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Nearmap US, Inc.
<br />REV: 01-24-2022 SK
<br />(e) exercise any other right available to Nearmap under the terms of this Agreement
<br />or at law.
<br />3.2 Downtime Nearmap will use reasonable efforts to ensure that the Website
<br />remains available but cannot guarantee that this will be the case at all times.
<br />Nearmap agrees that, wherever possible, all planned maintenance will be done
<br />out of normal Operational Hours to ensure optimal uptime of the Website. The
<br />Licensee may elect to subscribe to the Nearmap status page at
<br />https://status.nearmap.com/ to receive notifications and updates relating to
<br />planned maintenance and uptime/downtime of the Website and APIs. When
<br />Nearmap becomes aware of any Fault, Nearmap will use reasonable efforts to:
<br />(a) allocate such resources as may be necessary to remedy the Fault; and
<br />(b) otherwise take all reasonable steps to remedy the Fault so as to minimize any
<br />disruption to the Licensee’s use of the Products.
<br />3.3 Expiry The Licensee’s License will expire at the end of the Term unless renewed
<br />in accordance with section 1.3 and may be suspended or terminated, in
<br />accordance with section 6.2, if the Licensee is in breach of this Agreement.
<br />3.4 Unauthorized Use Licensee shall take reasonable steps to prevent unauthorized
<br />access to the Products, including without limitation, protecting its passwords and
<br />other log-in information. The Licensee shall notify Nearmap immediately of any
<br />known or suspected unauthorized use of the Products, or breach of its security,
<br />and shall use best efforts to stop said breach and minimize the adverse impact of
<br />said breach on Nearmap.
<br />3.5 Audit During the Term of this Agreement, and for two (2) years after termination
<br />or expiry of this Agreement, the Licensee shall maintain records regarding its use
<br />of the Products according to its record keeping policies and procedures. The
<br />Licensee shall permit Nearmap (or its auditors) access to the Licensee’s records
<br />pertaining to the Licensee’s use of the Products. Nearmap will give at least thirty
<br />(30) days prior written notice of an audit and will not conduct an audit more than
<br />once per calendar year unless non-compliance findings are noted, in which case
<br />the audit period may be extended.
<br />3.6 Audit Findings If an audit results in findings of non-compliance, Nearmap may,
<br />at its discretion:
<br />(a) invoice any additional license fees due based on the standard Nearmap Fees
<br />in place at the time of the original license grant;
<br />(b) recover the reasonable cost of the audit if additional Fees exceed 5% of the
<br />Fees paid during the audit period; and
<br />(c) terminate this Agreement in accordance with section 6.3. Licensee must pay all
<br />invoices issued under this section within thirty (30) days following the date of
<br />invoice or such other period agreed between the parties.
<br />4. FEES
<br />4.1 Fees The Fees payable by the Licensee are set out in the Quote.
<br />4.2 Payment The Fees are payable by the Licensee to Nearmap in the manner and
<br />by the due date, as set out in the Quote, at the beginning of each Term unless
<br />otherwise agreed by Nearmap. Where the Fees are payable by credit card, the
<br />Licensee authorizes Nearmap to charge the Licensee’s credit card for all
<br />purchased Products listed in the Quote for the initial Term and any Renewal Term.
<br />4.3 No cancellation Subject to section 4.4, all Fees are non-cancellable and non-
<br />refundable, except as expressly set out in the Agreement.
<br />4.4 Refund of Fees If the Licensee is not in breach of the Agreement, and Nearmap
<br />elects to terminate the Agreement under section 6.3, Nearmap will refund the
<br />Licensee any pre-paid fees relating to the portion of Term remaining as at the
<br />date of termination.
<br />4.5 Taxes Unless otherwise stated, Fees and Late Payment Fee do not include any
<br />direct or indirect local, state, provincial, federal, or foreign taxes, levies, duties, or
<br />similar governmental assessments of any nature, including value-added, excise,
<br />use or withholding taxes (collectively, "Taxes"). Licensee is responsible for paying
<br />all Taxes, except those assessable against Nearmap based on its income.
<br />Nearmap will invoice Licensee for such Taxes if Nearmap believes it has a legal
<br />obligation to do so and Licensee agrees to pay such Taxes if so invoiced.
<br />4.6 Late Payment If a scheduled Fee payment is still overdue after seven (7) days
<br />notice from Nearmap, to remedy the payment default, the Licensee agrees that
<br />Nearmap may charge the Licensee a Late Payment Fee and/or immediately limit
<br />or terminate access to the Products provided under this License.
<br />4.7 Amendments Fees of the relevant Product may only be increased at the end of
<br />the Term (including any Renewal Term) subject to Nearmap and the Licensee
<br />agreeing in writing.
<br />5. THE LICENSEE’S WARRANTIES
<br />5.1 Warranty The Licensee warrants that:
<br />(a) any information the Licensee supplies to Nearmap in respect of the Agreement is
<br />complete and correct. The Licensee must keep Nearmap informed of any change
<br />to the Licensee’s information provided to Nearmap, including any change to the
<br />Licensee’s contact details, or the details of a credit card used for payment;
<br />(b) the Licensee will immediately notify Nearmap of any usage of any Product outside
<br />the Permitted Purpose, and provide any other information reasonably requested
<br />by Nearmap;
<br />(c) the Licensee has the power to enter into this Agreement and to perform the
<br />obligations under it; and
<br />(d) the Licensee has and will comply with all relevant laws relating to the Licensee’s
<br />use of the:
<br />(i) License;
<br />(ii) Products; and
<br />(iii) Website.
<br />6. TERMINATION AND EXPIRY
<br />6.1 Initial Term This Agreement commences on the Commencement Date and
<br />continues until expiry of the Term unless terminated earlier in accordance with
<br />the terms of this Agreement or renewed under section 1.3.
<br />6.2 Termination by Either Party Either party may terminate this Agreement with
<br />immediate effect by giving notice to the other party if:
<br />(a) the other party breaches any of its obligation under this Agreement capable of
<br />remedy and fails to remedy that breach within fourteen (14) days after receiving
<br />notice requiring it to do so;
<br />(b) the other party breaches any of its obligations under this Agreement incapable of
<br />remedy and Content; or
<br />(c) the other party files for protection under bankruptcy laws, makes an assignment
<br />for the benefit of creditors, appoints, or suffers appointment of a receiver or trustee
<br />over its property, files a petition under any bankruptcy or insolvency act, or has
<br />any such petition filed against it which is not discharged within sixty (60) days of
<br />the filing thereof, or admits in writing its inability to pay its debt generally as they
<br />become due.
<br />6.3 Termination by Nearmap Notwithstanding anything else in the Agreement, but
<br />subject to section 4.4, Nearmap has the right, in its absolute discretion and
<br />upon giving the Licensee ten (10) Business Days’ notice, to terminate the
<br />Agreement and the License.
<br />6.4 Consequences If the Agreement is terminated under sections 6.2 or 6.3 or
<br />expires at the end of the Term:
<br />(a) the License immediately terminates and the Products will no longer be available
<br />to the Licensee;
<br />(b) the Licensee must immediately destroy, delete, or return to Nearmap all Products;
<br />and
<br />(c) subject to section 7.3, the Licensee and the Authorized Users are not permitted
<br />to use any Products for any purpose.
<br />6.5 Costs Nearmap reserves all rights following termination of this Agreement,
<br />including any rights available to Nearmap to collect any outstanding Fees which
<br />may be owed by the Licensee. The Licensee will be liable for any reasonable legal
<br />costs incurred by Nearmap in enforcing its rights following termination of this
<br />Agreement.
<br />6.6 Continuing obligations After expiry or termination of the Agreement, or a
<br />License, sections 1.5, 2, 4, 6.5, 7, 8, 9, 10, 13, 14, 15, and 17 will still be binding
<br />on the Licensee in relation to Products licensed or obtained during the Term.
<br />7. INTELLECTUAL PROPERTY
<br />7.1 Ownership Unless otherwise indicated, the Website, the Products, the Content,
<br />and all associated Intellectual Property Rights, data, information, and software
<br />are owned by Nearmap and are protected by copyright, moral rights, trademark,
<br />and other laws relating to the protection of intellectual property. Nearmap reserves
<br />all of its Intellectual Property Rights. Except for the limited License granted to the
<br />Licensee in section 1.1, no ownership or Intellectual Property Rights in the
<br />Website, any Product, or Content will pass or be licensed to the Licensee.
<br />7.2 Trademarks The Nearmap trademarks and all associated Intellectual Property
<br />Rights are owned by Nearmap. Nothing in the Agreement confers upon the
<br />Licensee any rights to use or modify any of Nearmap’s trademarks, except that
<br />Nearmap grants the Licensee a royalty free, limited, non-exclusive, non-
<br />transferrable, non-sublicensable license to reproduce and display Nearmap
<br />trademarks only to the extent necessary to comply with the Licensee’s obligations
<br />under the Agreement. Any such reproduction and display of those marks must
<br />comply with the policies and rules Nearmap makes available to the Licensee from
<br />time to time.
<br />7.3 Derivative Works Subject to compliance with all other terms of this Agreement,
<br />the Licensee is granted a non-exclusive right to produce and use Derivative
<br />Works for a Permitted Purpose. Unless otherwise notified to the Licensee by
<br />Nearmap, the Licensee may continue using Derivative Works following
<br />termination or expiry of this Agreement. For the avoidance of doubt, Nearmap will
<br />continue to own all rights in and to any Products and Content embedded in a
<br />Derivative Work, but all other rights in and to the Derivative Work will belong to
<br />the Licensee.
<br />8. THIRD PARTY PROVIDERS
<br />8.1 Nearmap engages Third Party Providers in order to provide the Products and
<br />comply with its obligations under this Agreement and for the Licensee to receive
<br />the intended benefit of this Agreement. The Licensee agrees to comply with all
<br />requirements and restrictions that Third Party Providers may impose on the
<br />Licensee directly or indirectly by imposition on Nearmap, in relation to their
<br />respective products and/or services, at the time of, or subsequent to, the
<br />Agreement. The Licensee acknowledges that provision of the Products is subject
<br />to, and dependent upon, adequate delivery of products and services by the Third
<br />Party Providers. In accordance with section 9 of the Agreement, Nearmap’s
<br />liability is reduced to the extent that loss or damage of any kind is caused or
<br />contributed to, by Third Party Providers. For the Licensee’s convenience,
<br />Nearmap has set out in this section 8 links to the terms and conditions of these
<br />Third Party Providers with which the Licensee is required to comply. The Licensee
<br />further acknowledges that by entering into the Agreement, the Licensee is
<br />deemed to accept the respective terms and conditions of Third Party Providers,
<br />which currently include the Third Party Providers set out below. Third Party
<br />Providers and their terms of supply may change from time to time during the Term
<br />of the Agreement.
<br />(a)Google Nearmap engages Google to supply navigation and geo-location data,
<br />and related content. By entering into the Agreement, the Licensee agrees to the
<br />Google Terms of Service as they apply to the
<br />Licensee.
<br />https://www.google.com/enterprise/earthmaps/legal/us/maps_purchase_agreem
<br />ent_apac.html;
<br />(b)Amazon Web Services (AWS) Nearmap engages Amazon Web Service, Inc.
<br />to provide services (the “AWS Services”) which enables delivery of the
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