digital maps and wayfinding directories and the uses thereof, is based in large part on its access to the SDK, and Licensee agrees, warrants, represents and covenants that its Affiliates and their IT Contractors have agreed, that in consideration of the access to the SDK, such parties shall not take any steps or threaten to take any steps, directly or indirectly through some other person, to prevent the Company from further developing the SDK or any portion thereof, in any manner whatsoever, or to prevent the Company, its distributors, resellers, value added resellers, technology partners or integrators (collectively “Partners”) from distributing the SDK or such further developments or from their respective customers using the SDK or such developments whether Licensee develops or implements such further developments or obtains associated intellectual property rights (including for avoidance of doubt, patent rights) related to the SDK or developments prior to the Company doing so or not.  Licensee, its Affiliates and any of their IT Contractors further agree that they shall not seek any compensation from the Company, its Partners or customers in relation to such developments and agrees to sign such further documents and take such further steps as are reasonably necessary to give effect to this provision and further agrees that it shall not challenge the enforceability or validity of this provision. 

Limitations on Company’s Responsibility.  Licensee shall be responsible to provide everything required for its Users to access the Licensee Application (including the related hardware, operating systems and cloud services) and shall ensure that all other aspects of its system, including any required hardware or telecommunications equipment or services is in place in a timely manner.

Support Services.  The Company is not obligated to provide any support services for the SDK.  Any support provided is “as is,” “with all faults,” and without warranty of any kind.

Updates.  Licensee may obtain updates to the SDK made available by the Company by periodically checking the Company’s websites and services for recent updates and downloading and installing them.  Licensee may need to update its system before installing and/or using such Company updates. The Company updates may not include or support all existing SDK features, services, or peripheral devices.

Data.  The SDK may collect information about Licensee and its use of the SDK by Licensee and transmit such data to the Company (including, but not limited to, Personal Information).  Company may use this information to provide products and services and otherwise improve the SDK.  Licensee’s opt-out rights, if any are described in the product documentation.  Some features in the SDK may enable collection of data from Users of the Licensee Application that accesses or uses the SDK.  If Licensee uses these features to enable data collection in the Licensee Application, Licensee must comply with applicable law, including getting any required User consent, and maintain a prominent privacy policy that accurately informs users about how Licensee uses, collects, and shares data.  Licensee can learn more about Company’s data collection and use in the product documentation and from the Mappedin Inc. Privacy Statement located at https//info.mappedin.com/privacy-policy.  Licensee agrees to comply with all applicable provisions of the Mappedin Inc. Privacy Statement.

Confidentiality.  Except as specifically authorized in writing by the Company, Licensee shall hold the Company’s Confidential Information in confidence and shall not disclose to any third party any Confidential Information disclosed to Licensee or to which Licensee is provided access in relation to this Agreement.  It shall not be a breach of this Agreement to: (a) provide the Confidential Information to employees, legal advisors, and contractors (including IT Contractors)  of Licensee, that have a need to know to fulfill the purposes of this Agreement and are each subject to confidentiality obligations consistent with the requirements in this provision; or (b)  disclose the Confidential Information to the extent required to do so by a court of law; provided that the Licensee uses all reasonable efforts to provide sufficient written notice of this requirement to the Company to enable the Company to seek an order limiting or preventing the disclosure of the Confidential Information.  Licensee further agrees not to use or reproduce the Confidential Information except as reasonably necessary to fulfill the purposes of this Agreement.  Licensee shall ensure that it has taken precautions that are consistent with industry practices and in all instances are not less than a reasonable standard of care to ensure that the Confidential Information is not lost or stolen or improperly accessed or copied.  Upon the termination of this Agreement or at any time upon request, Licensee shall either return the Confidential Information or have an officer certify its destruction, provided that this obligation shall not apply to any archival copies of the Confidential Information which form part of the automatic back-up of Licensee’s data so long as Licensee maintains such in accordance with its document retention policies.  These restrictions shall apply for so long as the Confidential Information in question remains a trade secret.

Warranty Disclaimer; Limitations on Liability & Indemnity.

Implied Warranty Disclaimer.  THE SDK IS LICENSED “AS IS”.  LICENSEE BEARS THE RISK OF USING IT.  COMPANY MAKES NO WARRANTIES, CONDITIONS, ENDORSEMENTS, REPRESENTATIONS OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ARISING FROM A STATUTE, CUSTOM, COURSE OF DEALING OR USAGE OF TRADE. 

Limitation of Liability.  IN NO EVENT SHALL COMPANY’S AND/OR ITS SUPPLIERS’ (A) TOTAL AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SDK EXCEED FIVE ($5.00) DOLLARS; AND (B) BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (however arising, including negligence, breach of contract, strict liability or any other civil or statutory liability) ARISING DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING LOST PROFITS AND LOST DATA), WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

Application of Limitations.  THE LAWS OF SOME JURISDICTIONS PROHIBIT CERTAIN DISCLAIMERS, EXCLUSIONS AND/OR LIMITATIONS AND TO THE EXTENT THE LAWS OF A COMPETENT JURISDICTION PROHIBIT THEM, THESE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED.  LICENSEE  ACKNOWLEDGES THAT COMPANY HAS RELIED ON THESE DISCLAIMERS, LIMITATIONS AND EXCLUSIONS IN DETERMINING WHETHER TO PROVIDE LICENSEE WITH THE RIGHTS TO ACCESS AND USE THE SDK AND IN THE ABSENCE OF SUCH DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS: (A) THE OTHER TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT (INCLUDING, THE PAYMENT OF FEES); AND (B) COMPANY’S ABILITY TO OFFER, AND LICENSEE’S ABILITY TO USE, THE SDK WOULD BE SUBSTANTIALLY IMPACTED. 

Mission Critical Applications.  COMPANY DOES NOT AUTHORIZE NOR TAKE ANY RESPONSIBILITY WHATSOEVER FOR THE USE OF THE SDK (OR ANY PORTION) IN MISSION CRITICAL APPLICATIONS OR IN ANY OTHER SITUATION WHATSOEVER REQUIRING GUARANTEED, IMMEDIATE ACCESS AND ACCURACY OF THE DIGITAL MAPS.

Indemnity.  LICENSEE SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES AND THEIR SUPPLIERS FROM ANY CLAIMS, INCLUDING ATTORNEYS’ FEES, RELATED TO THE DISTRIBUTION OR USE OF THE LICENSEE APPLICATION, EXCEPT TO THE EXTENT THAT ANY CLAIM IS BASED SOLELY ON THE UNMODIFIED SDK.



Term.  The Term of this Agreement shall commence on the date Licensee downloads the SDK and shall continue until terminated.  Licensee may terminate this Agreement by ceasing to use the SDK (including in the Licensee Application).  This Agreement may be terminated by the Company, after providing written notice thereof to Licensee, specifying in reasonable detail the reason for termination, if Licensee breaches or otherwise fails to perform or comply in a material respect with a material obligation or covenant, and such breach or failure is not cured by Licensee to the Company’s reasonable satisfaction within thirty (30) days following receipt of such notice.  Those provisions that by their nature survive shall survive termination of this Agreement.  Upon termination of this Agreement, Licensee shall destroy, erase or otherwise remove all components of the SDK in its possession including in the Licensee Application.

General.

Entire Agreement.  This Agreement constitutes the entire agreement of the parties with respect to the subject matter thereof.  It supersedes all discussions, correspondence or communications of any nature relating to the subject matter of this Agreement, all of which shall no longer be of any force or effect.  

Governing Laws.  This Agreement shall be governed and construed in accordance with the laws of the Province of Ontario along with any federal laws applicable therein unless Licensee’s address is located outside of Canada, in which case, this Agreement shall be governed and construed in accordance with the laws of the State of New York along with any federal laws applicable therein.  The rules of private international law that lead to the application of the laws of any other jurisdiction, the provisions of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Acts shall not apply to this Agreement in any manner whatsoever. 

Forum.  The Provincial and federal courts of the Province of Ontario shall have exclusive jurisdiction to hear any matter arising in connection with this Agreement unless Licensee’s address is located outside of Canada, in which case, the courts located in the Borough of Manhattan, New York City, New York shall have exclusive jurisdiction to hear any matter arising in connection with this Agreement.  The parties hereby waive all rights to a trial by jury in any matter related to or arising from this Agreement.

Injunctive Relief.  Licensee agrees that a material breach of this Agreement may cause irreparable harm to Company, for which a remedy at law may be inadequate.  Accordingly, in addition to any remedies at law, subject to any express limitations under this Agreement, Company may seek injunctive relief without posting any security or bond.

Severability.  If any court finds any part of this Agreement to be invalid or unenforceable that part shall be severed from this Agreement and its invalidity or unenforceability shall not in any way affect the remaining provisions of this Agreement, which shall continue in full force and effect.

Notices.  Any notice, request, demand or other communication required or permitted hereunder shall be sufficiently given only if in writing and only if delivered by hand, email or courier addressed to the other party at the address set out in this Agreement (or in the case of the Company, its website, and in the case of Licensee, the registration, check-out or other form for the SDK) or to such other person or address as the parties may from time-to-time designate in writing delivered pursuant to this notice provision, with a copy of all notices (except for support notices) also emailed to legal@mappedin.com.  Any such notices, requests, demands or other communications shall be received and effective: (i) upon the date of receipt if delivered by hand, registered mail (or its equivalent) or courier; or (ii) on the date of confirmation of receipt by answer-back from the party to whom the notice, request, demand or other communication was given, in the case of email. 

Ability to Bind the other Party.  No party shall have authority to or shall hold itself out as having any authority to incur, assume or create, orally or in writing, any liability, obligation or undertaking of any kind in the name of or on behalf of or in any way binding upon the other party.

Assignment.  Licensee may not assign or transfer (including, but not limited to, by way of stock or asset sale) all or any of its rights, benefits and obligations under this Agreement without the prior written consent of the Company (which consent may be withheld or conditioned at Company’s sole discretion) and any purported assignment without such consent shall be null and void and of no effect.  Company may freely transfer and assign this Agreement or any of its rights or obligations hereunder.  Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

Class Action Waiver.  If the forum for any matter arising in connection with this Agreement is in the United States, the parties agree to waive the right to bring consolidated disputes or to participate in class action proceedings, whether initiated by that party or by a third party.  WITH THIS CLASS ACTION WAIVER, LICENSEE AND COMPANY WILL NOT BE ABLE TO DO THE FOLLOWING: (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. 

Export Restrictions.  Licensee must comply with all domestic and international export laws and regulations that apply to the SDK, which include restrictions on destinations, end users, and end use. 

Order of Precedence.  In the event of a conflict, dispute or inconsistency between the terms and conditions of this Agreement and any other agreement between Licensee and Company, such conflict, dispute or inconsistency shall be resolved by the following order of precedence, in descending order: (i) the other Company agreement and (ii) then this Agreement.