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HomeMy WebLinkAboutContract 52864-A1 CSC No.52864-A1 FIRST AMENDMENT TO FORT WORTH CITY SECRETARY CONTRACT NO. 52864 This First Amendment to Fort Worth City Secretary Contract No. 52864 ("First Amendment") is made between the City of Fort Worth ("Fort Worth"), a municipal corporation and Nearmap US, Inc., a Delaware Corporation ("Vendor"). WHEREAS, Fort Worth and Vendor entered into an Agreement identified as Fort Worth City Secretary Contract No. 52864 beginning (the "Agreement"); and WHEREAS, it is the collective desire of both Fort Worth and Vendor to amend the Agreement to align the term of the Agreement with the coverage term of services. NOW THEREFORE,known by all these present,Fort Worth and Vendor, acting herein by the through their duly authorized representatives, agree to the following terms, which amend the Agreement as follows: 1. The Agreement is hereby amended to adjust the term to renew on October 4, 2021 and expire on October 3, 2022. The agreement shall renew on an annual basis thereafter. 2. The Agreement is hereby amended by replacing Subscription Quote, found on page 5 of the agreement,with Attachment A, attached to this First Amendment. 3. All other terms,provisions,conditions,covenants and recitals of the Agreement not expressly amended herein shall remain in full force and effect. [Signature Page Follows] OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX First Amendment to Fort Worth City Secretary Contract No. 52864 Page 1 of 2 [Executed effective as of the date signed by the Assistant City Manager below.] / [ACCEPTED AND AGREED:] City: Vendor: By: Valerie Washington(Oct 18,202115:22 CDT) By: Name: Valerie Washington Name: Mike Davis Title: Assistant City Manager Title: US Head of Finance Date: -Oct 18, 2021 Date: 10/11/2021 CITY OF FORT WORTH INTERNAL ROUTING PROCESS: Approval Recommended: Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all performance By: and reporting requirements. Name: Kevin Gunn Title: Director,IT Solutions By: Steven Vandever(Oct 12,2021 08:51 CDT) 4��nnn� Approved as to Form and Legality: Name: Steven Vandever a� OR a Fr Title: Sr. IT Solutions Manager a O00 %' d l'. dv0 S=G ° By: City Secretary: �d � �° °o° 000 00 Tide: Assistant Ci ty ity Attorney �aa��nEXASaap By: Contract Authorization: Name: Ronald Gonzales M&C: P-12344 Title: Acting City Secretary OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX First Amendment to Fort Worth City Secretary Contract No. 52864 Page 2 of 2 RENEWAL QUOTE nearma current:clear:change P ATTACHMENT A Nearmap US, Inc. 10897 South River Front Parkway, Suite 150 South Jordan, UT 84095 USA Phone: +1 (801)609 7250 Customer Name City of Fort Worth,TX Quote Number Q070467 Contract Commencement Contract commences upon Quote Expiry 10/08/2021 signing of quote. Subscription Term 12 Month Account Rep Glen Lapray glen.lapray@nearmap.com Subscription Start Date 10/04/2021 Payment Term Net 30 Payment Method Invoice Bill To City of Fort Worth,TX Ship To City of Fort Worth,TX Michelle Swindle Michelle Swindle 275 West 13th Street, 275 West 13th Street, Fort Worth,Texas,76102-6312 Fort Worth,Texas,76102-6312 (817)392-8861 (817)392-8861 michelle.swindle@fortworthtexas. michelle.swindle@fortworthtexas.gov gov PRODUCT ALLOWANCE COVERAGE SEATS Offline Copy Add-on for Government NA Nationwide NA ArcGIS Integration NA NA NA Nearmap Oblique for ArcGIS NA Nationwide NA Nearmap Al 2960000 Parcels/Year Nationwide NA Al Pack: Building Footprints NA Nationwide NA Al Pack:Vegetation NA Nationwide NA Al Pack: Building Characteristics NA Nationwide NA Al Pack:Surfaces NA Nationwide NA Al Offline Vector 1 Credits/Year Nationwide NA Nearmap Oblique for Government NA Nationwide Unlimited Please refer to the Offline Point Cloud NA attached Survey NA Specification for details Please refer to the Offline DEM NA attached Survey NA Specification for details Subtotal $187,500.00 Estimated Tax $0.00 Total USD$187,600.00 Nearmap US,Inc. Page 1 of 9 ACCEPTANCE OF Q070467 will constitute an Agreement with Nearmap By selecting"Yes"or signing below, you acknowledge that(a)(i)the attached terms and conditions will continue to form part of the Agreement with the Licensee, (ii)the Additional Terms and Conditions in the latest signed Quote between the Licensee and Nearmap applies to this Renewal Quote, unless otherwise specified in Schedule 1 of this Renewal Quote, and (iii) the Product-Specific Terms set out in https://www.nearmap.com/us/en/legal/product-agreements applies to this Renewal Quote, (b)you have the authority to agree to this Renewal Quote, (c) you agree to pay the fees set forth herein.You acknowledge that the Coverage Area by Nearmap is outlined at https://www.nearmap.com/us/en/current-aerial-maps-coverage. Note:The terms of your Agreement remain the same unless varied by this Renewal Quote.The totals in this Renewal Quote is only an estimate of your next invoice. Final credits and amendments to the subscription is dependent upon the date this Renewal Quote is accepted. Signature/Digital Acceptance: =� Date: Oct 18,2021 FUII Name: Valerie Washington Position: Assistant City Manager PO Number(if required): If printed,please sign,scan and email to:orders.us(cDnearmap.com Page 2 of 9 Nearmap US,Inc. Schedule 1 Additional Terms and Conditions Page 3 of 9 Nearmap US,Inc. nearmap,�- PLEASE READ THIS PRODUCTS AGREEMENT CAREFULLY.BY ACCEPTING THIS AGREEMENT BY EXECUTING A QUOTE,YOU AGREE TO BE BOUND BY THIS PRODUCTS AGREEMENT,THE QUOTE AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS OR USE,YOU MUST NOT ACCEPT THIS PRODUCTS AGREEMENT AND NOT USE ANY NEARMAP PRODUCTS AND SERVICES. 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 2.5 No machine learning The Licensee must not conduct machine learning work in 1.1 Grant Subject to the terms of this Agreement and payment by the Licensee of connection with this Agreement or any Products, which includes but is not the Fees, Nearmap grants to the Licensee a limited, non-exclusive, non- limited to any: transferrable license for the Term to use the Products for and to the extent of the (a) machine learning models(including the model form and model parameters); Permitted Purpose(the"License"). (b) outputs of machine learning models; 1.2 Authorized Users The Products available under this License are only to be (c) software that processes or transforms input data for training a machine learning used by the total number of Authorized Users. The Licensee shall implement model or getting a prediction from a machine learning model into a format reasonable controls to ensure that it does not exceed the number of Authorized suitable for training or making such prediction;or Users.If the number of users exceeds the total number of Authorized Users,the (d) software used to train a machine learning model or compute outputs of a Licensee will be in breach of this Agreement. machine learning model for a given set of input data. 1.3 Renewal Upon the expiration of the initial Term,this Agreement subject to any 2.6 No caching and creation of database Except as expressly permitted under amendments to this Agreement required by Nearmap, shall be renewed this Agreement,the Licensee is not permitted to: automatically for successive renewal terms of twelve(12)months each(each a (a) use its access to the Products under this Agreement forthe purposes of creating "Renewal Term") unless terminated by either party by providing at least 30 a database of imageries for resale,distribution,sub-license or other commercial days' written notice of its intention not to renew this Agreement prior to the purposes and mass downloads or bulk feeds of any imagery;and expiry of the initial Term or any current Renewal Term. (b) pre-fetch,retrieve,cache,index,or store any Content or portion of the Products. 1.4 Replacement Product Nearmap may from time to time supply the Licensee 2.7 Restriction on integration methods The Licensee is only permitted to use API with a replacement Product of no lesser quality than the previously supplied integration method authorized by Nearmap, or other integration methods Product at its absolute discretion. If requested by Nearmap,the Licensee must authorized by Nearmap in writing,including but not limited to integration with the stop using any previously supplied Product and use the replacement Product Licensee's or other third party platforms or software. from the date of delivery from Nearmap. 2.8 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 displaying the Nearmap logo (a) provide a link to another URL; or other appropriate attribution), as the source of any Product or Derivative (b) upload content or other information to the Website(except as necessary to use Works that the Licensee uses,copies,modifies or distributes.Unless otherwise the Products); permitted in writing,the Licensee must not remove or cause to be removed any (c) do anything to damage,interfere or disrupt access to the Website or do anything Nearmap logo, watermark or other Nearmap attribution in any Product or which might impair its functionality; Derivative Works. (d) use the Website in any way to send unsolicited email(commercial or otherwise) 1.6 Data Use for Government Products Nearmap measures data usage by the or any other material for marketing or publicity purposes; Licensee under this License for Government Products.When using Government (e) publish, post, distribute, disseminate or otherwise transmit, defamatory, Products, Nearmap's Fair Use Policy regulates the Licensee's consumption of offensive, infringing, obscene, indecent or other unlawful or objectionable or data during the Term(or Renewal Term)the following conditions also apply to confidential material or information; the Licensee's use of Government Products: (f) make available, upload or distribute by any means any material or files that (a) the amount of data used by the Licensee on the Government Products will be contain any viruses, bugs, corrupt data, "trojan horses", "worms'or any other monitored and then calculated at the end of every Term or Renewal Term based harmful software; on the total data of all users who access and use the Licensee's Nearmap (g) remove any content or information from the Website,other than that permitted account during that Period;and under the terms of this License; (b) if the Licensee elects to download and/or export Government Products available (h) falsify the true ownership of a Product or other material or information made to the Licensee on the Website, this will be applied to the calculation of the available via the Website; Licensee's use of the Government Products. (i) obtain or attempt to obtain unauthorized access, through whatever means, to 1.7 Allowance for Non-Government Products Non-Government Products the Website; Licensed to the Licensee may be subject to additional Allowance, Periodic (1) use the Website other than in accordance with this Agreement; Allowance or Periodic Data Allowance terms that are published in the Product (k) attempt any of the above acts or engage,encourage or permit another person to Specific Terms and if applicable the Periodic Allowance Section. do any of the above acts;or 1.8 Unavailability Subject to section 12,if a Product is not available for a period of (1) provide or allow access which exceeds the total number of Authorized Users in 3 consecutive days, the Term will be extended by the period of such connection with use of the Product. unavailability. 2.9 Breach If the Licensee breaches any of sections 2.1 to 2.8 inclusive,Nearmap 2. RESTRICTIONS ON RIGHT TO USE PRODUCTS reserves its rights to terminate the Agreement in accordance with section 6.2, 2.1 Permitted Purpose The Products must only be used for the Permitted Purpose. restrict the Licensee's access to the Products, and take any other steps 2.2 No right to distribute,transfer, resell,assign or sublicense This License is available to it at law. granted only to the Licensee.The Licensee must not distribute,transfer, resell, 3. THE LICENSEE'S ACCESS TO PRODUCTS AND SERVICES assign, rent, lease or sublicense any Product or any of the Licensee's rights 3.1 Authorized Users Any password/ID issued by Nearmap to an Authorized User under this License without Nearmap's prior written consent. is personal and confidential to that Authorized User. If Nearmap suspects that 2.3 No third party access Unless otherwise provided in this Agreement, the any password/ID is being used by an unauthorized person, by a different Licensee must not make any Product available in any medium or manner to any Authorized User to the person to whom it was issued or the number of third party(including but not limited to the Licensee's subsidiaries,affiliates,any Authorized Users has been exceeded,Nearmap may: lower or higher tiered governments and any neighbouring local government). (a) cancel that password/ID; 2.4 Employees The Licensee may make Products available to any employee of the (b) restrict the Licensee's access to the Product to low resolution imagery,or apply Licensee,subject to that person complying with the terms of the Agreement as if any other restrictions on access that Nearmap determines in its absolute they were a party to it and the total number of Authorized Users has not been discretion; exceeded.Such employees are deemed to be Authorized Users.The Licensee (c) immediately cease the Licensee's access to the Product; is responsible and liable for any person who uses the Licensee's account (d) require the Licensee to pay for any additional fees due based on the standard access details or uses Products made available to the Licensee in breach of this Nearmap Fees for the applicable Product, in respect of any such unauthorized Agreement, including, without limitation, for any additional fees that become use;and/or payable if the Licensee exceeds the number of Authorized Users. (e) exercise any other right available to Nearmap under the terms of this Agreement or at law. Page 4 of 9 Nearmap US,Inc. 3.2 Downtime Nearmap will use reasonable efforts to ensure that the Website (a) the other party breaches any of its obligation under this Agreement capable of remains available but cannot guarantee that this will be the case at all times. remedy and fails to remedy that breach within fourteen(14)days after receiving Nearmap agrees that,wherever possible,all planned maintenance will be done notice requiring it to do so; out of normal Operational Hours to ensure optimal uptime of the Website.When (b) the other party breaches any of its obligations under this Agreement incapable Nearmap becomes aware of any Fault,Nearmap will use reasonable efforts to: of remedy and Content;or (a) allocate such resources as may be necessary to remedy the Fault;and (c) the other party files for protection under bankruptcy laws,makes an assignment (b) otherwise take all reasonable steps to remedy the Fault so as to minimize any for the benefit of creditors, appoints or suffers appointment of a receiver or disruption to the Licensee's use of the Products. trustee over its property,files a petition under any bankruptcy or insolvency act 3.3 Expiry The Licensee's License will expire at the end of the Term unless or has any such petition filed against it which is not discharged within sixty(60) renewed in accordance with section 1.3 and may be suspended or terminated in days of the filing thereof or admits in writing its inability to pay its debt generally accordance with section 6.2 if the Licensee is in breach of this Agreement. as they become due. 3.4 Unauthorized Use Licensee shall take reasonable steps to prevent 6.3 Termination by Nearmap Notwithstanding anything else in the Agreement but unauthorized access to the Products, including without limitation protecting its subject to section 4.4,Nearmap has the right,in its absolute discretion and upon passwords and other log-in information. The Licensee shall notify Nearmap giving the Licensee 10 Business Days'notice,to terminate the Agreement and immediately of any known or suspected unauthorized use of the Products or the License. breach of its security and shall use best efforts to stop said breach and minimize 6.4 Consequences If the Agreement is terminated under sections 6.2 or 6.3 or the adverse impact of said breach on Nearmap. expires at the end of the Term: 3.5 Audit During the Term of this Agreement and for two(2)years after termination (a) the License immediately terminates and the Products will no longer be available or expiry of this Agreement,the Licensee shall maintain records regarding its to the Licensee; use of the Products according to its record keeping policies and procedures. (b) The Licensee must immediately destroy, delete or return to Nearmap all The Licensee shall permit Nearmap (or its auditors)access to the Licensee's Products;and records pertaining to the Licensee's use of the Products. Nearmap will give at (c) subject to section 7.3,the Licensee and the Authorized Users are not permitted least thirty(30)days prior written notice of an audit and will not conduct an audit to use any Products for any purpose. more than once per calendar year unless noncompliance findings are noted,in 6.5 Costs Nearmap reserves all rights following termination of this Agreement, which case the audit period may be extended. including any rights available to Nearmap to collect any outstanding Fees which 3.6 Audit Findings If an audit results in findings of noncompliance,Nearmap may, may be owed by the Licensee.The Licensee will be liable for any reasonable at its discretion (a) invoice any additional license fees due based on the legal costs incurred by Nearmap in enforcing its rights following termination of standard Nearmap Fees in place at the time of the original license grant, (b) this Agreement. recover the reasonable cost of the audit if additional Fees exceed five (5)per 6.6 Continuing obligations After expiry or termination of the Agreement or a cent of the Fees paid during the audit period and(c)terminate this Agreement in License,sections 1.5,2,4,6.5,7,8,9,10,13,14,15,and 17 will still be binding accordance with section 6. Licensee must pay all invoices issued under this on the Licensee in relation to Products licensed or obtained during the Term. section within thirty(30)days following the date of invoice or such other period 7. INTELLECTUAL PROPERTY agreed between the parties. 7.1 Ownership Unless otherwise indicated,the Website,the Products,the Content, 4. FEES and all associated Intellectual Property Rights, data, information and software 4.1 Fees The Fees payable by the Licensee are set out in the Quote. are owned by Nearmap and are protected by copyright,moral rights,trademark 4.2 Payment The Fees are payable by the Licensee to Nearmap in the manner and and other laws relating to the protection of intellectual property. Nearmap by the due date as set out in the Quote at the beginning of each Term unless reserves all of its Intellectual Property Rights. Except for the limited License otherwise agreed by Nearmap.Where the Fees are payable by credit card,the granted to the Licensee in section 1.1, no ownership or Intellectual Property Licensee authorizes Nearmap to charge the Licensee's credit card for all Rights in the Website, any Product or Content will pass or be licensed to the purchased Products listed in the Quote for the initial Term and any Renewal Licensee. Term. 7.2 Trademarks The Nearmap trademarks and all associated Intellectual Property 4.3 No cancellation Subject to section 4.4,all Fees are non-cancellable and non- Rights are owned by Nearmap. Nothing in the Agreement confers upon the refundable except as expressly set out in the Agreement. Licensee any rights to use or modify any of Nearmap's trademarks,except that 4.4 Refund of Fees If the Licensee is not in breach of the Agreement, and Nearmap grants the Licensee a royalty free, limited non-exclusive, non- Nearmap elects to terminate the Agreement under section 6.3, Nearmap will transferrable, non-sublicensable license to reproduce and display Nearmap refund the Licensee any pre-paid fees relating to the portion of Term remaining trademarks only to the extent necessary to comply with the Licensee's as at the date of termination. obligations under the Agreement.Any such reproduction and display of those 4.5 Taxes Unless otherwise stated,Fees and Late Payment Fee do not include any marks must comply with the policies and rules Nearmap makes available to the direct or indirect local,state,provincial,federal or foreign taxes,levies,duties or Licensee from time to time. similar governmental assessments of any nature,including value-added,excise, 7.3 Derivative Works Subject to compliance with all other terms of this Agreement, use or withholding taxes (collectively, "Taxes'). Licensee is responsible for the Licensee is granted a non-exclusive right to produce and use Derivative paying all Taxes except those assessable against Nearmap based on its Works for a Permitted Purpose. Unless otherwise notified to the Licensee by income. Nearmap will invoice Licensee for such Taxes if Nearmap believes it Nearmap, the Licensee may continue using Derivative Works following has a legal obligation to do so and Licensee agrees to pay such Taxes if so termination or expiry of this Agreement. For the avoidance of doubt, Nearmap invoiced. will continue to own all rights in and to any Products and Content embedded in a 4.6 Late Payment If a scheduled Fee payment is still overdue after seven(7)days' Derivative Work, but all other rights in and to the Derivative Work will belong to notice from Nearmap to remedy the payment default,the Licensee agrees that the Licensee. Nearmap may charge the Licensee a Late Payment Fee and/or immediately 8. THIRD PARTY PROVIDERS limit or terminate access to the Products provided under this License. 8.1 Nearmap engages Third Party Providers in order to provide the Products.The 4.7 Amendments Fees of the relevant Product may only be increased at the end of Licensee agrees to comply with all requirements and restrictions that Third Party the Term(including any Renewal Term)subject to Nearmap and the Licensee Providers may impose on Licensee directly or indirectly by imposition on agreeing in writing. Nearmap,in relation to their respective products and/or services,at the time of, 5. THE LICENSEE'S WARRANTIES or subsequent to,the Agreement.The Licensee acknowledges that provision of 5.1 Warranty The Licensee warrants that: the Products is subject to, and dependent upon,adequate delivery of products (a) any information the Licensee supplies to Nearmap in respect of the Agreement and services by the Third Party Providers. In accordance with section 9 of the is complete and correct. The Licensee must keep Nearmap informed of any Agreement, Nearmap's liability is reduced to the extent that loss or damage of change to the Licensee's information provided to Nearmap, including any any kind is caused or contributed to, by Third Party Providers. For the change to the Licensee's contact details,or the details of a credit card used for Licensee's convenience,Nearmap has set out in this section 8 links to the terms payment; and conditions of these Third Party Providers with which the Licensee is (b) the Licensee will immediately notify Nearmap of any usage of any Product required to comply.The Licensee further acknowledges that by entering into the outside the Permitted Purpose, and provide any other information reasonably Agreement, the Licensee is deemed to accept the respective terms and requested by Nearmap; conditions of Third Party Providers, which currently include the Third Party (c) the Licensee has the power to enter into this Agreement and to perform the Providers set out below. Third Party Providers and their terms of supply may obligations under it;and change from time to time during the Term of the Agreement. (d) the Licensee has and will comply with all relevant laws relating to the Licensee's (a) Google Nearmap engages Google to supply navigation and geo-location data, use of the: and related content.By entering into the Agreement,the Licensee agrees to the (i) License; Google Terms of Service as they apply to the Licensee. (ii) Products;and https://www.google.conVenterprise/earthmaps/legal/us/maps purchase agreem (iii) Website. ent apac.html; 6. TERMINATION AND EXPIRY (b) Amazon Web Services(AWS)Nearmap engages Amazon Web Service, Inc. 6.1 Initial Term This Agreement commences on the Commencement Date and to provide services (the "AWS Services") which enables delivery of the continues until expiry of the Term unless terminated earlier in accordance with Products. By entering into the Agreement,the Licensee agrees to comply with the terms of this Agreement or renewed under section 1.3. the AWS Customer Agreement (http://aws.amazon.com/agreement/) as it 6.2 Termination by Either Party Either party may terminate this Agreement with applies to the Licensee. Use of the Products is also subject to the Licensee's immediate effect by giving notice to the other party if: compliance with the following AWS policies: (i) Privacy Policy Page 5 of 9 Nearmap US,Inc. (http://aws.amazon.comlpdvacy/) 9.9 Notice of claim Nearmap will provide the Licensee with notice of any claim or (ii) Acceptable Use Policy allegation under section 9.8, and Nearmap has the right to participate in the (http://aws.amazon.conVaup/) defense of any such claim at its expense. (iii) Terms of Use 10. COPYRIGHT COMPLAINTS (http://aws.amazon.comltermst) 10.1 Subject to section 9, if any third party brings a Claim against the Licensee (iv) Service Terms alleging that the Licensee's use of the Products in accordance with this License (http://aws.amazon.conVserviceterms/) infringes their copyright ("Infringement Claim"), Nearmap will defend the (v) Trademark Guidelines Licensee against the Claim and pay any settlement to which Nearmap consents (http://aws.amazon.conVtrademark-guidelines/) orfinal court-awarded damages forwhich the Licensee is liable. (c) NASA/NCAS By entering into the Agreement, the Licensee agrees to the 10.2 The Licensee must: following NASA/NCAS terms and conditions: (a) promptly notify Nearmap of any such Infringement Claim; (https://www.nearmap.com/us/en/legal/copyright). (b) not make any admissions in relation to the Infringement Claim without 9. WARRANTY AND LIABILITY Nearmap's prior written consent; 9.1 Warranty Nearmap agrees to use industry standard GPS to ensure captured (c) permit Nearmap to conduct the defense of the Infringement Claim including all imagery has accurate geographical positioning. negotiations for settlement;and 9.2 DISCLAIMER OF WARRANTIES OTHER THAN AS SET FORTH IN SECTION (d) provide Nearmap with any assistance reasonably requested to allow Nearmap 9.1, THE WEBSITE AND THE PRODUCTS ARE PROVIDED ON AN "AS IS" to defend the Infringement Claim. AND"AS AVAILABLE" BASIS,WITHOUT ANY WARRANTIES OF ANY KIND 10.3 Nearmap will have no liability for any Infringement Claim: TO THE FULLEST EXTENT PERMITTED BY LAW. NEARMAP AND ITS (a) that arises from any: CONTENT PROVIDERS, AGENTS, MANDATARIES AND AFFILIATES (i) use of the Product in violation of this Agreement; EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS,WARRANTIES, (ii) modification of the Product by anyone other than Nearmap or a party CONDITIONS AND GUARANTEES,WHETHER EXPRESS, STATUTORY OR authorized by Nearmap in writing to modify the portion of the Product IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED applicable to the Infringement Claim;or REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF (iii) third-party products,services,hardware,software or other materials,or a MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, combination of these with the Products, which would not be infringing NON-INFRINGEMENT,AND COURSE OF DEALING OR PERFORMANCE. without this combination;or 9.3 NO REPRESENTATIONS WHILE NEARMAP USES REASONABLE EFFORTS (b) if the Licensee fails to comply with section 10.2. TO ENSURE THE ACCURACY, CORRECTNESS AND RELIABILITY OF THE 10.4 To the maximum extent permitted by law,this section 10 sets out Nearmap's CONTENT, THE PRODUCTS AND THE WEBSITE, NEARMAP MAKES NO sole and exclusive liability, and the Licensee's sole and exclusive remedy, for REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS any third party Infringement Claims brought against the Licensee in relation to TO THE ACCURACY,CORRECTNESS OR RELIABILITY OF ANY PRODUCT an infringement of Intellectual Property Rights. OR CONTENT CONTAINED ON THE WEBSITE.THE PRODUCTS AND THE 11. PRIVACY POLICY WEBSITE ARE SUBJECT TO ERRORS, OMISSIONS, INACCURACIES AND 11.1 Nearmap will collect,use and disclose any personal information supplied by the DISTORTIONS AND NEARMAP WILL NOT BE RESPONSIBLE FOR, OR Licensee as set out in Nearmap's Privacy Policy,as amended from time to time, LIABLE FOR ANY CLAIMS MADE BY OR ARISING OUT OF,ANY PERSON and currently available at https://www.nearmap.comlus/en/legal/privacy-policy. OR ENTITY SEEKING TO RELY ON ANY OF THE PRODUCTS OR THE The Licensee hereby consents to those collections,uses and disclosures.. WEBSITE. 11.2 To the maximum extent permitted by law, by entering into this Agreement,the 9.4 LIMIT OF LIABILITY NEARMAP'S LIABILITY FOR: (A) A BREACH OF A Licensee expressly consents to receiving general emails relating to product WARRANTY UNDER SECTION 9.1; OR (B) A BREACH OF A updates, new products or anything related to the usage of the product from REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE WHICH IS Nearmap but prior written consent is required to receive by email direct IMPLIED OR IMPOSED IN RELATION TO THIS LICENSE UNDER marketing communications from Nearmap. LEGISLATION AND CANNOT BE EXCLUDED, WILL BE LIMITED TO, AT 11.3 By entering into this Agreement, the Licensee acknowledges that personal NEARMAP'S OPTION, REPLACING OR REPAIRING THE PRODUCTS OR information provided by the Licensee in the course of accessing Products SUPPLYING PRODUCTS EQUIVALENT TO THE RELEVANT PRODUCTS, (including, without limitation, credit or debit card details provided by the OR PAYING THE COST OF REPLACING OR REPAIRING THE PRODUCTS. Licensee for the purpose of paying Nearmap)may be disclosed to and held by 9.5 NO LIABILITY FOR CLAIMS TO THE EXTENT PERMITTED BY LAW, IN NO one or more of Nearmap's third party suppliers and partners(including,without EVENT WILL NEARMAP, ITS CONTENT PROVIDERS, AGENTS, limitation, providers of payment processing services), and used by those third MANDATARIES OR AFFILIATES BE LIABLE FOR ANY CLAIMS OF ANY KIND parties in connection with the supply of Products.Nearmap will have no liability ARISING FROM OR CONNECTED WITH THE USE OF THE WEBSITE, THE whatsoever with respect to any personal information held by a third party in CONTENT OR THE PRODUCTS, OR THE UNAVAILABILITY OF THE SAME, connection with the supply of Products. INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR 12. FORCE MAJEURE LOSS OF DATA, AND DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND 12.1 Force Majeure Event If a party is unable to perform or is delayed in performing CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, TORT an obligation under this Agreement (except for any obligation to pay money, (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EXTRACONTRACTUAL including Fees)because of an act ofwar,terrorism,hurricane,earthquake,other LIABILITY, OR OTHERWISE. THE LICENSEE IS RESPONSIBLE FOR THE act of God or of nature, strike or other labor dispute, riot or other act of civil ENTIRE COST OF ALL SERVICING, REPAIR OR CORRECTION REQUIRED disorder, embargo, or other cause beyond the performing party's reasonable DUE TO THE LICENSEE'S USE OF THIS WEBSITE,THE CONTENT OR THE control("Force Majeure Event'): PRODUCTS. THIS EXCLUSION APPLIES, WITHOUT LIMITATION, TO ANY (a) that obligation is suspended but only so far and for so long as that party is CLAIMS CAUSED BY OR RESULTING FROM RELIANCE BY A USER ON affected by the Force Majeure Event;and ANY INFORMATION OBTAINED FROM NEARMAP. (b) the affected party will not be responsible for any loss or expense suffered or 9.6 AGGREGATE LIMIT IN NO EVENT WILL THE AGGREGATE LIABILITY OF incurred by the other party as a result of, and to the extent that, the affected NEARMAP, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING party is unable to perform or is delayed in performing its obligations under this NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), EXTRACONTRACTUAL LIABILITY, PRODUCT LIABILITY, STRICT LIABILITY Agreement because of the Force Majeure Event. 12.2 Notice of Force Majeure Event If a Force Majeure Event occurs, the party OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF affected by the Force Majeure Event must: THE PRODUCTS, THE CONTENT OR THE WEBSITE EXCEED ANY COMPENSATION OR FEE THE LICENSEE HAS PAID,IF ANY,TO NEARMAP (a) Promptly(when reasonably possible to so)give the other party notice of the FOR ACCESS TO OR USE OF THE PRODUCTS OVER THE 12 MONTH Force Majeure Event and a estimate of the the non-performance and delay; PERIOD PRIOR TO THE ALLEGED DEFAULT, BREACH OR EVENT GIVING (b) take all reasonable steps too overcome the effects of the Force Majeure Event; and RISE TO THE LIABILITY. (c) resume compliance as soon as practicable after the Force Majeure Event no 9.7 Third Party Providers The Licensee acknowledges that Nearmap relies on the longer affects it. services of Third Party Providers in order to supply the Products and related 13. CONFIDENTIALITY services. Without limiting any of the above, to the fullest extent permitted by 131 The Licensee must not use any Confidential Information for any purpose not applicable law,Nearmap will not be liable for any loss,damage,o cost of any . expressly permitted hereunder. The Licensee will disclose Confidential kind,which T caused,or contributed to,by a third party service provider. Information only to its employees who have a need to know for purposes of this Nearmap and its directors, officers, employees, agents, mandataries and 9.8 Indemnity To the extent permitted by law, the Licensee agrees indemnify Agreement and who are under a duty of confidentiality no less restrictive than subcontractors,from and against any and all direct or indirect claims,damages, the Licensee's duty hereunder. The Licensee will protect Confidential Information from unauthorized use,access,or disclosure in the same manner as losses,liabilities,expenses and costs(including reasonable attorneys fees and it would protect its own confidential or proprietary information of similar nature (a) the Licensee's actuaall or alleged breach of any provisions of this Agreement; costs)arising from out le and with no less than reasonable care.(b) the Licensee's use of the Product for any purpose;and 14. NOTICES (c) the Licensee's use of, or any third party's use of, or inability to use, any 14.1 All notices and consents will be in writing and will be considered delivered and Derivative Works, including without limitation, any output from the Derivative effective upon receipt (or when delivery is refused) when (a) personally Works. delivered;(b)sent by registered or certified mail(postage prepaid,return receipt requested); (c) sent by nationally recognized private courier (with signature Page 6 of 9 Nearmap US,Inc. required and all fees prepaid); or (d) sent by email with confirmation of 17.12 Language The parties have expressly agreed that this Agreement and all transmission. Notices must be sent to the Licensee at the address set forth in ancillary agreements,documents or notices relating thereto be drafted solely in the Quote (or if none is specified, the address to which Nearmap sends the English language.Les parties aux preventes ont expressement convenu que invoices) and for Nearmap to 10897 South River Front Parkway, Suite 150 ce accord et toute autre convention,document ou avis y afferent soient rediges South Jordan,UT 84095,USA,or at another address as a party may designate en anglais seulement. in writing. 17.13 Governing Law This Agreement will be governed by and construed in 15. TECHNOLOGY EXPORT accordance with the laws of the State where the Licensee is carrying on 15.1 The Licensee shall not:(a)permit any third party to access or use the Product in business applicable to agreements made and to be entirely performed within violation of any U.S.or Canadian law or regulation;or(b)export any software that state,without resort to its conflict of law provisions. provided by Nearmap or otherwise remove it from the United States or Canada 18. DEFINITIONS except in compliance with all applicable U.S. and Canadian laws and In this Agreement: regulations.Without limiting the generality of the foregoing,the Licensee shall Additional Terms and Conditions means the additional terms and conditions(if any) not permit any third party to access or use the Product in, or export such set out in the Quote. software to, a country subject to a United States embargo (as of the Effective Affiliate means,with respect to Nearmap, any entity that controls or is controlled by Date,Cuba,Iran,North Korea,Sudan,and Syria)or a Canadian embargo. Nearmap,or is under common control with Nearmap.For purposes of this definition,an 16. NEARMAP NOW entity shall be deemed to control another entity if it owns or controls, directly or 16.1 Survey During the Term,the Licensee may request a survey of an area which is indirectly, at least fifty per cent (50%)of the voting equity of another entity (or other not covered (in its entirety or in part) by the Coverage Area ("Survey"). The comparable interest for an entity other than a corporation). Licensee must provide a detailed description of the area that is to be covered by Allowance means any usage allowance the Licensee is permitted to use and/or drawn the Survey and which is to be included in the Survey Specification.Upon receipt down against for any Licensed Non-Government Products as specified the Quote. of such a request in writing, Nearmap may, in its absolute discretion,agree to API means application programming interface. provide the Survey to the Licensee for a Survey Fee. Authorized User means the number of persons specified in the"Seats"section of the 16.2 Delivery of Survey Subject to sections 12 and 16.1, Nearmap will deliver the Quote,who have been granted access to the Product by the Licensee pursuant to the Survey to the Licensee by uploading the Survey to the Website within 6 months term and conditions of this Agreement and who either has been assigned a unique of the date on which Nearmap receives payment of the Survey Fee in full from Nearmap user login credential or whom the Licensee has assigned a user login the Licensee. Nearmap will notify the Licensee in writing once the Survey has credential that enables access to the Product. been uploaded to the Website. Business Days means any day otherthan a Saturday,a Sunday or a recognised 16.3 Availability to other Nearmap customers Nearmap may, at its absolute public holiday in Utah,USA. discretion, allow other customers of Nearmap to access the Survey on the Claim means any claim,cost(including legal costs on a solicitor and client basis), Website. damages,debt,expense,tax,liability,loss,obligation,allegation,suit,action,demand, 16.4 Refund of Survey Fee If the Licensee is not in breach of the Agreement and cause of action,proceeding orjudgment of any kind however calculated or caused,and Nearmap elects to terminate the Agreement under section 6.3 prior to delivery of whether direct or indirect,consequential,incidental or economic. the Survey,Nearmap will refund the Survey Fee to the Licensee. Commencement Date means(a)for New Subscription Quotes,the date as specified 16.5 Other Products This Section 16 will not be applicable to the Licensee if the in the"Contract Commencement"section or the"Subscription Start Date"section of the License has not purchased a Survey. Quote,whichever is later,or(b)for Renewal Quotes or Amendment Quotes,the date 17. MISCELLANEOUS TERMS as specified in the"Subscription Start Date"section of the Quote. 17.1 Nearmap customer Licensee grants Nearmap the right to use Licensee's name Commercial Purpose means to distribute,transfer,sell,sub-license or pass and logo to identify as a Nearmap customer for marketing or promotional possession of any Products(in whole or in part)for the purpose of direct commercial purposes in public or private communications with our existing or potential benefit or gain by the Licensee. customers, subject to Licensee's standard trademark usage guidelines as Confidential Information means the terms of this Agreement,the pricing,and any provided to us from time-to-time. other information relating to the business,finances,strategy,methods,processes, 17.2 Additional Terms and Conditions The Additional Terms and Conditions form products,metadata,services or other affairs of Nearmap or its representatives or part of,and should be read in conjunction with,this Agreement. related bodies corporate which is disclosed to,learnt by or accessed by the Licensee in 17.3 Precedence of Documents This Agreement is comprised of: connection with the Agreement,whether before or after the Licensee entered into the (a) the Additional Terms and Conditions; Agreement,whether orally,electronically,in writing or otherwise,but excludes (b) the Quote; information which: (c) any Product-Specific Terms;and (a) is or becomes part of the public domain otherwise than as a consequence of a (d) this products agreement. breach of the Agreement; If there is any ambiguity or inconsistency between the documents comprising (b) the Licensee has obtained from a source other than Nearmap which source is the Agreement,the document appearing higher in the list will have precedence. entitled to disclose it;or 17.4 Independent Contractors The parties are independent contractors and will so (c) the Licensee has developed or acquired independently before the date of the represent themselves in all regards.Neither party is the agent of the other,and Agreement,and can provide reasonable proof. neither may make commitments on the other's behalf. The parties agree that Content means any content made available by or on behalf of Nearmap to the neither party's employee or contractor is an employee of the other party. Licensee in connection with the License,whether or not through the Website or an API. 17.5 Construction The parties agree that the terms of this Agreement result from Coverage Area means the area specified in the"Coverage'section of the Quote for negotiations between them.This Agreement will not be construed in favor of or which Nearmap has available Products,which may cover part or all of that area and against either party by reason for authorship. which may cover part(but not all)of the area covered by the Survey. 17.6 Waiver Neither party will be deemed to have waived any of its rights under this Derivative Work means any new work created by or for the Licensee that Agreement by lapse of time or by any statement or representation other than by incorporates,embeds or includes all or part of a Nearmap Product or Content. an authorized representative in an explicit written waiver.No waiver of a breach Fair Use Policy means the policy as attached to the Quote. of this Agreement will constitute a waiver of any other breach of this Agreement. Fault means any fault, failure, error or defect which prevents the Licensee from 17.7 Severability If one or more of the terms of the Agreement are found to be accessing the Products, other than where access is prevented due to a planned invalid, illegal or unenforceable in any respect, the validity, legality and outage, because of an unforeseeable event beyond Nearmap's reasonable control or enforceability of the remaining terms will not be affected. any conduct or activity undertaken by the Licensee, the Licensee's employees or 17.8 Amendments Other than as expressly specified in this Agreement, this agents or mandataries. Agreement may only be varied with the written consent of Nearmap and the Fees means the fees specified in the Quote payable by the Licensee for the License, Licensee. or as otherwise agreed in writing between Nearmap and the Licensee. 17.9 Assignment This Agreement shall not be assigned by either party without the Government Products means any Products specified in the Quote that are described priorwritten consent of the other party which shall not be unreasonably withheld; as"Nearmap Vertical for Government"and"Nearmap Oblique for Government"and provided, however, that Nearmap may, upon written notice to the Licensee, includes any other Products offered by Nearmap for government customers only where assign all of its rights under this Agreement to(i)a parent,subsidiary or Affiliate use of its License is connected to the Fair Use policy. of Nearmap, (ii) a purchaser of all or substantially all assets related to this Intellectual Property Rights includes all industrial and intellectual property rights Agreement, or (iii) a third party participating in a merger, acquisition, sale of throughout the world including copyright,moral rights,trademarks,patents,rights to assets or other corporate reorganization in which Nearmap is participating.Any protect confidential information and any other similar rights. attempt to assign this Agreement in violation of this provision shall be void and Late Payment Fee means a fee,as notified by Nearmap to the Licensee, of no effect.This Agreement shall bind and inure to the benefit of the parties and corresponding to the costs incurred by Nearmap(including,without limitation, their respective successors and permitted assigns. administrative and other costs)in recovering any payment not made by the Licensee 17.10 Entire Agreement This Agreement: on the due or scheduled date for payment.Late fees incur interest at the rate of 1.5% (a) comprises the entire agreement and understanding between the parties on per month(being 18%per year). everything connected with the subject matter of this Agreement;and License means the license granted in section 1.1. (b) supersedes any prior agreement or understanding on anything connected with Licensee means the person or entity specified in the"Customer Name'section of the that subject matter. Quote. 17.11 Counterparts This Agreement may consist of a number of counterparts and if Nearmap means Nearmap US,Inc. so the counterparts taken together constitute one and the same instrument.This Non-Government Products means all Products specified in the Quote that do not fall Agreement is not binding on any party unless one or more counterparts have under the definition of Government Products. been duly executed by,or on behalf of,Nearmap and the Licensee. Operational Hours means 9am to 5pm PT. Page 7 of 9 Nearmap US,Inc. Periodic Allowance or Periodic Data Allowance means the data allowance specified titled"New Subscription Quote',"Renewal Quote'or"Amendment Quote'. in the"Allowance"section of the Quote unless otherwise agreed in writing between Schedule means a schedule to this Agreement,where such schedule has been Nearmap and the Licensee. incorporated by reference to form part of this Agreement. Periodic Allowance Section means section 1.6(or its equivalent)in the most current Subscription Period means the period stated in the"Subscription Period"column of version of the products agreement currently located at here. the Quote. Permitted Purpose means the use of Products by the Licensee for internal purposes Subscription Start Date means the date specified in the"Subscription Start Date' in the Licensee's ordinary business,and at all times excludes any: section of the Quote. (a) Commercial Purpose; Survey has the meaning(if any)given to that section 16.1. (b) Unlawful Purpose; Survey Fee means the fee for the Survey as agreed in writing between Nearmap and (c) Integration or attempt to integrate the Product in an internal system of the the Licensee. Licensee or of a third party;and Survey Specification means the survey specification referred to in the Quote. (d) Redistribution or copying of files, images, photographs or making such files, Term means the term specified in the"Subscription Term"section of the Quote, images or photographs available in any medium or manner that is contained in commencing on the Commencement Date.Where a Subscription Period is stated on the Products to any third party (except as expressly permitted under this the Quote,"Term"means the Subscription Period. Agreement). Third Party Providers means third party providers of products and services to Products means any Nearmap products specified in the Quote(and further described Nearmap. on the Website)and, if applicable,the Survey. For the avoidance of doubt, Products Unlawful Purpose means any unlawful purpose,including but not limited to stalking, include Content. harassing or intimidating any person or engaging in misleading or deceptive conduct. Products Specific Terms means additional terms and conditions that apply to certain Website means all pages and sub-sites available within the nearmap.com domain. Products,currently located here. Quote the document produced afterthe Licensee places an initial orderforthe Product(s),requests any changes to its'License,or renews its License,which may be Page 8 of 9 Nearmap US,Inc. FAIR USE POLICY General 1.It is important to Nearmap that all customers are able to access the Products and Services.Accordingly,we have devised a Fair Use Policy that applies to the data usage of the Products and Services. 2.In this Fair Use Policy: a.Excessive Use has the meaning given to that term in section 7 of this Fair Use Policy; b.Fair Use Policy means this policy; c.Nearmap,we,us or our means Nearmap US,Inc.; d.Products has the meaning given to that term in Your Nearmap Agreement; e.Services has the meaning given to that term in Your Nearmap Agreement; f.You or Your means any customer of Nearmap; g.Your Nearmap Agreement means the agreement pursuant to which Nearmap provides You with various products and services;and h.Unreasonable Use has the meaning given to that term in section 5 of this Fair Use Policy. 3.We reserve the right to vary the terms of this Fair Use Policy from time to time. 4.This Fair Use Policy is in addition to Your Nearmap Agreement and in the event of any inconsistency between the terms of this Fair Use Policy and the terms and conditions of Your Nearmap Agreement,Your Nearmap Agreement prevails. Unreasonable Use 5.We consider Your use of the Products and Services unreasonable where You use it in a manner which is reasonably considered by Nearmap to be fraudulent use,to be contrary to Your Nearmap Agreement or to adversely affect other Nearmap customers'use of or access to the Products and Services. 6.Among otherthings,"fraudulent use'includes resupply of the Products and Services without Nearmap's consent so that someone else may access or use the Products and Services or take advantage of the Products and Services. Excessive Use 7.Excessive Use is a continuing and unreasonably disproportionate use of the Products and Services when compared to other average individual named users. Nearmap's Rights 8.Where Your use of the Products and Services constitutes Unreasonable Use and/or Excessive Use,Nearmap may contact You to discuss changing Your usage pattern so that it conforms with this Fair Use Policy,or to upgrade to a more suitable Product or Service(if applicable). 9.If,after Nearmap has contacted You,Your Unreasonable Use and/or Excessive Use continues,Nearmap may,without further notice to You: a.restrict Your access to low resolution imagery for the remainder of the month;and/or b.restrict Your access to low resolution imagery for the remainder of the month until Your data allowance is reset at the beginning of the next month(if applicable); and/or c.restrict Your access for the remainder of the month;and/or d.restrict Your access to Nearmap until Your data allowance is reset at the beginning of the next month(if applicable);and/or e.immediately cease Your access to Nearmap;and/or f.exercise any other right available to Nearmap under the terms of Your Nearmap Agreement. Page 9 of 9 Nearmap US,Inc.