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This TomTom Addendum (this “TomTom Addendum”) applies to geographic databases, digital maps, software applications, dynamic spatial data and related materials (the “TomTom Products”) provided by TomTom, Inc. Capitalized terms not defined below but used herein will have the same meaning as in the Master Software, SaaS and Services Agreement. For the avoidance of doubt, the TomTom Products, may constitute Software or SaaS under the Agreement, and this TomTom Addendum supplements, but does not replace, the Software Addendum or SaaS Addendum, as applicable.
With respect to any Order for the TomTom Products, this TomTom Addendum will commence on the Effective Date and continue for the term specified in such Order. Unless otherwise extended, upon the last day of such term, this TomTom Addendum will automatically expire without any notice or other action. Upon the expiration or termination of this TomTom Addendum, Customer will immediately cease all use of and, at the option of ZOLL, destroy, such TomTom Products.
Subject to the terms and conditions of this TomTom Addendum, during such term ZOLL grants to Customer and Customer accepts, a limited, personal, non-exclusive, non-transferrable license to use the TomTom Products within the Territory (as defined in the Order for such TomTom Products) solely in connection with the use of the Software or SaaS (and subject to the limitations on the use of the Software or SaaS) under the Agreement. In no event is Customer authorized to use the TomTom Products other than in connection with the Software or SaaS and in no event may Customer utilize the TomTom Products (or any Software or SaaS containing the TomTom Products) outside of the Territory. This TomTom Addendum does not expand the rights of Customer to the Software or SaaS under the Agreement. All use of the Software or SaaS remains subject to the rights granted (and restrictions included) in the Agreement.
Any use of the TomTom Products other than as expressly permitted in this TomTom Addendum is strictly prohibited. Except as set forth in this TomTom Addendum, Customer will not, and will not permit any third party, to: (A) reproduce, modify, adapt, alter, translate, or create derivative works from the TomTom Products; (B) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the TomTom Products to any third party; or (C) remove, obscure, mask, alter, cover or obfuscate any trademark notices, copyright notices or restrictive legends included in the TomTom Products. Customer may not use the TomTom Products: (W) to provide, display or allow access to the actual numerical latitude and longitude coordinates; (X) to provide competitive information about TomTom or its products to a third party; (Y) for in-flight navigation; or (Z) to create, or assist in the creation of, a digital map database. A “digital map database” means a database of geospatial data containing the following information and attributes: (I) road geometry and street names; (II) routing attributes that enable turn-by-turn navigation on such road geometry; or (III) latitude and longitude of individual addresses and house number ranges.
The TomTom Products, including without limitation any routines, subroutines, directories, tools, programs, or any other technology included therein, is confidential information of TomTom (“TomTom Product Confidential Information”). Customer will not use any TomTom Product Confidential Information for any purpose not expressly permitted by this TomTom Addendum. Customer will protect the TomTom Product Confidential Information from unauthorized use, access, or disclosure in the same manner as the Customer protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. The Customer’s obligations under this Section 5 with respect to any TomTom Product Confidential Information will terminate if such information: (A) was already known to Customer at the time of disclosure by ZOLL or TomTom; (B) was disclosed to the Customer by a third party who had the right to make such disclosure without confidentiality restrictions; (C) is, or through no fault of the Customer has become, generally available to the public; or (D) was independently developed by Customer without access to, or use of, the TomTom Product Confidential Information.
Customer will keep, maintain, and preserve in its principal place of business during the term of this TomTom Addendum and for at least three (3) years following the expiration or termination of this TomTom Addendum any records relating to Customer’s activities pursuant to this TomTom Addendum. TomTom will have the right, during normal business hours and upon at least fifteen (15) days prior written notice to inspect Customer’s facilities and audit Customer’s records relating to Customer’s activities pursuant to this TomTom Addendum.
NEITHER ZOLL NOR TOMTOM NOR EITHER OF THEIR RESPECTIVE SUPPLIERS WILL BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES ARISING OUT OF THIS TOMTOM ADDENDUM, INCLUDING LOST PROFITS OR COSTS OF COVER, LOSS OF USE OR BUSINESS INTERRUPTION OR THE LIKE, REGARDLESS OF WHETHER ZOLL, TOMTOM OR ANY OF THEIR RESPECTIVE SUPPLIERS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ZOLL, TOMTOM AND THEIR RESPECTIVE SUPPLIERS WILL HAVE NO MONETARY LIABILITY TO CUSTOMER FOR ANY CAUSE (REGARDLESS OF THE FORM OF ACTION) UNDER OR RELATING TO THE TOMTOM PRODUCTS OR THIS TOMTOM ADDENDUM.
Customer acknowledges that the use of the TomTom Products with third-party products (such as the Software or SaaS) or with a non-TomTom map may result in increased variance between the location displayed on the map and true location on the ground. THE TOMTOM PRODUCTS ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS BASIS” AND ZOLL, TOMTOM AND ITS SUPPLIERS 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 ZOLL, TOMTOM OR ANY OF THEIR RESPECTIVE AGENTS, EMPLOYEES OR THIRD-PARTY PROVIDERS WILL CREATE A WARRANTY, AND CUSTOMER IS NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION. THIS DISCLAIMER OF WARRANTIES IS AN ESSENTIAL CONDITION OF THIS TOMTOM ADDENDUM.
The covenants and obligations undertaken by Customer herein are intended for the direct benefit of TomTom and may be enforced by TomTom directly against the Customer.
If Customer is an agency, department or other entity of the United States Government, or funded in whole or in part by the United States Government, then use, duplication, reproduction, release, modification, disclosure or transfer of the TomTom Products and accompanying documentation is restricted in accordance with the LIMITED or RESTRICTED rights as described in any applicable DFARS or FAR. In case of conflict between any of the FAR or DFARS that may apply to the TomTom Products, the construction that provides greater limitations on the Government’s rights will control. Contractor and manufacturer is TomTom, Inc. 11 Lafayette Street, Lebanon, NH 03766-1445. Phone: 603.643.0330. The TomTom Products is © 2006-2022 by TomTom. ALL RIGHTS RESERVED. For purpose of any public disclosure provision under any federal, state, or local law, it is agreed that the TomTom Products are trade secrets and proprietary commercial products and not subject to disclosure. If Customer is an agency, department, or other entity of any State government, the United States Government or any other public entity or funded in whole or party by the United States Government, then Customer hereby agrees to protect the TomTom Products from public disclosure and to consider the TomTom Products exempt from any statute, law, regulation, or code, including any Sunshine Act, Public Records Act, Freedom of Information Act, or equivalent, which permits public access, reproduction or use of the TomTom Products. In the event that such exemption is challenged under any such laws, this TomTom Addendum will be considered breached and any and all right to retain any copies or to use the TomTom Products will be terminated and considered immediately null and void. Any copies of the TomTom Products held by Customer will immediately be destroyed. If any court of competent jurisdiction considers this clause void and unenforceable, in whole or in part, for any reason this TomTom Addendum will be considered terminated and null and void, in its entirety, and any and all copies of the TomTom Products will be immediately destroyed.
Any six-digit alpha numeric Canadian Postal Codes contained in any TomTom Products cannot be used for bulk mailing of items through the Canadian postal system. Furthermore, the six-digit alpha numeric Canadian Postal Codes may not be extracted from the TomTom Products. Canadian Postal Codes cannot be displayed or used for postal code look-up on the Internet, nor can they be extracted or exported from any application to be utilized in the creation of any other data set or application.