Customer desires to make Commercial Use of the Mapillary Solution, and Mapillary is willing to permit such Commercial Use pursuant to and in accordance with the Agreement.
"Agreement": the Terms (including this Supplement) and the Order Form.
"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.
"Order Form": the ordering document (as may be amended), signed by Customer and Mapillary, setting forth the Commercial Use subscriptions Customer purchases, a description of the Product, terms regarding Ancillary Services, if any, and 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 the Effective Date make available a Commercial Use (private repository) subscription to the Mapillary Solution pursuant to and in accordance with this Agreement during the term of Customer's subscription, as set forth in the Order Form. Customer's signature of the Order Form 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.
1.3 Downtime. Mapillary will use commercially reasonable efforts to make the Mapillary Solution available during the subscription 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 remedies of the SLA, which are available only if Customer is entitled to the SLA as set forth in the Order Form.
1.4 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, Ancillary Services, administrative notices and service announcements or changes.
2.1 Description. Subject to Customer's compliance with these Terms, 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:
2.2 Services Deliverables. Mapillary retains all right, title and interest in and to the Mapillary Solution and any Services Deliverables. Subject to Customer's compliance with the Agreement, Mapillary grants to Customer, for as long Customer's subscription to the Mapillary Solution is in effect, a non-exclusive, non-transferable, worldwide license to use such Services Deliverables solely for Customer's internal operations in connection with authorized use of the Mapillary Solution. The licenses set forth in this section are the only licenses granted with respect to the Services Deliverables or associated intellectual property rights. Customer acknowledges that Services Deliverables constitute Mapillary's confidential and proprietary information. Customer will protect the confidentiality of and not disclose Services Deliverables to any third party, other than Customer's employees and contractors performing services exclusively for Customer. Customer will protect the confidentiality of 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.
3.1 Service Level Agreement. This section 3.0: (a) states Customer's sole and exclusive remedy and Mapillary's sole liability 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 86 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 will 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 email@example.com. 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 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 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 1.3).
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|
4.1 Subscriptions; Pro-Ration. Customer will pay to Mapillary the fees listed, on the dates specified, in the Order Form. Unless otherwise specified in the Order From, subscription fees are 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 accounting 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 will be corrected by appropriate adjustment in payment for the period during which the error is discovered, and Customer will 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 will 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 will 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 will 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) will be increased (grossed up) in such amounts as would have been received by Mapillary as if no such withholding or deduction were required.
5.1 Term. Access to the Commercial Use 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 standard price in effect as of the effective date of renewal.
5.3 Effect. Upon termination for cause, Customer will 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 Survival. Access to and rights of use (including Commercial Use) associated with the Mapillary Solution and Content will terminate upon termination of any subscription for any reason, and Customer will cease all use of the Mapillary Solution.
(end of Supplement)