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Nearmap US, Inc.
<br />REV: 01-24-2022 SK
<br />fees prepaid); or (d) sent by email with confirmation of transmission. Notices must
<br />be sent to the Licensee at the address set forth in the Quote (or if none is
<br />specified, the address to which Nearmap sends invoices) and for Nearmap to
<br />10897 South River Front Parkway, Suite 150, South Jordan, UT 84095, USA, or
<br />at another address as a party may designate in writing.
<br />15. TECHNOLOGY EXPORT
<br />15.1 The Licensee shall not: (a) permit any third party to access or use the Product in
<br />violation of any U.S. or Canadian law or regulation; or (b) export any software
<br />provided by Nearmap, or otherwise remove it from the United States or Canada,
<br />except in compliance with all applicable U.S. and Canadian laws and regulations.
<br />Without limiting the generality of the foregoing, the Licensee shall not permit any
<br />third party to access or use the Product in, or export such software to, a country
<br />subject to a United States embargo (as of the Effective Date, Cuba, Iran, North
<br />Korea, Sudan, and Syria) or a Canadian embargo.
<br />16. NEARMAP NOW
<br />16.1 Survey During the Term, the Licensee may request a survey of an area which is
<br />not covered (in its entirety or in part) by the Coverage Area (“Survey”). The
<br />Licensee must provide a detailed description of the area that is to be covered by
<br />the Survey and which is to be included in the Survey Specification. Upon receipt
<br />of such a request in writing, Nearmap may, in its absolute discretion, agree to
<br />provide the Survey to the Licensee for a Survey Fee.
<br />16.2 Delivery of Survey Subject to sections 12 and 16.1, Nearmap will deliver the
<br />Survey to the Licensee by uploading the Survey to the Website within six (6)
<br />months of the date on which Nearmap receives payment of the Survey Fee in full
<br />from the Licensee. Nearmap will notify the Licensee in writing once the Survey
<br />has been uploaded to the Website.
<br />16.3 Availability to other Nearmap customers Nearmap may, at its absolute
<br />discretion, allow other customers of Nearmap to access the Survey on the
<br />Website.
<br />16.4 Refund of Survey Fee If the Licensee is not in breach of the Agreement, and
<br />Nearmap elects to terminate the Agreement under section 6.3 prior to delivery of
<br />the Survey, Nearmap will refund the Survey Fee to the Licensee.
<br />16.5 Other Products This Section 16 will not be applicable to the Licensee if the
<br />Licensee has not purchased a Survey.
<br />17. MISCELLANEOUS TERMS
<br />17.1 Nearmap customer Licensee grants Nearmap the right to use Licensee’s name
<br />and logo to identify as a Nearmap customer for marketing or promotional
<br />purposes in public or private communications with our existing or potential
<br />customers, subject to Licensee’s standard trademark usage guidelines as
<br />provided to us from time to time.
<br />17.2 Additional Terms and Conditions The Additional Terms and Conditions form
<br />part of, and should be read in conjunction with, this Agreement.
<br />17.3 Precedence of Documents This Agreement is comprised of:
<br />(a) the Additional Terms and Conditions;
<br />(b) the Quote;
<br />(c) any Product-Specific Terms; and
<br />(d) this products agreement.
<br />If there is any ambiguity or inconsistency between the documents comprising
<br />the Agreement, the document appearing higher in the list will have precedence.
<br />This Agreement between Nearmap and the Licensee supersedes all terms and
<br />conditions attached to the Licensee’s purchase order.
<br />17.4 Independent Contractors The parties are independent contractors and will so
<br />represent themselves in all regards. Neither party is the agent of the other, and
<br />neither may make commitments on the other’s behalf. The parties agree that
<br />neither party’s employee or contractor is an employee of the other party.
<br />17.5 Construction The parties agree that the terms of this Agreement result from
<br />negotiations between them. This Agreement will not be construed in favor of or
<br />against either party by reason for authorship.
<br />17.6 Waiver Neither party will be deemed to have waived any of its rights under this
<br />Agreement by lapse of time or by any statement or representation other than by
<br />an authorized representative in an explicit written waiver. No waiver of a breach
<br />of this Agreement will constitute a waiver of any other breach of this Agreement.
<br />17.7 Severability If one or more of the terms of the Agreement are found to be invalid,
<br />illegal or unenforceable in any respect, the validity, legality and enforceability of
<br />the remaining terms will not be affected.
<br />17.8 Amendments Other than as expressly specified in this Agreement, this
<br />Agreement may only be varied with the written consent of Nearmap and the
<br />Licensee.
<br />17.9 Assignment This Agreement shall not be assigned by either party without the
<br />prior written consent of the other party which shall not be unreasonably withheld;
<br />provided, however, that Nearmap may, upon written notice to the Licensee,
<br />assign all of its rights under this Agreement to (i) a parent, subsidiary or Affiliate
<br />of Nearmap, (ii) a purchaser of all or substantially all assets related to this
<br />Agreement, or (iii) a third party participating in a merger, acquisition, sale of assets
<br />or other corporate reorganization in which Nearmap is participating. Any attempt
<br />to assign this Agreement in violation of this provision shall be void and of no effect.
<br />This Agreement shall bind and inure to the benefit of the parties and their
<br />respective successors and permitted assigns.
<br />17.10 Entire Agreement This Agreement:
<br />(a) comprises the entire agreement and understanding between the parties on
<br />everything connected with the subject matter of this Agreement; and
<br />supersedes any prior agreement or understanding on anything connected with
<br />that subject matter.
<br />17.11 Counterparts This Agreement may consist of a number of counterparts and,
<br />if so, the counterparts taken together constitute one and the same instrument.
<br />This Agreement is not binding on any party unless one or more counterparts
<br />have been duly executed by, or on behalf of, Nearmap and the Licensee.
<br />17.12 Language The parties have expressly agreed that this Agreement, and all
<br />ancillary agreements, documents, or notices relating to the Agreement, be drafted
<br />solely in the English language. Les parties aux présentes ont expressément
<br />convenu que cet accord et toute autre convention, document ou avis y afférent
<br />soient rédigés en anglais seulement.
<br />17.13 Governing Law This Agreement will be governed by and construed in
<br />accordance with the laws of the State where the Licensee is carrying on business
<br />(without giving effect to the conflicts of laws provisions thereof).
<br />18. DEFINITIONS
<br />In this Agreement:
<br />Additional Terms and Conditions means the additional terms and conditions (if any)
<br />set out in the Quote.
<br />Affiliate means, with respect to Nearmap, any entity that controls or is controlled by
<br />Nearmap, or is under common control with Nearmap. For purposes of this definition,
<br />an entity shall be deemed to control another entity if it owns or controls, directly or
<br />indirectly, at least 50% of the voting equity of another entity (or other comparable
<br />interest for an entity other than a corporation).
<br />Allowance means any usage allowance the Licensee is permitted to use and/or
<br />drawn down against for any Licensed Non-Government Products as specified the
<br />Quote.
<br />API means application programming interface.
<br />Authorized User means the number of persons specified in the “Seats” section of
<br />the Quote, who have been granted access to the Product by the Licensee pursuant to
<br />the term and conditions of this Agreement, and who either has been assigned a
<br />unique Nearmap user login credential or whom the Licensee has assigned a user
<br />login credential that enables access to the Product.
<br />Business Days means any day other than a Saturday, a Sunday or a recognized public
<br />holiday in Utah, USA.
<br />Claim means any claim, cost (including legal costs on a solicitor and client basis),
<br />damages, debt, expense, tax, liability, loss, obligation, allegation, suit, action, demand,
<br />cause of action, proceeding, or judgment of any kind, however calculated or caused, and
<br />whether direct or indirect, consequential, incidental or economic.
<br />Commencement Date means (a) for New Subscription Quotes, the date as specified in
<br />the “Contract Commencement” section or the “Subscription Start Date” section of the
<br />Quote, whichever is later, or (b) for Renewal Quotes or Amendment Quotes, the date as
<br />specified in the “Subscription Start Date” section of the Quote.
<br />Commercial Purpose means to distribute, transfer, sell, sublicense, or pass
<br />possession of any Products (in whole or in part) for the purpose of direct commercial
<br />benefit or gain by the Licensee.
<br />Confidential Information means the terms of this Agreement, the pricing, and any other
<br />information relating to the business, finances, strategy, methods, processes, products,
<br />metadata, services or other affairs of Nearmap or its representatives or related bodies
<br />corporate which is disclosed to, learnt by or accessed by the Licensee in connection with
<br />the Agreement, whether before or after the Licensee entered into the Agreement,
<br />whether orally, electronically, in writing or otherwise, but excludes information which:
<br />(a) is or becomes part of the public domain otherwise than as a consequence of a
<br />breach of the Agreement;
<br />(b) the Licensee has obtained from a source other than Nearmap which source is
<br />entitled to disclose it; or
<br />(c) the Licensee has developed or acquired independently before the date of the
<br />Agreement, and can provide reasonable proof.
<br />Content means any content made available by or on behalf of Nearmap to the Licensee
<br />in connection with the License, whether or not through the Website or an API.
<br />Coverage Area means the area specified in the “Coverage” section of the Quote for
<br />which Nearmap has available Products, which may cover part or all of that area and
<br />which may cover part (but not all) of the area covered by the Survey.
<br />Derivative Work means any new work created by or for the Licensee that incorporates,
<br />embeds, or includes all or part of a Nearmap Product or Content.
<br />Fair Use Policy means the policy as attached to the Quote.
<br />Fault means any fault, failure, error, or defect which prevents the Licensee from
<br />accessing the Products, other than where access is prevented due to a planned
<br />outage, because of an unforeseeable event beyond Nearmap’s reasonable control or
<br />any conduct or activity undertaken by the Licensee, the Licensee’s employees, agents,
<br />or mandataries.
<br />Fees means the fees specified in the Quote, payable by the Licensee for the License,
<br />or as otherwise agreed in writing between Nearmap and the Licensee. Government
<br />Products means any Products specified in the Quote that are described as “Nearmap
<br />Vertical for Government” and “Nearmap Oblique for Government” and includes any other
<br />Products offered by Nearmap for government customers only where use of its License
<br />is connected to the Fair Use policy.
<br />Intellectual Property Rights includes all industrial and intellectual property rights
<br />throughout the world, including copyright, moral rights, trademarks, patents, rights to
<br />protect confidential information, and any other similar rights.
<br />Late Payment Fee means a fee, as notified by Nearmap to the Licensee,
<br />corresponding to the costs incurred by Nearmap (including, without limitation,
<br />administrative and other costs) in recovering any payment not made by the Licensee
<br />on the due or scheduled date for payment. Late fees incur interest at the rate of 1.5%
<br />per month (being 18% per year).
<br />License means the license granted in section 1.1.
<br />Licensee means the person or entity specified in the “Customer Name” section of
<br />the Quote.
<br />Nearmap means Nearmap US, Inc.
<br />Non-Government Products means all Products specified in the Quote that do not
<br />fall under the definition of Government Products.
<br />Operational Hours means 9am to 5pm PT.
<br />ATTY/AGR.2021.096/NearMap (Aerial Imagery Services) (Page 9 of 12)
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