Terms and conditions
READ CAREFULLY THESE GENERAL TERMS AND CONDITIONS (the “GTC”) BETWEEN JAWG (“JAWG”) AND THE COMPANY AS IDENTIFIED IN THE PURCHASE ORDER (“CLIENT”) BEFORE SIGNING ANY PURCHASE ORDER FOR JAWGMAPS SERVICES. BY ENTERING INTO ANY PURCHASE ORDER HEREUNDER, CLIENT AGREES THAT IT HAS RECEIVED FROM JAWG ANY INFORMATION TO BE BOUND BY THESE GTC. TO BE VALID, ANY PURCHASE ORDER MUST BE AGREED TO AND SIGNED BY BOTH PARTIES. THE PURCHASE ORDER AND THE GTC ARE HEREINAFTER REFERRED TO AS THE “AGREEMENT”. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT, IN WHICH CASE "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY.
1 - Definitions
The following terms, wherever used herein, have the meanings set forth below, irrespective of whether they are in the singular of in the plural:
Administrator: the User with an administrator role within Client’s organization, designated by Client to manage Connection Data, whose identity and contact details are defined in the Purchase Order. Agreement: by decreasing order of priority, the applicable Purchase Order which accompanies and incorporates these GTC.
Amendment: any change to the Agreement in accordance with the terms of the Agreement. Application(s): Client’s software and/or mobile application(s) with which the Solution may be used under the Agreement.
Authorized Number of Map Views and/or Static Maps and/or Geocodes and/or Routing: the number of Map Views and/or Static Maps and/or Geocodes and/or Routing per month, for which Client has subscribed to the Services and - depending on the type of the Commercial Subscription - has paid the corresponding fee; the initial Authorized Number of Map Views and/or Static Maps and/or Geocodes and/or Routing at the Effective Date being defined in the Purchase Order.
Business Days: from Monday to Friday, excluding French public holidays.
Client, You or Your: the company or entity named on the Purchase Order.
Commercial Subscription: the type of paying subscription to the Services selected by Client within the Scope and throughout the Term, in accordance with the Agreement.
Confidential Information: all non-public information (in particular the Solution’s source code), and/or data of any nature (including personal data), under any form (notably orally) and any media, which is communicated, viewed, or accessed by a Party to the other Party or which is brought to the other Party’s knowledge. The existence and the execution of the Agreement shall be deemed Confidential Information under the Agreement. Confidential Information does not include: (i) any information held by the receiving Party before the date of communication thereof, as shown in a valid way by the receiving Party, notably that such information has been communicated to the latter by a third party, in a lawful way and in good faith and not subject to any restrictions on disclosure; (ii) any information which has come into the public domain at the time of its communication or since its communication, without any breach of its non-disclosure obligations by the receiving Party; (iii) any information which is developed independently by the receiving Party, provided that the latter proves that it has not accessed, used or made reference to any Confidential Information as part of the development of such information; (iv) any information which is disclosed pursuant to judicial order or lawful requirement of governmental agency or by operation of law; provided that the disclosing party is provided reasonable notice so that it can object to or seek to limit the disclosure of its Confidential Information and/or (v) the open source code, used by JAWG within the framework of the Services, for which the publication is mandatory.
Connection Data: each User’s login/password and access key, which enable the access to the Services.
Data: any data, assets, information or material processed by Client in the course of using the Services.
Documentation: the English version of the electronic written material (if any) - as updated from time to time - made available to Client under the Agreement, which includes the main processes and guidelines to facilitate the use of the Services.
Effective Date: the date defined in the Purchase Order.
Environment: the technical prerequisites at the Effective Date which correspond to Client’s computer and/or mobile equipment (hardware, operating system, databases, third-party software, subscription to an Internet access service, tablet or smartphone), required for the use of the Solution and in general, for the provision of the Services and for which Client recognizes to have been informed and any evolution thereof throughout the term of the Agreement; the Environment at the Effective Date being described in the Purchase Order.
Geocode: a geocode or reverse-geocode request that returns an address or a latitude/longitude from the Jawg Places API.
JAWG: the French “société par actions simplifiées”, with stated capital of 20 000,00 euros, incorporated and registered in R.C.S Nanterre (France), with company number 831 451 018, whose registered office is at 152-160 Avenue Aristide Briand – 92220 Bagneux - France, which agrees to the Purchase Order in accordance with the GTC.
Error: any repetitive and reproducible failure or malfunction of the unmodified Solution, when used in accordance with the terms and conditions of the Agreement and the Documentation.
Free Subscription: the free subscription to the Services by Client, within the Scope and throughout the Term, in accordance with the Agreement.
Free Trial: the right to access to and use the Services for evaluation purposes, within the Scope and throughout the Term, in accordance with the Agreement.
General Terms and Conditions/GTC: this document.
Jawg APIs: the APIs (“Application Program Interfaces”) developed and owned by JAWG, which are included in the Solution.
Maintenance: the Support Services and the Upgrade Maintenance as part of the Commercial Subscription, the Upgrade Maintenance only, as part of the Free Subscription or the Free Trial.
Map View: the web maps views which contain several tiles; it being agreed that one (1) Map View is fifteen (15) tiles requests.
Open Source Components: the third parties’ software components or databases, in particular the map data provided by OpenStreetMap, as embedded with the Solution, listed on the Site and subject to separate license terms which are available on the Site.
Party/Parties: individually JAWG or Client, and collectively JAWG and Client.
Purchase Order: the document and its exhibits if any, for placing Client’s order hereunder, which identifies Client, as a contracting Party, the Free Trial or the type of Subscription, the Scope, in particular the Authorized Number of Map Views and/or Static Maps and/or Geocodes and/or Routing, the Term, the Administrator and the financial conditions relating to the Commercial Subscription, if any; it being reminded that by entering into a Purchase Order hereunder, Client acknowledges to have read, understood and agreed to be bound without reservation by these GTC, except as may be otherwise stated in the Purchase Order. To be valid, any Purchase Order must be agreed to and signed by a duly authorized representative of each Party.
Routing: a request that returns a route between two latitude/longitude points from the Jawg Routing API.
Scope: as part of the Free Trial or depending on the type of Subscription, the scope of the rights of use of the Solution granted to Client under the Agreement, notably with respect of the Authorized Number of Map Views and/or Static Maps and/or Geocodes and/or Routing; the Scope being defined in the corresponding Purchase Order(s).
Server: the computer equipment (computer hardware and/or software) on which the Solution is hosted, owned by or whose JAWG owns the necessary rights to conclude and execute the Agreement; such equipment being installed in the geographical location(s) of JAWG’s choice and connected to telecommunication networks and to the Internet.
Services or Jawgmaps Services: the access to the Solution under SaaS mode, as part of the Free Trial or the type of Subscription ordered by Client and defined in the Purchase Order as provided by JAWG, subject to the applicable provisions of the Agreement.
Services Level Agreement/SLA: the service level arrangements set out in section 7 below.
Services Opening: the date JAWG provides the Administrator with the access key to the Services, in accordance with section 4 below.
Site: JAWG’s internet website (https://www.jawg.io) on which the description of the Services, in particular the Solution, the Open Source Components and the Environment are available.
Solution: (i) the version of the standard proprietary software program(s), including the Jawg APIs, in English language and in object code, as defined in the Purchase Order, intended to be used exclusively on a rental basis via the Internet as “software as a service” within the framework of the Services, (ii) the Documentation (if any) and (iii) any Update thereof (if any).
Static map: a request that returns an image of a map generated by the static maps API.
Subscription: collectively the Commercial Subscription and the Free Subscription.
Support Services: the provision of technical support related to the Solution as part of the Commercial Subscription.
Term: the term of the Services, as part of the Free Trial or the type of Subscription, as defined in the Purchase Order.
Update(s): the English language version of the bug corrections and/or enhancements of the Solution, in the form of files and/or object code, including the Documentation updates if any. Upgrade Maintenance: the access to the Updates of the Solution as part of the Free Trial or the Subscription.
User: an individual (Client’s employee, consultant and/or contractor) who is authorized by Client to use the Services, who benefit from a login and a password, in strict accordance with the terms and conditions of the Agreement.
2 - Purpose and applicability of the Agreement
The purpose of the Agreement is to define the terms and conditions under which JAWG provides Client with the Services on a non-exclusive basis.
For the avoidance of doubt, Users are solely authorized to access and use the Services; Client being solely responsible for Users’ acceptance and compliance with the terms of the Agreement.
3 - Prerequisites
3.1 Client’s declarations
Client declares that prior to entering into the Agreement (i) it has checked the adequacy of JAWG’s offer to its needs, (ii) it satisfies itself as to the Environment and the internal resources which are required for the use of the Solution and (iii) it has analyzed JAWG’s offer and received all the necessary information and advice from JAWG to appreciate JAWG’s proposal.
Client acknowledges and agrees that (i) the Services are designed for and marketed to professionals only and that (ii) it may not access and use the Services, if Client is direct competitor of JAWG, except with the prior written consent of JAWG.
Client undertakes to comply with the Environment throughout the Term, and acknowledges that any environment which does not comply with the Environment may alter the quality of the Services or even lead to their malfunctioning, for which, under no circumstances, JAWG may be liable. In this context, Client acknowledges and agrees that JAWG may cause the Environment to evolve, in particular as a result of the evolution of the Services themselves and in particular the Solution. JAWG shall inform Client of the upgrades to the Environment by any means and where possible, in advance.
4 - Services Opening and operation of the Services
Subject to a Purchase Order duly agreed to and signed by both Parties, JAWG shall proceed with the Services Opening, for the Term and the Scope. In this respect, JAWG shall provide the Administrator with the access key to the Services by e-mail; it being agreed that Client - through the Administrator - is responsible for providing Users with their Connection Data and in general their access to the Services.
Client shall be responsible for taking all reasonably necessary measures to control the access and use of the Services in order to prevent unauthorized third parties from accessing the Services; it being agreed that any use of the Services with Connection Data is deemed made by Client or any of Users for which Client is responsible for. JAWG disclaims all liability for any irregular or fraudulent use of Connection Data. Client acknowledges and agrees that access to the Services is conditioned upon payment of the related invoices in the case of a Commercial Subscription.
Client undertakes to alert JAWG promptly of any suspected or recognized security incident. In the event of loss or theft of Connection Data, Client shall promptly inform JAWG in writing, and JAWG shall promptly implement an emergency suspension procedure in order to deactivate Connection Data of corresponding User(s). The reinstatement of the rights shall entail an explicit request from Client to JAWG by email, which shall be confirmed by notice in accordance with the terms of section 20.3, and shall be subject to invoicing at the then applicable rates.
5 - Rights granted
5.1 Free Trial
As part of the Free Trial under a Purchase Order, JAWG grants Client a non-exclusive, personal, non- transferable, revocable and limited right to access and use the Services on a trial free basis, within the Scope and throughout the Term, solely for Client’s own internal evaluation purposes.
Any data entered into the Services by Client and/or any customization made to the Services by or for Client during the Free Trial will be definitively lost unless Client (i) purchases a Subscription, or (ii) exports its data, in each case before the end of the Free Trial. Client may not transfer the data entered into the Services to a service that would be less in scope than the Services under the Free Trial; in this case, Client must export its data before the end of the Free Trial, or its data will be permanently lost.
THE SERVICES SUBSCRIBED FOR TRIAL PURPOSES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY (IN PARTICULAR IN TERMS OF QUALITY AND AVAILABILITY OF THE SERVICES), UNDER THE ENTIRE AND SOLE LIABILITY OF CLIENT AND AT ITS OWN RISKS. JAWG DISCLAIMS ANY LIABILITY DURING THE FREE TRIAL.
Except as otherwise specified in this section 5.1, the use of the Services during the Free Trial is governed by the other terms and conditions of the GTC.
Depending on the type of Subscription, JAWG grants Client a non-exclusive, personal, non- transferable, revocable and limited right to access and use the Services within the Scope and throughout the Term, solely for Client’s own internal purposes, ad defined as follows: Client is exclusively allowed to use the Solution by logging to the Server through Internet and accessing the Jawg APIs with the relevant access key, according to the procedures and methods provided by JAWG by any means throughout the Term of the Free Trial or the related Subscription.
In case of the Free Trial, or regardless the type of Subscription, Client is not notably allowed to (i) allow a third party to use the Services, except as otherwise stated in the Agreement and provided that such third party expressly undertakes to comply with the terms and conditions of use of the Services as defined in the Agreement; it being agreed that Client remains responsible for any use of the Services under the Agreement; (ii) use the Solution otherwise than as part of the Services and/or for any other purpose than those expressly stated in the Agreement; (iii) reproduce, download, make copies of the Solution, or remove the Solution from the Server, or attempt to perform such acts; (iv) modify, translate, reverse-engineer, decompile, disassemble, recreate, even partially, make derivative works of the Solution, or attempt to or enable third parties to perform such acts, except as may be otherwise permitted by the applicable law; (v) except as otherwise expressly allowed under the type of Subscription acquired by Client, modify or remove the copyright identifications, trademarks and/or any other intellectual property notice, appearing in and/or on the Solution, or which enables the identification of the Services; (vi) sell, rent, sublicense, make available or otherwise transfer, commercially exploit, and/or share the rights pertaining to the Services, in particular to the Solution, whether in part or entirely, by any means whatsoever; (vii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts or programs; (viii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (ix) copy any features, functions or graphics of the Solution and/or (x) attempt to gain unauthorized access to the Services or its related systems or networks.
For the avoidance of doubt, solely Users may access and use the Services, regardless of the type of Subscription.
Client grants JAWG a worldwide, limited-term license to host, copy, transmit and display the Data and the Application, as solely necessary for JAWG to provide with the Services in accordance with the Agreement.
6 - Open Source Components
Notwithstanding anything herein to the contrary, any Open Source Component embedded within the Solution, is licensed to Client under their applicable license terms at the time of their provision, if required by such license terms. In particular, the Open Source map database is licensed to Client under the Open Data Commons Open Database License (ODbL) by the OpenStreetMap Foundation (OSMF).
The provisions of the Agreement do not apply to any Open Source Components, and under no circumstances, shall JAWG be liable for any damages suffered by Client, their publishers or any third party, arising directly or indirectly from their use.
7 - Service Level Agreement
As part of the Commercial Subscription, and as from the Services Opening date, JAWG shall use commercially reasonable efforts to make available to Client the Services in accordance with the provisions of the SLA below.
JAWG shall provide Client with the following Support Services under an online assistance through its knowledge database and an online Error submission by e-mail to the following address: firstname.lastname@example.org.
Client shall provide JAWG with any document and/or piece of information reasonably necessary to ensure Support Services with regard to the Solution and shall follow JAWG’s recommendations and instructions, in particular those related to the implementation of the Solution. In any event, Client is responsible for and in charge of the Environment, the organization and internal competences which are necessary for the good performance of the Services.
JAWG may - from time to time - interrupt the access to the Solution for the purpose of Maintenance, without any indemnity. In case of loss or accidental destruction of Data, JAWG will do its utmost to restore destroyed elements based on the most recent backups.
JAWG shall have no obligation as part of Support Services, in particular in the following cases: (i) error caused by any use of the Solution with another environment than the Environment, notably with third parties’ software, or the use of another version than the current version of the Solution (except any software used at JAWG’s direction), and/or the use of a version of the Solution modified by Client or a third party, and more generally, any use of the Services not in compliance with the provisions of the Agreement, including the Documentation; (ii) the use of another version than the current version of the Solution, and/or the use of a version of the Solution modified by Client or a third party; (iii) loss of data; (iv) negligence, wilful misconduct, or fault of Client or of its personnel; (v) adjunction, connection or installation of a third-party software; (vi) errors resulting from disruption or interruption of service provided by third parties (network, telecommunications, etc.), and/or (vii) virus.
7.5 Upgrade Maintenance
As part of the Free Trial and any Subscription, JAWG provides Client with the access to the Updates when available. The Upgrade Maintenance does not include (i) any software and/or module which is not expressly covered by the Agreement, (ii) any other configuration than the Environment.
8 - Intellectual property rights ownership; indemnification
8.1 Intellectual property rights
The Agreement is not a sale and does not convey to Client any rights of ownership in or relating to the Solution, the Services, the Open Source Components, the tools, methods and/or know-how used or performed by JAWG or its licensors under the Agreement, and in general, any intellectual property rights owned by JAWG and/or its licensors. In this respect, the Agreement does not convey to Client any rights or licenses relating to JAWG’s logo, product and/or Services names (and those of its licensors, where applicable). Consequently, JAWG and/or its licensors retain(s) all rights, title and interest, including all related intellectual property rights, in and to the Solution, the Open Source Components and anything developed and provided under the Agreement. Additionally, Client owns all right, title and interest in and to Client’s Confidential Information, the Application, and Data and the Agreement does not convey to JAWG any rights, except as otherwise set forth herein, in or to Client’s Confidential Information or Data or the Application.
8.2 Indemnification by JAWG
JAWG will indemnify, defend and hold harmless Client, its affiliates, its licensors, and their respective officers, employees, at JAWG’s own expense, against any losses, damages, costs, liabilities, expenses (including reasonable attorneys’ fees), in the event of a final and enforceable decision by a court of competent jurisdiction, based on third-party claim that the possession and use of the Solution in accordance with the terms of the Agreement infringe any intellectual property rights of a third party (each a “Claim”), provided that Client notifies JAWG in writing of any such Claim as soon as it occurs, does nothing to prejudice JAWG’s ability to defend or negotiate the settlement of any such Claim, enables JAWG to have sole control over the defense and any negotiation of a settlement (provided that JAWG may not, in any case, settle any claim that fails to fully release Client from any and all liability without Client’s consent) of such Claim and reasonably cooperates with JAWG, as requested by JAWG, in connection with the defense and settlement of such Claim.
In the event any Claim is filed against Client in connection with the use of the Solution, or if JAWG deems that a Claim is likely to be asserted, JAWG may - at its sole option and own expense - either obtain for Client the right to continue the use of the Solution or replace or modify the infringing component of the Solution in order to stop to such alleged infringement.
JAWG shall not indemnify Client if Client (i) alters the Solution or use the Solution outside the Scope and in the Documentation (except if such alterations were at JAWG’s direction), (ii) uses a version of the Solution which has been superseded if the Claim could have been avoided by using an unaltered version of the Solution which was made available by JAWG.
THIS SECTION 8.2 STATES JAWG’S ENTIRE LIABILITY AND CLIENT’S SOLE REMEDY AS TO THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY OTHER PROPRIETARY RIGHTS. CLIENT ACKNOWLEDGES AND AGREES THAT JAWG SHALL IN NO EVENT BE HELD LIABLE BEYOND WHAT IS PROVIDED IN THIS SECTION 8.2.
9 - Client’s intellectual property rights
Client warrants that it owns and retains all intellectual property rights in and to the Application(s) and that in general, it owns the rights required for the execution of the Services on the Data and the Application. In this regard, Client shall not include or transfer any illegal data through the Services. Consequently, Client is responsible and fully liable for the content of the Data and intellectual property rights ownership or right of use of such Data and the Application.
10 - Representations and warranties
Each Party represents and warrants that it has the legal power and authority to enter into the Agreement. It is reminded that Client represents and warrants that it is not a direct competitor of JAWG.
10.2 Warranties; disclaimers; exclusive remedies
JAWG expressly warrants that (i) it owns the necessary rights to provide the Services, (ii) such Services shall be supplied in accordance with professional standards and the terms of the Agreement and (iii) the Solution performs the essential functions described in the Documentation, when used normally with the Environment.
JAWG DOES NOT WARRANT THAT (i) THE PERFORMANCE OF THE SOLUTION WILL BE UNINTERRUPTED OR FREE FROM BUGS, ERRORS OR ANY OTHER DEFECT, OR (II) THAT JAWG WILL CORRECT ALL SERVICES ERRORS, AND/OR (III) THE RESULTS OBTAINED FROM THE USE OF THE SOLUTION.
CLIENT ACKNOWLEDGES AND AGREES THAT CLIENT’S EQUIPMENT IS CONNECTED TO THE SERVER UNDER ITS SOLE RESPONSIBILITY AND THAT JAWG DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. IN NO EVENT, SHALL JAWG BE LIABLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. CONSEQUENTLY, THE COMMUNICATION OF DATA AND GENERALLY OF ANY INFORMATION, IS MADE AT CLIENT’S OWN RISKS AND UNDER ITS SOLE RESPONSIBILITY. TO THE EXTENT NOT PROHIBITED BY LAW, THE ABOVE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATIFACTORY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
11 - Liabilities
Client is responsible for the choice of the Services, its use and of the results obtained while using the Services. Client ensures that it owns the necessary rights for the conclusion and execution of the Agreement, in particular the rights in relation with the Environment, the Applications, and the Data.
In addition, Client declares that it has good knowledge of the Internet, its characteristics and its limits. Further, it is Client’s responsibility to take the necessary steps for the protection of its Data, the Application, and systems.
The Services may be subject to limitations, delays and other problems inherent with the use of the Internet and electronic communications. In this context, Client acknowledges and agrees that under no circumstances, shall JAWG be responsible for any delays, failures and/or other damages resulting from such problems that are not a result of JAWG’s acts or omissions.
Client acknowledges and agrees that it is solely responsible for any costs that Client incurs to access and use the Services, notably the costs relating to any change thereof that may be required in the course of the Services.
The Parties expressly agree that notwithstanding the nature and/or the cause of any action:
- JAWG shall only be liable for direct losses, provided that Client has established a direct causal link between the alleged damages and the evidence of a breach of the Agreement by JAWG;
- JAWG SHALL NOT IN ANY CIRCUMSTANCES HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSSES OR DAMAGES WHICH MAY BE SUFFERED BY CLIENT, ITS USERS AND/OR A THIRD PARTY FOR INTERRUPTED PERFORMANCE OF THE SOLUTION AND/OR SERVICES OR LOSS OF OR CORRUPTION TO DATA, FILES AND/OR PROGRAMS, OR LOSS OF PROFITS (WHETHER DIRECT OR INDIRECT), OR LOSS OF REVENUE OR LOSS OF GOODWILL OR REPUTATION, LOSS OF OPPORTUNITY, COSTS RELATED TO A SUBSTITUTE SOLUTION, SERVICE OR TECHNOLOGY AND/OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR PUNITIVE DAMAGES, EVEN IF JAWG HAS BEEN NOTIFIED OF THE LIKELIHOOD OF ANY SUCH LOSSES OR DAMAGES, and
- in no event, shall JAWG’s aggregate liability throughout the overall term of the Agreement exceed the amount paid by Client to JAWG for the Services during the twelve (12) months preceding the date on which the event at the origin of the damage arose if the Services are at the origin of such damage.
12 - Force majeure
Neither Party shall be liable to the other Party for any failure or delay in performing its obligations under the Agreement when such failure or delay is the exclusive result of the occurrence of the case of force majeure.
For the purposes of the Agreement, and in addition to those cases of force majeure usually recognised as such by French jurisprudence, a force majeure case consists in any unavoidable, unforeseeable and external event preventing either Party from complying with its obligations under the Agreement, and notably strikes, total or partial interruption of telecommunication or electrical networks, legal or governmental restrictions and/or legal or regulatory modifications of forms of commercialisation.
The Party which raises the case of force majeure shall notify the other Party of the arising of such an event and the necessary extension of the deadlines to perform its obligations, by formal notice within a delay which shall not exceed four (4) Business Days within the framework of the Subscription or two (2) Business Days within the framework of the Free Trial. At first, the case of force majeure will suspend - as of right - the performance of the Agreement. As soon as the impediment of performance due to the case of force majeure stops, the said obligations shall continue for the remaining term of the Agreement, increased to take into account the term of the suspension. However, if the case of force majeure lasts longer than thirty (30) days within the framework of the Subscription or ten (10) days within the framework of the Free Trial, the Agreement may be terminated without further judicial formalities by either Party upon written formal notice to the other Party with immediate effect.
Each Party shall bear its own costs resulting from a case of force majeure.
13 - Indemnification by Client
Client shall indemnify and hold JAWG, its affiliates, its licensors, and their respective officers, employees and directors, harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including expertise and attorneys’ fees and costs) arising out of or in connection with a claim constituting a breach by Client of its representations and warranties under the Agreement, in particular any claim and/or action of a third party against JAWG concerning the use of the Services by Client, made in violation of a provision of the Agreement, that infringes its intellectual property rights (notably and without limitation those relating to the Application) and/or causes any damage and/or violates any applicable law or regulation provided that JAWG notifies Client in writing of any such claim as soon as it occurs, enables Client to have sole control over the defence and any negotiation of a settlement (provided that Client may not, in any case, settle any claim that fails to fully release JAWG from any and all liability without JAWG’s consent) of such claim and reasonably cooperates with Client, as requested by JAWG, in connection with the defence and settlement of such claim.
14 - Financial conditions
It is expressly agreed that fees are based on the Services purchased and not actual usage. The Map Views and/or Static Maps and/or Geocodes and/or Routing not consumed are not transferrable for the following month, and that the Scope cannot be decreased during the Term of the relevant Commercial Subscription. The fees are based on monthly periods that begin on the Effective Date, and each monthly anniversary date. Consequently, fees for additional Map Views and/or Static Maps and/or Geocodes and/or Routing added throughout a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
All amounts set forth in the Agreement are stated exclusive of all customs duties and taxes, which will be for the account of Client and payable additionally by Client. Sales taxes or similar taxes shall be charged at the rate ruling at the tax point (being the date of the invoice).
14.3 Payment terms
Client shall pay all fees relating to the Services set forth in the applicable Purchase Order. Except as may be otherwise stated in the Purchase Order, all invoices are in Euros and payable monthly, in advance. Payments shall be made upon receipt of invoice.
An adjustment invoice shall be issued at the end of each concerned month, in the event that the Services are extended during the term of the Agreement, and this, in accordance with the rates set forth in the Purchase Order until the expiration of the then current yearly period; it being understood that all adjustments throughout each contractual period shall be taken into account in the calculation of the amount of the fees for year N+1 (if applicable), provided that the Scope ordered under a Purchase Order may not be decreased during the term of the Agreement.
Furthermore, it is expressly agreed that in the event of Client exceeds the Scope, JAWG may reduce the quality of the Services or suspend the provision of the Services until the next reset of the Scope.
14.5 Late payments
Without prejudice to any damages that JAWG is entitled to, any amount not paid when due by Client shall bear interest at a rate of three (3) times the legal interest rate as from the first day of late, without notice and a flat rate payment of forty (40) Euros for collection costs according to Article L.441-6 of the French Commercial Code, without prejudice to any damages that JAWG could be entitled to. In addition, JAWG may, at its sole discretion, suspend the Services five (5) Business Days after formal notice which has remained without effect, and terminate the Agreement in accordance with section 18.2, without prejudice to any damages that JAWG is entitled to. For the avoidance of doubt, such suspension shall not be deemed as a breach of its obligations by JAWG.
15 - Audit Rights
JAWG reserves the right to check that the Services are used in accordance with the terms of the Agreement, throughout the term of the Agreement and one (1) year after the termination of the Agreement for any reason whatsoever. To this end, JAWG shall inform Client, subject to a three (3) Business Days prior notice, that it intends to audit or make audit by a non-competing third party, Client’s books and/or premises, to assess whether Client’s use of the Services is compliant with the terms of the Agreement. JAWG shall bear the costs of such audit.
Such audits shall occur during Client’s regular business days, and will not interfere unreasonably with Client’s business activity.
Client shall cooperate in good faith with JAWG or the third party appointed by JAWG and shall facilitate the performance of the audit, by answering to any question.
If an audit reveals that any amounts is due to JAWG, Client shall immediately take the measures necessary to comply with the provisions of the Agreement and pay any amount due to JAWG; in addition, Client shall bear the audit costs, without prejudice to any damages that JAWG might claim.
16 - Confidentiality; references
Each Party shall consider as strictly confidential any Confidential Information, and agrees that it shall not give or disclose any Confidential Information to third parties. The Parties may disclose Confidential Information only to those persons allowed to receive such Confidential Information for the exclusive purpose of performing the Agreement and who agree to be bound by the provisions of the Agreement. Each Party undertakes to make such abovementioned persons sign a non-disclosure agreement containing the same level of obligation as the provisions of this section. All Confidential Information shall remain the disclosing Party’s exclusive property.
In no event, shall the communication of any Confidential Information under the Agreement be construed as granting to the receiving Party - explicitly or implicitly - any right relating to the documents, materials, inventions to which Confidential Information refers to, unless otherwise stated in the Agreement. In particular, no provision of the Agreement shall be construed as granting directly or indirectly a license to the receiving Party.
The obligation of non-disclosure as stated in this section, shall remain in force three (3) years from the date of end of the Agreement, for any reason whatsoever.
Client agrees that JAWG may identify Client as a recipient of the Services and use its name and logo as a business reference in sales presentations, marketing materials (notably on its websites and those of its affiliates) and press releases.
17 - Non Competition
Client shall not develop, directly or indirectly, any competitive solution or services during the term of the Agreement and for a period of twelve (12) months from the end of the Agreement for any reason whatsoever.
18 - Term, termination; end of the Agreement
The Agreement is effective as from the Effective Date. Unless otherwise expressly agreed between the Parties or earlier terminated, the Free Trial continues for a period of one (1) month.
Unless otherwise stated in the corresponding Purchase Order or earlier terminated, the Subscription continues for a term of one (1) year unless earlier terminated. As part of the Subscription, the Agreement is tacitly renewable for yearly periods, under the following conditions: at least sixty (60) days prior to the end of the ongoing contractual period, JAWG may propose, in writing, new contractual terms and conditions to Client for the period to come. Unless earlier termination in accordance with section 18.2 or notice of termination in accordance with section 20.3 under the Commercial Subscription or sent by email under the Free Subscription by either Party to the other Party thirty (30) days at least before the end of the on-going contractual period, the Agreement will be renewed for a yearly period under the new contractual conditions proposed by JAWG or otherwise, pursuant to section 14.4 if applicable.
In the event of a material breach by either Party of its contractual obligations under the Agreement, provided that such breach is not cured within fifteen (15) days in the case of the Subscription or eight (8) days in the case of the Free Trial as from the receipt, or, failing that, the first presentation of the notice notifying such breach, the other Party may terminate the Agreement, by notice in accordance with section 20.3, without prejudice to any damages that such Party could be entitled to.
Upon termination of the Agreement for any reason whatsoever, Connection Data are immediately removed and all rights to access and use the Services, including the Solution, ends. Client undertakes to pay any and all undisputed amounts due to JAWG in accordance with section 14.2 above.
Client acknowledges that it may export its Data at anytime during the term of the Agreement, and that it is solely responsible for the recovery of the Data. Consequently, JAWG does not have any obligation, of any nature whatsoever, to return the Data.
All the provisions which should survive the expiration or termination of the Agreement by nature shall remain applicable, for the term necessary to give them full force.
19 - Compliance with laws
The use of the Services shall in no event infringe the applicable laws and regulations relating in particular to the export of French technologies and to the laws and regulations on data protection and notably relating to the geolocation. With this regard, Client shall allow Users to opt out of location data when they use the Services through the Application.
In addition, Client shall not export or re-export the Solution license and the Confidential Information (including by remote electronic access), directly or indirectly, to any source for use in any country in contravention of any export laws or regulations.
Client acknowledges that it is subject to an automatic processing of personal data within the framework of the Agreement, for the purpose of creating files to manage JAWG’s base of clients. In this respect, Client has a right of access and deletion of such data with JAWG, under the conditions stated by French Law.
20 - General provisions
20.1 Independent contractors
The Parties are independent contractors, acting in their own name and on their own account. In no event shall the Agreement establish any mandate, agency, franchise or any type of legal entity. Neither Party has any authority to bind the other Party to any agreement or any obligation.
20.2 Entire agreement
The Agreement constitutes the entire agreement between the Parties at the Effective Date. It supersedes all prior or simultaneous agreements and understandings, whether oral or written, relating to the subject matter of this Agreement. The Agreement cannot be modified unless by Amendments (which may not be a pre-printed form of contract or of terms and conditions) signed by a duly authorized representative of each Party.
Except as may be expressly agreed otherwise, all notices pertaining to the Agreement shall be in writing and either personally delivered or sent via postage prepaid certified mail which can be tracked, addressed to the other Party at such Party’s address stated at the Agreement header. All notices shall be effective upon personal delivery or the second Business Day after mailing in accordance with the terms of the Agreement.
Unless otherwise provided in the Agreement, the files, data, messages and digitized records stored in the Parties’ data processing systems shall be admitted as proof of the facts and communications between the Parties, provided that the transmitting Party may be identified and that such materials are established and stored under conditions which permit to ensure their integrity.
If any provision of the Agreement is held to be illegal, invalid or unenforceable, as a result of any statutory or regulatory provision or after the decision of a competent court, which has become final, the Parties shall consult each other to replace such provision by a solution agreeable and which is in the spirit of the Agreement. All the other provisions of the Agreement shall continue in full force and effect, unless the purpose of the Agreement is consequently affected.
The waiver or the failure by either Party to claim a breach by the other Party of any of its obligations under the Agreement shall not be construed as a waiver of such obligation for the future. Any waiver shall only be effective subject to a writing (which may not be a pre-printed form of contract or of terms and conditions) signed by the Party entitled to enforce such obligation.
The Agreement is in the English language only, which language shall be controlling in all respects. Furthermore, all communications and notices made or given pursuant to the Agreement shall be in the English language.
21 - Governing law and jurisdiction
The Agreement shall be governed by and construed in accordance with French Law.
Except where a breach of the defaulting Party makes the contractual relation impossible to maintain, the Parties will try to reach an out-of-court settlement for any dispute arising out of or in connection with the interpretation of the enforcement of the Agreement.
In the event that the Parties cannot reach an amicable solution within eight (8) Business Days as from the delivery of the corresponding notice by a Party to the other Party, the Parties irrevocably agree that the commercial Court of Paris (France) shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter, except for any dispute regarding intellectual property rights, which shall be submitted to the exclusive jurisdiction of the “Tribunal de grande instance” of Paris (France) notwithstanding the plurality of defendants, claim against guarantor, summary or conservatory proceedings.