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HomeMy WebLinkAboutContracts & Agreements_144-2021AGREEMENT TO PERFORM PROFESSIONAL SERVICES This agreement for the provision of aerial -imagery software and data ("Agreement") is made and entered in this 3rd day of August, 2021 ("Effective Date"), by and between the City of Redlands, a municipal corporation ("City") and Nearmap US, Inc. a Delaware corporation ("Consultant") City and Consultant are sometimes individually referred to herein as a "Party" and, together, as the "Parties." In consideration of the mutual promises contained herein, City and Consultant agree as follows. 11 ARTICLE 1— ENGAGEMENT OF CONSULTANT City hereby engages Consultant to provide aerial -imagery software and data for City (the act of provision shall be defined as "Services" and the software and data shall be defined as "Products") 1.2 The Services shall be performed by Consultant in a professional manner, and Consultant represents that it has the skill and the professional expertise necessary to provide the Services to City at a level of competency presently maintained by other practicing professional consultants in the industry providing like and similar types of Services. 1.3 Consultant agrees to license the Products as described in Exhibit "A" on the terms and conditions set out in Exhibit "D" ("Consultant Terms") In the event the Consultant Terms conflict with the terms of this Agreement, this Agreement will prevail. ARTICLE 2 — SERVICES OF CONSULTANT 2 1 The Services that Consultant shall perform and the Products Consultant shall provide are more particularly described in Exhibit "A," titled "Scope of Services," which is attached hereto and incorporated herein by reference. 2.2 Consultant shall comply with applicable federal, state and local laws and regulations in the performance of this Agreement including, but not limited to, any applicable State prevailing wage laws. ARTICLE 3 — RESPONSIBILITIES OF CITY 3 1 City designates Danielle Garcia, Management Services Director, as City's representative with respect to performance of the Services, and such person shall have the authority to transmit instructions, receive information, interpret and define City's policies and decisions with respect to performance of the Services. ARTICLE 4 — PERFORMANCE OF SERVICES 4 1 Consultant shall provide the Services in a prompt and diligent manner 1n accordance with the schedule set forth in Exhibit "A," titled "Scope of Services," which is attached hereto and incorporated herein by reference. 4.2 The term of this Agreement shall be for a period of one (1) year from the Effective Date of 1 L:\ca\dj m\Agreements\Neannap Service Agreement. P S-1 1. FY21-0005. doc. j n this Agreement (the "Initial Term") The City shall have the option to extend the Initial Term of this Agreement by two (2) additional one-year terms (each, an "Extended Term"), on the same terms and conditions hereof, by providing written notice to Consultant at least thirty (30) days prior to the expiration of the Initial Term or any Extended Term. 4 3 If Consultant's Services include deliverable electronic visual presentation materials, such materials shall be delivered in a form, and made available to the City, consistent with City Council adopted policy for the same. It shall be the obligation of Consultant to obtain a copy of such policy from City staff. ARTICLE 5 — PAYMENTS TO CONSULTANT 5 1 The total annual compensation for Consultant's Services shall not exceed the amount of nineteen thousand two hundred fifty dollars ($19,250) for a period of one year after the EffectiveDate, with two additional one-year renewal options, bringing the total to an amount not- to -exceed fifty seven thousand seven hundred fifty dollars ($57,750) in accordance with Exhibit "B" titled "Payment Schedule" which is attached hereto and incorporated herein by reference 5.2 Consultant shall submit an invoice to City in accordance with the payment schedule specifically described in Exhibit `B " City shall pay Consultant no later than thirty (30) days after receipt and approval by City of Consultant's invoice 5 3 Any notice or other communication required, or which may be given, pursuant to this Agreement, shall be 1n writing. Any such notice shall be deemed delivered (i) on the date of delivery in person, (ii) five (5) days after deposit in first class registered mail, with return receipt requested, (iii) on the actual delivery date if deposited with an overnight courier; or (iv) on the date sent by facsimile or electronic mail transmission (including PDF), if confirmed with a copy sent contemporaneously by first class, certified, registered or express mail, in each case properly posted and fully prepaid to the appropriate address set forth below, or such other address as a Party may provide noticeln accordance with this section. CITY. Jeanne Donaldson City of Redlands 35 Cajon Street P 0 Box 3005 (mailing) Redlands, CA 92373 jdonaldson@cityofredlands org Phone: (909) 798-7531 CONSULTANT. Nearmap Legal Nearmap US, Inc 10897 S River Front Pkwy, Ste 150 South Jordan, UT 84095 legal@nearmap com Phone. (801) 609-7250 ARTICLE 6 — INSURANCE AND INDEMNIFICATION 6 1 The following insurance coverage required by this Agreement shall be maintained by Consultant for the duration of its performance of the Services. Consultant shall not perform any Services unless and until the required insurance listed below is obtained by Consultant. 2 L:\ca\djm\Agreements\Near nap Service Agreement.PS-1 1.FY21-0005.doc.jn Consultant shall provide City with certificates of insurance and endorsementsevidencing such insurance prior to commencement of the Services. Insurance policies shall include a provision prohibiting cancellation or modification of the policy except upon thirty (30) days prior written notice to City A. Workers' Compensation and Employer's Liability insurance in the amount that meets statutory requirements with an insurance carrier acceptable to City, or certification to City that Consultant is self -insured or exempt from the workers' compensation laws of the State of California. Consultant shall execute and provide City with Exhibit "C," titled "Workers' Compensation Insurance Certification," which is attached hereto and incorporated herein by this reference, prior to performance of the Services B Comprehensive General Liability insurance with carriers acceptable to City in the minimum amount of One Million Dollars ($1,000,000) per occurrence and TwoMillion Dollars ($2,000,000) aggregate, for public liability, property damage and personal injury is required. City shall be named as an additional insured and such insurance shall be primary and non-contributing to any insurance or self-insurance maintained by City 6.2 Consultant shall defend, indemnify and hold harmless City and its elected officials, employees and agents from and against any and all claims, losses or liability, including attorneys' fees, arising from injury or death to persons or damage to property occasioned by any negligent act or omission by, or the willful misconduct of, Consultant, or its officers, employees and agents in performing the Services. ARTICLE 7 — CONFLICTS OF INTEREST 7 1 Consultant covenants and represents that it does not have any investment or interest in any real property that may be the subject of this Agreement or any other source of income, interest in real property that would be affected in any manner or degree by the performance of Consultant's Services. Consultant further covenants and represents that in the performance of its duties hereunder, no person having any such interest shall perform any Services under this Agreement. 7.2 Consultant agrees it is not a designated employee within the meaning of the Political Refor n Act because Consultant: A. Does not make a governmental decision whether to (i) approve a rate, rule or regulation, or adopt or enforce a City law; (ii) issue, deny, suspend or revoke any City permit, license, application, certification, approval, order or similar authorization or entitlement; (iii) authorize City to enter into, modify or renew a contract; (iv) grant City approval to a contract that requires City approval and to which City is a party, or to the specifications for such a contract; (v) grant City approval to a plan, design, report, study or similar item, (vi) adopt, or grant City approval of, policies, standards or guidelines for City or for any subdivision thereof. 3 L:\ca\djm\Agreements\Near nap Service Agreement.PS-1 1.FY21-0005.doc.jn B Does not serve in a staff capacity with City and in that capacity, participate in making a governmental decision or otherwise perform the same or substantially the same duties for City that would otherwise be performed by an individual holding a position specified in City's Conflict of Interest Code under Government Code section 87302 7 3 In the event City determines that Consultant must disclose its financial interests, Consultant shall complete and file a Fair Political Practices Commission Form 700, Statement of Economic Interests, with the City Clerk's office pursuant to the written instructions provided by the City Clerk. ARTICLE 8 — GENERAL CONSIDERATIONS 8 1 In the event any action is commenced to enforce or interpret any of the terms or conditions of this Agreement the prevailing Party shall, in addition to any costs and other relief, be entitled to the recovery of its reasonable attorneys' fees, including fees for the use of in- house counsel by a Party 8.2 Consultant shall not assign any of the Services, except with the prior written approval of City and in strict compliance with the terms and conditions of this Agreement except in connection with a merger, acquisition, corporate reorganization, change of control or sale or disposition of substantially all of its assets. 8 3 Consultant is for all purposes under this Agreement an independent contractor and shall perform the Services as an independent contractor Neither City nor any its agents shall have control over the conduct of Consultant or Consultant's employees, except as herein set forth. Consultant shall supply all necessary tools and instrumentalities required to perform the Services. Assigned personnel employed by Consultant are for its account only, and in no event shall Consultant or personnel retained by it be deemed to have been employed by City or engaged by City for the account of, or on behalf of City Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent, nor shall Consultant have any authority, express or implied, to bind City to any obligation. 8 4 This Agreement may be terminated by City, in its sole discretion, by providing not less than five (5) days prior written notice to Consultant of City's intent to terminate. If this Agreement is terminated by City, City will be entitled to no refund of any fees already paid for the Services, except that fees may be adjusted to the extent of any additional costs to City occasioned by any default by Consultant. 8 5 This Agreement, including the Exhibits incorporated herein by reference, represents the entire agreement and understanding between the Parties as to the matters containedherein, and any prior negotiations, written proposals or verbal agreements relating to suchmatters are superseded by this Agreement. Except as otherwise provided for herein, any amendment to this Agreement shall be in writing, approved by City and signed by City and Consultant. 4 L:\ca\djm\Agreements\Nearmap Service Agreement.PS- 1 1 FY21-0005.doc.jn 8 6 This Agreement shall be governed by and construed m accordance with the laws of the State of Cahforma, without regard to its conflicts of laws provisions The Parties agree that all actions or proceedings arising m connection with this Agreement shall be tnedand litigated only m the state courts located m San Bernardino County, Cahforma, andthe federal courts located m Riverside County, Cahforma 8 7 If one or more of the sentences, clauses, paragraphs or sections contained m this Agreement is declared invalid, void or unenforceable by a court of competent junsdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate the remaining sentences, clauses, paragraphs or sections contained herein, unless to do so would depnve a Party of a material benefit ofits bargain under this Agreement 8 8 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, City and Consultant IN WITNESS WHEREOF, duly authorized representatives of City and Consultant have signed in confirmation of this Agreement CI OF RE ANDS Paul T Banch, Mayor ATTEST e Donaldson, City Clerk 5 L \ca\djm\Agreements\Nearmap Service Agreement.PS 1 1 FY21 0005.doc..n NEARMAP US, INC By Hcace Wu, Assistant2'(Americas) EXHIBIT "A" SCOPE OF SERVICES Nearmap is providing the city access to the services outlined in the following table below Access will be granted on a yearly basis for one year up to two additional years of service. The 3D export allowance indicates that the city may only download up to five (5) square miles of 3D data, which includes point clouds, digital elevation models, and 3D meshes. All other servicesare uncapped and considered to be unlimited use. The credit allowance for AI layers and vector exports is purely for setting the yearly cost to the city and does not reflect the amount of vector data the city can download which is uncapped. Product Allowance Coverage Seats ArcGIS Integration NA NA NA Nearmap Vertical for Government Unlimited Nationwide Unlimited Nearmap Panoramic for Government Unlimited Nationwide Unlimited Nearmap Oblique for Government Unlimited Nationwide Unlimited 3D Viewer Unlimited Nationwide Unlimited 3D Export Pro 5 Square Miles Nationwide Unlimited Nearmap Al 10,473 Parcels Nationwide Unlimited Al Pack: Roof Characteristics NA Nationwide Unlimited Al Pack: Building Footprints NA Nationwide Unlimited Al Pack. Vegetation NA Nationwide Unlimited Al Pack. Building Characteristics NA Nationwide Unlimited Al Pack. Surface NA Nationwide Unlimited Al Offline Vector 15,000 Parcels Nationwide Unlimited 6 L:\ca\djm\Agreements\Neannap Service Agreement.PS-1 1.FY21-0005.doc „in EXHIBIT "B" PAYMENT SCHEDULE The payment schedule consists of three separate payments for years one, two, and three Year one will be paid on August 15, 2021 for a total of $19,250, and will grant access to all services outlined in Exhibit "A." An optional second year of services can be paid on August 15, 2022 at $19,250 One additional year of service for a third year of service would be paid on August 15, 2023 at $19,250 The total for three years of service under this agreement would total $57,750 Payment Date Amount Year1 8/15/2021 $19,250 Year 2 8/15/2022 $19,250 Year3 8/15/2023 $19,250 Total $57,750 7 L:\ca\djm\Agreements\Nearmap Service Agreement.PS-1 1.FY21-0005.doc.jn EXHIBIT "C" WORKERS' COMPENSATION INSURANCE CERTIFICATION Every employer, except the State, shall secure the payment of compensation in one or more of the following ways (a) By being insured against liability to pay compensation by one or more insurers duly authorized to write compensation insurance in this State (b) By securing from the Director of Industrial Relations, a certificate of consent to self -insure, either as an individual employer, or as one employer in a group of employers, which may be given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self -insure and to pay any compensation that may become due to his or her employees. CHECK ONE X I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workers' Compensation or to undertake self- insurance in accordance with the provisions of that Code, and I will comply with such provisionsbefore commencing the performance of the work and activities required or permitted under this Agreement. (Labor Code §1861) I affirm that at all times, in performing the work and activities required or permitted under this Agreement, I shall not employ any person in any manner such that I become subject to the workers' compensation laws of California. However, at any time, if I employ any person such that I become subject to the workers' compensation laws of California, immediately I shall provide the City with a certificate of consent to self -insure, or a certification of workers' compensation insurance. I certify under penalty of perjury under the laws of the State of California that the information and representations made in this certificate are true and correct. NEARMAP US, INC By Ho Wu, Assistant CyP Americas) Date• July 28, 2021 8 L:\ca\djm\Agreements\Nearmap Service Agreement.PS-1 1.FY2 1 -0005. doc .jn EXHIBIT "D" CONSULTANT TERMS 9 L:\ca\djin\Agreements\Neannap Service Agreement.PS-1 1.FY21-0005.doc.jn nearmap 0 PLEASE READ THIS PRODUCTS AGREEMENT CAREFULLY BY ACCEPTING THIS AGREEMENT BY 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 aerial 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, the Additional Terms and Conditions, Product - Specific Terms, any Schedules and the Quote which together constitute the legal agreement between the Licensee and Nearmap (the 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 Fees, Nearmap grants to the Licensee a limited, non-exclusive, non- transferrable license for the Term to use the Products for and to the extent of the Permitted Purpose (the '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 Authorized Users. If the number of users exceeds the total number of Authorized Users, the Licensee 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' written notice of its intention not to renew this Agreement prior to the expiry of the initial Term or any current Renewal Term. 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 the date of delivery from Nearmap. 1.5 Acknowledge Nearmap source The Licensee must expressly acknowledge Nearmap, in a reasonably prominent manner (by displaying the Nearmap logo or other appropriate attribution), as the source of any Product or Derivative Works that the Licensee uses, copies, modifies or distributes. Unless otherwise permitted in writing, the Licensee must not remove or cause to be removed any Nearmap logo, watermark or other Nearmap attribution in any Product or Derivative Works. 1.6 Data Use for Government Products Nearmap measures data usage by the Licensee under this License for Government Products. When using Government Products, Nearmap's Fair Use Policy regulates the Licensee's consumption of data during the Term (or Renewal Term) the following conditions also apply to the Licensee's use of Government Products: (a) the amount of data used by the Licensee on the Government Products will be monitored and then calculated at the end of every Term or Renewal Term based on the total data of all users who access and use the Licensee's Nearmap account during that Period; and (b) if the Licensee elects to download and/or export Government Products available to the Licensee on the Website, thls will be applied to the calculation of the Licensee's use of the Government Products. 1.7 Allowance for Non -Government Products Non -Government Products Licensed to the Licensee may be subject to additional Allowance, Periodic Allowance or Periodic Data Allowance terms that are published in the Product Specific Terms and if applicable the Periodic Allowance Section. 1.8 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 such 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 prior 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 but not limited to the Licensee's subsidiaries, affiliates, any lower or higher tiered governments and any neighbouring local government). 2.4 Employees The Licensee may make Products available to any employee of the Licensee, subject to that person complying with the terms of the Agreement as if they were a party to it and the total number of Authorized Users has not been exceeded. Such employees are deemed to be Authorized Users. The Licensee is responsible and liable for any person 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. Nearmap US, Inc. 2.5 No machine learning The Licensee must not conduct machine learning work in connection with this Agreement or any Products, 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 thls 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, retrieve, cache, index, or store any Content or portion of the Products. 2.7 Restriction on integration methods The Licensee is only permitted to use API Integration method authorized by Nearmap, or other integration methods authorized by Nearmap in writing, including but not limited to integration with the Licensee's or other third party platforms or software. 2.8 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 (except as necessary to use the Products); (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 email (commercial or otherwise) or any other material for marketing or publicity purposes; (e) publish, post, distribute, disseminate or otherwise transmit, defamatory offensive, infringing, obscene, indecent or other unlawful or objectionable or confidential material or information; (f) make available, upload or distribute by any means any material 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 this Agreement; (k) attempt any of the above acts or engage, encourage or permit another person to do any of the above acts; or (I) provide or allow access which exceeds the total number of Authorized Users in connection with use of the Product. 2.9 Breach If the Licensee breaches any of sections 2.1 to 2.8 inclusive, Nearmap reserves its rights to terminate the Agreement in accordance with section 6.2, restrict the Licensee's access to the Products, and take any other steps available to it at law. 3. THE LICENSEE'S ACCESS TO PRODUCTS AND SERVICES 3.1 Authorized Users Any password/ID 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 unauthorized person, by a different Authorized User to the person to whom it was issued 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 to low resolution imagery or apply any other restrictions on access that Nearmap determines in its absolute discretion; (c) immediately cease the Licensee's access to the Product; (d) require the Licensee to pay for any additional fees due based on the standard Nearmap Fees for the applicable Product, in respect of any such unauthorized use; and/or (e) exercise any other right available to Nearmap under the terms of this Agreement or at law Page 4 of 9 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 times. Nearmap agrees that, wherever possible, all planned maintenance will 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 all 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 Products, including without limitation protecting its passwords and other log -in information. The Licensee shall notify Nearmap immediately of any known or suspected unauthorized use of the Products or breach of its security and shall use best efforts to stop sald breach and minimize the adverse impact of said breach on Nearmap. 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 records regarding its use of the Products according to its record keeping policies and procedures. The Licensee shall permit Nearmap (or its auditors) access to the Licensee's records pertaining to the Licensee's use of the Products. Nearmap will give at least thirty (30) days prior written notice of an audit and will not conduct an audit more than once per calendar year unless non-compliance findings are noted, in which case the audit period may be extended. 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 during the audit period and (c) terminate this Agreement in accordance with section 6. Licensee must pay all invoices issued under this section within thirty (30) days following the date of invoice or such other period agreed between the parties. 4 FEES 4 1 Fees The Fees payable by the Licensee are set out in the Quote. 4.2 Payment The Fees are payable by the Licensee to Nearmap in the manner and by the due date as set out in the Quote at the beginning of each Term unless otherwise agreed by Nearmap. Where the Fees are payable by credit card, the Licensee authorizes Nearmap to charge the Licensee's credit card for all purchased Products listed in the Quote for the initial Term and any Renewal Term. 4.3 No cancellation Subject to section 4.4 all Fees are non -cancellable and non- refundable except as expressly set out in the Agreement. 4 4 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 date of termination. 4.5 Taxes Unless otherwise stated, Fees and Late Payment Fee do not Include any direct or indirect local, state, provincial, 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. 4.6 Late Payment If a scheduled Fee payment Is still overdue after seven (7) days' notice from Nearmap to remedy the payment default, the Licensee agrees that Nearmap may charge the Licensee a Late Payment Fee and/or immediately limit or terminate access to the Products provided under this License. 4.7 Amendments Fees of the relevant Product may only be Increased at the end of the Term (including any Renewal Term) subject to Nearmap and the Licensee agreeing In writing. 5. THE LICENSEE'S WARRANTIES 5.1 Warranty The Licensee warrants that: (a) 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; (b) 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; (c) the Licensee has the power to enter into this Agreement and to perform the obligations under it; and (d) the Licensee has and will comply with all relevant laws relating to the Licensee's use of the: (i) License; (ii) Products; and (lil) Website. 6. TERMINATION AND EXPIRY 6.1 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: Nearmap US, Inc. (a) (b) (c) 6.3 6.4 (a) (b) (c) 6.5 6.6 7 71 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 requiring it to do so; the other party breaches any of its obligations under this Agreement incapable of remedy and Content; or 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. Termination by Nearmap Notwithstanding 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. Consequences If the Agreement is terminated under sections 6.2 or 6.3 or expires at the end of the Term: the License immediately terminates and the Products will no longer be available to the Licensee; The Licensee must immediately destroy delete or return to Nearmap all Products; and subject to section 7.3, the Licensee and the Authorized Users are not permitted to use any Products for any purpose. Costs Nearmap reserves all rights 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. Continuing obligations After expiry or termination of the Agreement or a License, sections 1.5, 2, 4 6.5, 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. INTELLECTUAL PROPERTY Ownership Unless otherwise indicated, the Website, the Products, the Content, 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, any Product or Content will pass or be licensed 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-sublicensable license to reproduce and display Nearmap trademarks only to the extent necessary to comply with the Licensee's obligations under the Agreement. Any such reproduction and display of those marks must comply with the policies and rules Nearmap makes available to the Licensee from time to time. 7.3 Derivative Works Subject to compliance with all other terms of this Agreement, the Licensee Is granted a non-exclusive right to produce and use Derivative Works for a Permitted Purpose. Unless otherwise notified to the Licensee by Nearmap, the Licensee may continue using Derivative Works following termination or expiry of this Agreement. For the avoidance of doubt, Nearmap will continue to own all rights in and to any Products and Content embedded in a Derivative Work, but all other rights In and to the Derivative Work will belong to the Licensee. 8. THIRD PARTY PROVIDERS 8.1 (a) (b) Page 5 of 9 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 entering Into the Agreement, the Licensee Is deemed to accept 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. 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. https://www.google.com/enterprise/earthmaps/legal/us/maps purchase acireem ent apac.html; Amazon Web Services (AWS) Nearmap engages Amazon Web Service, Inc. to provide services (the 'AWS Services") which enables delivery of the Products. By entering into the Agreement, the Licensee agrees to comply with the AWS Customer Agreement (http://aws.amazon.com/agreement/) as it applies to the Licensee. Use of the Products is also subject to the Licensee's compliance with the following AWS policies: (i) Privacy Policy (httn://aws.amazon.com/privacv/) (ii) Acceptable Use Policy (http://aws.amazon.com/aup/) (iii) Terms of Use (http:Haws. a mazon. com/terms/) (iv) Service Terms (http://aws. a mazon.com/serviceterms/) (v) Trademark Guidelines (http://aws. a mazon.com/trademark-q uidel i nes/) (c) NASA/NCAS By entering into the Agreement, the Licensee agrees to the following NASA/NCAS terms and conditions: (https://www. nea rmap.com/u s/en/lega I/copyright). 9. WARRANTY AND LIABILITY 9.1 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 9.1 THE WEBSITE AND THE PRODUCTS ARE PROVIDED ON AN AS IS' AND 'AS AVAILABLE BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW NEARMAP AND ITS CONTENT PROVIDERS, AGENTS, MANDATARIES AND AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES, WHETHER EXPRESS, STATUTORY OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES 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 CONTENT THE PRODUCTS AND THE WEBSITE, NEARMAP MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES 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 91 OR (B) A BREACH OF A REPRESENTATION, WARRANTY CONDITION OR GUARANTEE 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, MANDATARIES OR AFFILIATES BE LIABLE FOR ANY CLAIMS OF ANY KIND ARISING FROM OR CONNECTED WITH THE USE OF THE WEBSITE, THE CONTENT 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), EXTRACONTRACTUAL LIABILITY OR OTHERWISE. THE LICENSEE IS RESPONSIBLE FOR THE ENTIRE COST OF ALL SERVICING, REPAIR OR CORRECTION REQUIRED DUE TO THE LICENSEE'S USE OF THIS WEBSITE, THE CONTENT 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), EXTRACONTRACTUAL LIABILITY PRODUCT LIABILITY STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING TO THE USE OF THE PRODUCTS, THE CONTENT OR THE WEBSITE 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 related services. Without limiting any of the above, 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 To the extent permitted by law the Licensee agrees to Indemnify Nearmap and its directors, officers, employees, agents, mandataries and subcontractors, from and against any and all direct or indirect claims, damages, losses, liabilities, expenses and costs (including reasonable attorney's fees and costs) arising 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 Derivative Works, including without limitation, any output from the Derivative Works. Nearmap US, Inc. 9.9 Notice of claim Nearmap will provide the Licensee with notice of any claim or allegation under section 9.8, and Nearmap has the right to participate in the defense of any such claim at 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 Infringement Claim; (b) not make any admissions in relation to the Infringement Claim without Nearmap's prior 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 (i) use of the Product In violation of this Agreement; (ii) modification of the Product by anyone other than Nearmap or a party authorized by Nearmap in writing to modify the portion of the Product applicable to the Infringement Claim; or (Hi) third -party products, services, hardware, software or other materials, or a combination of these with the Products, which would not be infringing without this combination; or (b) if the Licensee fails to 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 party Infringement Claims brought against the Licensee in relation to an infringement of Intellectual Property Rights. PRIVACY POLICY 11 11 1 Nearmap will collect, use and disclose any personal information supplied by the Licensee as set out In Nearmap's Privacy Policy as amended from time to time, and currently available at https://www.nearmap.com/us/en/legal/privacv-policy The Licensee hereby consents to those collections, uses and disclosures. 11.2 To the maximum extent permitted by law by entering into thls Agreement, the Licensee expressly consents to receiving general emails relating to product updates, new products or anything related to the usage of the product from Nearmap but prior written consent is required to receive 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 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 act of war terrorism, hurricane, earthquake, other act of God or of nature, strike or other labor dispute, riot or other act of civil disorder embargo, or other cause 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 (when reasonably possible to do so) 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 Licensee must not use any Confidential Information for any purpose not expressly permitted hereunder The Licensee 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 unauthorized use, access, or disclosure in the same manner as it would protect its own confidential or proprietary 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 Page 6 of 9 required and all 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 writing. 15. TECHNOLOGY EXPORT 15.1 The Licensee shall not: (a) permit any third party to access or use the Product in violation of any U.S. or Canadian law or regulation; or (b) export any software provided by Nearmap or otherwise remove it from the United States or Canada except in compliance with all applicable U.S. and Canadian 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 States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria) or a Canadian embargo. 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 writing, Nearmap may in its absolute discretion, agree to provide the Survey to the Licensee for a Survey Fee. 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 Webslte 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 writing 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 prior to delivery of the Survey Nearmap will refund the Survey Fee to the Licensee. 16.5 Other Products This Section 16 will not be applicable to the Licensee if the License has not purchased a Survey 17 MISCELLANEOUS TERMS 17 1 Nearmap customer Licensee grants Nearmap the right to use Licensee's name and logo to identify as a Nearmap customer for marketing or promotional purposes in public or private communications with our existing or potential customers, subject to Licensee's standard trademark usage guidelines as provided to us from time -to -time. 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 Additional Terms and Conditions; (b) the Quote; (c) any Product -Specific Terms; and (d) this products agreement. If there is any ambiguity or inconsistency between the documents comprising 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 neither party's employee or contractor is an employee of the other party 17.5 Construction The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will 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, thls Agreement may only be varied with the written consent of Nearmap and the Licensee. 17.9 Assignment This Agreement shall not be assigned by either party without the prior 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 rights 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 (ill) 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) comprises 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. Nearmap US, Inc. 1712 Language The parties have expressly agreed that this Agreement and all ancillary agreements, documents or notices relating thereto be drafted solely in the English language. Les parties aux preventes ont expressement convenu que ce accord et toute autre convention, document ou avis y afferent solent rediges en anglais seulement. 1713 Governing Law This Agreement will be governed by and construed In accordance with the laws of the State where the Licensee is carrying on business applicable to agreements made and to be entirely performed within that state, 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 the Quote. Affiliate means, with respect to Nearmap, any entity that controls or is controlled by Nearmap, 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). Allowance means any usage allowance the Licensee Is permitted to use and/or drawn down against for any Licensed Non -Government Products as specified the Quote. API means application programming interface. Authorized User means the number of persons 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. Business Days means any day other than a Saturday a Sunday or a recognised public holiday in Utah, USA. Claim means any claim, cost (including legal costs on a solicitor and client basis), damages, debt, expense, tax, liability loss, obligation, allegation, suit, action, demand, cause of action, proceeding or judgment of any kind however calculated or caused, and whether direct or indirect, consequential, incidental or economic. Commencement Date means (a) for New Subscription Quotes, the date as specified in the 'Contract Commencement' section or the 'Subscription Start Date' section of the Quote, whichever is later or (b) for Renewal Quotes or Amendment Quotes, the date as specified in the 'Subscription Start Date' section of the Quote. Commercial Purpose means to distribute, transfer sell, 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. Confidential Information means the terms of this Agreement, the pricing, and any other information relating to the business, finances, strategy methods, processes, products, metadata, services or other affairs of Nearmap or Its representatives or related bodies corporate which is disclosed to, learnt by or accessed by the Licensee in connection with the Agreement, whether before or after the Licensee entered into the Agreement, whether orally electronically in writing or otherwise, but excludes information which: (a) is or becomes part of the public domain otherwise than as a consequence of a breach of the Agreement; (b) the Licensee has obtained from a source other than Nearmap which source is entitled to disclose it; or (c) the Licensee has developed or acquired independently before the date of the Agreement, and can provide reasonable proof. Content means any content made available by or on behalf of Nearmap to the Licensee in connection with the License, whether or not through the Webslte or an API. 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 incorporates, embeds or includes all or part of a Nearmap Product or Content. Fair Use Policy means the policy as attached to the Quote. 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 or mandataries. 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. Government Products means any Products specified in the Quote that are described as 'Nearmap Vertical for Government" and 'Nearmap Oblique for Government' and includes any other Products offered by Nearmap for government customers only where use of its License is connected to the Fair Use policy Intellectual Property Rights includes all Industrial and intellectual property rights throughout the world Including copyright, moral rights, trademarks, patents, rights to protect confidential information and any other 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 (being 18% per year). 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. Non -Government Products means all Products specified in the Quote that do not fall under the definition of Government Products. Operational Hours means 9am to 5pm PT Page 7 of 9 Periodic Allowance or 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. Periodic Allowance Section means section 1.6 (or Its equivalent) In the most current version of the products agreement currently located at here. Permitted Purpose means the use of Products by the Licensee for internal purposes 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 further described on the Website) and, if applicable, the Survey For the avoidance of doubt, Products Include Content. Products Specific Terms means additional terms and conditions that apply to certain Products, currently located here. 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 Nearmap US, Inc. titled 'New Subscription Quote' 'Renewal Quote' or Amendment Quote' Schedule means a schedule to this Agreement, where such schedule has been Incorporated by reference to form part of this Agreement. Subscription Period means the period stated 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 for 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 'Subscription Term' section of the Quote, commencing on the Commencement Date. Where a Subscription Period is stated on the Quote, "Term' means the Subscription Period. 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. Website means all pages and sub -sites available within the nearmap.com domain. Page 8 of 9 FAIR USE POLICY General 1 It is important to Nearmap that all customers are able to access the Products and Services. Accordingly we have devised a Fair Use Policy that applies to the data usage of the Products and Services. 2. In this Fair Use Policy a. Excessive Use has the meaning given to that term in section 7 of this Fair Use Policy b. Fair Use Policy means this policy c. Nearmap, we, us or our means Nearmap US, Inc. d. Products has the meaning given to that term in Your Nearmap Agreement; e. Services has the meaning given to that term in Your Nearmap Agreement; f. You or Your means any customer of Nearmap; g. Your Nearmap Agreement means the agreement pursuant to which Nearmap provides You with various products and services; and h. Unreasonable Use has the meaning given to that term in section 5 of this Fair Use Policy 3. We reserve the right to vary the terms of this Fair Use Policy from time to time. 4 This Fair Use Policy is in addition to Your Nearmap Agreement and in the event of any inconsistency between the terms of this Fair Use Policy and the terms and conditions of Your Nearmap Agreement, Your Nearmap Agreement prevails. Unreasonable Use 5. We consider Your use of the Products and Services unreasonable where You use it in a manner which is reasonably considered by Nearmap to be fraudulent use, to be contrary to Your Nearmap Agreement or to adversely affect other Nearmap customers' use of or access to the Products and Services. 6. Among other things, 'fraudulent use' includes resupply of the Products and Services without Nearmap's consent so that someone else may access or use the Products and Services or take advantage of the Products and Services. Excessive Use 7 Excessive Use is a continuing and unreasonably disproportionate use of the Products and Services when compared to other average individual named users. Nearmap's Rights 8. Where Your use of the Products and Services constitutes Unreasonable Use and/or Excessive Use, Nearmap may contact You to discuss changing Your usage pattern so that It conforms with this Fair Use Policy or to upgrade to a more suitable Product or Service (if applicable). 9. If, after Nearmap has contacted You, Your Unreasonable Use and/or Excessive Use continues, Nearmap may without further notice to You: a. restrict Your access to low resolution Imagery for the remainder of the month; and/or b. restrict Your access to low resolution imagery for the remainder of the month until Your data allowance is reset at the beginning of the next month (if applicable); and/or c. restrict Your access for the remainder of the month; and/or d. restrict Your access to Nearmap until Your data allowance is reset at the beginning of the next month (if applicable); and/or e. immediately cease Your access to Nearmap; and/or f. exercise any other right available to Nearmap under the terms of Your Nearmap Agreement. Page 9 of 9 Nearmap US, Inc.