EVALUATION AGREEMENT FOR THE PC*MILER WEB SERVICES API KEY
By executing this Evaluation Agreement (the “Agreement”), Trimble MAPS (“Trimble MAPS”) and You, as the Licensee (“Licensee”) agree to the following terms:
Grant of Limited License. Subject to the terms and conditions of this Agreement, Trimble MAPS hereby grants to Licensee a non-transferable, non-exclusive license under this Agreement to use the product(s) identified as the PC*MILER Web Services API key, together with applicable documentation provided to Licensee (“Evaluation Licensed Products”) for (a) the limited purpose of internal evaluation by Licensee of the commercial potential of the Evaluation Licensed Products, and (b) demonstration purposes provided that the demonstration copy of the Evaluation Licensed Products remains on Licensee’s hardware that is at all time in Licensee’s control and possession, is not installed on any other hardware and that the party receiving the demonstration does not obtain possession or control of any copy of the Evaluation Licensed Products. Licensee may provide the Evaluation Licensed Products to its independent contractors and consultants only for the purpose of such independent contractor or consultant performing work on behalf of Licensee relating to Licensee’s permitted uses set forth above, provided that (i) Licensee 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 all of the Evaluation Licensed Products to Licensee no later than the termination of this Agreement and certifies to Licensee that all of the Evaluation Licensed Products have been removed from the independent contractor’s systems, and (iii) the independent contractor/consultant is not a Competitor (“Permitted Consultants”). “Competitor” means any person or entity engaged in the business of developing, marketing or supporting products similar to the Evaluation Licensed Products. Licensee acknowledges that it is prohibited from reverse engineering the Evaluation Licensed Products, and that it is prohibited from distributing the Evaluation Licensed Products in any fashion other than as permitted by this Agreement or as required by law. In no event shall Licensee use the Evaluation Licensed Products for commercial or revenue generating purposes.
Should Licensee’s designated “Contact” party set forth above be a third party, Licensee represents and warrants that such third party is a Permitted Consultant.
2.1 Confidentiality and Protection of Evaluation Licensed Products. The Evaluation Licensed Products include confidential and proprietary information and materials. Accordingly, Licensee agrees to hold the Evaluation Licensed Products in confidence and trust. Licensee agrees to take reasonable steps to protect the Evaluation Licensed Products from misappropriation or misuse. Licensee agrees not to extract stand-alone data from or publish any part of the Evaluation Licensed Products without the prior written consent of Trimble MAPS. Licensee may disclose relevant aspects of the Evaluation Licensed Products to its employees, agents or representatives with a need to know for the purposes of the license granted in this Agreement and who are bound by confidentiality obligations at least as protective as this provision. Licensee acknowledges that the terms of this Agreement are confidential and it will not disclose such information to third parties. On all copies of any media containing the Evaluation Licensed Products or parts thereof, Licensee shall reproduce any copyright or proprietary rights notices contained on the original media and in the user manual(s). Licensee acknowledges that a breach by Licensee of its obligations under this Section or a breach of the license granted would cause Trimble MAPS irreparable harm and, in the event of such a breach or threatened breach, Trimble MAPS shall be entitled to injunctive and other appropriate equitable relief without posting bond or proving that damages would not be an adequate remedy.
Notwithstanding anything in this Agreement to the contrary, Licensee grants Trimble MAPS a royalty-free, worldwide, irrevocable, perpetual non-exclusive, sub licensable, worldwide license to use and incorporate into Trimble MAPS services and technology, make available to Trimble MAPS customers and commercially use any suggestions, enhancement requests, recommendations, or other feedback provided by Licensee, or Licensee representatives resulting from the use of Trimble MAPS products or services. Further, notwithstanding anything in this Agreement to the contrary Licensee gives Trimble MAPS the right to anonymize data provided to us by Licensee in connection with this Agreement; to aggregate the same with data from other sources; and to use such aggregated and anonymized data, as well as data regarding Licensee’s use of our products and services and summary or derivative information based thereon, for our analytical and other business purposes, provided that Licensee will not be identified as the source of such information.
2.2 Government Agency. If Licensee is a state, federal or other public entity (“Government”) located in the United States, Licensee agrees to protect the Evaluation Licensed Products from public disclosure. In the event that Licensee is required to disclose the Evaluation Licensed Products under any law or regulation that permits public access and/or reproduction or use of the Evaluation Licensed Products, Licensee shall notify Trimble MAPS in writing prior to such disclosure and if Trimble MAPS is unable to comply with such disclosure, this Agreement shall be automatically terminated and considered immediately null and void. Any software, documentation and/or data delivered hereunder is subject to the terms of this Agreement. Any computer software, data, database, documentation and/or technical data delivered hereunder to the Government, either directly under a prime contract, or indirectly through subcontract, is subject to the terms of this Agreement. In no event shall the Government acquire rights greater than LIMITED or RESTRICTED rights as described in DFARS 252.227-7014(a)(1) (JUN 1995) (DOD commercial computer software definition), DFARS 227.7202-1 (DOD policy on commercial computer software), FAR 52.227-19 (JUN 1987) (commercial computer software clause for civilian agencies), DFARS 252.227-7015 (NOV 1995) (DOD technical data – commercial items clause); FAR 52.227-14 Alternates I, II, and III (JUN 1987) (civilian agency technical data and noncommercial computer software clause); and/or FAR 12.211 and FAR 12.212 (commercial item acquisitions), as applicable. In case of conflict between any of the FAR and DFARS provisions listed herein and this Agreement, the construction that provides greater limitations on the Government’s rights shall control.
Return of the Evaluation Licensed Product. Promptly upon termination or expiration of this Agreement, Licensee shall return to Trimble MAPS, or destroy, all copies of the Evaluation Licensed Products and other materials developed by or belonging to Trimble MAPS which are in the possession or control of Licensee and an officer of Licensee shall certify in writing to Trimble MAPS that all such materials have been returned to Trimble MAPS or have been destroyed.
Fees and Payment. If Licensee does not execute a standard Trimble MAPS license agreement upon expiration or termination of this Agreement or does not promptly return the Evaluation Licensed Products in accordance with Section 3 above, Licensee shall pay to Trimble MAPS a license fee, in arrears, for the evaluation period in the amount of the then current published price. Payment of such fee shall in no way extend the term of this Agreement or relieve Licensee of its obligations to return or destroy the Evaluation Licensed Products in accordance with Section 3.
Title. The Evaluation Licensed Products are licensed and not sold. Title to the Evaluation Licensed Products including all intellectual property rights therein remains with Trimble MAPS and/or its third party providers and all rights not expressly granted herein are reserved. If the Evaluation Licensed Products or any portion are modified, merged, incorporated or combined into any software, hardware, or other data, or are converted or translated into another data format, they shall continue to be subject to the provisions of this Agreement, and Trimble MAPS and/or its licensors retain ownership of all such Evaluation Licensed Products and all such portions.
Relief. Licensee acknowledges that a breach by Licensee of its obligations under this Agreement would cause Trimble MAPS irreparable harm and, in the event Licensee breaches or threatens to breach its obligations under this Agreement, Trimble MAPS shall be entitled to injunctive and other appropriate equitable relief without posting bond or proving that damages would not be an adequate remedy.
Disclaimer. THE EVALUATION LICENSED PRODUCTS ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS BASIS” AND TRIMBLE MAPS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY TRIMBLE MAPS OR ANY OF ITS AGENTS, EMPLOYEES OR THIRD PARTY PROVIDERS SHALL CREATE A WARRANTY, AND LICENSEE IS NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION. THIS DISCLAIMER OF WARRANTIES IS AN ESSENTIAL CONDITION OF THE AGREEMENT. LICENSEE ACKNOWLEDGES THAT IT MAY BE RECEIVING A SAMPLE VERSION OF THE EVALUATION LICENSED PRODUCTS THAT IS PRELIMINARY IN BOTH FORMAT AND CONTENT, AND THAT SUCH EVALUATION LICENSED PRODUCTS MAY NOT BE USED AS A BASIS FOR A FINAL OR RELEASED PRODUCT, AND THAT TRIMBLE MAPS IS IN NO WAY OBLIGATED TO PRODUCE A FINAL OR RELEASED PRODUCT BASED ON SUCH SAMPLE.
Limitation of Liability. NEITHER TRIMBLE MAPS NOR ITS SUPPLIERS SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING LOST PROFITS OR COSTS OF COVER, LOSS OF USE OR BUSINESS INTERRUPTION OR THE LIKE, REGARDLESS OF WHETHER TRIMBLE MAPS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TRIMBLE MAPS IS NOT LIABLE FOR ANY DIRECT DAMAGES CAUSED BY YOUR USE OR INABILITY TO USE THE LICENSED PRODUCTS.
Indemnification by Licensee. Except with respect to the claims for defects solely attributable to the Evaluation Licensed Products, Licensee shall protect, defend, indemnify and hold Trimble MAPS harmless from any and all claims, demands, liabilities, obligations, damages, suits, judgments or settlements, including reasonable costs and attorneys’ fees, that arise from a breach of this Agreement by Licensee.
Term. This Agreement is for a limited period of ninety (90) days.
Miscellaneous. Nothing in this Agreement shall create a joint venture, partnership or principal-agent relationship between Trimble MAPS and Licensee. The law and venue of New Jersey shall govern this Agreement. Sections 2, 8, 9 and 11 shall survive the expiration or termination of this Agreement. This is the exclusive and complete Agreement between Trimble MAPS and Licensee regarding its subject matter. This Agreement may be amended, altered, or modified only by a writing executed by both parties. Licensee may not assign any part of this Agreement without Trimble MAPS’s prior written consent. Upon any attempt by Licensee to assign, transfer or convey all or any portion of this Agreement, this Agreement shall be immediately terminated. This Agreement shall terminate automatically, without notice, if Licensee breaches any of its obligations hereunder. Licensee acknowledges and understands that the Evaluation Licensed Products may be subject to restrictions on exportation and agrees to comply with any applicable export laws. In the event that any provision or part of a provision of this Agreement is determined to be invalid, illegal, or unenforceable, such provision or part thereof shall be stricken from this Agreement and the remainder of this Agreement shall be valid, legal, and enforceable to the maximum extent possible.
13.1 Licensee will not: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code (except to the extent such restriction is expressly prohibited by applicable law); (b) sublicense, transfer, or distribute any of the Services; (c) sell, resell, sublicense, transfer, or distribute the Services; or (d) access or use the Services: (i) for High Risk Activities; (ii) in a manner intended to avoid incurring Fees; (iii) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (iv) in a manner that breaches, or causes the breach of, Export Control Laws; or (v) to transmit, store, or process health information subject to United States HIPAA regulations.
13.2 Licensee may not:
13.2.1 use the Software and Services in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, or in any manner inconsistent with this Agreement.
13.2.2 use the Software and Services for the purposes of any automated vehicle control system, nor for any driver- assisted navigation system that presents individual turning maneuvers to end users synchronized with the end user’s position more precisely than one (1) mile or one (1) minute. Licensee understands that the Software and Services are not designed for such purposes and that its failure in such cases could lead to death, personal injury, or severe property or environmental damage for which Trimble MAPS is not responsible.
13.2.3 sell, lease, or sublicense the Software and Services or access thereto without Trimble MAPS’s prior, express, written permission.
13.2.4 use the Software and Services in a manner that exceeds reasonable request volume «Excessive Usage» or constitutes inefficient, excessive or abusive usage, defined as submitting, in any hour, requests that exceed 100 times the number of active assets.
13.2.5 If Licensee generates Excessive Usage, Trimble MAPS reserves the right to change the fees for future use of or limit access to the Software and Services in Trimble MAPS’s sole discretion. If Licensee anticipates generating a high volume of transactions, Licensee should contact Trimble MAPS for information on licensing the Software and Services to address Licensee’s needs.
13.2.6 use the Software and Services in a manner that automatically refreshes the end user’s screen more than once every 60 seconds.
13.2.7 extract and publish, or allow other users to extract and publish, any substantial percentage of the data contained in or produced by the Software and Services , not to exceed the percentage that would constitute “fair use” under copyright law, unless each recipient of such data is currently licensed for that data by Trimble MAPS.
13.2.8 cache routes produced or derived from the Software and Services, or fail to clear from memory within twenty-four (24) hours any cache of routes made in disregard of this requirement without specifically licensing such use from Trimble MAPS.
13.2.9 use the Software and Services to track vehicles or other mobile assets without specifically licensing for such use from Trimble MAPS.
13.2.10 use the Software and Services to display routes created by a commercial routing application created by an entity other than Trimble MAPS without specifically licensing such use from Trimble MAPS.
13.2.11 use routing produced or derived from the Software and Services with a commercial mapping application created by an entity other than Trimble MAPS without specifically licensing such use from Trimble MAPS.
13.2.12 display information produced or derived from the Software and Services without including attribution to “Trimble MAPS” and other copyright and proprietary rights notices of Trimble MAPS and its licensors, if any, on same screen display; or 13.2.13 use the Software and Services as part of an application that competes with the Software and Services.
13.2.14 cause any of the foregoing to occur.
13.3 As a licensed developer for the Software and Services, Licensee SHALL:
13.2.1 integrate the Software and Services with Licensee’s application.
13.2.2 conspicuously display Trimble MAPS’s copyright and trademark notices on all versions of Licensee’s application into which the Software and Services has been integrated.
13.2.3 This Agreement grants Licensee no right, title, or interest in any intellectual property owned or licensed by Trimble MAPS, including (but not limited to) the Software and Services and Trimble MAPS trademarks.
13.2.4 refer to Trimble MAPS any issues or problems reported by Licensee’s end users that concern the Software and Services , then work together with Trimble MAPS to analyze and resolve any issues reported by end users customers concerning the performance of the Software and Services with Licensee integrating application.
13.2.5 describe the functionality of Licensee’s integrating application to this Agreement, as applicable, which Licensee should amend by written notice to Trimble MAPS no later than thirty (30) days after releasing major changes any increase or other change in functionality, or in particular additional functionality added; in case Licensee makes changes to Licensee’s application which would make use of the Software and Services functionality outside of the Licensed features.
13.2.6 limit Licensee’s web-based integrating application to a single URL, which Licensee must register with Trimble MAPS.
13.2.7 receive unique development credentials for the Software and Services, which shall be used exclusively for internal development, testing and evaluation purposes only. These unique development credentials shall not be shared with third parties (including end users). Licensee shall receive unique production credentials for the Software and Services once properly licensed with Trimble MAPS for access to the Software and Services ; and
13.2.8 not act in a manner that prevents any of the foregoing obligations from taking effect
Specific API key restrictions Trimble MAPS reserves the right to change or substitute the API, or any of its Data or features included in the APIs at any point in time and to adjust or modify the content, graphics or images contained therein.
Trimble MAPS in its sole discretion sets and enforces limits on Licensee’s use of the APIs (e.g. limiting the number of API requests that Licensee may make). Licensee agrees to, and will not attempt to circumvent, such limitations. If Licensee desires to use any APIs beyond these limits or the license described herein, Licensee must obtain Trimble MAPS approval and consent. Trimble MAPS may decline such request for any reason or condition acceptance subject to additional terms and/or charges for that use. To seek such approval, Licensee must contact Trimble MAPS.