Mapillary Terms of Use - Commercial Use Supplement

This Commercial Use Supplement (the "Supplement") modifies, supplements and is made a part of the Mapillary Terms of Use at https://www.mapillary.com/terms ("Mapillary Terms of Use"), and is made effective on the date set forth in the Order Form (as that term is defined below) ("Effective Date"), by and between Mapillary AB, organized under the laws of Sweden with a principal place of business at Anckargripsgatan 3, 21119 Malmö, Sweden, and the person or entity set forth in the Order Form ("Customer"). Except as expressly amended herein, the Mapillary Terms of Use will remain unaltered and in full force and effect. In the event of any conflict or inconsistency between the Mapillary Terms of Use and this Supplement, this Supplement will control. Capitalized terms not defined in this Supplement will have the same meaning as the identical capitalized terms in the Mapillary Terms of Use, unless otherwise stated. For all purposes of the Mapillary Terms of Use, the term "you" and "your" as defined in the Mapillary Terms of Use includes Customer, and the term "Terms" as defined in the Mapillary Terms of Use includes this Supplement.

Customer desires to make Commercial Use of the Mapillary Solution, and Mapillary is willing to permit such Commercial Use pursuant to and in accordance with the Agreement.

ADDITIONAL DEFINED TERMS

"Agreement": the Terms (including this Supplement) and the Order Form.

"Ancillary Services": the integration, professional, support and/or maintenance services Mapillary may perform pursuant to and as specified in the Order Form, if any, including provision of Services Deliverables.

"Covered Content": the specific Content described in the Order Form.

"Order Form": the ordering document (as may be amended), signed by Customer and Mapillary, setting forth the Commercial Use subscriptions Customer purchases, a description of the Product, terms regarding Ancillary Services, if any, and other associated terms and conditions.

"Product": the Customer product, service, website, application, software, dataset, solution, or technology as set out in the Order Form, the associated or related intellectual property rights of which are owned and controlled exclusively by Customer.

"Services Deliverables": deliverables, software, materials, data, information or content provided to Customer in connection with use of the Mapillary Solution, or developed as part of the Ancillary Services, and all associated intellectual property rights.

"Service Level Agreement" or "SLA": the service level agreement set forth in section 3.0 below.

1.0 COMMERCIAL USE SUBSCRIPTIONS

1.1 Availability. Subject to Customer's compliance with these Terms, including payment obligations, Mapillary will upon the Effective Date make available a Commercial Use subscription to the Mapillary Solution and Covered Content pursuant to and in accordance with this Agreement during the term of Customer's subscription, as set forth in the Order Form. Customer's signature of the Order Form constitutes Customer's agreement and assent to all terms and conditions of the Agreement. Customer may use the Mapillary Solution and Covered Content exclusively for and in conjunction with the Product and no other product, service, website, application, software, dataset, solution or technology. Customer acknowledges that Customer's use of the Mapillary Solution is not reliant or dependent on the availability of any future functionality or features or on any oral or written public or private comments or representations made by Mapillary.

1.2 Commercial Use Subscriptions. Customer's access rights and permitted activity under a Commercial Use subscription may include either Internal Product Use or External Product Use:

Internal Product Use: use of the Mapillary Solution and Covered Content solely for the purpose of improving internal Products in the service of Customer's internal business or operations, so long as such Products are not sold, licensed, or made available to any third party in whole or in part.

External Product Use: (i) Internal Product Use; and (ii) use of the Mapillary Solution and Covered Content solely for the purpose of improving publicly available Products, including the creation and commercialization of Products derived from or incorporating Covered Content, so long as such Products are sold, licensed, or made available exclusively by Customer under brands owned by Customer and not any third party.

1.3 Outbound License. Subject to Customer's compliance with the Agreement, the license granted by Mapillary to Customer in section 1.1 of the Mapillary Terms of Use under the Outbound Terms with respect to the Covered Content is perpetual (terminable by operation of section 5.2 below) and non-transferable. For clarity, Customer acknowledges that Customer may make Commercial Use of Content or the Mapillary Solution only pursuant to a Commercial Use subscription subject to this Supplement.

1.4 Views. If a maximum number of views is set forth in the Order Form, Customer's use of the Mapillary Solution will not exceed such view cap.

1.5 Downtime. Mapillary will use commercially reasonable efforts to make the Mapillary Solution available during the subscription term 24 hours a day, 7 days a week, except for "Excused Downtime", defined as: (a) planned downtime (with reasonable advance notice (typically at least eight hours) and, to extent practicable, during the weekend hours); and (b) any unavailability caused by circumstances beyond Mapillary's reasonable control. Regardless of the foregoing, any downtime is subject to the remedies of the SLA, which are available only if Customer is entitled to the SLA as set forth in the Order Form.

1.6 Consent to Emails. Customer consents to receive email messages from Mapillary, which may be transactional, for account management purposes, or for communications relating to or provided as part of the Mapillary Solution, including notifications related to subscriptions, Ancillary Services, administrative notices and service announcements or changes.

1.7 Information. Without limiting the generality of section 1.3 of the Mapillary Terms of Use, Customer acknowledges and agrees to the collection, storage, processing, implementation, and use by or for Mapillary of anonymized data (including Metadata, analytical, diagnostic and technical data, and usage statistics), concerning or arising from Content and Customer's and all users' use of the Mapillary Solution (collectively, "Data"), in whole or in part, for Mapillary's own commercial and non-commercial purposes, including: (a) in order to provide, maintain and improve the Mapillary Solution and Content, (b) for product development and marketing purposes, and (c) for verifying Terms compliance.

1.8 Attribution. In a manner reasonably satisfactory to Mapillary, Customer will cause to be conspicuously displayed on the Product and associate Product online and offline materials: (a) a notice that the Product is using Mapillary Solution and (b) a link to mapillary.com.

1.9 Covered Content and Services Deliverables. Customer acknowledges that Covered Content and Services Deliverables constitutes Mapillary's confidential and proprietary information. Customer will protect the confidentiality of and not disclose Covered Content or Services Deliverables to any third party, other than Customer's employees and contractors performing services exclusively for Customer in the development of Customer's Products. Customer will protect the confidentiality of the Covered Content and Services Deliverables with the same degree of care, but no less than reasonable care, as Customer uses to protect its own confidential information of like nature.[SH1]

1.10 Agreement Modifications. Mapillary may propose changes to the Agreement from time to time, and will notify Customer as provided by section 4.6 of the Mapillary Terms of Use. If Customer objects to the changes, Customer will notify Mapillary within thirty days after receiving notice of the changes. If Customer notifies Mapillary as specified in this section, the proposed changes to the Agreement will not come into effect until such time as Customer's current subscription to the Mapillary Solution is renewed after its expiration; otherwise such changes will come into effect upon the effective date of such changes.

2.0 ANCILLARY SERVICES

2.1 Description. Subject to Customer's compliance with these Terms, including payment obligations, Mapillary may provide the Ancillary Services if and as set out in the Order Form. Such Ancillary Services may include the following support and maintenance services if and as set forth in the Order Form, and only for so long as a Commercial Use subscription is in place: 2.2 Services Deliverables. Mapillary retains all right, title and interest in and to the Mapillary Solution and any Services Deliverables. Subject to Customer's compliance with the Agreement, Mapillary grants to Customer, for as long Customer's subscription to the Mapillary Solution is in effect, a non-exclusive, non-transferable, worldwide license to use such Services Deliverables solely for Customer's internal operations in connection with authorized use of the Mapillary Solution. The licenses set forth in this section are the only licenses granted with respect to the Services Deliverables or associated intellectual property rights.

2.3 Mapillary Terms of Use. Solely for purposes of sections 5.0 and 6.0 of the Mapillary Terms of Use, the term "Mapillary Solution" as used in such sections includes the Ancillary Services and the Services Deliverables.

3.0 SERVICE LEVEL AGREEMENT

3.1 Service Level Agreement. This section 3.0: (a) states Customer's sole and exclusive remedy and Mapillary's sole liability obligation in the event of any delay, error, fault, failure or unavailability of the Mapillary Solution for any reason; (b) applies only if the Mapillary Solution is subject to extended downtime per section 3.2 and 3.5; and (c) applies only if the Order Form specifies that this section applies.

3.2 Warranty. Subject to section 3.5, Mapillary warrants that the Mapillary Solution will achieve uptime equal to or better than 99.8% per month (or 86 minutes or less of downtime per month).

3.3 Remedy. As Customer's sole and exclusive remedy, and Mapillary's entire liability, for failure to comply with the uptime warranty of section 3.2, Mapillary will issue to Customer "Service Credits", defined as a monetary credit, as set out in the table in section 3.6 below, against subscription fees due for the next full period following the period in which warranty non-compliance occurred. Service Credits will be granted upon calculation of unscheduled downtime. Downtime will begin to accrue as soon as Mapillary confirms such downtime, and continues until availability is restored. Service Credits are not transferable and may be redeemed only against future payments otherwise due to Mapillary.

3.4 Process. Customer will notify Mapillary within thirty days from the time Customer becomes eligible to receive a Service Credit. Each Service Credit claim must be submitted by email to admin@mapillary.com. Such notification must include the dates and times of alleged unavailability, including request logs that corroborate the claimed outage. Mapillary will endeavor to review and resolve all claims within ten business days of receipt.

3.5 Exclusions. Customer's entitlement to Service Credits does not apply, and Mapillary will have no liability, in the following circumstances: (a) downtime caused by the performance of internet services, networks or traffic exchange or control points controlled by entities other than Mapillary, or caused by network latency; (b) downtime caused by any acts, omissions, connections or equipment of Customer or any user; (c) where the Mapillary Solution becomes unavailable as a result of circumstances or causes beyond Mapillary's reasonable control, including any force majeure event; (d) suspension or termination of the Mapillary Solution or Customer's account as permitted in the Agreement; (e) suspension or termination of the Mapillary Solution or Customer's account for emergency reasons, as required by law or any governmental authority or agency, or as needed in order to prevent or ameliorate violations or infringements of third party rights or applicable law; or (f) Excused Downtime (as defined in section 1.5).

3.6 Service Credits.

Monthly Uptime Percentage Credit
=>99.8% None
99.7% to 97.0% 5% of the next periodic subscription fee
96.9% to 95.0% 10% of the next periodic subscription fee
94.9% to 92.0% 20% of the next periodic subscription fee
< 91.9% 30% of the next periodic subscription fee

4.0 PAYMENT

4.1 Subscriptions; Pro-Ration. Customer will pay to Mapillary the fees listed, on the dates specified, in the Order Form. Unless otherwise specified in the Order From, subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereafter.

4.2 Orders. All payments are non-refundable (except as may otherwise be specified in this Agreement). Payments will be made via the method designated by Mapillary. If Customer is delinquent in the payment of any invoice for a period of more than ten business days, Mapillary may at its option accelerate unpaid fee obligations so that all payments are immediately due and payable under the subscription, and suspend access to the Mapillary Solution and the Ancillary Services until such accelerated payments and all overdue payments (including interest) are made in full. Notwithstanding any other provision of this Agreement, including section 6.9 of the Mapillary Terms of Use, nothing herein will be deemed to preclude Mapillary from filing a fees and expenses collection action at any time in any court of competent jurisdiction (and Mapillary's right to do so is not arbitrable). Payments to Mapillary will be made without deduction, counterclaim or set-off of any kind. Any payments that are not timely paid as provided hereunder will, at Mapillary's option, bear interest at the rate of the lower of (a) ten percent per annum; or (b) the highest rate permitted by applicable law.

4.3 Audit Rights. Mapillary may at any time during a subscription period and for three years after date of termination of the last subscription Customer purchased, audit Customer's business and operations to confirm compliance with the obligations of the Agreement, upon five business days prior written notice, using an accounting firm of Mapillary's choice (the "Auditor"). The Auditor will perform the audit in such a manner so as to minimize disruption to Customer's business operations. Except as set forth in this section, Mapillary will bear all costs and expenses associated with the audit. If any underpayment has occurred, such errors will be corrected by appropriate adjustment in payment for the period during which the error is discovered, and Customer will pay the deficiency within thirty days of Mapillary's invoice. If the Auditor determines that an underpayment of more than three percent of the proper amount owed has occurred, Customer will in addition reimburse the expenses associated with any audit performed per this section. The provisions of this section are in addition to any other remedies available under the Agreement or applicable law.

4.4 Taxes. Customer will bear and be responsible for the payment of all taxes, including all sales, use, value-added, rental receipt, personal property and other taxes and their equivalents which may be levied or assessed in connection with the Agreement or provision of the Mapillary Solution and Ancillary Services (excluding only taxes based on Mapillary's net income). If Mapillary is required to pay or collect any such taxes or other charges for which Customer is responsible under this section, the appropriate amount will be invoiced to and paid by Customer. To the extent Customer is required by local law to withhold or deduct taxes based upon Mapillary's income from any payment(s) owed hereunder, such payment(s) will be increased (grossed up) in such amounts as would have been received by Mapillary as if no such withholding or deduction were required.

5.0 TERM & TERMINATION

5.1 Term. Access to the Commercial Use subscription commences upon the date set forth in the Order Form and will continue in effect for the term specified in the Order Form. Except as otherwise set forth in the applicable Order Form, all subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year, whichever is shorter, unless either party gives the other written notice of non-renewal at least thirty days before the end of the current subscription term. The pricing during any such renewal term will be the greater of Customer's then current price or the Mapillary Solution standard price in effect as of the effective date of renewal.

5.2 Termination. Notwithstanding sections 6.2 and 6.3 of the Mapillary Terms of Use, Customer's subscription will be terminable as follows: (a) if a party breaches a remediable material term or condition of this Agreement and fails to cure such breach within thirty days following written notice of breach from the other party; (b) if a party commits a material non-remediable breach of this Agreement, or a successive material breach that was the subject of a prior notice under this section 5.2(a); and (c) upon breach by Customer of sections 1.1, 1.2, 1.3, 1.4, or 1.9 of this Supplement, or 2.1, 2.3, 4.1, 4.2, or 4.3 of the Mapillary Terms of Use. Mapillary may terminate a subscription immediately upon written notice if Customer's manner of using the Mapillary Solution or Covered Content exceeds normal and reasonable usage, and such excessive or detrimental use has not been corrected by within one business day of Mapillary's written notice to Customer. Mapillary may additionally terminate a subscription upon written notice to Customer if either party (d) becomes the subject of a legal proceeding under a law relating to insolvency or bankruptcy; (e) has property that becomes under the control of a custodian or equivalent under applicable law, or is assigned for the benefit of creditors; (f) generally fails to pay debts as they become due or acknowledges in writing an inability to do so; or (g) has ceased carrying on business in the ordinary course.

5.3 Effect. Upon termination for cause, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. Termination will not relieve Customer of the obligation to pay fees payable to Mapillary. Rightful and lawful termination, or expiration under the terms hereof, will not give rise to the right for the non-terminating party, or to either party in the case of expiration, to recover damages or to indemnification of any nature. The rights of either party under this section 5 are in addition to any other rights and remedies permitted by law or under the Agreement. Breach of the Agreement may result in pursuit of all available remedies for intellectual property rights (including copyright infringement), the availability of which Customer hereby acknowledges.

5.4 Survival. Access to and rights of use (including Commercial Use) associated with the Mapillary Solution and Content will terminate upon termination of any subscription for any reason, and Customer will cease all use of the Mapillary Solution.

(end of Supplement)