Terms and Conditions

MAPQUEST ENTERPRISE END USER LICENSE AGREEMENT

If you choose to use any of the MapQuest Services, you, (or if applicable, the business you represent) (“Customer”) are agreeing to abide by the conditions and conditions of this MapQuest Enterprise End User License Agreement (the “Agreement”) and are forming an agreement between yourself and MapQuest, Inc. (“MapQuest”). If you do not want to abide by the terms and conditions of this Agreement, then don’t begin to use the MapQuest Services.  MapQuest may change the terms of this Agreement, as set forth in Section 15(m).

Terms and Conditions

  1. Licenses.
    1. From MapQuest to Customer.  MapQuest grants Customer a non-sublicensable, non-transferable, non-exclusive license to (i) access and use the MapQuest Service as permitted under the monthly purchased plan, (ii) to display MapQuest Content on the Customer Sites, and (iii) if provided by MapQuest, use the MapQuest Mobile Navigation SDK in accordance with the Documentation in conjunction with applications developed by Customer.
    2. From Customer to MapQuest.  Customer grants MapQuest an irrevocable, sublicensable, non-exclusive, perpetual, limited license to reproduce, adapt, modify, translate and distribute any Customer Content that Customer submits to MapQuest via its use of the MapQuest Services.
  2. Usage Requirements.
    1. Added Functionality.  Customer must ensure the compatibility between any of its added functionality and the MapQuest Service, including all Upgrades or updates.  MapQuest has no obligation to support any functionality added by Customer.
    2. Access Codes.  Customer is responsible for the Access Code(s) it is assigned.  Access Codes are the confidential property of MapQuest and may be changed by MapQuest at any time.   Customer will, in addition to other remedies available to MapQuest, be responsible for all charges incurred in connection with unauthorized usage attributed to Customer Access Codes.
    3. Approved Devices.  Customer must use the MapQuest Service only in conjunction with Approved Devices.
    4. Notices.  If Customer displays any Maps or Driving Directions, Customer must display all copyright notices, terms links, attributions, marks and disclaimers (“Notices”) that are provided in conjunction with the MapQuest Service.  If a Terms link is not provided, Customer shall include “Terms” in a clearly legible text on or next to the Results Page that hyperlinks to MapQuest’s end-user terms and conditions currently located at, http://cdn.mapquest.com/mq_legal/termsofuse.html, which may be modified from time to time.  In addition, Customer must display the following:
      1. In conjunction with any Driving Directions:  “Use of directions and maps is subject to the MapQuest Terms of Use. We make no guarantee of the accuracy of their content, road conditions or route usability. You assume all risk of use.”
      2. For any Transaction in which Maps or Driving Directions are displayed to the end-user on a mobile device, Customer shall display on each Results Page, in addition to the text and links required above, a text line (or if technically feasible, a logo) showing “Powered by MapQuest,” or such other text as MapQuest may designate.
      3. If a product is intended for use in an Approved Device with a screen size of less than 6 inches and displaying Notice is not commercially reasonable, Customer shall instead implement a commercially reasonable means of providing Notice in a manner acceptable to MapQuest such as on the splash start-up screen of a mobile device or providing the end-user terms, notices, links, attributions, marks and disclaimers immediately below the display or on a hyperlinked page.
      4. MapQuest logo on any Static Map in the same general size, location and manner as Customer’s branding for such Static Map.  If Customer does not insert Customer’s branding onto the Static Map, the MapQuest logo must be placed on the map image or in close proximity to the map image.  In no event shall either logo be less than ¾” inch in width (unless otherwise agreed to in advance by MapQuest in writing).  In addition to the MapQuest logo, all copyright notices delivered by the MapQuest Service shall remain on the Static Map.
    5. Non-Infringing Uses.  Customer shall not use the MapQuest Service in connection with any product or system which, alone or in combination with the MapQuest Service, infringes any third party’s rights.
    6. MapQuest Technology.  Customer shall protect the MapQuest Technology (or any significant portion or derivative thereof) from downloading, copying or otherwise being accessed directly by end-users. The information delivered in connection with each Transaction is not permitted to include or reflect a significant portion of the MapQuest Technology or Data.
    7. Compliance.  Company shall comply with all laws and regulations that are applicable to its use of the MapQuest Service.  In addition, Company shall include a link to its privacy policy on any Customer Sites, and Company shall be responsible for complying with its own privacy policy.  If Customer is using the MapQuest Mobile Navigation SDK, Customer is responsible for providing adequate notice to its End Users about the collection and usage of any Data that is collected via the MapQuest Mobile Navigation SDK.
  3. Restrictions.
    1. General Restrictions.  Customer shall not:
      1. modify, reverse-engineer or decompile the source code of the MapQuest Services or create Derivative Works from the MapQuest Content;
      2. charge end-users a fee to access a MapQuest Service that would generally be freely available to users of MapQuest’s consumer services;
      3. use any MapQuest Service to compete with any MapQuest offerings or products (for example, by using MapQuest Maps and Directions on a website that as a whole primarily offers maps and directions and/or other location services);
      4. use the MapQuest Services in a manner that is not authorized (for example, by permitting a third party other than a Permitted Sublicensee to access the MapQuest API).
      5. modify or obstruct any Notices intended to be displayed on the Maps or with Driving Directions;
      6. store or cache any MapQuest Data; or
      7. print satellite imagery or use satellite imagery in any video product.
    2. Vendor-Imposed Restrictions.    Based on the restrictions in effect as of the Effective Date, Customer shall not:
      1. use the MapQuest Service for Turn-by-Turn Navigation unless MapQuest is providing Customer with the Mobile Navigation SDK;
      2. link, merge, or integrate the MapQuest Services or Data with any data or software governed by an Open Source License in such a way that would cause the MapQuest Service or Data to become subject to an Open Source License;
      3. display house numbers derived from house number ranges to End Users to except to identify correlating locations satisfying search queries of end users;
      4. display sign text attributes not in conjunction with a specific route for which driving directions and/or route guidance is provided to an end user;
      5. use the MapQuest Service for the purpose of enforcement of traffic laws including but not limited to the selection of potential locations for the installation of speed cameras, speed traps or other speed tracking devices;
      6. use Canadian postal codes without also generating a Map;
      7. other than as expressly permitted in this Agreement, make any changes to the MapQuest Service, add any data to the Data, except that Customer may reformat or recompile the Data for use in Approved Devices, and add or associate features or attributes to the Data of a type not already included within the MapQuest Service. In no event shall Customer make any changes that in any manner materially reduce, impair, or otherwise negatively impact upon the accuracy, completeness, integrity, or safety of the Data;
      8. submit or make available any Data to any online service where the applicable terms and conditions of such service would grant use rights to the owner, provider or any other third party user of such service which extend beyond the scope of the license granted herein;
      9. compile a database by using, extracting, or reutilizing, the Data in combination with any other database of Customer or any third party whether or not to check, compare or benchmark the Data against a MapQuest Competitor’s database;
      10. be a MapQuest Competitor.  
    3. Traffic-Related Restrictions.  Customer must comply with the following restrictions in connection with its use of Traffic services:
      1. Traffic Data shall not be used by Customer (and/or Permitted Sublicensee(s)), with any computer application software not used in conjunction with the MapQuest Service licensed hereunder;
      2. Customer may not modify Traffic Data (except with respect to format or display of the Traffic Data) or commingle with any traffic data other than as provided by MapQuest;
      3. Customer shall not store any Traffic Data by any means;
      4. Customer may not (and/or Permitted Sublicensee(s) may not) use Traffic Data for the purposes of: (i) Real-Time Navigation; (ii) installed in-car devices or standalone portable navigation devices (“PNDs”); (iii) to offer an application whose primary purpose is the provision of real-time traffic information (but such real-time traffic information may be part of a broader application); (iv) to provide Traffic Data by any other means other than an Application Programming Interface (“API”) or similar mechanism;
      5. Customer shall not sublicense the Traffic Data sets to any of the Data Traffic Competitors.
    4. Geocoding. Unless Extended Rights Geocoding license is included in Customer’s monthly subscription with MapQuest, Customer may only use Standard Rights Geocodes (i.e., may only use Geocodes in conjunction with a MapQuest Map). Customer may not use the grant of Extended Rights Geocodes unless Customer has either signed up for the Business Enhanced or Business Plus Enhanced plans. Users who purchase the Business Enhanced or Business Plus Enhanced plans cannot downgrade or cancel the plan during the initial 6-month period. If Customer cancels its plan, geocoding results must be deleted upon cancellation of the Business Enhanced or Business Plus Enhanced plan.
  4. Support and SLA.
    1. Included Technical Services.  Subject to its compliance with this Agreement, Customer is entitled to the following technical support:
      1. access to the MapQuest Developer Network (described below); and
      2. Technical Support
      3. Upgrades/Updates.
    2. MapQuest Developer Network. The MapQuest Developer Network provides current technical and other information about the MapQuest Service, including usage reports, and is available twenty-four (24) hours per day, seven (7) days per week, excluding maintenance or other scheduled downtime and excluding unanticipated periods of unavailability.  Customer is responsible for managing who has access to the MapQuest Developer Network login associated with Customers account and any actions taken using Customers account.
    3. Technical Support. Customer has access to MapQuest forum and email technical support with no guarantees of return to service or any service level agreement.
    4. Upgrades.  If MapQuest makes Upgrades generally available to commercial customers for production use and Customer has paid all Fees under this Agreement, such Upgrades shall be provided,. MapQuest may from time to time update or modify the MapQuest Technology in its discretion with no notice.  Once a major release is issued any legacy version shall be on an “AS-IS” and “AS AVAILABLE” basis without warranty or technical support services or service level commitment of any kind.  Further, updates to MapQuest Technology shall only be available for the current major release. MapQuest may discontinue access to the MapQuest Service via any legacy product at any time without notice, and no refunds will be issued.
    5.  End-User and Sublicensee Technical Support. Customer is solely responsible for furnishing technical and other support to Customer’s end-users and any Permitted Sublicensee.
    6. Mobile Navigation SDK.  Customer is responsible for technical issues arising within the environment in which the MapQuest Mobile Navigation SDK has been integrated.  The SLA does not apply to the MapQuest Mobile Navigation SDK.
  5. Fees and Payment.
    1. Fees.  Customer shall pay all applicable Fees committed to during the signup process.   Customer agrees to have all Fees charged to the credit card provided by Customer. Plans are billed in monthly increments.  When the customer cancels a plan any remaining days in the contract month are nonrefundable.
    2. Payment.  License Fees are non-cancelable and nonrefundable. Fees are payable in full by credit card for the Initial Term and any Renewal Term.
    3. Overages. Customer agrees to pay overage fees if Transaction volume exceeds the allotted Transaction volume.  Overages are billed in increments of 10% of the monthly allotted transaction volume (e.g. if the monthly quota is 30,000 transactions each 10% overage increment is 3,000 transactions). Overages are automatically billed in advance at 100%, 110%, 120%, 130%, 140% and 150% of monthly transaction usage.
  6. Publicity. MapQuest may make factual references, including logo usage, subject to MapQuest’s then-current logo usage guideline,  to the existence of a business relationship between the Parties which shall not require approval of Customer. Either Party may make statements as required by law without the consent of the other Party and in such event, the disclosing Party shall provide at least five (5) business days prior written notice of such disclosure (unless otherwise required by law).
  7. Term and Termination.
    1. Term.  The initial term of this Agreement starts on the Effective Date and ends one month later (the “Initial Monthly Term”). This Agreement automatically renews for additional one month periods (each, a “Renewal Term”) unless the Customer cancels the Agreement prior to the start of the next Renewal Term (or the end of the Initial Monthly Term, as applicable).  The Initial Monthly Term and any Renewal Term(s) may be referred to as the “Term.”
    2. Termination.  Except as otherwise expressly provided in this Agreement, MapQuest may terminate this Agreement (i) at any time if a material breach by the other Party remains uncured for fifteen (15) days after receipt of written notice from the non-breaching Party, (ii) immediately in the event Customer does not renew or upgrade the Monthly Plan if the monthly allotted transaction volume has been met and Customer has not renewed or upgraded the Monthly Plan prior to exceeding the transaction volume; and (iii) immediately following written notice if Customer ceases to do business in the normal course, becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within sixty (60) days or makes an assignment for the benefit of creditors.
    3. Termination as a Result of Acquisition.  If Customer is acquired or placed under the control or common control of an Acquiror and such Acquiror is a MapQuest Competitor, MapQuest, in its sole discretion, may terminate this Agreement at any point during the Term by providing thirty (30) days prior written notice to Customer.
    4. Effect of Termination/Expiration. Within five (5) business days after the termination or expiration of this Agreement, Customer (and any applicable Permitted Sublicensees) shall discontinue all use of the MapQuest Service, MapQuest Content, MapQuest Technology, Access Codes, Geocodes, Data and any other materials or data licensed or provided by MapQuest to Customer.  At MapQuest’s request, Customer shall immediately deliver to MapQuest or otherwise destroy or erase all intellectual property, software, media, and other tangible or intangible property belonging to MapQuest in Customer’s possession or control, including all copies thereof; and certify in writing that Customer (and any applicable Permitted Sublicensees) has completed all of these actions.
  8. Suspension. Without limiting any of MapQuest’s other rights, in the event of a breach by Customer of any license rights, usage requirements or restrictions, MapQuest, at its discretion, may suspend Customer’s access to the MapQuest Service during the period of the breach.  MapQuest will use commercially reasonable efforts to notify Customer of any suspension of access to the MapQuest Service and will resume Customer’s access when MapQuest reasonable determines that the breach has been cured.  In addition, MapQuest may suspend a Customer’s access to the MapQuest Service if Customer reaches its monthly Transaction Limits and Customer fails to renew or upgrade the Monthly Plan.
  9. Audit.  MapQuest shall have the right, upon giving at least thirty (30) days prior written notice to Customer, to have an independent third party (“Auditor”), appointed by MapQuest examine the relevant records of Customer to determine compliance by Customer with the terms and conditions of this Agreement ("Audit").  MapQuest may conduct an Audit of Customer no more than twice during each 12 month period over the Term and for one year thereafter, during normal business hours. Once an Audit has been conducted for a period of time, any subsequent Audit shall not be made for the same period for which records have been inspected.  The Customer will make available, in the required form and in the required manner, all information and documentation that the Auditor considers reasonably necessary for the proper performance of the Audit.  MapQuest shall bear the cost of conducting the Audit unless the Audit reveals an underpayment. In such case, Customer shall be liable for reasonable fees and expenses in connection with the Audit.
  10. Government Agencies.
    1. Generally.  If Customer is an agency, department, or other entity of the United States Government, or funded in whole or in part by the United States Government, then use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and accompanying documentation, is restricted in accordance with the LIMITED or RESTRICTED rights as described in any applicable DFARS or FAR.  In case of conflict between any of the FAR and/or DFARS that may apply to the MapQuest Service, the construction that provides greater limitations on the Government’s rights shall control. For purpose of any public disclosure provision under any federal, state or local law, it is agreed that the MapQuest Service is a trade secret and a proprietary commercial product and not subject to disclosure. The MapQuest Technology, MapQuest Data, and the MapQuest Service is a “commercial item” under FAR §2.101 and “commercial computer software documentation” under FAR §12.212 and DFARS §227-7202. Additionally, the contractor/manufacturer for some of the data provided is TomTom North America, Inc., 11 Lafayette Street, Lebanon, NH 03766-1445. Phone: 603.643.0330.  Some of the data is © 2006-201_ by TomTom. ALL RIGHTS RESERVED. Any use, duplication, or disclosure of the MapQuest Technology or the MapQuest Service by the United States Government is governed solely by the terms of this Agreement. To the extent Customer (or any Permitted Sublicensee) enters into any agreement with the government which includes use of the MapQuest Technology or the MapQuest Service, Customer (or any Permitted Sublicensee) shall include a provision identifying the MapQuest Technology or MapQuest Service as a” commercial item” in accordance with this Section and further specify: “Any use, duplication, or disclosure of the MapQuest Technology and the MapQuest Service by the United States Government or its contractors is governed solely by the terms of MapQuest’s standard commercial license. Any technical data that is not “commercial computer software” or “commercial computer software documentation” that is customarily provided with the MapQuest Technology or the MapQuest Service shall also be governed by the terms of MapQuest’s standard commercial license pursuant to FAR §12.211.”
    2. If Customer is an agency, department, or other entity of any State government, the United States Government or any other public entity or funded in whole or in part by the United States Government, then Customer hereby agrees to protect the MapQuest Products, MapQuest Technology and MapQuest Data from public disclosure and to consider the Licensed Products exempt from any statute, law, regulation, or code, including any Sunshine Act, Public Records Act, Freedom of Information Act, or equivalent, which permits public access and/or reproduction or use of the MapQuest Products, MapQuest Technology and MapQuest Data.  In the event that such exemption is challenged under any such laws, this Agreement shall be considered breached and any and all right to retain any copies or to use of the MapQuest Products, MapQuest Technology and MapQuest Data shall be terminated and considered immediately null and void.  Any copies of the MapQuest Products, MapQuest Technology and MapQuest Data held by Customer shall immediately be destroyed.  If any court of competent jurisdiction considers this clause void and unenforceable, in whole or in part, for any reason, this Agreement shall be considered terminated and null and void, in its entirety, and any and all copies of the MapQuest Products, MapQuest Technology and MapQuest Data shall immediately be destroyed.
  11.  Confidentiality.  Each Party agrees that, during the Term and for a period of three (3) years thereafter, it shall not use or disclose any Confidential Information other than for purposes of this Agreement (and then only on a confidential basis satisfactory to the other Party). Each Party shall restrict knowledge of the other Party’s Confidential Information to its respective employees who must have access to such Confidential Information for such Party to perform its obligations hereunder. Nothing in this Section shall prevent a Party (the “Receiving Party”) from disclosing information which: (i) was or subsequently becomes part of the public domain through no fault or act of Customer; (ii) was independently developed by the Receiving Party without use of the other Party’s Confidential Information; or (iii) is required to be disclosed by law or by order of a court or other governmental body (provided that the Receiving Party promptly notifies the other Party in writing and takes reasonable steps to limit or prevent such disclosure to the maximum extent permitted by law).
  12. Representations, Warranties and Disclaimer.
    1. General.  Each Party represents and warrants that (i) it has the full corporate right, power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its duties and obligations hereunder do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (iii) when executed and delivered by it, this Agreement will constitute its legal, valid and binding obligation, enforceable against it in accordance with its terms.
    2. MapQuest Service.  MapQuest warrants that, during the Term, the MapQuest Service shall perform substantially in accordance with the Documentation. As Customer’s sole and exclusive remedy for a failure to comply with this warranty, and provided such non-compliance is reported to MapQuest in a timely manner, MapQuest will, in its sole discretion, either: (i) use commercially reasonable efforts to correct or develop a work-around to any verifiable errors so that the MapQuest Service complies with such warranty; or (ii) terminate the Agreement and provide Customer a pro-rated refund of any pre-paid fees for the then current month of the Term.
    3. Disclaimer.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, MAPQUEST DOES NOT WARRANT THAT (I) THE MAPQUEST SERVICE OR ANY RESULTS OF THE MAPQUEST SERVICE WILL MEET CUSTOMER’S REQUIREMENTS; (II) CUSTOMER OR CUSTOMER’S END-USER’S OR PERMITTED SUBLICENSEE’S USE OF THE MAPQUEST SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR AVAILABLE AT ALL TIMES; (III) ANY INTERRUPTIONS OR ERRORS IDENTIFIED BY CUSTOMER CAN OR WILL BE CORRECTED; OR (IV) THE MAPQUEST SERVICE OR ANY RESULTS OF THE MAPQUEST SERVICE  ARE ACCURATE, COMPLETE OR CORRECT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MAPQUEST SHALL HAVE NO OBLIGATION OR OTHER LIABILITY WITH REGARD TO ANY ERROR OR NON-COMPLIANCE WITH THE EXPRESS WARRANTY SET FORTH HEREIN THAT IS CAUSED, IN WHOLE OR IN PART, BY (A) MODIFICATIONS TO THE MAPQUEST SERVICE MADE BY CUSTOMER OR ANY THIRD-PARTY; (B) USE OF THE MAPQUEST SERVICE OTHER THAN AS DESCRIBED IN THE DOCUMENTATION; (C) HARDWARE, SOFTWARE OR OTHER PRODUCTS NOT PROVIDED BY MAPQUEST; OR (D) THE NEGLIGENCE, MISUSE OR IMPROPER USE OF THE MAPQUEST SERVICE BY CUSTOMER OR ANY THIRD-PARTY.
  13. Indemnification.
    1. By MapQuest.  MapQuest shall indemnify, defend and hold harmless Customer from and against all damages, costs (including reasonable attorneys' fees) and other liabilities (collectively, “Damages”) directly arising out of any claim or suit (each, a “Claim”) alleging that the MapQuest Service (excluding Customer’s User Interface and Customer’s Results Pages) or any MapQuest Mark infringes a third-party’s duly-registered U.S. patent, copyright or trademark, provided that Customer (i) promptly notifies MapQuest of any such Claim (provided, however, that any failure to so notify MapQuest of such Claim shall relieve MapQuest of its obligations under this provision only to the extent, if any, that MapQuest suffers damages attributable to such failure); (ii) permits MapQuest to control the defense or settlement of such Claim, at MapQuest's expense; and (iii) provides MapQuest with reasonable assistance necessary for the defense or settlement of such Claim. Customer shall have the right, at Customer’s cost, to be represented by counsel of Customer’s choosing in connection with any such Claim. In the event that Customer is, or in MapQuest’s reasonable judgment may be, the subject of any Claim, then MapQuest shall, in its sole discretion, do any of the following, as Customer’s sole and exclusive remedy: (a) replace or modify the MapQuest Service or any portion thereof (but excluding Customer’s User Interface) so that it is non-infringing; (b) obtain, at MapQuest’s expense, a license for Customer to use the MapQuest Service (but excluding Customer’s User Interface); or (c) terminate Customer’s right to use the MapQuest Service and refund to Customer a pro-rated refund, calculated either monthly or by Baseline Transaction Threshold (as applicable), of Annual Fees paid for the then current year of the Term. MapQuest shall have no liability to indemnify, defend or hold harmless Customer to the extent the alleged infringement is based on: (v) a modification of the MapQuest Service by anyone other than MapQuest or a party acting under MapQuest’s authority and direction; (w) use of a previous version of the MapQuest Service where the infringement could have been avoided by using the latest version, which has been made available by MapQuest to Customer; (x) use of the MapQuest Service other than in accordance with the Documentation or terms and conditions of this Agreement; (y) use of the MapQuest Service in combination with any software, data, or systems not provided by MapQuest; or (z) Customer’s Sites, Customer’s User Interface or Customer’s Points of Interest. This Section sets forth the sole and exclusive obligation of MapQuest with regard to any Claim of infringement with respect to the MapQuest Service and MapQuest Marks.
    2. By Customer.  Customer shall indemnify, defend and hold harmless MapQuest and its Affiliates, and its and their officers, directors, employees and agent and employees from and against any Damages arising out of any Claim based in whole or in part upon (i) a modification of the MapQuest Service by Customer or anyone acting under Customer’s direction or control (including any Permitted Sublicensees; (ii) use of the MapQuest Service in combination with any software, data or systems not provided by MapQuest to the extent that but for such combination, there would be no infringement; (iii) any infringement upon any third-party’s proprietary or intellectual property rights in connection with the use of a previous version of the MapQuest Service where the infringement could have been avoided by using the latest version; (iv) use of the MapQuest Service other than in accordance with the terms and conditions of this Agreement (including but not limited to improper or unauthorized sublicensee use); (v) any representations and warranties made by Customer or a sublicensee to any third-party with respect to the MapQuest Service or any Maps and/or Driving Directions; (vi) any tax obligations (including interest and penalties imposed thereon) on the transactions contemplated herein, other than taxes based on MapQuest’s net income or profits; (vii) the actual or alleged infringement by Customer’s Points of Interest, Customer Results Pages, Customer’s Marks, Customer’s User Interface or Customer’s Site(s) of any third-party’s intellectual property rights; provided that in each such circumstance MapQuest: (a) promptly notifies Customer of any such claim (provided, however, that any failure to so notify Customer of such claim shall relieve Customer of Customer’s obligations under this provision only to the extent, if any, that Customer suffers damages attributable to such failure); (b) permits Customer to control the defense or settlement of such claim with counsel reasonable under the circumstances, at Customer’s expense, and (c) provides Customer with all reasonable assistance necessary for the defense or settlement of such claim (at Customer’s expense). MapQuest shall have the right, at its cost, to be represented by counsel of its choosing in connection with any such Claim against it.
    3. Non-Assert.  Customer will not, and will use its best efforts to cause its Affiliates to not, assert any claims or rights, by commencing, or causing to be commenced, any action or proceeding that alleges infringement by MapQuest or any Other MapQuest Customers (as defined below) under any Customer MapQuest Patent Claims based in whole or in part on the use, making, having made, offering for sale, selling, importing, reproducing, modifying, distributing, displaying, performing, providing or otherwise transferring MapQuest Products.  In addition, Customer grants to MapQuest and each Other MapQuest Customer under the Customer MapQuest Patent Claims immunity from suit for infringement based in whole or in part on the use, making, having made, offering for sale, selling, importing, modifying, reproducing, distributing, displaying, performing, providing or otherwise transferring MapQuest Products.  This covenant will be binding on all successors in interest to, all transferees or assignees of and any exclusive licensee of any Customer MapQuest Patent Claims, or any rights granted in any Customer MapQuest Patent Claims.  Customer agrees to inform all such successors in interest, transferees, assignees or licensees of such covenant and to obtain their written consent to be bound by such covenant.  Customer does not by this covenant waive its right to assert any claim against any Other MapQuest Customer for using any of Customer's intellectual property, other than any Customer MapQuest Patent Claims.  Any Other MapQuest Customer that has agreed with MapQuest to the same or a similar covenant will be regarded as an intended third party beneficiary of this covenant with the right to enforce this covenant.
  14. Limitation on Liability.
    1. Generally.  EXCEPT WITH RESPECT TO (i) CUSTOMER’S OR A SUBLICENSEE’S, BREACH OF ANY LICENSE GRANT OR RESTRICTION UNDER THIS AGREEMENT OR (ii) A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS:
      1. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATED TO THIS AGREEMENT.
      2. EACH PARTY AGREES THAT THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ALL CLAIMS IN THE AGGREGATE ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO MAPQUEST UNDER THE PROVISIONS OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE DATE THE NOTICE OF CLAIM IS FIRST RECEIVED, PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY UNDER THE PROVISIONS OF THIS AGREEMENT.
    2.  AOL Companies.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL THE AOL COMPANIES (EXCLUDING MAPQUEST) BE LIABLE TO CUSTOMER FOR ANY DAMAGES WHATSOEVER ARISING FROM OR RELATED TO THIS AGREEMENT (EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
  15. Miscellaneous.
    1. Force Majeure.  Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any fire, flood, explosion, war, strikes, threatened strikes, stoppage of work, slowdowns, picketing, boycotts, embargoes, requirements imposed by governmental regulations, civil or military authorities, acts of God, internet slowdowns, shutdowns, or other forms of internet delay, or other causes that are beyond the reasonable control and without the fault or negligence of the Party unable to perform; provided that such Party gives reasonably prompt notice under the circumstances of such condition(s) to the other Party. Inability to meet financial obligations, however, shall not be considered a force majeure event.
    2. Assignment.  Without the consent of MapQuest, Customer may assign this Agreement to an Acquiror of Customer, or allow this Agreement to be assumed by such Acquiror so long as: (a) Acquiror agrees to be fully bound by the terms and conditions set forth in this Agreement, (b) Acquiror has the financial and other resources necessary to fully perform Customer’s obligations hereunder, and (c) Acquiror is not a MapQuest Competitor and does not control, is not controlled by or is not under common control with a MapQuest Competitor. Except as otherwise provided herein, Customer shall not assign, delegate or transfer this Agreement or any right, interest or benefit under this Agreement, or allow this Agreement to be assumed by any third party without the prior written consent of MapQuest and any such assignment, delegation, transfer or assumption without MapQuest’s prior consent shall be wholly void and invalid.  Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns.
    3. Applicable Law; Submission to Jurisdiction. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the law of the Commonwealth of Virginia, except for its conflicts of laws principles. Each Party irrevocably consents to the exclusive jurisdiction of the courts of the Commonwealth of Virginia and the federal courts situated in the Commonwealth of Virginia, over any and all claims and any and all actions to enforce such claims or to recover damages or other relief in connection with such claims. Any claim by Customer against MapQuest must be initiated within one (1) year after it arose, or be barred.
    4. Survival. Any term or condition of this Agreement that by its nature would logically survive termination or expiration of this Agreement, including but not limited to licensing restrictions, protections of proprietary and confidential information, indemnifications, and limitations of liability, shall survive such termination or expiration.
    5. Independent Contractors. The parties to this Agreement are independent contractors.
    6. Notices.  Any notice, approval, or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered in person or, if to Customer, by email; (ii) one business day after deposit with a commercial overnight carrier, with written verification of receipt, or (iii) five business days after the mailing date, if sent by U.S. mail, return receipt requested, postage and charges prepaid. Each such notice shall be directed to the Party's address(es) set forth on this Agreement, or to such other address as a Party may designate in writing.  Notices to Customer may be transmitted through email to the email address most recently designated by Customer.  A copy of any notice sent to MapQuest shall be sent simultaneously to:  Deputy General Counsel, AOL Inc., 22000 AOL Way, Dulles, VA 20166.
    7. No Waiver. A failure or delay by either Party in enforcing any right or remedy under this Agreement shall not be construed as a waiver of such right or remedy or of any future exercise of such right or remedy.
    8. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements, understandings and communications with respect to such subject matter. Purchase orders may be issued for administrative convenience, but shall not modify or affect this Agreement.
    9. Amendment. No modification or amendment to this Agreement shall be effective unless in writing signed by both parties.
    10. Construction; Severability. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed, or if any such provision is held invalid by a court with jurisdiction over the Parties to this Agreement, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
    11. Equitable Remedies. Customer acknowledges and agrees that monetary damages may be insufficient to compensate MapQuest for an actual or anticipated breach of this Agreement by Customer.  MapQuest shall be entitled to seek equitable remedies, in addition to any other remedies available to MapQuest at law or hereunder.
    12. Counterparts; Electronic Signature. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document.  Delivery of an executed signature page to this Agreement by email or other electronic means shall be effective to the same extent as if the party had delivered a manually executed counterpart. Each Party acknowledges and agrees that this Agreement may be signed by either an actual physical signature or an electronic representation thereof, and that either form of signature shall have the same binding legal effect.
    13. Changes to this Agreement.  MapQuest reserves the right to make changes to the terms of this Agreement at any time. When these changes are made, MapQuest will make a new copy of this Agreement at https://developer.mapquest.com/legal (or such other URL as MapQuest may designate). Customer acknowledges and agrees that if it use the MapQuest Services after the date on which this Agreement has changed, MapQuest will treat Customer’s use as acceptance of the modified Agreement. If a modification is unacceptable to Customer, you cease using the MapQuest Services and cancel this Agreement as set forth in Section 7.   

 

DEFINITIONS SCHEDULE

Definitions.  The following capitalized terms are subject to the terms and conditions of the Agreement and shall have the meanings set forth below when used in this Agreement.

 

“Access Codes” means any ClientID(s) and Keycode(s) assigned to Customer to access the MapQuest Service.

“Acquiror” means any third party that acquires all or substantially all of the outstanding capital stock of a Party or a Third party that purchases all or substantially all of the assets and on-going business of a Party.

“Additional Service(s)” means additional services licensed by MapQuest to Customer on the cover page and which may be further described in an attached schedule.

“Affiliate” means an entity that, directly or indirectly, controls, is controlled by, or is under common control with MapQuest or Customer, as the case may be, including any entity (i) in which a Party holds at least a fifty percent (50%) equity interest or (ii) which holds at least a fifty percent (50%) equity interest in a Party.

“AOL Companies” means AOL Inc. (“AOL”) and any entity which AOL controls, is controlled by, or is under common control with AOL, as well as partners licensed to develop applications under the AOL or MapQuest brands.

“Approved Device” means a portable multifunction consumer device (MCD) that is capable of receiving and transmitting voice and/or data via a cellular network or internet  protocol or that may otherwise utilize one or more sensors, each of which is contained within the device. The primary function of such MCD may not be Map display, Routing or Turn-by-Turn Navigation. Approved Devices include, without limitation, mobile phone, smart phone, PC, laptop, tablet, game consoles, PDA and fitness products, but exclude personal PNDs and in-vehicle products.

“ClientID” or “AppKey” means the unique client identification code(s) provided to Customer by MapQuest necessary for access to the MapQuest Service.

“Confidential Information” means any information which is, or should be reasonably understood to be, confidential or proprietary to the disclosing Party, including, but not limited to, the terms of this Agreement, the MapQuest Service, any parts thereof, the Access Codes, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, projections and marketing data, and Documentation. 

“Coordinates” means the point of origin and/or point of destination data entered into fields on Customer’s Sites or provided by Customer in order to generate the Results of the MapQuest Service.

“Customer Content” means any materials or Data submitted to MapQuest by Customer, Customer’s Permitted Sublicensees or Customer’s End Users, including without limitation Data collected via the MapQuest Mobile Navigation SDK.

“Customer MapQuest Patent Claims" means any individual claims of any patents issued prior to or during the term of this Agreement throughout the world (i) based on any invention or discovery made or otherwise acquired by Customer or its Affiliates prior to or during the term of this Agreement or based on any patent application filed prior to or during the term of this Agreement, (ii) owned or controlled by Customer or its Affiliates prior to or during the term of this Agreement in the sense of having the right to transfer or grant licenses or sublicenses thereunder, and (iii) which are infringed, in whole or in part, in using, making, having made, offering for sale, selling, importing, reproducing, modifying, distributing, displaying, performing, providing or otherwise transferring MapQuest Products.  Notwithstanding the foregoing, the term "Customer MapQuest Patent Claims" does not include any patent claims related to the use of Mapping Data and Mapping Functionality by Customer as authorized by this Agreement.

“Customer’s Points of Interest” means business locations, facility locations or other locations owned, controlled or managed by Customer (or by any Permitted Sublicensee).

“Customer Results Page” means any World Wide Web or intranet pages (or any portion thereof), within any of Customer’s Site(s), on which the Results of the MapQuest Service are displayed.

“Customer Site(s)” means those web sites or applications, whether in an Internet, Intranet, wireless, mobile or Extranet environment, as identified by Customer.  In the event of a change, Customer shall update the Customer Sites by email to an address designated by MapQuest.

“Customer’s User Interface” means the graphical user interfaces developed (or caused to be developed) by Customer.

 “Data” means any text, graphics, audio, visual and or audio/visual material, applications, database content or other multimedia content, information and materials provided by MapQuest pursuant to this Agreement, including those relating to traffic, speed limits, road geometry and street names, routing attributes that enable turn-by-turn navigation on such road geometry, latitude and longitude of individual addresses and house number ranges, functional road classifications, speed category, road access restrictions and conditions, internal intersections links, maneuver, house number ranges and other map attributes.

“Data Traffic Competitors” means AirSage, Clear Channel, Navteq/Traffic.com, TomTom, TrafficCast, Trafficmaster, Westwood One/Smart Route Systems and Google, Microsoft, Yahoo (“Top Portals”) and the Top Portals’s successors-in-interest.

“Derivative Work” means any work which uses or is based upon the Data and/or a significant part of the Data, such as a revision, modification, translation, abridgment, condensation, expansion, collection, compilation or any other form in which the Data may be adapted, transformed, extracted or reutilized or upon which a service may be based.

“Documentation” means the published user guides and manuals to the MapQuest Service generally available as of the Effective Date, and as updated from time to time.

“Directions” means visual, and/or textual representation of a Route and/or Location.

“Driving Directions” means visual, audio and/or textual representation of a Route.   This includes any one or more of the following: (i) graphical point-to-point routes, which may in turn be represented on Maps; (ii) any text or data based point-to-point routes; (iii) drive times; (iv) driving distances; and (v) except for Customer’s Points of Interest, any data set forth or contained in any of the foregoing (each as MapQuest makes generally available and as generated by the MapQuest Service).  For purposes of clarification, each Map used to display a graphical point-to-point route or otherwise used or displayed in conjunction with a Driving Direction Transaction shall constitute a separate Map Transaction.

“Driving Directions Transaction” means the serving of any Driving Directions to Customer.

 “End User” means any entity or person who receives, uses a copy of or in any other way is granted access to the MapQuest Data, MapQuest Products, MapQuest Technology or the information contained therein for its own internal use.

“Excess Transaction” means any transactions that exceed an Included Transaction threshold.

 “Geocode(s)” means the latitude/longitude coordinates of a location.

“Geocoding” means using the MapQuest Service to assign latitude/longitude coordinates to an address or an address to a latitude/longitude coordinate.

“Geocoding Transaction” means the serving of any Geocode to Customer.

“Keycode” means Customer’s unique identifier used to access the MapQuest Service; a Keycode may include Customer’s ClientID(s), license expiration date and the License Functionality Customer has licensed.

 “Location” means a point such as a longitude/latitude coordinate used to represent a physical location.

“Map” or “Maps” means (except Customer’s Points of Interest) the visual rendering of geographic location(s), which may or may not display as an overlay the graphical depiction of a point, a point to point route(s) resulting from a Driving Direction Transaction or a polygon(s).

“MapQuest Access Method” means the proprietary set of access methods and application programming interfaces, provided either in object code form or via an http interface used in conjunction with the MapQuest Service.

“MapQuest Competitor” means any entity, site, service or provider offering one or more of the following: mapping, routing, driving directions, traffic alerts, and/or related content or services.  This specifically includes Google, Inc. and HERE (Nokia Location and Commerce Division).

“MapQuest Intellectual Property” means, without limitation, the MapQuest Technology, MapQuest Data,  Service Material, MapQuest Marks, Access Codes, MapQuest Access Method, Results of the MapQuest Service, and all other items and information provided by MapQuest pursuant to this Agreement, in and to which MapQuest expressly retains all right, title, and interest.

“MapQuest Marks” means trademarks and logos used by MapQuest and any other third party trademarks and logos included in the MapQuest Service.

“MapQuest Mobile Navigation SDK” means the software developer’s kit provided by MapQuest for integration into Customer applications.

“MapQuest Product" means any MapQuest related product, software or service provided by MapQuest to other MapQuest Customers that uses, incorporates or is read upon by any AOL Company’s intellectual property (including without limitation patents and works of authorship).  MapQuest products include, without limitation, the MapQuest Service and MapQuest Technology, the use of mapping applications on internet webpages, the billing of end users for such applications, and the other elements and components of MapQuest and the MapQuest system.  MapQuest Products do not include applications developed and used by Customer in accordance with this Agreement.

“MapQuest Service” means collectively the MapQuest Technology, Service Material, MapQuest Access Method and the Results of the MapQuest Service.

“MapQuest Technical Resource Center” means the MapQuest web pages provided to Customer for technical support, Service Material and other useful documentation.

“MapQuest Technology” means the software, MapQuest Access Method, raw data, protocols and other technology owned or licensed by MapQuest from third parties and made generally available for use with the MapQuest Service.

“Map Transaction” means each of (a) the initial serving of any Map, including each individual Map accompanying Driving Directions (each constituting a separate Map Transaction), (b) any alteration to the zoom level of a Map, or (c) any serving of a different Map Type for the same or different location.

“Map Type” means (a) Standard (static graphical) Maps; or the following Maps that have “drag and pan” capability, (b) Imaged Maps (aerial or satellite imagery), (c) Hybrid (an Imaged Map overlaying a Tiled Map), or (d) Tiled (graphical) Maps.

“Navigation” means the ability to follow a calculated Route based on the real-time graphic location of an asset, including the ability to re-Route when the asset deviates from the calculated Route.

“Open Source License” means any license applicable to software, data or any libraries or code which conforms with the definition published by the Open Source Initiative from time to time as set out under the following link http://www.opensource.org and which, include, without limitation, the following licenses: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Creative Commons Attribution-ShareAlike license (“CCL”); (e) the Open Database License (ODbL); and (f) the Apache License.

“Other MapQuest Customers” means any customers of MapQuest that have agreed to a covenant the same or substantially similar to the terms of the Non-Assert covenant set forth above and each of their Affiliates.

“Parties” means MapQuest and Customer.

“Permitted Subcontractor” means any independent contractor or consultant performing work on behalf of Customer relating to Customer’s permitted uses set forth in this Agreement, provided that (i) Customer and the independent contractor/consultant enter into a legally-binding agreement including non-use and non-disclosure provisions at least as restrictive as those set forth in this Agreement, (ii) the independent contractor/consultant agrees in writing to return any Service Materials to Customer no later than the termination of this Agreement and certifies to Customer that all of the MapQuest’s property have been removed from the independent contractor’s systems, and (iii) the independent contractor/consultant is not a MapQuest Competitor.

“Permitted Sublicensee” means a sublicensee of Customer that is authorized to use the MapQuest Service according the terms of this Agreement.

“Real-Time Navigation” means utilizing a geographic location sensor to determine location and provide contemporaneous turn-by-turn instructions as the End-User progresses down a route.

“Results of the MapQuest Service” means the output of the MapQuest Service (i.e. Maps, Driving Directions, etc.) that Customer receives when Customer generates a Transaction.

“Results Page” means a page or screen on which any Results of the MapQuest Service are displayed.

“Route” means a logical means of progression from one Location to another.

“Routing” means the calculation of a path between two (2) or more points, including the generation of that path (a highlighted polyline that can be shown on the map) and and/or textual directions.  This calculation can use the real-time geographic position of an asset as a starting point for a route but cannot allow for Navigation functionality.

“Search” means use of the MapQuest Access Method to connect to the MapQuest-hosted database of Customer’s Points of Interest, and to incorporate Customer’s Points of Interest with the Results of the MapQuest Service.

“Service Material” means templated web pages, graphics (i.e., clip art, navigation bars, etc.), sample code and related Documentation, furnished by MapQuest to Customer for the sole purpose of developing and maintaining Customer’s User Interface.

“Static Map” means an uneditable static display of a Map distributed or displayed by electronic means and where (i) such Map displays a geographic area no larger than reasonable for the intended purpose, and (ii) there is no zoom or pan functionality permitted. For avoidance of doubt, each instance of a Static Map posted online or otherwise distributed shall count as a separate Static Map for purposes of reporting and calculating Fees.

 “Traffic Data” means traffic related data sets that are owned by MapQuest and/or licensed by MapQuest from a third party data provider.

 

“Transaction” means each Map Transaction, Driving Direction Transaction, Geocoding Transaction or any other transaction generated by the MapQuest Service for Customer.

“Tracking” means determining the location and/or status of a mobile asset.

“Turn-by-Turn Navigation” means directions that step through each turn in a Route generating an itinerary.  Turn-by-Turn Navigation will allow for the delivery of an itinerary(s) for single, or multiple Route(s) through voice and/or audio prompting, Map Display and Directions.

“Upgrades” means all revisions and/or bug fixes to the MapQuest Service excluding discrete applications, new products and plug-ins that provide significantly different or additional functionality.

“User Interface” means the means by which the user and an Approved Device interact.

 

 

SUBLICENSING AUTHORIZATION SCHEDULE

The following provisions shall apply if Sublicensing is included in the Agreement:

1.   If Customer has the right to sublicense the Service Materials to allow third parties to create additional MapQuest Results Pages on additional World Wide Web pages or mobile applications on Approved Device(s) (each deemed an “Additional Site” with all such Additional Sites to be treated as Customer’s Sites for purposes of this Agreement) to provide access to the MapQuest Services, MapQuest grants to Customer the right to sublicense the licenses granted to Customer under the Agreement to a third party (“Permitted Sublicensee”) provided that the following conditions are met:

 

1.1 Permitted Sublicensees must agree to be bound by terms and conditions that are at least as restrictive this Agreement.

1.2 The term of any agreement between Customer and any Permitted Sublicensee for use of the Service Material shall be no longer than the term of this Agreement.  Permitted Sublicensees shall be advised that they must destroy all copies upon the termination expiration of this Agreement.

1.3 Permitted Sublicensee’s use of MapQuest Service shall count towards Customer’s Included Transactions, Excess Transactions and licensed Additional Services transactions.  If Customer’s and its Permitted Sublicensees exceed the number of Customer’s Included Transactions, Customer will be charged at the Excess Transaction rate without notice. All Additional Services Transactions will be billed at the rates listed.

1.4 Permitted Sublicensee’s use of the MapQuest Service shall be exclusively through use of Customer’s Access Codes or through the use of Access Codes that MapQuest may opt to issue to Customer for use by Permitted Sublicensees.  Permitted Sublicensees shall treat Access Codes as Confidential Information.

1.5 Permitted Sublicensees may not further sublicense, distribute, commercialize or otherwise make the MapQuest Service available on a commercial basis to any third party and any act or omission contrary to this provision shall be a material violation of this Agreement.

2.   The Service Material and access to the MapQuest Service will only be used by Permitted Sublicensees at Additional Site(s) expressly listed in this Agreement (and as may be amended from time to time as Permitted Sublicensees are added or removed).

3.   Customer shall (i) provide MapQuest with a written report that identifies each Permitted Sublicensee and (ii) update the list of Permitted Sublicensees on a regular basis (no less frequently than monthly) such that MapQuest is in possession of a current list of all Sublicensees throughout the Term.

4.   Customer shall promptly notify MapQuest in writing if Customer becomes aware of any violation by third parties, including Permitted Sublicensee(s) or of any misappropriation, unauthorized use or public disclosure of the Data, the MapQuest Product or the MapQuest Service.

5.   During the Term and for a period of not less than three (3) years after the Term, Customer shall maintain accurate records setting forth the name, address, and contact information for all Permitted Sublicensees, as well as the contract and contract duration for any such Permitted Sublicensee agreement, invoices, correspondence and all other pertinent records.

6.   If MapQuest determines that unauthorized third parties are accessing the MapQuest Service through Customer’s Access Codes, Customer shall be responsible for all charges incurred with such usage.

7.   MapQuest, Inc. and TomTom North America, Inc. shall each be a direct and intended third party beneficiary of any agreement between Customer and Permitted Sublicensee(s).

8.   MapQuest has the right to discontinue any Permitted Sublicensee’s access to the MapQuest Service at any time without notice or cause.

9.   Sublicensing is provided in consideration of Customer’s payment of the Sublicensing Fees and other Fees specified in the Agreement.

 

ASSET TRACKING SCHEDULE

 

The following provisions shall apply if Asset Tracking is included in the Agreement:

 

 

1.         Definitions.

Automatic Asset Location and Driving Direction Transaction” means any one or more of (i) text or voice driving directions from multiple points of origin constituting or representing sensor-generated Tracked Asset locations (e.g., GPS or triangulation) to multiple destinations directly or through one or more waypoints, (ii) the travel time or distance for any portion of such routes, and (iii) Maps or Driving Directions (which may include coordinate values for each origin, destination and waypoint, any of which values may be a latitude or longitude coordinate, to identify the Tracked Asset locations on the Maps or Driving Directions).     

Automatic Asset Location Transaction” means, with respect to the Tracked Assets of an end-user, a single raster image depicting multiple sensor-generated asset locations (e.g., GPS or triangulation) on a Map, and may also include coordinate values for each location, any of which values may be a latitude or longitude coordinate, to identify the Tracked Asset’s location on a Map or along a route displayed on a Map.

Real Time” shall mean the process of automatically finding or updating the current geographic location of a Tracked Asset via a sensor without end-user input.

Tracked Asset” means a specifically identified vehicle or other equipment or property for which Customer is authorized to perform Tracking Transactions.

Tracking Transaction” means an Automatic Asset Location Transaction or Automatic Asset Location and Driving Direction Transaction.

 

2.         Asset Tracking License Grant.  MapQuest hereby grants to Customer during the Term, a non-exclusive, non-transferable (without a right to sublicense unless otherwise provided for in the Agreement), limited right and license to perform Tracking Transactions for Tracked Assets solely in furtherance of Customer’s business operations.

 

3.         Reporting. At least monthly, Customer shall provide MapQuest with a listing of individual Tracked Assets capable of being tracked using the MapQuest Service at any time during the prior month, regardless of the duration of such tracking, and a suitable method of identifying such Tracked Asset (e.g., a VIN number). If Driving Directions capability is licensed, the report shall also specify which Tracked Assets are eligible for Driving Directions (determined on an Asset-by-Asset basis). This report does not need to be updated so long as the list of Tracked Assets and any Driving Directions capability associated with each Tracked Asset remain unchanged. If Customer exceeds the Baseline Tracked Asset Transaction Threshold or substitute one or more Tracked Assets for different Tracked Assets (which are hereby deemed additional Tracked Assets), or changes the Tracked Assets that are eligible for any Driving Directions capability, then Customer shall provide an updated report by the fifteenth (15th) day of the month following such occurrence.

 

4.         Asset Tracking Fees.  Asset Tracking is provided in consideration of Customer’s payment of the Asset Tracking Fees and other Fees specified in the Agreement.

 

MOBILE NAVIGATION SDK SCHEDULE

 

The following provisions shall apply if the MOBILE NAV SDK is used by Customer:

1.         Mobile Nav SDK License Grant. MapQuest hereby grants to Customer during the Term, a non-exclusive, non-transferable (without a right to sublicense unless otherwise provided for in the Agreement), limited right and license to integrate the Mobile Nav SDK into Customer’s mobile applications (“Customer Apps”) and to use the Mobile Nav SDK platform solely in furtherance of Customer’s business operations and solely in accordance with the terms of this Agreement, including this Schedule, and in accordance with the Documentation. The rights granted in this Section may not be exercised outside of the United States, and Customer will take affirmative steps to ensure that Customer Apps cannot be used outside of the United States

 

2.         Reporting. At the request of MapQuest, Customer shall provide MapQuest with a list of Customer Apps that integrate the Mobile Nav SDK.

 

3.         Ownership of Mobile Nav SDK Data; License.  MapQuest will own all Data End-Users via the Mobile Nav SDK (“Mobile Nav SDK Data”). MapQuest hereby grants to Customer a perpetual, worldwide, royalty-free license to reproduce, create derivative works based on, distribute and otherwise use the Mobile Nav SDK Data.

 

4.         Opt-in Consent.CUSTOMER MUST ENSURE THAT ALL END USERS PROVIDE OPT-IN CONSENT TO THE COLLECTION AND SHARING OF THEIR PRECISE LOCATION INFORMATION. CUSTOMER MUST ENSURE THAT THE OPT-IN NOTICE STATES EXPLICITLY THAT LOCATION INFORMATION AND OTHER PERSONAL INFORMATION MAY BE SHARED WITH THIRD PARTIES. IN ADDITION, CUSTOMER WILL INCLUDE A CONSPICUOUS MECHANISM THAT ENABLES END-USERS TO OPT-OUT OF COLLECTION AND SHARING OF PRECISE LOCATION INFORMATION. Personal Data Sourced from with the Territory of the European Union. Consistent with the European Union's General Data Protection Regulation ("GDPR"), done at Brussels on April 27, 2016, and which applies from May 25, 2018, Customer shall not collect personal data from within the territory of the European Union on or after May 25, 2018. MapQuest is furthermore not obligated, at any point on or after May 25, 2018, to furnish Customer with any data in any other form that comprises or includes personal data that was collected from within the territory of the European Union, regardless of its date of collection.

 

5.         Additional Representations and Warranties.  In addition to the representations and warranties set forth in Section 9 of the Agreement, Customer further represents and warrants that:

 

            (a)      It will comply with all Relevant Privacy Requirements. The term “Relevant Privacy Requirements” shall mean, for purposes of this Agreement, all (i) applicable self-regulatory policies, laws, governmental regulations and court or government agency orders, decrees and policies relating in any manner to the collection, use or dissemination of information from or about users (including with respect to Customer’s employees and/or contractors if employees and/or contractors are End-Users), user traffic or otherwise relating to privacy rights or with respect to the sending of marketing and advertising communications; (ii) any written agreements Customer may have with non-governmental certification or self-regulatory bodies; and (iii) Customer’s posted privacy policy. Any Customer Apps will contain a prominent link to the Customer privacy policy, which shall comply with all Relevant Privacy Requirements.

 

(b)       Customer has provided, and will provide, all required notices and has obtained, and will obtain, any and all consents or permissions necessary under Relevant Privacy Requirements, including, without limitation, all necessary and valid consents from individual End-Users to provide data to MapQuest and to authorize MapQuest’s use of such data as provided for herein.

 

(c)      Customer is in compliance with the Children’s Online Privacy Protection Act of 1998 (“COPPA”) and amendments thereto and shall (1) comply with COPPA; (2) designate to MapQuest all Customer Apps as having children’s or non-children’s content; (3) designate to MapQuest if any of the Customer Apps or Sites knowingly collect any personal information as defined by COPPA from children under the age of thirteen (13); and (4) promptly notify MapQuest in the event that any Customer Apps or Sites become covered by COPPA or if Customer’s policy on data collection, use or disclosure from children under the age of thirteen (13) changes.

 

(d)      Customer will require all of its Customer Apps that integrate the Mobile Nav SDK to clearly and conspicuously post notice to Customer’s End-Users, which notice shall: (i) describe the types of information collected by third parties; (ii) explain how, and for what purpose, data collected will be used or transferred to third parties; and (iii) provide a clear and conspicuous opt-out mechanism that allows an End-User to exercise choice to disallow the use of data in connection with interest-based advertising (an “Opt-Out Mechanism”). The relevant Opt-Out Mechanism should be provided in accordance with the Relevant Privacy Requirements.

 

(e)                   It acknowledges that MapQuest may, to the extent it deems appropriate, collect and compile certain information generated in connection with use of the Mobile Nav SDK. Without limiting the foregoing, MapQuest may use and disclose such information (i) for MapQuest’s business purposes that may be subsequently provided to MapQuest’s customers, potential customers and/or disclosed to the general public; (ii) if required by any court order, law, or governmental agency; and (iii) for other MapQuest business purposes.

 

6.         Additional Limitation on Liability.  In addition to the limitation on liability set forth in Section 11 of the Agreement, Customer acknowledges that MapQuest will have no liability for any claims relating to the use of any Customer Apps, including without limitation any claims from any End-Users that information was collected, shared or otherwise used in violation of any end End-User’s rights.

 

7.         Additional Indemnification Obligations. In addition to Customer’s indemnification obligations set forth in Section 10 of the Agreement, Customer shall indemnify, defend and hold harmless MapQuest and its Affiliates, and its and their officers, directors, employees and agent and employees from and against any Damages arising out of any Claim based in whole or in part upon (i) Customer’s breach or alleged breach of any of its representations or warranties or covenants set forth in this Schedule or (ii) the use of any Customer Apps, including without limitation any claims from any End-Users that information was collected, shared or otherwise used in violation of any end End-User’s rights.