END USER – DATA LICENSE AGREEMENT (Worldwide Environmental Data) IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE DOWNLOADING/INSTALLING OR USING THE DATA This End User Data License Agreement (“Data License Agreement“) is a legal agreement between you (the “End User” or “you“) and Datair Technology Private Limited including its affiliates and subsidiaries (“Solution Provider” or “we”/”us”). The terms of this Data License Agreement are intended to govern the use of all environmental data, including but not limited to air quality, pollen, weather, soil, water vapor and fire data (the “Data”) which may be supplied by Solution Provider to you for use solely for the purpose of evaluating the Data licensed for the end application. Any commercial use of the Data shall be governed separately by a Service Agreement to be entered into between You and the Solution Provider. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS DATA LICENSE AGREEMENT, WE ARE UNWILLING TO PROVIDE THE DATA TO YOU AND YOU MUST NOT DOWNLOAD AND/OR INSTALL THE DATA/ACCESS THE APIS AND YOU WILL HAVE NO RIGHT TO ACCESS OR USE THE DATA. IF FOR ANY REASON YOU HAVE ALREADY DOWNLOADED OR INSTALLED THE DATA AND NO LONGER AGREE TO ALL THE TERMS OF THIS DATA LICENSE AGREEMENT YOU MUST CEASE YOUR ACCESS AND USE OF THE DATA IMMEDIATELY. BY USING THE DATA, YOU ARE AGREEING TO ALL OF THE TERMS OF THIS DATA LICENSE AGREEMENT. DEFINITIONS “Data” shall mean the Service Provider’s environmental data, including but not limited to Air Quality, Pollen, Weather, Fire, Soil, Water Vapour, or a combination thereof available to use on the Service Provider’s website at getambee.com or any websites affiliated with Datair Technology Private Limited.
“Data Supply Medium” means the format on or method by which the Data is supplied or made available to the End-User for use solely within and/or in conjunction with the licensed Solution.
“Intellectual Property Rights” means all intellectual and industrial property rights of Solution Provider or its licensors including, without limitation, patents, utility models, trademarks, service marks, design rights (whether registered or unregistered), copyrights, database rights, semiconductor topography rights, proprietary information rights, any other similar proprietary rights and all applications, extensions and renewals in relation to such rights as may exist anywhere in the world or be recognized in the future.
“Solution” means Solution Provider’s API’s or products licensed to End User, pursuant to the terms and conditions of the Solution Provider License Agreement.
“Solution Provider” means Datair Technology Private Limited including its affiliates and subsidiaries who are licensed by the source provider of the Data (or sub-licensed by another person that is licensed to do so) to obtain copies and updates of the Data to enhance its own Solutions for supply to the End-User or create their own data.
“Solutions Provider License Agreement” means the agreement between Solution Provider and EndUser applicable to End-Users’ licensed use of the Solution.
“Term” means the initial twelve (12) month license period following the initial delivery of the Data and any subsequent twelve-month renewal terms agreed between the Solutions Provider and the End-User for the licensing of the Data per the terms of the applicable Data Supply Order Form.
LICENSE. The End-User may only use the Data for the purpose of evaluation and trialing the data and not for resale unless otherwise expressly agreed to between the Parties on a non-exclusive, non-transferable, revocable basis, for the applicable annual subscription Term (unless terminated earlier), in accordance with the terms of this Data License Agreement or the Service Agreement and applicable forms.
1. LIMITS ON USE OF THE DATA
1.1 End-User shall use the Data for its own internal use only. Except as is expressly permitted by the terms of this Data License Agreement or the Service Agreement, the End-User shall not:
1.1.1 use any of the Data to create its own products or services or to provideor offer to any third party;
1.1.2 copy or reproduce, extract, publish or reutilize the whole or any part of the Data other than expressly permitted herein;
1.1.3 transfer, sell, license, disseminate or in any way part with possession of the whole or any part of the Data to any third party.
1.1.4 use the Data to provide services for any third party nor use the Data in a service bureau or time-sharing capacity without the express prior written consent of Solution Provider.
1.2 End-User may not mix, combine or commingle the Data with geographic roadmap data from direct competitors of Service Provider (i.e., companies in the primary business of building environmental data, specifically air quality, pollen, fire, water vapour and soil data).
1.3 For purposes of clarity, and without limiting anything contained in this Section 3, the Data may not be used for web-crawling, search engines such as a yellow pages product or consumer-based websites without the prior approval of the Service Provider.
1.4 Except where you have been specifically licensed to do so by Solution Provider, and without limiting the terms set forth in this Section 3, you may not (a) use this Data with any products, systems, or applications installed or otherwise connected to or in communication with vehicles, capable of vehicle navigation, positioning, dispatch, real time route guidance, fleet management or similar applications; or (b)with or in communication with any positioning devices or any mobile or wireless-connected electronic or computer devices, including without limitation cellular phones, palmtop and handheld computers, pagers, and personal digital assistants or PDAs. Should you do so, you agree to be bound by the terms of the General Data Protection Regulation 2016/679 of the European Union.
2. PROPERTY RIGHTS IN THE DATA/COPYRIGHT NOTICES.
2.1 The Data is provided for your personal, internal use only and not for resale as is. You may be allowed to use the data as a part of a product after agreeing to pay for the data and after providing attributions. The Data and all Intellectual Property Rights subsisting in and/or relating to the Data from time to time are and shall remain the property of the Solution Provider. The End-User shall acquire no rights in the Data or any Intellectual Property Rights in and to such Data except those limited rights expressly provided in this Data License Agreement. This Data License Agreement shall not operate as an assignment by Solutions Provider of any Intellectual Property Right that may subsist in or relate to the Data.
2.1.1End-User shall not remove or tamper with any Intellectual Property Rights notice attached or used in relation to the Data.
2.1.2This Data License Agreement does not grant to the End-User any right to use any of the trademarks, service marks, business names or logos of Solution Provider or unless otherwise agreed to in writing.
2.1.3The provisions of this Section 4 shall continue to operate after the termination of this Data License Agreement.
3. WARNING/WARRANTY DISCLAIMERS/LIABILITY:
3.1 Warning. The Data may contain inaccurate or incomplete information due to the passage of time, changing circumstances, sources used and the nature of collecting comprehensive geographic data, anyof which may lead to incorrect results.
3.2 ALL DATA IS PROVIDED TO YOU ON AN “AS IS” AND “WITH ALL FAULTS BASIS” AND SOLUTION PROVIDER AND SOLUTION PROVIDER’S LICENSORS (AND THEIR LICENSORS) EXPRESSLY DISCLAIM ALL 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 THE SOLUTION PROVIDER OR ANY OFITS LICENSORS, AGENTS, EMPLOYEES OR THIRD PARTY PROVIDERS SHALL CREATE A WARRANTY, AND END-USER IS NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION. THIS DISCLAIMER OF WARRANTIES IS AN ESSENTIAL CONDITION OF THE AGREEMENT. SOLUTION PROVIDER AND SOLUTION PROVIDER’S LICENSORS (INCLUDING THEIR LICENSORS AND SUPPLIERS) SHALL NOT BE LIABLE TO YOU: IN RESPECT OF ANY CLAIM, DEMAND OR ACTION, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND OR ACTION ALLEGING ANY LOSS, INJURY OR DAMAGES, DIRECT OR INDIRECT, WHICH MAY RESULT FROM THE USE OR POSSESSION OF THE DATA; OR FOR ANY LOSS OF PROFIT, REVENUE, CONTRACTS OR SAVINGS, OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE DATA, ANY DEFECT IN THE INFORMATION, OR THE BREACH OF THESE TERMS OR CONDITIONS, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF OLUTION PROVIDER OR SOLUTION PROVIDER’S LICENSORS (AND THEIR LICENSORS AND SUPPLIERS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some States, Territories, and Countries do not allow certain liability exclusions or damages limitations, so to that extent, the above may not apply to you.
4. EXPORT COMPLIANCE. End-User hereby represents and warrants that it will comply with the requirements of all applicable domestic and international export laws and regulations, including but not limited to the U.S. Export Administration Regulations with respect to the use, handling, and physical transfer of the Data, which shall at all times also be pursuant to the terms of this Data License Agreement and the Solution Provider License Agreement. This provision shall survive any termination or expiration of this Agreement.
5. GOVERNMENT END-USER RESTRICTED RIGHTS. If the Data is being acquired by or on behalf of the United States government or any other entity seeking or applying rights similar to those customarily claimed by the United States government, the Data is a “commercial item” as that term is defined at 48 C.F.R. (“FAR”) 2.101, is licensed in accordance with these End-User Terms, and each copy of Data delivered or otherwise furnished shall be marked and embedded as appropriate with the following “Notice of Use,” and shall be treated in accordance with such Notice. If End User 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 end User hereby agrees to protect the Data from public disclosure and to consider the Data 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 Data. In the event that such exemption is challenged under any such laws, this Data License Agreement shall be considered breached, and any and all right to retain any copies or to use of the Data shall be terminated and considered immediately null and void. Any copies of the Data held by the End User 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 Data shall immediately be destroyed by End User. For purpose of any public disclosure provision under any federal, state, or local law, it is agreed that the Data are a trade secret and a proprietary commercial product and not subject to disclosure.
6.1 End-User shall keep a complete and accurate audit trail of all financial and non-financial transactions(including but not limited to records required to be provided as set forth in 6.3 below) relating to this DataLicense Agreement and shall retain the same for a period of five (5) years. End-User shall grant the Solutions Provider and/or its applicable licensors and/or their agents reasonable accompanied access upon reasonable prior notice, during working hours, to its premises, accounts and records, and computer systems relevant to this Data License Agreement for the purposes of verifying and monitoring the End-User’s compliance with its obligations under this Data License Agreement (the “Audit”) and shall provide all reasonable cooperation and assistance in relation to the Audit. Solution Provider and/or its licensors shall not carry out an Audit more than once in any twelve (12) month period except where it reasonably suspects that the End-User has failed to comply with any of its obligations under this Data License Agreement.
6.2 End-User shall comply with all laws and regulations applicable to its use of the Data.
6.3 Upon request, End-User shall provide Solutions Provider with an accurate count of records and/or transactions processed, number of users, and/or types of usage of the Data provided pursuant to this DataLicense Agreement and the Solution Providers License Agreement.
7 INDEMNIFICATION. End-User will indemnify, defend and hold harmless Solution Provider and the applicable Solution Provider Licensor and their respective affiliates, licensors, and suppliers from and against all costs, expenses, damages, losses, or liabilities, including reasonable legal fees for claims arising out of or relating to End-User’s breach of any of the terms of this Data License Agreement.
8.1 The parties may terminate this Data License Agreement at any time where they mutually agree to do so. The parties agree that they will evidence such termination in writing and ensure that same is signed by an authorized signatory of each party.
8.2 This Data License Agreement may be terminated by Solution Provider by written notice to the End User upon the occurrence of any of the following: a. End-User is in breach of any of the terms contained in this Data License Agreement, and where the breach is remediable further fails to remedy the position within twenty (20) working days of the date of written notification from Solutions Provider of such breach; b. End-User is unable to pay its debts as they fall due or otherwise becomes insolvent, or if a receiver or an administrative receiver is appointed over any or all of the assets of EndUser, or if any arrangement, compromise, or composition of End-User’s debts is proposed or made by End-User, or if End-User enters or is entered into any proceedings for administration or liquidation or otherwise becomes subject to dissolution proceedings, or if any analogous event occurs in any other jurisdiction in which End-User carries out its business; c. expiration or earlier termination of the Solution Provider License Agreement or Term applicable to theData licensed to End User under the Data Supply Order Form, or d. expiration or termination of the agreement between Solution Provider and its licensor for the subject Data. e. Upon expiration or termination of this Data License Agreement, End User shall (i) return to Solutions Provider all copies of the Licensed Data and all supporting documentation supplied to it; or permanently delete or destroy all copies of the Licensed Data and all supporting documentation supplied to it, which, in each case, it is reasonably able to destroy or delete, and confirm in writing to the Solutions Provider that this has been done.
8.3 Termination of this Data License Agreement shall not prejudice or affect the right of Solution Provider to recover from End User the amount of any fees outstanding at the date of termination nor any other right whatsoever of either party which may have accrued at that date or which may accrue thereafter.
9 GOVERNING LAW. This Data License Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of India, without giving effect to (i) its conflict of laws provisions, or (ii) the United Nations Convention for Contracts for the International Sale of Goods, which is explicitly excluded. You agree to submit to the jurisdiction of the courts in Bangalore, India for any and all disputes, claims, and actions arising from or in connection with the Data provided to you hereunder.
10 MISCELLANEOUS. Except as expressly provided herein, this Data License Agreement constitutes the entire agreement between the parties with respect to the Data and supersedes all prior oral or written proposals, representation, warranties, and agreements. This Data License Agreement may not be altered except by a written amendment signed by authorized representatives of Solution Provider and End-User. Should any provision of this Data License Agreement be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions shall remain in full force and effect. End-User shall not assign any of its rights or obligations under this Data License Agreement or otherwise transfer this Data License Agreement or any part of it (including any License) without the prior written consent of Solutions Provider.