Effective date: 02/13/2023

Point One Navigation, Inc.

The following Terms of Service for Point One Navigation, Inc. services (the “Terms”) shall be deemed incorporated by reference into each Order Form (as defined below) (together, with the terms listed in the Order Form, Acceptable Use Policy, and Privacy Policy, the “Agreement”) and are a binding contract by and between Point One Navigation, Inc., a Delaware Corporation (“Point One”) and the customer identified therein (“You” or “Customer”).

These Terms will be implemented through one or more written Order Forms. Any change to these Terms within an Order Form, if applicable, will apply only to the Services described therein. In the event of a conflict between the documents comprising this Agreement, the documents will control in the following order (from most to least controlling): the Order Form, these Terms, the Acceptable Use Policy, and the Privacy Policy. Any terms used in these Terms without definition will have the definitions given to them in the Order Form, or in the above referenced documents.

1. Definitions Used Throughout.
   1. “API” means Point One’s application programming interface.
   2. “Authorized User” means individuals authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and for whom access to the Services has been purchased hereunder.
   3. “Customer Data” means any any data, information or other material provided, uploaded, or submitted by you to the Services in the course of using the Services.
   4. “Customer Applications” means any software applications and/or websites that are owned, operated, developed, or licensed by Customer.
   5. “Documentation” means Point One’s official technical specifications, user manuals, help information and other documentation concerning the Services posted at https://pointonenav.com/docs/ .
   6. “Order Form” means an order form executed by Point One and Customer that sets forth specific Services being provided to you pursuant to this Agreement.
   7. “Services” means the Products and services included in the Order Form, which may include, without limitation, Point One’s server host system, software applications which may include computer, vehicle, and mobile device platforms, SDKs, APIs and related web services and other Point One software and all related Documentation, including any version or release thereof that is developed or otherwise made generally available by Point One.
   8. “Product” means the hardware products made generally available by Point One, including through Point One’s website. Customer’s purchase of any Products will also be governed by any other terms made available by Point One during the sales process.
   9. “User Account” means a Point One account accessible via a username and password or usage of an API key (collectively, “Access Codes”).
2. Customer Types. Depending on the Services being purchased, accessed or subscribed for in connection with this Agreement, there are two different types of Customers:
   1. Free Customers. “Free Customers” are Customers who have registered for free accounts through Point One’s standard online process. The scope and functionality of the Services provided and accessible to a Free Customer is limited to those services and access rights made available by Point One to such Free Customer from time to time.
   2. Self-Service Customers. “Self Service Customers” are Customers that have subscribed for paid Services from Point One through Point One’s standard online process. For Self-Service Customers, the scope of Services provided and accessible shall be limited to those services, functionalities and access rights set forth on the respective Order Form. In the event of any discrepancy between these Terms and the terms of the Order Form, these Terms shall prevail. If not specified in the Terms, the term Customer shall include both Self-Service and Free Customers.
3. License and Use of the Services.
   1. Grant of Rights. Subject to the terms of this Agreement, Point One: (i) grants you and your Authorized Users, during the Term of this Agreement, a limited, worldwide, revocable, non-transferable, non-sublicensable, non-exclusive license to access and use the Services within the Customer Applications solely for your internal business use (including evaluation purposes) to collect, analyze, and act on location data collected and generated by Customer Applications and/or the Services; and (ii) will use commercially reasonable efforts to provide you access to the Services. You may not use the Services outside the scope of the license granted in this Section 2(a); if you seek to use the Services beyond the scope of this Agreement, please contact Point One for additional information at sales@pointonenav.com .
   2. Restrictions and Responsibilities. Customer’s use of the Services is governed by the Acceptable Use Policy posted at https://pointonenav.com/aup . Customer will be solely responsible for its Authorized Users, and Customer will further make all necessary disclosures and obtain all necessary consents and authorizations from all individuals (including any Authorized Users) whose personal information will be processed by Point One in the course of its provision of the Services, which includes (but is not limited to) the Customer maintaining and posting an applicable privacy policy.
   3. Suspension. Point One reserves the right to suspend your access to the Services: (i) in the event you are in breach of this Agreement or the Acceptable Use Policy, including failure to pay any amounts due to Point One or if Authorized Users breach the Agreement; (ii) if your Access Codes have been compromised, published, or shared; (iii) to prevent a security threat or breach; or (iv) to mitigate harm to you, Point One, or any other customer.
4. Intellectual Property Rights
   1. Point One Intellectual Property. Point One shall own and retain all right, title and interest in and to (i) the Services, all improvements, enhancements or modifications thereto; (ii) any software, applications, inventions or other technology developed in connection with Point One’s support service (if applicable); and (iii) all intellectual property rights related to any of the foregoing.
   2. Customer Data. You retain all right, title and interest in and to your Customer Data. You grant Point One, solely for the purpose of enabling your use of the Services, a worldwide, non-exclusive, royalty-free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Customer Data, and to allow others to do so.
   3. Feedback. All your (i) suggestions for correction, change or modification to the Services, (ii) evaluations, and (iii) other feedback, information and reports provided to Point One hereunder (collectively, “Feedback”) will be the property of Point One and Customer shall and hereby does assign any rights in such Feedback to Point One. Customer agrees to assist Point One, at Point One’s expense, in obtaining intellectual property protection for such Feedback, as Point One may reasonably request.
   4. General & Aggregate Data. You agree that Point One is free to disclose aggregate measures of usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services hereunder (“General Knowledge”), including that it could have acquired performing the same or similar services for another customer. You further agree that Point One may internally use and modify (but not disclose) Customer Data (i) to create anonymized compilations and analyses of Customer Data that may be combined with data from numerous other customers (“Aggregate Data”); and (ii) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (“Analyses”). Aggregate Data and Analyses shall not be considered Customer Data and Point One shall freely use such Aggregate Data and Analyses for its business purposes, including without limitation, for improving, testing, operating, promoting and marketing Point One’s products and services; provided, however, such Aggregate Data and Analyses shall in no way be linked specifically to Customer.
   5. Customer Identification. Point One may use and display your name and logo on Point One’s website and other marketing materials solely for the purposes of identifying you as a customer.
5. Charges & Payment
   1. Obligation to Pay. Unless otherwise defined in the Order Form, you will pay Point One the fees as set forth on Point One’s website (“Fees”). Unless otherwise described in your Order Form, Point One will invoice you in advance and all payments are due in US Dollars, upon receipt. With respect to Products, prices displayed are quoted in U.S. currency and are valid only in the U.S. and prices are subject to change at any time. Point One may limit or cancel quantities of Products purchased, and reserves the right to refuse any order. In the event Point One needs to make a change to a Product order, it will attempt to notify Customer by contacting the email address, billing address, and/or phone number provided at the time the order was made.
   2. Interest, Taxes, and Withholdings. With respect to Products, Point One is required by law to apply sales tax to orders to certain states and as such sales tax will be determined by the shipping address of the order and will automatically be added to the order. Unpaid amounts of Fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. You are responsible for all taxes and withholdings associated with Services other than U.S. taxes based on Point One’s property, employees or income. In the case of any withholding requirements, you will pay any required withholding itself and will not reduce the amount paid to you on account thereof.
   3. Overage. If your use of the Services exceeds the capacities set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of the Order Form or this Agreement), Point One will first notify you and provide a seven (7) day period to comply with any capacity or limit, if following such notice period, usage of the Services continues to exceed the limits, Point One may either suspend the Services or invoice you for such usage and you agree to pay the additional fees in the manner provided herein. As further provided in the Acceptable Use Policy, Point One imposes a device pairing limit for its Services, where each device requires a subscription to the Services. Customers may contact Point One at sales@pointonenav.com to increase limits.
   4. Renewal Pricing. Point One reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term (defined below) or then current renewal term, upon thirty (30) days prior notice to you (which may be sent by email). Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in repricing at renewal without regard to the prior term’s per-unit pricing.
6. Term & Termination
   1. Term. Unless otherwise defined in the Order Form, the initial service term shall be one month (“Initial Service Term”), and shall renew automatically for additional periods equal to the length of the expiring Initial Service Term (the Initial Service Term and any renewal terms, together the “Term”), unless either party gives the other notice of non-renewal at least five (5) days before the end of the relevant subscription term.
   2. Termination. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (ten (10) days’ notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within the applicable notice period. Either party may terminate this Agreement immediately upon written notice to the other if a bankruptcy or insolvency proceeding is commenced by or against the other party (unless such proceeding is dismissed within ninety (90) days) or if the other party is dissolved, liquidated, deemed insolvent, or ceases to do business. You will pay in full for the Services up to and including the last day on which the Services are provided.
   3. Post-Termination. Upon any termination, (i) all outstanding amounts owed by you under this Agreement will become immediately due and payable; and (ii) all rights and licenses granted to you hereunder shall immediately terminate, and you shall cease using the Services. You acknowledge that upon termination of the Services Point One may, but is not obligated to, delete your stored Customer Data. You are responsible for backing up Customer Data.
7. Privacy. This agreement is subject to Point One’s Privacy Policy, available at https://pointonenav.com/privacy. By agreeing to use the Services, Customer agrees that Point One may use such Personal Data in accordance with its Privacy Policy.
8. Confidentiality
   1. Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Point One includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes Customer Data. The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information, and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
   2. Exceptions. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public through no fault of the Receiving Party; or (ii) was in its rightful possession or known by it prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party.
   3. Compelled Disclosure. Nothing in this Agreement will prevent the Receiving Party from disclosing the Disclosing Party’s Proprietary Information if compelled by law to do so, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure (to the extent legally permissible) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure..
9. Representations and Warranties; Disclaimer.
   1. Mutual Representations and Warranties. Each party represents and warrants to the other that: (i) such party is duly organized and in good standing under the laws of its jurisdiction of organization and in each other jurisdiction as may be required for the performance of this Agreement; (ii) such party’s entry into and performance under this Agreement has been duly approved by all necessary corporate action and does not violate any constituent instrument of such party; and (iii) such party’s entry into and performance under this Agreement does not violate any law or regulation, judicial or executive order, or contractual commitment by which such party is bound.
   2. Point One Limited Product Warranty. Any Product purchased from Point One under this Agreement will be free of defects in materials and workmanship for a period of one (1) year from the date of sale (“Warranty Period”). If the Product fails to conform to this limited warranty during the Warranty Period, Point One will, at its sole discretion, either (a) repair or replace any defective Product or component; or (b) accept the return of the product and refund the money actually paid by the original purchaser for the Product. Repair or replacement may be made with a new or refurbished Product or components at Point One’s sole discretion. If the Product or a component incorporated within it is no longer available, Point One may, at Point One’s sole discretion, replace the product with a similar Product of similar function. This is your sole and exclusive remedy for breach of this limited warranty. Any Product that has either been repaired or replaced under this limited warranty will be covered by the terms of this limited warranty for the longer of (a) ninety (90) days from the date of delivery of the repaired product or replacement product, or (b) the remaining Warranty Period.
      Before making a claim under this limited warranty, the Customer must (i) notify Point One of the intention to make a claim by contacting support@pointonenav.com during the Warranty Period and providing a description of the alleged failure, and (ii) comply with Point One’s return shipping instructions. Point One will have no warranty obligations with respect to a returned product if it determines, in its reasonable discretion after examination of the returned Product, that the Product is an Ineligible Product (defined below).
      This Limited Warranty does not cover the following (collectively “Ineligible Products”): Products that have been subject to: (a) modifications, alterations, tampering, or improper maintenance or repairs; (b) handling, storage, installation, testing, or use not in accordance with these Terms, Documentation or other instructions provided by Point One; (c) abuse or misuse of the product; (d) events outside of Point One’s control, including breakdowns, fluctuations, or interruptions in electric power or the telecommunications network; or (e) Acts of God, including but not limited to lightning, flood, tornado, earthquake, or hurricane. This Limited Warranty does not apply to anything other than the Products, including the Services, even if packaged or sold with the Products. Point One does not warrant that the operation of the product will be uninterrupted or error-free. This limited warranty gives you specific legal rights. You may also have other legal rights that vary by state, province, or jurisdiction. Likewise, some of the limitations in this Limited Warranty may not apply in certain states. The terms of this limited warranty will apply to the extent permitted by applicable law.
   3. Customer Representations and Warranties. You represent, covenant, and warrant that: (a) you will use the Services only in compliance with the terms of this Agreement and all applicable laws and regulations, including without limitation all applicable data privacy laws; and (b) you have obtained all necessary consents, approvals, and permissions from Authorized Users and other individuals (if applicable) to allow Point One to (i) provide the Services to you and (ii) collect and use Customer Data and information in accordance with Point One’s privacy policy located at https://pointonenav.com/privacy .
   4. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 9(a)-(c), THE SERVICES ARE PROVIDED “AS IS” AND POINT ONE (AND ITS LICENSORS) DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. POINT ONE (OR ITS LICENSORS) DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT (OR ITS LICENSORS) MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. POINT ONE ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO TELECOMMUNICATIONS AND SATELLITE PROVIDERS. YOU ACKNOWLEDGE THE INTERNET, TELECOMMUNICATIONS AND SATELLITE PROVIDERS’ NETWORKS ARE INHERENTLY INSECURE AND THAT POINT ONE WILL HAVE NO LIABILITY FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF CUSTOMER DATA WHILE IN TRANSIT VIA THE INTERNET, TELECOMMUNICATIONS OR SATELLITE PROVIDER’S NETWORK.THE SERVICES SHOULD NOT BE USED IN ANY MANNER THAT DEFICIENCIES, OMISSIONS, INACCURACIES OR ERRORS COULD RESULT IN DEATH, LOSS, DAMAGES, OR INJURY. YOU MUST MAKE YOUR OWN JUDGMENT ABOUT THE ACCURACY OF RESULTS PROVIDED BY THE SERVICES.
10. Indemnification
    1. By Point One. Point One shall hold you harmless from liability to third parties resulting from actual infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret, provided Point One is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Point One will not be responsible for any settlement it does not approve in writing. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Point One to be infringing, Point One may, at its option and expense (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality to the Services; (ii) obtain for you a license to continue using the Services; or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and your rights hereunder and provide you a refund of any prepaid, unused fees for the Services.
    2. Exclusions. Point One’s foregoing indemnification obligations do not apply with respect to portions or components of the Services (i) not supplied by Point One; (ii) made in whole or in part in accordance with your specifications; (iii) that are modified after delivery by Point One; (iv) combined with other products, processes or materials where the alleged infringement relates to such combination; (v) where you continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (vi) where your use of the Services is not strictly in accordance with this Agreement.
    3. By Customer. You hereby agree to indemnify and hold harmless Point One against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of Section 9(c), the Acceptable Use Policy, or otherwise from your use of Services.
11. Limitation of Liability and Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY AMOUNTS THAT, IN THE AGGREGATE, EXCEED THE FEES PAID BY YOU TO POINT ONE FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE APPLICABLE CLAIM, IN EACH CASE, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Exceptions to Limitation of Liability and Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11, THE LIMITATIONS IN SECTION 11 DO NOT APPLY TO (A) PARTIES’ BREACH OF SECTION 8 (CONFIDENTIALITY); YOUR BREACH OF THE ACCEPTABLE USE POLICY; (B) YOUR BREACH OF SECTION 5 (CHARGES AND PAYMENT); OR (C) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 10.
13. Additional Terms
    1. Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
    2. Jurisdiction & Dispute Resolution. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. All disputes arising from or relating to the subject matter of this Agreement shall be finally settled by binding arbitration in accordance with the Arbitration Rules and Procedures of JAMS then in effect, and judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction, provided however, that each party will have a right to seek injunctive or other equitable relief in a court of competent jurisdiction. The place of the arbitration shall be in San Francisco County, California and the language of the arbitration shall be English. The arbitration award of the arbitrator shall be final and binding on the parties and shall be enforceable in accordance with its terms. Subject to the foregoing, the courts in San Francisco County, California have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement or its interpretation, and the parties irrevocably submit and agree to submit to the exclusive jurisdiction of such courts.
    3. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
    4. Force Majeure. Except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including governmental action or acts of terrorism, epidemic, pandemic, earthquake or other acts of God, labor conditions, and power failures. Each party shall promptly notify the other party upon becoming aware that any such event has occurred or is likely to occur and shall use its best efforts to minimize any resulting delay in or interference with the performance of its obligations under these Terms.
    5. Export Controls. You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation in the Services are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
    6. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, proprietary rights, warranty disclaimers, indemnification, and limitations of liability.
    7. Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Point One in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
    8. Assignment. This Agreement is not assignable, transferable, or sublicensable by you except with Point One’s prior written consent. Point One may transfer and assign any of its rights and obligations under this Agreement without consent.
    9. Entire Agreement. This Agreement, any applicable Order Form pursuant hereto, the Acceptable Use Policy and Privacy Policy referenced therein is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
    10. Modifications. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any provision of this Agreement or of any subsequent breach.