Interlocal Agreement with North Central Texas Council of Governments-CN 2021-06-080__
North Central Texas Council of Governments
INTERLOCAL AGREEMENT BETWEEN
THE NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS AND
CITY OF COPPELL
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 Coppell (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.
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.
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.
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.
Coverage Area: 15 square miles
Recurring Aerial Photography Amount
1 -yea r subscri ption
3 -year subscription
5 -year subscription $1500.00
Recurring Aerial Photography + Obliques Amount
1- ear subscription
3 -year subscription
5 -year subscription
Public Facing Option Amount
1- ear subscription
3 -year subscription
5 -year subscription $0.00
Nearmap Project Cost Annual
$1500.00
Total Subscription Cost
$7500.00
5/20/2021
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.
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. 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 Tarrant 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
5/20/2021
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 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
*' I � — �'2�. 5/20/2021
Mike Eastland Date
Executive Director
616 Six Flags Drive, Suite 200
Arlington, Texas 76011
City of Coppell
Signature D Date
Name: S
Title: MOAM d/,
Street Address: 25� PO�,1'1G�V�C(, ii lycf
City, State, Zip: 75ol 0)
5/20/2021
APPENDIX A
NORTH CENTRAL TEXAS COUNCIL OF GOVERNMENTS
5/20/2021
MAIN CONTACT
ADDITIONAL CONTACT
Name:
Shelley Broyles
Donna Coggeshall
Title:
GIS Project Coordinator
Research Manager
Department
Research and Information Services
Research and Information Services
Organization:
NCTCOG
NCTCOG
Street Address:
616 Six Flags Drive, Suite 200
616 Six Flags Drive, Suite 200
City, State, Zip
Arlington, Texas 76011
Arlington, Texas 76011
Phone/Fax:
(817) 695-9156
(817) 640-4428
(817) 695-9168
F(817) 640-4428
E-mail:
sbroyles@nctcog.org
dcoggeshall@nctcog.org
5/20/2021
nearmap ll "
APPENDIX B
PLEASE READ THIS PRODUCTS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT EITHER BY CLICKING A BOX INDICATING YOUR
ACCEPTANCE OR 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 NOTACCESS OR USE, YOU MUST NOT ACCEPT THIS PRODUCTS AGREEMENT AND
NOT USE ANY NEARMAP PRODUCTS AND SERVICES.
PRODUCTS AGREEMENT
Recitals
A. Nearmap is a provider of aerial photography 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 18 of the Agreement.
1. GRANT OF LICENSE TO USE PRODUCTS
1.1 Grant Subjectto 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).
1.2 Authorized Users The Products available underthis 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 Upon the expiration of the initial Term, this Agreement subject to any
amendments to this Agreement required by Nearmap, shall be renewed
automatically for successive renewal terms of twelve (12) months each (each a
"Renewal Term") unless terminated by either party by providing at least 30 days'
written notice of its intention not to renew this Agreement priorto the expiry of the
initial Term or any current Renewal Term.
1.4 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 try Nearmap, the Licensee must stop using
any previously supplied Product and use the replacement 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 rernove or cause to be removed any
Nearmap logo, watermark or other Nearmap attribution in any Product or
Derivative Vlbrks.
1.6 Periodic Allowance Nearmap measures data usage by the Licensee under this
License. In using the Products, the Licensee's consumption of data and/or area
during the Period is allowed to exceed the Periodic Allowance provided that the
Licensee agrees to upgrade to the level of actual usage during the Term for the
next Renewal Term. The following conditions apply to the Licensee's Periodic
Allowance:
(a) the Periodic Allowance used by the Licensee will be calculated at the end of every
Period based on the total data and/or area usage of all users who access and use
the Licensee's Nearrrwp account during that Period,
(b) if the Licensee elects to download and/or export Products available to the
Licensee on the Website, this will be applied to the Periodic Allowance. The
Licensee may have the option to elect to download high resolution images.
Downloading these images may use a higher portion of data of the Periodic
Allowance than downloading a lower resolution image;
(c) if the Licensee does not consume its Periodic Allowance in any given Period, the
balance will not be rolled overto a following Period;
(d) Nearmap will not charge the Licensee any additional fees if the Licensee's data
and/or area consumption during the Period exceeds the Periodic Allowance.
(e) Nearmap will provide notice to the Licensee if it exceeds the Periodic Allowance
for any Period.
1.7 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.
2. RESTRICTIONS ON RIGHT TO USE PRODUCTS
2.1 Permitted Purpose The Products must only be used for the Permitted Purpose.
2.2 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 ofthe Licensee's rights under
this License without Nearmap's prior written consent.
2.3 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 the Licensee's subsidiaries, affiliates and laver -level
governments).
2.4 Employees The Licensee may make Products available to any employee of the
Licensee, subjectto that person complying with the terms of the Agreement as if
they were a parry 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 mailable to the Licensee in breach of this
Nearnnap US, Inc.
Version: 1 Jul 2020
Agreement, including, without limitation, for arry additional fees that become
payable 9 the Licensee exceedsthe 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:
(a) machine learning models (including the model form and model parameters);
(b) outputs of machine learning models;
(c) software that processes ortransforms 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.
2.6 No caching and creation of database Except as expressly permitted underthis
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, sub -license or other commercial
purposes and mass downloads or bulk feeds of any imagery, and
(b) pre -fetch, retrieve, cache, index, or store any Content or portion of the Products.
2.7 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 thin/ parry platforms or software for the term of this
Agreement.
2.8 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 VVebsite or do anything
Mich might impair its functionality;
(d) use the Website in any way to send unsolicited email (commercial or otherwise)
or arry 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 or 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
underthe 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
(1) provide or allow access which exceeds the total number of Authorized Users in
connection with use of the Product.
2.9 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 available
to it at law.
3. THE LICENSEE'S ACCESS TO PRODUCTS AND SERVICES
3.1 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
password4D is being used by an unauthorized person, by a different Authorized
User to the person to whom it was issued orthe number of Authorized Users has
been exceeded, Nearmap may:
(a) cancel that password/ID;
(b) restrict the Licensee's access to the Product to low resolution imagery, or apply
any other restrictions on access that Nearmap determines in its absolute
discretion;
(c) immediately cease the Licensee's access to the Product;
(d) 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
(e) exercise any other right available to Nearmap under the terms of this Agreement
or at law.
3.2 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 ofthe Website. 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 ofthe Term unless renewed
in accordance with section 1.3 and may be suspended or terminated in
accordance with section 6.2 ifthe 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 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 ofthe 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 ofthe audit if additional Fees exceed five (5) per cent ofthe 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.
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 the Agreement.
4.4 Refund of Fees Ifthe 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 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, 'Taxed. Licensee is responsible for paying
all Taxes except those assessable against Nearmap based on its income.
4.6 Late Payment If a scheduled Fee payment is still overdue after thirty (30) 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.
4.7 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.
5. THE LICENSEE'S WARRANTIES
5.1 Warranty The Licensee warrants that:
(a) any information the Licensee supplies to Nearmap in respect ofthe 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 ofany 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 ofthe:
(i) License;
(i) Products; and
(iii) Website.
6. TERMINATION AND EXPIRY
6.1 Initial Term This Agreement commences on the Commencement Date and
continues until expiry ofthe 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
Nearmap US, Inc.
Version: 1 Jul 2020
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 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.
6.4 Consequences If the Agreement is terminated under sections 6.2 or 6.3 or
expires at the end ofthe 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.
6.6 Continuing obligations After expiry or termination of the Agreement or a
License, sections 1.5, 2, 4, 6.5, 7, Error! Reference source not found., 9, 10,
13, 14, 15, and 17 will still be 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, 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 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 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 a Permitted Purpose. Unless otherwise notified to the Licensee by
Nearmap, the Licensee may continue using Derivative Works following
termination or expiry ofthis 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 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 ofthe
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 Error! Reference source not
found. linkstothe terms and conditions ofthese Third Party Providerswith which
the Licensee is required to comply. The Licensee further acknowledges that by
entering into the Agreement, the Licensee is deemed to accept the respective
terms and conditions of Third Party Providers, which currently 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.
(a) 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.google.com/enterpriselearthmapsAegaVustmaps purchase agreem
ent apac.html
(b) 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 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 .conVpriyacy/)
(i) Acceptable Use Policy
(http://aws.amazon.com/aup/)
(iii) Terms of Use
(http:/laws. amazon.comfterms/)
(iv) Service Terms
(httD://aws,amazon.com/sery % cetermsh
(v) Trademark Guidelines
(http://aws.amazon.com/trademark-guidelines
(c) NASA/NCAS By entering into the Agreement, the Licensee agrees to the
following NASAMCAS terms and conditions:
(httpslfwww.nearmap.com/us/enAegal/copyright) )
9.1
9.2
9.3
9.4
9.5
9.6
9.7
9.8
9.9
10.
10.1
102
(a)
(b)
(c)
(d)
10.3
(a)
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 FORAPARTICULAR 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 ORARISING 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 THE PRODUCTS.
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),
EXTRACONTRACTUAL 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 THREE TIMES THE
AMOUNT OF 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 law, the
Notice of claim Nearmap will provide the Licensee with notice of any claim or
allegation under section 1.1, 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 notify 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 ofthe Product in violation ofthis 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
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Version: 1 Jul 2020
(b) ifthe 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:/Mww.nearmap.com/us/enAeaal/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. Nearmap will have no liability whatsoever
with respect to any personal information held by a third party 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, r, 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 ofthe 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 ft.
13. CONFIDENTIALITY
13.1 The Licensee must not use any Confidential Information for any purpose not
expressly permitted hereunder, unless permitted by law. The Licensee will
disclose Confidential Information only to its employees who have a need to know
for purposes ofthis 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.
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 oftransmission. 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
15.1 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. NEARMAP NOW
16.1 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 ("Survey'). The
Licensee must provide a detailed description ofthe 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.
16.2 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
ofthe date on which Nearmap receives payment ofthe Survey Fee in full from the
Licensee. Nearmap will notify the Licensee in writing once the Survey has been
uploaded to the Website.
16.3 Availability to other Nearmap customers Nearmap may, at its absolute
discretion, allow other customers of Nearmap to access the Survey on the
Website.
16.4 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.
16.5 Other Products This Section 16 will not be applicable to the Licensee if the
License has not purchased a Survey.
17. MISCELLANEOUS TERMS
17.1 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 our existing or potential
customers, subject to Licensee's standard trademark usage guidelines as
provided to us from time -to -time.
17.2 Additional Terms and Conditions The Additional Terms and Conditions form
part of, and should be read in conjunction with, this Agreement.
17.3 Precedence of Documents This Agreement is comprised of:
(a) the Additional Terms and Conditions;
(b) the Quote;
(c) any Product -Specific Terms; and
(d) this products agreement.
Ifthere is any ambiguity or inconsistency between the documents comprising the
Agreement, the document appearing higher in the list will have precedence.
17.4 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 ofthe other party.
17.5 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.
17.6 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
ofthis Agreement will constitute a waiver of any other breach ofthis Agreement.
17.7 Severability If one or more ofthe terms ofthe 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.
17.8 Amendments Other than as expressly specified in this Agreement, this
Agreement may only be varied with the written consent of Nearmap and the
Licensee.
17.9 Assignment This Agreement shall not be assigned by either party without the
prior written consent ofthe 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, (i) a purchaser of all or substantially all assets related to this
Agreement, or (iii) athird 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 ofthis 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.
17.10 Entire Agreement This Agreement:
(a) comprises the entire agreement and understanding between the parties on
everything connected with the subject matter ofthis Agreement; and
(b) supersedes any prior agreement or understanding on anything connected with
that subject matter.
17.11 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.
17.12 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 presentes ont expressement convenu que
ce accord et touts autre convention, document ou avis y afferent soient rediges
en anglais seulement.
17.13 Governing Law This Agreement will be governed by and construed in
accordance with the laws ofthe 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 ofthis definition, an
entity 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).
API means application programming interface.
Authorized User means the number of persons specified in the "Seats" section ofthe
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.
Auto Renew means the section of the Quote titled "Auto Renew".
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.
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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, sub -license or pass possession
of any Products (n whole or in part) for the purpose of direct commercial benefit or gain
by the Licensee.
Confidential Information means the terms ofthis 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, leamt 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 independently 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) ofthe 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.
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.
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).
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.
Operational Hours means 9am to 5pm PT.
Period means the period specified in the "Allowance" section of the Quote unless
otherwise agreed in writing between Nearmap and the Licensee.
Periodic Allowance means the data and/or area allowance specified in the "Allowance"
section of the Quote unless otherwise agreed in writing between Nearmap and the
Licensee.
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 located on our Website.
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 ofthis Agreement.
Subscription Period means the period stated in the "Subscription Period" column ofthe
Quote.
Subscription Start Date means the date specified in the "Subscription Start Date"
section ofthe 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 and
the 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 parry 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.