HomeMy WebLinkAboutContract 62963Docusign Envelope ID: 44A62AD5-63CA-4COD-9CA8-086E9E5F6AOA
Nearmap
CSC No. 62963
NEW SUBSCRIPTION QUOTE
Nearmap US, Inc.
1850 W Ashton Blvd, Suite 500
Lehi, UT 84043, USA
Phone: +1 (801) 609 7250
Customer Name
City of Fort Worth, TX
Quote Number
Q106186
Contract Commencement
Contract commences upon
Quote Expiry
03/21/2025
signing of quote.
Subscription Term
12 Month
Account Rep
David Wengert
david.wengert@nearmap.com
Subscription Start Date
10/06/2024
Payment Term
Net 30
Payment Method
Invoice
Bill To
City of Fort Worth, TX
Ship To
City of Fort Worth, TX
Natalie Watkins
Natalie Watkins
275 W. 13th. St,
275 W. 13th. St,
Fort Worth, Texas, 76102
Fort Worth, Texas, 76102
(817)392-5883
(817)392-5883
natalie.watkins@fortworthtexas.g
natalie.watkins@fortworthtexas.gov
ov
PRODUCT
I ALLO
NCE I COVERAGE
I SEATS
Nearmap Vertical Offline Copy
- Subscription NA
Nationwide
NA
Nearmap Oblique for Government NA
Nationwide
Unlimited
Subtotal
$165,000.00
*Estimated Tax
$0.00
Total
USD $165,000.00
*The Total includes applicable sales tax for the state which the Licensee is located. If an exemption from sales tax is applicable to the Licensee, the Licensee shall
provide to Nearmap, in accordance with state law, relevant tax -exemption documentation. It will be the responsibility of the Licensee to ensure proof of tax-exempt
status remains current for subsequent renewals of the Agreement.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Page 1 of 9
Nearmap US, Inc.
Docusign Envelope ID: 44A62AD5-63CA-4COD-9CA8-086E9E5F6AOA
ACCEPTANCE OF Q106186 will constitute an Agreement with Nearmap
By selecting "Yes" or signing below, you acknowledge that (a) you have read, understood and agree to the Products Agreement attached to this
Quote,(b) the Product -Specific Terms which can be found at httDs://www.nearmar).com/us/en/leaal/product-agreements, (c) you have the authority to
agree to this New Subscription Quote and (d) you agree to pay the fees set forth herein. This New Subscription Quote constitutes a binding
commitment for the Contract Term stated above. You acknowledge that the Coverage Area by Nearmap is outlined at
httDs://www.nearmai).com/us/en/current-aerial-maDs-coveraae.
Signature / Digital Acceptance:
Full Name: Richard Zavala
PO Number (if required):
If printed, please sign, scan and email to: orders. us cCDnearmap.com
Date: Mar 14, 2025
Position: Interim Assistant City Manager
Page 2 of 9
Nearmap US, Inc.
Docusign Envelope ID: 44A62AD5-63CA-4COD-9CA8-086E9E5F6AOA
Schedule 1
Additional Terms and Conditions
Page 3 o
earmap US, Inc.
Docusign Envelope ID: 44A62AD5-63CA-4COD-9CA8-086E9E5F6AOA
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 imagery and location data and associated products and services.
B. Nearmap agrees to supply the Licensee with the Products described in the Quote, subject to the terms of this agreement, the Additional Terms and Conditions, Product -
Specific Terms, any Schedules and the Quote which together constitute the legal agreement between the Licensee and Nearmap (the "Agreement").
Definitions of capitalized words are set out in section B.1717 of the Agreement.
1. GRANT OF LICENSE TO USE PRODUCTS
1.1 Grant Subject to the terms of this Agreement and payment by the Licensee of the
Fees, Nearmap grants to the Licensee a limited, non-exclusive, non- transferrable
license for the Term to use the Products only for the Permitted Purpose (the
"License").
1.2 Authorized Users The Products available under this License are only to be used
by the total number of Authorized Users. The Licensee shall implement
reasonable controls to ensure that it does not exceed the number of Authorized
Users. If the number of users exceeds the total number of Authorized Users, the
Licensee will be in breach of this Agreement.
1.3 Renewal Unless otherwise notified by the Licensee in writing at least thirty (30)
days prior to the expiry of the Term of its intention not to renew this Agreement
and subject to any amendments to this Agreement required by Nearmap, the
Term will automatically be renewed for successive renewal terms of twelve (12)
months each (each a "Renewal Term").
1.4 Product Updates Nearmap may from time to time supply the Licensee with a
Product of no lesser quality than the previously supplied Product at its absolute
discretion. If requested by Nearmap, the Licensee must stop using any
previously supplied Product and use the new Product from the date of delivery
from Nearmap.
1.5 Acknowledge Nearmap source The Licensee must expressly acknowledge
Nearmap, in a reasonably prominent manner (by displaying the Nearmap logo or
other appropriate attribution), as the source of any Product or Derivative Works
that the Licensee uses, copies, modifies, or distributes. Unless otherwise
permitted in writing, the Licensee must not remove or cause to be removed any
Nearmap logo, watermark, or other Nearmap attribution in any Product or
Derivative Works.
1.6 Data Use for Government Products Nearmap measures data usage by the
Licensee under this License for Government Products. When using Government
Products, Nearmap's Fair Use Policy regulates the Licensee's consumption of
data during the Term (or Renewal Term). The following conditions also apply to
the Licensee's use of Government Products:
(a) the amount of data used by the Licensee on the Government Products will be
monitored and then calculated at the end of every Term or Renewal Term based
on the total data of all users who access and use the Licensee's Nearmap account
during that Period; and
(b) if the Licensee elects to download and/or export Government Products available
to the Licensee on the Website, this will be applied to the calculation of the
Licensee's use of the Government Products.
1.7 Allowance for Non -Government Products Non -Government Products licensed
to the Licensee may be subject to additional Allowance, Periodic Allowance, or
Periodic Data Allowance terms that are published in the Product -Specific Terms,
and if applicable, the Periodic Allowance Section.
1.8 Unavailability Subject to section 12, if a Product is not available for a period of
three (3) consecutive days, the Term will be extended by the period of such
unavailability.
2. RESTRICTIONS ON RIGHT TO USE PRODUCTS
2.1 No right to distribute, transfer, resell, assign or sublicense This License is
granted only to the Licensee. The Licensee must not distribute, transfer, resell,
assign, rent, lease, or sublicense any Product or any of the Licensee's rights
under this License without Nearmap's prior written consent.
2.2 No third party access Unless otherwise provided in this Agreement, the
Licensee must not make any Product available in any medium or manner to any
third party (including but not limited to the Licensee's subsidiaries, affiliates, any
lower or higher tiered governments and any neighboring local government).
2.3 Employees Subject to sections 1.1 and 1.2, the Licensee may make Products
available to any employee of the Licensee, subject to that person complying
with the terms of the Agreement as if they were a party to it and the total
number of Authorized Users has not been exceeded. These employees are
deemed to be Authorized Users. The Licensee is responsible and liable for all
Authorized Users who use the Licensee's account access details or use
Products made available to the Licensee in breach of this Agreement, including,
without limitation, for any additional fees that become payable if the Licensee
exceeds the number of Authorized Users.
2.4 No machine learning The Licensee must not conduct machine learning work
in connection with this Agreement on any Products, which includes but is not
limited to running any:
(a) machine learning models (including the model form and model parameters);
(b) outputs of machine learning models;
(c) software that processes or transforms input data for training a machine learning
model or getting a prediction from a machine learning model into a format suitable
for training or making such prediction; or
(d) software used to train a machine learning model or compute outputs of a machine
learning model for a given set of input data.
2.5 No caching and creation of database Except as expressly permitted under this
Agreement, the Licensee is not permitted to:
(a) use its access to the Products under this Agreement for the purposes of creating
a database of imageries for resale, distribution, sublicense, or other commercial
purposes, or for mass downloads or bulk feeds of any imagery; and
(b) pre -fetch, retrieve, cache, index, or store any Content or portion of the Products.
2.6 Restriction on integration methods The Licensee is only permitted to use API
integration methods, or other integration methods, as authorized by Nearmap in
writing, including but not limited to integration with the Licensee's or other third
party platforms or software.
2.7 Limits on use of Website In the Licensee's use of the Website, the Licensee
must not (without the prior written consent of Nearmap):
(a) provide a link to another URL;
(b) upload content or other information to the Website (except as necessary to use
the Products);
(c) do anything to damage, interfere or disrupt access to the Website or do anything
which might impair its functionality;
(d) use the Website in any way to send any unsolicited email (commercial or
otherwise) or any other material for marketing or publicity purposes;
(e) publish, post, distribute, disseminate, or otherwise transmit, defamatory,
offensive, infringing, obscene, indecent, or other unlawful or objectionable
confidential material or information;
(f) make available, upload, or distribute by any means any material or files that
contain any viruses, bugs, corrupt data, "trojan horses", "worms", or any other
harmful software;
(g) remove any content or information from the Website, other than that permitted
under the terms of this License;
(h) falsify the true ownership of a Product or other material or information made
available via the Website;
(i) obtain or attempt to obtain unauthorized access, through whatever means, to the
Website;
(j) use the Website other than in accordance with this Agreement;
(k) attempt any of the above acts or engage, encourage or permit another person to
do any of the above acts; or
(1) provide or allow access to the Website which exceeds the total number of
Authorized Users in connection with use of the Product.
2.8 Breach If the Licensee breaches any of sections 2.1 to 2.7 inclusive, Nearmap
reserves its rights to terminate the Agreement in accordance with section 6.2,
restrict the Licensee's access to the Products, and take any other steps available
to it at law.
3. THE LICENSEE'S ACCESS TO PRODUCTS AND SERVICES
3.1 Authorized Users Any password issued by Nearmap to an Authorized User is
personal and confidential to that Authorized User. If Nearmap suspects that any
password/ID is being used by an unauthorized person, by a different Authorized
User who is not the person to whom it was issued, or the number of Authorized
Users has been exceeded, Nearmap may:
(a) cancel that user's access;
(b) immediately cease the Licensee's access to the Product;
(c) require the Licensee to pay for any additional fees due based on the standard
Nearmap Fees for the applicable Product, in respect of any such unauthorized
use; and/or
(d) exercise any other right available to Nearmap under the terms of this Agreement
or at law.
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Nearmap US, Inc.
Docusign Envelope ID: 44A62AD5-63CA-4COD-9CA8-086E9E5F6AOA
3.2 Downtime Nearmap will use reasonable efforts to ensure that the Website and
APIs remain available but cannot guarantee that this will be the case at all
times. Nearmap agrees that, wherever possible, all planned maintenance will
be done out of normal Operational Hours to ensure optimal uptime of the
Website. The Licensee may elect to subscribe to the Nearmap status page at
hfDS:Hstatus.nearmaD.com/ to receive notifications and updates relating to
planned maintenance and uptime/downtime of the Website and APIs. When
Nearmap becomes aware of any Fault, Nearmap will use reasonable efforts to:
(a) allocate such resources as may be necessary to remedy the Fault; and
(b) otherwise take all reasonable steps to remedy the Fault so as to minimize any
disruption to the Licensee's use of the Products.
3.3 Expiry The Licensee's License will expire at the end of the Term unless renewed
in accordance with section 1.3 and may be suspended or terminated, in
accordance with section 6.2, if the Licensee is in breach of thisAgreement.
3.4 Unauthorized Use Licensee shall take reasonable steps to prevent unauthorized
access to the Products, including without limitation, protecting its passwords and
other log -in information. The Licensee shall notify Nearmap immediately of any
known or suspected unauthorized use of the Products, or breach of its security,
and shall use best efforts to stop said breach and minimize the adverse impact of
said breach on Nearmap.
3.5 Audit During the Term of this Agreement, and for two (2) years after termination
or expiry of this Agreement, the Licensee shall maintain records regarding its use
of the Products according to its usual record keeping policies and procedures.
The Licensee shall permit Nearmap (or its auditors) access to the Licensee's
records pertaining to the Licensee's use of the Products. Nearmap will give at
least thirty (30) days prior written notice of an audit and will not conduct an audit
more than once per calendar year unless non-compliance findings are noted, in
which case the audit period may be extended.
3.6 Audit Findings If an audit results in findings of non-compliance, Nearmap may,
at its discretion:
(a) invoice any additional license fees due based on the standard Nearmap Fees
in place at the time of the original license grant;
(b) recover the reasonable cost of the audit if additional Fees exceed 5% of the
Fees paid during the audit period; and
(c) terminate this Agreement in accordance with section 6.1. Licensee must pay all
invoices issued under this section within thirty (30) days following the date of
invoice or such other period agreed between the parties.
4. FEES
4.1 Fees The Fees payable by the Licensee are set out in the Quote.
4.2 Payment The Fees are payable by the Licensee to Nearmap in the manner and
by the due date, as set out in the Quote, at the beginning of each Term unless
otherwise agreed by Nearmap. Where the Fees are payable by credit card, the
Licensee authorizes Nearmap to charge the Licensee's credit card for all
purchased Products listed in the Quote for the initial Term and any Renewal Term.
4.3 No cancellation Subject to section 4.4, all Fees are non -cancellable and non-
refundable, except as expressly set out in this Agreement.
4.4 Refund of Fees If the Licensee is not in breach of this Agreement, and Nearmap
elects to terminate this Agreement under section 6.3, Nearmap will refund the
Licensee any pre -paid fees relating to the portion of Term remaining as at the
date of termination.
4.5 Taxes Unless otherwise stated, Fees and Late Payment Fee do not include any
direct or indirect local, state, provincial, federal, or foreign taxes, levies, duties, or
similar governmental assessments of any nature, including value-added, excise,
use or withholding taxes (collectively, "Taxes"). Licensee is responsible for paying
all Taxes, except those assessable against Nearmap based on its income.
Nearmap will invoice Licensee for such Taxes if Nearmap believes it has a legal
obligation to do so and Licensee agrees to pay such Taxes if so invoiced.
4.6 Late Payment If a scheduled Fee payment is still overdue after seven (7) days'
notice from Nearmap, to remedy the payment default, the Licensee agrees that
Nearmap may immediately limit or terminate access to the Products provided
under this License.
4.7 Amendments Subject to section 1.3, Nearmap may, at its absolute discretion,
increase the price, for the Products at the end of the Term by an amount which
reflects up to the current rate of Inflation plus 2.5%.
5. THE LICENSEE'S WARRANTIES
5.1 Warranty The Licensee warrants that:
(a) any information the Licensee supplies to Nearmap in respect of the Agreement is
complete and correct. The Licensee must keep Nearmap informed of any change
to the Licensee's information provided to Nearmap, including any change to the
Licensee's contact details, or the details of a credit card used for payment;
(b) the Licensee will immediately notify Nearmap of any usage of any Product outside
the Permitted Purpose, and provide any other information reasonably requested
by Nearmap;
(c) the Licensee has the power to enter into this Agreement and to perform the
obligations under it; and
(d) the Licensee has and will comply with all relevant laws relating to the Licensee's
use of the:
(i) License;
(ii) Products; and
(iii) Website.
6. TERMINATION AND EXPIRY
6.1 Initial Term This Agreement commences on the Commencement Date and
continues until expiry of the Term unless terminated earlier in accordance with
the terms of this Agreement or renewed under section 1.3.
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earmap US, Inc.
6.2 Termination by Either Party Either party may terminate this Agreement with
immediate effect by giving notice to the other party if:
(a) the other party breaches any of its obligation under this Agreement capable of
remedy and fails to remedy that breach within fourteen (14) days after receiving
notice requiring it to do so;
(b) the other party breaches any of its obligations under this Agreement incapable of
remedy and Content; or
(c) the other party files for protection under bankruptcy laws, makes an assignment
for the benefit of creditors, appoints, or suffers appointment of a receiver or trustee
over its property, files a petition under any bankruptcy or insolvency act, or has
any such petition filed against it which is not discharged within sixty (60) days of
the filing thereof, or admits in writing its inability to pay its debt generally as they
become due.
6.3 Termination by Nearmap Notwithstanding anything else in this Agreement, but
subject to section 4.4, Nearmap has the right, in its absolute discretion and upon
giving the Licensee ten (10) Business Days' notice, to terminate this Agreement.
6.4 Consequences If the Agreement is terminated under sections 6.2 or 6.3 or
expires at the end of the Term:
(a) the License immediately terminates and the Products will no longer be available
to the Licensee;
(b) the Licensee must immediately destroy, delete, or return to Nearmap all Products;
and
(c) subject to section 7.3, the Licensee and the Authorized Users are not permitted
to use any Products for any purpose.
6.5 Costs Nearmap reserves all rights following termination of this Agreement,
including any rights available to Nearmap to collect any outstanding Fees which
may be owed by the Licensee. The Licensee will be liable for any reasonable legal
costs incurred by Nearmap in enforcing its rights following termination of this
Agreement.
6.6 Continuing obligations After expiry or termination of this Agreement, sections
1.5, 2, 4, 6.5, 7, 8, 9, 10, 13, 14, 15, and 17 will still be binding on the Licensee
in relation to Products licensed or obtained during the Term.
7. INTELLECTUAL PROPERTY
7.1 Ownership Unless otherwise indicated, the Website, the Products, the Content,
and all associated Intellectual Property Rights, data, information, and software
are owned by Nearmap and are protected by copyright, moral rights, trademark,
and other laws relating to the protection of intellectual property. Nearmap reserves
all of its Intellectual Property Rights. Except for the limited License granted to the
Licensee in section 1.1, no ownership or Intellectual Property Rights in the
Website, APIs, any Product, or Content will pass or be licensed to the Licensee.
7.2 Trademarks The Nearmap trademarks and all associated Intellectual Property
Rights are owned by Nearmap. Nothing in this Agreement confers upon the
Licensee any rights to use or modify any of Nearmap's trademarks, except that
Nearmap grants the Licensee a royalty free, limited, non-exclusive, non-
transferrable, non-sublicensable license to reproduce and display Nearmap
trademarks only to the extent necessary to comply with the Licensee's obligations
under this Agreement. Any such reproduction and display of those marks must
comply with the policies and rules Nearmap makes available to the Licensee from
time to time.
7.3 Derivative Works Subject to compliance with all other terms of this Agreement,
the Licensee is granted a non-exclusive right to produce and use Derivative
Works for the Permitted Purpose. Unless otherwise notified to the Licensee by
Nearmap, the Licensee may continue using Derivative Works following
termination or expiry of this Agreement. For the avoidance of doubt, Nearmap will
continue to own all rights in and to any Products and Content embedded in a
Derivative Work, but all other rights in and to the Derivative Work will belong to
the Licensee.
8. THIRD PARTY PROVIDERS
8.1 The Licensee acknowledges and accepts that Nearmap engages with Third Party
Providers in order to provide the Products under this Agreement. The provision of
the Products is contingent upon adequate delivery of products and services by
those Third Parry Providers and are subject to those Third Party Provider terms
and conditions (as updated from time to time). By entering into this Agreement, the
Licensee agrees that where applicable they must comply with those terms and
conditions which are applicable to the use of those Third Party Providers products,
where incorporated into Nearmap's Products. Nearmap have set out the type of
Third Party product or services incorporated into Nearmap's Products and the
relevant Third Party Providers terms and conditions below for reference.
(a) Google - httDs:HmaDS.0000le.com/heID/terms maDS.html in connection with the
use of Google Street Maps;
(b) NASA/NCAS - httos://www.nearmai).com/au/en/leaal/coovriaht in connection with
viewing satellite imagery on the Website; and
(c) Precisely - httos://www.Dreciselv.com/leaal/licensing/software-and-data-end-user-
license-agreement in connection with viewing property datasets on the Website
and/or through an API.
9. WARRANTY AND LIABILITY
9.1 Warranty Nearmap agrees to use industry standard GPS to ensure captured
imagery has accurate geographical positioning.
9.2 DISCLAIMER OF WARRANTIES OTHER THAN AS SET FORTH IN SECTION
9.1, THE WEBSITE AND THE PRODUCTS ARE PROVIDED ON AN "AS IS"
AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND,
TO THE FULLEST EXTENT PERMITTED BY LAW. NEARMAP AND ITS
CONTENT PROVIDERS, THIRD PARTY PROVIDERS, AGENTS,
MANDATARIES, AND AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL
Docusign Envelope ID: 44A62AD5-63CA-4COD-9CA8-086E9E5F6AOA
9.3
9.4
9.5
9.6
9.7
9.8
10.2
(a)
(b)
(c)
REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTEES,
WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED REPRESENTATIONS, WARRANTIES,
CONDITIONS, OR GUARANTEES OF MERCHANTABILITY, TITLE, FITNESS
FOR A PARTICULAR PURPOSE, NON -INFRINGEMENT, AND COURSE OF
DEALING OR PERFORMANCE.
NO REPRESENTATIONS WHILE NEARMAP USES REASONABLE EFFORTS
TO ENSURE THE ACCURACY, CORRECTNESS AND RELIABILITY OF THE
CONTENT, THE PRODUCTS, AND THE WEBSITE, NEARMAP AND ITS
THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS, WARRANTIES,
CONDITIONS, OR GUARANTEES AS TO THE ACCURACY,
CORRECTNESS, OR RELIABILITY OF ANY PRODUCT OR CONTENT
CONTAINED ON THE WEBSITE AND/OR OBTAINED THROUGH AN API.
THE PRODUCTS, THE WEBSITE AND APIs MAY BE SUBJECT TO
ERRORS, OMISSIONS, INACCURACIES, AND DISTORTIONS, AND
NEARMAP WILL NOT BE RESPONSIBLE FOR, OR LIABLE FOR ANY
CLAIMS MADE BY OR ARISING OUT OF, ANY PERSON OR ENTITY
SEEKING TO RELY ON ANY OF THE PRODUCTS, THE WEBSITE OR APIS.
LIMIT OF LIABILITY NEARMAP'S LIABILITY FOR: (A) A BREACH OF A
WARRANTY UNDER SECTION 9.1; OR (B) A BREACH OF A
REPRESENTATION, WARRANTY, CONDITION, OR GUARANTEE WHICH IS
IMPLIED OR IMPOSED IN RELATION TO THIS LICENSE UNDER
LEGISLATION AND CANNOT BE EXCLUDED, WILL BE LIMITED TO, AT
NEARMAP'S OPTION, REPLACING OR REPAIRING THE PRODUCTS OR
SUPPLYING PRODUCTS EQUIVALENT TO THE RELEVANT PRODUCTS, OR
PAYING THE COST OF REPLACING OR REPAIRING THEPRODUCTS.
NO LIABILITY FOR CLAIMS TO THE EXTENT PERMITTED BY LAW, IN NO
EVENT WILL NEARMAP, ITS CONTENT PROVIDERS, AGENTS,
MANDATARIES, OR AFFILIATES BE LIABLE FOR ANY CLAIMS OF ANY KIND
ARISING FROM OR CONNECTED WITH THE USE OF THE WEBSITE OR
APIS, THE CONTENT OR THE PRODUCTS, OR THE UNAVAILABILITY OF
THE SAME, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF
PROFITS, OR LOSS OF DATA, AND DIRECT, INDIRECT, INCIDENTAL,
PUNITIVE, AND CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT,
TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE),
EXTRACONTRACTUAL LIABILITY, OR OTHERWISE. THE LICENSEE IS
RESPONSIBLE FOR THE ENTIRE COST OF ALL SERVICING, REPAIR, OR
CORRECTION REQUIRED DUE TO THE LICENSEE'S USE OF THIS
WEBSITE, THE CONTENT OR THE PRODUCTS. THIS EXCLUSION
APPLIES, WITHOUT LIMITATION, TO ANY CLAIMS CAUSED BY OR
RESULTING FROM RELIANCE BY A USER ON ANY INFORMATION
OBTAINED FROM NEARMAP.
AGGREGATE LIMIT IN NO EVENT WILL THE AGGREGATE LIABILITY OF
NEARMAP, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING
NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED),
EXTRACONTRACTUAL LIABILITY, PRODUCT LIABILITY, STRICT LIABILITY
OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE
PRODUCTS, THE CONTENT, THE WEBSITE OR THE APIS, EXCEED ANY
COMPENSATION OR FEE THE LICENSEE HAS PAID, IF ANY, TO NEARMAP
FOR ACCESS TO OR USE OF THE PRODUCTS OVER THE TWELVE (12)
MONTH PERIOD PRIOR TO THE ALLEGED DEFAULT, BREACH, OR EVENT
GIVING RISE TO THE LIABILITY.
Third Party Providers The Licensee acknowledges that Nearmap relies on the
services of Third Party Providers in order to supply the Products and related
services. Without limiting any of the above, to the fullest extent permitted by
applicable law, Nearmap will not be liable for any loss, damage, or cost of any
kind, which is caused, or contributed to, by a third party service provider except
to the extent it was caused or contributed by the acts, defaults or omissions of
Nearmap.
Indemnity To the extent permitted by law, the Licensee agrees to indemnify
Nearmap and its directors, officers, employees, agents, mandataries, and
subcontractors, from and against any and all direct or indirect claims, damages,
losses, liabilities, expenses, and costs (including reasonable attorney's fees and
costs) arising from or out of:
the Licensee's actual or alleged breach of any provisions of this Agreement;
the Licensee's use of the Product for any purpose; and
the Licensee's use of, or any third party's use of, or inability to use, any
Derivative Works, including without limitation, any output from the Derivative
Works.
Notice of claim Nearmap will provide the Licensee with notice of any claim or
allegation, under section 9.8, and Nearmap has the right to participate in the
defense of any such claim at its expense.
COPYRIGHT COMPLAINTS
If any third party brings a Claim against the Licensee alleging that the
Licensee's use of the Products, in accordance with this License, infringes their
copyright ("Infringement Claim"), Nearmap will defend the Licensee against
the Claim and pay any settlement to which Nearmap consents or final court -
awarded damages for which the Licensee is liable.
The Licensee must:
promptly notify Nearmap of any such Infringement Claim;
not make any admissions in relation to the Infringement Claim without
Nearmap's prior written consent;
permit Nearmap to conduct the defense of the Infringement Claim including all
negotiations for settlement; and
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Nearmap US, Inc.
(d) provide Nearmap with any assistance reasonably requested to allow Nearmap to
defend the Infringement Claim.
10.3 Nearmap will have no liability for any Infringement Claim:
(a) that arises from any:
(i) use of the Product in violation of this Agreement;
(ii) modification of the Product by anyone other than Nearmap, or a party
authorized by Nearmap, in writing to modify the portion of the Product
applicable to the Infringement Claim; or
(iii) third -party products, services, hardware, software, or other materials, or a
combination of these with the Products, which would not be infringing
without this combination; or
(b) if the Licensee fails to comply with section 10.2.
10.4 To the maximum extent permitted by law, this section 10 sets out Nearmap's sole
and exclusive liability, and the Licensee's sole and exclusive remedy, for any third
party Infringement Claims brought against the Licensee in relation to an
infringement of Intellectual Property Rights.
11. PRIVACY POLICY
11.1 Nearmap will collect, use, and disclose any personal information supplied by the
Licensee as set out in Nearmap's Privacy Policy, as amended from time to time,
and currently available at hfDS://www.nearmaD.com/us/en/leaal/Drivaev-r)olicv.
The Licensee hereby consents to those collections, uses, and disclosures.
11.2 To the maximum extent permitted by law, by entering into this Agreement, the
Licensee expressly consents to receiving general emails relating to product
updates, new products, or anything related to the usage of the product from
Nearmap, but priorwritten consent is required to receive by email direct marketing
communications from Nearmap.
11.3 By entering into this Agreement, the Licensee acknowledges that personal
information provided by the Licensee in the course of accessing Products
(including, without limitation, credit or debit card details provided by the Licensee
for the purpose of paying Nearmap) may be disclosed to and held by one or more
of Nearmap's third party suppliers and partners (including, without limitation,
providers of payment processing services), and used by those third parties in
connection with the supply of Products.
12. FORCE MAJEURE
12.1 Force Majeure Event If a party is unable to perform or is delayed in performing
an obligation under this Agreement (except for any obligation to pay money,
including Fees) because of an act of war, terrorism, hurricane, earthquake, other
act of God or of nature, strike or other labor dispute, riot or other act of civil
disorder, embargo, or other cause beyond the performing party's reasonable
control ("Force Majeure Event"):
(a) that obligation is suspended but only so far and for so long as that party is affected
by the Force Majeure Event; and
(b) the affected party will not be responsible for any loss or expense suffered or
incurred by the other party, as a result of, and to the extent that, the affected party
is unable to perform, or is delayed in performing, its obligations under this
Agreement because of the Force Majeure Event.
12.2 Notice of Force Majeure Event If a Force Majeure Event occurs, the party
affected by the Force Majeure Event must:
(a) Promptly (when reasonably possible to do so) give the other party notice of the
Force Majeure Event and an estimate of the non-performance and delay;
(b) take all reasonable steps to overcome the effects of the Force Majeure Event; and
(c) resume compliance as soon as practicable after the Force Majeure Event no
longer affects it.
13. CONFIDENTIALITY
13.1 Subject to any other written agreements between the parties in connection with
this Agreement, any information provided in writing or orally or data provided by
either party under this Agreement ("Discloser") to the other party ("Recipient")
and marked or identified as proprietary or Confidential Information shall not be
disclosed for a period of three (3) years from termination or expiry of this
Agreement, unless mutually agreed in writing by the parties. The parties will
disclose Confidential Information only to their employees who have a need to
know for the purposes of this Agreement and who are under a duty of
confidentiality no less restrictive than the Licensee's duty hereunder. The
Recipient will protect Confidential Information from unauthorized use, access, or
disclosure in the same manner as it would protect their own confidential or
proprietary information of similar nature and with no less than reasonable care.
13.2 The confidentiality obligations do not apply to the Recipient if:
(a) the Discloser has first agreed in writing to the particular disclosure, use, or
copying;
(b) the Confidential Information was generally known by or available to the public
through no wrongful act of the Recipient or otherwise than as a consequence of
a breach of this Agreement;
(c) the Confidential Information was received by the Recipient without breach of this
Agreement from a third party without restriction as to the use and disclosure of
the Confidential Information; or
(d) the disclosure of Confidential Information is legally compelled due to compliance
with federal and state laws or an order by a court.
13.3 Immediately upon termination or expiry of this Agreement, the Recipient must
(at its expense):
(a) cease all use of the materials and Confidential Information;
(b) destroy or return (at the Discloser's discretion) the Confidential Information to
the Discloser together with all copies, reproductions and summaries of the
same;
(c) destroy all of its notes, memoranda and records (in whatever form) containing,
Docusign Envelope ID: 44A62AD5-63CA-4COD-9CA8-086E9E5F6AOA
referring to or based on the Confidential Information;
(d) ensure that any person who receives the Confidential Information by the
Recipient's authority returns the Confidential Information to the Discloser in
any form in which it is held or destroys it and gives evidence of its destruction
to the Discloser; and
(e) provide to the Discloser a written certificate confirming compliance with the
requirements under this section.
14. NOTICES
14.1 All notices and consents will be in writing and will be considered delivered and
effective upon receipt (orwhen delivery is refused) when:
(a) personally delivered;
(b) sent by registered or certified mail (postage prepaid, return receipt requested);
(c) sent by nationally recognized private courier (with signature required and all
fees prepaid); or
(d) sent by email with confirmation of transmission.
14.2 Notices must be sent to the Licensee at the address set forth in the Quote (or if
none is specified, the address to which Nearmap sends invoices) and for
Nearmap to 10897 South River Front Parkway, Suite 150, South Jordan, UT
84095, USA, or at another address as a party may designate in writing.
15. TECHNOLOGY EXPORT
The Licensee shall not: (a) permit any third party to access or use the Product in
violation of any U.S. or Canadian law or regulation; or (b) export any software
provided by Nearmap, or otherwise remove it from the United States or Canada,
except in compliance with all applicable U.S. and Canadian laws and regulations.
Without limiting the generality of the foregoing, the Licensee shall not permit any
third party to access or use the Product in, or export such software to, a country
subject to a United States embargo (as of the Effective Date, Cuba, Iran, North
Korea, Sudan, and Syria) or a Canadian embargo.
16. MISCELLANEOUS TERMS
16.1 Nearmap customer Licensee grants Nearmap the right to use Licensee's name
and logo to identify as a Nearmap customer for marketing or promotional
purposes in public or private communications with Nearmap's existing or
potential customers, subject to Licensee's standard trademark usage
guidelines as provided to Nearmap from time to time.
16.2 Additional Terms and Conditions The Additional Terms and Conditions form
part of, and should be read in conjunction with, this Agreement.
16.3 Precedence of Documents This Agreement is comprised of:
(a) the Additional Terms and Conditions under Schedule 1;
(b) the Quote and attached Schedules;
(c) any Product -Specific Terms; and
(d) this products agreement.
If there is any ambiguity or inconsistency between the documents comprising
the Agreement, the document appearing higher in the list will have precedence.
If the Licensee purchases the Products through a reseller, the terms and
conditions under this Agreement will apply. This Agreement between Nearmap
and the Licensee supersedes all terms and conditions attached to the
Licensee's and/or reseller's purchase order.
16.4 Independent Contractors The parties are independent contractors and will so
represent themselves in all regards. Neither party is the agent of the other, and
neither may make commitments on the other's behalf. The parties agree that
neither party's employee or contractor is an employee of the other party.
16.5 Construction The parties agree that the terms of this Agreement result from
negotiations between them. This Agreement will not be construed in favor of or
against either party by reason for authorship.
16.6 Waiver Neither party will be deemed to have waived any of its rights under this
Agreement by lapse of time or by any statement or representation other than by
an authorized representative in an explicit written waiver. No waiver of a breach
of this Agreement will constitute a waiver of any other breach of this Agreement.
16.7 Severability If one or more of the terms of this Agreement are found to be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining terms will not be affected.
16.8 Amendments Other than as expressly specified in this Agreement, this
Agreement may only be varied with the written consent of Nearmap and the
Licensee.
16.9 Assignment This Agreement shall not be assigned by either party without the
prior written consent of the other party which shall not be unreasonably withheld;
provided, however, that Nearmap may, upon written notice to the Licensee,
assign all of its rights under this Agreement to (i) a parent, subsidiary or Affiliate
of Nearmap, (ii) a purchaser of all or substantially all assets related to this
Agreement, or (iii) a third party participating in a merger, acquisition, sale of
assets or other corporate reorganization in which Nearmap is participating. Any
attempt to assign this Agreement in violation of this provision shall be void and of
no effect. This Agreement shall bind and inure to the benefit of the parties and
their respective successors and permitted assigns.
16.10 Entire Agreement This Agreement:
(a) comprises the entire agreement and understanding between the parties on
everything connected with the subject matter of this Agreement; and
(b) supersedes any prior agreement or understanding on anything connected
with that subject matter.
16.11 Counterparts This Agreement may consist of a number of counterparts and, if
so, the counterparts taken together constitute one and the same instrument.
This Agreement is not binding on any party unless one or more counterparts
have been duly executed by, or on behalf of, Nearmap and the Licensee.
16.12 Language The parties have expressly agreed that this Agreement, and all
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earmap US, Inc.
ancillary agreements, documents, or notices relating to the Agreement, be drafted
solely in the English language. Les parties aux preventes ont express6ment
convenu que cet accord et toute autre convention, document ou avis y afferent
soient rediges en anglais seulement.
16.13 Governing Law This Agreement will be governed by and construed in
accordance with the laws of the State where the Licensee conducts business
(without giving effect to the conflicts of laws provisions thereof).
17. DEFINITIONS
In this Agreement:
Additional Terms and Conditions means the additional terms and conditions (if any)
set out in the Quote.
Affiliate means, with respect to Nearmap, any entity that controls or is controlled by
Nearmap, or is under common control with Nearmap. For purposes of this definition, an
entity shall be deemed to control another entity if it owns or controls, directly or indirectly,
at least 50% of the voting equity of another entity (or other comparable interest for an
entity other than a corporation).
Allowance means any usage allowance the Licensee is permitted to use and/or drawn
down against for any Licensed Non -Government Products as specified the Quote.
API means application programming interface.
Authorized User means the number of persons specified in the "Seats" section of the
Quote, who have been granted access to the Product by the Licensee pursuant to the
term and conditions of this Agreement, and who either has been assigned a unique
Nearmap user login credential or whom the Licensee has assigned a user login
credential that enables access to the Product through the Website or API.
Business Days means any day other than a Saturday, a Sunday or a recognized public
holiday in the State of Utah, USA.
Claim means any claim, cost (including legal costs on a solicitor and client basis),
damages, debt, expense, tax, liability, loss, obligation, allegation, suit, action, demand,
cause of action, proceeding, orjudgment of any kind, however calculated or caused, and
whether direct or indirect, consequential, incidental or economic.
Commencement Date means (a) for New Subscription Quotes, the date as specified in
the "Contract Commencement" section or the "Subscription Start Date" section of the
Quote, whichever is later, or (b) for Renewal Quotes or Amendment Quotes, the date as
specified in the "Subscription Start Date" section of the Quote.
Commercial Purpose means to distribute, transfer, sell, sublicense, or pass
possession of any Products (in whole or in part) for the purpose of direct commercial
benefit or gain by the Licensee.
Confidential Information means the terms of this Agreement, the pricing, and any other
information relating to the business, finances, strategy, methods, processes, products,
metadata, services or other affairs of a party or its representatives or related bodies
corporate which is disclosed to, learnt by or accessed by the Licensee in connection with
the Agreement, whether before or after the Licensee entered into the Agreement,
whether orally, electronically, in writing or otherwise.
Content means any content made available by or on behalf of Nearmap to the Licensee
in connection with the License, whether or not through the Website or an API.
Coverage Area means the area specified in the "Coverage' section of the Quote for
which Nearmap has available Products, which may cover part or all of that area and
which may cover part (but not all) of the area covered by the Survey.
Derivative Work means any new work created by or for the Licensee that incorporates,
embeds, or includes all or part of a Nearmap Product or Content.
Discloser has the meaning given in section 13.1.
Fair Use Policy means the policy as attached to the Quote.
Fault means any fault, failure, error, or defect which prevents the Licensee from
accessing the Products, other than where access is prevented due to a planned
outage, because of an unforeseeable event beyond Nearmap's reasonable control or
any conduct or activity undertaken by the Licensee, the Licensee's employees, agents,
or mandataries.
Fees means the fees specified in the Quote, payable by the Licensee for the License,
or as otherwise agreed in writing between Nearmap and the Licensee.
Force Majeure Event has the meaning given in section 12.1.
Government Products means any Products specified in the Quote that are described
as "Nearmap Vertical for Government" and "Nearmap Oblique for Government" and
includes any other Products offered by Nearmap for government customers only
where use of its License is connected to the Fair Use policy.
Infringement Claim has the same meaning given in section 10.1.
Intellectual Property Rights includes all industrial and intellectual property rights
throughout the world, including copyright, moral rights, trademarks, patents, rights to
protect confidential information, and any other similar rights.
License means the license granted in section 1.1.
Licensee means the person or entity specified in the "Customer Name' section of the
Quote.
Nearmap means Nearmap US, Inc.
Non -Government Products means all Products specified in the Quote that do not fall
under the definition of Government Products.
Operational Hours means 9am to 5pm MT.
Periodic Allowance or Periodic Data Allowance means the data allowance specified
in the "Allowance" section of the Quote unless otherwise agreed in writing between
Nearmap and the Licensee.
Periodic Allowance Section means section 1.6 (or its equivalent) in the most current
version of the products agreement currently located at here.
Permitted Purpose means the use of Products by the Licensee for internal purposes
in the Licensee's ordinary business, and at all times excludes any:
(a) Commercial Purpose;
(b) Unlawful Purpose;
Docusign Envelope ID: 44A62AD5-63CA-4COD-9CA8-086E9E5F6AOA
(c) Integration, or attempt to integrate, the Products in an internal system of the
Licensee or of a third party; and
(d) Redistribution or copying of files, images, or photographs, or making such files,
images, or photographs available in any medium or manner that is contained in
the Products to any third party (except as expressly permitted under this
Agreement).
Products means any Nearmap products specified in the Quote (and further described
on the Website) and, if applicable, the Survey. For the avoidance of doubt, Products
include Content.
Product -Specific Terms means additional terms and conditions that apply to certain
Products, currently located here.
Quote the document produced after the Licensee places an initial order for the
Product(s), requests any changes to its License, or renews its License, which may
be titled "New Subscription Quote", "Renewal Quote' or "Amendment Quote'.
Recipient has the meaning given in section 13.1.
Renewal Term has the meaning given in section 1.3.
Schedule means a schedule to this Agreement, where such schedule has been
incorporated by reference to form part of this Agreement.
Subscription Period means the period stated in the "Subscription Period" column
of the Quote.
Subscription Start Date means the date specified in the "Subscription Start Date'
section of the Quote.
Term means the term specified in the "Subscription Term' section of the Quote,
commencing on the Commencement Date. Where a Subscription Period is stated
on the Quote, 'Term" means the Subscription Period.
Third Party Providers means third party providers of products and services
to Nearmap.
Unlawful Purpose means any unlawful purpose, including but not limited to
stalking, harassing or intimidating any person or engaging in misleading or
deceptive conduct.
URL means a Uniform Resource Locator.
Website means all pages and sub -sites available within the nearmap.com domain.
Page 8 o
earmap US, Inc.
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y_11:41IMM1i1I[Will
General
1. It is important to Nearmap that all customers are able to access the Products and Services. Accordingly, we have devised a Fair Use Policy that applies to the data
usage of the Products and Services.
2. In this Fair Use Policy:
a. Excessive Use has the meaning given to that term in section 7 of this Fair Use Policy;
b. Fair Use Policy means this policy;
C. Nearmap, we, us or our means Nearmap US, Inc.;
d. Products has the meaning given to that term in Your Nearmap Agreement;
e. Services has the meaning given to that term in Your Nearmap Agreement;
f. You or Your means any customer of Nearmap;
g. Your Nearmap Agreement means the agreement pursuant to which Nearmap provides You with various products and services, and
h. Unreasonable Use has the meaning given to that term in section 5 of this Fair Use Policy.
3. We reserve the right to vary the terms of this Fair Use Policy from time to time.
4. This Fair Use Policy is in addition to Your Nearmap Agreement and in the event of any inconsistency between the terms of this Fair Use Policy and the terms and
conditions of Your Nearmap Agreement, Your Nearmap Agreement prevails.
Unreasonable Use
5. We consider Your use of the Products and Services unreasonable where You use it in a manner which is reasonably considered by Nearmap to be fraudulent use, to
be contrary to Your Nearmap Agreement or to adversely affect other Nearmap customers' use of or access to the Products and Services.
6. Among other things, "fraudulent use" includes resupply of the Products and Services without Nearmap's consent so that someone else may access or use the
Products and Services or take advantage of the Products and Services.
Excessive Use
7. Excessive Use is a continuing and unreasonably disproportionate use of the Products and Services when compared to other average individual named users.
Nearmap's Rights
8. Where Your use of the Products and Services constitutes Unreasonable Use and/or Excessive Use, Nearmap may contact You to discuss changing Your usage
pattern so that it conforms with this Fair Use Policy, or to upgrade to a more suitable Product or Service (ifapplicable).
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 o 9
earmap S, Inc.
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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."
The Contract documents shall include the following:
1. New Subscription Quote;
2. The Products Agreement; and
3. This Addendum.
Notwithstanding any language to the contrary in the attached Products Agreement
("Agreement"), the parties 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:
I. Term. The Agreement shall commence upon the date signed by the Assistant City
Manager below ("Effective Date") and shall expire no later than October 5, 2025 ("Expiration
Date,") unless terminated earlier in accordance with the provisions of this Agreement or otherwise
extended by the parties. This Agreement may be renewed for one (1) one-year renewal period at
the City's option, each a "Renewal Term." Annual increase in costs for each Renewal Term shall
not exceed three percent of the previous year's annual contract value. The 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 the Agreement by giving
written notice to the breaching party. In the event that the Agreement is terminated prior to
the Expiration Date, Vendor shall refund any pre -paid fees to the City from the effective
date of termination.
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
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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.
3. Attomevs' 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 Immunitv. 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.
8. Limitation of Liabilitv and Indemnitv. Vendor agrees the exclusions or limits of
liability, as may be stated elsewhere in the Agreement, shall not apply to the City's claim or loss
arising from any of the following: (a) Vendor's breach of its data security obligations; (b)
Vendor's misuse or misappropriation of the City's intellectual property rights, (c) Vendor's
indemnity obligations, or (d) any other obligations that cannot be excluded or limited by
applicable law. 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
Addendum to Products Agreement Page 2 of 9
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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 the Agreement, it being understood that the 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 the 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 the 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) 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 (b) replace the Deliverable(s) with equally suitable,
compatible, and functionally equivalent non -infringing Deliverable(s) at no additional
charge to City; or (c) if none of the foregoing alternatives is reasonably available to
Vendor, terminate the 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 REQUIRED BY CITY.
10. Data Breach. Vendor further agrees that it will monitor and test its data
safeguards from time to time, and further agrees to adjust its data safeguards from time
to time in light of relevant circumstances or the results of any relevant testing or
monitoring. Vendor will defend, indemnify and hold City, its Affiliates, and their
respective officers, directors, employees and agents, harmless from and against any and
all claims, suits, causes of action, liability, loss, costs and damages, including reasonable
attorney fees, arising out of or relating to any third party claim arising from breach by
Vendor of its obligations contained in this Section, except to the extent resulting from the
acts or omissions of City.
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11. No Mandatory Arbitration. To the extent the Agreement requires mandatory
arbitration to resolve conflicts, City objects to these terms and any such terms are hereby deleted
from the Agreement and shall have no force or effect.
12. Insurance. Vendor agrees that insurance coverage provided to City by Vendor is
sufficient for purposes of the Agreement only.
13. 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.
14. Public 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.
15. 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.
16. Immigration Nationalitv Act. Vendor shall verify the identity and employment
eligibility of its employees who perform work under the 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 the 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
the Agreement for violations of this provision by Vendor.
17. No Bovcott 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 2271 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
Addendum to Products Agreement Page 4 of 9
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ascribed to those terms in Section 2271 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.
18. Ri2ht 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. With thirty (30) days written notice, 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.
19. Prohibition on Bovcottin2 Ener2v Companies. Vendor acknowledges that in
accordance with Chapter 2276 of the Texas Government Code, the City is prohibited from
entering into a contract for goods or services that has a value of $100,000 or more that is to be
paid wholly or partly from public funds of the City with a company with 10 or more full-time
employees unless the contract contains a written verification from the company that it: (1) does
not boycott energy companies; and (2) will not boycott energy companies during the term of the
contract. The terms "boycott energy company" and "company" have the meaning ascribed to
those terms by Chapter 2276 of the Texas Government Code. To the extent that Chapter 2276
of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor
certifies that Contractor's signature provides written verification to the City that Contractor: (1)
does not boycott energy companies; and (2) will not boycott energy companies during the term
of this Agreement.
20. Prohibition on Discrimination Against Firearm and Ammunition Industries.
Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas
Government Code, the City is prohibited from entering into a contract for goods or services that
has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City
with a company with 10 or more full-time employees unless the contract contains a written
verification from the company that it: (1) does not have a practice, policy, guidance, or directive
that discriminates against a firearm entity or firearm trade association; and (2) will not
discriminate during the term of the contract against a firearm entity or firearm trade association.
The terms "discriminate," "firearm entity" and "firearm trade association" have the meaning
ascribed to those terms by Chapter 2274 of the Texas Government Code. To the extent that
Chapter 2274 of the Government Code is applicable to this Agreement, by signing this
Agreement, Vendor certifies that Contractor's signature provides written verification to the City
that Contractor: (1) does not have a practice, policy, guidance, or directive that discriminates
against a firearm entity or firearm trade association; and (2) will not discriminate against a
firearm entity or firearm trade association during the term of this Agreement.
21. Insurance.
1.1. The Vendor shall carry the following insurance coverage with a company
that is licensed to do business in Texas or otherwise approved by the City:
Addendum to Products Agreement Page 5 of 9
Docusign Envelope ID: 44A62AD5-63CA-4COD-9CA8-086E9E5F6AOA
I.I.I. Commercial General Liability:
1.1.1.1. Combined limit of not less than $2,000,000 per
occurrence; $4,000,000 aggregate; or
1.1.1.2. Combined limit of not less than $1,000,000 per
occurrence; $2,000,000 aggregate and Umbrella Coverage in the amount of
$4,000,000. Umbrella policy shall contain a follow -form provision and shall
include coverage for personal and advertising injury.
1.1.1.3. Defense costs shall be outside the limits of liability.
1.1.2. Statutory Workers' Compensation and Employers' Liability
Insurance requirements per the amount required by statute.
1.1.3. Technology Liability (Errors & Omissions)
1.1.3.1. Combined limit of not less than $2,000,000 per
occurrence; $4million aggregate or
1.1.3.2. Combined limit of not less than $1,000,000 per
occurrence; $2,000,000 aggregate and Umbrella Coverage in the amount of
$4,000,000. Umbrella policy shall contain a follow -form provision and shall
include coverage for personal and advertising injury. The umbrella policy
shall cover amounts for any claims not covered by the primary Technology
Liability policy. Defense costs shall be outside the limits of liability.
1.1.3.3. Coverage shall include, but not be limited to, the
following:
1.1.3.3.1. Failure to prevent unauthorized access;
1.1.3.3.2. Unauthorized disclosure of information;
1.1.3.3.3. Implantation of malicious code or computer
virus;
1.1.3.3.4. Fraud, Dishonest or Intentional Acts with
final adjudication language;
1.1.3.3.5. Intellectual Property Infringement coverage,
specifically including coverage for intellectual property
infringement claims and for indemnification and legal defense of
any claims of intellectual property infringement, including
infringement of patent, copyright, trade mark or trade secret,
Addendum to Products Agreement Page 6 of 9
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brought against the City for use of Deliverables, Software or
Services provided by Vendor under this Agreement;
1.1.3.3.6. Technology coverage may be provided
through an endorsement to the Commercial General Liability (CGL)
policy, a separate policy specific to Technology E&O, or an
umbrella policy that picks up coverage after primary coverage is
exhausted. Either is acceptable if coverage meets all other
requirements. Technology coverage shall be written to indicate that
legal costs and fees are considered outside of the policy limits and
shall not erode limits of liability. Any deductible will be the sole
responsibility of the Vendor and may not exceed $50,000 without
the written approval of the City. Coverage shall be claims -made,
with a retroactive or prior acts date that is on or before the effective
date of this Agreement. Coverage shall be maintained for the
duration of the contractual agreement and for two (2) years
following completion of services provided. An annual certificate of
insurance, or a full copy of the policy if requested, shall be submitted
to the City to evidence coverage; and
1.1.3.3.7. Any other insurance as reasonably requested
by City.
1.2. General Insurance Requirements:
1.2.1. All applicable policies shall name the City as an additional insured
thereon, as its interests may appear. The term City shall include its employees,
officers, officials, agents, and volunteers in respect to the contracted services.
1.2.2. The workers' compensation policy shall include a Waiver of
Subrogation (Right of Recovery) in favor of the City of Fort Worth.
1.2.3. A minimum of Thirty (30) days' notice of cancellation or reduction
in limits of coverage shall be provided to the City. Ten (10) days' notice shall be
acceptable in the event of non-payment of premium. Notice shall be sent to the
Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102,
with copies to the City Attorney at the same address.
1.2.4. The insurers for all policies must be licensed and/or approved to do
business in the State of Texas. All insurers must have a minimum rating of A- VII
in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial
strength and solvency to the satisfaction of Risk Management. If the rating is below
that required, written approval of Risk Management is required.
1.2.5. Any failure on the part of the City to request required insurance
documentation shall not constitute a waiver of the insurance requirement.
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Docusign Envelope ID: 44A62AD5-63CA-4COD-9CA8-086E9E5F6AOA
1.2.6. Certificates of Insurance evidencing that the Vendor has obtained
all required insurance shall be delivered to and approved by the City's Risk
Management Division prior to execution of this Agreement.
(signature page follows)
Addendum to Products Agreement Page 8 of 9
Docusign Envelope ID: 44A62AD5-63CA-4COD-9CA8-086E9E5F6AOA
Executed effective as of the date signed by the Assistant City Manager below.
CITY:
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By:
Name: Richard Zavala
Title: Interim Assistant City Manager
Date: Mar 14, 2025
NEARMAP US, INC.:
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By:
Name:
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Title: Deputy General counsel
Date: 14 March 2025
CITY OF FORT WORTH INTERNAL ROUTING PROCESS:
Approval Recommended:
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By:
Name: Kevin Gunn
Title: Director, IT Solutions
Approved as to Form and Legality:
M. KP✓lVJ 4nder,,, //
By: M. Kevin Anders, II (Mar 14, 2025 09:23 CDT)
Name: M. Kevin Anders, II
Title: Assistant City Attorney
Contract Authorization:
M&C: 25-0132
Approval Date: 02/25/2025
Form 1295: 2024-1247000
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
and reporting requirements.
By: Mark Deboer(Mar 14,202509:04 CDT)
Name: Steven Vandever
Title: Sr. IT Solutions Manager
City Secretary:
By:
Name: Jannette Goodall
Title: City Secretary
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OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Addendum to Products Agreement Page 9 of 9
Official site of the City of Fort Worth, Texas
ACITY COUNCIL AGEND FOR`H
Create New From This M&C
DATE: 2/25/2025 REFERENCE **M&C 25- LOG NAME: 04NEARMAP SOLE
NO.: 0132 SOURCE AGREEMENT
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: (ALL) Authorize Execution of Sole Source Agreement with Nearmap US, Inc. for Citywide
Aerial Photography Services in an Annual Amount Up to $165,000.00 for the Initial Term
and Authorize Four One -Year Renewal Options in Increasing Amounts Not To Exceed
Three Percent Per Annum for the Information Technology Solutions Department
RECOMMENDATION:
It is recommended that the City Council authorize execution of a Sole Source Agreement with
Nearmap US, Inc. for citywide aerial photography services in an annual amount up to $165,000.00 for
the initial term and authorize four one-year renewal options, in increased amounts not to exceed three
percent (3\%) per annum, for the Information Technology Solutions Department.
DISCUSSION:
On June 25, 2019, Mayor & Council Communication (M&C) P-12344 authorized the execution of City
Secretary Contract No. (CSC) 52864 with Nearmap US, Inc. (Nearmap), in response to Invitation to
Bid (ITB) No. 19-0099. ITB 19-0099 was issued for Orthorectified imagery (Orthoimagery) aerial
photography of current city limits, extraterritorial jurisdiction (ETJ), plus an additional 1-mile buffer.
On October 1, 2019, the City executed CSC 52864 for citywide aerial photography services for a one-
year term, with four one-year renewal options. CSC 52864 expired on October 3, 2024 with all renewal
options utilized. Upon expiration of CSC 52864, Nearmap required the City to delete all historical
Orthoimagery provided during the term of the agreement. The City immediately lost access to the
Orthoimagery that provided aerial images from 2020, 2021, 2022, 2023, and 2024 of city limits and
ETJ areas for the City's various mapping platforms. These platforms include the City's zoning map,
ArcGIS platforms and Computer -Aided Dispatch (CAD) system. City departments utilize the aerial
images for various uses, including the following:
Transportation and Public Works: Impervious surface modeling for customer billing,
FWLab: Validation of current land use for planning purposes , and
Parks and Recreation: Assessing tree canopy size.
Due to the importance of these aerial images, City staff began sourcing replacement data for the five
years of Orthoimagery aerial images lost upon expiration of CSC 52864. Adequate replacement data
is available through county data provided by the City's five coverage counties (Denton, Johnson,
Parker, Tarrant, and Wise counties) but is not immediately available.
To ensure prolonged lapse of coverage is not experienced while the replacement data is sourced; a
Chapter 252 Exemption was requested and approved by the City Attorney's Office as a sole source
exemption.
This M&C requests authorization to execute a one-year Sole Source Agreement with Nearmap in an
annual amount not to exceed $165,000.00 with four (4) one-year renewal options with increased
annual renewal cost not to exceed three percent (3\%) per annum. This agreement will allow for
continued access to Orthoimagery aerial images owned by Nearmap while the replacement data is
sourced.
DVIN: This project was approved for a waiver per the Chapter 252 Exemption, as a sole source by the
Legal Department. Therefore, the business equity goal requirement is not applicable.
Funding is budgeted in the Other Contractual Services account within the Info Technology Systems
Fund for the Information Technology Solutions Department.
ADMINISTRATIVE CHANGE ORDER: 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.
AGREEMENT TERMS: Upon City Council approval and execution of the Sole Source agreement, this
agreement shall begin October 4, 2024 and expire one (1) year from that date.
RENEWAL TERMS: This agreement may be renewed for four (4) one-year renewal terms at the City's
option. Increases to annual renewal cost will not exceed 3\% per annum. This action does not require
specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy
the City's obligations during the renewal term.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that upon approval of the recommendation, funds are available in the
current operating budget, as previously appropriated, in the Info Technology Systems Fund. Prior to an
expenditure being incurred, the Information Technology Services Department has the responsibility to
validate the availability of funds.
TO
Fund Department I Account Project
ID ID
FROM
Fund Department Account Project
ID ID
Submitted for City Manager's Office by_
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
Program Activity Budget Reference # Amount
Year (Chartfield 2)
Program Activity Budget Reference # Amount
Year (Chartfield 2)
Mark McDaniel (6316)
Kevin Gunn (2015)
Mark Deboer (8598)
Approved Chapter 252 Exemption Form - Nearmap FY2025 Contract.pdf (CFW Internal)
FID Table Nearmap Sole Source Aareement.xlsx (CFW Internal)
Form 1295 Certificate 101300631.pdf (CFW Internal)
Fund Availabilitv - Nearmap Sole Source.pdf (CFW Internal)
Request for Waiver of Business Equitv Nearmap Final-CC.pdf (CFW Internal)