This Commercial Use Supplement (the "Supplement") modifies,
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 Bredgatan 4, 21130 Malmö, Sweden, and the person or
entity set forth in the Order Form ("Customer"). Except as expressly
force and effect. In the event of any conflict or inconsistency between the Mapillary
defined in this Supplement will have the same meaning as the identical capitalized
"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. For clarity, “Content” includes “Covered Content”.
"Customer Product": the Customer product, service, website, application, software, algorithm, dataset, solution, or technology as set out in the Order Form, owned and controlled by Customer.
"Order Form": the ordering document (as may be amended), signed or otherwise agreed to by Customer and Mapillary, setting forth the Commercial Use subscriptions or access Customer purchases, a description (if and as applicable) of the Customer Product and Covered Content, terms regarding Ancillary Services, if any, and any other associated terms and conditions.
"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.
1.1 Availability. Subject to Customer's compliance with these Terms, including payment obligations, Mapillary will upon or shortly after the Effective Date make available Commercial Use access to the Mapillary Solution and, if applicable, Covered Content, pursuant to and in accordance with this Agreement during the term, if any, of Customer's access or subscription, as set forth in the Order Form. Customer's signature of or agreement to be bound by the Order Form, or Customer’s receipt or use of Content made available under this Supplement, constitutes Customer's agreement and assent to all terms and conditions of the Agreement. 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. As set forth in the Order Form, Customer's access rights and permitted activity under Commercial Use may consist of or be limited to: (a) Customer Product- and/or Covered Content-based subscription or access, including for Customer Product improvement or training, (b) use in the provision of services for or on behalf of one or more Customer Clients; and/or (c) private repository subscription. Other types of subscriptions or access may apply, as detailed in the Order Form.
(a) For Customer Product-based access, Customer may use the Mapillary Solution and Covered Content solely for the purpose of improving and/or training Customer Products owned by Customer, so long as such Customer Products are sold, licensed, or made available, exclusively by Customer under brands owned by Customer and not any third party (except as the Order Form may otherwise allow).
(b) For access in furtherance of Customer’s provision of services to Customer Clients, Customer may use the Mapillary Solution and Covered Content (if applicable) solely for the purpose of providing consulting or professional services to one or more Customer Clients.
(c) For private repository subscriptions, use of the Mapillary Solution is limited to the purpose of creating and maintaining a private repository during the time period set forth in the Order Form.
(d) Customer’s access to and use of certain data and/or imagery within Content may be restricted, as set forth in the Order Form. Customer shall comply with all restrictions of each Order Form.
(b) This section 1.3(b) applies only for Customer Product-based access. Customer shall use the Mapillary Solution and Content exclusively for and in conjunction with the Customer Product, and no other product, service, website, application, software, dataset, solution or technology. In a manner reasonably satisfactory to Mapillary, Customer shall cause to be conspicuously displayed on any publicly-available Customer Product and associated Customer Product online and offline materials: (i) a notice that the Customer Product is using the Mapillary Solution, and (ii) a link to mapillary.com.
1.4 Restrictions. Customer acknowledges that Customer may make Commercial Use of Content or the Mapillary Solution only pursuant to and subject to this Supplement. If a maximum number of views is set forth in the Order Form, exceeding such cap may result in the imposition of additional fees as set forth in the Order Form, which Customer hereby agrees to pay. Notwithstanding any other provision of the Agreement, except as otherwise set forth in the Order Form, Customer shall not directly or indirectly disclose, display or make available to any Customer Client, third party, or to the public any Content, in whole or in part, that Mapillary makes available to Customer under this Supplement (including Covered Content); such Content is for Customer’s internal on-premise use only.
1.5 Downtime. If the Order Form sets forth a subscription term, Mapillary will use commercially reasonable efforts to make the Mapillary Solution available during such 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 exclusive 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 or access, Ancillary Services, administrative notices and service announcements or changes.
1.8 Covered Content and Services Deliverables. Customer acknowledges that Covered Content and Services Deliverables constitute Mapillary's confidential and proprietary information. Customer shall 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 Products. Customer shall 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.
2.1 Description. Subject to Customer's compliance with the Agreement, 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 that extends for more than thirty days from the Effective Date:
3.1 Service Level Agreement. This section 3.0: (a) states Customer's sole and exclusive remedy and Mapillary's sole liability and 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 87 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 shall 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 firstname.lastname@example.org. 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 hosting providers, 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 any provider, 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|
|≥ 97.0% and < 99.8%||5% of the next periodic subscription fee|
|≥ 95.0% and < 97.0%||10% of the next periodic subscription fee|
|≥ 92.0% and < 95.0%||20% of the next periodic subscription fee|
|< 92.0%||30% of the next periodic subscription fee|
4.1Subscriptions; Pro-Ration. Customer shall pay to Mapillary the fees listed, on the dates specified, in the Order Form. Unless otherwise specified in the Order From, subscription fees may be based on monthly periods that begin on the subscription start date and each monthly anniversary thereafter.
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 auditing 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 shall be corrected by appropriate adjustment in payment for the period during which the error is discovered, and Customer shall 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 shall 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 shall 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 shall 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) shall be increased (grossed up) by Customer in such amounts as would have been received by Mapillary as if no such withholding or deduction were required.
5.1 Term. If Commercial Use access is provided over a period of time, such 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 price in effect as of the effective date of renewal.
5.3 Effect. Upon termination for cause, Customer shall 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 Cessation. Access to and rights of use (including Commercial Use) associated with the Mapillary Solution and Content will terminate upon termination of Commercial Use or any subscription for any reason, and Customer shall thereupon cease all use of the Mapillary Solution and Content.
(end of Supplement)