Contracts & Agreements_149-2018 - Laserfiche WebLink

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91 Warranty Nearmap agrees to use industry standard GPS to ensure captured imagery has accurate geographical positioning 9.2 DISCLAIMER OF WARRANTIES OTHER T14AN AS SET FORTH IN SECTION 9 1 THE WEBSITE AND THE PRODUCTS ARE PROVIDED ON AN "AS IS' AND "AS AVAILABLE BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW NEARMAP AND ITS CONTENT PROVIDERS AGENTS AND AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY TITLE FITNESS FOR A PARTICULAR PURPOSE NON INFRINGEMENT, AND COURSE OF DEALING OR PERFORMANCE 9.3 NO REPRESENTATIONS WHILE NEARMAP USES REASONABLE EFFORTS TO ENSURE THE ACCURACY CORRECTNESS AND RELIABILITY OF THE PRODUCTS AND THE WEBSITE NEARMAP MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, CORRECTNESS OR RELIABILITY OF ANY PRODUCT OR CONTENT CONTAINED ON THE WEBSITE THE PRODUCTS AND THE WEBSITE ARE SUBJECT TO ERRORS OMISSIONS INACCURACIES AND DISTORTIONS AND NEARMAP WILL NOT BE RESPONSIBLE FOR, OR LIABLE FOR ANY CLAIMS MADE BY OR ARISING OUT OF ANY PERSON OR ENTITY SEEKING TO RELY ON ANY OF THE PRODUCTS OR THE WEBSITE 9.4 LIMIT OF LIABILITY NEARMAP'S LIABILITY FOR (A) A BREACH OF A WARRANTY UNDER SECTION 91 OR (B) A BREACH OF A WARRANTY WHICH IS IMPLIED OR IMPOSED IN RELATION TO THIS LICENSE UNDER LEGISLATION AND CANNOT BE EXCLUDED WILL BE LIMITED TO, AT NEARMAP'S OPTION REPLACING OR REPAIRING THE PRODUCTS OR SUPPLYING PRODUCTS EQUIVALENT TO THE RELEVANT PRODUCTS OR PAYING THE COST OF REPLACING OR REPAIRING THE PRODUCTS 9.5 NO LIABILITY FOR CLAIMS TO THE EXTENT PERMITTED BY LAW IN NO EVENT WILL NEARMAP, ITS CONTENT PROVIDERS, AGENTS OR AFFILIATES BE LIABLE FOR ANY CLAIMS OF ANY KIND ARISING FROM OR CONNECTED WITH THE USE OF THE WEBSITE 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) 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 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 9,6 AGGREGATE LIMIT IN NO EVENT WILL THE AGGREGATE LIABILITY OF NEARMAP WHETHER IN CONTRACT WARRANTY TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE PASSIVE OR IMPUTED) PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING TO THE USE OF THE PRODUCTS EXCEED ANY COMPENSATION OR FEE THE LICENSEE HAS PAID IF ANY TO NEARMAP FOR ACCESS TO OR USE OF THE PRODUCTS OVER THE 12 MONTH PERIOD PRIOR TO THE ALLEGED DEFAULT BREACH OR EVENT GIVING RISE TO THE LIABILITY 97 Third Party Providers The Licensee acknowledges that Nearmap relies on the services of Third Party Providers in order to supply the products and services Without limiting any of the above, for the avoidance of doubt, 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 9.8 Indemnity The Licensee agrees to indemnify Nearmap and its directors, officer employees agents 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 (a) the Licensee's actual or alleged breach of any provisions of this Agreement (b) the Licensee's use of the Product for any purpose and (c) 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 9.9 Nearmap will provide the Licensee with notice of any such claim or allegation and Nearmap has the right to participate in the defense of any such claim at its expense 10 COPYRIGHT COMPLAINTS 101 Subject to section 9, if any third party brings a Claim against the Licensee alleging that the Licensee's use of the Products in accordance with this License infringes thei r 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 10.2 The Licensee must (a) promptly notify Nearmap of any such Infringement Claim (b) not make any admissions in relation to the Infringement Claim without Nearmap's prior written consent (c) permit Nearmap to conduct the defense of the Infringement Claim including all negotiations for settlement and (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) ny(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 by Nearmap to modify the portion of the Product applicable to the Infringement Claim, or Nearmap US Inc. Version: 29 May 2018 (iii) third -party products services hardware software or other materials or a combination of these with the Products would not be infringing without this combination or (b) if the Licensee fails to comply wish 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 use any data supplied by the Licensee as set out in Nearmap's Pnvacy Policy available at htip:lloo.nearmap.comllenallpnvacv policy 112 By entering into this Agreement the Licensee expressly consents to receiving by email direct marketing communications from Nearmap 11.3 By entering into this Agreement, the Licensee acknowledges that persona information provided by the Licensee in the course of accessing Products (including without limitation credit or debit card details provided by the Licensee for the purpose of paying Nearmap) may be disclosed to and held by one or more of Nearmap's third party suppliers and partners (including without limitation providers of payment processing services) and used by those third parties in connection with the supply of Products Nearmap will have no liability whatsoever with respect to any personal information held by a third party in connection with the supply of Products 12 FORCE MAJEURE 121 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 acts of war terrorism hurricanes, earthquakes other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder embargoes or other causes 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 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 Fvent and (c) resume compliance as soon as practicable after the Force Majeure Event no longer affects it 13 CONFIDENTIALITY 131 The Product includes metadata and other confidential and proprietary information of Nearmap (Confidential Information) The Licensee must not use any Confidential Information for any purpose not expressly permitted hereunder and will disclose Confidential Information only to its employees who have a need to know for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Licensee's duty hereunder The Licensee will protect Confidential Information from unauthorized user, access, or disclosure in the same manner as it would protect its own confidential or proprietary information of similar nature and with no less than reasonable rare 14 NOTICES 14.1 All notices and consents will be in writing and will be considered delivered and effective upon receipt (or when delivery is refused) when (a) personally delivered (b) sent by registered or certified mail (postage prepaid, return receipt requested), (c) sent by nationally recognized private courier (with signature required and all fees prepaid) or (d) sent by email with confirmation of transmission Notices must be sent to the Licensee at She 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 151 The Licensee shall not (a) permit any third party to access or use the Product in violation of any U.S law or regulation, or (b) export any software provided by Nearmap or otherwise remove it from the United States except in compliance with all applicable U.S 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 State embargo (as of the Effective Date Cuba Iran North Korea Sudan and Syria) 16 NEARMAP NOW 161 Survey During the Term the Licensee may request a survey of an area which is not covered (in its entirety or in part) by the Coverage Area (Survey) The Licensee must provide a detailed description of the area that is to be covered by the Survey and which is to be included in the Survey Specification. Upon receipt of such a request in writing Nearmap may,in its absolute discretion agree to provide the Survey to the Licensee 16.2 Delivery of Survey Subject to sections 12 and 16 1 Nearmap will deliver the Survey to the Licensee by uploading the Survey to the Webslte within 6 months of the date on which Nearmap receives payment of the Survey Fee in full from the Licensee Nearmap will notify the Licensee in writing once the Survey has been uploaded to the Website 16.3 Availability to other Nearmap customers Nearmap may, at its absolute discretion allow other customers of Nearmap to access the Survey on the Website