Terms and Conditions for TomTom Content
Services
of
TomTom International
B.V.
Rembrandtplein 35, 1017 CT
(“TomTom”)
1)
Definitions
License
|
license to the TomTom Content and TomTom Button as
further detailed in Section 3
|
Modify
|
copy, update, upgrade, supplement, reproduce and
prepare derivative works of
|
TomTom
Button
|
means a TomTom Content Service providing you the
add-to-TomTom button or any other software tool allowing you to create
User Generated Content and Upload this to your website and offer it to
users for easy installation on a TomTom device
|
TomTom Content
|
any information, text, files,
scripts, graphics, photos, sounds, music, videos, interactive features or
other similar materials generated by TomTom or its suppliers
|
TomTom Content Services
|
any TomTom content services made
available to you from or via a TomTom website, TomTom HOME, TomTom device,
or any other TomTom application
|
Upload
|
upload, post, submit, or
share
|
Use
|
use, download or be provided
with
|
User Generated Content
|
any navigation content, information,
text, files, scripts, graphics, photos, sounds, music, videos, interactive
features or other similar materials generated by you or by other users of
the TomTom Content Services
|
2)
Scope
a)
These
Terms and Conditions shall apply to the use of TomTom Content Services through
which you may i) Use any TomTom Content or that ii) may allow you to Upload,
Modify or Use any User Generated Content or iii) through which you may have
access to any third party functionalities or iv) that allows you to offer any
User Generated Content on your website.
b)
TomTom reserves the
right to make amendments or additions to these Terms and Conditions at any time.
The use of any software hereunder may be subject to additional terms and
conditions.
c)
By using a TomTom
Content
Service you accept and are bound to
all the Terms and Conditions referred herein and any amendments and additions to
it.
3)
License to the TomTom Content and TomTom
Button
a)
TomTom hereby
grants you a License to Use the TomTom Content and TomTom Button, if any, for
personal and private use only in accordance with these Terms and Conditions. You
are not entitled to Modify the TomTom Content.
b)
You may Use the
TomTom Content on only one computer or device at any time and in combination
with only one navigation system. You may not provide the TomTom Content to
others, directly or indirectly for their or anyone else’s use.
c)
This Licence is
non-exclusive and non-transferable, which means that TomTom is free to license
the TomTom Content and TomTom Button to other users and that your right to Use
the TomTom Content and TomTom Button cannot be transferred by you to someone
else.
d)
This Licence does
not include any right to obtain future upgrades, updates or supplements to or
any support or technical assistance relating to the TomTom Content or the TomTom
Button. If upgrades, updates or supplements to the TomTom Content or the TomTom
Button are obtained, the use of such upgrades, updates or supplements will be
governed by these Terms and Conditions or such other terms and conditions as you
shall be asked to accept prior to TomTom providing you with the relevant
upgrade, update or supplement. TomTom reserves the right, with or without
notice, to discontinue, limit or change the TomTom Content, the TomTom Button
and any update, upgrade or supplement services.
e)
Without prejudice
to any other rights, TomTom may immediately terminate the Licence if you fail to
materially comply with any term of these Terms and Conditions. In such event,
you must return or destroy any TomTom Content or TomTom Button in your
possession.
4)
Permission to use the TomTom Content Services and User
Generated Content
a)
TomTom grants you
permission to access and use the
TomTom
Content
Services and to Upload, Use and Modify the
User Generated Content for personal and private use only and to provide TomTom
with copies of such Modified User Generated Content through any technology or
means made available by TomTom through the TomTom
Content
Services, all in accordance with these Terms
and Conditions. You may not access and use the TomTom Content Services, or Use,
Upload or Modify the User Generated Content for advertising, promotional,
marketing or other commercial and/or sales purposes.
b)
In the event the
TomTom Content Services provide you with a TomTom Button allowing you to Upload
User Generated Content on your own website, you may display the TomTom Button on
your website only. The TomTom Button must appear by itself, with a minimum
spacing of five (5) pixels between each side of the TomTom Button and other
graphic or textual elements on your website. You are not entitled to remove,
distort or alter any element of the TomTom Button (including the html code, any
other software code, copyright notices, trademark notices or other proprietary
notices) or otherwise change the size or appearance of the TomTom Button in any
way.
c)
TomTom Content
Services do not include the provision of any support or technical assistance
relating to the use and maintenance of the TomTom Content Services or the User
Generated Content
.
d)
TomTom may, at its
sole discretion, collect and process usage statistics related to the
User Generated Content to improve its products and/or
services.
e)
TomTom reserves the
right, with or without notice, to discontinue, limit or change the TomTom
Content
Services.
5)
Permission to use User Generated Content offered via a
TomTom Button
a)
Contrary to Clause
4.a, in the event User Generated Content is offered to you via a TomTom Button,
TomTom only grants you permission to Use but not to Modify or Upload such User
Generated Content.
b)
Contrary to Clause
11.c and 11.d, in the event you Upload any User Generated Content via a TomTom
Button, you only grant TomTom the right to Use and Upload such User Generated
Content and display links thereto in order to allow users to Use such User
Generated Content without allowing such users the right to Modify or Upload the
User Generated Content.
6)
Commercial use of TomTom Button and User Generated
Content
a)
In deviation of
Clauses 3.a. and 4.a, you may access and use the
TomTom
Button and Upload User Generated Content
through the TomTom Button on your website for commercial purposes provided that
you shall not, directly or indirectly, charge any third party for the Use of
such User Generated Content or impose any commercial or other restrictions or
conditions that may prevent such third party from Using the User Generated
Content in accordance with these Terms and Conditions.
b)
In the event you
access and use the
TomTom
Button and Upload User Generated Content as
indicated in Clause 6.a above, you shall:
i.
include in your
website a disclaimer covering that (i) to the maximum extent permitted by
applicable law, TomTom disclaims all warranties, duties and conditions, whether
express, implied or statutory, including, but not limited to, any (if any)
warranties, duties or conditions of satisfactory quality, of fitness for a
particular purpose, of reliability or availability, of accuracy or completeness
of responses, of results, of workmanlike effort, of lack of viruses, or
infringements of third party rights and of reasonable care and skill, all with
regard to the TomTom Button or User Generated Content, (ii) TomTom shall have no
obligation to provide you or any users with support and technical assistance
relating to the use and maintenance of the TomTom Button or User Generated
Content, and (iii) TomTom shall not be liable to you, the user or any other
party for any direct, indirect, incidental, consequential or other damages
resulting from Using or Uploading, as applicable, the TomTom Button or the User
Generated Content.
ii.
indemnify, defend
and hold TomTom harmless from and against any claims, suits, losses, damages,
liabilities, costs, and expenses (including reasonable attorneys’ fees) brought
by third parties resulting from or relating to (i) any failure by you to perform
or to comply with any provision of these Terms and Conditions, (ii) the Use or
Uploading, as applicable, of the TomTom Button or User Generated Content, (iii)
any representations, warranties, guarantees, or other written or oral statements
made by you relating to the TomTom Button or User Generated Content, other than
as authorized by TomTom in writing, (iv) any assertion that the User Generated
Content infringes any intellectual property held by a third party.
iii.
only use the TomTom
Button in accordance with the TomTom trademark guidelines, if available.
7)
General Restrictions
a)
Renting, lending,
public presentation, performance or broadcasting or any other kind of
distribution of the TomTom
Content
Services,
TomTom Content or (Modified) User Generated Content is prohibited. Other than as
permitted by applicable legislation or as expressly permitted through any
technology or means made available by TomTom through the TomTom
Content
Services, you will not, and will not allow
any person to, alter, distort or modify the TomTom
Content
Services, TomTom Button, TomTom Content or
User Generated Content or any part thereof, to analyse it by means of reverse
engineering, to decompile or disassemble the TomTom
Content
Services, TomTom Button, TomTom Content or
User Generated Content or any part thereof, to break or circumvent encryption or
to allow or enable third parties to do so.
b)
You
may not to use or launch any automated system, including but not limited to,
“robots” and “spiders” that access the TomTom Content Services in a manner that
sends more messages or requests to the TomTom servers than any regular, private
user of the TomTom Content Services can reasonably be expected to produce in a
similar period of time by using a conventional system.
c)
By
accessing or using the TomTom Content Services, you agree to refrain from any
improper behavior which shall include:
i.
trying to gain access to or disrupt
another user’s account, computers or networks without authorization;
ii.
obtaining or trying
to obtain any data through any means from the TomTom
Content
Services, except if TomTom intends to
provide such data or makes it available to you;
iii.
directly or
indirectly charging any third party for the use of the TomTom
Content
Services;
iv.
displaying a TomTom
Button, if any, in a manner that
implies
a
relationship or affiliation with, sponsorship, or endorsement of the User
Generated Content by TomTom, that is misleading, offensive, illegal, harmful,
tortuous, abusive, defamatory, obscene, vulgar, hateful, that infringes any
third party right, is otherwise unlawful, or impairs TomTom’s intellectual
property rights
;
v.
framing or
mirroring any TomTom website or TomTom HOME page on your website, including but
not limited to the page that appears in response to a click on the TomTom
Button
;
vi.
using the TomTom
Content Services in an unlawful way or in violation of any of these Terms and
Conditions;
vii.
creating a false
identity for the purpose of misleading others;
viii.
violating any code
of conduct or other (trademark) guidelines which may be applicable to the TomTom
Content
Service;
ix.
using (any portion
of) the TomTom
Content
Services to harvest or
otherwise collecting information about third parties, including e-mail addresses
or personal data.
8)
Uploading of User Generated
Content
a)
In addition to the
general provisions and restrictions in Clauses 6 and 7 above, you may not
Upload
any User Generated Content
that:
i.
is offensive,
threatening, illegal, harmful, tortuous, abusive, defamatory, obscene, vulgar,
hateful, that infringes any third party right or is otherwise
unlawful;
ii.
that promotes
illegal activities or conduct that is offensive, threatening, harmful, tortuous,
abusive, defamatory, obscene, vulgar, hateful, that infringes any third party
right or is otherwise unlawful;
iii.
that promotes
information that you know is false or misleading;
iv.
(may be) harmful to
TomTom’s business such as, but not limited to, User Generated Content regarding
maps or safety (camera) information;
v.
is protected by
copyright, trade secret or subject to any other third party intellectual
property rights or privacy rights unless you are the owner of such rights or you
have the express permission from the rightful owner of such rights to Upload the
User Generated Content and to grant TomTom and any other users of the TomTom
Content
Services all the rights granted
herein;
vi.
provides personal
data such as telephone numbers, home or e-mail addresses, names or last names
unless with the explicit permission of the subject of such personal
data;
vii.
involves the
transmission of unsolicited mass mail, spam or junk mail;
viii.
contains restricted
or password only access pages or hidden pages or images;
ix.
involves commercial
activities or sales except as expressly provided for in these Terms and
Conditions or with TomTom’s prior written permission;
x.
involves sending or
otherwise making available any material that contains viruses, Trojan horses,
worms, time bombs, or any other similar software that may damage the operation
of TomTom’s servers, computers or networks or a user’s
account, computers, networks or
TomTom
device.
9)
Third Party Materials
TomTom may make use of third party software codes, data,
information functionality, other content and algorithms (“
T
hird Party
Materials
”) in its TomTom Content
Services and TomTom Content. The u
se of Third
Party Materials included in the TomTom Content Services and TomTom Content may
be subject to other terms and conditions.
The official copyright notices
and specific licence conditions of these Third Party Materials are to be found
on or via our website http://www.tomtom.com/
10)
Access to the TomTom
Content
Services
a)
In order to access
or use some of the features of the TomTom
Content
Services, you may be required to register with TomTom or to create a
MyTomTom account.
b)
You are responsible
and liable for any activity that occurs on your account. You are responsible for
your own username and activities related hereto. You should not share your
password with any third party and you should not authorize others to access or
use the TomTom
Content
Services on your
behalf.
c)
You must notify
TomTom immediately in the event you become aware of any access to or usage of
the TomTom
Content
Services by third parties
under your account that you did not authorize or any other possible breach in
security related to the TomTom
Content
Services.
11)
Proprietary Rights
a)
Copyright and other
intellectual, industrial and/or proprietary rights to the TomTom
Content
Services, including the TomTom Button, and
the TomTom Content, to any trademarks, images, logo’s or names contained
therein, and to any copies made thereof are owned by TomTom and/or its
suppliers.
All rights not specifically granted in
these Terms and Conditions are reserved by TomTom.
You may not copy,
download, upload, distribute, broadcast or in any other way reproduce TomTom
Content or a TomTom Button except for creating one copy solely for backup or
archival purposes. You do not acquire ownership of the TomTom Content or TomTom
Button.
b)
TomTom does not
claim any ownership in the User Generated Content.
You affirm and warrant that you own or have the necessary
licenses, rights, consents, and permissions to Upload the
User Generated
Content and to grant TomTom all the rights granted in these Terms and Conditions
including the right to grant other users of the TomTom
Content
Services permission to Use and Modify and
Upload such (Modified) User Generated Content in accordance with these Terms and
Conditions.
c)
By Uploading any
User Generated Content, you will retain all rights you may have therein but you
hereby grant TomTom a worldwide, perpetual, irrevocable, non-exclusive,
royalty-free, transferable license to Use, Upload, Modify, distribute,
sublicense, reverse engineer, decompile or disassemble and display such User
Generated Content or links thereto in any form and through any
media.
d)
You hereby grant
TomTom the right to grant permission to other users of the TomTom
Content
Services to Use and Modify and Upload any
(Modified) User Generated Content that you may Upload through the TomTom
Content
Services in accordance with these Terms and
Conditions.
12)
Misuse and Removal Policy
a)
You are solely
responsible for any User Generated Content that you Upload and for your
interaction with any third party through the TomTom
Content
Services. When notified that any User
Generated Content may violate any part of Clause 8a or any other part of these
Terms and Conditions or infringes any other third party right, TomTom may remove
such User Generated Content without prior notice. TomTom may terminate your
access to and use of the TomTom
Content
Services for Uploading such User Generated Content.
b)
TomTom assumes no
responsibility for monitoring any of the TomTom
Content
Services or User Generated Content.
c)
If you become aware
of any misuse of the TomTom
Content
Services
by any user of the TomTom
Content
Services,
please report such misuse to TomTom by clicking on the button that TomTom
provides for that purpose at any given TomTom website.
13)
Warranty Disclaimer
a)
TomTom does not and
cannot warrant that the TomTom
Content
Services, TomTom Button, TomTom Content, User Generated Content or any
functionalities provided by third parties through the TomTom
Content
Services operate in a manner that is
completely error-free, that any information provided is always accurate nor that
any third party functionalities will always be available or operational.
Calculation errors may occur when Using, Uploading or Modifying, as applicable,
TomTom
Content
Services, TomTom Content, User
Generated Content or third party functionalities in a navigation system such as
those caused by local environmental conditions and/or incomplete or incorrect
data.
b)
TomTom provides or makes available the
TomTom Content
Services, TomTom Button,
TomTom Content, User Generated Content and any third party functionalities “AS
IS AND WITH ALL FAULTS” and hereby disclaims all other warranties, duties and
conditions, whether express, implied or statutory, including, but not limited
to, any (if any) warranties, duties or conditions of satisfactory quality, of
fitness for a particular purpose, of reliability or availability, of accuracy or
completeness of responses, of results, of workmanlike effort, of lack of
viruses, and of reasonable care and skill, all with regard to the TomTom
Content
Services, TomTom Button, TomTom Content,
User Generated Content or third party functionalities. The same disclaimer of
warranties, duties or conditions applies to the provision of or failure to
provide support or other services, information, software, and related content
through the TomTom
Content
Services, TomTom
Button, TomTom Content, User Generated Content or third party functionalities or
otherwise arising out of your access to or Using, Uploading or Modifying, as
applicable, of the TomTom
Content
Services,
TomTom Button, TomTom Content, User Generated Content or third party
functionalities. Also, there is no warranty or condition of quiet enjoyment,
quiet possession, or non-infringement with regard to the TomTom
Content
Services, TomTom Button, TomTom Content,
User Generated Content or third party functionalities provided through the
TomTom
Content
Services.
c)
TomTom may be
dependent on third parties for the provision of some (part of) the TomTom
Content
Services such as when the TomTom
Content
Service entails making available third party
functionalities. TomTom cannot and does not warrant that such third party
functionalities will continue to be available to you at all times and shall be
entitled to stop making such third party functionalities available whenever
TomTom can no longer be reasonably required to do so
without there being an obligation to pay any compensation whatsoever in relation
thereto
.
14)
Liability
a)
TomTom does not endorse any User Generated
Content or any opinion, recommendation, or advice expressed therein, and TomTom
expressly disclaims any and all liability in connection with your access to and
use of such User Generated Content.
b)
To the maximum
extent permitted by applicable law, neither TomTom nor its suppliers or
subcontractors shall be liable to you or to any third party for any damages
either direct, indirect, incidental, consequential or otherwise (including in
each case, but not limited to, damages for the inability to access, Use, Upload
or Modify, as applicable, the TomTom
Content
Services, TomTom Button, TomTom Content, User Generated Content or any
functionalities provided by third parties through the TomTom
Content
Services, loss of data, loss of business,
loss of profits, business interruption or the like) arising out of the use of or
inability to use the TomTom
Content
Services,
TomTom Button, TomTom Content, User Generated Content, any functionalities
provided by third parties through the TomTom
Content
Services or any unauthorized access to your account, even if TomTom has
been advised of the possibility of such damages.
c)
TomTom shall not be
liable for (i) any fraud on the part of its employees, agents and/or users of
the TomTom Content Services; or (ii) any fraudulent misrepresentation on the
part of its employees, agents and/or users of the TomTom Content Services.
d)
Notwithstanding any
of the above or anything else contained in these Terms and Conditions, nothing
in these Terms and Conditions shall limit any party’s liability for death or
personal injury resulting from its own negligence.
e)
The above
limitation of liability does not affect any legal rights under the applicable
national legislation.
15)
Fees
Access to the TomTom
Content
Services is offered to you by TomTom free of charge. TomTom
reserves the right to depart from or to cease offering the TomTom
Content
Services free of charge at any time. TomTom
will inform you if a TomTom
Content
Service is
to be offered for a fee in the future. In such event, you may choose to either
continue your use of the TomTom
Content
Services for such fee or to terminate your use of the TomTom
Content
Service.
16)
Force Majeure
Force majeure
17)
Privacy
a)
TomTom will not disclose information
regarding your personal details, account or transactions to any third party
other than
b)
Please be aware that TomTom does not
monitor your User Generated Content
so that any personal information you may inadvertently
Upload as part of such
User Generated Content
will be visible to other users of the TomTom Content Services.
18)
Links to Third Party Websites
TomTom is not responsible for the
content
19)
Third Party Rights
Third parties have no rights under
applicable legislation in relation to the rights of third parties to rely upon
or to enforce any term of these Terms and Conditions but that does not affect
any right or remedy of a third party which exists or is available apart from
such applicable legislation.
20)
Survival
Any provisions in these Terms and
Conditions which by their nature extend beyond the termination of agreement for
the TomTom Content Services will remain in effect.
21)
Severability
If any provision of these Terms and
Conditions is deemed to be void, invalid, unenforceable or illegal, the other
provisions shall continue in full force and effect. You and TomTom are deemed to
have agreed to new terms and conditions in substitution for such invalid
provisions. These new terms and conditions shall be interpreted, as regards
their contents and effect, as closely as possible to the original text as
written but in such a way that rights can indeed be derived from
them.
22)
Governing law
These Terms and Conditions and any
disputes related to these Terms and Conditions or to the use of the TomTom
Content Services, TomTom Content, User Generated Content or otherwise are
subject to the laws of the place where you have
Version November 2007