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 navigation 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, navigation 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
behaviour 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 (“Third Party Materials”) in its TomTom Content Services and TomTom
Content. The use 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 is understood to means
circumstances that impede the fulfilment of TomTom’s obligations under these
Terms and Conditions which are not attributable within TomTom’s
reasonable controlto
TomTom,. In any event, force
majeure is understood to
includinge late and/or
delayed stagnation of
deliveries and incomplete deliveries by TomTom caused by circumstances that cannot in fairness be attributed to
beyond TomTom’s reasonable control. In a force majeure situation all of
TomTom’s obligations shall be suspended. Should the period in which TomTom
cannot fulfil its obligations as a result of force majeure continue for longer
than ninety (90) calendar days, TomTom shall be entitled to dissolve the
agreement for the TomTom Content Services without there being an obligation to
pay any compensation whatsoever arising out of or in connection with that
dissolution.
17)
Privacy
a)
TomTom will not
disclose information regarding your personal details, account or transactions to
any third party other thanunless in accordance with its
Privacy Policy as indicated on the website http://www.tomtom.com/legal. You
hereby agree that you have read and accepted the Privacy
Policy.
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 contents
of any third party websites, services or functionalities, any links contained in
third party websites or services, or any changes or updates to third-party
websites or services. Where TomTom provides links and/or access to third party
websites, services and/or functionalities it is only as a convenience to you,
and the inclusion of any link or access does not imply an endorsement by TomTom
of the third party site, service or functionality.
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
Any
translations are provided for convenience only.
Version November
2007