THIS TOMTOM ADDENDUM is subject to and made a part of the Agreement. . Capitalized terms used and not defined in this Addendum have the meanings assigned to them in the Definitions Addendum at /legal.
This Addendum provides additional terms and conditions under which ZOLL makes available to Customer the geographic databases, digital maps, software applications, dynamic spatial data, and related materials stated above (the “TomTom Products”) provided by TomTom, Inc., (“TomTom”). In addition to the terms set forth in the Agreement, the parties hereby agree to be legally bound as follows with respect to the TomTom Products:
1. DEFINITIONS. Capitalized terms used but not defined in the Agreement shall have the meanings set forth in this Addendum.
2. TERM. With respect to any Order for the TomTom Products, this Addendum will commence on the Effective Date and continue for the term specified in such Order (Bi-Annually or Perpetually). Unless otherwise extended, upon the last day of such term, this Addendum will automatically expire without any notice or other action. Upon the expiration or termination of this Addendum, Customer will immediately cease all use of and, at the option of ZOLL, destroy, such TomTom Products.
3. SCOPE OF LICENSE. Subject to the terms and conditions of this 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 (and subject to the limitations on the use of the Software) under the Agreement. In no event is Customer authorized to use the TomTom Products other than in connection with the Software and in no event may Customer utilize the TomTom Products (or any Software containing the TomTom Products) outside of the Territory. This Addendum does not expand the rights of Customer to the Software under the Agreement. All use of the Software remains subject to the rights granted (and restrictions included) in the Agreement.
4. RESTRICTIONS ON USE. Any use of the TomTom Products other than as expressly permitted in this Addendum is strictly prohibited. Except as set forth in this Addendum, Customer will not, and will not permit any third party, to: (1) reproduce, modify, adapt, alter, translate, or create derivative works from the TomTom Products; (2) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the TomTom Products to any third party; and (3) 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 (a) to provide, display or allow access to the actual numerical latitude and longitude coordinates; (b) to provide competitive information about TomTom or its products to a third party; (c) for in-flight navigation; or (d) 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.
5. CONFIDENTIALITY. 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 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: (1) was already known to Customer at the time of disclosure by ZOLL or TomTom; (2) was disclosed to the Customer by a third party who had the right to make such disclosure without confidentiality restrictions; (3) is, or through no fault of the Customer has become, generally available to the public; or (4) was independently developed by Customer without access to, or use of, the TomTom Product Confidential Information.
6. AUDIT. Customer will keep, maintain, and preserve in its principal place of business during the term of this Addendum and for at least three years following the expiration or termination of this Addendum any records relating to Customer’s activities pursuant to this Addendum. TomTom will have the right, during normal business hours and upon at least 15 days prior written notice to inspect Customer’s facilities and audit Customer’s records relating to Customer’s activities pursuant to this Addendum.
7. LIMITATION OF LIABILITY. NEITHER ZOLL NOR TOMTOM NOR EITHER OF THEIR RESPECTIVE SUPPLIERS SHALL BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES ARISING OUT OF THIS 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 ADDENDUM.
8. DISCLAIMER. Customer acknowledges that the use of the TomTom Products with third party products (such as the Software) 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 SHALL 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 ADDENDUM.
9. THIRD PARTY BENEFICIARY. 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.
10. GOVERNMENT USERS. 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 and/or DFARS that may apply to the TomTom Products, the construction that provides greater limitations on the Government’s rights shall control. Contractor/manufacturer is TomTom, Inc. 11 Lafayette Street, Lebanon, NH 03766-1445. Phone: 603.643.0330. The TomTom Products is © 2006-2017 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 and/or reproduction or use of the TomTom Products. In the event that such exemption is challenged under any such laws, this Addendum shall be considered breached and any and all right to retain any copies or to use the TomTom Products shall be terminated and considered immediately null and void. Any copes of the TomTom Products held by Customer 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 Addendum shall be considered terminated and null and void, in its entirety, and any and all copies of the TomTom Products shall be immediately destroyed.
USE OF CERTAIN CANADIAN DATA.
Any 6 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 6-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.