This API LICENSE AGREEMENT (this “Agreement”), effective as of the date of your acceptance of this Agreement (the “Effective Date”), is a binding agreement between Garmin International, Inc. and its affiliates (collectively, “Garmin”) and you or, if you are entering into this Agreement on behalf of a corporation, governmental organization, or other legal entity, then the corporation, governmental organization, or other legal entity you represent (“Licensee”). As used herein, Garmin and Licensee are each referred to as a “Party” and collectively as the “Parties.” By accepting this Agreement, you affirm that you are authorized to bind Licensee and confirm that you have read and agree to all terms set forth in this Agreement.
GARMIN PROVIDES THE API AND GARMIN BRAND FEATURES (EACH AS DEFINED BELOW) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CHECKING THE “I AGREE TO ALL OF THE ABOVE TERMS & CONDITIONS” BOX AND CLICKING “ACCEPT” BELOW, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, GARMIN WILL NOT AND DOES NOT LICENSE THE API OR GARMIN BRAND FEATURES TO LICENSEE, AND YOU MUST NOT DOWNLOAD OR USE THE API, ANY DELIVERABLES (AS DEFINED BELOW), OR ANY GARMIN BRAND FEATURE.
THIS AGREEMENT CONTAINS PROVISIONS THAT LIMIT GARMIN’S LIABILITY.
1.PURPOSE
This Agreement sets forth the terms and conditions concerning Licensee’s use of (a) the Garmin Connect Developer Program and data shared through Garmin Connect and/or other Garmin web services (through any API or otherwise), in each case, for development of Licensee Applications and End User use thereof and/or (b) the Garmin Connect Developer Program to enable End Users to upload End User Data to their Garmin Connect accounts via Licensee Applications.
2.DEFINITIONS
“Activity API” means the Garmin Connect Activity Application Programming Interface, including any Updates thereto and any accompanying Deliverables.
“Additional Terms” means any terms and conditions agreed to between Garmin and/or the End User, on one hand, and the originator of the End User Data, on the other hand, including the license of any intellectual property rights of the originator of the End User Data.
“API” or “Garmin Connect Developer Program” means one of the following, as applicable: Activity API; Courses API; Health API; Training API; Women’s Health API; or any combination thereof.
"Application Requirements" means this Agreement, the Deliverables, and any additional guidelines that Garmin may post on a Garmin developer website or otherwise provide to Licensee from time to time.
“Courses API” means the Garmin Connect Courses Application Programming Interface, including any Updates thereto and any accompanying Deliverables.
“Deliverables” means the executable code of the API, supporting documentation, License Key, text, software, and any other materials associated with the API as may be provided by Garmin.
“End User” means a person who uses Licensee Applications.
“End User Data” means all data created by, or otherwise related to, an End User, including training data (including plans, courses, and workouts), uploaded to, downloaded from, or otherwise transferred to or from such End User’s Garmin Connect account, including all data uploaded, directly or via Licensee Applications, to such End User’s Garmin Connect account. Unless otherwise specified, all references to “data” in this Agreement are intended to include End User Data.
“Health API” means the Garmin Connect Health Application Programming Interface, including any Updates thereto and any accompanying Deliverables.
“License Key” means a unique electronic key that is assigned to Licensee and associated with the URL of Licensee’s website.
“Licensee Applications” means the websites, software applications, services, or products developed, implemented, or distributed by Licensee that interact with the API and/or interface with Garmin Connect and/or other Garmin web services.
“Minimum Security Requirements” means any current or future security requirements defined by Garmin related to the API, Garmin Connect services, and/or other Garmin web services, as specified in this Agreement, Application Requirements, Deliverables, or any other documentation provided or communicated by Garmin to Licensee.
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person. Personal Data includes information relating to the End User, such as number of steps walked, calories burned, distance traveled, total activity time throughout the day, and any other metrics obtained, and includes information derived from these or other data.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of, or access to, Personal Data transmitted, stored, or otherwise subjected to Processing.
“Process” or “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
“Training API” means the Garmin Connect Training Application Programming Interface, including any Updates thereto and any accompanying Deliverables.
“Women’s Health API” means the Garmin Connect Women’s Health Application Programming Interface, including any Updates thereto and any accompanying Deliverables.
3.DELIVERY AND ACCEPTANCE
3.1. Garmin shall deliver a single License Key to Licensee after Licensee accepts this Agreement.
3.2. Garmin has no obligation to provide Licensee or its End Users with support, software upgrades, enhancements, or modifications to the API. Licensee understands and agrees that it is solely responsible for providing End User support and any other technical assistance for the Licensee Applications. Garmin may redirect End Users and potential End Users of the Licensee Applications to the email address on Licensee’s account for purposes of answering general application inquiries and support questions. Notwithstanding the foregoing, Licensee acknowledges that Garmin may update or modify the API from time to time and in Garmin’s sole discretion (in each instance, an “Update”) and may require Licensee to obtain and use the most recent version of the API. Updates may adversely affect how Licensee Applications communicate with the Garmin Connect services or any other Garmin web services. Licensee is required to make any changes to Licensee Applications that are required for integration as a result of such Update at Licensee’s sole cost and expense. Licensee’s continued use of the API or Garmin Brand Features following an Update constitutes binding acceptance by Licensee of the Update.
4.LICENSE GRANTS AND OWNERSHIP
4.1. Subject to and conditioned upon Licensee’s strict compliance with the terms and conditions set forth in this Agreement, Garmin grants Licensee a limited, non-exclusive, non-transferrable, revocable, and non-sublicensable license during the term of this Agreement to: (a) embed the API and underlying content into Licensee Applications solely for internal business purposes so that Licensee Applications can interface directly with Garmin Connect and/or other Garmin web services; and (b) use data transmitted through the API (i) solely for internal business purposes, (ii) only to the extent necessary to format and display such data (A) in Licensee Applications or (B) in a third party application or on Licensee’s or a third party’s website, in each case, using Licensee Applications, and (iii) only as allowed by law and in compliance with each End User’s consent. Licensee acknowledges that there are no implied licenses granted under this Agreement.
4.2. Garmin reserves the right, but is not obligated, to require Licensee to submit the Licensee Application for review by Garmin prior to implementation or publication of the Licensee Application. Garmin may approve or decline the Licensee Application in its sole discretion. In addition to the foregoing, Garmin may, in its sole discretion and at any time, determine that the Licensee Application does not meet all or any part of the Application Requirements or rescind or suspend any License Key, even if the Licensee Application meets the Application Requirements. If Garmin declines a Licensee Application or determines that a Licensee Application does not meet all or any part of the Application Requirements, then Licensee agrees that it will not implement, publish, or otherwise allow any End User to use or access such Licensee Application, unless and until Licensee receives Garmin’s express written approval. None of Garmin’s review, testing, or approval of the Licensee Application limits or relieves Licensee of any responsibilities related to the Licensee Application or limits Garmin’s rights and remedies under this Agreement.
4.3. Licensee acknowledges and agrees that the API and Garmin Brand Features are owned or licensed by Garmin and are licensed, not sold, to Licensee on the terms and conditions set forth in this Agreement. Licensee does not acquire any ownership interest in the API or Garmin Brand Features under this Agreement or any other rights thereto other than in accordance with the rights granted herein and subject to all terms, conditions, and restrictions under this Agreement. Garmin and/or its licensors reserve and shall retain their entire right, title, and interest in and to the API and Garmin Brand Features, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to Licensee in this Agreement. This Agreement defines Licensee’s legal use of the Garmin Brand Features and the API, including all Updates, revisions, substitutions, and any copies of the API made by or for Licensee. All rights not expressly granted to Licensee are reserved by Garmin.
4.4. Licensee will use commercially reasonable efforts to safeguard the API and Garmin Brand Features (in each case, including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee will promptly notify Garmin in writing if Licensee becomes aware of any infringement or other violation of any intellectual property rights in the API or Garmin Brand Features and will fully cooperate with Garmin, at Garmin’s expense, in any legal action taken by Garmin to enforce Garmin’s intellectual property rights.
4.5. All Licensee Applications that transfer End User Data to Garmin, including to Garmin Connect, must (a) present each End User with accurate, complete, and conspicuous notice that the End User Data will be transferred to Garmin, including a link to the Garmin Connect privacy notice (<https://www.garmin.com/privacy/connect>), (b) obtain each End User express consent to transfer the End User Data to Garmin, and (c) inform each End User that it is the End User’s responsibility to comply with any and all restrictions regarding the End User’s use of the Additional Terms and that (i) the End User must not upload the End User Data to the End User’s Garmin Connect account if the End User is restricted from doing so and (ii) the End User must not modify the Additional Terms if the End User is restricted from doing so.
4.6. Licensee agrees that Garmin shall be free to copy, modify, create derivative works of, publicly display, disclose, distribute, license, sublicense, incorporate, and otherwise use all End User Data and other content that is transferred to Garmin by Licensee or End Users through the Licensee Applications or otherwise, including all derivative works thereto, for any and all purposes, commercial or otherwise, with no obligation of any kind to Licensee, including any obligation to remove such transferred End User Data or other content from Garmin’s servers, products, or applications or compensate Licensee or any End User. Licensee agrees that it is not Garmin’s responsibility to take any steps to protect any Licensee or End User intellectual property rights, including copyrights in any End User Data and other content that is transferred to Garmin by Licensee or End Users through the Licensee Applications.
4.7. Licensee and its employees, contractors, and agents may voluntarily provide Garmin with feedback or comments related to the API and/or Garmin Brand Features and/or otherwise related to this Agreement (“Feedback”). Licensee hereby assigns, and will cause its employees, contractors, and agents to assign, to Garmin all right, title, and interest in any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever and without any attribution or compensation to Licensee or any third party. Licensee agrees that Garmin shall be free to copy, modify, create derivative works of, publicly display, disclose, distribute, license, sublicense, incorporate, and otherwise use Feedback, including all derivative works thereof, for any and all purposes, commercial or otherwise, with no obligation of any kind to Licensee or any third party. For the avoidance of doubt, Garmin will not be required to use any Feedback.
5.LICENSEE’S DUTIES AND RESTRICTIONS
5.1.Licensee shall:
a. follow all Application Requirements, including all upload and user experience guidelines and instructions, and such other documentation as provided and/or updated by Garmin from time to time;
b. ensure that the fundamental meaning of the API content is not changed or distorted;
c. ensure that the use or display of API content does not suggest that Garmin promotes or endorses Licensee or any third party or the causes, ideas, websites, products, or services of Licensee or any third party;
d. only use the API for the purposes and in the manner expressly permitted by this Agreement;
e. use the API and undertake Processing the data transmitted through the API in accordance with all applicable laws and regulations and in a manner consistent with End Users’ consent;
f. maintain a security program that includes policies and procedures to safeguard data and systems that are no less rigorous than accepted industry practices, including employing security controls to proactively and regularly defend, identify weaknesses, and identify attacks against systems or data that interface with Garmin and that at all times meet or exceed the Minimum Security Requirements;
g. notify Garmin (by [email protected] and by calling +1 913.440.3500) within twenty-four (24) hours of identifying security weaknesses that, if exploited, threaten the confidentiality, integrity, or availability of Garmin systems or data;
h. notify Garmin (by [email protected] and by calling +1 913.440.3500) within twenty-four (24) hours of any confirmed systems breach, data breach, Personal Data Breach, or major security incident against systems or data that interface with Garmin;
i. comply with all applicable laws, regulations, and policies, including but not limited to all U.S. Food and Drug Administration (“FDA”) laws, regulations, and policies, related to the manufacturing, marketing, sale, and distribution of Licensee Applications in the United States, as well as in other jurisdictions where any Licensee Application is available, manufactured, marketed, sold, distributed or used;
j. only market a Licensee Application for such Licensee Application’s cleared or approved intended use/indication for use, and only in strict compliance with applicable law and regulatory requirements; and
k. comply with all terms set forth in this Agreement, including all obligations set forth in Section 15 below.
5.2.Licensee shall not:
a. modify or edit any content, headlines, links, or metadata included in the API content when presenting it on a Licensee Application;
b. display the name, logo, trademark, or other identifier of another person (other than Garmin, in accordance with this Agreement) on any Licensee Application, Licensee’s website, and/or any third party application and/or website, in each case, in such a manner as to give the viewer the impression that such other person is a publisher or distributor of the API content on such Licensee Application;
c. use the API or the Garmin Brand Features in any manner or for any purpose that violates any law or regulation, any right of Garmin or any other person or entity, including intellectual property rights, rights of privacy, or rights of personality, or in any manner inconsistent with this Agreement;
d. use the API to operate any application where human life may be at stake. Licensee understands that the API is not designed for such purposes and that Licensee’s failure in such cases could lead to death or personal injury for which Garmin is not responsible;
e. sell, lease, share, transfer, or sublicense the License Key or derive income from the use or provision of the API, whether for direct commercial or monetary gain or otherwise, without Garmin's prior written permission;
f. use the API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the applicable Deliverables, as determined by Garmin in its sole discretion;
g. mislead or confuse End Users as to the features, functionality, origin, capabilities, or other aspects of the Licensee Application or the API;
h. interfere with, override, or disable any notices, settings, alerts, warnings, features, or functionality of the API, including any mechanisms used to restrict or control the Garmin Connect services or any other Garmin web services;
i. translate, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to source code, underlying ideas, algorithms, structure, organizational form, or other software component of the API;
j. use the API to design a client or application that uses any robot, spider, site search, or other retrieval application or device to scrape, retrieve, or index services provided by Garmin or its licensors, or to collect information about End Users for any unauthorized purpose;
k. use, deliver, transfer, or otherwise allow any spyware, adware, or other malicious software, data, or hardware;
l. copy the API, except as expressly permitted by this Agreement;
m. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, to the API;
n. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the API or any other material provided by Garmin, including any copy thereof;
o. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the API or any features or functionality of the API to any third party for any reason, including by making the API available on a network where it is capable of being accessed by more than one device at any time;
p. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the API, Garmin Connect services, and/or any other Garmin web services;
q. combine or integrate the API with any software, technology, services, or materials, unless authorized (i) herein or (ii) by Garmin in writing;
r. attempt to cloak or conceal Licensee’s identity or the identity of the Licensee Applications when requesting authorization to use the API;
s. violate, misappropriate, or infringe any copyright, patent, trademark, trade secret, rights of privacy and publicity, or other proprietary, contract, or legal right of any third party or of Garmin;
t. use the API or any Garmin Brand Feature to compete with Garmin, including displaying any advertising of products or applications that compete with Garmin’s products or applications on any part of Licensee Applications; or
u. use of the API in connection with or to promote any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in: (i) counterfeit goods; (ii) items subject to U.S. embargo; (iii) unsolicited mass distribution of email (i.e., spam); (iv) multi-level marketing proposals; (v) hate speech or materials; (vi) hacking, surveillance, interception, or descrambling equipment; (vii) libelous, defamatory, obscene, pornographic, abusive, or otherwise offensive content; (viii) stolen products; and (ix) items used for theft, hazardous materials, or any illegal activities.
5.3. Licensee agrees to monitor the use of Licensee Applications for any activity that violates applicable laws, rules, regulations, or orders or any terms and conditions of this Agreement, including any fraudulent, inappropriate, or potentially harmful behavior, and promptly restrict any offending End User(s) from further use of Licensee Applications. Licensee agrees to provide a resource for End Users to report abuse of Licensee Applications. As between Garmin and Licensee, Licensee is responsible for all acts and omissions of End Users in connection with Licensee Applications or otherwise under this Agreement. Licensee agrees that it is solely responsible for posting any privacy notices and obtaining any consents from End Users required under applicable laws, rules, regulations, and orders for their use of Licensee Applications. Licensee agrees to enter into a written agreement with each End User that contains protections and limitations of liability, in each case for the benefit of Garmin, at least as protective as those contained in this Agreement.
5.4. The Parties understand and agree that Garmin is not a consumer reporting agency as defined by the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. (“FCRA”) and that Licensee’s use of the API as contemplated hereunder does not constitute a transaction involving a “consumer report” as defined by the FCRA. Licensee agrees that any End User information provided to Licensee by Garmin or through the API has not been collected for credit purposes and will not be used by Licensee or any third party to evaluate or determine any End User’s credit worthiness, credit standing, credit capacity, or other characteristics listed in Section 603(d) of the FCRA. Licensee shall not use or permit any third party to use the API, any data transmitted through the API, or any Garmin service to determine End User’s eligibility for credit or insurance, employment purposes, or any other purpose set forth in Section 604 of the FCRA.
5.5. Licensee agrees, upon Garmin’s request, to promptly provide any clearance documentation related to Section 5.1(j) to support the marketing of any Licensee Application.
5.6. Licensee is solely responsible for complying with any laws, orders, rules, and regulations of: (a) the Federal Communications Commission, FDA, other U.S. regulatory bodies (such as the U.S. Federal Trade Commission and the U.S. Department of Health and Human Services); and (b) any federal, state or local governmental authority and of any other jurisdiction, in each case, applicable to its use of the API or the manufacture, marketing, sale, distribution or other exploitation of any Licensee Application (e.g. MHRA, CFDA, etc.). Licensee agrees it will not seek any regulatory marketing permissions or make any determinations that may result in the API, Garmin Connect or any other Garmin product or service being determined to be regulated products or that may impose any obligations or limitations on Garmin.
5.7. Licensee acknowledges and agrees that (a) use of data and the Garmin Brand Features on any third party application or website in accordance with this Agreement may be subject to additional terms and conditions, including terms and conditions governing Licensee’s and/or other third party’s use of such application or website, (b) Licensee will comply with such terms and conditions, and (c) Garmin shall have no liability or other obligation under such terms and conditions or otherwise related to such use, except as explicitly set forth herein.
6.GARMIN TRADE NAME AND LOGO LICENSE
6.1. Subject to Licensee’s strict compliance with the terms and conditions of this Agreement, Garmin grants Licensee a limited, worldwide, royalty-free, non-assignable, non-transferable, sublicensable (only in accordance with Section 6.4), revocable, and non-exclusive license to display Garmin’s trade name; the Garmin and/or Garmin Connect logos; and/or the Garmin, Garmin Connect, and/or Garmin mountain bike dynamics (including Grit™ and Flow™) word marks (collectively, “Garmin Brand Features”) on (a) any content or data that is retrieved from Garmin Connect and displayed (i) in Licensee Applications or (ii) in third party applications or on Licensee’s or any third party’s website, in each case, using Licensee Applications and (b) Licensee Applications for the purposes of informing End Users that they can (i) retrieve their data from Garmin Connect and/or (ii) upload their data to their Garmin Connect accounts. Licensee must include the Garmin Brand Features in Licensee Applications, in third party applications, and on Licensee’s and third party’s websites for these limited purposes.
6.2. With respect to Licensee’s use of the Garmin Brand Features, Licensee shall at all times adhere to the brand guidelines and appropriate icons set forth onhttps://developer.garmin.com/brand-guidelines/overview/, which may be revised by Garmin from time to time. With respect to Licensee’s use of Garmin mountain bike dynamics (including Grit™ and Flow™) word marks and related data, Licensee shall at all times adhere to the display guidelines set forth onhttps://developer.garmin.com/brand-guidelines/overview/.
6.3. In using Garmin Brand Features, Licensee will not:
a. use Garmin Brand Features to disparage Garmin or its products or applications or cast Garmin in a negative light in any way;
b. display a Garmin Brand Feature in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene, or otherwise objectionable to Garmin; or
c. remove, distort, or alter any element of a Garmin Brand Feature (this includes squeezing, stretching, inverting, discoloring, etc.).
6.4. Licensee shall have the right to grant sublicenses to third parties solely for use of the Garmin Brand Features by such third parties in accordance with Section 6.1(a)(ii). Licensee's right to grant sublicenses under this Section 6.4 is subject to the following: (a) no sublicense may exceed the scope of rights granted under Section 6.1(a)(ii); (b) in the event of expiration or termination of this Agreement, all sublicense rights of such Licensee will terminate automatically effective as of the expiration or termination date of this Agreement and such sublicensees must cease using, destroy, and permanently erase from all devices and systems, directly or indirectly controlled by such sublicensees, all Garmin Brand Features; (c) all sublicensees must abide by the terms and conditions of this Agreement applicable to Licensee’s use of Garmin Brand Features, including Sections 4.3, 4.4, 4.7, 5.2(c), 6.2 and 6.3; and (d) Licensee shall be responsible and liable for the acts or omissions of its sublicensees as if such acts or omissions were the acts or omissions of Licensee. For the avoidance of doubt, no third party is granted any right to grant sublicenses for use of any Garmin Brand Feature to other third parties pursuant to this Section 6.
7.LICENSEE TRADE NAME AND LOGO LICENSE
7.1. Licensee grants Garmin a personal, worldwide, royalty-free, non-assignable, non-transferable, non-sublicensable, irrevocable, and non-exclusive license to display Licensee's trade name and logo (“Licensee Brand Features”) on Garmin’s website to identify Licensee as a Garmin strategic collaborator related to the API implementation, including in the firmware of End Users’ Garmin devices for purposes of identifying Licensee as the strategic collaborator that enabled the transfer of End User Data to that End User’s Garmin Connect account.
7.2. In using Licensee Brand Features, Garmin will not:
a. use Licensee Brand Features to disparage Licensee or its products or applications or cast Licensee in a negative light in any way;
b. display a Licensee Brand Feature in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene, or otherwise objectionable to Licensee; or
c. remove, distort, or alter any element of a Licensee Brand Feature (this includes squeezing, stretching, inverting, discoloring, etc.).
8.CONFIDENTIALITY
8.1. The terms of this Agreement, the API, License Key, Deliverables, and any related information provided to Licensee by Garmin are proprietary and confidential information of Garmin and shall constitute “Garmin Confidential Information” under this Agreement. “Garmin Confidential Information” also includes any other non-public information (including non-public third-party information) that Licensee learns in connection with this Agreement or Licensee’s use of any part of the API, including any non-public information related to Garmin’s products, designs, research, development, know-how, business, finances, or personnel.
8.2. Licensee agrees to protect Garmin Confidential Information using at least the same degree of care that it uses to protect its own confidential information of similar importance, but no less than a reasonable degree of care. Licensee agrees to use Garmin Confidential Information solely for the purpose of exercising its rights and performing its obligations under this Agreement and agrees not to use Garmin Confidential Information for any other purpose, or for its own or any third party’s benefit, without the prior written consent of an authorized representative of Garmin. Except as otherwise agreed to in writing by Garmin, Licensee further agrees not to disclose or disseminate Garmin Confidential Information to anyone, or to discuss anything about the Garmin Confidential Information with anyone, other than those of Licensee’s employees and contractors, in each case, who have a need to know and who are bound by written obligations of confidentiality as least as restrictive as those set forth in this Section 8. Licensee shall be responsible for any breach by any such employee or contractor of this Section 8. Notwithstanding the foregoing, Licensee may disclose Garmin Confidential Information to the extent required by judicial or other governmental order, provided Licensee shall give Garmin written notice within a reasonable time prior to such disclosure, shall reasonably assist Garmin in obtaining a protective order or equivalent order governing the information disclosure, shall comply with any applicable protective order or equivalent order governing the information disclosure, and shall disclose only the Garmin Confidential Information required by such judicial or other governmental order.
8.3. Garmin works with many application and software developers, and some of their products may be similar to or compete with Licensee’s products and applications, including Licensee Applications. Garmin may also be developing its own similar or competing applications and products or may decide to do so in the future. To avoid potential misunderstandings, Garmin cannot agree to, and expressly disclaims, any confidentiality obligations or use restrictions, express or implied, with respect to any information that Licensee may provide in connection with this Agreement, including information about Licensee’s products and applications, including Licensee Applications (such disclosures will be referred to as “Licensee Disclosures”). Licensee agrees that any such Licensee Disclosures will be non-confidential. Garmin will be free to use and disclose any Licensee Disclosures on an unrestricted basis without notifying or compensating Licensee. Licensee releases Garmin from all liability and obligations that may arise from the receipt, review, use, or disclosure of any portion of any Licensee Disclosures. Any physical materials Licensee submits to Garmin will become Garmin property, and Garmin will have no obligation to return those materials to Licensee or to certify their destruction.
8.4. Licensee will not issue any press releases or make any other public statements regarding Garmin, this Agreement, or the subject matter hereof, in each case, without Garmin’s express prior written approval.
9.TERM AND TERMINATION
9.1. The term of this Agreement commences on the Effective Date and will continue in effect until terminated as set forth in Sections 9.2, 9.3, or 9.4 below.
9.2. Garmin may terminate this Agreement at any time by providing Licensee with thirty (30) days’ prior written notice.
9.3. Licensee may terminate this Agreement by deleting and ceasing use of the API, Garmin Brand Features, and all copies thereof.
9.4. This Agreement will terminate immediately and automatically, without any notice by either Party, if Licensee violates any of the terms and conditions of this Agreement.
9.5. Upon termination of this Agreement for any reason, all licenses and rights granted to Licensee under this Agreement will also terminate, and Licensee must cease using, destroy, and permanently erase from all devices and systems, directly or indirectly controlled by Licensee, all copies of the API and Garmin Brand Features. Termination will not limit any of Garmin’s rights or remedies at law or in equity. Upon termination of this Agreement, all other rights granted to Licensee under this Agreement will also terminate. Each Party’s rights and obligations under Sections 2, 4.3-4.7, 5.2-5.6, 7, 8, 9.5, 10, 11, 12, 13, 14, 15, 16.1, 16.7, and 16.11-16.13 shall survive termination of this Agreement.
10.FEES AND PAYMENTS
10.1. Licensee acknowledges and agrees that no license fees or other payments will be due under this Agreement in exchange for the rights granted under this Agreement. Licensee acknowledges and agrees that this fee arrangement is made in consideration of the mutual covenants set forth in this Agreement, including the disclaimers, exclusions, and limitations of liability set forth herein. Notwithstanding the foregoing, Garmin reserves the right to charge fees for future use of or access to the API in Garmin's sole discretion. If Garmin decides to charge for any API, such charges and terms of payment will be disclosed to Licensee and effective upon thirty (30) days’ prior notice from Garmin.
10.2. Without limiting Garmin's right to indemnification pursuant to Section 14.2 below, Garmin reserves the right to charge fees for request volume that exceeds any limits set forth in the Application Requirements.
11.DISCLAIMER OF WARRANTIES
11.1. Licensee’s use of the API is at its own discretion and risk, and Licensee will solely be responsible for any damage that results from the use of the API, including any damage to Licensee’s or its End Users’ computer systems or devices or any loss of data.
11.2. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE API AND GARMIN BRAND FEATURES ARE USED AT ITS SOLE RISK. THE API AND GARMIN BRAND FEATURES ARE PROVIDED “AS IS”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND GARMIN AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE API AND GARMIN BRAND FEATURES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. GARMIN AND IT LICENSORS DO NOT WARRANT THAT THE API OR GARMIN BRAND FEATURES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON'S REQUIREMENTS; OPERATE WITHOUT INTERRUPTION; ACHIEVE ANY INTENDED RESULT; BE COMPATIBLE OR WORK WITH ANY OF GARMIN’S, ITS LICENSEE’S, OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER PRODUCTS OR SERVICES; OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GARMIN OR A GARMIN AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY ON BEHALF OF GARMIN.
12.LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, GARMIN SHALL NOT BE LIABLE TO LICENSEE IN RESPECT OF ANY CLAIM, DEMAND, OR ACTION, IRRESPECTIVE OF THE NATURE OF THE CAUSE OF THE CLAIM, DEMAND, OR ACTION, ALLEGING ANY LOSS, INJURY, OR DAMAGES, DIRECT OR INDIRECT, WHICH MAY RESULT HEREUNDER OR FROM ANY ACT OR OMISSION BY GARMIN OR ANY OTHER PARTY RELATED TO THIS AGREEMENT, INCLUDING FROM THE USE OR POSSESSION OF THE API OR END USER DATA, OR FOR ANY LOSS OF PROFIT, REVENUE, CONTRACTS, OR SAVINGS, OR ANY OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION OR INTERRUPTION OF BUSINESS) ARISING OUT OF LICENSEE’S USE OF OR INABILITY TO USE THE API, ANY DEFECT IN THE API, OR OTHERWISE UNDER THIS AGREEMENT, INCLUDING A BREACH HEREOF, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF GARMIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, GARMIN’S TOTAL AGGREGATE LIABILITY WITH RESPECT TO ANY CLAIM OR ACTION ARISING UNDER THIS AGREEMENT, OR OTHERWISE WITH RESPECT TO THE API, SHALL NOT EXCEED $1.00.
LICENSEE SHALL NOT BE LIABLE TO GARMIN FOR ANY LOSS OF PROFIT, REVENUE, CONTRACTS, OR SAVINGS, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES.
SOME STATES (INCLUDING NEW JERSEY), TERRITORIES, AND COUNTRIES DO NOT ALLOW CERTAIN LIABILITY EXCLUSIONS OR DAMAGES LIMITATIONS; PROVIDED, HOWEVER, THAT, IN THE EVENT ANY SUCH LIABILITY EXCLUSION AND/OR DAMAGES LIMITATION IS DECLARED INVALID OR UNENFORCEABLE, SUCH LIABILITY EXCLUSION AND/OR DAMAGES SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
13.RELEASE AND WAIVER
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE HEREBY RELEASES AND WAIVES ALL CLAIMS AGAINST GARMIN AND ITS OFFICERS, DIRECTORS, MANAGERS, PARTNERS, MEMBERS, SHAREHOLDERS, AGENTS, LICENSORS, CO-BRANDERS, REPRESENTATIVES, AND EMPLOYEES FROM ANY AND ALL LIABILITY FOR CLAIMS, DAMAGES (INCLUDING ACTUAL AND/OR CONSEQUENTIAL), COSTS, AND EXPENSES (INCLUDING LITIGATION COSTS AND ATTORNEYS' FEES) OF EVERY KIND AND NATURE, ARISING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT OR LICENSEE’S USE OF THE API AND/OR GARMIN BRAND FEATURES.
14.LICENSEE WARRANTIES, HOLD HARMLESS, AND INDEMNITY
14.1. Licensee represents and warrants that (a) it will maintain, throughout the term of this Agreement, all required rights and licenses related to the Licensee Applications, and the Licensee Applications shall not infringe or otherwise violate any third party rights, including third party intellectual property rights; and (b) its uses of the API and data shall comply with all applicable foreign, federal, state, and local laws, rules, and regulations.
14.2. To the maximum extent permitted by applicable law, Licensee agrees to defend, hold harmless, and indemnify Garmin and its officers, directors, managers, partners, members, shareholders, agents, licensors, co-branders, representatives, and employees from and against any third party claim, loss, liability, judgment, demand, penalty (including any administrative penalty), settlement, investigation, cost, and expense (each, a “Claim”) arising from or in any way related to (a) Licensee’s breach of this Agreement, (b) a Personal Data Breach or Claim caused by any violation of applicable law, act, omission, or negligence of Licensee, or (c) Licensee’s use of the API in a manner that is inconsistent with the purpose set forth in Section 1 of this Agreement, or (d) Claims that a Licensee Application infringes the intellectual property rights of a third party. Garmin shall use good faith efforts to provide Licensee with written notice of such Claim. Garmin reserves the right, in Garmin’s sole discretion, to assume the exclusive defense, control, and settlement of any Claim with legal counsel of Garmin’s choice at the expense of Licensee, and, in such case, Licensee agrees to fully cooperate with Garmin in the defense of any such Claim. Licensee may not enter into any third-party agreement that would, in any manner whatsoever, constitute an admission of fault by Garmin or bind Garmin in any manner, without Garmin’s prior written consent.
15.DATA PROTECTION AND PRIVACY
15.1. Through the API, Licensee may collect End User Data that constitutes Personal Data (“End User Personal Data”) or receive End User Personal Data from Garmin.
15.2. Garmin and Licensee acknowledge and agree that they are each an independent Controller, as that term is defined in the European Union’s General Data Protection Regulation (“GDPR”), United Kingdom Data Protection Act of 2018 (“UK DPA”), or any other applicable data protection or privacy law, rule, or regulation (collectively, “Applicable Data Protection Laws”), of the Personal Data each Party Processes related to this Agreement. The Parties are each separately responsible for, and shall each comply with, their respective obligations set forth in this Agreement and with their respective obligations contained in Applicable Data Protection Laws.
15.3. Each Party shall take actions to ensure the appropriate security of all End User Personal Data in its possession, custody, or control, including actions to protect against unauthorized or unlawful Processing and against accidental loss, destruction, or damage, using appropriate technical and organizational measures and in accordance with obligations under Applicable Data Protection Laws.
15.4. Licensee is responsible for complying with Applicable Data Protection Laws related to Licensee’s collection, storage, use, and other Processing of End User Personal Data collected by Licensee through the API.
15.5. Before collecting any End User Personal Data through the API, Licensee will (a) provide conspicuous notice, drafted in compliance with and including all information required by Applicable Data Protection Laws, to the End User of its privacy practices applicable to Licensee Applications and (b) confirm that any such notice required by Applicable Data Protection Laws has been provided to the End User and that any consent required by Applicable Data Protection Laws has been obtained from the End User, in each case tracking notices sent and consents received.
15.6. Licensee will provide the End User with a means to withdraw consent for Licensee’s Processing of End User Personal Data and will promptly cease Processing of End User Personal Data that had been based on the End User’s consent after such consent is withdrawn.
15.7. Licensee will respond in accordance with Applicable Data Protection Laws to End User requests to exercise their data subject rights, including their rights, where applicable, to access, rectify, erase, object to, restrict the Processing of, or export End User Personal Data that Licensee has collected via the API.
15.8. Licensee will not sell End User Personal Data received via the API without the End User’s consent, which shall meet all conditions required by Applicable Data Protection Laws.
15.9. Unless legally permitted to do so, Licensee will not use the API to make any modifications to any End User Personal Data, other than to modify the formatting of such End User Personal Data in order to display it in a manner appropriate for the pertinent Licensee Applications.
15.10. Licensee shall not disclose the End User Personal Data to any person or entity in any manner that is inconsistent with this Agreement or End User consent. Licensee shall ensure that any disclosures to such person or entity complies with all Applicable Data Protection Laws.
15.11. Licensee shall notify Garmin promptly and without undue delay, and in any event within twenty-four (24) hours of any Personal Data Breach involving End User Personal Data or that could compromise the API or End User’s Garmin account credentials. Such notification should be made by email [email protected] with a copy [email protected] and by phone at +1 913.440.3500.
15.12. Licensee shall promptly notify Garmin of any investigation by a data protection regulator or similar authority relating to Licensee’s use of the API or to End User Personal Data, and, without prejudice to Garmin’s indemnification rights, permit Garmin to cooperate with Licensee in responding to any such investigation if Garmin deems it appropriate for Garmin to participate.
15.13. Licensee is responsible for properly implementing Garmin’s system for authorizing access to End User Personal Data via the API. Licensee shall not request or otherwise attempt to obtain the End User’s Garmin login credentials, implement an alternative authorization system that is not specifically approved by Garmin in writing, or attempt to circumvent Garmin’s access controls or other security measures in any manner.
15.14. Before collecting any End User Personal Data through the API, Licensee shall ensure that the transfer of End User Personal Data to Licensee via the API complies with all applicable requirements for the cross-border transfer of End User Personal Data if such transfer constitutes a cross-border transfer of User Personal Data under Applicable Data Protection Laws.
15.15. If Licensee is located in a jurisdiction outside of the European Economic Area (“EEA”) that has not been deemed adequate by the European Commission (each a “Third Country”), Garmin and Licensee agree that the controller-to-controller standard contractual clauses adopted by Commission Decision 2004/915/EC dated 27 December 2004 (the “C2C SCCs”) are incorporated by reference and apply with respect to any transfer of Personal Data related to End Users in the EEA (“EEA Personal Data”) from Garmin to Licensee and that Garmin and Licensee will each comply with their respective obligations under the C2C SCCs. For purposes of the C2C SCCs, Garmin Würzburg GmbH is the data exporter, and Licensee is the data importer. Licensee agrees to process EEA Personal Data in accordance with the data protection principles as described in Annex A of the C2C SCCs. The Parties agree that as and when the C2C SCCs are updated, replaced, or superseded, such updated or new model contractual clauses will automatically apply and be incorporated into this Agreement and govern the transfers of EEA Personal Data from Garmin to Licensee.
15.16. Licensee acknowledges that Garmin is certified under the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”) and received some portion of the EEA Personal Data under the Privacy Shield. Although the Privacy Shield has been found to be invalid as a transfer mechanism by the applicable governmental or judicial agencies in the EU and in Switzerland, the Privacy Shield has not been found to be invalid by applicable governmental or judicial agencies in the United States, and Garmin remains obligated to comply with certain obligations under the Privacy Shield. Accordingly, Licensee agrees to Process of EEA Personal Data in a manner consistent with all applicable requirements of the Privacy Shield Principles (the “Principles”), to provide the same level of protection for EEA Personal Data as required by the Principles, and to Process the EEA Personal Data only for the limited and specified purposes set forth in this Agreement, which shall be consistent with any consent provided by data subjects. Licensee agrees to promptly notify Garmin in writing if Licensee determines that it can no longer provide at least the level of protection that is required by the applicable Principles and either immediately cease Processing or take reasonable and appropriate steps to remediate.
15.17. To ensure the adequate protection of EEA Personal Data and the rights and freedoms of EEA data subjects, Garmin and Licensee agree to incorporate the following additional safeguards into the C2C SCCs: (a) Licensee will ensure that its technical and organizational measures are appropriate and reasonable under Applicable Data Protection Laws and meet or exceed the Minimum Security Requirements, as may be updated or amended by Garmin, at all times; and (b) Licensee agrees to implement and follow a procedure for responding to requests from law enforcement or other governmental agencies for EEA Personal Data, including requests which relate to surveillance, that ensures its compliance with Applicable Data Protection Laws, allows it to meet its obligations under the C2C SCCs, and provides adequate protection for the rights and freedoms of EEA data subjects.
16.GENERAL
16.1. The API may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export or release the API to, or make the API accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the API available outside the U.S.
16.2. Licensee certifies and represents that, in the performance of this Agreement, it will comply with all applicable laws, regulations, rules, and orders.
16.3. Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, employment, or agency relationship or as granting a franchise.
16.4. If any provision of this Agreement shall be held by a court or arbitrator of competent jurisdiction to be illegal, invalid, or unenforceable, such provision will be enforced to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement shall remain in full force and effect.
16.5. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
16.6. Upon acceptance of this Agreement by Licensee, this Agreement shall constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements of every kind and nature between the Parties regarding the subject matter hereof. Garmin may amend this Agreement from time to time, and any such amended Agreement will be made available to Licensee. Licensee’s continued use of the API or Garmin Brand Features after such amended Agreement is made available to Licensee signifies Licensee’s agreement to and acceptance of this Agreement, as amended. Except pursuant to the preceding three sentences, this Agreement may only be amended by mutual written agreement of the Parties.
16.7. If the API is being licensed by or on behalf of the United States government or any other entity seeking or applying rights similar to those customarily claimed by the United States government, then (a) for acquisitions conducted by the Department of Defense, the API and Garmin Brand Features are licensed with “Limited Rights” in accordance with the rights set forth at DFARS 252.227-7013(b)(3), TECHNICAL DATA-NONCOMMERCIAL ITEMS, and (b) for civilian agency acquisitions, the API and Garmin Brand Features are licensed in accordance with the rights set forth at FAR 52.227-14(g)(1), RIGHTS IN DATA-GENERAL (Protection of limited rights data and computer software).
16.8. Licensee shall not have any authority to assume or create any obligation for or on behalf of Garmin, express or implied, and Licensee shall not attempt to bind Garmin to any contract or agreement.
16.9. Unless specified otherwise in this Agreement, any communications or notices to Garmin in connection with this Agreement must be in writing and sent to the following address: Garmin International, Inc., Attn: Legal Department, 1200 East 151st Street, Olathe, Kansas 66062. All such communications and notices must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by nationally recognized overnight courier service, and are deemed given upon receipt by Garmin. Notwithstanding the foregoing, Licensee hereby consents to receiving electronic notices and other communications from Garmin, including notices about applicable fees and charges, transactional information, and other information concerning or related to this Agreement or the API. Licensee agrees that any notices, agreements, disclosures, or other communications that Garmin sends to Licensee electronically will satisfy any legal communication and notice requirements set forth herein or pursuant to applicable law, including that such communications be in writing.
16.10. This Agreement, including any rights and obligations hereunder, may not be assigned or transferred by Licensee, whether by merger, operation of law, or otherwise, without the prior written consent of Garmin, and any action or conduct in violation of the foregoing will be void and without effect. Garmin expressly reserves the right to assign this Agreement.
16.11. Except as otherwise specifically agreed to in writing by Licensee and Garmin, any controversy or claim arising out of or relating to this Agreement or use of the API and/or Garmin Brand Features, where such Licensee is incorporated, organized, or domiciled in the United States, which is not resolved by the Parties, shall be adjudicated by any court of competent jurisdiction in the United States. For a Licensee incorporated, organized, or domiciled outside the United States, any controversy or claim arising out of or relating to this Agreement or use of the API and/or Garmin Brand Features shall be determined by arbitration in accordance with the International Arbitration Rules of the International Centre for Dispute Resolution. The place of arbitration shall be New York, New York, USA. The language of the arbitration shall be English. Notwithstanding this agreement to arbitrate, Licensee agrees that Garmin will be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. In any controversy or claim between the Parties arising out of or related to this Agreement or use of the API and/or Garmin Brand Features by Licensee, the prevailing Party will be entitled to recover its reasonable attorneys’ fees and costs from the other Party.
16.12. THIS AGREEMENT AND RELATIONSHIP BETWEEN LICENSEE AND GARMIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, USA, WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS.
16.13. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE ACKNOWLEDGES AND AGREES THAT (A) ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR USE OF THE API AND/OR GARMIN BRAND FEATURES MAY ONLY BE BROUGHT BY LICENSEE IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, WHETHER IN COURT OR AN ARBITRATION PROCEEDING, AND (B) NO COURT OR ARBITRATOR MAY CONSOLIDATE MORE THAN ONE SUCH CONTROVERSY OR CLAIM OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING RELATED TO ANY SUCH CONTROVERSY OR CLAIM.