1. Scope of Agreement. During the Term of this Agreement, Licensee may license Data Products from GeoMate and obtain support and other related services pursuant to the terms and conditions of this Agreement by executing Order in the form attached hereto as Attachment 1. Each Order shall be signed by GeoMate and Licensee shall incorporate this Agreement by reference and shall give rise to a separate and distinct contract under this Agreement.
2. License Grant: Ownership
a. License. Subject to the Licensee’s compliance with this Agreement and all applicable Orders, including the payment of all required fees, GeoMate grants to Licensee a limited, non-exclusive, non-transferable (other than as set forth herein) right and license during the Term of the applicable Order to use the Data Products solely for the purposes expressly outlined in the applicable Order (the “Permitted Uses”). GeoMate and its third-party licensors retain title to and ownership of the Data Products (and any portion thereof) and related documentation and reserve all rights not expressly granted to Licensee under this Agreement or an applicable Order.
b. Customer Agreement. If Licensee is authorized in an Order to sublicense the Data Products to Customers, Licensee shall ensure that a written agreement between Licensee and Customers contains, at a minimum, terms and conditions substantially in the form set forth in Attachment 1 and (ii) the Customer must expressly indicate its agreement with such terms and conditions via a click-through, similar features, or any means for acknowledgement permissible under applicable law prior to being given access to products or services incorporating the Data Products.
3. License Restrictions; Licensee Responsibilities.
a. Unless otherwise provided in an Order, Licensee may not use the Data Products (i) directly on any public-facing web site (but any derivative work based thereon that excludes the raw data provided by GeoMate shall be permitted), or (ii) to provide consulting, or transaction-based services or any other services to third parties that would result in the sharing of raw data provided by GeoMate with any third parties.
b. Unless otherwise provided in an Order or approved by GeoMate in writing, Licensee may not (i) reverse engineer, decompile or disassemble the Data Products, (ii) disclose, deliver, disseminate, reproduce or publish any portion of the Data Products in any manner, (iii) make copies of the Data Products, except as permitted herein, (iv) sublicense, rent, lease, lend or host the Data Products to or for other parties or (v) publish or publicly disclose the results of any comparison of Data Products to other data. Licensee may make a reasonable number of copies of the Data Products solely for backup or disaster recovery purposes.
c. Licensee may not modify or add to the Data Products in any manner that has the effect of requiring the Data Products, or any portions thereof, modifications thereto or derivative works thereof, to be (i) disclosed or distributed in source code form, (ii) licensed to third parties for the purpose of making derivative works or redistributing such software, (iii) licensed or otherwise distributed to third parties at no charge or pursuant to a free, “open source”, ”share-alike”, or similar license agreement.
d. Licensee will house the Data Products behind firewalls and Licensee will prevent unauthorized usage or copying of the Data Products. Without limiting the foregoing, Licensee will implement a system of controls that will (a) protect the integrity of the Data Products; (b) control access to the Data Products; and (c) if applicable, ensure that Licensee’s usage of the Data Products is accurately recorded to the extent necessary for calculating any applicable royalties.
4. Updates; Support.
During the Term of an Order, GeoMate will provide to Licensee all Updates of the Data Products. GeoMate will promptly address Data Products support questions that Licensee direct to email for support.
5. Responsible Use.
GeoMate does not make any claim, and disclaims all warranties, express or implied, as to the accuracy or completeness of the Data Products. The Data Products should not be considered precise and should not be used for engineering, aerial or other navigation, or similar uses where inaccuracies in the data could lead death or bodily harm (but such use restriction shall not apply to any derivatives based on the Data Products). GeoMate disclaims any liability arising from, and Licensee agrees it will not hold GeoMate responsible for, any errors or inaccuracies in the Data Products.
6. Fees; Payment.
a. Fees. Licensee shall pay to GeoMate, or GeoMate’s authorized designee or agent, the license, maintenance, training and any other fees set forth in the Order, as may be applicable to Licensee. Licensee shall also pay to GeoMate any applicable sales, use, value added, personal property, or other taxes and government charges imposed on transactions hereunder, exclusive of GeoMate’s net income, real estate, personnel-related, or corporate franchise taxes.
b. Payment. All fees identified in the Order or this Agreement and any applicable taxes are due and payable within forty-five (45) days from receipt of GeoMate’s invoice. Unless identified in an Order, all fees are stated in and shall be paid in United States currency.
7. Term and Termination.
a. Term. This Agreement is effective on the date set forth above and shall continue until terminated as provided in this Agreement or as agreed to by the parties. Each Order is effective as of the date of such Order and shall remain in effect for the Term set forth in the Order or until terminated as provided in this Agreement.
b. Termination for Cause. Either party may terminate this Agreement immediately if the other party (i) fails to cure a material breach of its obligations under this Agreement or cease any conduct in violation of this Agreement, in either case within 30 days following written notice of such breach or violation from the non-breaching party; or (ii) ceases to carry on business, becomes or is declared insolvent or bankrupt, is subject to any proceeding relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes a general assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension or readjustment of all or substantially all of its obligations.
c. Termination without Cause. Licensee may terminate this Agreement for any or no reason at any time upon thirty (30) written days’ prior written notice to GeoMate; provided, however, that any termination by Licensee pursuant to this paragraph shall not release Licensee from its obligation to pay all amounts due hereunder for the full remaining term of any Order in effect at the time of termination. GeoMate may terminate this Agreement for any or no reason upon thirty (30) days prior written notice in the event that there is no active Order outstanding.
d. Effects of Termination. Upon expiration or termination of an Order for any reason, unless a Data Products license is renewed by a succeeding order or is otherwise extended beyond termination pursuant to an Order, (i) the license rights granted in Section 2 of this Agreement and the applicable Order automatically terminate and (ii) Licensee will promptly cease use of the applicable Data Products and purge its system and records of such Data Products, including all copies thereof. Notwithstanding the foregoing and anything to the contrary herein, in the event of termination hereof for any reason other than Licensee’s material and uncured breach, this Agreement shall continue in full force and effect through the end of any Customer Agreement then in-effect as of the effective date of such termination. Upon termination of this Agreement for any reason, GeoMate and Licensee shall each promptly destroy all Confidential Information of the other party in its possession.
8. Audit Rights.
GeoMate shall have the right, upon reasonable notice to Licensee, no more than one (1) time in each twelve (12) month period during the Term and at GeoMate’s sole cost and expense, during Licensee’s regular business hours, to audit Licensee’s use of the Data Products. Any such audit shall consist solely of a review of Licensee’s compliance with the terms and conditions of this Agreement and any then-current Order, and shall be strictly limited to those systems and contracts (redacted) that directly relate to Licensee’s use of the Data Products. Licensee shall provide commercially reasonable assistance to GeoMate during such review. If an audit determines that Licensee’s use of the Data Products fails to materially comply with the terms of the Agreement and an Order such that the resulting additional license fees owed by Licensee are fifteen percent (15%) or more of the then-current license fees, Licensee shall reimburse GeoMate for the cost of such audit. The results of any such audit (including any Customers of Licensee) shall be deemed Licensee’s Confidential Information.
a. Confidential Information. During the Term of this Agreement, GeoMate and each Licensee may have access to Confidential Information of the other party. Confidential Information shall include, but is not limited to: (i) Data Products; (ii) this Agreement, Orders, documentation, and training materials; (iii) customer and prospect lists, existing agreements with vendors and business partners; (iv) pricing proposals, financial and other business information, data and plans; (v) research and development information; (vi) formulae, methods, know-how, processes, designs, performance tests, product evaluations, computer software, bug fixes and reported problems with the Data Products; (vii) information concerning the customers and potential customers of either party; and (viii) any other information identified in writing as confidential or information that the receiving party knew or reasonably should have known was confidential given the context of the disclosure.
b. Nondisclosure. Confidential Information shall be used solely for each party’s performance under this Agreement and the exercise of its rights hereunder and shall not be disclosed to any third party. Each party shall take reasonable precautions, at least as great as the precautions it takes to protect its own confidential information, to maintain the Confidential Information of the other party in strict confidence. Each party may, subject to the terms of this Agreement, disclose the other party’s Confidential Information to any entity controlling, controlled by or under common control with such party or a third-party consultant or contractor assisting such party with the performance of its obligations under this Agreement. The disclosing partys hall require such third-party consultant or contractor to agree in writing to confidentiality provisions at least as protective of confidential information as the provisions set out herein.
c. Exclusions. Confidential Information shall not include any information that the receiving party can establish: (i) is or subsequently becomes publicly available through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to disclosure of such information; (iii) is subsequently disclosed to receiving party by a third party who is not in breach of an obligation of confidentiality; or (iv) is independently developed by the receiving party without the use or benefit of the Confidential Information. Confidential Information may be disclosed under a court order, or a valid subpoena, to the extent legal counsel for the receiving party determines in its reasonable discretion that the disclosure of such Confidential Information is reasonably required and promptly notifies the disclosing party in writing of such determination and provides the disclosing party an opportunity to seek an appropriate protective order prior to disclosing such Confidential Information. In no event, shall the Data Products be excluded from treatment as Confidential Information under Section 8 (c)(i)-(iii).
d. Equitable Relief. GeoMate and/or Licensee may be irreparably damaged if the obligations under this Section are not enforced and such party may not have an adequate remedy in the event of a breach by the other party of its obligations hereunder. The parties agree, therefore, that such party may be entitled, in addition to other available remedies, to seek an injunction restraining any actual, threatened or further breaches of the other party’s obligations under this Section or any other appropriate equitable order or decree.
Each party represents and warrants to the other party that it has all legal right and authority to enter into this Agreement. GeoMate represents and warrants to Licensee that: (a) GeoMate either owns the Data Products or has obtained all third-party rights, licenses and consents necessary to grant to Licensee the license rights granted herein, (b) the exercise by Licensee of the rights and licenses granted herein or in any Order will not violate or infringe the intellectual property rights of any third party, (c) the Data Products do not use, require, copy or incorporate materials that are subject to a license agreement (or any other terms or conditions) that has the effect of requiring t he Data Products, or any portions thereof, modifications thereto or derivative works thereof, to be (i) disclosed or distributed in source code form, (ii) licensed to third parties for the purpose of making derivative works or redistributing such software or otherwise, (iii) licensed or otherwise distributed to third parties at no charge or pursuant to a free, “open source”, “share-alike”, or similar license agreement. EXCEPT AS EXPRESSLY SET FORTH ABOVE, NEITHER GEOMATE NOR ITS THIRD PARTY DATA PROVIDERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE DATA PRODUCTS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, SATISFACTORY QUALITY, ACCURACY, RELIABILITY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. GEOMATE DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE ERROR-FREE OR THAT GEOMATE WILL CORRECT ALL PRODUCT ERRORS.
11. Indemnification; Liability.
a. GeoMate Indemnification. GeoMate will defend and indemnify Licensee against any claim by a third party that Licensee’s use of the Data Products materially in accordance with this Agreement constitutes an infringement of that party’s U.S. patent, copyright or other intellectual property rights, and will pay the amount of any resulting adverse final judgment issued by a court of competent jurisdiction or of any settlement that GeoMate pre-approves in writing (such approval not to be unreasonably withheld, conditioned or delayed), including reasonable attorneys’ fees, provided that Licensee promptly notifies GeoMate in writing of any such claim, gives GeoMate reasonable cooperation, information, and assistance in connection with it, and consents to GeoMate’s sole control and authority with respect to the defense, settlement or compromise of the claim. GeoMate will not be obligated under this section if the infringement results from (i) a combination of Data Products by Licensee with devices or products not provided by GeoMate and where the infringement would not have occurred but for such combination; or (ii) corrections, modifications, alterations or enhancements that Licensee makes to the Data Products (but excluding any such changes that Licensee makes pursuant to the instruction by GeoMate where the infringement would not have occurred but for such corrections, modifications, alterations or enhancements.
b. Election of Remedy. If GeoMate believes the Data Products are subject to an infringement claim, or if a court of competent jurisdiction enjoins Licensee’s use of the Data Products as a result of an infringement claim, GeoMate may, at its discretion and sole expense:(a) procure for Licensee the right to continue using the Data Products;(b) modify the Data Products to make them non infringing; or © replace the Data Products with a functional non infringing equivalent. If (i) none of these options is reasonably available, or (ii) such modified Data Products or replacement thereto is not functionally equivalent (as determined by Licensee in its sole, good faith discretion), then either party may terminate the license to the allegedly infringing Products and GeoMate shall promptly refund to Licensee the fees paid for the Data Products, prorated based on the remainder of the Term of the applicable Order.
C. Mutual Indemnification. Each party will indemnify and defend the other the other from and against any and all liabilities, damages, losses, expenses, demands, claims, suits or judgments, including reasonable attorneys’ fees, costs and expenses arising out of bodily injury and tangible personal property damage (excluding data, software, or documentation) that results directly from the indemnifying party’s gross negligence or willful misconduct, but not to the extent that any Claim is based upon or arises from any fault or responsibility of the indemnified party. The indemnified party will promptly notify the indemnifying party in writing of any such claim, give the indemnifying party reasonable cooperation, information and assistance in connection with it, and consent to the Indemnifying party’s sole control and authority with respect to the defense, settlement or compromise of the claim.
12. Limitation of Liability
a. LIMITATION OF LIABILITY. GEOMATE AND ITS THIRD-PARTYLICENSORS WILL NOT BE LIABLE IN ANY EVENT TO LICENSEEOR ANY OTHER PERSON, REGARDLESS OF THE CAUSE, FOR THE EFFECTIVENESS OR ACCURACY OF THE PRODUCT, FOR THE COST OF PROCURING REPLACEMENT GOODS OR SERVICES, OR FOR LOST PROFITS OR LOST SALES, OR FOR ANY SPECIAL,DIRECT,INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, MULTIPLE OR CONSEQUENTIAL DAMAGES ARISING FROM OR OCCASIONED BY LICENSEE’S USE OF THE PRODUCT, WHETHER ARISING IN WHOLE OR IN PARTY OR IN PART FROM CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY, AND REGARDLESS OF WHETHER LICENSEE KNOWS, SUSPECTSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. MAXIMUM LIABILITY. IN ANY EVENT, GEOMATE’S MAXIMUM LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE FEES LICENSEE HASPAID WITH RESPECT TO THE PRODUCTDURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIM.
c. EXCLUSIONS. Notwithstanding anything to the contrary herein, the limitations of liability set forth in Sections 12(a) and (b) above shall not apply to either party’s: (i) gross negligence or willful misconduct; (ii) breach of Section 9; or (iii) indemnification obligations under Section 11.
d. APPLICABILITY OF DISCLAIMERS AND LIMITATIONS. Licensee agrees that GeoMate has set its prices and entered into this Agreement in reliance upon the disclaimers, limitations and exclusions in this section and that these disclaimers, limitations and exclusions allocate risk between Licensee and GeoMate and are an essential part of the bargain between us.
Neither party shall use the name of the other party in publicity releases or similar activity, without the consent of the other party, and GeoMate shall not be entitled to use the name or logo of Licensee in any capacity without Licensee’s prior written consent in each instance.
a. Entire Agreement; Amendment. This Agreement and any documents referred to in this Agreement, including Licensee’s online order, constitute the entire and only agreement and understanding between the parties relating to the Data Products and supersedes all prior or contemporaneous agreements. The terms of this Agreement supersede the terms in any purchase order or other document Licensee give GeoMate in connection with this Agreement. This agreement may be modified only in a writing signed by Licensee and GeoMate.
b. Governing Law. The substantive laws of the Province of Ontario will govern this contract and any interpretation of it. Ontario’s principles of conflicts of law and the U.N. Convention on Contracts for the International Sale of Goods will not apply. The Parties agree to exclusive jurisdiction of federal and provincial courts sitting in Ontario for the resolution of any dispute related to this Agreement.
c. Waiver; Severability. Either party’s failure to enforce any provision of this Agreement will not constitute a waiver of the provision or of the party’s right to enforce the provision. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement will not be affected or impaired in anyway. If the provision in question would be valid or enforceable if modified, then the provision will apply with the modification necessary to make it valid and enforceable.
d. Notices. Any notices sent to a party to this Agreement must be in writing, addressed to the party at the address on the online order or any other address that the party specifies from time to time, and will be deemed given if delivered personally, via electronic mail, regular mail, nationally-recognized overnight courier or by registered or certified mail. Notices will be deemed received in the case of personal, overnight courier or electronic mail delivery on the date when delivered and in the case of regular, registered or certified mail three (3) days after deposit with the postal service.
e. Assignment. Licensee may not assign, sublicense or transfer its rights or delegate its obligations under this Agreement, including by way of merger, acquisition or operation of law, without the prior written consent of GeoMate (other than to an affiliate of Licensee that is under common control, or in connection with the sale of all or substantially all assets of Licensee, for which no consent shall be required). Any attempt by Licensee to transfer this Agreement without our consent will be void, the transferee will acquire no rights whatsoever, and GeoMate will not be required to recognize the transfer.
f. Export. Licensee agrees not to export, reexport, or provide the Data Products to (i) any country to which the United States has embargoed goods similar to the Data Products; (ii) any person on the U.S. Treasury Department’s list of Specially Designated Nationals; (iii) any person or entity on the U.S. Commerce Department’s Denied Persons List; or (iv) any person or entity where such export, reexport or provision violates any U.S. Export control or regulation.
16. Definitions. In this Agreement, the following terms have the meanings specified or referred to in this Section and shall be equally applicable to both the singular and plural forms. Any agreement or exhibit referred to herein shall mean such agreement or exhibit as amended, restated, supplemented and modified from time to time to the extent permitted by the applicable provisions thereof and by this Agreement. A reference to any statute or regulation means such statute or regulation as amended at the time and includes any successor statute or regulation. Unless otherwise stated, references to recitals, articles, Sections, paragraphs, and exhibits shall be references to this Agreement. As used in this Agreement, “including” shall be deemed to mean “including without limitation.”
a.“Confidential Information” means proprietary or non-public information that the parties to this Agreement share with one another from time to time, that is marked as confidential when delivered or promptly thereafter, or that a reasonable person would understand to be confidential given the context of the disclosure.
b.“Customer” means, when Licensee is authorized in an Order to sublicense Data Products to third parties or provide services to third parties using the Data Products, Licensee’s customers who contract with Licensee for the rights to use Licensee products or services that incorporate the Data Products.
c.“Customer Agreement” means a written or electronic agreement between Licensee and Customers pursuant to which Licensee licenses or sells Licensee products or services contain Data Products.
d.“Data Products” means the datasets licensed by GeoMate to Licensee pursuant to an Order, including Updates.
e.“Order” means an order for GeoMate products in the form attached hereto as Attachment 1 signed by both Licensee and GeoMate.
f. “System” means Licensee’s computer system described in Attachment 1 in which Data Products are authorized to be installed and used.
g.“Term” means the initial term or any renewal term of an Order or this Agreement, as applicable.
h.“Territory” means the United States and Canada, unless otherwise defined in an Order.
i.“Updates” means periodic additions and improvements to the Data Products developed by GeoMate and made generally commercially available to all GeoMate customers.