IndoorAtlas Developer Service Terms and Conditions

1. Introduction

We welcome you (“you” or “Customer”) to use the services of IndoorAtlas Oy and its affiliates (the “Company”, “we”, “us”, “our”) (each Customer and the Company referred to individually as a “Party” and collectively as the “Parties”). These Terms of Service (collectively, the “Terms”) set forth the legally binding terms and conditions which are applicable to your use of, and access to, the Company Positioning Service and your rights relating to the Company Software. The Terms constitute an agreement between you and us and define the rights and responsibilities that you have with respect to the Company Positioning Service and the Company Software. By downloading, installing, accessing or using the Company Positioning Service and the Company Software you agree to be bound by these Terms. By accepting these Terms, You represent and warrant that you have the right, authority and capacity to accept these Terms and to abide by them and that you have fully read and understood the Terms. In addition to these Terms, you agree to abide by any supplemental policies of the Company Positioning Service, such as policies related to specific services made available therein as well as all other operating rules, policies and procedures that may be published from time to time on the Company Positioning Service, each of which is incorporated herein by reference. Moreover, you acknowledge and agree that we may, from time to time and in our sole discretion, issue updates or upgrades, or other amendments, to the Company Positioning Service and that these Terms will govern any such updates, upgrades and amendments. Moreover, if you are a corporation, you represent and warrant that you are duly incorporated and validly existing under the laws of your jurisdiction of incorporation and you have the corporate power and authority to agree to these Terms and to perform your obligations hereunder.

2. Definitions

Company Developed Data means the data, metadata, and other content that is first collected or generated by the Company Positioning Service. The Company Developed Data include, but are not limited to, Sensor Data collected by or generated in the Company Positioning Service, Device Data, data and metadata submitted to the Company Positioning Service and/or collected by the Company Software, and Location Data generated by or in the Company Positioning Service but shall not include any data that constitute Personal Data.

Company Positioning Service means the Company’s cloud based indoor positioning service, which service the Company provides from its cloud-based servers to its customers.

Company Software means all Company-developed (a) Software, indoor positioning client Software, Software development kit(s) (“SDK”), and an indoor positioning application programming interface (“API”) including Software implementations of algorithms, models, and methodologies, whether in source code, object code or other form, including libraries, subroutines and other components thereof; (b) computerized databases and other computerized compilations and collections of data or information, including all data and information included in such databases, compilations or collections; (c) screens, user interfaces, command structures, report formats, templates, menus, buttons and icons; (d) descriptions, flow charts, architectures, development tools, and other materials used to design, plan, organize and develop any of the foregoing; and (e) all documentation, including development, diagnostic, support, user and training documentation related to any of the foregoing.

Customer Delivered Data means a floor plan image of a site from which the Company Positioning Service is accessed (each a “Site”), a 3D model of a Site, and related metadata, which Customer transmits to the Company in connection with the use of the Company Positioning Service, other than Personal Data.

Customer Software means mobile application Software that is developed by, or licensed to, Customer, and which integrates the Company Software for purposes of using the Company Positioning Service.

Device Data means (i) a mobile device specific identifier of a mobile device such as, but not by way of limitation, UDID, iOS IDFA, and Android Advertising ID; (ii) a mobile device model information; and (iii) data about end users’ use of the Company Positioning Service; and (iii) Location Data.

Intellectual Property or IP means all (a) technology, formulae, algorithms, ideas, creations, inventions, discoveries, and improvements (whether patentable or non-patentable and whether or not reduced to practice); (b) technical, engineering, manufacturing, product, marketing, servicing, financial, supplier, personnel and other information and materials; (c) specifications, designs, models, devices, prototypes, schematics and development tools; (d) Works of Authorship, including Software; (e) databases and other compilations and collections of data or information; (f) Trademarks; (g) Confidential Information (as set out in Section 12); and (i) tangible embodiments of any of the foregoing and of any Intellectual Property Rights, in any form or media whether or not specifically listed herein.

Intellectual Property Rights means all rights (anywhere in the world, whether statutory, common law or otherwise) relating to, arising from, or associated with Intellectual Property, including (a) patents and patent applications, utility models and applications for utility models, inventor’s certificates and applications for inventor’s certificates, and invention disclosure statements; (b) copyrights and all other rights with respect to Works of Authorship and all registrations thereof and applications therefor (including moral and economic rights, however denominated); (c) other rights with respect to Software, including registrations thereof and applications therefor; (d) industrial design rights and registrations thereof and applications therefor; (e) rights with respect to Trademarks, and all registrations thereof and applications therefor; (f) rights with respect to Confidential Information; (g) rights with respect to databases and other compilations and collections of data or information, including registrations thereof and applications therefor; (h) publicity and privacy rights, including all rights with respect to use of a person’s name, signature, likeness, image, photograph, voice, identity, personality, and biographical and personal information and materials; and (i) any rights equivalent or similar to any of the foregoing.

Location Data means the mobile device’s position based on the algorithmic analysis of Sensor Data or as reported by the mobile device operating system location services or a position estimated by any other means and delivered by or through the Customer Software to the Company Positioning Service with the Company API provided for example by end user defined point or location triggered by a beacon.

MAU means the number of monthly unique users of the Customer Software which incorporate the Company Software and which have accessed the Company Positioning Service.

Personal Data means data relating to an identified or identifiable natural person and as otherwise defined under applicable laws.

Sensor Data means data collected by any sensor or interface of a mobile device including, but not limited to, accelerometer, barometer, temperature, gyroscope, radio transmitters, cellular wifi, Bluetooth, and magnetometer sensors.

Software means all (a) computer programs and other software, including software implementations of algorithms, models, and methodologies, whether in source code, object code or other form, including libraries, subroutines and other components thereof; (b) computerized databases and other computerized compilations and collections of data or information, including all data and information included in such databases, compilations or collections; (c) screens, user interfaces, command structures, report formats, templates, menus, buttons and icons; (d) descriptions, flow charts, architectures, development tools, and other materials used to design, plan, organize and develop any of the foregoing; and (e) all documentation, including development, diagnostic, support, user and training documentation related to any of the foregoing.

Trademarks means trademarks, service marks, logos and design marks, trade dress, trade names, corporate and company names, domain names, fictitious and other business names, and brand names, together with all goodwill associated with any of the foregoing.

Works of Authorship means Software, and all other content, images, graphics, text, photographs, artwork, audio-visual works, sound recordings, graphs, drawings, reports, analyses, writings, and other works of authorship and copyrightable subject matter.

3. Company Positioning Service User Account

In order to access and use the Company Positioning Service, you must create an account at the Company’s website https://app.indooratlas.com/login (the “Customer Account”).

In connection with creating a Customer Account, you agree to provide accurate, current and complete information (including Personal Data, as required) for your account (the “Account Credentials”), and to keep the Account Credentials updated with correct information at all times. You are responsible for maintaining the confidentiality of your Account Credentials, and agree to notify us immediately if your Account Credentials are lost, stolen, disclosed to an unauthorized third party, used to access the Customer Account without your permission, or otherwise compromised. You agree and acknowledge that you are responsible for all activities that occur under your Account Credentials. We process Personal Data that may be included the Account Credentials in accordance with our Developer Privacy Policy, available at https://www.indooratlas.com/privacy-policy/.

4. Fees and Payment

In the event (i) your use of the Company Positioning Service in a commercial setting or (ii) your use of the Company Position Service 10 MAUs, you must pay a monthly fee, payable in arrears (the “Service Fee”), to the Company for the Company Positioning Service pursuant to the Fee Schedule accessible through the Customer Account. The method and term of payment are also available to you by accessing the Customer Account Page. The Service Fee is exclusive of any deductions or withholding on account of any taxes, levies, fees or other charges.

For credit card payments we use a third-party payment processor to bill you through a credit card linked to your Customer Account. The processing of payments will be subject to the terms, conditions and privacy policies of such a third party payment processor in addition to these Terms.

Eligible Customers, as determined by the Company in its sole discretion and as indicated in the Customer Account, may be invoiced for the Service Fee. Any invoice is due 30 days net from Customer’s receipt of the invoice.

Any late payments due pursuant to these Terms are subject to interest at the rate of 1.5 % per month or the maximum interest allowed by law, whichever is higher. Such interest shall be computed on the unpaid balance for each day payment is not received after the date on which payment was originally due.

If we do not receive payment from you, you agree to pay all amounts due on your Customer Account upon demand.

We reserve the right to adjust or amend the Fee Schedule from time to time. In this case the Company will inform you of any changes by posting a notice on the Customer Account and/or by emailing Customer no later than 60 days prior to the changes and/or beginning of a new Term. If you do not agree to such adjustments or amendments, you can terminate these Terms by accessing the Customer Account and notifying us there before the new Service period begins and/or price or other changes are effective. You acknowledge and agree that you must pay the entire Service Fee for the month during which you terminate these Terms.

5. Right to Access and Use the Company Service and the Company Software

Subject to your acceptance of these Terms, you are a granted a revocable, limited, personal, non-assignable, non-transferable, non-sub-licensable right to access and use the Company Positioning Service and the Company Software. Your right to access and use the Company Positioning Service and Company Software is valid in all countries of the world, except in the excluded industries and sectors in certain countries listed below (“Excluded Industries and Sectors”) where Company has granted limited exclusivities for certain operators. For the sake of clarity, you are not permitted to use the Company Positioning Service or Company Software within the Excluded Industries and Sectors defined below.

Excluded Industries and Sectors:

During the Term, you have the above mentioned right to access and use the Company Positioning Service and the Company Software – they are not sold to you. You agree that the Company and its licensors own all right, title and interest in and to the Company Positioning Service and/or the Company Software, including all Intellectual Property Rights therein. You agree not to delete or in any manner alter the copyright, trademark or other proprietary rights notices or markings which may appear on the Company Positioning Service and/or the Company Software or use the Company Positioning Service and/or the Company Software in a manner which could cause the Company to infringe the granted exclusive rights for Excluded Industries and Sectors defined above.

6. Data Use

6.1. Customer Delivered Data

You hereby grant to the Company during the Term of these Terms a non-exclusive, worldwide, perpetual, irrevocable right and license to:

• access, collect, use, copy, assemble, compile, analyze, modify, transform, receive, transmit, and create derivative works of, Customer Delivered Data; and
• use Customer Delivered Data for purposes of optimization, statistical analysis, and Company Positioning Service improvement carried out by the Company.

You are responsible for and warrant that you have the right to deliver the Customer Delivered Data to the Company and to grant the Company the rights provided hereunder.

6.2. Company Developed Data

The Company Developed Data are the sole and exclusive property of the Company.

7. Intellectual Property Rights

7.1. Company IP.

Except and solely to the extent as licensed to Customer in these Terms, as between the Company and Customer, the Company retains: (a) all right, title, and interest in and to the Company Positioning Service and Company IP, whether or not specifically recognized or perfected under applicable law, and all legally protectable elements, derivative works, modifications and enhancements thereto; and any Software or technology solely developed by or for the Company to support the Company Positioning Service and (b) all Intellectual Property rights of any kind in the Company Positioning Service and the Company IP. Moreover, Intellectual Property Rights to the Company Developed Data shall belong to the Company and the Company Developed Data are the sole and exclusive property of the Company.

7.2. Customer IP.

Except and solely to the extent licensed to the Company in these Terms, as between Customer and the Company, Customer retains all Intellectual Property Rights of any kind in the Customer IP. Moreover, Intellectual Property Rights to the Customer Delivered Data shall belong to Customer and the Customer Delivered Data shall be Customer’s sole and exclusive property.

7.3. Co-Development.

The Parties to these Terms do not intend to co-develop any Software, technology or code for purposes of these Terms. Prior to co-developing any Software, the Parties shall agree, in writing, upon the proprietary rights with respect to such co-developed Software.

8. Personal Data

To the extent that any of the Company Developed Data, Customer Delivered Data, or Device Data constitutes Personal Data, each Company and Customer shall process such Personal Data in compliance with the laws applicable to Personal Data and each of the Company’s and Customer’s privacy policies. Each Party shall keep and upon each Party’s request, and subject to applicable confidentiality provisions, make available, the legal documentation on each Party’s internal controls with respect to Personal Data.

Customer shall defend, indemnify and hold harmless the Company from and against any and all third party claims, actions, liabilities, losses, damages and expenses which arise directly or indirectly out of or in connection with Customer’s data processing activities under or in connection with these Terms, including without limitation those arising out of any third party demand, claim or action, or any breach of contract, negligence, fraud, willful misconduct, breach of statutory duty or non-compliance with any part of applicable data protection and/or privacy laws.

9. Software Updates

These Terms will govern any upgrades, updates, supplements and add-on components (if any) to the Company Software that the Company may provide to you or make available to you after the date you obtain your initial copy of the Company Software (collectively, the “Updates“), unless we provide other terms along with such Updates. After upgrading, you may no longer use the older version of the Company Software unless agreed to otherwise in writing between you and the Company. You acknowledge and agree that the Company may automatically check the version of the Company Software and/or its components that you are utilizing and may provide Updates to the Company Software.

10. Customer Obligations

The Customer agrees that the Company processes the personal data of the end-users of the Customer as described in, Appendix 1, the Data Processing Agreement.

You shall:

• Promptly integrate with the Company Positioning Service and maintain the most recent version of the Company Software, in a manner that complies with the technical and implementation requirements provided under these Terms or by the Company from time to time;
• Comply with any Company Positioning Service protocols and any other instructions contained in any Company documentation for the Company Positioning Service;
• Ensure that the collection and use of Personal Data is done in compliance with the applicable data protection laws and Customer’s privacy policy applicable to the collection of Personal Data (the “Customer Privacy Policy”);
• Ensure that the Customer Privacy Policy is easily accessible, linked to conspicuously on Customer’s home page and other relevant pages of Customer’s website and, as applicable, Customer’s Software and make the Customer Privacy Policy available to the Company upon the Company’s advance written request;
• Provide conspicuous notice to, and obtain opt-in consent from, Customer’s end users regarding the processing of Location Data;
• Disclose the collection and disclosure of Device Data in the Customer Privacy Policy;
• Comply with Customer end-users’ preferences regarding Device Data;
• For Customer end-users in the European Union, provide in the Customer Privacy Policy such end-users with clear notice of, and obtain such end-users’ consent to, the transfer, storage, and use of their information in the United States and any other country where the Company, our service providers, and our advertising partners may operate, and shall further notify such end-users in the Customer Privacy Policy that the privacy and data protection laws in some of these countries may vary from the laws in the country in which such end-users live; and
• Ensure that Customer’s Software, websites, distribution, data handling and business practices, comply with any applicable third party contractual terms, licenses, policies and guidelines; intellectual property laws and license restrictions; and legal, regulatory requirements and self-regulation, and the like, that apply to Customer’s Software, websites, distribution, data handling and business practices.

You agree not to:

• Reproduce the Company Positioning Service or any part thereof in any form or by any means;
• Copy or modify, or create derivative works of the Company Positioning Service or any part thereof (including but not limited to any Company Software that forms part of the Company Positioning Service), including, without limitation, adapting or modifying the Company Positioning Service;
• Sell, rent, lease, distribute, transfer, license, sublicense, lend or otherwise assign any rights to, or any part of, the Company Positioning Service to any third party;
• Exploit the Company Positioning Service in any unauthorized manner whatsoever, including without limitation, by trespass or burdening network capacity;
• Disassemble, decompile, reverse engineer, or attempt to derive the source code of the Company Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law;
• Misrepresent the source of ownership of the Company Positioning Service;
• Scrape, build databases or otherwise create permanent copies of any content derived from the Company Positioning Service;
• Use the Company Positioning Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party.
• Exploit the Company Positioning Service or Company Software in Excluded Industries and Sectors.

You agree:

• To comply with any technical restrictions in the Company Positioning Service that allow the Customer to use the Company Positioning Service only in certain ways;
• That the Company may collect and use comments, feedback, suggestions, and other information provided by Customer, if any, related to the Company Positioning Service and/or the Company Software and that the Company may use this information to improve and develop the Company Positioning Service and/or the Company Software.

You represent and warrant that:

• The Customer Software is not a mobile application or other online service directed to children, as defined under the Children’s Online Privacy Protection Act (“COPPA”), and (ii) that Customer will not transmit any “Personal Information” (as defined under COPPA) about or relating to an individual under the age of 13 to the Company Positioning Service; and
• Customer will not use or otherwise transport, export or re-export (directly or indirectly) the Company Positioning Service into any country forbidden to receive the Company Positioning Service by any U.S. or other jurisdictions’ export or technology laws or regulations or otherwise violate such laws or regulations, that may be amended from time to time. In particular, Customer represents and warrants that Customer will not use or otherwise transport, export or re-export the Company Positioning Service to a country that is subject to a U.S. Government embargo or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. Customer also represents and warrants that Customer is not located in any such country or on any such list.

11. Indemnities

Customer will indemnify, defend, and hold harmless the Company from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim or demand by any third party regarding the Customer’s use of the Company Positioning Service and/or the Company Software.

The Company will indemnify, defend, and hold harmless the Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against the Customer to the extent it is based on that the Company’s technology used to provide the Company Positioning Service to Customer infringes any copyright, trade secret, patent, or trademark right of a third party, provided that Customer (a) promptly gives the Company written notice of the claim; (b) gives the Company sole control of the defense and settlement of the claim; and (c) gives the Company all reasonable assistance. In no event will the Company have any obligations or liability under this section to the extent a claim arises from: (i) use of the Company Positioning Service or technology in a modified form or in combination with materials not furnished by the Company; (ii) any content, information, or data provided by Customer, or other third parties, including without limitation Customer Delivered Data; (iii) arises from Customer’s breach of these Terms; (iv) is asserted by a company, which exercises control over Customer or which is controlled by Customer; or (v) the Company‘s compliance with Customer’s written specifications or directions, including the incorporation of any materials provided by or requested by Customer.

12. Confidentiality

Each Party shall keep in confidence all Confidential Information and shall not disclose the Confidential Information to any third party or use the Confidential Information for any purpose other than for the purpose of this Agreement. “Confidential Information” for the purposes of these Terms shall mean all information and/or business or trade secrets given by a Party to the other Party, including all documents, information and other material irrespective of the manner or form in which the information is disclosed or how the Party receiving the information otherwise learns it or whether the information can be or has been protected as an intellectual property right by the disclosing Party.

A receiving Party shall have the right to:

• copy Confidential Information only to the extent necessary for the purpose of these Terms;
• disclose Confidential Information only to those of its employees who need to know Confidential Information for the purpose of these Terms; and
• disclose Confidential Information to its own advisors and possible subcontractors provided that such advisors are bound by confidentiality provisions at least as restrictive as contained in this Section 12.

Notwithstanding the foregoing the confidentiality obligation shall not be applied to any material or information:

• which is generally available or otherwise public other than by a breach of these Terms on the part of the receiving Party; or
• which the Party has received from a third party without any obligation of confidentiality; or
• which was in the possession of the receiving Party prior to receipt of the same from the other Party without any obligation of confidentiality related thereto; or
• which a Party has developed independently without using material or information received from the other Party.

Notwithstanding the foregoing either Party shall be entitled to disclose Confidential Information, where such disclosure is required pursuant to law, decree or order issued by competent authorities, or juridical order.

Each Party shall cease using Confidential Information received from the other Party promptly upon termination of these Terms or when the Party no longer needs the Confidential Information in question for the purpose of these Terms and, unless the Parties separately agree on the destruction of such material, return the material in question and all copies thereof. Each Party shall, however, be entitled to retain copies required by law or regulations.

In particular, Customer acknowledges that the Company Positioning Service and any related documentation contains valuable proprietary information and trade secrets and that unauthorized or improper use of the Company Positioning Service and/or the documentation will result in irreparable harm to the Company for which monetary damages would be inadequate and for which the Company will be entitled to immediate injunctive relief.

The rights and obligations under this Section 12 shall survive the termination or expiration of these Terms and shall remain in force for a period of five years from the date of disclosure of the respective piece of Confidential Information.

13. No Warranty

THE SERVICE IS OFFERED ON AN AS-IS BASIS. THE COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, PERFORMANCE, OR SUITABILITY; ANY WARRANTY RELATING TO ANY THIRD-PARTY PRODUCTS OR THIRD-PARTY SERVICES; ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING THE COMPANY POSITIONING SERVICE; OR ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE COMPANY POSITIONING SERVICE OR THE RESULTS OF ANY RECOMMENDATION WE MAY MAKE. THE COMPANY DOES NOT WARRANT THAT THE COMPANY POSITIONING SERVICE MEETS CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE COMPANY POSITIONING SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER AGREES THAT THE COMPANY WILL HAVE NO RESPONSIBILITY (OR RELATED LIABILITY) FOR BACKING UP CUSTOMER DATA OR ANY INFORMATION THAT CUSTOMER PROVIDES TO THE COMPANY.

14. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, THE COMPANY, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, PROVIDERS, AGENTS, PARENT COMPANIES, SISTER COMPANIES, SUBSIDIARIES, AND OTHER AFFILIATES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGE, OR ANY OTHER DAMAGE AND LOSS (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFIT, LOSS OF DATA, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY, INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR REASONABLE CARE, PERSONAL INJURY OR WORK STOPPAGE), COSTS, EXPENSES AND PAYMENTS, REGARDLESS OF THE ALLEGED LIABILITY OR FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, INTELLECTUAL PROPERTY INFRINGEMENT, PRODUCT LIABILITY AND STRICT LIABILITY, THAT MAY RESULT FROM, OR IN CONNECTION WITH THE USE OR THE INABILITY TO USE THE COMPANY POSITIONING SERVICE OR THE COMPANY SOFTWARE, OR FROM ANY FAILURE, ERROR, OR DOWNTIME IN THE COMPANY POSITIONING SERVICE, OR FROM ANY FAULT OR ERROR MADE BY THE COMPANY’S STAFF, OR FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, REGARDLESS OF WHETHER THE COMPANY, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, PROVIDERS, AGENTS, PARENT COMPANIES, SISTER COMPANIES, SUBSIDIARIES, OR OTHER AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF THE COMPANY, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, PROVIDERS, AGENTS, PARENT COMPANIES, SISTER COMPANIES, SUBSIDIARIES, AND OTHER AFFILIATES FOR ANY AND ALL CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, UNDER ANY THEORY OF LIABILITY, EXCEED THE LESSER OF €50,000 OR THE AMOUNT PAID BY THE CUSTOMER TO THE COMPANY HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

15. Term and Termination

These Terms will commence when you first download the Company Software and will continue until terminated (the “Term”). You may terminate these Terms, with or without cause, at any time by sending written (via email) notice to the Company at or by submitting your termination notice through the Customer Account; provided that such termination will become effective upon the earlier of 30 business days after the Company’s receipt of such notice or the date upon which, after receiving such notice, the Company suspends your ability to access or use the Company Positioning Service or terminates the Customer Account. The Company may terminate these Terms or any Customer Account, with or without cause, in the Company’s sole discretion, at any time. Your rights under these Terms will terminate immediately and automatically without notice from the Company if you fail to comply with any of the terms and conditions of these Terms. Upon termination of these Terms, (a) any rights and licenses granted to you in these Terms will automatically terminate, and you must immediately cease all use of any of the Company Positioning Service, as well as the Company Software, and destroy or erase all copies, full or partial, of any Company Software in your possession or control. Sections 11, 12, 14, and 16, shall survive termination of these Terms.

16. Miscellaneous

16.1. U.S. Government End-Users

This section 16.1. only applies to the U.S. Government or if you are or are acting on behalf of an agency or instrumentality of the U.S. Government. The Company Software is “commercial computer software” developed exclusively at private expense. Pursuant to FAR 12.212 or DFARS 227 7202 and their successors, as applicable, use, reproduction and disclosure of the Company Software is governed by the terms of these Terms.

16.2. Amendments to the Terms

The Company may amend and modify these Terms from time to time. Material changes will take effect upon notification to you, which may occur via email or by posting on the Company’s website. Other changes will take effect immediately. You agree to be bound by any of the changes made in the Terms, including changes to any and all documents and policies incorporated thereto. Continuing to use the Company Positioning Service will indicate your acceptance of the amended Terms. If you do not agree with the amended Terms, then you must avoid any further use of the Company Positioning Service.

16.3. Headings

The headings in these Terms are for convenience of reference only and shall not in any way limit or affect the meaning or interpretation of the provisions of these Terms.

16.4. Assignment

Customer may not assign or transfer its rights or obligations under these Terms without the prior written consent of the Company. The Company may assign the Agreement or any rights or obligations under the Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or change of control or ownership.

16.5. No Waiver

No failure to exercise or delay in exercising any right, power or privilege vested in any Party under the Agreement shall operate as a waiver of that party’s right to do so.

16.6. Severability

In the event that any provision of these Terms is found to be unenforceable or illegal the remaining provisions shall continue to be in full force and effect and the unenforceable provisions shall be deemed to be amended to such extent as is necessary to make them binding and enforceable on the parties.

16.7. Entire Agreement

These Terms constitute the entire agreement among the Parties with respect to the subject matter hereof and shall supersede all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to the subject matter hereof. These Terms are not intended to confer upon any person other than the Parties hereto any rights or remedies hereunder.

16.8. Notices

All notices, demands or other communications to or upon the Parties hereto, shall be deemed to have been duly given or made when delivered by mail, e-mail or facsimile letter to the contact person of the other party.

16.9. Force Majeure

A “Force Majeure Event” means an event beyond the control of a Party, which by its nature could not have been foreseen by such Party, or, if it could have been foreseen, was unavoidable and includes, without limitation, acts of God, storms, floods, riots, fires, cloud service provider performance failures and/or power outages, power outages, sabotage, civil commotion or civil unrest, interference by civil or military authorities, and acts of war (declared or undeclared). Continued performance of the Company Positioning Service may be suspended immediately to the extent caused by Force Majeure. The Party claiming suspension of its performance due to Force Majeure will give prompt notice to the other of the occurrence of the event giving rise to the suspension and of its nature and anticipated duration. The Parties shall cooperate with each other to find alternative means and methods for the provision of the suspended Company Positioning Service. Without limiting the generality of the foregoing, neither Party shall be under any liability for failure to fulfil any obligation under this Agreement, so long as and to the extent to which the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of circumstances of Force Majeure.

16.10. Reference Right

The Company may advertise or publicly announce and otherwise publicly indicate that the Company provides or has provided the Company Positioning Service to Customer.

16.11. Subcontracting

Customer acknowledges and agrees that the Company may use subcontractors in the performance of its obligations hereunder.

16.12. Governing Law and Resolution of Disputes

These Terms shall be governed by and construed in accordance with the laws of Finland, without regard to conflicts of laws rules and principles thereof. Any dispute, controversy or claim arising out of or in connection with these Terms, or the breach, termination or invalidity thereof, shall be settled by arbitration administered by the Finland Chamber of Commerce in accordance with the Arbitration Rules of the Finland Chamber of Commerce Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

The seat of arbitration shall be Helsinki, Finland. The language to be used in the arbitral proceedings shall be English.

Nothing contained in these Terms shall deny either Party the right to seek injunctive or other equitable relief from a court of competent jurisdiction in the context of a bona fide emergency or prospective irreparable harm and such an action may be filed and maintained notwithstanding any ongoing arbitration proceeding.

BOTH PARTIES KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT THE PARTIES MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT.

APPENDIX 1 DATA PROCESSING AGREEMENT

BACKGROUND AND PURPOSE

This Data Processing Agreement (“DPA”) sets out the terms and conditions for the processing of Personal Data by the Company on behalf of the Customer under the Agreement. This DPA forms an essential and inseparable part of the Agreement. Regardless of what has been set out in the Agreement, in case of any discrepancy or conflict between this DPA and any other document forming a part of the Agreement, this DPA shall prevail.

The Company acts as a processor and the Customer acts as a controller of Personal Data, the concepts of which are further defined in the GDPR.

DEFINITIONS

Data Protection Regulation means all applicable laws relating to protection of personal data, including without limitation the laws implementing Directive 2002/58/EC, the GDPR and any amendments thereto.

Data Subject means a natural person whose Personal Data is processed by the Company under the Agreement and this DPA.

GDPR means the EU General Data Protection Regulation (EU) 2016/679 and any amendments thereto.

Personal Data means any information relating to the Data Subject, and which the Company is processing under the Agreement, and of which the Customer is the data controller. In this regard, processing means any operation, or set of operations, performed by the Company on Personal Data, by any means, such as collecting, organizing, storing, amending, retrieving, using, disclosing, transmitting, combining, blocking, erasing or destructing Personal Data.

Personal Data Breach means a breach of security leading to destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed, which is adverse to the Data Protection Regulation.

PERSONAL DATA

The subject-matter, the nature of the processing of Personal Data by the Company is set out in the Agreement.

Personal Data processed under this DPA is device sensor and location data, in particular

• Location data provided by the device (including but not limited to GPS/GNSS)
• Wi-Fi and BLE signal data
• Magnetic and inertial sensor data
• Detailed device model information
• Device status information such as battery level
• Exact timestamps

Under this DPA, Personal Data is used to

• Compute the indoor and outdoor locations of the Data Subjects in order to provide the Company Positioning Service to the Customer
• Provide analytics, billing and customer support related to the Company Positioning Service to the Customer
• Produce anonymized data for research & development

The Data Subjects whose Personal Data is processed under this DPA are natural persons who use a Customer application that integrates Company Software.

RIGHTS AND RESPONSIBILITIES OF THE CUSTOMER

The Customer shall process Personal Data in compliance with the Data Protection Regulation and good data processing practice.

The Customer’s documented instructions on processing of Personal Data are primarily given in the Agreement and this DPA. The Customer shall have the right to give the Company new lawful documented instructions or amend the documented instructions given by the Customer to the Company. However, the implementation of the Customer’s new documented instructions to the Company require a written agreement between the Parties. The Company is entitled to charge for additional costs for complying with new or amended documented instructions from the Customer.

RESPONSIBILITIES OF THE COMPANY

The Company shall process Personal Data in compliance with the Data Protection Regulation and documented instructions from the Customer, unless required to do so by law to which the Company is subject. In such case, the Company shall inform the Customer of such requirement without undue delay, unless informing of such requirement is prohibited by that law. In case the Company considers that instructions of the Customer are in breach of the Data Protection Regulation, the Company shall inform the Customer without undue delay.

The Company shall implement technical and organizational measures to ensure an appropriate level of security to protect Personal Data against unauthorized access and loss, destruction, damage, alteration or disclosure, or against other unlawful processing.

The Company shall ensure that the Company’s personnel with access to Personal Data have committed themselves to appropriate confidentiality.

The Company shall provide reasonable assistance to the Customer in responding to requests for exercising the rights of Data Subjects, taking into account the information available to the Company.

Taking into account the information available to the Company, the Company shall provide reasonable assistance to the Customer to ensure the Customer’s compliance with the Customer’s obligations regarding data security, Personal Data Breaches, data protection impact assessments and prior consulting obligations, as set out in the Data Protection Regulation.

The Company shall make available to the Customer all information necessary to demonstrate compliance with obligations set out in this DPA and in the Data Protection Regulation.

The Company shall process Personal Data only during the term of the Agreement. Upon termination or expiry of the Agreement, the Company shall either destroy or return Personal Data to the Customer, unless otherwise required by the Data Protection Regulation or other applicable legislation.

PERSONAL DATA BREACH NOTIFICATION

The Company shall notify the Customer of all Personal Data Breaches without undue delay after becoming aware of the Personal Data Breach.

After the Company has become aware of the Personal Data Breach, the Company shall ensure security of Personal Data and take appropriate measures to ensure protection of Personal Data in cooperation with the Customer.

TRANSFERS OF PERSONAL DATA

The Company may transfer Personal Data outside the borders of the European Economic Area insofar as this is necessary for the provision of the Company Positioning Service to the Customer.
Where the Company transfers Personal Data as described in Section 7.1, the Company shall ensure that a valid mechanism under the Data Protection Regulation is applicable to such transfers.

SUBCONTRACTORS

The Company shall notify Customer about an addition of a subcontractor processing Personal Data under this DPA in reasonable time prior to the subcontractor beginning to process Personal Data. If the Customer does not object the use of the new subcontractor in writing in ten (10) days from notice of the Company, the Company may use the new subcontractor in processing Personal Data. For avoidance of doubt, the Customer has accepted all sub-processors used by the Company at the time of signing of the Agreement.

The Customer may object to the use of the new subcontractor if the Customer has well-grounded doubts about the ability of the subcontractor to comply with the Data Protection Regulation. In such case, the Company may terminate the Agreement by a thirty (30) days’ written notice to the Customer.

The Company shall take appropriate measures to ensure that the used subcontractors comply with the obligations specified in this DPA.

AUDITING

The Customer shall have the right to audit the Company’s compliance with the obligations set out in this DPA. When the Customer requests for an audit, the Parties agree that an independent third party appointed by the Customer shall conduct the audit in order for the Customer to ensure that the Company has fulfilled the obligations set out in this DPA. The Customer has the right to request an audit prescribed in this Section 9.1 once in every twelve (12) months.

The Customer shall bear the costs and expenses incurred by the Company and the Customer in connection with the audit. If the audit reveals substantive shortcomings, the Company shall bear the costs and expenses incurred by the Company and reasonable fees and expenses of the third party.

The Company shall assist the Customer and the third party in conducting the audit with reasonable measures.