21-1203 - 7662 - Ordinance ExecutedORDINANCE NO. 21-1203
AN ORDINANCE OF THE CITY OF DENTON, A TEXAS HOME-RULE MUNICIPAL
CORPORATION, AUTHORIZING THE CITY MANAGER, OR THEIR DESIGNEE, TO
EXECUTE AN INTERLOCAL COOPERATIVE PURCHASING AGREEMENT WITH
NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS (NCTCOG) UNDER THE
GOVERNMENT CODE, CHAPTER 791.001, TO AUTHORIZE THE CITY OF DENTON TO
ADOPT A CONTRACT WITH NCTCOG FOR NEARMAP’S AERIAL SUBSCRIPTION
SERVICE; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND
DECLARING AN EFFECTIVE DATE (FILE 7662 – AWARD AN INTERLOCAL
COOPERATIVE PURCHASING AGREEMENT WITH NORTH CENTRAL TEXAS
COUNCIL OF GOVERNMENTS (NCTCOG), IN THE (5) YEAR NOT-TO-EXCEED
AMOUNT OF $49,000.00).
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager, or their designee, is hereby authorized to execute the
Interlocal Cooperative Purchasing Agreement with North Central Texas Council of Governments
(NCTCOG) under Section 791.001 of the Texas Government Code, a copy of which is attached
hereto and incorporated by reference herein (the “Agreement”).
SECTION 2. The City Manager, or their designee, is authorized to expend funds
pursuant to the Agreement for the purchase of various goods and services.
SECTION 3. The City Council of the City of Denton hereby expressly delegates the
authority to take any actions that may be required or permitted to be performed by the City of
Denton under this ordinance to the City Manager of the City of Denton, or their designee.
SECTION 4. This ordinance shall become effective immediately upon its passage and
approval.
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following vote [L - I..J:
Aye Nay Abstain Absent
Mayor Gerard Hudspeth:
Vicki Byrd, District 1 :
Brian Beck. District 2:
Jesse Davis. District 3 :
Alison Maguire, District 4:
Deb Armintor, At Large Place 5 :
Paul Meltzer, At Large Place 6:
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PASSED AND APPROVED this thea'~d day of /-,) oNE ' 2021.
dtRTR$IPETH, MAYOR
ATTEST:
ROSA RIOS, CITY SECRETARY
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APPROVED AS TO LEGAL FORM:
CATHERINE CLIFTON, INTERIM CITY ATTORNEY
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R y • email=Marcella.Lunn@cityofdenton.com
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DocuSign Envelope ID: BDD5DE9F-EB2E-41E6-A5C6-IE94B6989DEF
DENTON
Docusign City Council Transmittal Coversheet
IA 1 7662
File Name I NCTCOG I LA
Pu,ch„i,gC,.t„t I C''1 p'"'‘
City Council Target Date JUNE 22’ 2021
Piggy Back Option
Contract Expiration
Ordinance
for NearMap
Not App11cab1 e
JUNE 22 , 2026
21-1203
DocuSign Envelope ID: BDD5DE9F-EB2E41 E6-A5C6-IE94B6989DEF
a
North Central Texas Council of Governments
INTERLOCAL AGREEMENT BETWEEN THE NORTH CENTRAL TEXAS COUNCIL OF
GOVERNMENTS AND
CITY OF DENTON
WHEREAS, the North Central Texas Council of Governments (NCTCOG) is a voluntary
association of, by and for local governments and has an interest in providing information to its
members to support planning, engineering, public safety, and municipal management activities;
and
WHEREAS, the City of Denton (Entity), wishes to have its map-based information system
include the Nearmap’s recurring and/or oblique imagery and has determined that the acquisition
of this resource provides information for a multitude of uses throughout the Entity and thus serves
a valid public purpose; and,
WHEREAS, the Entity requires this information to accomplish this purpose and has
determined that NCTCOG can provide this information; and,
WHEREAS, this Agreement is authorized by Chapter 791 of the Texas Government Code;
and,
WHEREAS, NCTCOG and Entity are local governments as that term is defined in Section
791.003(4) of the Texas Government Code; and,
WHEREAS, Section 791.025 of the Texas Government Code authorizes local
governments to agree with another local government to purchase goods and services; and,
WHEREAS, a local government that purchases goods and services under Section
791.025 of the Texas Government Code satisfies the requirement of the local government to seek
competitive bids for the purchase of goods and services; and,
WHEREAS, NCTCOG and Entity, acting by and through their respective governing bodies,
adopt the foregoing premises as findings of said governing bodies.
NOW, THEREFORE, the parties, Entity and NCTCOG, agree to the following terms and
conditions regarding the purchase of Nearmap's recurring and/or oblique imagery
I. LICENSE AGREEMENT
The personnel specified in Appendix A will serve as points of contact for their respective
organizations. NCTCOG has contracted with Nearmap to provide their product at negotiated not
to-exceed rates to the North Texas region.
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Nearmap retains all ownership of intellectual property rights in its aerial and oblique imagery and
data. Entity is purchasing a data license through NCTCOG and pursuant to the subscription terms
set out in in Appendix B. Notwithstanding Section 2.3 of Appendix B, Entity is permitted to grant
access to the Content under the License to its contractor(s) for the purpose of performing work
for Entity, provided that the contractor(s) enter into an agreement which requires them to (a) use
the Content only to the extent necessary to perform work for the Entity, and (b) immediately delete
and destroy the Content in their control or possession at the completion of such work. Entity
understands and agrees that it is responsible for compliance with Appendix B and its failure may
result in NCTCOG disabling or revoking its data license(s) hereunder.
II. OBLIGATIONS
NCTCOG agrees to provide the Product(s) listed below for Entity’s use consistent with the terms
herein. Upon delivery of the Product(s), NCTCOG shall invoice Entity in the amount(s) provided
and Entity agrees to pay NCTCOG within thirty (30) days of receipt of invoice.
City of Denton coverage area: 98 square miles
Recurring Aerial Photography
1-year subscription
Amount
3-year subscription
5-year subscription
e
1-year subscription
Amount
3-year subscription
e
Public Facing Option
1-year subscription
$8750.00
Amount
3-year subscription
5-year subscription
Nearmap Project Cost (Annual)
Included
$8,750.00
Total Project Cost $43,750.00
You have agreed to the payment terms listed above and have secured the total amount with
purchase order (PO) number ( please enter PO number and send
PO document with returned agreement). Subscription amounts will be invoiced annually.
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III. TERMINATION
Provisions for terminating Nearmap’s aerial and/or oblique imagery subscription can be found in
Appendix B. Section 6. In the event Entity terminates this Agreement early for any reason, all
funds paid to NCTCOG by Entity are non-refundable, except and unless Nearmap is in breach
under the Products Agreement attached under Appendix B. In the event payment obligations for
Entity’s subscription exceed the amounts paid at the time of early termination, Entity shall be
responsible for payment of all such amounts to NCTCOG subject to the non-appropriation clause
contained herein.
IV. MISCELLANEOUS
Entirety of Agreement The terms and provisions of this Agreement constitute the entire agreement
of the undersigned parties and in the event of a conflict between this Agreement and any
attachment thereto, the terms of this Agreement shall prevail.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws
of the state of Texas and venue shall lie exclusively in Denton County, Texas. In performing its
obligations hereunder, each party shall operate and perform in accordance with all applicable state
and federal laws
Severability. In the event that one or more provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability of the Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein, and shall not affect the remaining provision of this
Agreement, which shall remain in force and effect.
Assignment. No party to this Agreement may assign or otherwise transfer any of its interest in this
Agreement without the express written consent of the other party.
Immunity. It is expressly understood and agreed that in the execution of this Agreement, that the
parties, either individually or jointly, do not waive, nor shall they be deemed to waive, any immunity
or defense that would otherwise be available to each against claims arising in the exercise of its
powers or functions.
Non-appropriation of Funds. Each party paying for the performance of governmental functions in
this Agreement must make those payments from current revenues available to the paying party. In
the event no funds or insufficient funds are appropriated by the Entity in any fiscal period for any
payments due hereunder, Entity will notify NCTCOG of such occurrence and this Agreement shall
terminate on the last day of the fiscal period for which appropriations were received without penalty
or expense to the Entity of any kind whatsoever, except as to the portions of the payments herein
agreed upon for which funds shall have been appropriated.
Force Majeure. The Entity and NCTCOG shall exercise their best efforts to meet their respective
duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or
omission in performance due to force majeure or other causes beyond their reasonable control.
(force majeure), including, but not limited to, compliance with any government law, ordinance or
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regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars,
riots, material or labor restrictions by any governmental authority, transportation problems and/or
any other similar causes.
Certification. The undersigned are properly authorized to execute this Agreement on behalf of the
parties. and each party certifies to the other that any necessary resolutions extending such
authority have been fully passed and are now in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated
below
NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS
DocuSigned by:
AURaltAb/
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Executive Director
616 Six Flags Drive, Suite 200
Arlington, Texas 76011
5/27/2021
Date
CITY OF DENTON
C1 ty Secretary
DocuSlgned by:
SMA }W9&aM 6/23/2021
Date
'DocuSigned by:
DocuSlgned by:
Sara HensleyName:
TItIe: SARA HENSLEY, INTERIM CITY MANAGER Chief Technology Offlcer
Street Address. 215 E MCKinney st
City, State, Zip- Denton’ TX 76201
APPROVED AS TO LEGAL FORM:
CATHERINE CLiFroN, INTERIM CITY A1–rORNEY
DocuSign Envelope ID: BDD5DE9F-EB2E41E6-A5C6-IE94B6989DEF
APPENDIX A
NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS
MAIN CONTACT 1 ADDITIONAL CONTACT
Name:
Title:
Department
Organization:
Street Address:
City, State, Zip
Phone/Fax:
E-mail:
Shelley Broyles
GIS Project Coordinator
Research and Information Services
Donna Coggeshall
Research Manager
Research and Information Services
NCTCOG NCTCOG
616 Six Flags Drive, Suite 200
Arlington, Texas 76011
(817) 695-9156 ( 817 ) 640-4428
sbroyles@nctcog . org
616 Six Flags Drive, Suite 200
Arlington, Texas 76011
(817) 695-9168 1 (817) 640-4428
dcoggeshall@nctcog.org
DocuSign Envelope ID BDD5DE9F-EB2E4 1 E6-A5C6- 1 E94B6989DEF
li
nearmap#3\ Appendix B
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 photography and associated products and services
B. Intentionally Deleted
Definitions of capitalized words are set out in section 18 of the Agreement.
1.
1.1
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").
Authorized Users Intentionally Deleted.
Renewal Intentionally Deleted..
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.
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 W>rks
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
Data Use for Government Products Nearmap measures data usage by the
Licensee under this License for Government Products. WIen using Government
Products, Nearmap’s Fair Use Policy regulates the Licensee's consumption of
data during the Term (or Renewal Term). The following oonditions also apply to
the Licensee's use of Government Products
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
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
Allowance for NonGovernment 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.
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.
RESTRICTIONS ON RIGHT TO USE PRODUCTS
Permitted Purpose The Products must only be used for the Permitted Purpose.
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.
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 Oered governments and any neighbouring local government).
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.
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
machine learning models (including the model form and model parameters)
outputs of machine learning models
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
software used to train a machine learning model or compute outputs of a machine
learning model for a given set of input data
No caching and creation of database Except as expressly permitted under this
Agreement, the Licensee is not permitted to
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
pre-fetch, retrieve, cache, index, or store any Content or portion of the Products.
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
Limits on use of Website in the Licensee’s use of the Website. the Licensee
must not (without the prior written consent of Nearmap):
provide a link to another URL:
upload content or other information to the Website (except as necessary to use
the Products)
do anything to damage, interfere or disrupt access to the Website or do anything
which might impair its functionality
use the Website in any way to send unsolicited email (commercial or otherwise)
or any other material for marketing or publicity purposes;
publish, post, distribute, disseminate or otherwise transmit. defamatory, offensive
infringing, obscene, indecent or other unlawful or objectionable or confidential
material or information
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:
remove any content or information from the Website, other than that permittedunder the terms of this License:
falsify the true ownership of a Product or other material or information madeavailable via the Website
obtain or attempt to obtain unauthorized access, through whatever means, to theWebsite:
use the Website other than in accordance with this Agreement;
attempt any of the above acts or engage, encourage or permit another person to
do any of the above acts; or
provide or allow access which exceeds the total number of Authorized Users in
connection with use of the Product
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 availableto it at law
THE LICENSEE’S ACCESS TO PRODUCTS AND SERVICES
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
cancel that password/ID;
restrict the Licensee’s access to the Product to low resolution imagery, or apply
any other restrictions on access that Nearmap determines in its absolutediscretion
immediately cease the Licensee's access to the Product;
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 unauthorizeduse; and/or
(a)
(b)
(C)
(d)
2.6
(a)
(b)2.7
1.2
1.3
1.4
1.5
1.6
2.8
(a)
(b)
(C)
(d)
(e)
(a)
(b)
1.7
(r)
1.8
2.
2.1
2.2
(g)
(h)
(i)
a)
(k)
(1)
2.9
2.3
2.4
3.
3.1
Nearmap US, Inc.(a)
(b)
(C)
(d)
Page 5 of 9
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(e)
3.2
exercise any other right available to Nearmap under the terms of this Agreementor at law
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:
allocate such resources as may be necessary to remedy the Fault; and
otherwise take all reasonable steps to remedy the Fault so as to minimize any
disruption to the Licensee’s use of the Products,
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.
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.
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
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
FEES
Fees The Fees payable by the Licensee are set out in the Quote.
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.
No cancellation Subject to section 4.4, all Fees are non-cancellable and non-
refundable except as expressly set out in the Agreement.
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 thedate of termination .
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.
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.
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,
THE LICENSEE’S WARRANTIES
Warranty The Licensee warrants that:
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;
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;
the Licensee has the power to enter into this Agreement and to perform the
obligations under it; and
the Licensee has and will comply with all relevant laws relating to the Licensee’suse of the
(i) License;
(ii) Products; and
(iii) Website.TERMINATION AND EXPIRY
Initial Term This Agreement commences on the Commencement Date and
continues until expiry of the Term unless terminated eadier in accordance with the
terms of this Agreement or renewed under section 1.3.
6.2
(a)
(b)
(C)
Termination by Either Party Either party may terminate this Agreement with
immediate effect by giving notice to the other party if:
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 availabte
to the Licensee;
The Licensee must immediately destroy, delete or return to Nearmap all Products;
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
at 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.
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 fromtime to time
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 tothe Licensee
THIRD PARTY PROVIDERS
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, subject to all limitations and without
waiving any rights, privileges, or immunity provided by the laws of the state of
Texas, that by entering into the Agreement, the Licensee is deemed to accept the
respective terms and conditions of Third Party Providers, which currentiy 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,qaoqle.com/enterprise/earthmaps/kqal/us/maps purchase aqreem
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
and
subject to section 7.3, the Licensee and the Authorized Users are not permitted
(a)
(b)
3.3
3.4 6.3
6.4
(a)
(b)
(C)
6.5
3.5
3.6
6.6
7.
7.1
4.
4.1
4.2
4.3
4.4
7.2
4.5
7.3
4.6
4.7
5.
5.1
(a)
8.
8.1
(b)
(C)
(d)
(a)
6.
6.1
(b)
Nearmap US, Inc
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applies to the Licensee. Use of the Products is also subject to the Licensee’s
compliance with the following AWS policies:
(i) Privacy Policy
(http://aws.amazon.com/privacy/)
(ii) Acceptable Use Policy
{http://aws.amazon.com/aup/)
(iii) Terms of Use
(http://aws.amazon.com/termsO
(iv) Service Terms
(http://aws.amazon.com/serviceterms/)
(v) Trademark Guidelines
(http://aws.amazon.com/trademark-quidelinesf)
NASA/NCAS By enterIng into the Agreement, the Licensee agrees to the
following NASA/NCAS terms and conditions
(https://www.nearmap.com/us/en/legal/copyright).
WARRANTY AND LIABILITY
Warranty Nearmap agrees to use industry standard GPS to ensure captured
imagery has accurate geographical positioning
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.
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.
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
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.
AGGREGATE LIMIT IN NO EVENT WILL THE AGGREGATE LIABILITY OF
NEARMAP. WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING
NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED),
EXTRA(,ONTRACTUAL 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.
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
Indemnity To the extent permitted by the laws of the State of Texas and without
waiving any applicable immunity the Licensee agrees to indemnify Nearmap and
its directors, officers1 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
the Licensee’s actual or alleged breach of any provisions of this Agreement;
the Licensee’s use of the Product for any purpose; and
(C)
9.9
the Licensee's use of, or any third party's use of, or inabiIIty to use, any Derivative
Works, including without limitation, any output from the Derivative Works
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,COPYRIGHT COMPLAINTS
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
The Licensee must
promptly noUfy Nearmap of any such Infringement Claim;
not make any admissions in relation to the Infringement Claim without Nearmap's
prior written consent
permit Nearmap to conduct the defense of the Infringement Claim including all
negotiations for settlement; and
provide Nearmap with any assistance reasonably requested to allow Nearmap to
defend the Infringement Claim
Nearmap will have no liability for any Infringement Claim:
that arises from any
(i) use of the Product in violation of this Agreement;
(ii) modification at 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
if the Licensee fails to comply with section 10.2
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
10
10.1
(C)
10.2
(a)
(b)
(C)9.
9.1
9.2
(d)
10.3
(a)
(b)
10.49.3
11.
11.1 Nearmap will collectr use and disclose any personal information supplied by the
Licensee as set out in Neannap’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.
To the maximum extent permitted by law, by entering into this Agreement, the
Licensee expressly consents to receiving general emails relating to product
updates1 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,
By entering into this Agreement, the Licensee acknowledges that personal
information provided by the Licensee in the course of accessing Products
(inc]udingp 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.
FORCE MAJEURE
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”)
that obligation is suspended but only so far and for so long as that party is affected
by the Force Majeure Event; and
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
Notice of Force Majeure Event if a Force Majeure Event occurs, the partY
affected by the Force Majeure Event must:
(Intentionally deleted)
take all reasonable steps to overcome the effects of the Force Majeure Event; and
resume compliance as soon as practicable after the Force Majeure Event no
longer affects itCONFIDENTIALITY
Subject to the laws of the State of Texas, 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,
9.4
11.2
11.3
9.5
12
12.1
(a)
(b)
9.6
12.2
(a)
(b)
(C)
13
13.19,7
9.8
(a)
(b)
Nearmap US, Inc
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14.
14.1
NOTICES
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 naHonally recognized private courier (with signature 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.
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 Canadianembargo.
NEARMAP NOW
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 (“SUIvey-). 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.
Delivery of Survey Subject to sections 12 and 16.1, Nearmap will deliver the
Survey to the Licensee by uploading the Survey to the Website 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.
Availability to other Nearmap customers Nearmap may, at its absolute
discretion, allow other customers of Nearmap to access the Survey on the
Website
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.
Other Products This Section 16 will not be applicable to the Licensee if the
License has not purchased a Survey.
MISCELLANEOUS TERMS
Intentionally Deleted.Additional Terms and Conditions The Additional Terms and Conditions form
part of, and should be read in conjunction with, this Agreement.
(a) Intentionally Deleted.
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 otherparty.
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.
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.
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.
Amendments Other than as expressly specified in this Agreement, this
Agreement may only be varied with the written consent of Nearmap and theLicensee.
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.
Entire Agreement This Agreement:
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
17.10 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 oounterparts have been
duly executed by, or on behalf of, Nearmap and the Licensee
17.11 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 pr6sentes cnt express6ment convenu que
ce accord et toute autre convention, document ou avis y aff6rent soient r6dig6s
en anglais seulement.
17.12 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
enUty 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. sukblicense 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, subject to the laws of the state of Texas, 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 independenHy 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 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 SUIvey
Derivative Work means any new work created by or for the Licensee that incorporates,
embeds or includes all or part of a Nearmap Product orContent.
Fair Use Policy means the policy attached under Schedule 2 to this Products Agreement
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)
15.
15.1
16.
16.1
16.2
16.3
16.4
16.5
17
17.1
17.2
17.3
17.4
17.5
17.6
17.7
17.8
17.9
(a)
Nearmap US, Inc,
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License means the license granted in section 1.1
Licensee means the person or entity specified in the -Customer Name- secUon of the
Quote.
Nearmap means Nearmap US, Inc.
NonGovernment 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.
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
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 andthe 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
Nearmap US. Inc
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Schedule 1 to Appendix 2
Additional Terms and Conditions
1. The below Terms and Conditions shall take precedence over the Products Agreement and shall incorporate all amendments
2. The Licensee's usage of the ArcGIS Integration will be counted towards the Licensee's total Periodic Data Allowance. Please ensure that you have su#icient Periodic
Data Allowance to meet your requirements with ArcGIS Integration to avoid restrictions being placed with your subscription
Recital B of this Products Agreement is deleted in its entirety and replaced with the following:
'B. Nearmap agrees to supply the Licensee with the Products described in the Quote. subject to the terms of this Products Agreement and any Schedules and terms
attached thereto or referenced therein, the Quote, and the InteHocal Agreement, which together constitute the legal agreement between the Licensee and Nearmap (the
-Agreement”).-
Section 1.2 of this Products Agreement is deleted in its entirety and replaced with the following
“The Products available under this License are only to be used by Authorized Users in accordance with the Agreement.”
Section 1.3 is deleted in its entirety and replaced with
-This Agreement will not automatically renew for another Term. The parties may renew the Agreement for successive periods of twelve (12) month each subject to a
mutual written agreement between both parties,
Section 8.1 of this Products Agreement is amended to insert after the words -The Licensee further acknowledges,” and before the words "that be entering into the
Agreement, ” the words:
“subject to all limitations and without waiving any rights, privileges, or immunity provided by the laws of the state of Texas that do not conflict with the terms of this
Agreement”
3.
4.
5.
6.
7
8.
9.
10.
Section 13.1 of this Products Agreement is amended to insert at the beginning of the section the words
“Subject to the laws of the State of Texas
Section 12.2 (a) of this Products Agreement is deleted in its entirety and replaced with the following
-Promptly (when reasonably possible to do so) give the other party written notice of the Force Majeure Event within no later than five (5) Business Days, and an estimate
of the non-performance and delay
Section 17.1 of this Products Agreement is deleted in its entirety and replaced with the following:
“Subject to prior written consent of the Licensee and compliance with the Licensee's standard trademark usage guidelines as provided from time to time, Nearmap is
granted 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.”
Section 17.3 of this Products Agreement is deleted in its entirety and replaced with the following
’Precedence of Documents This Agreement is comprised of
(a) the Schedules to this Products Agreement;
(b) the Interlocal Agreement;
(c) the Quote; 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
The definition of “Confidential Information- under section 18 is amended to insert the following after the words -Confidential Information means” and before the words
“the terms of this Agreement” the words:
11
12.
“subject to the laws of the state of Texas,-
The definition of Fair Use Policy” under section 18 is deleted in its entirety and replaced with the following
-Fair Use Policy means the policy attached under Schedule 2 to this Products Agreement.”
Nearmap US, Inc
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Schedule 2 to Appendix 2
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 clause 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 clause 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, it is unreasonable use of the Products and Services where Your use 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, 'Yraudulent 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 exercise any other right available to Nearmap under the terms of Your Nearmap Agreement
Nearmap US. Inc
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