|
Nearmap US, Inc.
<br />REV: 01-24-2022 SK
<br />Products. By entering into the Agreement, the Licensee agrees to comply with
<br />the AWS Customer Agreement (http://aws.amazon.com/agreement/) as it
<br />applies to the Licensee. Use of the Products is also subject to the Licensee’s
<br />compliance with the following AWS policies:
<br />(i)Privacy Policy
<br />(http://aws.amazon.com/privacy/)
<br />(ii)Acceptable Use Policy
<br />(http://aws.amazon.com/aup/)
<br />(iii)Terms of Use
<br />(http://aws.amazon.com/terms/)
<br />(iv)Service Terms
<br />(http://aws.amazon.com/serviceterms/)
<br />(v)Trademark Guidelines
<br />(http://aws.amazon.com/trademark-guidelines/)
<br />(c)NASA/NCAS By entering into the Agreement, the Licensee agrees to the
<br />following NASA/NCAS terms and conditions: (https://www.nearmap.com/us/en/
<br />legal/copyright).
<br />9. WARRANTY AND LIABILITY
<br />9.1 Warranty Nearmap agrees to use industry standard GPS to ensure captured
<br />imagery has accurate geographical positioning.
<br />9.2 DISCLAIMER OF WARRANTIES OTHER THAN AS SET FORTH IN SECTION
<br />9.1, THE WEBSITE AND THE PRODUCTS ARE PROVIDED ON AN "AS IS"
<br />AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND,
<br />TO THE FULLEST EXTENT PERMITTED BY LAW. NEARMAP AND ITS
<br />CONTENT PROVIDERS, AGENTS, MANDATARIES, AND AFFILIATES
<br />EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES,
<br />CONDITIONS, AND GUARANTEES, WHETHER EXPRESS, STATUTORY OR
<br />IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
<br />REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES OF
<br />MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-
<br />INFRINGEMENT, AND COURSE OF DEALING OR PERFORMANCE.
<br />9.3 NO REPRESENTATIONS WHILE NEARMAP USES REASONABLE EFFORTS
<br />TO ENSURE THE ACCURACY, CORRECTNESS AND RELIABILITY OF THE
<br />CONTENT, THE PRODUCTS, AND THE WEBSITE, NEARMAP MAKES NO
<br />REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES AS
<br />TO THE ACCURACY, CORRECTNESS, OR RELIABILITY OF ANY PRODUCT
<br />OR CONTENT CONTAINED ON THE WEBSITE. THE PRODUCTS AND THE
<br />WEBSITE ARE SUBJECT TO ERRORS, OMISSIONS, INACCURACIES, AND
<br />DISTORTIONS, AND NEARMAP WILL NOT BE RESPONSIBLE FOR, OR
<br />LIABLE FOR ANY CLAIMS MADE BY OR ARISING OUT OF, ANY PERSON OR
<br />ENTITY SEEKING TO RELY ON ANY OF THE PRODUCTS OR THE WEBSITE.
<br />9.4 LIMIT OF LIABILITY NEARMAP’S LIABILITY FOR: (A) A BREACH OF A
<br />WARRANTY UNDER SECTION 9.1; OR (B) A BREACH OF A
<br />REPRESENTATION, WARRANTY, CONDITION, OR GUARANTEE WHICH IS
<br />IMPLIED OR IMPOSED IN RELATION TO THIS LICENSE UNDER
<br />LEGISLATION AND CANNOT BE EXCLUDED, WILL BE LIMITED TO, AT
<br />NEARMAP’S OPTION, REPLACING OR REPAIRING THE PRODUCTS OR
<br />SUPPLYING PRODUCTS EQUIVALENT TO THE RELEVANT PRODUCTS, OR
<br />PAYING THE COST OF REPLACING OR REPAIRING THEPRODUCTS.
<br />9.5 NO LIABILITY FOR CLAIMS TO THE EXTENT PERMITTED BY LAW, IN NO
<br />EVENT WILL NEARMAP, ITS CONTENT PROVIDERS, AGENTS,
<br />MANDATARIES, OR AFFILIATES BE LIABLE FOR ANY CLAIMS OF ANY KIND
<br />ARISING FROM OR CONNECTED WITH THE USE OF THE WEBSITE, THE
<br />CONTENT OR THE PRODUCTS, OR THE UNAVAILABILITY OF THE SAME,
<br />INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR
<br />LOSS OF DATA, AND DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND
<br />CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING
<br />BUT NOT LIMITED TO NEGLIGENCE), EXTRACONTRACTUAL LIABILITY, OR
<br />OTHERWISE. THE LICENSEE IS RESPONSIBLE FOR THE ENTIRE COST OF
<br />ALL SERVICING, REPAIR, OR CORRECTION REQUIRED DUE TO THE
<br />LICENSEE’S USE OF THIS WEBSITE, THE CONTENT OR THE PRODUCTS.
<br />THIS EXCLUSION APPLIES, WITHOUT LIMITATION, TO ANY CLAIMS
<br />CAUSED BY OR RESULTING FROM RELIANCE BY A USER ON ANY
<br />INFORMATION OBTAINED FROM NEARMAP.
<br />9.6 AGGREGATE LIMIT IN NO EVENT WILL THE AGGREGATE LIABILITY OF
<br />NEARMAP, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING
<br />NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED),
<br />EXTRACONTRACTUAL LIABILITY, PRODUCT LIABILITY, STRICT LIABILITY
<br />OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE
<br />PRODUCTS, THE CONTENT, OR THE WEBSITE EXCEED ANY
<br />COMPENSATION OR FEE THE LICENSEE HAS PAID, IF ANY, TO NEARMAP
<br />FOR ACCESS TO OR USE OF THE PRODUCTS OVER THE TWELVE (12)
<br />MONTH PERIOD PRIOR TO THE ALLEGED DEFAULT, BREACH, OR EVENT
<br />GIVING RISE TO THE LIABILITY.
<br />9.7 Third Party Providers The Licensee acknowledges that Nearmap relies on the
<br />services of Third Party Providers in order to supply the Products and related
<br />services. Without limiting any of the above, to the fullest extent permitted by
<br />applicable law, Nearmap will not be liable for any loss, damage, or cost of any
<br />kind, which is caused, or contributed to, by a third party serviceprovider.
<br />9.8 Indemnity To the extent permitted by law, the Licensee agrees to indemnify
<br />Nearmap and its directors, officers, employees, agents, mandataries, and
<br />subcontractors, from and against any and all direct or indirect claims, damages,
<br />losses, liabilities, expenses, and costs (including reasonable attorney’s fees and
<br />costs) arising from or out of:
<br />(a) the Licensee’s actual or alleged breach of any provisions of this Agreement;
<br />(b) the Licensee’s use of the Product for any purpose; and
<br />(c) the Licensee’s use of, or any third party’s use of, or inability to use, any Derivative
<br />Works, including without limitation, any output from the Derivative Works.
<br />9.9 Notice of claim Nearmap will provide the Licensee with notice of any claim or
<br />allegation, under section 9.8, and Nearmap has the right to participate in the
<br />defense of any such claim at its expense.
<br />10. COPYRIGHT COMPLAINTS
<br />10.1 Subject to section 9, if any third party brings a Claim against the Licensee alleging
<br />that the Licensee’s use of the Products, in accordance with this License, infringes
<br />their copyright (“Infringement Claim”), Nearmap will defend the Licensee against
<br />the Claim and pay any settlement to which Nearmap consents or final court-
<br />awarded damages for which the Licensee is liable.
<br />10.2 The Licensee must:
<br />(a) promptly notify Nearmap of any such Infringement Claim;
<br />(b) not make any admissions in relation to the Infringement Claim without Nearmap's
<br />prior written consent;
<br />(c) permit Nearmap to conduct the defense of the Infringement Claim including all
<br />negotiations for settlement; and
<br />(d) provide Nearmap with any assistance reasonably requested to allow Nearmap to
<br />defend the Infringement Claim.
<br />10.3 Nearmap will have no liability for any Infringement Claim:
<br />(a) that arises from any:
<br />(i) use of the Product in violation of this Agreement;
<br />(ii) modification of the Product by anyone other than Nearmap, or a party
<br />authorized by Nearmap, in writing to modify the portion of the Product
<br />applicable to the Infringement Claim; or
<br />(iii) third-party products, services, hardware, software, or other materials, or
<br />a combination of these with the Products, which would not be infringing
<br />without this combination; or
<br />(b) if the Licensee fails to comply with section 10.2.
<br />10.4 To the maximum extent permitted by law, this section 10 sets out Nearmap’s sole
<br />and exclusive liability, and the Licensee’s sole and exclusive remedy, for any third
<br />party Infringement Claims brought against the Licensee in relation to an
<br />infringement of Intellectual Property Rights.
<br />11. PRIVACY POLICY
<br />11.1 Nearmap will collect, use, and disclose any personal information supplied by the
<br />Licensee as set out in Nearmap’s Privacy Policy, as amended from time to time,
<br />and currently available at https://www.nearmap.com/us/en/legal/privacy-policy.
<br />The Licensee hereby consents to those collections, uses, and disclosures.
<br />11.2 To the maximum extent permitted by law, by entering into this Agreement, the
<br />Licensee expressly consents to receiving general emails relating to product
<br />updates, new products, or anything related to the usage of the product from
<br />Nearmap, but prior written consent is required to receive by email direct marketing
<br />communications from Nearmap.
<br />11.3 By entering into this Agreement, the Licensee acknowledges that personal
<br />information provided by the Licensee in the course of accessing Products
<br />(including, without limitation, credit or debit card details provided by the Licensee
<br />for the purpose of paying Nearmap) may be disclosed to and held by one or more
<br />of Nearmap’s third party suppliers and partners (including, without limitation,
<br />providers of payment processing services), and used by those third parties in
<br />connection with the supply of Products. Nearmap will have no liability whatsoever
<br />with respect to any personal information held by a third party in connection with
<br />the supply of Products.
<br />12. FORCE MAJEURE
<br />12.1 Force Majeure Event If a party is unable to perform or is delayed in performing
<br />an obligation under this Agreement (except for any obligation to pay money,
<br />including Fees) because of an act of war, terrorism, hurricane, earthquake,
<br />other act of God or of nature, strike or other labor dispute, riot or other act of
<br />civil disorder, embargo, or other cause beyond the performing party’s
<br />reasonable control (“Force Majeure Event”):
<br />(a) that obligation is suspended but only so far and for so long as that party is affected
<br />by the Force Majeure Event; and
<br />(b) the affected party will not be responsible for any loss or expense suffered or
<br />incurred by the other party, as a result of, and to the extent that, the affected party
<br />is unable to perform, or is delayed in performing, its obligations under this
<br />Agreement because of the Force Majeure Event.
<br />12.2 Notice of Force Majeure Event If a Force Majeure Event occurs, the party
<br />affected by the Force Majeure Event must:
<br />(a) Promptly (when reasonably possible to do so) give the other party notice of the
<br />Force Majeure Event and an estimate of the non-performance and delay;
<br />(b) take all reasonable steps to overcome the effects of the Force Majeure Event; and
<br />(c) resume compliance as soon as practicable after the Force Majeure Event no
<br />longer affects it.
<br />13. CONFIDENTIALITY
<br />13.1 The Licensee must not use any Confidential Information for any purpose not
<br />expressly permitted hereunder. The Licensee will disclose Confidential
<br />Information only to its employees who have a need to know, for purposes of this
<br />Agreement, and who are under a duty of confidentiality no less restrictive than the
<br />Licensee’s duty hereunder. The Licensee will protect Confidential Information
<br />from unauthorized use, access, or disclosure in the same manner as it would
<br />protect its own confidential or proprietary information of similar nature and with no
<br />less than reasonable care.
<br />14. NOTICES
<br />14.1 All notices and consents will be in writing and will be considered delivered and
<br />effective upon receipt (or when delivery is refused) when (a) personally delivered;
<br />(b) sent by registered or certified mail (postage prepaid, return receipt requested);
<br />(c) sent by nationally recognized private courier (with signature required and all
<br />ATTY/AGR.2021.096/NearMap (Aerial Imagery Services) (Page 8 of 12)
|