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HomeMy WebLinkAboutContract 52864 C' ',�C r� ma COzNTRACT N®�Y5a� V P C\� F ��OAnn rfFED THIS PRODUCTS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT EITHER BY CLICKING A BOX INDICATING YOUR C\ EPTANCE 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 NOT ACCESS 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 and the Schedules,which together make up the legal agreement between the Licensee and Nearmap(Agreement). Definitions of capitalized words are set out in section 18 of the Agreement. 1. GRANT OF LICENSE TO USE PRODUCTS 2.4 Employees The Licensee may make Products available to any employee,subject 1.1 Grant Subject to the terms of this Agreement and payment by the Licensee of the to that person complying with the terms of the Agreement as if they were a party Fee,Nearmap grants to the Licensee a limited,non-exclusive,non-transferrable to it and the total number of Authorized Users has not been exceeded. The license for the Term to use the Products in the Coverage Area for the Permitted Licensee is responsible and liable for any Authorized User who uses the Purpose(License). Licensee's account access details or uses Products made available to the 1.2 Authorized Users The Products available under this License are only to be used Licensee in breach of this Agreement, including, without limitation, for any by the total number of Authorized Users. The Licensee shall implement additional fees that become payable if the Licensee exceeds the number of reasonable controls to ensure that it does not exceed the number of Authorized Authorized Users, Users. If you exceed the total number of Authorized Users,you will be in breach 2.5 No machine learning The Licensee must not conduct machine learning work of this Agreement. which includes but is not limited to any: 1.3 Renewal Upon the expiration of the initial Term,this Agreement subject to any (a) machine learning models(including the model form and model parameters); amendments to this Agreement required by Nearmap, shall be renewed (b) outputs of machine learning models; automatically for successive renewal terms of twelve(12)months each(each a (c) software that processes or transforms input data for training a machine learning Renewal Term)unless terminated by either party by providing at least 30 days' model or getting a prediction from a machine learning model into a format suitable written notice of its intention not to renew this Agreement prior to the expiry of the for training or making such prediction;or initial Term or any current Renewal Term. The Licensee will receive notice of any (d) software used to train a machine learning model or compute outputs of a machine pricing changes or changes to the terms of this Agreement prior to the learning model for a given set of input data. commencement of each Renewal Term. If Auto Renew is marked"No"in the 2.6 No caching and creation of database Except as expressly permitted under this Quote,this section 1.3 is not applicable to the Licensee. Agreement,the Licensee is not permitted to: 1.4 Replacement Product Nearmap may from time to time supply the Licensee with (a) use its access to the Products under this Agreement for the purposes of creating a replacement Product of no lesser quality than the previously supplied Product a database of imageries for resale,distribution,sub-license or other commercial at its absolute discretion.If requested by Nearmap,the Licensee must stop using purposes and mass downloads or bulk feeds of any imagery;and any previously supplied Product and use the replacement Product from date of (b) pre-fetch,retrieve,cache,index,or store any Content or portion of the Products. delivery from Nearmap. 2.7 Limits on use of Website In the Licensee's use of the Website,the Licensee 1.5 Acknowledge Nearmap source The Licensee must expressly acknowledge must not(without the prior written consent of Nearmap): Nearmap,in a reasonably prominent manner(by display of the Nearmap logo or (a) provide a link to another URL; other appropriate attribution),as the source of any Product or Derivative Works (b) upload content or other information to the Website; that the Licensee use,copy,modify or distribute.Unless otherwise permitted in (c) do anything to damage,interfere or disrupt access to the Website or do anything writing,the Licensee must not remove or cause to be removed any Nearmap logo, which might impair its functionality; watermark or other Nearmap attribution in any Product or Derivative Works. (d) use the Website in any way to send unsolicited(commercial or otherwise)e-mail 1.6 Periodic Data Allowance Nearmap measures data usage by the Licensee under or any material for marketing or publicity purposes,or any similar abuse of either; this License. In using the Products,the Licensee's consumption of data in the (e) publish,post,distribute,disseminate or otherwise transmit,defamatory,offensive, Period must not exceed the Periodic Data Allowance.The following conditions infringing, obscene, indecent or other unlawful or objectionable or confidential apply to the Licensee's Periodic Data Allowance: material or information; (a) the Periodic Data Allowance used by the Licensee will be calculated at the end of (f) make available, upload or distribute by any means any material or files that every Period based on the total data usage of all users who access and use the contain any viruses, bugs, corrupt data, "trojan horses', "worms"or any other Licensee's Nearmap account during that Period; harmful software; (b) if the Licensee elects to download Products available to the Licensee on the (g) remove any content or information from the Website,other than that permitted Website,this will be applied to the Periodic Data Allowance.The Licensee may under the terms of this License; have the option to elect to download high resolution images.Downloading these (h) falsify the true ownership of a Product or other material or information made images will use a higher portion of the Periodic Data Allowance than downloading available via the Website; a lower resolution image; (i) obtain or attempt to obtain unauthorized access,through whatever means,to the (c) if the amount of data consumed by the Licensee in any given Period is less than Website; the Periodic Data Allowance,the balance will not be rolled over to a following (1) use the Website other than in accordance with the Agreement; Period; (k) attempt any of the above acts or engage,encourage or permit another person to (d) the Licensee agrees that Nearmap may charge the Licensee additional fees,up do any of the above acts;or to a maximum of the Excess Data Rate, for any use by the Licensee of the (1) provide or allow access which exceeds the total number of Authorized Users in Products resulting in data consumption in excess of the Periodic Data Allowance; connection with use of the Product. (e) Nearmap will provide notice to the Licensee if it exceeds its Periodic Data 2.8 Breach If the Licensee breaches any of sections 2.1 to 2.5 inclusive,Nearmap Allowance for any Period;and reserves its rights to terminate the Agreement in accordance with section 6.2, (f) if the Licensee exceeds the Periodic Data Allowance, Nearmap may, in its restrict the Licensee's access to the Products and/or take any other steps absolute discretion,elect to: available to it at law. (i) restrict the Licensee's access to the Products until the Periodic Data 3. THE LICENSEE'S ACCESS TO PRODUCTS AND SERVICES Allowance is reset or until additional fees are paid;or 3.1 Any password/ID issued by Nearmap to an Authorized User is personal and (ii) immediately cease the Licensee's access to the Products for the remainder confidential to that Authorized User. If Nearmap suspects that any password/ID of the Period. is being used by an unauthorized user, by a different Authorized User to the 1.7 Unavailability Subject to section 12,if a Product is not available for a period of 3 person whom it was issued to or the number of Authorized Users has been consecutive days the Term will be extended by the period of unavailability. exceeded,Nearmap may: 2. RESTRICTIONS ON RIGHT TO USE PRODUCTS (a) cancel that password/ID; 2.1 Permitted Purpose The Products must only be used for the Permitted Purpose. (b) restrict the Licensee's access to the Product including but not limited to low 2.2 No right to distribute,transfer, resell,assign or sublicense This License is resolution imagery for the remainder of the month; granted only to the Licensee.The Licensee must not distribute,transfer,resell, (c) immediately cease the Licensee's access to the Product; assign,rent,lease or sublicense any Product or any of the Licensee's rights under (d) require the Licensee to pay for any additional charges in accordance with this License without Nearmap's prior written consent. Nearmap's then current price list for the applicable Product,in respect of any such 2.3 No third party access Unless otherwise provided in this Agreement, the unauthorized use;and/or Licensee must not make any Product available in any medium or manner to any (e) exercise any other right available to P eaFM5p uhZI!Nr ine t81'RI3'0TRt ement. third party(including the Licensee's subsidiaries and affiliates). OFFICIAL RECORD!� G r1 1 Nearmap US,Inc. CITY SECRETARY Version:29 May 2018 ` FT WORTH,TX 3.2 Downtime Nearmap will use reasonable efforts to ensure that the Website the filing thereof or admits in writing its inability to pay its debt generally as they remains available but cannot guarantee that this will be the case at all times. become due. Nearmap agrees that,wherever possible,all planned maintenance will be done 6.3 Termination by Nearmap Regardless of anything else in the Agreement but out of normal Operational Hours to ensure optimal uptime of the Website.When subject to section 4.4,Nearmap has the right,in its absolute discretion and upon Nearmap becomes aware of any Fault,Nearmap will use reasonable efforts to: giving the Licensee 10 Business Days'notice,to terminate the Agreement and (a) allocate such resources as may be necessary to remedy the Fault;and the License. (b) otherwise take all reasonable steps to remedy the Fault so as to minimize any 6.4 Consequences If the Agreement is terminated under sections 6.2 or 6.3 or disruption to the Licensee's use of the Products. expires at the end of the Term: 3.3 Expiry The Licensee's License will expire at the end of the Term unless renewed (a) the License immediately terminates and the Products will no longer be available in accordance with section 1.3 and may be suspended or terminated in to the Licensee; accordance with section 6.2 if the Licensee is in breach of this Agreement. (b) The Licensee must immediately destroy,delete or return to Nearmap all Products; 3.4 Unauthorized Use Licensee shall take reasonable steps to prevent unauthorized and access to the License,including without limitation protect its passwords and other (c) subject to section 7.3,the Licensee and the Authorized Users are not permitted log-in information.The Licensee shall notify Nearmap immediately of any known to use any Products for any purpose. or suspected unauthorized use of the License or breach of its security and shall 6.5 Costs Nearmap reserves all rights following termination of this Agreement, use best efforts to stop said breach. including any rights available to Nearmap to collect any outstanding Fees which 3.5 Audit During the Term of this Agreement and for two(2)years after termination may be owed by the Licensee.The Licensee will be liable for any reasonable legal or expiry of this Agreement,the Licensee shall maintain accurate and complete costs incurred by Nearmap in enforcing its rights following termination of this records regarding its use of the Products and the Licensee shall permit Nearmap Agreement. (or its auditors)access to the business location(s),books and records,employees 6.6 Continuing obligations After expiry or termination of the Agreement or a and/or contractors pertaining to the Licensee's use of the Products.Nearmap will License,sections 1.5,2,7,8,9, 10, 13,14,15,and 17 will still be binding on the give at least thirty(30)days prior written notice of an audit and will not conduct an Licensee in relation to Products licensed or obtained during the Term. audit more than once per calendar year unless non-compliance findings are noted 7. INTELLECTUAL PROPERTY and in which case the audit period can be expanded. 7.1 Ownership Unless otherwise indicated, the Website, the Products and all 3.6 Audit Findings If an audit results in findings of non-compliance,Nearmap may, associated Intellectual Property Rights,data,information and software are owned at its discretion(a)invoice any additional license fees due based on the standard by Nearmap and are protected by copyright,moral rights,trademark and other Nearmap Fees in place at the time of the original license grant,(b)recover the laws relating to the protection of intellectual property.Nearmap reserves all of its reasonable cost of the audit if additional Fees exceed five(5)per cent of the Fees Intellectual Property Rights.Except for the limited License granted to the Licensee paid during the audit period and(c)terminate this Agreement in accordance with in section 1.1,no ownership or Intellectual Property Rights in the Website or any section 6.2.Licensee must pay all invoices issued under this section within thirty Product will pass to the Licensee. (30)days following the date of invoice. 7.2 Trademarks The Nearmap trademarks and all associated Intellectual Property 4. FEES Rights are owned by Nearmap. Nothing in the Agreement confers upon the 4.1 Fees The Fees payable by the Licensee are set out in the Quote. Licensee any rights to use or modify any of Nearmap's trademarks,except that 4.2 Payment The Fees are payable by the Licensee to Nearmap in the manner and Nearmap grants the Licensee a royalty free, limited non-exclusive, non- by the due date as set out in the Quote at the beginning of each Term unless transferrable,non-sublicensable license to use Nearmap trademarks to the extent otherwise agreed by Nearmap. necessary to comply with the Licensee's obligations under the Agreement. 4.3 No cancellation Subject to section 4.4,all Fees are non-cancellable and non- 7.3 Derivative Works Subject to compliance with all other terms of this Agreement, refundable except as expressly set out in the Agreement. the Licensee is granted a non-exclusive right to produce and use Derivative 4.4 Refund of Fees If the Licensee is not in breach of the Agreement,and Nearmap Works for a Permitted Purpose. Unless otherwise notified to the Licensee by elects to terminate the Agreement under section 6.3, Nearmap will refund the Nearmap, the Licensee may continue using Derivative Works following Licensee any pre-paid fees relating to the portion of Term remaining as at the termination or expiry of this Agreement.The Licensee and Nearmap will jointly date of termination. own all rights in and to any Product embedded in a Derivative Work. 4.5 Taxes Unless otherwise stated,Fees and Late Payment Fee do not include any 8. THIRD PARTY PROVIDERS direct or indirect local, state,federal or foreign taxes, levies, duties or similar 8.1 Nearmap engages Third Party Providers in order to provide the Products.The governmental assessments of any nature,including value-added,excise,use or Licensee agrees to comply with all requirements and restrictions that Third Party withholding taxes(collectively, "Taxes"). Licensee is responsible for paying all Providers may impose on Licensee directly or indirectly by imposition on Taxes except those assessable against Nearmap based on its income.Nearmap Nearmap,in relation to their respective products and/or services,at the time of, will invoice Licensee for such Taxes if Nearmap believes it has a legal obligation or subsequent to,the Agreement.The Licensee acknowledges that provision of to do so and Licensee agrees to pay such Taxes if so invoiced. the Products is subject to,and dependent upon,adequate delivery of products 4.6 Late Payment If a scheduled Fee payment is not made in full for any reason,the and services by the Third Party Providers. In accordance with section 9 of the Licensee gives Nearmap permission to charge a Late Payment Fee and/or Agreement, Nearmap's liability is reduced to the extent that loss or damage of immediately limit or terminate access to the Products provided under this License. any kind is caused or contributed to,by Third Party Providers.For the Licensee's 4.7 Acceleration In the event of the Licensee failing to pay Nearmap the Fees in full convenience, Nearmap has set out in this section 8 links to the terms and in accordance with the terms of this Agreement,all Fees(whether accrued or not) conditions of these Third Party Providers with which the Licensee is required to will become immediately due and payable. comply.The Licensee further acknowledges that by entering into the Agreement, 4.8 Amendments Fees at the end of the Term may only be increased subject to the Licensee agrees to comply with the respective terms and conditions of Third Nearmap and the Licensee agreeing in writing. Party Providers,which currently include the Third Party Providers set out below. 5. THE LICENSEE'S WARRANTIES Third Party Providers and their terms of supply may change from time to time 5.1 Warranty The Licensee warrants that: during the Term of the Agreement. (a) any information the Licensee supplies to Nearmap in respect of the Agreement is (a) Google Nearmap engages Google to supply navigation and geo-location data, complete and correct.The Licensee must keep Nearmap informed of any change and related content.By entering into the Agreement,the Licensee agrees to the to the Licensee's information provided to Nearmap,including any change to the Google Terms of Service as they apply to the Licensee. Licensee's contact details,or the details of a credit card used for payment; https://www.google.com/enterprise/earthmaps/legal/us/maps purchase agreem (b) the Licensee will immediately notify Nearmap of any usage of any Product outside ant apac.html the Permitted Purpose,and provide any other information reasonably requested (b) Amazon Web Services(AWS)Nearmap engages Amazon Web Service,Inc.to by Nearmap; provide services(AWS Services)which enables delivery of the Products. By (c) the Licensee has the power to enter into this Agreement and to perform the entering into the Agreement, the Licensee agrees to comply with the AWS obligations under it;and Customer Agreement(http://aws.amazon.com/agreement/)as it applies to the (d) the Licensee has and will comply with all relevant laws relating to the Licensee's Licensee.Use of the Products is also subject to the Licensee's compliance with use of the: the following AWS policies: (i) License; (i) Privacy Policy (ii) Products;and (http://aws.amazon.com/i)rivacv/) (iii) Website. (ii) Acceptable Use Policy 6. TERMINATION AND EXPIRY (http://aws.amazon.com/aup/) 6.1 Initial Term This Agreement commences on the Commencement Date and (iii) Terms of Use continues until expiry of the Term unless terminated earlier in accordance with the (http://aws.amazon.com/terms/) terms of this Agreement or renewed under section 1.3. (iv) Service Terms 6.2 Termination by Either Party Either party may terminate this Agreement with (http://aws.amazon.com/servicetermsl) immediate effect by giving notice to the other party if: (v) Trademark Use Guideline (a) the other party breaches any of its obligation under this Agreement capable of (http://aws.amazon.com/trademark-guidelines/); remedy and fails to remedy that breach within fourteen(14)days after receiving (c) NASA/NCAS By entering into the Agreement, the Licensee agrees to the notice requiring it to do so; following NASA/NCAS terms and conditions: (https://www.nearmap.com/legal- (b) the other party breaches any of its obligations under this Agreement incapable of information/copyright) remedy;or 9. WARRANTY AND LIABILITY (c) the other party files for protection under bankruptcy laws,makes an assignment 9.1 Warranty Nearmap agrees to use industry standard GPS to ensure captured for the benefit of creditors,appoints or suffers appointment of a receiver ortrustee imagery has accurate geographical positioning. over its property,files a petition under any bankruptcy or insolvency act or has 9.2 DISCLAIMER OF WARRANTIES OTHER THAN AS SET FORTH IN SECTION any such petition filed against it which is not discharged within sixty(60)days of 9.1,THE WEBSITE AND THE PRODUCTS ARE PROVIDED ON AN"AS IS" AND"AS AVAILABLE"BASIS,WITHOUT ANY WARRANTIES OF ANY KIND TO 2 Nearmap U5,Inc. Version:29 May 2018 THE FULLEST EXTENT PERMITTED BY LAW.NEARMAP AND ITS CONTENT party Infringement Claims brought against the Licensee in relation to an PROVIDERS,AGENTS AND AFFILIATES EXPRESSLY DISCLAIM ANY AND infringement of Intellectual Property Rights. ALL WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED, 11. PRIVACY POLICY INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF 11.1 Nearmap will use any data supplied by the Licensee as set out in Nearmap's MERCHANTABILITY,TITLE,FITNESS FOR A PARTICULAR PURPOSE,NON- Privacy Policy,available at htti)://go.nearmap.com/legal/privacy-policy. INFRINGEMENT,AND COURSE OF DEALING OR PERFORMANCE. 11.2 By entering into this Agreement,the Licensee expressly consents to receiving by 9.3 NO REPRESENTATIONS WHILE NEARMAP USES REASONABLE EFFORTS email direct marketing communications from Nearmap. TO ENSURE THE ACCURACY, CORRECTNESS AND RELIABILITY OF THE 11.3 By entering into this Agreement, the Licensee acknowledges that personal PRODUCTS AND THE WEBSITE, NEARMAP MAKES NO information provided by the Licensee in the course of accessing Products REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, (including,without limitation,credit or debit card details provided by the Licensee CORRECTNESS OR RELIABILITY OF ANY PRODUCT OR CONTENT for the purpose of paying Nearmap)may be disclosed to and held by one or more CONTAINED ON THE WEBSITE.THE PRODUCTS AND THE WEBSITE ARE of Nearmap's third party suppliers and partners (including, without limitation, SUBJECT TO ERRORS, OMISSIONS, INACCURACIES AND DISTORTIONS providers of payment processing services), and used by those third parties in AND NEARMAP WILL NOT BE RESPONSIBLE FOR, OR LIABLE FOR ANY connection with the supply of Products.Nearmap will have no liability whatsoever CLAIMS MADE BY OR ARISING OUT OF,ANY PERSON OR ENTITY SEEKING with to an respect TO RELY ON ANY OF THE PRODUCTS OR THE WEBSITE. P personal information held by a third party in connection with the supply of Products. cts. 9.4 LIMIT OF LIABILITY NEARMAP'S LIABILITY FOR: (A) A BREACH OF A 12. FORCE MAJEURE WARRANTY UNDER SECTION 9.1; OR (B) A BREACH OF A WARRANTY 12.1 Force Majeure Event If a party is unable to perform or is delayed in performing WHICH IS IMPLIED OR IMPOSED IN RELATION TO THIS LICENSE UNDER an obligation under this Agreement (except for any obligation to pay money, LEGISLATION AND CANNOT BE EXCLUDED, WILL BE LIMITED TO, AT including Fees)because of an acts of war,terrorism, hurricanes,earthquakes, NEARMAP'S OPTION, REPLACING OR REPAIRING THE PRODUCTS OR other acts of God or of nature,strikes or other labor disputes,riots or other acts SUPPLYING PRODUCTS EQUIVALENT TO THE RELEVANT PRODUCTS,OR of civil disorder, embargoes, or other causes beyond the performing party's PAYING THE COST OF REPLACING OR REPAIRING THE PRODUCTS. reasonable control(Force Majeure Event): 9.5 NO LIABILITY FOR CLAIMS TO THE EXTENT PERMITTED BY LAW,IN NO (a) that obligation is suspended but only so far and for so long as that party is affected EVENT WILL NEARMAP, ITS CONTENT PROVIDERS, AGENTS OR by the Force Majeure Event;and AFFILIATES BE LIABLE FOR ANY CLAIMS OF ANY KIND ARISING FROM OR (b) the affected party will not be responsible for any loss or expense suffered or CONNECTED WITH THE USE OF THE WEBSITE OR THE PRODUCTS, OR incurred by the other party as a result of,and to the extent that,the affected party THE UNAVAILABILITY OF THE SAME, INCLUDING BUT NOT LIMITED TO is unable to perform or is delayed in performing its obligations under this LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, AND DIRECT, Agreement because of the Force Majeure Event. INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, 12.2 Notice of Force Majeure Event If a Force Majeure Event occurs, the party WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO affected by the Force Majeure Event must: NEGLIGENCE) OR OTHERWISE. THE LICENSEE IS RESPONSIBLE FOR (a) promptly give the other party notice of the Force Majeure Event and an estimate THE ENTIRE COST OF ALL SERVICING, REPAIR OR CORRECTION of the non-performance and delay; REQUIRED DUE TO THE LICENSEE'S USE OF THIS WEBSITE OR THE (b) take all reasonable steps to overcome the effects of the Force Majeure Event; PRODUCTS. THIS EXCLUSION APPLIES, WITHOUT LIMITATION, TO ANY and CLAIMS CAUSED BY OR RESULTING FROM RELIANCE BY A USER ON ANY (c) resume compliance as soon as practicable after the Force Majeure Event no INFORMATION OBTAINED FROM NEARMAP. longer affects it. 9.6 AGGREGATE LIMIT IN NO EVENT WILL THE AGGREGATE LIABILITY OF 13. CONFIDENTIALITY NEARMAP, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT 13.1 The Product includes metadata and other confidential and proprietary information LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR of Nearmap (Confidential Information). The Licensee must not use any RELATING TO THE USE OF THE PRODUCTS EXCEED ANY COMPENSATION Confidential Information for any purpose not expressly permitted hereunder and OR FEE THE LICENSEE HAS PAID,IF ANY,TO NEARMAP FOR ACCESS TO will disclose Confidential Information only to its employees who have a need to OR USE OF THE PRODUCTS OVER THE 12 MONTH PERIOD PRIOR TO THE know for purposes of this Agreement and who are under a duty of confidentiality ALLEGED DEFAULT,BREACH OR EVENT GIVING RISE TO THE LIABILITY. no less restrictive than the Licensee's duty hereunder.The Licensee will protect 9.7 Third Party Providers The Licensee acknowledges that Nearmap relies on the Confidential Information from unauthorized user, access, or disclosure in the services of Third Party Providers in order to supply the products and services. same manner as it would protect its own confidential or proprietary information of Without limiting any of the above,for the avoidance of doubt,to the fullest extent similar nature and with no less than reasonable care. permitted by applicable law,Nearmap will not be liable for any loss,damage,or 14. NOTICES cost of any kind, which is caused, or contributed to, by a third party service 14.1 All notices and consents will be in writing and will be considered delivered and provider. effective upon receipt(or when delivery is refused)when(a)personally delivered; 9.8 Indemnity The Licensee agrees to indemnify Nearmap and its directors,officer, (b)sent by registered or certified mail(postage prepaid,return receipt requested); employees, agents and subcontractors,from and against any and all direct or (c)sent by nationally recognized private courier(with signature required and all indirect claims, damages, losses, liabilities, expenses and costs (including fees prepaid);or(d)sent by email with confirmation of transmission.Notices must reasonable attorney's fees and costs)arising from or out of: be sent to the Licensee at the address set forth in the Quote (or if none is (a) the Licensee's actual or alleged breach of any provisions of this Agreement; specified, the address to which Nearmap sends invoices)and for Nearmap to (b) the Licensee's use of the Product for any purpose;and 10897 South River Front Parkway,Suite 150 South Jordan,UT 84095,USA,or (c) the Licensee's use of,or any third party's use of,or inability to use,any Derivative at another address as a party may designate in writing. Works,including without limitation,any output from the Derivative Works. 15. TECHNOLOGY EXPORT 9.9 Nearmap will provide the Licensee with notice of any such claim orallegation,and 15.1 The Licensee shall not:(a)permit any third party to access or use the Product in Nearmap has the right to participate in the defense of any such claim at its violation of any U.S. law or regulation;or(b)export any software provided by expense. Nearmap or otherwise remove it from the United States except in compliance with 10. COPYRIGHT COMPLAINTS all applicable U.S. laws and regulations. Without limiting the generality of the 10.1 Subjectto section 9,if any third party brings a Claim against the Licensee alleging foregoing, the Licensee shall not permit any third party to access or use the that the Licensee's use of the Products in accordance with this License infringes Product in, or export such software to, a country subject to a United State their copyright("Infringement Claim"),Nearmap will defend the Licensee against embargo(as of the Effective Date,Cuba,Iran,North Korea,Sudan,and Syria). the Claim and pay any settlement to which Nearmap consents or final court- 16. NEARMAP NOW awarded damages for which the Licensee is liable. 16.1 Survey During the Term,the Licensee may request a survey of an area which is 10.2 The Licensee must: not covered (in its entirety or in part) by the Coverage Area (Survey). The (a) promptly notify Nearmap of any such Infringement Claim; Licensee must provide a detailed description of the area that is to be covered by (b) not make any admissions in relation to the Infringement Claim without Nearmap's the Survey and which is to be included in the Survey Specification.Upon receipt prior written consent; of such a request in writing, Nearmap may,in its absolute discretion,agree to (c) permit Nearmap to conduct the defense of the Infringement Claim including all provide the Survey to the Licensee. negotiations for settlement;and 16.2 Delivery of Survey Subject to sections 12 and 16.1, Nearmap will deliver the (d) provide Nearmap with any assistance reasonably requested to allow Nearmap to Survey to the Licensee by uploading the Survey to the Website within 6 months defend the Infringement Claim. of the date on which Nearmap receives payment of the Survey Fee in full from the 10.3 Nearmap will have no liability for any Infringement Claim: Licensee.Nearmap will notify the Licensee in writing once the Survey has been (a) that arises from any: uploaded to the Website. (i) use of the Product in violation of this Agreement; 16.3 Availability to other Nearmap customers Nearmap may, at its absolute (ii) modification of the Product by anyone other than Nearmap or a party discretion, allow other customers of Nearmap to access the Survey on the authorized by Nearmap in writing by Nearmap to modify the portion of the Website. Product applicable to the Infringement Claim;or 16.4 Refund of Survey Fee If the Licensee is not in breach of the Agreement and (iii) third-party products,services,hardware,software or other materials,or a Nearmap elects to terminate the Agreement under section 6.3 prior to delivery of combination of these with the Products would not be infringing without this the Survey,Nearmap will refund the Survey Fee to the Licensee. combination;or 16.5 Nearmap Basic This Section 16 will not be applicable to the Licensee if the (b) if the Licensee fails to comply with section 10.2. License purchased is for a Nearmap Basic Product. 10.4 To the maximum extent permitted by law,this section 10 sets out Nearmap's sole 17. MISCELLANEOUS TERMS and exclusive liability,and the Licensee's sole and exclusive remedy,for any third 17.1 Nearmap customer The Licensee agrees that Nearmap may identify the Licensee as a Nearmap customer in Nearmap business materials. 3 Nearmap US,Inc. Version:29 May 2018 17.2 Additional Terms and Conditions The Additional Terms and Conditions form Commercial Purpose means to distribute,transfer,sell,sub-license or pass possession part of,and should be read in conjunction with,this Agreement. of any Products(in whole or in part)for the purpose of direct commercial benefit or gain 17.3 Precedence of Documents This Agreement is comprised of: by the Licensee. (a) the Quote; Content means any content made available to the Licensee in connection with the (b) the Additional Terms and Conditions;and License. (c) this agreement. Coverage Area means the area specified in the"Coverage'section of the Quote for If there is any ambiguity or inconsistency between the documents comprising the which Nearmap has available Products, which may cover part or all of that area and Agreement,the document appearing higher in the list will have precedence. which may cover part(but not all)of the area covered by the Survey. 17.4 Independent Contractors The parties are independent contractors and will so Derivative Work means any new work created by or for the Licensee that includes or represent themselves in all regards.Neither party is the agent of the other,and embeds all or part of a Nearmap Product. neither may make commitments on the other's behalf.The parties agree that no Excess Data Rate means the rate of additional fees that the Licensee pays per Nearmap employee or contractor will be an employee of the Licensee. megabyte for its use of the Products beyond the Period Data Allowance,being: 17.5 Construction The parties agree that the terms of this Agreement result from (a) if the Licensee pays its Fees on a monthly basis,the Fees per month divided by negotiations between them.This Agreement will not be construed in favor of or the Periodic Data Allowance;or against either party by reason for authorship. (b) if the Licensee pays its Fees on a yearly basis,the Fees per year divided by 12 17.6 Waiver Neither party will be deemed to have waived any of its rights under this divided by the Periodic Data Allowance. Agreement by lapse of time or by any statement or representation other than by Fault means any fault, failure, error or defect which prevents the Licensee from an authorized representative in an explicit written waiver.No waiver of a breach accessing the Products,other than where access is prevented due to a planned outage, of this Agreement will constitute a waiver of any other breach of this Agreement. because of an unforeseeable event beyond Nearmap's reasonable control or any 17.7 Severability If one or more of the terms of the Agreement are found to be invalid, conduct or activity undertaken by the Licensee,the Licensee's employees or agents. illegal or unenforceable in any respect,the validity,legality and enforceability of Fees means the fees specified in the Quote payable by the Licensee for the License,or the remaining terms will not be affected. as otherwise agreed in writing between Nearmap and the Licensee. 17.8 Amendments Other than as expressly specified in this Agreement, this Intellectual Property Rights includes all industrial and intellectual property rights Agreement may only be varied with the written consent of Nearmap and the throughout the world including copyright, moral rights, trademarks, patents, rights to Licensee. protect confidential information and any similar rights. 17.9 Assignment This Agreement shall not be assigned by either party without the Late Payment Fee means a fee,as notified by Nearmap to the Licensee,corresponding prior written consent of the other party which shall not be unreasonably withheld; to the costs incurred by Nearmap(including,without limitation,administrative and other provided, however, that Nearmap may, upon written notice to the Licensee, costs)in recovering any payment not made by the Licensee on the due or scheduled assign all of its rights under this Agreement to(i)a parent,subsidiary or Affiliate date for payment.Late fees incur interest at the rate of 1.5%per month. of Nearmap, (ii) a purchaser of all or substantially all assets related to this License means the license granted in section 1.1. Agreement,or(iii)a third party participating in a merger,acquisition,sale of assets Licensee means the person or entity specified in the"Customer Name"section of the or other corporate reorganization in which Nearmap is participating.Any attempt Quote. to assign this Agreement in violation of this provision shall be void and of no effect. Nearmap means Nearmap US,Inc. This Agreement shall bind and inure to the benefit of the parties and their Operational Hours means gam to 5pm PT. respective successors and permitted assigns. Period means the period specified in the "Allowance" section of the Quote unless 17.10 Entire Agreement This Agreement: otherwise agreed in writing between Nearmap and the Licensee. (a) comprises the entire agreement and understanding between the parties on Periodic Data Allowance means the data allowance specified in the"Allowance"section everything connected with the subject matter of this Agreement;and of the Quote unless otherwise agreed in writing between Nearmap and the Licensee. (b) supersedes any prior agreement or understanding on anything connected with Permitted Purpose means the use of Products by the Licensee in the Licensee's that subject matter, ordinary business and at all times excludes any: 17.11 Counterparts This Agreement may consist of a number of counterparts and if so (a) Commercial Purpose; the counterparts taken together constitute one and the same instrument. This (b) Unlawful Purpose; Agreement is not binding on any party unless one or more counterparts have been (c) Integration or attempt to integrate the Product in an internal system of the duly executed by,or on behalf of,Nearmap and the Licensee. Licensee or of a third party;and 17.12 Governing Law This Agreement will be governed by and construed in (d) Redistribution or copying of files, images, photographs or making such files, accordance with the laws of the State of Utah applicable to agreements made and images or photographs available in any medium or manner that is contained in to be entirely performed within the State of Utah,without resort to its conflict of the Products to any third party (except as expressly permitted under this law provisions. Agreement). 18. DEFINITIONS Products means any Nearmap products specified in the Quote and, if applicable,the In this Agreement: Survey. Additional Terms and Conditions means the additional terms and conditions(if any) Quote the document produced after the Licensee places an initial order for the set out in Schedule 1. Product(s),requests any changes to its'License,or renews its License,which may be Affiliate means,with respect to Nearmap,any entity that controls or is controlled by such titled"New Subscription Quote","Renewal Quote'or"Amendment Quote". party,or is under common control with Nearmap.For purposes of this definition,an entity Schedules means the schedules to the Quote,which form part of this Agreement. shall be deemed to control another entity if it owns or controls,directly or indirectly,at Subscription Period means the period stated in the"Subscription Period"column ofthe least fifty per cent(50%)of the voting equity of another entity(or other comparable Quote. interest for an entity other than a corporation) Subscription Start Date means the date specified in the"Subscription Start Date" Authorized User means the number of person specified in the"Seats'section of the section of the Quote. Quote,who have been granted access to the Product by the Licensee pursuant to the Survey has the meaning(if any)given to that section 16.1. term and conditions of this Agreement and who either has been assigned a unique Survey Fee means the fee for the Survey as agreed in writing between Nearmap and Nearmap user login credential or whom the Licensee has assigned a user login the Licensee. credential that enables access to the Product. Survey Specification means the survey specification referred to in the Quote. Auto Renew means the section of the Quote titled"Auto Renew". Tenn means the term specified in the"Contract Term"section of the Quote,commencing Business Days means any day other than a Saturday,a Sunday or a recognised public on the(a)Commencement Date,or(b)Subscription Start Date(if a date is specified), holiday. whichever is a later date unless a Subscription Period is stated. Claim means any claim, cost (including legal costs on a solicitor and client basis), Third Party Providers means third party providers of products and services to Nearmap. damages,debt,expense,tax,liability,loss,obligation,allegation,suit,action,demand, Unlawful Purpose means any unlawful purpose,including but not limited to stalking, cause of action,proceeding or judgment of any kind however calculated or caused,and harassing or intimidating any person or engaging in misleading or deceptive conduct. whether direct or indirect,consequential,incidental or economic. Website means all pages and sub-sites available within the nearmap.com domain. Commencement Date means the date as specified in the"Contract Commencement" section of the Quote. 4 Nearmap US,Inc. Version:29 May 2018 NEW SUBSCRIPTION QUOTE Nearmap US Inc. 10897 South River Front Parkway,Suite 150 nearmap..�� South Jordan, UT 84095 USA current:clear:change Phone:+1 (801)609 7250 Customer Name City of Fort Worth,TX Quote Number Q035996 Type New Subscription Quote Expiry 09/27/2019 Contract Commencement Contract commences upon Contract Term 12 Month signing of quote. Subscription Start Date 09/09/2019 Sales Rep John Ford Sales Rep Email john.ford@nearmap.com Auto Renew Yes Payment Term Net 30 Bill To City of Fort Worth,TX Ship To City of Fort Worth,TX Mark Deboer Michelle Swindle 275 West 13th Street, 275 West 13th Street, Fort Worth,Texas,76102-6312 Fort Worth,Texas,76102-6312 +1.817.392.8598 (817)392-8861 mark.deboer@fortworthtexas.gov michelle.swindle@fortworthtexas.go v PRODUCT ANNUALIZED ESTIMATED COVERAGE SEATS TOTAL USAGE Nearmap Oblique for 500 GB Nationwide Unlimited $120,000.00 Government Oflline Copy Add-on for NA Nationwide NA $5,000.00 Government Nearmap Now NA Nationwide NA $7,960.00 Subtotal $132,960.00 Estimated Tax $0.00 Total USD$132,960.00 i ACCEPTANCE OF Q035996 By selecting "Yes" or signing below, you acknowledge that (a) you have read, understood and agree to the Products Agreement and Product-Specific Terms which can be found at http://go.nearmap.com/legal/us-agreements-page, (b)you have the authority to agree to this New Subscription Quote and(c)you agree to pay the fees set forth herein.This New Subscription Quote constitutes a binding commitment for the Contract Term stated above. You acknowledge that the Coverage Area by Nearmap is outlined at https://go.nearmai).com/current- aerial-maps. Signature/Digital Ac ptance: Date: 1'�/?p/j Full Name: Position: PO Number(if require �Sf/J1�yi✓f CJTy Mx*vek_ If printed,please sign,scan and email to: orders.us(a)nearmap.com OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Schedule 1 Additional Terms and Conditions 1.One"on premises"copy of the ortho imagery Projection-NAD_1983_StatePlane_Texas_North_Central_FIPS_4202_Feet Bands-3(RGB) Format-GeoTIFF Tiling-One(1)mile x one(1)mile tiles Accuracy-75cm RMSE Horizontal Accuracy Delivery:Spring 2019 Timing:Within 60 days of date of capture Subscription-Required AOI:Please reference AOI in attachment 2. Licensee is permitted to allow third parties who are engaged to perform work on behalf of Licensee related to the charter of Licensee ("Third Party")access to its License. The Third Party may only use its access to the License for the sole purposes of performing working on behalf of Licensee and subject to the terms of the Agreement as if they were a party to this Agreement. 3. Licensee agrees that it is responsible and liable for the actions of the Third Party who use its License as permitted in section 2 of these Additional Terms and Conditions in breach of the terms of this Agreement. 4.Nearmap and the Licensee agrees that the Addendum to Products Agreement as attached to this quote will form part of the Agreement. 3 .;*.,. '0 s00 Proposed Nearmap Now Survey for . . nearma .-,','�' p . City of Fort Worth, TX �!. Legend --->t, Customer AOI .t Planned survey region "°" Nearmap standard coverage `'.w.Ha.�.a. �"'"` Fat. --,---_•_ -...� f � �. , r knM r � I CedB'M w W. t ' i 3 Area of Interest (AOI) Details Customer Name:City of Fort Worth,TX Customer AOI File: EJT_1mi1e.shp Analysis run by: M.Alaupovic,Survey Operations Analysis date:<2018-09-21> Customer requested area (AOI):597 mil Net Additional Area Required: 199 mil Technical Product Offering GSD: High resolution 3". Bands: 3(RGB) Accuracy: Nearmap standard (better than 75cm RMSE horizontal accuracy). Number of Captures:One per contract, unless otherwise agreed. Capture Timing:To be captured in Fall 2018. Subscription: Required. Offer includes:Vertical-view, Orthorectified aerial RGB imagery. Offer does not include:Oblique view,3D, LiDAR/elevation data,infrared, video,ground control. ©2018 Nearmap Commercial-in-Confidence 1 8 e 81 e—n A ower J Mound 77 7 C eu ai,io Keller e U AAe- walaug'a CAIdpille Nor'Wda Bedford Eule Hurst ("rand �3OFort WO _Rrafti 7 �rlingtc n 4- BenIW4 let G 3.0 ly cec Eli 8 lesou 67 Denton *dlothia Dallas -Arlin" henyffle Corgi i 3W5 Legend I _ X! Nearmap Coverage Sources:Esh,USGS,NOAA Sourd6s:Esri,-Garmin,USGS, NPS'W_ i t' 0 Fort Worth Project Ares GSD- 3" ' Fort Worth , Texas Projection NAD 1983 StatePlane Texas North Central FIPS 4202 Feet(WKID: 102738) Bands Format -GeoTIFF ACCEPTED AND AGREED: CITY: City of Fort Worth Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all By: performance and reporting requirements. Name: Kevin dunn Title: Assistant City Manager Date: By: K Name: Mark Deboer Approval Recommended: Title: Sr. IT Solutions Manager Approved as to Form and Legality: By: Name: we-, +fe-k Title: C,� BY: Name: John B. §tron Attest: Title: Assistant Ci Attorney Contract Authorization: By: M&C: P-12344 &9/co'l 1 oj Name: Mary J. Kay of:� ✓ �� F0��'t lie IbL9s: a019-401$1100L- Title: City Secretary :Z VENDOR: Nearmap US, Inc. By: -104-A-1204 Name: fim Fra Title: Vice President, Marketing US and Authorized Officer Date: 9/24/2019 OFFICIAL RECORD CITY SECRETARY FT. WORTH,TX ADDENDUM TO PRODUCTS AGREEMENT BETWEEN THE CITY OF FORT WORTH AND NEARMAP US, INC. This Addendum to Products Agreement ("Addendum") is entered into by and between Nearmap US, Inc. ("Vendor") and the City of Fort Worth ("City"), collectively the "parties", for a purchase of licenses. The Contract documents shall include the following: 1. The Products Agreement; and 2. This Addendum. Notwithstanding any language to the contrary in the attached Products Agreement (the "Agreement"), the Parties hereby stipulate by evidence of execution of this Addendum below by a representative of each party duly authorized to bind the parties hereto, that the parties hereby agree that the provisions in this Addendum below shall be applicable to the Agreement as follows: 1. Term. The Agreement shall become effective upon the signing of the Agreement by an Assistant City Manager of the City (the "Effective Date") and shall expire twelve (12) months after the Effective Date (the Expiration Date"), unless terminated earlier in accordance with the provisions of the Agreement or otherwise extended by the parties. The Agreement may be renewed for four (4) additional one-year renewals at City's option, each a "Renewal Term." City shall provide Vendor with written notice of its intent to renew at least thirty (30) days prior to the end of each term. 2. Termination. a. Breach.If either party commits a material breach of the Agreement,the non- breaching Party must give written notice to the breaching party that describes the breach in reasonable detail. The breaching party must cure the breach ten(10) calendar days after receipt of notice from the non-breaching party, or other time frame as agreed to by the parties. If the breaching party fails to cure the breach within the stated period of time, the non-breaching party may, in its sole discretion, and without prejudice to any other right under the Agreement, law, or equity, immediately terminate this Agreement by giving written notice to the breaching party. b. Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Vendor of such occurrence and the Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. Addendum Page 1 of 5 C. Duties and Obligations of the Parties. In the event that the Agreement is terminated prior to the Expiration Date, City shall pay Vendor for services actually rendered up to the effective date of termination and Vendor shall continue to provide City with services requested by City and in accordance with the Agreement up to the effective date of termination. Upon termination of the Agreement for any reason, Vendor shall provide City with copies of all completed or partially completed documents prepared under the Agreement. In the event Vendor has received access to City information or data as a requirement to perform services hereunder, at the request of the City Vendor shall return all City provided data to City in a machine readable format or other format deemed acceptable to City (acting reasonably). 3. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties or liquidated damages in any amount, City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 4. Law and Venue. The Agreement and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with the laws of the United States and state of Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement shall be in a court of competent jurisdiction in Tarrant County,Texas.To the extent the Agreement is required to be governed by any state law other than Texas or venue in Tarrant County, City objects to such terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 5. Linked Terms and Conditions. If the Agreement contains a website link to terms and conditions,the linked terms and conditions located at that website link as of the effective date of the Agreement shall be the linked terms and conditions referred to in the Agreement. To the extent that the linked terms and conditions conflict with any provision of either this Addendum or the Agreement, the provisions contained within this Addendum and the Agreement shall control. If any changes are made to the linked terms and conditions after the date of the Agreement, such changes are hereby deleted and void. Further, if Vendor cannot clearly and sufficiently demonstrate the exact terms and conditions as of the effective date of the Agreement, all of the linked terms and conditions are hereby deleted and void. 6. Insurance. The City is a governmental entity under the laws of the state of Texas and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self-Insurance by Governmental Units," is self-insured and therefore is not required to purchase insurance. To the extent the Agreement requires City to purchase insurance, City objects to any such provision, the parties agree that any such requirement shall be null and void and is hereby deleted from the Agreement and shall have no force or effect. City will provide a letter of self-insured status as requested by Vendor. 7. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign immunity. To the extent the Agreement requires City to waive its rights or immunities as a government entity; such provisions are hereby deleted and shall have no force or effect. Addendum Page 2 of 5 8. Limitation of Liability and Indemnity. To the extent the Agreement, in any way, requires City to indemnify or hold Vendor or any third party harmless from damages of any kind or character, City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 9. IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its own cost and expense, including the payment of attorney's fees, any claim or action against the City for infringement of any patent, copyright, trade mark, service mark, trade secret, or other intellectual property right arising from City's use of the Deliverable(s), or any part thereof, in accordance with this Agreement, it being understood that this agreement to indemnify, defend, settle or pay shall not apply if City modifies or misuses the Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions against the City pursuant to this section 9,Vendor shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, City shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest, and City agrees to cooperate with Vendor in doing so.In the event City,for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against the City for infringement arising under this Agreement, the City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, Vendor shall fully participate and cooperate with the City in defense of such claim or action. City agrees to give Vendor timely written notice of any such claim or action,with copies of all papers City may receive relating thereto.Notwithstanding the foregoing,the City's assumption of payment of costs or expenses shall not eliminate Vendor's duty to indemnify the City under this Agreement. If the Deliverable(s), or any part thereof, is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Vendor shall, at its own expense and as City's sole remedy, either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the Deliverable(s) to make them/it non-infringing, provided that such modification does not materially adversely affect City's authorized use of the Deliverable(s); or (c) replace the Deliverable(s) with equally suitable, compatible, and functionally equivalent non-infringing Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably available to Vendor, terminate this Agreement, and refund all amounts paid to Vendor by the City, subsequent to which termination City may seek any and all remedies available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE INSURANCE COVERAGE AND AMOUNTS SET FORTH IN SECTION 10 OF THIS AGREEMENT. 10. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed that all obligations of City hereunder are subject to the availability of funds. If such funds are not appropriated or become unavailable, City shall have the right to terminate the Agreement except for those portions of funds which have been appropriated prior to termination. Addendum Page 3 of 5 11. Confidential Information. City is a government entity under the laws of the State of Texas and all documents held or maintained by City are subject to disclosure under the Texas Public Information Act. To the extent the Agreement requires that City maintain records in violation of the Act, City hereby objects to such provisions and such provisions are hereby deleted from the Agreement and shall have no force or effect.In the event there is a request for information marked Confidential or Proprietary,City shall promptly notify Vendor.It will be the responsibility of Vendor to submit reasons objecting to disclosure.A determination on whether such reasons are sufficient will not be decided by City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 12. Addendum Controlling. If any provisions of the attached Agreement,conflict with the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or ordinance of City, the terms in this Addendum shall control. 13. Immigration Nationality Act. Vendor shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form(I-9). Upon request by City,Vendor shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Vendor shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Vendor employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S EMPLOYEES,SUBCONTRACTORS,AGENTS,OR LICENSEES.City,upon written notice to Vendor, shall have the right to immediately terminate this Agreement for violations of this provision by Vendor. 14. No Boycott of Israel. If Vendor has fewer than 10 employees or the Agreement is for less than $100,000,this section does not apply. Vendor acknowledges that in accordance with Chapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1)does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Vendor certifies that Vendor's signature provides written verification to City that Vendor: (1) does not boycott Israel; and(2) will not boycott Israel during the term of the Agreement. 15. Right to Audit. Vendor agrees that City shall,until the expiration of three(3)years after final payment under the Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Vendor involving transactions relating to the Agreement. Vendor agrees that City shall have access during normal working hours to all necessary Vendor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable advance notice of intended audits. (signature page follows) Addendum Page 4 of 5 ACCEPTED AND AGREED: CITY: City of Fort Worth Contract Compliance Manager: By signing I acknowledge that I am the person / responsible for the monitoring and administration of this contract, including ensuring all By: performance and reporting requirements. Name: Kevin durm Title: Assistant City Manager Date: Aw/ By: Name: Mark Deboer Approval Recommended: Title: Sr. IT Solutions Manager Approved as to Form and Legality: By: c ��� 7_� Name: 4-44Q 4— r Title: By: Name: JoA B. Str ng Attest: Title: Assistant City A orney Contract Authorization: By: .4 �� &C: P-12344 Name: 1v ary J. K .� Title: City Secretary VENDOR: Nearmap US, Inc. By: - /0 44-4 Name: firn Frank Title: Vice President, Marketing US and Authorized Officer Date: 9/24/2019 OFFICIAL RECORD CITY SECRETARY Addendum us. Vu age' df x M&C Review Page 1 of 2 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FORT 11 COUNCIL ACTION: Approved on 6/25/2019 REFERENCE ** 04P19-0099 AERIAL DATE: 6/25/2019 NO.: P-12344 LOG NAME: PHOTOGRAPHY AD ITS CODE: P TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Execution of Purchase Agreement with Nearmap US, Inc. for Aerial Photography Services Throughout the City of Fort Worth in an Annual Amount Up to $150,000.00 for the Initial Term and Authorize Five One-Year Renewal Options for for the Information Technology Department (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council authorize execution of a purchase agreement with Nearmap US, Inc. for aerial photography services throughout the City of Fort Worth in an annual amount up to $150,000.00 for the initial term and authorize five one-year renewal options for the Information Technology Department (ALL COUNCIL DISTRICTS) DISCUSSION: The Information Technology Department approached the Purchasing Division to procure an annual agreement for aerial photography services throughout the City of Fort Worth. In order to procure these services, Staff issued an Invitation to Bid (ITB) to 17 related vendors. The ITB consisted of detailed specifications listing the frequency, quality, and type and location of images needed. The Bid was advertised in the Fort Worth Star-Telegram on April 24, 2019, May 1, 2019 and May 8, 2019 . The City received six bids. The City reviewed all bids and Nearmap US, Inc. was scored as best value. Staff recommends awarding an Agreements with Nearmap US, Inc. for aerial photography services throughout the City of Fort Worth in an annual amount of$150,000.00. No guarantee was made that a specific amount of these services will be purchased. The proposed contract would allow the unit price to be increased so long as the City approves the increase. In addition, an administrative change order or increase may be made by the City Manager up to the amount allowed by relevant law and the Fort Worth City Code and does not require specific City Council approval as long as sufficient funds have been appropriated. M/WBE OFFICE -A waiver of the goal for M/WBE subcontracting requirements was requested by the Purchasing Division and approved by the M/WBE Office, in accordance with the BDE Ordinance, because the purchase of goods or services is from sources where subcontracting or supplier opportunities are negligible. Upon City Council approval, the Agreement shall begin upon execution of the Agreement and shall end on September 30, 2019, the initial term. Upon the expiration of the Initial Term, the Agreement shall renew under the same terms and conditions for up to four (4) one-year renewal periods (October 1 to September 30) and for a fifth renewal period which shall expire on the anniversary of execution which shall equal a total contract duration of five years, if all renewal options are exercised. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that funds are available in the current operating budget, as appropriated, of the General Fund. Prior to an expenditure being made, the participating department has the responsibility to validate the availability of funds. http://apps.cfwnet.org/council_packet/mc_review.asp?ID=27089&councildate=6/25/2019 9/26/2019 M&C Review Page 2 of 2 BQ N\\ TO Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year (Chartfield 2) FROM epartment I Account Project Program Activity] Budget Reference# Amount Fund D ID ID Year (Chartfield 2) T Submitted for City Manager's Office by: Susan Alanis (8180) Originating Department Head: Kevin Gunn (2015) Cynthia Garcia (8252) Additional Information Contact: Anabelle Dunn (7648) ATTACHMENTS http://apps.cfwnet.org/council_packet/mc—review.asp?ID=27089& ouncildate=6/25/2019 9/26/2019