This Agreement, effective as of the date of your acceptance (the “Effective Date”), is by and between Hilti Corporation, Feldkircherstrasse 100, FL - 949 Schaan, Liechtenstein (“Hilti”) and the company that you represent (“Developer”). Within the acceptance process for the ON!Track Unite Developer Hub Developer has accepted this Agreement by clicking the acceptance button prior to its first possibility to use the ON!Track Unite Developer Hub or has entered into this Agreement in writing. You are herewith warranting that you have the authority to bind such Developer to this Agreement and that you have solely entered complete and truthful information about your person and about the Developer within the acceptance process and particularly, but not limited to, have not used any pseudonyms. Hilti and Developer individually also referred to as the “Party” or together as the “Parties”.
This Agreement is intended to govern the access to the Hilti API in addition to other guidelines (“Hilti API Policies”) Hilti may make available to Developer within the ON!Track Unite Developer Hub.
Now, therefore, considering the provisions being set forth in the Preamble the Parties herewith agree on the following terms for this Agreement:
Terms appearing in capital letters in this Agreement have the meaning as defined in this clause 1 and as otherwise laid out in this Agreement:
Unless the context otherwise clearly indicates, words used in the singular include the plural and the plural includes the singular.
In case of contradictions between the Hilti API Policies and the Agreement, the latter shall prevail, unless Hilti deviates in a Hilti API Policy from a certain section of the Agreement by explicitly referring to the section in the Agreement to be deviated from.
This Agreement governs Developer’s rights to use and access the Hilti Services for the purpose of developing, implementing a connection between a Hilti Application and a Customer Application by utilizing the Hilti API and the Developer Application according to terms being set forth in this Agreement. The applicable Hilti Services may be made available by Hilti according to its sole discretion within the ON!Track Unite Developer Hub. Furthermore, Developer`s access to and use of the Hilti API shall particularly, but not limited to, be governed by the Hilti API Policies.
Until further notice by Hilti, Hilti provides Developer the Hilti Services free-of-charge pursuant to the provisions of this Agreement.
Subject to the limited rights expressly granted in this Agreement, no rights are granted to Developer. Hilti reserves all rights, title and interest to its Intellectual Property Rights, its data and particularly to its Hilti Services.
Subject to the provisions of this Agreement, including, but not limiting to section 5 and 6 of this Agreement, Hilti hereby grants to Developer a free-of-charge non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right during the term of this Agreement to: (a) connect to the Hilti API and the Hilti Services to develop, implement, maintain, operate and commercially distribute the Developer Applications solely for use the Development Customers, the respective End-Users and the Subcontractors, where the individual Hilti API on behalf of a Development Customer, may be subject to a remuneration, which Hilti may charge towards such Development Customer; (b) use, reproduce, distribute, and transmit Customer Data to the extent necessary to format and display it in the Developer Applications and/or Customer Application; (c) use and display the Hilti trademarks in conformity with Hilti trademark usage guidelines for the sole purpose of identifying that the Customer Data originates from the Hilti API, and any such use of the Hilti trademarks shall inure to the benefit of and belong to Hilti.
Developer hereby irrevocably grants to Hilti a free-of-charge non-exclusive, transferable, sublicensable, perpetual and worldwide right to: (a) directly or indirectly use, reproduce, modify, alter, amend, distribute, and transmit Customer Data that have been provided via the Hilti API to the extent necessary to format and display it in a Hilti Application; (b) collect and use the Performance Data.
Developer hereby grants to Hilti a free-of-charge, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit and/or incorporate into the Hilti Service, the Hilti Applications and/or the Hilti APIs any suggestions, enhancement requests, recommendations or other feedback Hilti receives from Developer or from Developer Customers and/or Hilti Customers.
The usage rights granted in clause 4.2 of this Agreement are explicitly conditioned on Developer’s adherence to the following restrictions and compliance with its responsibilities as set forth herein:
Developer must comply with all restrictions set forth in this Agreement. If Hilti believes, in its sole discretion, that Developer has violated or attempted to violate any term, condition or the spirit of this Agreement, Hilti shall be entitled, to temporarily or permanently revoke the rights being granted to Developer under this Agreement with or without notice to Developer.
In order to use and access the ON!Track Unite Developer Hub Developer may need to obtain login credentials. In order to access the Hilti API must obtain a token. Both the login credentials and the token will be provided by Hilti. Developer may not share its login credentials or the token with any third party, shall make all reasonable efforts to keep both secure and shall use the token as Developer’s sole means of accessing the Hilti API. If login credentials or a token being shared with a third party or in case Developer detects any security vulnerability in the Hilti Services, Developer must immediately inform Hilti in writing.
Any Developer Application that uses or relies upon the Hilti API shall not replicate products or services offered by Hilti to the Hilti Customers, including, without limitation, individual functions thereof. Subject to the preceding sentence and the Parties’ other rights and obligations under this Agreement, each Party herewith agrees that the other Party may develop and publish applications that are similar to or otherwise compete with such Party’s applications.
Developer shall not use the Hilti API in order to monitor the availability, performance, or functionality of the Hilti API and/or of a Hilti Application or for any similar benchmarking purpose.
Hilti shall have the right, in its sole discretion, to refuse to permit Developer’s use of the Hilti API. Hilti shall have no liability to Developer for such refusal.
No Developer Application shall, in any manner, display any form of advertising within or connected to any Customer Data.
A Developer Application shall not access the Hilti API for any purpose of data mining, high load calls, abusive calls or for other data gathering purposes, other than for the ordinary use of the Hilti API in connection with providing Customer Data to the Developer - and/or Hilti Application and vice versa.
Developer shall under no circumstances repackage or resell the Hilti Services, Customer Data, or any data derived thereof.
Developer is not permitted to use the Hilti Services, any Customer Data in any manner that does or could potentially undermine their security. In addition, Developer shall not, and shall not attempt to, interfere with, modify or disable any features, functionality or security controls of the Hilti Services, any Customer Data, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for them, or reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form of them.
Developer shall warrant that every Subcontractor complies with all requirements of this Agreement.
A Developer Application may only be used by business customers and not by private end customers.
Developer acknowledges and herewith warrants for the entire term of the Agreement that:
Developer expressly acknowledges that Hilti has no and does not want to have any control over Developer`s distribution and marketing of its Developer Application. The distribution and marketing of the Developer Application will solely be conducted by the Developer in its own name and for its own account. Hilti will at no time be a party to the Developer Terms. Accordingly, Hilti offers no support for any Developer Application and herewith disclaims any and all representations and warranties whatsoever regarding any Developer Application and as set further set forth in section 10.
This Agreement does not entitle Developer to any support for the Hilti Services, unless explicitly otherwise agreed upon between the Parties under a separate agreement in writing. Developer shall not represent to any End-Users that Hilti is available to provide any such support or to make any other representations on behalf of Hilti.
Developer shall include the following mandatory provisions (“Mandatory Terms”) in the Developer Terms.
The above sections 7.1, 7.2 and 7.3 shall not be applicable, if and to the extent Developer and Hilti have entered into a separate agreement in writing under which Developer shall develop for Hilti an application depending on or utilizing a Hilti API and such application being distributed and marketed by Hilti.
Developer may from time to time, gain access to Confidential Information. At all times during and after this Agreement, Developer may use Confidential Information only to the extent necessary to exercise its rights under this Agreement and subject to the express permissions set forth herein. At all times during and after this Agreement, Developer may not disclose Confidential Information to a third party without the prior written consent of Hilti. Without limiting any other obligation of Developer under this Agreement, at all times during and after this Agreement, Developer agrees that it will protect Confidential Information from unauthorized use, access, or disclosure in a commercially reasonable manner and no less than the same manner that Developer would use to protect its own confidential and proprietary information of a similar nature.
If Developer is legally compelled to disclose the Confidential Information, it shall promptly inform Hilti of this fact beforehand, to the extent legally permitted, and provide reasonable assistance, if Hilti wishes to prevent or contest the disclosure.
If the Developer is in breach of the confidentiality provisions of this Agreement (e.g. discloses or uses Hilti`s Confidential Information or threatens to disclose or use it), Hilti shall have the right to injunctive relief to stop such acts, without prejudice to any other available legal remedies, whereby the Parties hereby acknowledge that any other available remedies are inadequate.
Developer herewith acknowledges and agrees that (i) the Beta-Functions provided under this Agreement, which are explicitly designated as a beta and/or pilot product, shall only be used for testing and evaluation purposes and may not yet comply with legal and/or regulatory requirements; (ii) the Beta-Functions are not being released for productive usage by Developer with the Beta-Functions; and (iii) if Developer use the Beta-Functions for any other as the allowed purposes, Developer will indemnify and hold harmless Hilti for any damages that may arise out of such activities. Developer may choose to try such Beta-Functions or not in its sole discretion and at its sole risk, where Developer herewith acknowledges and agrees that the Beta-Functions are however, not supported by Hilti, may be discontinued at any time according to Hilti`s sole discretion and may never be made commercially available. Developer herewith acknowledges and agrees that Hilti will have no liability for any harm or damage arising out of or in connection with a discontinuation of the Beta-Functions.
Hilti hereby excludes all express or implied warranties, guarantees and conditions relating to the Hilti Services, in particular with regard to their usability for a specific purpose. Hilti does not warrant that the Hilti Services will work without error or without interruption or that they are free of third party Intellectual Property Rights. Developer alone is responsible for the selection and use of the Hilti Services. Developer herewith acknowledges that Hilti does not warrant that the Hilti Services will be uninterrupted, timely, secure, error-free, accurate, free from viruses or malicious software or that any defects are being corrected.
Strict liability according to section 536a Subsection 1 Alternative 1 German Civil Code is excluded.
The liability of Hilti for any and all damages under this Agreement due to slight negligence, regardless of the legal basis, is hereby excluded.
The aforementioned limitations of liability as being set forth in section 11.2, shall not apply to grossly negligent or intentional damage, personal injury or in cases of statutory compelling liability (in particular pursuant to Product Liability Act).
Sections 11.2 and 11.3 shall apply accordingly to Hilti’s liability for futile expenses.
Developer is obliged to take appropriate measures to prevent and reduce damages. Developer is in particular obliged to back up the data that it uses in connection with the use of the Hilti Services. This is the sole responsibility of the Developer. Hilti will not be responsible in any means for restoring tenant based data.
Developer acknowledges that its breach of this Agreement may cause irreparable harm to Hilti, the extent of which would be difficult to ascertain. Accordingly, Developer agrees that, in addition to any other remedies to which Hilti may be legally entitled, Hilti shall have the right to seek immediate injunctive relief in the event of a breach of this Agreement by Developer or any of its officers, employees, consultants or other agents.
Developer agrees that Hilti shall have no liability whatsoever for any use Developer makes of the Hilti Services. Developer herewith agrees to indemnify and hold harmless Hilti, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, and partners, to the fullest extent from and against any and all claims, liabilities, damages (actual and consequential), losses and reasonable expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to Developer’s use of the Hilti Services or any violation of this Agreement.
This Agreement shall commence on the Effective Date and will remain in effect until terminated pursuant to this section 13. Either Party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Developer violates any provision of this Agreement. Any termination of this Agreement shall also terminate the usage rights granted to Developer hereunder. Upon termination of this Agreement for any reason, Developer shall cease using, and either return to Hilti, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials provided pursuant to this Agreement and any Confidential Information in Developer’s possession, and shall certify to Hilti in writing upon Hilti’s request that such actions have occurred. In addition to any rights that accrued prior to termination, each provision of this Agreement that by its nature, should survive the termination of this Agreement shall survive such termination.
This Agreement shall be governed exclusively by the laws of Germany excluding the United Nations Convention on the International Sale of Goods and excluding any applicable conflict law provisions.
All disputes arising out of or in connection with this Agreement shall be finally and exclusively settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The seat of the arbitration proceedings shall be in Frankfurt am Main, Germany. The language of the arbitration proceedings shall be English. State courts may order interim measures of protection relating to the subject matter of this arbitration clause before or during arbitral proceedings.