2023/05/17 NearMap IT GIS Software Agreement/Quote Page 1 of 9
Nearmap US, Inc.
NEW SUBSCRIPTION QUOTE
Nearmap US, Inc.
10897 South River Front Parkway, Suite 150
South Jordan, UT 84095 USA
Phone: +1 (801) 609 7250
PRODUCT ALLOWANCE COVERAGE SEATS
Offline Textured Mesh NA
Please refer to the
attached Survey
Specification for details
NA
Subtotal $11,250.00
Estimated Tax $0.00
Total USD $11,250.00
Customer Name City of Menifee, CA Quote Number Q089791
Contract Commencement Contract commences upon
signing of quote.
Quote Expiry 07/31/2023
Subscription Term 12 Month Account Rep Jake Tully
jake.tully@nearmap.com
Subscription Start Date 05/17/2023 Payment Term Net 30
Payment Method Invoice
Bill To City of Menifee, CA
Accounts Payable
29844 Haun Road,
Menifee, California, 92586
(951) 672-6777
accountspayable@cityofmenifee.
us
Ship To City of Menifee, CA
Ramiro Ramos
29844 Haun Road,
Menifee, California, 92586
9517231714 direct
rramos@cityofmenifee.us
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Nearmap US, Inc.
ACCEPTANCE OF Q089791 will constitute an Agreement with Nearmap
By selecting “Yes” or signing below, you acknowledge that (a) you have read, understood and agree to the Products Agreement attached to this
Quote,(b) the Product-Specific Terms which can be found at https://www.nearmap.com/us/en/legal/product-agreements, (c) you have the authority to
agree to this New Subscription Quote and (d) you agree to pay the fees set forth herein. This New Subscription Quote constitutes a binding
commitment for the Contract Term stated above. You acknowledge that the Coverage Area by Nearmap is outlined at
https://www.nearmap.com/us/en/current-aerial-maps-coverage.
Signature / Digital Acceptance:\_1_QuoteAccepted Date:\d1\
Full Name:\tbx_1_Name\Position:\tbx_1_Position\
PO Number (if required):\_1_PON
If printed, please sign, scan and email to: orders.us@nearmap.com
N/A
City ManagerArmando G. Villa, City Manager
Attest:Approved as to Form:
Jeffrey T. Melching, City AttorneyStephanie Roseen, Interim City Clerk
__________________________________________________________
DocuSign Envelope ID: 2EEEAE7E-C81A-426B-88CC-D85AB0FE1BD8
June 22, 2023
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Nearmap US, Inc.
Schedule 1
Additional Terms and Conditions
DocuSign Envelope ID: 2EEEAE7E-C81A-426B-88CC-D85AB0FE1BD8
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Nearmap US, Inc.
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.
Recitals
PRODUCTS AGREEMENT
A.Nearmap is a provider of aerial imagery and location data 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 B.1717 of the Agreement.
1.GRANT OF LICENSE TO USE PRODUCTS
1.1 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 only for 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 Unless otherwise notified by the Licensee in writing at least thirty (30)
days prior to the expiry of the Term of its intention not to renew this Agreement
and subject to any amendments to this Agreement required by Nearmap, the
Term will automatically be renewed for successive renewal terms of twelve (12)
months each (each a “Renewal Term”).
1.4 Product Updates Nearmap may from time to time supply the Licensee with a
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 new 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, this 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
three (3) consecutive days, the Term will be extended by the period of such
unavailability.
2.RESTRICTIONS ON RIGHT TO USE PRODUCTS
2.1 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.
2.2 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 neighboring local government).
2.3 Employees Subject to sections 1.1 and 1.2, 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. These employees are
deemed to be Authorized Users. The Licensee is responsible and liable for all
Authorized Users who use the Licensee’s account access details or use
Products made available to the Licensee in breach of this Agreement, including,
without limitation, for any additional fees that become payable if the Licensee
exceeds the number of Authorized Users.
2.4 No machine learning The Licensee must not conduct machine learning work
in connection with this Agreement on any Products, which includes but is not
limited to running 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.
2.5 No caching and creation of database Except as expressly permitted under this
Agreement, the Licensee is not permitted to:
(a)use its access to the Products under this Agreement for the purposes of creating
a database of imageries for resale, distribution, sublicense, or other commercial
purposes, or for mass downloads or bulk feeds of any imagery; and
(b)pre-fetch, retrieve, cache, index, or store any Content or portion of the Products.
2.6 Restriction on integration methods The Licensee is only permitted to use API
integration methods, or other integration methods, as authorized by Nearmap in
writing, including but not limited to integration with the Licensee's or other third
party platforms or software.
2.7 Limits on use of Website In the Licensee’s use of the Website, the Licensee
must not (without the prior written consent of Nearmap):
(a)provide a link to another URL;
(b)upload content or other information to the Website (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 any 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
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
(l)provide or allow access to the Website which exceeds the total number of
Authorized Users in connection with use of the Product.
2.8 Breach If the Licensee breaches any of sections 2.1 to 2.7 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 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 who is not the person to whom it was issued, or the number of Authorized
Users has been exceeded, Nearmap may:
(a)cancel that user’s access;
(b)immediately cease the Licensee’s access to the Product;
(c)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
(d)exercise any other right available to Nearmap under the terms of this Agreement
or at law.
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Nearmap US, Inc.
3.2 Downtime Nearmap will use reasonable efforts to ensure that the Website and
APIs remain 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. The Licensee may elect to subscribe to the Nearmap status page at
https://status.nearmap.com/ to receive notifications and updates relating to
planned maintenance and uptime/downtime of the Website and APIs. 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 said 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 usual 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 5% of the
Fees paid during the audit period; and
(c)terminate this Agreement in accordance with section 6.1. 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 this Agreement.
4.4 Refund of Fees If the Licensee is not in breach of this Agreement, and Nearmap
elects to terminate this 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 immediately limit or terminate access to the Products provided
under this License.
4.7 Amendments Subject to section 1.3, Nearmap may, at its absolute discretion,
increase the price, for the Products at the end of the Term by an amount which
reflects up to the current rate of Inflation plus 2.5%.
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
(iii)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:
(a)the other party breaches any of its obligation under this Agreement capable of
remedy and fails to remedy that breach within fourteen (14) days after receiving
notice requiring it to do so;
(b)the other party breaches any of its obligations under this Agreement incapable of
remedy and Content; or
(c)the other party files for protection under bankruptcy laws, makes an assignment
for the benefit of creditors, appoints, or suffers appointment of a receiver or trustee
over its property, files a petition under any bankruptcy or insolvency act, or has
any such petition filed against it which is not discharged within sixty (60) days of
the filing thereof, or admits in writing its inability to pay its debt generally as they
become due.
6.3 Termination by Nearmap Notwithstanding anything else in this Agreement, but
subject to section 4.4, Nearmap has the right, in its absolute discretion and upon
giving the Licensee ten (10) Business Days’ notice, to terminate this Agreement.
6.4 Consequences If the Agreement is terminated under sections 6.2 or 6.3 or
expires at the end of the Term:
(a)the License immediately terminates and the Products will no longer be available
to the Licensee;
(b)the Licensee must immediately destroy, delete, or return to Nearmap all Products;
and
(c)subject to section 7.3, the Licensee and the Authorized Users are not permitted
to use any Products for any purpose.
6.5 Costs Nearmap reserves all 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.
6.6 Continuing obligations After expiry or termination of this Agreement, 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.
7.INTELLECTUAL PROPERTY
7.1 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, APIs, 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 this 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 this 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 the 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 The Licensee acknowledges and accepts that Nearmap engages with Third Party
Providers in order to provide the Products under this Agreement. The provision of
the Products is contingent upon adequate delivery of products and services by
those Third Party Providers and are subject to those Third Party Provider terms
and conditions (as updated from time to time). By entering into this Agreement, the
Licensee agrees that where applicable they must comply with those terms and
conditions which are applicable to the use of those Third Party Providers products,
where incorporated into Nearmap’s Products. Nearmap have set out the type of
Third Party product or services incorporated into Nearmap’s Products and the
relevant Third Party Providers terms and conditions below for reference.
(a)Google – https://maps.google.com/help/terms_maps.html in connection with the
use of Google Street Maps;
(b)NASA/NCAS – https://www.nearmap.com/au/en/legal/copyright in connection with
viewing satellite imagery on the Website; and
(c)Precisely – https://www.precisely.com/legal/licensing/software-and-data-end-user-
license-agreement in connection with viewing property datasets on the Website
and/or through an API.
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, THIRD PARTY PROVIDERS, AGENTS,
MANDATARIES, AND AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL
______________________________
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Nearmap US, Inc.
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 AND ITS
THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS, WARRANTIES,
CONDITIONS, OR GUARANTEES AS TO THE ACCURACY,
CORRECTNESS, OR RELIABILITY OF ANY PRODUCT OR CONTENT
CONTAINED ON THE WEBSITE AND/OR OBTAINED THROUGH AN API.
THE PRODUCTS, THE WEBSITE AND APIs MAY BE 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, THE WEBSITE OR APIS.
9.4 LIMIT OF LIABILITY NEARMAP’S LIABILITY FOR: (A) A BREACH OF A
WARRANTY UNDER SECTION 9.1; 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 THEPRODUCTS.
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 OR
APIS, 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, THE WEBSITE OR THE APIS, EXCEED ANY
COMPENSATION OR FEE THE LICENSEE HAS PAID, IF ANY, TO NEARMAP
FOR ACCESS TO OR USE OF THE PRODUCTS OVER THE TWELVE (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 except
to the extent it was caused or contributed by the acts, defaults or omissions of
Nearmap.
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.
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 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
(iii)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.
11.PRIVACY POLICY
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/privacy-policy.
The Licensee hereby consents to those collections, uses, and disclosures.
11.2 To the maximum extent permitted by law, by entering into this 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.
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 Subject to any other written agreements between the parties in connection with
this Agreement, any information provided in writing or orally or data provided by
either party under this Agreement (“Discloser”) to the other party (“Recipient”)
and marked or identified as proprietary or Confidential Information shall not be
disclosed for a period of three (3) years from termination or expiry of this
Agreement, unless mutually agreed in writing by the parties. The parties will
disclose Confidential Information only to their employees who have a need to
know for the purposes of this Agreement and who are under a duty of
confidentiality no less restrictive than the Licensee’s duty hereunder. The
Recipient will protect Confidential Information from unauthorized use, access, or
disclosure in the same manner as it would protect their own confidential or
proprietary information of similar nature and with no less than reasonable care.
13.2 The confidentiality obligations do not apply to the Recipient if:
(a)the Discloser has first agreed in writing to the particular disclosure, use, or
copying;
(b)the Confidential Information was generally known by or available to the public
through no wrongful act of the Recipient or otherwise than as a consequence of
a breach of this Agreement;
(c)the Confidential Information was received by the Recipient without breach of this
Agreement from a third party without restriction as to the use and disclosure of
the Confidential Information; or
(d)the disclosure of Confidential Information is legally compelled due to compliance
with federal and state laws or an order by a court.
13.3 Immediately upon termination or expiry of this Agreement, the Recipient must
(at its expense):
(a)cease all use of the materials and Confidential Information;
(b)destroy or return (at the Discloser’s discretion) the Confidential Information to
the Discloser together with all copies, reproductions and summaries of the
same;
(c)destroy all of its notes, memoranda and records (in whatever form) containing,
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referring to or based on the Confidential Information;
(d)ensure that any person who receives the Confidential Information by the
Recipient’s authority returns the Confidential Information to the Discloser in
any form in which it is held or destroys it and gives evidence of its destruction
to the Discloser; and
(e)provide to the Discloser a written certificate confirming compliance with the
requirements under this section.
14.NOTICES
14.1 All notices and consents will be in writing and will be considered delivered and
effective upon receipt (or when delivery is refused) when:
(a)personally delivered;
(b)sent by registered or certified mail (postage prepaid, return receipt requested);
(c)sent by nationally recognized private courier (with signature required and all
fees prepaid); or
(d)sent by email with confirmation of transmission.
14.2 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
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.MISCELLANEOUS TERMS
16.1 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 Nearmap’s existing or
potential customers, subject to Licensee’s standard trademark usage
guidelines as provided to Nearmap from time to time.
16.2 Additional Terms and Conditions The Additional Terms and Conditions form
part of, and should be read in conjunction with, this Agreement.
16.3 Precedence of Documents This Agreement is comprised of:
(a)the Additional Terms and Conditions under Schedule 1;
(b)the Quote and attached Schedules;
(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.
If the Licensee purchases the Products through a reseller, the terms and
conditions under this Agreement will apply. This Agreement between Nearmap
and the Licensee supersedes all terms and conditions attached to the
Licensee’s and/or reseller’s purchase order.
16.4 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.
16.5 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.
16.6 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.
16.7 Severability If one or more of the terms of this 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.
16.8 Amendments Other than as expressly specified in this Agreement, this
Agreement may only be varied with the written consent of Nearmap and the
Licensee.
16.9 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 (iii) a third party participating in a merger, acquisition, sale of
assets or other corporate reorganization in which Nearmap is participating. Any
attempt to assign this Agreement in violation of this provision shall be void and of
no effect. This Agreement shall bind and inure to the benefit of the parties and
their respective successors and permitted assigns.
16.10 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.
16.11 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.
16.12 Language The parties have expressly agreed that this Agreement, and all
ancillary agreements, documents, or notices relating to the Agreement, be drafted
solely in the English language. Les parties aux présentes ont expressément
convenu que cet accord et toute autre convention, document ou avis y afférent
soient rédigés en anglais seulement.
16.13 Governing Law This Agreement will be governed by and construed in
accordance with the laws of the State where the Licensee conducts business
(without giving effect to the conflicts of laws provisions thereof).
17.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 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 through the Website or API.
Business Days means any day other than a Saturday, a Sunday or a recognized public
holiday in the State of 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, sublicense, 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 a party 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.
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 Website 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.
Discloser has the meaning given in section 13.1.
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, 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.
Force Majeure Event has the meaning given in section 12.1.
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.
Infringement Claim has the same meaning given in section 10.1.
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.
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 MT.
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;
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(c)Integration, or attempt to integrate, the Products in an internal system of the
Licensee or of a third party; and
(d)Redistribution or copying of files, images, or 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.
Product-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 titled "New Subscription Quote", “Renewal Quote” or “Amendment Quote”.
Recipient has the meaning given in section 13.1.
Renewal Term has the meaning given in section 1.3.
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.
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.
URL means a Uniform Resource Locator.
Website means all pages and sub-sites available within the nearmap.com domain.
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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.
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