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HomeMy WebLinkAboutContracts & Agreements_185-2019RENEWAL QUOTE nearmap:•• i current clear change Customer Name Type Contract Commencement Sales Rep Auto Renew Bill To City of Redlands CA Renew Subscription Contract commences upon signing of quote Glen Lapray No City of Redlands, CA Matthew Bradbury 35 Cajon Street Redlands, California 92373 (909) 335 4784 ext 4 mbradbury@cityofredlands org Nearmap US Inc 10897 South River Front Parkway Suite 150 South Jordan, UT 84095 USA Phone +1 (801) 609 7250 Quote Number Quote Expiry Contract Term Subscription Start Date Sales Rep Email Payment Term Ship To Q043114 07/30/2019 12 Month 08/15/2019 glen lapray@nearmap com Net 30 City of Redlands CA Matthew Bradbury 35 Cajon Street Redlands California 92373 (909) 335 4784 ext 4 mbradbury@atyofredlands org PRODUCT ANNUALIZED ESTIMATED USAGE COVERAGE SEATS TOTAL Nearmap Oblique for Government 50 GB Nationwide Unlimited $14 000 00 Subtotal $14 000 00 Estimated Tax $0.00 Total USD $14,000 00 ACCEPTANCE OF Q043114 By selecting "Yes" or signing below, you acknowledge that (a) (i) you have the authority to agree to this Renewal Quote and (ii) you have read understood and agree to the Products Agreement and the Additional Terms and Conditions attached to this Renewal Quote, (b) you agree to pay the fees set forth herein and (c) this Renewal Quote constitutes the terms applicable to your License You acknowledge that the Coverage Area by Nearmap in respect of this Renewal Quote is outlined by the attached extracts of maps Note The totals in this Renewal Quote is only an estimate of your next invoice Final credits and amendments to the subscription is dependent upon the date this Renewal dote is accepted Signature / Digital Acceptance Full Name 51e,e MCIArq PO Number (if required) If printed, please sign, scan and email to orders us@nearmap com Date F-?8"r11 Position i SS1Tter C JT' Schedule 1 Additional Terms and Conditions 1 Section 1 3 of the agreement does not apply to this license, and any auto renewal of the Agreement will be by mutual agreement between the parties 2 Section 1 6 of the agreement does not apply to this license 3 Definitions of "Periodic Data Allowance and "Excess Data Rate in the agreement do not apply to this License 4 The Licensee agrees that the right to use the Product is only to be used, solely by the Licensee and at all times excludes making the Product available in any medium or manner (including but not limited to sharing or using the License (as defined in the Products Agreement)) with a any lower tier government, including but not limited to cities and township, b any neighboring local governments, including but not limited to county, parish, city, or town governments, and/or c any higher tier government. including but not limited to county parish state or provincial agency 5 Annual Actual Usage Nearmap measures data usage by the Licensee under this License as follows a the data allowance used by the Licensee will be calculated at the end of the Term (or Renewal Term), based on the total data usage of all users who access and use the Licensee's Nearmap account during the Term (or Renewal Term) (Annual Actual Usage), and b if the Licensee elects to download Products available to the Licensee on the Website or accesses the Product through other delivery methods made available by Nearmap from time to time this will be applied to the Annual Actual Usage The Licensee may have the option to elect to download high resolution images Downloading these images will lead to a higher Annual Actual Usage than downloading a lower resolution image 6 The Annualized Estimated Usage is for the sole purpose of informing the Licensee of their estimated usage for the Term In the event the Licensee exceeds the Annualized Estimated Usage, it will not incur additional fees or lose access to the Products 7 Renewal If the Agreement is renewed by mutual agreement between the parties, the parties will in good faith discuss the appropriate Annualized Estimated Usage of the Renewal Term based on the Licensee's usage pattern and/or the Annual Actual Usage during the current Term 8 The Licensee is not permitted to a use its access to the Website or the Products under this Agreement for the purposes of creating a database of images for resale, distribution, sub license or other commercial purposes (unless expressly permitted under the Agreement) and mass downloads or bulk feeds of any imagery b pre fetch retrieve cache index or store any Content or portion of the Products with the exception being that the Licensee may store limited amounts of Content solely to improve the performance of the access to the Products due to network latency and only if the Licensee does so temporarily securely and in a manner that does not permit use of the Content outside of the license does not manipulate or aggregate any Content or portion of the Products and does not prevent Nearmap from accurately tracking usage and does not modify attribution in any way and c review, analyze and process the Products through use of machine learning tools this includes creation of any new products by the licensee 9 For the purposes of this Nearmap for Government Product Specific Terms, a Content means any content made available to the Licensee in connection with the License and the Website, and b Annualized Estimated Usage means the permitted use of data specified in the New Subscription Quote (or Renewal Quote and Amendment Quote) by the Licensee for the period of one (1) year from the Commencement Date flamap:: PLEASE READ THIS PRODUCTS AGREEMENT CAREFULLY BY ACCEPTING THIS AGREEMENT EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR EXECUTING A QUOTE, YOU AGREE TO BE BOUND BY THIS PRODUCTS AGREEMENT THE QUOTE AND ALL TERMS INCORPORATED BY REFERENCE IF YOU DO NOT AGREE TO ALL OF THESE TERMS DO NOT ACCESS OR USE YOU MUST NOT ACCEPT THIS PRODUCTS AGREEMENT AND NOT USE ANY NEARMAP PRODUCTS AND SERVICES PRODUCTS AGREEMENT Recitals A Nearmap is a provider of aenal photography and associated products and services B Nearmap agrees to supply the Licensee with the Products described in the Quote subject to the terms of this agreement and the Schedules which together make up the legal agreement between the Licensee and Nearmap (Agreement) Definitions of capitalized words are set out in section 18 of the Agreement. GRANT OF LICENSE TO USE PRODUCTS Grant Subject to the terms of this Agreement and payment by the Licensee of the Fee Nearmap grants to the Licensee a limited non exclusive, non transferrable license for the Term to use the Products in the Coverage Area for the Permitted Purpose (License) 1 2 Authorized Users The Products available under this License are only to be used by the total number of Authorized Users The Licensee shall implement reasonable controls to ensure that it does not exceed the number of Authonzed Users If you exceed the total number of Authorized Users you will be in breach of this Agreement 1 3 Renewal Upon the expiration of the initial Term this Agreement subject to any amendments to this Agreement required by Nearmap shall be renewed automatically for successive renewal terms of twelve (12) months each (each a Renewal Term) unless terminated by either party by providing at least 30 days wntten notice of its intention not to renew this Agreement prior to the expiry of the initial Term or any current Renewal Term The Licensee will receive notice of any pncing changes or changes to the terms of this Agreement prior to the commencement of each Renewal Term If Auto Renew is marked No in the Quote this section 1 3 is not applicable to the Licensee 1 4 Replacement Product Nearmap may from time to time supply the Licensee with a replacement Product of no lesser quality than the previously supplied Product at its absolute discretion If requested by Nearmap the Licensee must stop using any previously supplied Product and use the replacement Product from date of delivery from Nearmap 1 5 Acknowledge Nearmap source The Licensee must expressly acknowledge Nearmap, in a reasonably prominent manner (by display of the Nearmap logo or other appropriate attribution) as the source of any Product or Derivative Works that the Licensee use, copy, modify or distribute Unless otherwise permitted in writing the Licensee must not remove or cause to be removed any Nearmap logo, watermark or other Nearmap attnbution in any Product or Derivative Works. 1 6 Periodic Data Allowance Nearmap measures data usage by the Licensee under this License In using the Products the Licensee's consumption of data in the Period must not exceed the Periodic Data Allowance The following conditions apply to the Licensee's Perodic Data Allowance the Periodic Data Allowance used by the Licensee will be calculated at the end of every Period based on the total data usage of all users who access and use the Licensee's Nearmap account during that Period if the Licensee elects to download Products available to the Licensee on the Website, this will be applied to the Periodic Data Allowance The Licensee may have the option to elect to download high resolution images Downloading these images will use a higher portion of the Periodic Data Allowance than downloading a lower resolution image (c) if the amount of data consumed by the Licensee in any given Period is less than the Periodic Data Allowance the balance will not be rolled over to a following Period (d) the Licensee agrees that Nearmap may charge the Licensee additional fees up to a maximum of the Excess Data Rate for any use by the Licensee of the Products resulting in data consumption in excess of the Periodic Data Allowance Nearmap will provide notice to the Licensee if it exceeds its Periodic Data Allowance for any Period and if the Licensee exceeds the Penodre Data Allowance Nearmap may in its absolute discretion, elect to (i) restrict the Licensee's access to the Products until the Periodic Data Allowance is reset or until additional fees are paid or (ii) immediately cease the Licensee's access to the Products for the remainder of the Penod 1 7 Unavailability Subject to section 12 if a Product is not available for a period of 3 consecutive days the Term will be extended by the period of unavailability 2 RESTRICTIONS ON RIGHT TO USE PRODUCTS 2 1 Permitted Purpose The Products must only be used for the Permitted Purpose 2.2 No right to distribute transfer resell assign or sublicense This License is granted only to the Licensee The Licensee must not distribute, transfer resell assign rent lease or sublicense any Product or any of the Licensee's rights under this License without Nearmap's pnor written consent 2.3 No third party access Unless otherwise provided in this Agreement, the Licensee must not make any Product available in any medium or manner to any third party (including the Licensee's subsidiaries and affiliates) (a) (b) (e) (1) Nearmap US Inc Version 29 May 2018 2.4 Employees The Licensee may make Products available to any employee subject to that person complying with the terms of the Agreement as if they were a party to it and the total number of Authonzed Users has not been exceeded The Licensee is responsible and liable far any Authorized User who uses the Licensee's account access details or uses Products made available to the Licensee in breach of this Agreement including without limitation for any additional fees that become payable if the Licensee exceeds the number of Authorized Users 2.5 No machine learning The Licensee must not conduct machine learning work which includes but is not limited to any (a) machine learning models (including the model form and model parameters) (b) outputs of machine learning models (c) software that processes or transforms Input data for training a machine learning model or getting a prediction from a machine learning model into a format suitable for training or making such prediction or (d) software used to train a machine learning model or compute outputs of a machine learning model for a given set of input data 2.6 No caching and creation of database Except as expressly permitted under this Agreement the Licensee is not permitted to (a) use its access to the Products under this Agreement for the purposes of creating a database of imageries for resale distribution sub -license or other commercial purposes and mass downloads or bulk feeds of any imagery, and (b) pre -fetch retneve cache index or store any Content or portion of the Products. 2 7 Limits on use of Website In the Licensee's use of the Website, the Licensee must not (without the prior written consent of Nearmap) (a) provide a link to another URL (b) upload content or other information to the Website; (c) do anything to damage interfere or disrupt access to the Website or do anything which might impair its functionality, (d) use the Website in any way to send unsolicited (commercial or otherwise) e mail or any material for marketing or publicity purposes, or any similar abuse of either (e) publish past distribute disseminate or otherwise transmit defamatory offensive infnnging obscene indecent or other unlawful or objectionable or confidential material or information, (f) make available upload or distribute by any means any matenal or files that contain any viruses bugs corrupt data "trojan horses" worms" or any other harmful software (g) remove any content or information from the Website other than that permitted under the terms of this License (h) falsify the true ownership of a Product or other material or information made available via the Website (i) obtain or attempt to obtain unauthorized access, through whatever means to the Website (j) use the Website other than in accordance with the Agreement, (k) attempt any of the above acts or engage encourage or permit another person to do any of the above acts or (1) provide or allow access which exceeds the total number of Authorized Users in connection with use of the Product 2.8 Breach If the Licensee breaches any of sections 2 1 to 2.5 inclusive Nearmap reserves its rights to terminate the Agreement in accordance with section 6.2, restrict the Licensee's access to the Products and/or take any other steps available to it at law 3 THE LICENSEE S ACCESS TO PRODUCTS AND SERVICES 3 1 Any passwordllD issued by Nearmap to an Authorized User is personal and confidential to that Authorized User If Nearmap suspects that any password/ID is being used by an unauthonzed user by a different Authonzed User to the person whom it was issued to or the number of Authorized Users has been exceeded Nearmap may (a) cancel that password/ID, (b) restrict the Licensee's access to the Product including but not limited to low resolution imagery for the remainder of the month (c) immediately cease the Licensee's access to the Product (d) require the Licensee to pay for any additional charges in accordance with Nearmap's then current price list forthe applicable Product in respect of any such unauthorized use and/or (e) exercise any other nght available to Nearmap under the terms of this Agreement 3 3.2 Downtime Nearmap will use reasonable efforts to ensure that the Website remains available but cannot guarantee that this will be the case at all limes Neamlap agrees that, wherever possible all planned maintenance wilt be done out of normal Operational Hours to ensure optimal uptime of the Website When Nearmap becomes aware of any Fault Nearmap will use reasonable efforts to (a) allocate such resources as may be necessary to remedy the Fault and (b) otherwise take ail reasonable steps to remedy the Fault so as to minimize any disruption to the Licensee's use of the Products 3.3 Expiry The Licensee's License will expire at the end of the Term unless renewed in accordance with section 1 3 and may be suspended or terminated in accordance with section 6.2 if the Licensee is in breach of this Agreement 3.4 Unauthorized Use Licensee shall take reasonable steps to prevent unauthorized access to the License including without limitation protect its passwords and other log in information The Licensee shall notify Nearmap immediately of any known or suspected unauthorized use of the License or breach of its security and shall use best efforts to stop said breach 3.5 Audit During the Term of this Agreement and for two (2) years after termination or expiry of this Agreement the Licensee shall maintain accurate and complete records regarding its use of the Products and the Licensee shall permit Nearmap (or its auditors) access to the business location(s) books and records, employees and/or contractors pertaining to the Licensee's use of the Products Nearmap will give at least thirty (30) days pnor written notice of an audit and will not conduct an audit more than once per calendar year unless non compliance findings are noted and in which case the audit penod can be expanded 3.6 Audit Findings If an audit results in findings of non-compliance, Nearmap may at its discretion (a) invoice any additional license fees due based on the standard Nearmap Fees in place at the time of the original license grant, (b) recover the reasonable cost of the audit if additional Fees exceed five (5) per cent of the Fees paid dunng the audit penod and (c) terminate this Agreement in accordance with section 6.2 Licensee must pay all invoices issued under this section within thirty (30) days following the date of invoice 4 FEES 41 42 4.3 4.4 45 4.6 47 48 5 51 (a) (b) (c) (d) 6 Fees The Fees payable by the Licensee are set out in the Quote Payment The Fees are payable by the Licensee to Nearmap in the manner and by the due dale as set out in the Quote at the beginning of each Term unless otherwise agreed by Nearmap No cancellation Subject to section 4.4 all Fees are non cancellable and non refundable except as expressly set out in the Agreement Refund of Fees If the Licensee is not in breach of the Agreement, and Nearmap elects to terminate the Agreement under section 6.3 Nearmap will refund the Licensee any pre paid fees relating to the portion of Term remaining as at the dale of termination Taxes Unless otherwise stated Fees and Late Payment Fee do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature including value added excise use or withholding taxes (collectively Taxes ) Licensee is responsible for paying all Taxes except those assessable against Nearmap based on its income Nearmap will invoice Licensee for such Taxes if Nearmap believes it has a legal obligation to do so and Licensee agrees to pay such Taxes if so invoiced Late Payment If a scheduled Fee payment is not made in full for any reason, the Licensee gives Nearmap permission to charge a Late Payment Fee and/or immediately limit or terminate access to the Products provided under this License Acceleration In the event of the Licensee failing to pay Nearmap the Fees in full in accordance with the terms of this Agreement all Fees (whether accrued or not) will become immediately due and payable Amendments Fees at the end of the Term may only be increased subject to Nearmap and the Licensee agreeing in wnting THE LICENSEE'S WARRANTIES Warranty The Licensee warrants that any information the Licensee supplies to Nearmap in respect of the Agreement is complete and correct The Licensee must keep Nearmap informed of any change to the Licensee's information provided to Nearmap including any change to the Licensee's contact details or the details of a credit card used for payment, the Licensee will immediately notify Nearmap of any usage of any Product outside the Permitted Purpose and provide any other information reasonably requested by Nearmap, the Licensee has the power to enter into this Agreement and to perform the obligations under it, and the Licensee has and will comply with all relevant laws relating to the Licensee's use of the (i) License (ii) Products and (iii) Website TERMINATION AND EXPIRY 61 Initial Term This Agreement commences on the Commencement Date and continues until expiry of the Term unless terminated earlier in accordance with the terms of this Agreement or renewed under section 1 3 6.2 Termination by Either Party Either party may terminate this Agreement with immediate effect by giving notice to the other party if (a) the other party breaches any of its obligation under this Agreement capable of remedy and fails to remedy that breach within fourteen (14) days after receiving notice requinng it to do so (b) the other party breaches any of its obligations under this Agreement incapable of remedy or (c) the other party files for protection under bankruptcy laws, makes an assignment for the benefit of creditors appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within sixty (60) days of the filing thereof or admits in writing its inability to pay its debt generally as they become due 6.3 Termination by Nearmap Regardless of anything else in the Agreement but subject to section 4.4 Nearmap has the right in its absolute discretion and upon giving the Licensee 10 Business Days notice to terminate the Agreement and the License 6.4 Consequences If the Agreement is terminated under sections 6.2 or 6.3 or expires at the end of the Term (a) the License immediately terminates and the Products will no longer be available to the Licensee (b) The Licensee must immediately destroy, delete or return to Nearmap all Products and (c) subject to section 7 3 the Licensee and the Authorized Users are not permitted to use any Products for any purpose 6.5 Costs Nearmap reserves all nghts following termination of this Agreement, including any rights available to Nearmap to collect any outstanding Fees which may be owed by the Licensee The Licensee will be liable for any reasonable legal costs incurred by Nearmap in enforcing its rights following termination of this Agreement 6.6 Continuing obligations After expiry or termination of the Agreement or a License sections 1 5 2 7 8 9 10 13 14 15 and 17 will still be binding on the Licensee in relation to Products licensed or obtained during the Term 7 INTELLECTUAL PROPERTY 71 Ownership Unless otherwise indicated the Website the Products and all associated Intellectual Property Rights, data, information and software are owned by Nearmap and are protected by copyright moral rights trademark and other laws relating to the protection of intellectual property Nearmap reserves all of its Intellectual Property Rights Except for the limited License granted to the Licensee in section 1 1 no ownership or Intellectual Property Rights in the Website or any Product will pass to the Licensee 7 2 Trademarks The Nearmap trademarks and all associated Intellectual Property Rights are owned by Nearmap Nothing in the Agreement confers upon the Licensee any rights to use or modify any of Nearmap's trademarks except that Nearmap grants the Licensee a royalty free limited non exclusive non transferrable non subl€censable license to use Nearmap trademarks to the extent necessary to comply with the Licensee's obligations under the Agreement 7 3 Derivative Works Subject to compliance with all other terms of this Agreement, the Licensee is granted a non exclusive nght to produce and use Denvative Works for a Permitted Purpose Unless otherwise notified to the Licensee by Nearmap the Licensee may continue using Denvative Works following termination or expiry of this Agreement The Licensee and Nearmap will jointly own all rights in and to any Product embedded in a Derivative Work 8 THIRD PARTY PROVIDERS 8 1 Nearmap engages Third Party Providers in order to provide the Products The Licensee agrees to comply with all requirements and restrictions that Third Party Providers may impose on Licensee directly or indirectly by imposition on Nearmap in relation to their respective products and/or services at the time of or subsequent to the Agreement The Licensee acknowledges that provision of the Products is subject to, and dependent upon, adequate delivery of products and services by the Third Party Providers In accordance with section 9 of the Agreement Nearmap's liability is reduced to the extent that loss or damage of any kind is caused or contributed to, by Third Party Providers For the Licensee's convenience Nearmap has set out in this section 8 links to the terms and conditions of these Third Party Providers with which the Licensee is required to comply The Licensee further acknowledges that by entenng into the Agreement, the Licensee agrees to comply with the respective terms and conditions of Third Party Providers which currently include the Third Party Providers set out below Third Party Providers and their terms of supply may change from time to time during the Term of the Agreement (a) Google Nearmap engages Google to supply navigation and geo-location data, and related content By entering into the Agreement the Licensee agrees to the Google Terms of Service as they apply to the Licensee h€tps:llwww.gooale.coilenterprise/earthmapsItecalluslmaps purchase aereem ent apac.html (b) Amazon Web Services (AWS) Nearmap engages Amazon Web Service Inc to provide services (AWS Services) which enables delivery of the Products By entenng into the Agreement, the Licensee agrees to comply with the AWS Customer Agreement (http.11aws.amazon.comlagreementl) as it applies to the Licensee Use of the Products is also subject to the Licensee's compliance with the following AWS policies (I) Pnvacy Policy (httrm:Raws.amazon.comlprivacvl) (ii) Acceptable Use Policy (http:paws. a mazo n.comlaupl) (iii) Terms of Use {http:/laws. amazon.comeenms1) (iv) Service Terms htlp.//aws.amazon.com/servicetermse (v) Trademark Use Guideline (http:llaws.amazon.comltradema rk-q uidehnesl) (c) NASAINCAS By entering into the Agreement the Licensee agrees to the following NASAINCAS terms and conditions (https.Nwww.nearmap.comulegai information/copyright) 9 WARRANTY AND LIABILITY 91 Warranty Nearmap agrees to use industry standard GPS to ensure captured imagery has accurate geographical positioning 9.2 DISCLAIMER OF WARRANTIES OTHER THAN AS SET FORTH IN SECTION 91 THE WEBSITE AND THE PRODUCTS ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS WITHOUT ANY WARRANTIES OF ANY KIND TO 4 Nearmap US inc. Version 29 May 2018 THE FULLEST EXTENT PERMITTED BY LAW NEARMAP AND ITS CONTENT PROVIDERS AGENTS AND AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES WHETHER EXPRESS STATUTORY OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY TITLE FITNESS FOR A PARTICULAR PURPOSE NON INFRINGEMENT, AND COURSE OF DEALING OR PERFORMANCE 9.3 NO REPRESENTATIONS WHILE NEARMAP USES REASONABLE EFFORTS TO ENSURE THE ACCURACY, CORRECTNESS AND RELIABILITY OF THE PRODUCTS AND THE WEBSITE NEARMAP MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, CORRECTNESS OR RELIABILITY OF ANY PRODUCT OR CONTENT CONTAINED ON THE WEBSITE THE PRODUCTS AND THE WEBSITE ARE SUBJECT TO ERRORS OMISSIONS INACCURACIES AND DISTORTIONS AND NEARMAP WILL NOT BE RESPONSIBLE FOR, OR LIABLE FOR ANY CLAIMS MADE BY OR ARISING OUT OF ANY PERSON OR ENTITY SEEKING TO RELY ON ANY OF THE PRODUCTS OR THE WEBSITE 9.4 LIMIT OF LIABILITY NEARMAP'S LIABILITY FOR (A) A BREACH OF A WARRANTY UNDER SECTION 9 1 OR (13) A BREACH OF A WARRANTY WHICH IS IMPLIED OR IMPOSED IN RELATION TO THIS LICENSE UNDER LEGISLATION AND CANNOT BE EXCLUDED WILL BE LIMITED TO AT NEARMAP'S OPTION REPLACING OR REPAIRING THE PRODUCTS OR SUPPLYING PRODUCTS EQUIVALENT TO THE RELEVANT PRODUCTS OR PAYING THE COST OF REPLACING OR REPAIRING THE PRODUCTS 9.5 NO LIABILITY FOR CLAIMS TO THE EXTENT PERMITTED BY LAW IN NO EVENT WILL NEARMAP ITS CONTENT PROVIDERS, AGENTS OR AFFILIATES BE LIABLE FOR ANY CLAIMS OF ANY KIND ARISING FROM OR CONNECTED WITH THE USE OF THE WEBSITE OR THE PRODUCTS, OR THE UNAVAILABILITY OF THE SAME INCLUDING BUT NOT LIMITED TO LOSS OF USE LOSS OF PROFITS OR LOSS OF DATA AND DIRECT INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES WHETHER IN CONTRACT TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE THE LICENSEE IS RESPONSIBLE FOR THE ENTIRE COST OF ALL SERVICING REPAIR OR CORRECTION REQUIRED DUE TO THE LICENSEES USE OF THIS WEBSITE OR THE PRODUCTS THIS EXCLUSION APPLIES WITHOUT LIMITATION TO ANY CLAIMS CAUSED BY OR RESULTING FROM RELIANCE BY A USER ON ANY INFORMATION OBTAINED FROM NEARMAP 9.6 AGGREGATE LIMIT IN NO EVENT WILL THE AGGREGATE LIABILITY OF NEARMAP WHETHER IN CONTRACT WARRANTY TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE PASSIVE OR IMPUTED), PRODUCT LIABILITY STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING TO THE USE OF THE PRODUCTS EXCEED ANY COMPENSATION OR FEE THE LICENSEE HAS PAID IF ANY TO NEARMAP FOR ACCESS TO OR USE OF THE PRODUCTS OVER THE 12 MONTH PERIOD PRIOR TO THE ALLEGED DEFAULT, BREACH OR EVENT GIVING RISE TO THE LIABILITY 9 7 Third Party Providers The Licensee acknowledges that Nearmap relies on the services of Third Party Providers in order to supply the products and services Without limiting any of the above for the avoidance of doubt to the fullest extent permitted by applicable law Nearmap will not be liable for any loss, damage, or cost of any kind which is caused or contributed to by a third party service provider 9.8 Indemnity The Licensee agrees to indemnify Nearmap and its directors officer employees agents and subcontractors from and against any and all direct or indirect claims damages losses liabilities expenses and costs (including reasonable attomey's fees and costs) ansing from or out of (a) the Licensee's actual or alleged breach of any provisions of this Agreement (b) the Licensee's use of the Product for any purpose and (c) the Licensee's use of, or any third party's use of, or inability to use any Denvative Works including without limitation any output from the Derivative Works 9.9 Nearmap will provide the Licensee with notice of any such claim or allegation and Nearmap has the right to participate in the defense of any such claim al its expense 10 COPYRIGHT COMPLAINTS 10 1 Subject to section 9, if any third party brings a Claim against the Licensee alleging that the Licensee's use of the Products in accordance with this License infringes their copyright ( Infringement Claim } Nearmap will defend the Licensee against the Claim and pay any settlement to which Nearmap consents or final court - awarded damages for which the Licensee is liable 10.2 The Licensee must (a) promptly notify Nearmap of any such Infnngement Claim, (b) not make any admissions in relation to the Infringement Claim without Nearmap's pnor written consent (c) permit Nearmap to conduct the defense of the Infringement Claim including all negotiations for settlement and (d) provide Nearmap with any assistance reasonably requested to allow Nearmap to defend the Infringement Claim 10 3 Nearmap will have no liability for any Infringement Claim (a) that arises from any (1) use of the Product in violation of this Agreement, (ii) modification of the Product by anyone other than Nearmap or a party authonzed by Nearmap in wnting by Nearmap to modify the portion of the Product applicable to the Infringement Claim or (in) third party products services hardware, software ar other matenals, or a combination of these with the Products would not be infringing without this combination or (b) if the Licensee fails 10 comply with section 10.2 10.4 To the maximum extent permitted by law this section 10 sets out Nearmap's sole and exclusive liability and the Licensee's sole and exclusive remedy for any third 11 11 1 Nearmap will use any data supplied by the Licensee as set out in Nearmap's Privacy Policy available at http:lleo nearmap.comllegallprivacy policy 11 2 By entering into this Agreement the Licensee expressly consents to receiving by email direct marketing communications from Nearmap 11 3 By entering into this Agreement the Licensee acknowledges that personal information provided by the Licensee in the course of accessing Products (including without limitation credit or debit card details provided by the Licensee for the purpose of paying Nearmap) may be disclosed to and held by one or more of Nearmap's third party suppliers and partners (including without limitation providers of payment processing services) and used by those third parties in connection with the supply of Products Nearmap will have no liability whatsoever with respect to any personal information held by a third party in connection with the supply of Products 12 FORCE MAJEURE party Infringement Claims brought against the Licensee in relation to an infringement of Intellectual Property Rights PRIVACY POLICY 12 1 Force Majeure Event if a party is unable to perform or is delayed in performing an obligation under this Agreement (except for any obligation to pay money including Fees) because of an acts of war terrorism hurricanes earthquakes other acts of God or of nature, strikes or other labor disputes nots or other acts of civil disorder embargoes or other causes beyond the performing party's reasonable control (Force Majeure Event) (a) that obligation is suspended but only so far and for so long as that party is affected by the Force Majeure Event and (b) the affected party will not be responsible for any loss or expense suffered or incurred by the other party as a result of and to the extent that the affected party is unable to perform or is delayed in performing its obligations under this Agreement because of the Force Majeure Event 12.2 Notice of Force Majeure Event If a Force Majeure Event occurs the party affected by the Force Majeure Event must (a) promptly give the other party notice of the Force Majeure Event and an estimate of the non performance and delay (b) take all reasonable steps to overcome the effects of the Force Majeure Event and (c) resume compliance as soon as practicable after the Force Majeure Event no longer affects it 13 CONFIDENTIALITY 13 1 The Product includes metadata and other confidential and proprietary information of Nearmap {Confidential Information) The Licensee must not use any Confidential Information for any purpose not expressly permitted hereunder and will disclose Confidential Information only to its employees who have a need to know for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Licensee's duty hereunder The Licensee will protect Confidential Information from unauthonzed user access or disclosure in the same manner as it would protect its own confdentral or propnetary information of similar nature and with no less than reasonable care 14 NOTICES 14 1 All notices and consents will be in writing and will be considered delivered and effective upon receipt (or when delivery is refused) when (a) personally delivered (b) sent by registered or certified mail (postage prepaid, return receipt requested) (c) sent by nationally recognized private courier (with signature required and ail fees prepaid), or (d) sent by email with confirmation of transmission Notices must be sent to the Licensee at the address set forth in the Quote (or if none is specified, the address to which Nearmap sends invoices) and for Nearmap to 10897 South River Front Parkway Suite 150 South Jordan UT 84095 USA or at another address as a party may designate in wnting 15 TECHNOLOGY EXPORT 15 1 The Licensee shall not. (a) permit any third party 10 access or use the Product in violation of any U S law or regulation or (b) export any software provided by Nearmap or otherwise remove it from the United States except in compliance with all applicable U S laws and regulations Without limiting the generality of the foregoing the Licensee shall not permit any third party to access or use the Product in or export such software to a country subject to a United State embargo (as of the Effective Date Cuba Iran North Korea Sudan, and Syria) 16 NEARMAP NOW 16 1 Survey During the Term, the Licensee may request a survey of an area which is not covered (in its entirety or in part) by the Coverage Area (Survey) The Licensee must provide a detailed description of the area that is to be covered by the Survey and which is to be included in the Survey Specification Upon receipt of such a request in wnting Nearmap may in its absolute discretion agree to provide the Survey to the Licensee 16.2 Delivery of Survey Subject to sections 12 and 16 1 Nearmap will deliver the Survey to the Licensee by uploading the Survey to the Website within 6 months of the date on which Nearmap receives payment of the Survey Fee in full from the Licensee Nearmap will notify the Licensee in wnting once the Survey has been uploaded to the Website 16.3 Availability to other Nearmap customers Nearmap may, at its absolute discretion, allow other customers of Nearmap to access the Survey on the Website 16 4 Refund of Survey Fee If the Licensee is not in breach of the Agreement and Nearmap elects to terminate the Agreement under section 6.3 pnor to delivery of the Survey Nearmap will refund the Survey Fee to the Licensee 16 5 Nearmap Basic This Section 16 will not be applicable to the Licensee if the License purchased is fora Nearmap Basic Product 17 MISCELLANEOUS TERMS 171 Nearmap customer The Licensee agrees that Nearmap may identify the Licensee as a Nearmap customer m Nearmap business matenals Nearmap US Inc Version 29 May 2018 5 17 2 Additional Terms and Conditions The Additional Terms and Conditions form part of and should be read in conjunction with this Agreement 17 3 Precedence of documents This Agreement is comprised of (a) the Quote (b) the Additional Terms and Conditions, and (c) this agreement If there is any ambrguiiy or inconsistency between the documents compnsing the Agreement the document appearing higher in the list will have precedence 17 4 Independent Contractors The parties are independent contractors and will so represent themselves in all regards Neither party is the agent of the other and neither may make commitments on the other's behalf The parties agree that no Nearmap employee or contractor will be an employee of the Licensee 17 5 Construction The parties agree that the terms of this Agreement result from negotiations between them This Agreement wit not be construed in favor of or against either party by reason for authorship 17 6 Waiver Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement. 17 7 Severability If one or more of the terms of the Agreement are found to be invalid, illegal or unenforceable in any respect the validity legality and enforceability of the remaining terms will not be affected 17 8 Amendments Other than as expressly specified in this Agreement, this Agreement may only be vaned with the written consent of Nearmap and the Licen see 17 9 Assignment This Agreement shall not be assigned by either party without the pnor written consent of the other party which shall not be unreasonably withheld provided however that Nearmap may upon written notice to the Licensee, assign all of its nghts under this Agreement to (i) a parent subsidiary or Affiliate of Nearmap (ii) a purchaser of all or substantially all assets related to this Agreement or (iii) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which Nearmap is participating Any attempt to assign this Agreement in violation of this provision shall be void and of no effect This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns 17 10 Entire Agreement This Agreement (a) compnses the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement and (b) supersedes any prior agreement or understanding on anything connected with that subject matter 17 11 Counterparts This Agreement may consist of a number of counterparts and if so the counterparts taken together constitute one and the same instrument This Agreement is not binding on any party unless one or more counterparts have been duly executed by or on behalf of Nearmap and the Licensee 1712 Governing Law This Agreement will be govemed by and construed in accordance with the laws of the State of Utah applicable to agreements made and to be entirely performed within the State of Utah without resort to its conflict of law provisions 18 DEFINITIONS In this Agreement Additional Terms and Conditions means the additional terms and conditions (if any) set out in Schedule 1 Affiliate means with respect to Nearmap any entity that controls or is controlled by such party or is under common control with Nearmap For purposes of this definition an entity shall be deemed to control another entity if it owns or controls, directly or indirectly at least fifty per cent (50%) of the voting equity of another entity (or other comparable interest for an entity other than a corporation) Authorized User means the number of person specified in the Seats section of the Quote, who have been granted access to the Product by the Licensee pursuant to the term and conditions of this Agreement and who either has been assigned a unique Nearmap user login credential or whom the Licensee has assigned a user login credential that enables access to the Product Auto Renew means the section of the Quote titled Auto Renew" Business Days means any day other than a Saturday a Sunday or a recognised public holiday Claim means any claim cost (including legal costs on a solicitor and client basis) damages debt expense lax liability loss obligation allegation suit action demand cause of action proceeding or iudgment of any kind however calculated or caused, and whether direct or indirect consequential incidental or economic Commencement Date means the date as specked in the Contract Commencement section of the Quote Commercial Purpose means to distribute transfer self sub -license or pass possession of any Products (in whole or in part) for the purpose of direct commercial benefit or gain by the Licensee Content means any content made available to the Licensee in connection with the License. Coverage Area means the area specified in the Coverage section of the Quote for which Nearmap has available Products which may cover part or all of that area and which may cover part (but not all) of the area covered by the Survey Derivative Work means any new work created by or for the Licensee that includes or embeds all or part of a Nearmap Product Excess Data Rate means the rate of additional fees that the Licensee pays per megabyte for its use of the Products beyond the Period Data Allowance being (a) if the Licensee pays its Fees on a monthly basis, the Fees per month divided by the Periodic Data Allowance or (b) if the Licensee pays its Fees on a yearly bass the Fees per year divided by 12 divided by the Periodic Data Allowance Fault means any fault failure error or defect which prevents the Licensee from accessing the Products other than where access is prevented due to a planned outage because of an unforeseeable event beyond Nearmap's reasonable control or any conduct or activity undertaken by the Licensee the Licensee's employees or agents Fees means the fees specified in the Quote payable by the Licensee for the License, or as otherwise agreed in writing between Nearmap and the Licensee Intellectual Property Rights includes all industnal and intellectual property nghts throughout the world including copyright, moral rights, trademarks patents rights to protect confidential information and any similar rights Late Payment Fee means a fee as notified by Nearmap to the Licensee, corresponding to the costs incurred by Nearmap (including without limitation administrative and other costs) in recovering any payment not made by the Licensee on the due or scheduled date for payment. Late fees incur interest at the rate of 1 5% per month License means the license granted in section 1 1 Licensee means the person or entity specified in the Customer Name section of the Quote Nearmap means Nearmap US Inc Operational Hours means 9am to 5pm PT Period means the period specified in the Allowance section of the Quote unless otherwise agreed in writing between Nearmap and the Licensee Periodic Data Allowance means the data allowance specified in the Allowance section of the Quote unless otherwise agreed in writing between Nearmap and the Licensee Permitted Purpose means the use of Products by the Licensee in the Licensee's ordinary business and at all times excludes any (a) Commercial Purpose (b) Unlawful Purpose (c) Integration or attempt to integrate the Product in an internal system of the Licensee or of a third party and (d) Redistribution or copying of files images photographs or making such files images or photographs available in any medium or manner that is contained in the Products to any third party (except as expressly permitted under this Agreement) Products means any Nearmap products specified in the Quote and if applicable the Survey Quote the document produced after the Licensee places an initial order for the Product(s) requests any changes to its License or renews its License, which may be titled New Subscription Quote Renewal Quote or Amendment Quote Schedules means the schedules to the Quote which form part of this Agreement Subscription Period means the period staled in the "Subscription Period" column of the Quote Subscription Start Date means the date specified in the Subscription Start Date section of the Quote Survey has the meaning (if any) given to that section 16 1 Survey Fee means the fee far the Survey as agreed in writing between Nearmap and the Licensee Survey Specification means the survey specification referred to in the Quote Term means the term specified in the Contract Term section of the Quote commencing on the (a) Commencement Date or(b) Subscription Start Date (if a date is specified) whichever is a later date unless a Subscription Period is stated Third Party Providers means third party providers of products and services to Nearmap Unlawful Purpose means any unlawful purpose including but not limited to stalking, harassing or intimidating any person or engaging in misleading or deceptive conduct Websde means all pages and sub sties available within the nearmap.com domain Nearmap US Inc Version 29 May 2018 6 TEST 2018 MAIN METRO AREAS 3 Vertical Surveys CITIES 2 Vertical Surveys REGIONAL CENTERS 1 Vertical Survey REGIONAL CENTERS 1 Vertical Suivey - Planned 0 0 0 0 Canada United States Mexico Visit go.nearrnap.comicurrent-aerial-raps to check current coverage in detail. Disdaimer. Nearmap's map coverage as described in this document is approximate only. Nearmap does not guarantee that maps of a particular location or geography will be available at any point in time or that its map coverage is current, accurate, correct or reliable. The date, time and number of aerial surveys Nearmap conducts is subject to change without prior notice and is undertaken at Nearmap's absolute discretion. Google CALIFORNIA Bakeicld Long B \ I. San Tij6anal Map data C2018 Google, INEGI. San METRO AREAS 1 Oblique Survey METRO AREAS 1 Oblique Survey - Planned OVERVIEW 0 0 Canada United States ii Mexico Visit go.nearmap.com/current-aerial-maps to check current coverage in detail. Disclaimer: Nearmap's imp coverage as described in this document is approximate only. Nearmap does not guarantee that maps of a particular location or geography will be available at any point in time or that its map coverage is current, accurate, correct or reliable. The date, time and number of aerial surveys Nearmap conducts is subjer-t to change without prior notice and is undertaken at Nearmap's absolute discretion. Fro CALIFORNIA Bakersfield tir Long Be \ La gas Mexicali Map data 02018 Google, INEGI