Payment Terms

General

These Payment Terms describe your agreement to pay for current and future goods and services, together with any charges or fees applied by us related to goods or services. In these Payment Terms, ‘we’ and ‘us’ mean the Xynom group entity supplying the goods and services in your country.

In order to use certain services, such as one-time payments, recurring payments and subscriptions, you allow Xynom to store, maintain, and recover funds from your specified payment method in accordance with these Payment Terms. Xynom may amend these terms from time to time and any changes are effective when posted to this page.

When you add a payment method to your Xynom Account, such as a credit card, certain information including, but not limited to device location, device identification number, and card information may be sent to Xynom and shared with our payment processor. Card information is encrypted during the transmission and Xynom will not have access to the actual card number. When the stored payment method or a new credit card is used for purchasing goods and services on a Xynom hosted website or application, the necessary information to process payment will be shared with our global processors and our banking partners, to process your payment, comply with financial regulations, to prevent fraud, and for troubleshooting any payment issues. When you pay using your bank account details, those details are stored by Xynom in an encrypted format that prevents unauthorized access without specific permissions. For information on how we handle your payment information, please see Xynom’s Privacy Notice.

You must maintain at least one valid payment method in your Xynom Account. Any services received may result in charges being applied to your saved payment method, and charges may include taxes as required by law. Your failure to maintain accurate, complete, and up-to-date payment information, including an invalid or expired payment method, may result in your inability to access or use services

When you request a bank payment such as an Automated Clearing House (ACH) or Pre-Authorized Debit (PAD) payment transfer, and where required by law, we will inform you at least three days before the initial payment due date, and up to one day before payment is collected. You may amend or cancel this authorization at any time by providing us with thirty (30) days’ notice. You have certain recourse rights if any debit does not comply with this agreement, such as the right to receive reimbursement in the event of an unauthorized debit inconsistent with these terms. To obtain more information on your recourse rights, contact your financial institution.

For charges that support automatic or recurring payments, you understand that your payment method will be charged each time your service automatically renews at the end of the prescribed period, unless turned off at least twenty-four (24) hours prior to the end of the current billing period. You can manage or turn off automatic payments in your Xynom Account at any time.

Any person who uses your Xynom technology can also make use of the services described in these Payment Terms, and you will remain responsible to Xynom for payment of the applicable charges. Xynom will require payment from you using the payment method saved in your Xynom Account. You will be able to review a summary of transactions in your Xynom Account.

In the event that any attempt to recover funds from you should fail using the payment method saved in your Xynom Account, you agree to allow Xynom to recover all or less than all of the amount owed for goods or services as set out in this clause. If we are unable to collect payment, we may contact you based on your information on file or may request payment when we are performing services for you. If you violate these Payment Terms, such as by not paying past due and unchallenged amounts, we may limit or block your technology’s ability to use the related services until payment issues are resolved.

Exhibit 1: API Subscription Terms

1. Account and Subscriptions

1.1. Account Registration. Licensee shall register an account with Xynom and provide to Account Information. Licensee shall update its Account Information as required to keep the Account Information complete and accurate. Licensee shall select the subscription tier and level to be associated with its account and may change its subscription tier and level using the Portal.

1.2. Subscription Tiers. Two subscription tiers exist. Xynom will provide a description of each subscription tier in the Documentation. Each tier may have more than one subscription level.

1.2.1. Tier 1. Tier 1 subscriptions will access data and send commands through a Xynom server.

1.2.2. Tier 2. Tier 2 subscriptions will access data through a Licensee server and will not use a Xynom server.

1.3. Subscription Levels.Xynom may provide multiple subscription levels within each tier. Xynom will provide a description of each subscription level in the Documentation. Each level may receive access to a different set of capabilities, data, commands, and levels of service, according to its tier and its description in the Documentation.

1.4. Subscription Limitations. Each subscription level may have limitations (described in the Documentation) such as a limitation on the number or frequency of commands or that the subscription may use during a period of time. If a subscription reaches or exceeds a limitation, Xynom may (in Xynom’s sole discretion) suspend the subscription until it no longer exceeds the limitation or convert the subscription to a higher level in which the subscription would not exceed any limitation. Xynom will use reasonable efforts to notify Licensee if Xynom converts a subscription to a higher level. If Xynom converts a subscription to a higher level, Licensee shall pay all Fees associated with the higher level beginning on the date of the conversion.

2. Charges

2.1. Fees. Xynom will provide pricing information in the Portal which outlines the Fees associated with each subscription tier and level. Licensee shall pay to Xynom all Fees incurred by Licensee or through the use of Licensee’s account. Fees are not refundable for any reason.

2.2. Payment. Licensee shall timely pay all Fees and Transactional Taxes according to the payment schedule and instructions provided by Xynom in the Portal without setoff, recoupment, or other reduction. All Fees and all payments shall be in U.S. dollars.

2.3. Late Payments. Licensee shall pay interest on late payments at the lesser of the rate of 1.5% per month or the highest rate allowed by applicable Law, calculated daily and compounded monthly. Licensee shall reimburse Xynom for all costs incurred in collecting any late payments, including legal fees and costs.

2.4. Taxes.

2.4.1. Taxes Generally. Except as set forth in this § 2.4, each party is solely responsible for taxes imposed or assessed on it or its activities, including (a) taxes relating to any income, property, or franchise, and (b) employer-related taxes with respect to its personnel (e.g., employee taxes, workers compensation and unemployment insurance).

2.4.2. Transactional Taxes. Licensee shall pay all Transactional Taxes applicable to the provision of the API and any services by Xynom. If Licensee is exempt from any Transactional Tax, Licensee must provide to Xynom a copy of each applicable exemption certificate.

2.4.3. Withholding Taxes. Licensee may not withhold any amount from its payments to Xynom unless such withholding is required by Law. Licensee shall provide Xynom with proof of payment of any withholding taxes.

3. License

3.2. Tier-Specific License Rights.

3.2.1. Tier 1 Subscriptions. Tier 1 subscriber Applications may use the API to interact with Xynom’s databases to retrieve the Xynom Content necessary to facilitate use of Xynom’s products and services through the Applications by Licensee or Users.

3.2.2. Tier 2 Subscriptions. Tier 2 subscriber Applications running on a Licensee server may use the API to retrieve Licensee Content from Licensee technology and may serve the Licensee Content to Users to facilitate use of Xynom’s products and services through the Applications by Licensee or Users. Tier 2 subscriber Applications may not interact with Xynom’s databases or other infrastructure or resources that Xynom provides solely for Tier 1 subscriptions.

3.3. Sublicenses. Licensee may sublicense its rights under this § 3 to one or more third party services providers within the Territory, to the extent Licensee owns each Licensee technology and each such services provider agrees in writing to be bound to all of the terms and restrictions contained in this Agreement in a written contract that designates Xynom as an intended third-party beneficiary. Each act and omission of each such service provider relating to any access to or use of the API, any Application, Content, or Licensee technology will be deemed an act or omission of Licensee to the same extent as though it were an act or omission of Licensee.

4. API Use and Restrictions

4.1. Requirements to Use API Subscription. In order to use the API, Licensee must: (a) keep its account in good standing, including timely making all payments to Xynom; (b) have a current subscription; (c) have a valid Key; (d) provide Xynom with the range of IP addresses from which Licensee will be accessing the API; and (e) comply with this Agreement.

4.2. Keys. Licensee will receive one Key per subscription. Keys are valid only during the Term. Keys are Xynom’s property. Xynom may revoke a Key for any reason that would justify termination of this Agreement or suspension of Licensee’s subscription.

4.3. Access Limitations. Licensee may access the API only by the means described in this Agreement and the Documentation. If Xynom assigns developer credentials (such as client IDs) to Licensee, Licensee must use them with the API. Licensee may not misrepresent or mask the identity of Licensee, its Application, or its API client when using the API or Licensee’s developer accounts. Xynom may set and enforce limits on each subscription’s use of the API (e.g. limiting the number of API requests or the number of Users), in Xynom’s sole discretion. Licensee shall comply with such limitations and may not attempt to circumvent such limitations. Licensee may request changes to such limitations by contacting Xynom. Xynom may grant, deny, or condition such requests in any manner in Xynom’s sole discretion.

4.4. Reporting Violations. Licensee must contact Xynom as soon as possible, and in no event no later than 48 hours, after becoming aware of any actual or suspected unauthorized access to or use of Licensee’s Key or credentials or any unauthorized access to or use of the API or any Content.

4.5. Prohibited Conduct. Any of the following actions (or attempts to do such actions) by Licensee or by any person using Licensee’s Key will constitute a material breach of this Agreement:

4.5.1. Access (or attempt to access) the API in any manner other than as expressly permitted by this Agreement or the Documentation.

4.5.2. Exceed any limitation of a subscription level.

4.5.3. Share a Key with any third party.

4.5.4. Provide API access for any technology that is not a Licensee Drone.

4.5.5. Copy, in whole or in part, the API or Xynom Content.

4.5.6. Reverse engineer, decompile, disassemble or otherwise attempt to derive or gain access to the API, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

4.5.7. Rent, lease, sell, sublicense (except as expressly permitted herein), assign, distribute, publish, transfer or otherwise make available the API or Content or User Personal Data or Technology Data to any third party other than to Users in the Application.

4.5.8. Use the API or any Content in violation of any applicable Law.

4.5.9. Use the API or Content in a way that is false or misleading.

4.5.10. Use the API for the development of a competing software product or service.

4.5.11. Distribute or allow access or linking to the API or Content from any source other than the Application.

4.5.12. Create an Application that infringes any third party’s rights, including a third party’s IP Rights. Create an Application that contains any malware, software code or instructions designed to disrupt, disable, harm, interfere with or otherwise adversely affect computer programs, data files or operations, or other code typically described as a virus, Trojan horse, worm, back door or other type of harmful code that may damage any Xynom Content or Xynom databases.

4.5.13. Design or market an Application that has the purpose or effect of harassing, abusing, spamming, stalking, or threatening any Individual.

4.5.14. Re-play stored user passwords or credentials for technology commands which require such passwords in the API call.

4.5.15. Collect technology information without complying with the privacy and data protection obligations specified under § 8, including providing notice and obtaining prior written consent from the technology owner, technology operators, technology’s pilot as applicable.

4.5.16. Exceed limitations imposed by Xynom on Licensee’s subscriptions.

4.5.17. Circumvent, or attempt to circumvent, any security measure or any feature in the API or the Portal that is intended to prevent unauthorized use of the API or violations of this Agreement.

4.5.18. Fail to report a violation as required in § 4.4.

4.5.19. Use the API or any Application to provide a service that competes with any actual or anticipated service of Xynom, including any robotaxi service.

4.5.20. Use the API or any Application (or attempt to do so) for any automatic or autonomous control of any technology behavior.

4.5.21. Access, store, use, or retain any Xynom account credentials (such as a username or password) for any Xynom account other than Licensee’s Xynom account, including any Xynom account of any User or any customer or employee of Licensee.

4.5.22. Access, store, use, or retain any Technology Data or User data that Licensee obtained through the use of any Xynom account credentials (such as a username or password) for any Xynom account other than Licensee’s Xynom account, including any Xynom account of any User or any customer or employee of Licensee.

4.5.23. Use any means other than the API or the Technology mobile app to do any of the following:

4.5.23.1. Remote interactions with any Xynom technology software or Xynom-provided hardware for any technology for which Licensee has begun using the API.

4.5.23.2. Send commands to any Xynom technology.

4.5.23.3. Access any Technology Data that is stored in a Xynom technology.

5. Third-Party Materials

The API may include Third-Party Material. All Third-Party Material is licensed to Xynom on terms that are in addition to and/or different from those contained in this Agreement, including public license terms. In addition to this Agreement, all or any portion of the API that constitutes Third-Party Material is licensed to Licensee subject to the terms of the applicable third-party licenses. Any breach by Licensee of any such third-party license is a material breach of this Agreement. Licensee must promptly notify Xynom of any actual or suspected breach of any such third-party license and cooperate with Xynom as requested by Xynom to minimize the impact on Xynom of any such breach.

6. Reservation of Rights

Xynom reserves all rights not expressly granted to Licensee in this Agreement. The API and Content are licensed, not sold, to Licensee for use solely during the Term. The API and Content are protected by IP Rights. Xynom and its licensors and service providers reserve and retain their entire right, title, and interest in the API and Content and all IP Rights arising out of or relating to the foregoing, except those rights expressly granted to Licensee in this Agreement. Licensee shall safeguard the API and Content in Licensee’s possession from infringement, misappropriation, theft, misuse, or unauthorized access. This Agreement does not grant Licensee any rights to any trademark or service mark of Xynom.

7. Updates

Xynom may develop and provide Updates in Xynom’s sole discretion. Xynom has no obligation to develop or provide any Updates at all or for particular issues. Licensee shall use Updates to the extent Xynom makes them available to Licensee. All Updates will form part of the API or Content (as applicable) and are subject to the terms of this Agreement, unless any such Updates are accompanied by separate terms. Updates may change any feature of the API or Content. Xynom does not guarantee that any particular feature of the API or Content will remain available or unmodified.

8. Privacy & Data Protection

8.1. Role of Parties. Each party is an independent controller of the Personal Data under applicable data protection laws, will individually determine the purposes and means of its processing of Personal Data, and will comply with the obligations applicable to it under all privacy and data protection laws. Licensee must have an applicable legal basis to Process Personal Data, and, where necessary, obtain consent from each Data Subject to facilitate use of the API pursuant to this Agreement.

8.2. API Clients and Monitoring. Xynom and its Affiliates may collect and use information regarding use of the API and Content by Licensee or through the Application and about equipment through which it is accessed and used. Xynom may use such information: (a) to monitor use of the API’s to ensure quality (b) to improve the performance of the API or Content or developing Updates or improving Xynom’s other products and services; (c) to verify Licensee’s compliance with this Agreement; (d) to enforce or protect the rights or interests of Xynom and its affiliates; and (e) to validate navigation-dependent systems. This monitoring may include Xynom accessing and using Licensee’s API Client or Application, for example to identify security issues that could affect Xynom or its users. Licensee may not interfere with this monitoring or access by Xynom. Xynom may use any technical means to overcome any interference that Xynom reasonably believes is occurring. To the extent any information collected and used by Xynom includes Personal Data, Xynom is separate Controller for the collection and use of such Personal Data for the above purposes and will Process such Personal Data in accordance with applicable data protection law and with the Xynom Privacy Notice.

8.3. Processing of Individuals’ Personal Data in the Context of the API and Application.

8.3.1. Use of the API may enable Licensee to collect, use, disclose or otherwise process Personal Data about technology owners, technology operators, technology pilots. Without prejudice to the rest of this § 8, Licensee acknowledges that Licensee acts as a Controller when processing Individuals’ Personal Data in the context of the API. As a Controller, Licensee has the sole and exclusive responsibility for complying with any and all applicable international, federal, state and local laws and regulations (depending on the jurisdiction of the API users) relating to the privacy, confidentiality, security and protection of Personal Data, including, without limitation: the California Consumer Privacy Act, Personal Information Protection and Electronic Documents Act in Canada, Mexico’s Federal Data Protection law, privacy laws applicable to the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, including the EU General Data Protection Regulation (GDPR); laws regulating unsolicited e-mail communications; security breach notification laws; laws imposing minimum security requirements and other regulations relating to the processing of Personal Data (collectively, “Data Protection Laws”). Licensee shall cooperate with Xynom in order to comply with, and to facilitate Xynom’s compliance with, applicable Laws, including Data Protection Laws.

8.3.2. As required under applicable Data Protection Laws and this Agreement, Licensee must: (a) provide notice in clear and plain language to Individuals about the collection, use, or disclosure of their Personal Data; (b) provide all necessary notices to and obtain all necessary consents in writing from Individuals, in particular Licensee must obtain technology drivers’ and passengers’ explicit, prior, specific, informed and freely given consent for the processing of Personal Data which is at least as protective as identified in Standard Minimum Terms, and provide a copy of any such consent to Xynom upon request; (c) comply with applicable regulatory filings and legal requirements before a data protection authority, or alternatively, legal requirements in relation to maintaining respective data protection inventories; (d) comply with applicable labor law restrictions such as obtaining consulting or obtaining authorization from employees’ representative or works council as applicable; (e) comply with applicable data transfer restrictions; (f) comply with requests and inquiries from competent data protection authorities; and (g) comply with Individuals’ requests to exercise their rights of access, correction, blocking or deletion of Personal Data, or to withdraw their consent. Licensee must ensure that all Users understand and consent to the full scope of Licensee’s Processing of Personal Data before downloading or installing the Application and before any Processing of such User’s Personal Data occurs. Licensee shall make available to Users and shall adhere to a privacy policy with respect to the Application that complies with all applicable Data Protection Laws and all relevant app store policies and fully, accurately, and clearly describes to Users what data Licensee will collect, how Licensee will use and Process such data, and how Users can request access to and deletion of their Personal Data. Xynom will not respond to requests from Individuals, unless instructed by Licensee in writing to do so. Xynom will reasonably cooperate with Licensee if an Individual wants to access, rectify, delete or block his/her Personal Data or in case of an investigation by a data protection authority if Licensee has documented such requests in writing. Licensee shall reimburse Xynom for Xynom’s costs arising from such cooperation.

8.3.3. Licensee may Process Xynom Personal Data only in accordance with Licensee’s privacy policy, applicable Data Protection Laws, and this Agreement. Licensee’s privacy policy does not supersede or modify, and may not be inconsistent with, this Agreement or the Xynom Privacy Notice. If any conflict exists between Licensee’s Privacy Policy and the Xynom Privacy Notice, the Xynom Privacy Notice will take precedence. Licensee shall maintain publicly available and accurate links to its privacy policy for each Application.

8.3.4. With respect to international data transfers, the parties hereby enter into the Standard Contractual Clauses integrated into this Agreement. The processing operations are deemed to be those described in this Agreement. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood for the rights and freedoms of natural persons, parties shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including any other controls mandated by applicable data protection laws. Licensee must maintain reasonable and appropriate safeguards and other security measures designed to (a) ensure the security and confidentiality of Personal Data within the API; (b) protect Personal Data against any anticipated threats or hazards to the security and integrity of such information; and (c) protect Personal Data against any actual or suspected unauthorized processing, loss, use, disclosure or acquisition of or access to such information. Licensee shall exercise all necessary and appropriate supervision over its relevant personnel to maintain appropriate privacy, confidentiality, and security of Personal Data. Licensee must take its own precautions to ensure that the process, which Licensee employs for accessing the API does not expose Licensee to the risk of viruses, malicious computer code or other forms of interference which may damage Licensee own computer system. For the removal of doubt, Xynom does not accept responsibility for any interference or damage to Licensee’s network or computer system, which arises in connection with use of this API.

8.3.5. Before an Application collects or stores any Recording or Precise Geolocation (whether on a local device or on a server), Licensee must obtain express, opt-in consent from each affected User, and the Application must display a reasonably conspicuous audio, visual, or other indicator to indicate (as applicable) that a Recording is being made or that a Precise Geolocation is being determined.

8.3.6. Licensee may not Process Xynom Personal Data that is an Individual’s Sensitive Information. Licensee may not use data to infer or derive Sensitive Information regarding Individuals in the context of using the API or an Application.

8.3.7. An Application may not collect Personal Data or device data without prior, express, opt-in consent of the User. Licensee may not broaden or otherwise change the scope of usage for previously collected Personal Data or device data to include advertising without obtaining prior, expressly, opt-in User consent for such expanded or otherwise changed usage.

8.3.8. Licensee shall immediately notify Xynom and provide any information reasonably requested by Xynom if Licensee knows of or suspects any security incident or data breach involving Xynom Personal Data or any incident of unauthorized access to or Processing of Xynom Personal Data or any incident that has or is reasonably likely to compromise the security, confidentiality, or integrity of systems owned or used by Licensee or its Subprocessor that Process or relate to Xynom Personal Data. In the event of any of the foregoing incidents, Licensee shall consult and cooperate with Xynom, assist with any required notices, keep Xynom regularly updated about the incident, and immediately remedy any breach or potential vulnerability resulting from Licensee’s possession, custody, control, or access to the Xynom Personal Data.

8.3.9. Except to the extent Licensee is required to retain Xynom Personal Data under applicable Law, Licensee shall promptly update and delete any Xynom Personal Data in its possession, custody, or control when:

8.3.9.1. Retaining it is no longer necessary for an Application’s stated and approved functionality that is permitted under this Agreement;

8.3.9.2. Licensee stops operating the Application;

8.3.9.3. Xynom requests that Licensee delete it;

8.3.9.4. The applicable Individual exercises their right to deletion; or

8.3.9.5. Required by applicable Law.

8.4. Other Processing of Personal Data by Xynom.

8.4.1. Licensee consents for all other Processing of Personal Data by Xynom as described in this Agreement and in the Xynom Privacy Notice. Licensee shall obtain Data Subjects’ prior written consent for the processing of Personal Data by Xynom in accordance with this Agreement and the Xynom Privacy Notice and which is at least as protective as identified in the Standard Minimum Terms.

8.4.2. At all times during the Term, Licensee shall maintain the confidentiality and security of all Personal Data and use appropriate organizational, technical, and administrative measures to protect the API, Content, and any and all Personal Data within Licensee’s possession, custody, or control. Licensee shall maintain the security of Xynom Personal Data and use commercially reasonable efforts to protect Xynom Personal Data from unauthorized access or Processing, including encryption of the data in transit and at rest. Licensee shall fulfill its obligations with respect to Personal Data using reasonable safeguards for the data that are no less protective than industry-standard safeguards and with no less care than Licensee uses in connection with securing data with similar levels of sensitivity.

8.4.3. Licensee’s access and use of the API and Content is conditional upon Licensee’s compliance with this § 8.

9. Term; Termination; Suspension

9.1. Term. This Agreement, Licensee’s subscription(s), and the license granted hereunder will remain in effect during the Term and will expire at the end of the Term.

9.2. Termination. Xynom may terminate this Agreement and/or the license granted hereunder if Licensee fails to strictly comply with this Agreement.

9.3. Effect of Termination or Expiration. Upon termination or expiration of the Term:

9.3.1. Licensee’s subscriptions end, notwithstanding any Fees paid.

9.3.2. Licensee’s Keys are hereby revoked.

9.3.3. Licensee must stop all use of the API and Content.

9.3.4. Licensee must destroy all Content and Documentation in Licensee’s possession, custody, or control.

9.4. Suspension. Xynom may suspend Licensee’s subscription at any time if Xynom reasonably believes that any event has occurred that would justify Xynom’s termination of this Agreement. Xynom will use reasonable efforts to inform Licensee of any suspension and the reason(s) for the suspension but is not required to provide notice before the suspension or within any specific timeframe. During any suspension, Licensee must do all of the following:

9.4.1. Stop all use of the API and Content for the duration of the suspension.

9.4.2. Work diligently to cure all breaches of the Agreement.

9.4.3. Continue timely payment of fees.

10. Warranties

10.1. Xynom’s Warranties. The API and Content are provided to Licensee on an “as is where is” and without warranty of any kind. To the maximum extent permitted under applicable law, Xynom, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims any and all warranties, conditions or other terms, whether express, implied, statutory or otherwise, with respect to the API and all Content, including all implied warranties of accuracy, satisfactory quality, merchantability, fitness for a particular purpose, security, completeness, reliability, performance, timeliness, or continued availability, title, and noninfringement, and any warranties that may arise out of course of dealing, course of performance, use, or trade practice. Without limitation to the foregoing, Xynom provides no warranty or undertakings, and makes no representation of any kind that the API or Content will meet Licensee’s requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected. Further, Content may be unavailable at any time for reasons such as a failure of hardware, software, telecommunications, a service provider, or scheduled maintenance. In any such case, Xynom cannot guarantee the duration of any outage but will use reasonable efforts to restore access to the API and Content within a reasonable time. Xynom does not guarantee that Licensee or Users will receive from Xynom or through the API any notification about events affecting any technology status or events, including safety-critical or security-related events damage, unauthorized entry, lockout, or theft.

10.2. Licensee’s Warranties. Licensee represents and warrants each of the following to Xynom:

10.2.1. All Personal Data and Technology Data Processed by Licensee or its Processors has been Processed at all times in compliance with applicable Law.

10.2.2. All Personal Data and Technology Data that Licensee provides to Xynom or its Processors has been Processed at all times in compliance with applicable Law.

11. Limitation of Liability

11.1. Exclusion of Liability. To the maximum extent permitted by Law, in no event will Xynom or its affiliates, or any of their respective licensors or service providers, be liable to Licensee or any third party for any use, interruption, delay or inability to use the API or Content, lost revenues or profits, delays, interruption or loss of services, business or goodwill, loss or corruption of data, loss resulting from system failure, malfunction or shutdown, failure to accurately transfer, read or transmit information, failure to update or provide correct information, system incompatibility or breaches in system security, or for any consequential, indirect, or special loss or damage, whether arising out of or in connection with this Agreement, breach of contract, tort (including negligence) or otherwise, regardless of whether such loss or damages were foreseeable and whether or not Licensee or Xynom was advised of the possibility of such damages. The foregoing includes, without limitation, any damages, injury, or liability of any kind arising from or caused by any viruses, bugs, human action or inaction, any computer system, phone line, hardware, software, or program malfunctions, or any errors, failures, or delays in computer transmissions or network connections.

11.2. Liability Cap. To the maximum extent permitted by law, the aggregate liability of Xynom and its Affiliates, as well any of their respective licensors and service providers, arising out of or related to this Agreement, the API, or Content, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, shall be limited to the amount of Fees paid by Licensee during the 6-month period prior to the month in which the most recent event giving rise to liability occurred.

11.3. Applicability of Limitations. The exclusions and limitations in §§ 11.1 and 11.2 shall apply to the maximum extent permitted by Law, even if Licensee’s remedies under this Agreement fail of their essential purpose. Subject to the foregoing, all remedies provided herein are cumulative and in addition to and not in lieu of any other remedies available to a party under the Agreement, at law, or in equity. Licensee acknowledges that any violation by Licensee of this Agreement will cause irreparable harm to Xynom for which monetary damages would be inadequate, and Licensee consents to Xynom obtaining any injunctive or equitable relief that Xynom deems necessary or appropriate in such circumstances without the necessity of posting bond or any proof of action, injury, or damage.

12. Indemnification

Licensee shall defend, indemnify, and hold harmless the Xynom Indemnitees on demand from and against all Claims and Losses relating to, arising out of, or based on allegation of (a) breach of this Agreement; (b) the development, maintenance, or use of an Application (including any infringement of any IP Rights); and (c) any third-party Claims (including from Data Subjects or from technology owners) arising out of any breach of this Agreement. Licensee’s obligations in this § 12 will apply regardless of whether a Claim arises in tort, negligence, contract, warranty, strict liability or otherwise. To the maximum extent permitted by Law, Licensee’s obligations in this § 12 will apply even if a Xynom Indemnitee’s conduct has contributed a Claim or Loss but will not apply to the extent that such Claim or Loss was caused solely and directly by a Xynom Indemnitee’s gross negligence or willful misconduct.

13. Confidentiality

13.1. NDA. The NDA is incorporated by reference into this Agreement, mutatis mutandis, and sets out the parties’ confidentiality obligations. The terms of the NDA will continue in force throughout the term of this Agreement and for 3 years following any expiration or termination of this Agreement.

13.2. Certain Confidential Information. Xynom’s Confidential Information includes all of the following: (a) the existence and terms of this Agreement, (b) information and data provided by Xynom to Licensee under this Agreement, including without limitation the API, Content, information about Xynom’s data collection or other processes, Keys, and related documentation.

13.3. No Publicity. Neither party may make any public announcements about the existence or terms of this Agreement, or use the other party’s marks, names or logos in any marketing literature, web sites, articles, press releases (including interviews with representatives of media organizations of any form), or any other document or electronic communication, without the other party’s prior written consent. Nothing in this Agreement prohibits either party from making public announcements about its own products or services or from making any public disclosure or filing that it determines in good faith is required by Law or the rules of the stock exchange on which its shares, or the shares of its parent company, are listed.

14. Governing Law and Arbitration

This Agreement and any dispute, controversy, or claim that arises out of or relates to this Agreement, the API, Content, or any Application (“Dispute”) is governed by the Laws of the State of Texas, without regard to the conflicts of law principles. Any Dispute shall be referred to and finally resolved solely and exclusively by arbitration administered by the Judicial Arbitration and Mediation Services (“JAMS”) in accordance with its arbitration rules in force when the notice of arbitration is submitted, which rules are deemed to be incorporated by reference herein. The seat of arbitration shall be Austin, Texas. There shall be a single arbitrator. The parties agree that the arbitration shall be kept confidential. The existence of the arbitration, any non-public information provided in the arbitration, and any submissions, orders or awards made in the arbitration (together, the “Arbitration Confidential Information”) shall not be disclosed to any third party except the tribunal, the parties, their counsel, experts, witnesses, accountants and auditors, insurers, and any other Person necessary to the conduct of the arbitration. Notwithstanding the foregoing, a party may disclose Arbitration Confidential Information to the extent that disclosure may be required to fulfill a legal duty, protect or pursue a legal right, enforce or challenge an award in bona fide legal proceedings.

15. Audit

Xynom may audit Licensee’s Application, records, and/or activities relating to Licensee’s use of the API to verify compliance with this Agreement. Licensee shall provide reasonable access and assistance to Xynom required in performance of such an audit.

16. Miscellaneous

16.1. Entire Agreement; Severability. This Agreement (including the NDA) constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior agreements, representations, and understandings. If any provision of this Agreement is held invalid by an arbitrator or court having jurisdiction, such provision will be severed and the remainder of the Agreement will remain in full force and effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective administrators, successors, and assigns.

16.2. Writing Requirement. All notices, authorizations, approvals, consents, and requests allowed or required under this Agreement shall be in writing via email.

16.3. Assignment. Neither party shall transfer or assign this Agreement, in whole or in part, whether directly or indirectly, by operation of Law or otherwise, to any third party without the prior written consent of the other party, and any attempt to do so is null and void.

16.4. Amendment; Modification; Waiver. No amendment or modification to this Agreement is effective unless it is in writing and signed by both parties. No waiver of any right by any party is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right or remedy arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right or remedy under this Agreement precludes any other or further exercise thereof or the exercise of any other right or remedy.

16.5. Third-Party Beneficiary. There are no third party beneficiaries of this Agreement.

16.6. Survival. Provisions of this Agreement which by their nature contemplate or govern performance or observance after the termination or expiration of this Agreement shall survive such termination or expiration.

16.7. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

16.8. Construction. No provision of this Agreement shall be construed or interpreted for or against either party because such party drafted or caused its legal representative to draft the provision.

16.9. Compliance With Laws. Each Party shall, at its own expense, comply with all Laws applicable to its business and the performance of this Agreement.

Exhibit 2: Standard Minimum Terms

1. Requirement to Obtain Consents

Licensee shall obtain all necessary consents (at least to the extent required by this Agreement and applicable Law) from all relevant Individuals to access, collect, or control data with respect to the technology in the context of the API, the Application, and/or the Xynom Privacy Notice. In particular where required by Law Licensee shall obtain technology pilots’ explicit, prior, specific, informed and freely given consent for the processing of Personal Data which is at least as protective as identified in these Standard Minimum Terms.

2. Minimum Privacy and Data Protection Consent Language

2.1. By signing or accepting this form, you consent to the processing of your Personal Data by __________ (“Licensee”) in the context of the Licensee’s application titled: __________ (“App”). Licensee is the data controller responsible for the processing of your Personal Data in the context of the App.

2.2. By signing or accepting this form, you also acknowledge receipt of the Xynom Customer Privacy Notice available at https://xynomtech.comprivacy-and-legal (“Xynom Privacy Notice”) and consent to processing of Personal Data by Xynom in accordance with the Xynom Privacy Notice.

2.3. The App will allow you to benefit from advanced functionalities and will allow Licensee to better manage its fleet.

2.4. You understand and agree that to benefit from the App advanced functionalities and Licensee’s fleet management, Licensee must process some of your Personal Data, which may include technology identification number, speed information, odometer readings, battery use management information, battery charging history, electrical system functions, data about any issues that could materially impair operation of your technology; data about any safety critical issues; data about software and firmware update, technology and drive state data (including  current location) and other data to assist in identifying and analyzing the performance of the technology.

2.5. Licensee will only use this information as described in this document and in particular to (a) provide you with the above functionalities, (b) issue certain technology commands or collect information about certain aspects of a technology’s state, (c) advise you on important safety-related information, (d) collect information about your technology’s performance and provide services related to your technology, (e) collect information about the use of the technology in order to better manage our fleet, and (f) provide services to technology’s pilots where applicable.

2.6. Licensee maintains administrative, technical, and physical safeguards designed to protect Personal Data against accidental, unlawful or unauthorized destruction, loss, alteration, access, disclosure or use. Licensee will only retain your Personal Data for as long as necessary to provide you with the App, unless otherwise authorized by you, or required or authorized by applicable law.

2.7. Subject to applicable law, you may have the right to request access to and receive information about your Personal Data, update and correct inaccuracies in your Personal Data, and have the information deleted, as appropriate. These rights may be limited in some circumstances by local law requirements. You also have the right to withdraw your consent at any time without cost and to access your consent declaration at any time. To exercise your rights or for more information about the App, contact Licensee as follows:

I consent to the collection, use, and processing of my Personal Data as described above.

Exhibit 3: Definitions and Interpretation

1. Definitions

Capitalized terms in this Agreement without other definition have the meanings specified below.

• “Account Information” means all the information that Xynom requires account holders to submit in connection with registration or maintenance of accounts.
• “Affiliate” means, with respect to either party, any other person controlling, controlled by or under common control with such first party. For purposes of this definition, the term “control” (and correlative terms) means the right and power, directly or indirectly through one or more intermediaries, to direct or cause the direction of substantially all of the management and policies of a person through ownership of voting securities or by contract.
• “API” means the Xynom API and associated tools.
• “Application” means an application made by or on behalf of Licensee (such as a software application or website or interface) that interacts with (or is designed to interact with) the API.
• “Business Day” means any day other than a Saturday, Sunday, or any other day on which banking institutions in the U.S. are not open for the transaction of normal banking business.
• “Claim” means any claim, action, suit, proceedings, demand, investigation, assessment or liability of whatsoever kind or character made or brought against a Party or its Affiliate.
• “Commercially Reasonable Efforts” means taking all steps and performing in a manner that a well-managed company would undertake where it was acting in a determined, prudent, and reasonable manner to achieve a particular desired result for its own benefit.
• “Content” means Xynom Content and Technology Data.
• “Controller” means the party or parties to this Agreement that determine(s) the purposes and means of the Processing of Personal Data for purposes of this Agreement.
• “Controller Personal Data” means any Personal Data Processed by a party under this Agreement in its capacity as a Controller.
• “Data Protection Law” means all Laws applicable to the Processing of Personal Data under this Agreement, including, as applicable, the Laws of the United States, Europe, including, but not limited to the General Data Protection Regulation (EU) 2016/679 (“GDPR”), the Canadian Personal Information Protection and Electronic Documents Act, the South Korean Personal Information Protect Act and the California Consumer Privacy Act of 2018 (“CCPA”).
• “Data Subject” means an identified or identifiable natural person.
• “Documentation” means the information provided by Xynom in the Portal, including information relating to the API, Content, and subscription tiers and levels.
• “Europe” means the European Economic Area (and its member states), Switzerland and the United Kingdom.
• “Fees” means the fees charged by Xynom for account registration, a subscription, reduction of limitations, or for other benefits or services provided by Xynom.
• “Force Majeure Event” means an event beyond the reasonable control of a party that delays or prevents the party from performing its obligations under this Agreement.
• “Governmental Authority” means any national, regional or local government, any political subdivision thereof, or any governmental, quasi-governmental, regulatory, judicial or administrative agency, authority, commission, board or similar entity having jurisdiction over the performance of the Services or otherwise over any Party.
• “Individual” means any owner, operator, driver of a technology.
• “IP Rights” means any and all rights arising under U.S. or foreign Law relating to utility patent, mask work, copyright, moral, industrial design right, or trade secret rights or any other proprietary rights similar to the aforementioned rights and protected under foreign Law.
• “Key” means Licensee’s API application ID key and one application secret per API subscription.
• “Key Terms” means the terms set forth on the first page of this Agreement.
• “Law” means any applicable constitution, charter, act, statute, law, ordinance, code, regulation, order, by-law or other legislative or administrative action of any governmental authority, or a final decree, judgment or order of a court or tribunal.
• “Licensee” means the person or entity identified as the “Licensee” in the Key Terms.
• “Licensee Content” means information or data relating to Licensee technology that Xynom enables Licensee to access through the API from a Licensee server.
• “Licensee technology” means a Xynom technology owned or leased by Licensee or its Affiliate.
• “Losses” means losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable expert and legal fees.
• “NDA” means the signed non-disclosure agreement then in effect between the parties or, if there is none, Xynom’s then-current form of Standard Non-Disclosure Agreement.
• “Personal Data” means any information relating, directly or indirectly, to an identified or identifiable natural person.
• “Portal” means the website provided by Xynom in which Licensee may maintain its account, choose its subscription tier and level, and access Documentation.
• “Precise Geolocation” means the determination of a location within a geographic area that is equal to or less than the area of a circle with a radius of 1,850 feet.
• “Process”, “Processes”, “Processing”, or “Processed” means any operation or set of operations which is performed on Personal Data or Technology Data or on sets of Personal Data or Xynom Data, whether or not by automated means, such as collecting; recording; accessing; releasing; disclosing; making available; organizing; structuring; storing; adapting or altering; retrieving; consulting; using; synchronizing; disclosing by transmission, dissemination, or otherwise; aligning or combining; restricting; erasing; or destroying.
• “Processor” means a Party to this DPA that Processes Xynom Personal Data. The term Processor as used herein is equivalent to the term “Processor” as used in the GDPR, and the term “Service Provider” as used in the CCPA.
• “Recording” means any data captured or stored that constitutes or represents a video, image, photo, screen recording, or sound recording.
• “Sensitive Information” means Personal Data that is treated as sensitive under applicable Data Protection Law, including information regarding an Individual’s: health (including pregnancy), political affiliations or beliefs, race or ethnic origin, religious or philosophical affiliation or beliefs, sex or sexual orientation, trade union membership, age, disability, or genetic information.
• “Services” means Xynom’s provision of the API under this Agreement.
• “Subprocessor” means a Processor engaged by Provider, or a Processor engaged by a Subprocessor of Provider, to Process Xynom Personal Data.
• “Standard Minimum Terms” means all necessary consents that Licensee obtains in writing from Individuals for the processing of Personal Data, which terms are at least as protective as identified in Exhibit 2.
• “Term” means the term of Licensee’s API subscription.
• “Territory” means the geographic region(s) identified in the Documentation in which Licensee may use the API.
• “Xynom Conduct Policies” means the Xynom Supplier Code of Conduct, Xynom Responsible Materials Policy, and Xynom Human Rights Policy.
• “Xynom Content” means information or data hosted in a Xynom server that Xynom makes available through the API.
• “Xynom Data Subject” means the Data Subject whose Xynom Personal Data is, or will be, Processed.
• “Xynom Indemnitees” means Xynom, Xynom’s affiliates, and their respective officers, directors, employees, agents, representatives, licensors and service providers.
• “Xynom Personal Data” means the Personal Data of any Xynom Data Subject that is Processed by Licensee. For purposes of this Agreement, Xynom Personal Data does not include the name and contact information of those Xynom employees who are responsible for interacting with Licensee in connection with the parties performance of this Agreement.
• “Xynom Policies” means Xynom policies, standards, rules, and procedures of which Licensee has received notice which apply to Licensee’s obligations under this Agreement.
• “Xynom Privacy Notice” means Xynom’s Customer Privacy Notice available at https://xynomtech.com/privacy-and-legal
• “Third-Party Material” means materials owned by a third party or for which a third party owns the IP Rights.
• “Update” means any modification, update, upgrade, new version, bug fix, patch, or error correction that Xynom provides with respect to the API or Content.
• “User” means any user of any Application.
• “Technology Data” means data stored on or relating to a Xynom vehicle.
• “Writing” or “written” means a written document or written communication, including text form.

2. Interpretation

2.1. As used in this Agreement:

2.1.1. the terms “herein,” “herewith” and “hereof” are references to this Agreement, taken as a whole;

2.1.2. the terms “includes” or “including” mean “including, without limitation,”;

2.1.3. references to a “Section” or “§” or “Exhibit” shall mean a Section or Exhibit of this Agreement, as the case may be, unless in any such case the context requires otherwise; and

2.1.4. references to a “Section” or “§” without specifying an Exhibit number refer to Exhibit 1.

2.2. Each reference to a given Exhibit, agreement, instrument or other document is a reference to that Exhibit, agreement, instrument or other document as modified, amended, supplemented and restated through the date as of which such reference is made.

2.3. References to Laws or Xynom Policies referenced in this Agreement refer to such Laws or Xynom Policies as they may be amended from time to time, and references to particular provisions of a Law or Xynom Policy include any corresponding provisions of any succeeding Law or Xynom Policy.

2.4. A reference to a person or entity includes its successors and permitted assigns.

2.5. The singular includes the plural, and the masculine includes the feminine and neuter, and vice versa.

2.6. Unless expressly specified otherwise, “day” means a calendar day.

2.7. The expression “and/or” connotes “any or all of”.

2.8. The section headings contained in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement or affect in any way the meaning or interpretation of this Agreement.