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HomeMy WebLinkAboutContract #: 1662 - From: 09-17-2023 To: 09-16-2024 - Nearmap - Assessor CONTRACT NO. 1Lr, Q VENDOR NO. 23729 SERVICE CONTRACT WITH THE TOWN OF NORTH ANDOVER THIS CONTRACT made and entered into thiO day of September, 2023, by and between 11 Nearmap US, Inc., a domestic profit corporation duly authorized by law and having a principal place of business at 1850 W Ashton Blvd, Suite 500, Lehi, Utah 84043, hereinafter called "CONTRACTOR", and the and the TOWN of North Andover, ("TOWN") a municipal corporation duly established by law and located at 120 Main Street, North Andover, Essex County, Commonwealth of Massachusetts. WHEREAS, the CONTRACTOR represents that it is duly qualified in this field, and has agreed to perform the services requested by the TOWN; and WHEREAS, the TOWN has accepted the CONTRACTOR'S proposal subject to the conditions and agreements herein contained; NOW,THEREFORE, IT IS AGREED by and between the Parties as follows: -1- The CONTRACTOR agrees that it will provide aerial imagery hosted on a browser for access by all town department as described in accordance with the attached quote.The quote (including the Nearmap Products Agreement), which is attached as Exhibit A, all required Certifications, all Insurance Binders,and the Schedule of Minimum Wage Rates,are incorporated herein and made a part of this CONTRACT. The CONTRACTOR will report to the signatory Department Head of this CONTRACT. -2- The Contract Period will commence on September 17,2023 and terminating September 16,2024. Any extensions of time must be by written NOTICE per paragraph 21 from the TOWN,and are at the sole discretion of the TOWN. -3- Total payments under this CONTRACT shall not exceed Eleven Thousand and 00/100($11,000.00) Dollars.This Contract is expressly subject to and contingent upon an appropriation of funds. -4- The TOWN agrees to use best efforts to pay for services within thirty (30) days of receiving an invoice,so long as all services provided are sufficiently detailed in the invoice,and that the invoice has filed with the contracting department.Any payment under this Contract shall not constitute or be deemed a waiver, relinquishment, release,or abandonment of any claim which the TOWN may have against the CONTRACTOR for breach of this Contract. -5- The CONTRACTOR agrees that no obligation shall be considered to have incurred under this CONTRACT unless and until this CONTRACT is executed by both parties and a purchase order shall have been duly issued and approved.And further,that the obligation incurred shall be limited to the amount set forth in purchase order or purchase orders duly issued and approved. -6- The CONTRACTOR states that it is qualified, and is in all relevant aspects, in good standing. The CONTRACTOR certifies that performance under this Contract will meet ethical business standards and good stewardship of taxpayer and public funding to prevent waste or abuse. -7- The CONTRACTOR shall at all times during the Contract maintain in full force and effect Employer's Liability, Worker's Compensation (MGL c.152), Public Liability,and Property Damage Insurance, including contractual liability coverage. All insurance shall be for policy limits acceptable to the TOWN; all required insurance shall be certified by a duly authorized representative of the insurers on the "MIIA" or "ACORD" Certificate of Insurance form (incorporated into and made a part of this agreement); and before commencement of work hereunder the CONTRACTOR agrees to furnish the TOWN with certificate(s)of insurance or other evidence satisfactory to the TOWN. The certificates shall contain the following express obligations: "In the event of cancellation or material change in a policy affecting the certificate holder, thirty (30) days prior written notice will be given the certificate holder. Where notice is not provided by CONTRACTOR's insurer, the notice will be provided by the CONTRACTOR." The TOWN shall be named as an additional insured under each policy or policies, except Workers' Compensation. For the purpose of the Contract,the CONTRACTOR shall carry the following types of insurance in at least the limits specified below. Workers' Compensation—the required statutory amount Employer's Liability—$500,000 Bodily Injury& Property Damage Liability Except Automobile—$500,000 2 Automobile Bodily Injury&Property Damage Liability—$1,000,000 combined single limit for each accident. Excess Umbrella Liability—$1,000,000 for each occurrence -8- It is further agreed by the CONTRACTOR that, in the event the TOWN is sued in a court of law or equity, or demand is made upon the TOWN for payment of any damages arising out of the CONTRACTOR'S performance or non-performance of this Contract, then the CONTRACTOR, without reservation, shall indemnify and hold harmless the TOWN against any and all claims arising out of the CONTRACTOR'S performance or non-performance of the CONTRACT. CONTRACTOR'S indemnification obligation is reduced to the extent that such liability was caused or contributed by the TOWN, its officials, employees, agents or representatives. To the full extent permitted by law, no official, employee, agent or representative of the TOWN of North Andover shall be individually or personally liable on any obligation of the TOWN under this Contract. -9- This Contract is subject to all laws of the Commonwealth of Massachusetts, federal, state and local, which are applicable to this Contract or work with a public entity; and it is presumed that the CONTRACTOR is cognizant thereof.Any and all proceedings or actions relating to the subject matter herein shall be brought and maintained in the courts of the Commonwealth, which shall have exclusive jurisdiction thereof.This paragraph shall not be construed to limit any other legal rights of the parties. -10- The CONTRACTOR agrees to comply with all the provisions of General Laws, Chapter 30B and all related sections, including amendments thereto, in performing all work under this CONTRACT, and the provisions of said sections are made a part of this CONTRACT and are to be considered as covenants, terms and conditions hereof as though all the provisions were specifically incorporated herein,and the provisions of the said sections shall apply even though it may appear they are not applicable to the work of the type to be performed under this CONTRACT. -11- The CONTRACTOR will carry out the obligations of this Contract in full compliance with all of the requirements imposed by or pursuant to General Laws c.151, §1, et seq. (Minimum Wage Law) and any executive orders, rules, regulations, and requirements of the Commonwealth of Massachusetts as they may from time to time be amended. The CONTRACTOR will, if applicable, comply with the wage rates as determined by the Commissioner of the Department of Labor and Industries, under the provisions of General Laws c.149 (Prevailing Wage), and shall be in force 3 and as amended. The CONTRACTOR will, if applicable, submit certified weekly payrolls to the TOWN in accordance with MGL c.151, §1, et seq. The wage rate schedule attached to the bid or solicitation shall be made a part of this contract, and shall continue to be the minimum rate or rates of wages during the life of the contract as updated yearly unless adjusted by the Commonwealth. The CONTRACTOR shall cause a copy of said schedule to be kept posted in a conspicuous place during the life of the contract. -12- The CONTRACTOR will carry out the obligations of this Contract in full compliance with all of the requirements imposed by or pursuant to General Laws c.1516 (Law Against Discrimination) and any executive orders, rules, regulations, and requirements of the Commonwealth of Massachusetts as they may from time to time be amended. The CONTRACTOR shall comply with all federal and state laws, rules and regulations promoting fair employment practices or prohibiting employment discrimination and unfair labor practices and shall not discriminate in the hiring of any applicant for employment nor shall any qualified employee be demoted,discharged or otherwise subject to discrimination in the tenure, position, promotional opportunities, wages, benefits or terms and conditions of their employment because of race, color, national origin, ancestry, age, sex, religion, disability, handicap, sexual orientation or for exercising any rights afforded by law. -13- The CONTRACTOR shall give its personal attention constantly to the faithful performance of the work and shall not assign or delegate, in whole or in part or otherwise transfer any liability, responsibility,obligation,duty or interest under this Contract without the written approval of the TOWN, which shall not be unreasonably withheld. -14- It is further agreed that the TOWN may terminate this CONTRACT without cause, upon fourteen (14) days' written notice to the other party, sent by certified mail,to the usual place of business of the other party. In the event the TOWN exercises its right to terminate the CONTRACT without cause, any prepaid fees, or fees due and payable, will not be refunded. The TOWN may also terminate this CONTRACT at any time for cause. -15- The undersigned certifies under penalties of perjury that this bid or proposal has been made and submitted in good faith and without collusion or fraud with any other person. As used in this certification, the word "person" shall mean any natural person, business, partnership, corporation, union, committee, club or other organization, entity, or group of individuals. 4 -16- The CONTRACTOR certifies that any and all taxes and municipal fees due and owing to the TOWN of North Andover have been paid in full. -17- This contract is only binding upon,and enforceable against the TOWN if: 1)the Contract is signed by the TOWN Manager or her designee; 2) and endorsed with approval of TOWN Counsel as to form. Upon thirty (30) days written notice, at any time during normal business hours, and as often as the TOWN may deem it reasonably necessary, there shall be available in the office of the CONTRACTOR for the purpose of audit, examination, and/or to make excerpts or transcript all records, contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. -18- This instrument, and the other components of the contract documents, constitutes the entire contract between the parties, with no agreements other than those incorporated herein. Any Amendments to this Contract must be made in writing and executed by all signatories to the original Contract, prior to the effective date of the amendment. -19- Any notice permitted or required under the provisions of this Contract to be given or served by either of the parties hereto upon the other party hereto shall be in writing and signed in the name or on the behalf of the party giving or serving the same. Notice shall be deemed to have been received at the time of actual service or three (3) business days after the date of a certified or registered mailing properly addressed. Notice to the CONTRACTOR shall be deemed sufficient if sent to the address set forth in the Contract and to the TOWN by being sent to the Town Manager, North Andover Town Hall at 120 Main Street, North Andover, Essex County, Commonwealth of Massachusetts. -20- In the event of any conflict between this CONTRACT and the attached Exhibits, or any other document(s), including but not limited to the "Service Agreement", this CONTRACT shall prevail. 5 IN WITNESS WHEREOF,the CONTRACTORS and the said TOWN OF NORTH ANDOVER have hereto and to a duplicate and triplicate hereof, caused their corporate seals to be affixed and these presents, together with said duplicate and triplicate, to be signed in their name and behalf by their duly authorized officers the day and year first above written. APPROVED: CONTRACTORS By Paul Gilmour Melissa Murphy-Rodrigues Town Manager, North Andover Fed.I.D. or Social Security No. 30-0834546 APPROVED AS TO FORM: TOWN OF NORTH ANDOVER r � d Town Christine Counsel nor Department Head V type age Town Accountant Date: 6 CERTIFICATIONS CERTIFICATE OF NON-COLLUSION The undersigned certifies under penalties of perjury that our bid or proposal has been made and submitted in good faith and without collusion or fraud with any other person. As used in this certification, the word "person" shall mean natural person, business, partnership, corporation, committee,union, club or other organization, entity, or group of individuals. Signature Date September 29, 2023 Paul Gilmour, Sun Director- RevOps Nearmap US, Inc. Print Name &Title Company Name CERTIFICATE OF TAX COMPLIANCE Pursuant to Chapter 62C of the Massachusetts General Laws, Section 49A (b), I Paul Gilmour , authorized signatory for Nearmap US, Inc. Name of individual Name of contractor do hereby certify under the pains and penalties of perjury that said contractor has complied with all laws of the Commonwealth of Massachusetts, and the Town of North Andover, relating to taxes,permit or other fees,reporting of employees and contractors,and withholding and remitting child support. September 29, 2023 Signature Date 7 CERTIFICATE OF VOTE At a duly authorized meeting the Board of Directors of the Nearmap US, Inc. held on 23 November 2022 it was VOTED,THAT Paul Gilmour Senior Director, Revenue Operations (Name) (Officer) of be and hereby is authorized to execute contracts and in the name and on behalf of said Nearmap US,Inc. ; and such execution of any contract or obligation in the name of Nearmap US,Inc. on its behalf by such officer under seal of ;shall be valid and binding upon Nearmap US, Inc. I hereby certify that I am the clerk of the above named Nearmap US, Inc. and that Paul Gilmour is the duly elected officer as above of said Nearmap US,Inc. , and that the above vote has not been amended or rescinded and remains in full force and effect as the date of this contract. 29 September 2023 Jordan Edwards (Date) (Clerk) 8 Exhibit A Nearmap Quote(including the Nearmap Products Agreement) 9 nearmap: RENEWAL QUOTE current:clear:change Nearmap US,Inc. 10897 South River Front Parkway,Suite 150 South Jordan, UT 84095 USA Phone: +1 (801)609 7250 Customer Name Town of North Andover,MA Quote Number Q092103 Contract Commencement Contract commences upon Quote Expiry 07/18/2023 signing of quote. Subscription Term 12 Month Account Rep Nick Casey nick.casey@nearmap.com Subscription Start Date 09/17/2023 Payment Term Net 30 Public Facing URL https://northandoverma.mapgeo. Payment Method Invoice io/ Bill TO Town of North Andover,MA Ship TO Town of North Andover,MA Bill Mitchell Bill Mitchell 120 Main Street, 120 Main Street, North Andover,Massachusetts, North Andover,Massachusetts,01845 01845 (978)688-9566 (978)688-9566 wmitchell@northandoverma.gov wmitchell@northandoverma.gov PRODUCT ALLOWANCE COVERAGE SEATS Public Display License for Government NA Nationwide NA Nearmap Vertical Offline Copy-Subscription NA Nationwide NA ArcGIS Integration NA NA NA Nearmap Oblique for Government NA Nationwide Unlimited Subtotal $11,000.00 Estimated Tax $0.00 Total USD$11,000.00 Page 1 of 9 Nea"ap US,Inc. ACCEPTANCE OF Q092103 will constitute an Agreement with Nearmap By selecting"Yes"or signing below,you acknowledge that(a)(i)the attached terms and conditions will continue to form part of the Agreement with the Licensee,(ii)the Additional Terms and Conditions in the latest signed Quote between the Licensee and Nearmap applies to this Renewal Quote, unless otherwise specified in Schedule 1 of this Renewal Quote, and (iii) the Product-Specific Terms set out in https://www.nearmap.com/us/en/legal/product-agreements applies to this Renewal Quote,(b)you have the authority to agree to this Renewal Quote, (c) you agree to pay the fees set forth herein. You acknowledge that the Coverage Area by Nearmap is outlined at htti)s://www.nearmap.com/us/en/current-ae(ial-mal)s-coverage. Note:The terms of your Agreement remain the same unless varied by this Renewal Quote.The total in this Renewal Quote is only an estimate of your next invoice. Final credits and amendments to the subscription is dependent upon the date this Renewal Quote is accepted. Signature/Digital Acceptance: Date: Full Name: Position: PO Number(if required): If printed,please sign,scan and email to:orders.usCccilnearmap.com Page 2 of 9 Nearmap US,Inc. Schedule 1 Additional Terms and Conditions Page 3 of 9 Neannap US,Inc. •rt%: nearmap PLEASE READ THIS PRODUCTS AGREEMENT CAREFULLY.BY ACCEPTING THIS AGREEMENT BY EXECUTING A QUOTE,YOU AGREE TO BE BOUND BY THIS PRODUCTS AGREEMENT,THE QUOTE AND ALL TERMS INCORPORATED BY REFERENCE.IF YOU DO NOT AGREE TO ALL OF THESE TERMS,DO NOT ACCESS OR USE,YOU MUST NOT ACCEPT THIS PRODUCTS AGREEMENT AND NOT USE ANY NEARMAP PRODUCTS AND SERVICES. PRODUCTS AGREEMENT Recitals A. Nearmap is a provider of aerial 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, in connection with this Agreement on any Products,which includes but is not 1. GRANT OF LICENSE TO USE PRODUCTS limited to running any: 1.1 Grant Subject to the terms of this Agreement and payment by the Licensee of the (a) machine learning models(including the model form and model parameters); Fees,Nearmap grants to the Licensee a limited,non-exclusive,non-transferrable (b) outputs of machine learning models; license for the Term to use the Products only for the Permitted Purpose(the (c) software that processes or transforms input data for training a machine learning "License"). model or getting a prediction from a machine learning model into a format suitable 1.2 Authorized Users The Products available under this License are only to be used for training or making such prediction;or by the total number of Authorized Users. The Licensee shall implement (d) software used to train a machine teaming model or compute outputs of a machine reasonable controls to ensure that it does not exceed the number of Authorized learning model for a given set of input data. Users.If the number of users exceeds the total number of Authorized Users,the 2.5 No caching and creation of database Except as expressly permitted under this Licensee will be in breach of this Agreement. Agreement,the Licensee is not permitted to: 1.3 Renewal Unless otherwise notified by the Licensee in writing at least thirty(30) (a) use its access to the Products under this Agreement for the purposes of creating days prior to the expiry of the Term of its intention not to renew this Agreement a database of imageries for resale,distribution,sublicense,or other commercial and subject to any amendments to this Agreement required by Nearmap,the purposes,or for mass downloads or bulk feeds of any imagery;and Term will automatically be renewed for successive renewal terms of twelve(12) (b) pre-fetch,retrieve,cache,index,or store any Content or portion of the Products. months each(each a"Renewal Term"). 2.6 Restriction on integration methods The Licensee is only permitted to use API 1.4 Product Updates Nearmap may from time to time supply the Licensee with a integration methods,or other integration methods,as authorized by Nearmap in Product of no lesser quality than the previously supplied Product at its absolute writing,including but not limited to integration with the Licensee's or other third discretion. If requested by Nearmap, the Licensee must stop using any party platforms or software. previously supplied Product and use the new Product from the date of delivery 2.7 Limits on use of Website In the Licensee's use of the Website,the Licensee from Nearmap. must not(without the prior written consent of Nearmap): 1.5 Acknowledge Nearmap source The Licensee must expressly acknowledge (a) provide a link to another URL; Nearmap,in a reasonably prominent manner(by displaying the Nearmap logo or (b) upload content or other information to the Website(except as necessary to use other appropriate attribution),as the source of any Product or Derivative Works the Products); that the Licensee uses, copies, modifies, or distributes. Unless otherwise (c) do anything to damage,interfere or disrupt access to the Website or do anything permitted in writing,the Licensee must not remove or cause to be removed any which might impair its functionality; Nearmap logo, watermark, or other Nearmap attribution in any Product or (d) use the Website in any way to send any unsolicited email (commercial or Derivative Works. otherwise)or any other material for marketing or publicity purposes; 1.6 Data Use for Government Products Nearmap measures data usage by the (a) publish, post, distribute, disseminate, or otherwise transmit, defamatory, Licensee under this License for Government Products.When using Government offensive, infringing, obscene, indecent, or other unlawful or objectionable Products, Nearmap's Fair Use Policy regulates the Licensee's consumption of confidential material or information; data during the Term(or Renewal Term).The following conditions also apply to (f) make available, upload, or distribute by any means any material or files that the Licensee's use of Government Products: contain any viruses, bugs,corrupt data,"trojan horses","worms",or any other (a) the amount of data used by the Licensee on the Government Products will be harmful software; monitored and then calculated at the end of every Term or Renewal Term based (g) remove any content or information from the Website,other than that permitted on the total data of all users who access and use the Licensee's Nearmap account under the terms of this License; during that Period;and (h) falsify the true ownership of a Product or other material or information made (b) if the Licensee elects to download and/or export Government Products available available via the Website; to the Licensee on the Website, this will be applied to the calculation of the (i) obtain or attempt to obtain unauthorized access,through whatever means,to the Licensee's use of the Government Products. Website; 1.7 Allowance for Non-Government Products Non-Government Products licensed G) use the Website other than in accordance with this Agreement; to the Licensee may be subject to additional Allowance,Periodic Allowance,or (k) attempt any of the above acts or engage,encourage or permit another person to Periodic Data Allowance terms that are published in the Product-Specific Terms, do any of the above acts;or and if applicable,the Periodic Allowance Section. (1) provide or allow access to the Website which exceeds the total number of 1.8 Unavailability Subject to section 12,if a Product is not available for a period of Authorized Users in connection with use of the Product. three(3)consecutive days, the Term will be extended by the period of such 2.8 Breach If the Licensee breaches any of sections 2.1 to 2.7 inclusive,Nearmap unavailability. reserves its rights to terminate the Agreement in accordance with section 6.2, 2. RESTRICTIONS ON RIGHT TO USE PRODUCTS restrict the Licensee's access to the Products,and take any other steps available 2.1 No right to distribute,transfer,resell,assign or sublicense This License is to it at law. granted only to the Licensee.The Licensee must not distribute,transfer,resell, 3. THE LICENSEE'S ACCESS TO PRODUCTS AND SERVICES assign, rent, lease,or sublicense any Product or any of the Licensee's rights 3.1 Authorized Users Any password issued by Nearmap to an Authorized User is under this License without Nearmap's prior written consent. personal and confidential to that Authorized User.If Nearmap suspects that any 2.2 No third party access Unless otherwise provided in this Agreement, the password/ID is being used by an unauthorized person,by a different Authorized Licensee must not make any Product available in any medium or manner to any User who is not the person to whom it was issued,or the number of Authorized third party(including but not limited to the Licensee's subsidiaries,affiliates,any Users has been exceeded,Nearmap may: lower or higher tiered governments and any neighboring local government). (a) cancel that user's access; 2.3 Employees Subject to sections 1.1 and 1.2,the Licensee may make Products (b) immediately cease the Licensee's access to the Product; available to any employee of the Licensee, subject to that person complying (c) require the Licensee to pay for any additional fees due based on the standard with the terms of the Agreement as if they were a party to it and the total Nearmap Fees for the applicable Product,in respect of any such unauthorized number of Authorized Users has not been exceeded. These employees are use;and/or deemed to be Authorized Users.The Licensee is responsible and liable for all (d) exercise any other right available to Nearmap under the terms of this Agreement Authorized Users who use the Licensee's account access details or use or at law. 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 Page 4 of 9 Nearmap US,Inc. 3.2 Downtime Nearmap will use reasonable efforts to ensure that the Website and (a) the other party breaches any of its obligation under this Agreement capable of APIs remain available but cannot guarantee that this will be the case at all remedy and fails to remedy that breach within fourteen(14)days after receiving times. Nearmap agrees that, wherever possible, all planned maintenance will notice requiring it to do so; be done out of normal Operational Hours to ensure optimal uptime of the (b) the other party breaches any of its obligations under this Agreement incapable of Website.The Licensee may elect to subscribe to the Nearmap status page at remedy and Content;or his://status.nearmap.coml to receive notifications and updates relating to (c) the other party files for protection under bankruptcy laws,makes an assignment planned maintenance and uptime/downtime of the Website and APIs. When for the benefit ofcreditors,appoints,or suffers appointment ofa receiver ortrustee Nearmap becomes aware of any Fault,Nearmap will use reasonable efforts to: over its property,files a petition under any bankruptcy or insolvency act,or has (a) allocate such resources as may be necessary to remedy the Fault;and any such petition filed against it which is not discharged within sixty(60)days of (b) otherwise take all reasonable steps to remedy the Fault so as to minimize any the filing thereof,or admits in writing its inability to pay its debt generally as they disruption to the Licensee's use of the Products. become due. 3.3 Expiry The Licensee's License will expire at the end of the Term unless renewed 6.3 Termination by Nearmap Notwithstanding anything else in this Agreement,but in accordance with section 1.3 and may be suspended or terminated, in subject to section 4.4,Nearmap has the right,in its absolute discretion and upon accordance with section 6.2,if the Licensee is in breach of thisAgreement. giving the Licensee ten(10)Business Days'notice,to terminate this Agreement. 3.4 Unauthorized Use Licensee shall take reasonable steps to prevent unauthorized 6.4 Consequences If the Agreement is terminated under sections 6.2 or 6.3 or access to the Products,including without limitation,protecting its passwords and expires at the end of the Term: other log-in information.The Licensee shall notify Nearmap immediately of any (a) the License immediately terminates and the Products will no longer be available known or suspected unauthorized use of the Products,or breach of its security, to the Licensee; and shall use best efforts to stop said breach and minimize the adverse impact of (b) the Licensee must immediately destroy,delete,or return to Nearmap all Products; said breach on Nearmap. and 3.5 Audit During the Term of this Agreement,and for two(2)years after termination (c) subject to section 7.3,the Licensee and the Authorized Users are not permitted or expiry of this Agreement,the Licensee shall maintain records regarding its use to use any Products for any purpose. of the Products according to its usual record keeping policies and procedures. 6.5 Costs Nearmap reserves all rights following termination of this Agreement, The Licensee shall permit Nearmap(or its auditors)access to the Licensee's including any rights available to Nearmap to collect any outstanding Fees which records pertaining to the Licensee's use of the Products.Nearmap will give at may be owed by the Licensee.The Licensee will be liable for any reasonable legal least thirty(30)days prior written notice of an audit and will not conduct an audit costs incurred by Nearmap in enforcing its rights following termination of this more than once per calendar year unless non-compliance findings are noted,in Agreement. which case the audit period may be extended. 6.6 Continuing obligations After expiry or termination of this Agreement,sections 3.6 Audit Findings If an audit results in findings of non-compliance,Nearmap may, 1.5,2,4,6.5,7,8,9,10,13,14,15,and 17 will still be binding on the Licensee at its discretion: in relation to Products licensed or obtained during the Term. (a) invoice any additional license fees due based on the standard Nearmap Fees 7. INTELLECTUAL PROPERTY in place at the time of the original license grant; 7.1 Ownership Unless otherwise indicated,the Website,the Products,the Content, (b) recover the reasonable cost of the audit if additional Fees exceed 5%of the and all associated Intellectual Property Rights,data, information,and software Fees paid during the audit period;and are owned by Nearmap and are protected by copyright,moral rights,trademark, (c) terminate this Agreement in accordance with section 6.1.Licensee must pay all and other laws relating to the protection of intellectual property.Nearmap reserves invoices issued under this section within thirty(30)days following the date of all of its Intellectual Property Rights.Except for the limited License granted to the invoice or such other period agreed between the parties. Licensee in section 1.1, no ownership or Intellectual Property Rights in the 4. FEES Website,APIs,any Product,or Content will pass or be licensed to the Licensee. 4.1 Fees The Fees payable by the Licensee are set out in the Quote. 7.2 Trademarks The Nearmap trademarks and all associated Intellectual Property 4.2 Payment The Fees are payable by the Licensee to Nearmap in the manner and Rights are owned by Nearmap. Nothing in this Agreement confers upon the by the due date,as set out in the Quote,at the beginning of each Term unless Licensee any rights to use or modify any of Nearmap's trademarks,except that otherwise agreed by Nearmap.Where the Fees are payable by credit card,the Nearmap grants the Licensee a royalty free, limited, non-exclusive, non- Licensee authorizes Nearmap to charge the Licensee's credit card for all transferrable, non-sublicensabie license to reproduce and display Nearmap purchased Products listed in the Quote for the initial Term and any Renewal Term. trademarks only to the extent necessary to comply with the Licensee's obligations 4.3 No cancellation Subject to section 4.4,all Fees are non-cancellable and non- under this Agreement.Any such reproduction and display of those marks must refundable,except as expressly set out in this Agreement. comply with the policies and rules Nearmap makes available to the Licensee from 4.4 Refund of Fees If the Licensee is not in breach of this Agreement,and Nearmap time to time. elects to terminate this Agreement under section 6.3, Nearmap will refund the 7.3 Derivative Works Subject to compliance with all other terms of this Agreement, Licensee any pre-paid fees relating to the portion of Term remaining as at the the Licensee is granted a non-exclusive right to produce and use Derivative date of termination. Works for the Permitted Purpose.Unless otherwise notified to the Licensee by 4.5 Taxes Unless otherwise stated,Fees and Late Payment Fee do not include any Nearmap, the Licensee may continue using Derivative Works following direct or indirect local,state,provincial,federal,or foreign taxes,levies,duties,or termination or expiry of this Agreement.For the avoidance of doubt,Nearmap will similar governmental assessments of any nature,including value-added,excise, continue to own all rights in and to any Products and Content embedded in a use or withholding taxes(collectively,"Taxes").Licensee is responsible for paying Derivative Work,but all other rights in and to the Derivative Work will belong to all Taxes, except those assessable against Nearmap based on its income. the Licensee. Nearmap will invoice Licensee for such Taxes if Nearmap believes it has a legal 8. THIRD PARTY PROVIDERS obligation to do so and Licensee agrees to pay such Taxes if so invoiced. 8.1 The Licensee acknowledges and accepts that Nearmap engages with Third Party 4.6 Late Payment If a scheduled Fee payment is still overdue after seven(7)days' Providers in order to provide the Products under this Agreement.The provision of notice from Nearmap,to remedy the payment default,the Licensee agrees that the Products is contingent upon adequate delivery of products and services by Nearmap may immediately limit or terminate access to the Products provided those Third Party Providers and are subject to those Third Party Provider terms under this License. and conditions(as updated from time to time).By entering into this Agreement,the 4.7 Amendments Subject to section 1.3,Nearmap may,at its absolute discretion, Licensee agrees that where applicable they must comply with those terms and increase the price,for the Products at the end of the Term by an amount which conditions which are applicable to the use of those Third Party Providers products, reflects up to the current rate of Inflation plus 2.5%. where incorporated into Nearmap's Products. Nearmap have set out the type of 5. THE LICENSEE'S WARRANTIES Third Party product or services incorporated into Nearmap's Products and the 5.1 Warranty The Licensee warrants that: relevant Third Party Providers terms and conditions below for reference. (a) any information the Licensee supplies to Nearmap in respect of the Agreement is (a) Google-hftps://maps.goocile.com/help/terms maps.html in connection with the complete and correct.The Licensee must keep Nearmap informed of any change use of Google Street Maps; to the Licensee's information provided to Nearmap,including any change to the (b) NASA/NCAS-https://www.nearmap.com/au/en/legal/copyright in connection with Licensee's contact details,or the details of a credit card used for payment; viewing satellite imagery on the Website;and (b) the Licensee will immediately notify Nearmap of any usage of any Product outside the Permitted Purpose,and provide any other information reasonably requested (c) Precisely-h�s:llwww.nnection with property tware-and-data-end-us to by Nearmap; license-agreement in connection with viewing property datasets on the Website c the Licensee has the power to enter into this Agreement and to perform the and/or through N API. ( ) P 9 P 9. WARRANTY AND LIABILITY obligations under it;and 9.1 Warranty Nearmap agrees to use industry standard GPS to ensure captured (d) the Licensee has and will comply with all relevant laws relating to the Licensee's imagery has accurate geographical positioning. use of the: 9.2 DISCLAIMER OF WARRANTIES OTHER THAN AS SET FORTH IN SECTION (i) License; 9.1, THE WEBSITE AND THE PRODUCTS ARE PROVIDED ON AN"AS IS" (ii) Products;and AND"AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, (iii) Website. TO THE FULLEST EXTENT PERMITTED BY LAW. NEARMAP AND ITS B. TERMINATION AND EXPIRY CONTENT PROVIDERS, THIRD PARTY PROVIDERS, AGENTS, 6.1 Initial Term This Agreement commences on the Commencement Date and MANDATARIES, AND AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL continues until expiry of the Term unless terminated earlier in accordance with REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTEES, the terms of this Agreement or renewed under section 1.3. WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT 6.2 Termination by Either Party Either party may terminate this Agreement with LIMITED TO, ANY IMPLIED REPRESENTATIONS, WARRANTIES, immediate effect by giving notice to the other party if: CONDITIONS, OR GUARANTEES OF MERCHANTABILITY, TITLE, FITNESS Page 5 of 9 Nearmap US,Inc. FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND COURSE OF applicable to the Infringement Claim;or DEALING OR PERFORMANCE. (iii) third-party products,services,hardware,software,or other materials,or a 9.3 NO REPRESENTATIONS WHILE NEARMAP USES REASONABLE EFFORTS combination of these with the Products, which would not be infringing TO ENSURE THE ACCURACY,CORRECTNESS AND RELIABILITY OF THE without this combination;or CONTENT, THE PRODUCTS, AND THE WEBSITE, NEARMAP AND ITS (b) if the Licensee fails to comply with section 10.2. THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS,WARRANTIES, 10.4 To the maximum extent permitted by law,this section 10 sets out Nearmap's sole CONDITIONS, OR GUARANTEES AS TO THE ACCURACY, and exclusive liability,and the Licensee's sole and exclusive remedy,for any third CORRECTNESS, OR RELIABILITY OF ANY PRODUCT OR CONTENT party Infringement Claims brought against the Licensee in relation to an CONTAINED ON THE WEBSITE AND/OR OBTAINED THROUGH AN API. infringement of Intellectual Property Rights. THE PRODUCTS, THE WEBSITE AND APIs MAY BE SUBJECT TO 11. PRIVACY POLICY ERRORS, OMISSIONS, INACCURACIES, AND DISTORTIONS, AND 11.1 Nearmap will collect,use,and disclose any personal information supplied by the NEARMAP WILL NOT BE RESPONSIBLE FOR, OR LIABLE FOR ANY Licensee as set out in Nearmap's Privacy Policy,as amended from time to time, CLAIMS MADE BY OR ARISING OUT OF, ANY PERSON OR ENTITY and currently available at hftps://www.nearma[).com/usten4ecial/privacy-policy. SEEKING TO RELY ON ANY OF THE PRODUCTS,THE WEBSITE OR APIS. The Licensee hereby consents to those collections,uses,and disclosures. 9.4 LIMIT OF LIABILITY NEARMAP'S LIABILITY FOR: (A) A BREACH OF A 11.2 To the maximum extent permitted by law,by entering into this Agreement,the WARRANTY UNDER SECTION 9.1; OR (B) A BREACH OF A Licensee expressly consents to receiving general emails relating to product REPRESENTATION,WARRANTY,CONDITION,OR GUARANTEE WHICH IS updates, new products, or anything related to the usage of the product from IMPLIED OR IMPOSED IN RELATION TO THIS LICENSE UNDER Nearmap,but prior written consent is required to receive by email direct marketing LEGISLATION AND CANNOT BE EXCLUDED, WILL BE LIMITED TO, AT communications from Nearmap. NEARMAP'S OPTION, REPLACING OR REPAIRING THE PRODUCTS OR 11.3 By entering into this Agreement, the Licensee acknowledges that personal SUPPLYING PRODUCTS EQUIVALENT TO THE RELEVANT PRODUCTS,OR information provided by the Licensee in the course of accessing Products PAYING THE COST OF REPLACING OR REPAIRING THEPRODUCTS. (including,without limitation,credit or debit card details provided by the Licensee 9.5 NO LIABILITY FOR CLAIMS TO THE EXTENT PERMITTED BY LAW, IN NO for the purpose of paying Nearmap)may be disclosed to and held by one or more EVENT WILL NEARMAP, ITS CONTENT PROVIDERS, AGENTS, of Nearmap's third party suppliers and partners (including, without limitation, MANDATARIES,OR AFFILIATES BE LIABLE FOR ANY CLAIMS OF ANY KIND providers of payment processing services),and used by those third parties in ARISING FROM OR CONNECTED WITH THE USE OF THE WEBSITE OR connection with the supply of Products. APIS,THE CONTENT OR THE PRODUCTS,OR THE UNAVAILABILITY OF 12. FORCE MAJEURE THE SAME, INCLUDING BUT NOT LIMITED TO, LOSS OF USE,LOSS OF 12.1 Force Majeure Event If a party is unable to perform or is delayed in performing PROFITS, OR LOSS OF DATA, AND DIRECT, INDIRECT, INCIDENTAL, an obligation under this Agreement(except for any obligation to pay money, PUNITIVE, AND CONSEQUENTIAL DAMAGES,WHETHER IN CONTRACT, including Fees)because of an act ofwar,terrorism,hurricane,earthquake,other TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), act of God or of nature,strike or other labor dispute, riot or other act of civil EXTRACONTRACTUAL LIABILITY, OR OTHERWISE. THE LICENSEE IS disorder, embargo, or other cause beyond the performing party's reasonable RESPONSIBLE FOR THE ENTIRE COST OF ALL SERVICING, REPAIR,OR control("Force Majeure Event"): CORRECTION REQUIRED DUE TO THE LICENSEE'S USE OF THIS (a) that obligation is suspended but only so far and for so long as that party is affected WEBSITE, THE CONTENT OR THE PRODUCTS. THIS EXCLUSION by the Force Majeure Event;and APPLIES, WITHOUT LIMITATION, TO ANY CLAIMS CAUSED BY OR (b) the affected party will not be responsible for any loss or expense suffered or RESULTING FROM RELIANCE BY A USER ON ANY INFORMATION incurred by the other party,as a result of,and to the extent that,the affected party OBTAINED FROM NEARMAP. is unable to perform, or is delayed in performing, its obligations under this 9.6 AGGREGATE LIMIT IN NO EVENT WILL THE AGGREGATE LIABILITY OF Agreement because of the Force Majeure Event. NEARMAP, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING 12.2 Notice of Force Majeure Event If a Force Majeure Event occurs, the party NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), affected by the Force Majeure Event must: EXTRACONTRACTUAL LIABILITY, PRODUCT LIABILITY, STRICT LIABILITY (a) Promptly(when reasonably possible to do so)give the other party notice of the OR OTHER THEORY,ARISING OUT OF OR RELATING TO THE USE OF THE Force Majeure Event and an estimate of the non-performance and delay; PRODUCTS,THE CONTENT, THE WEBSITE OR THE APIS, EXCEED ANY (b) take all reasonable steps to overcome the effects of the Force Majeure Event;and COMPENSATION OR FEE THE LICENSEE HAS PAID,IF ANY,TO NEARMAP (c) resume compliance as soon as practicable after the Force Majeure Event no FOR ACCESS TO OR USE OF THE PRODUCTS OVER THE TWELVE(12) longer affects it. MONTH PERIOD PRIOR TO THE ALLEGED DEFAULT,BREACH,OR EVENT 13. CONFIDENTIALITY GIVING RISE TO THE LIABILITY. 13.1 Subject to any other written agreements between the parties in connection with 9.7 Third Party Providers The Licensee acknowledges that Nearmap relies on the this Agreement,any information provided in writing or orally or data provided by 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 either party under this Agreement("Discloser")to the other party("Recipiente applicable law,Nearmap will not be liable for any loss,damage,or cost of any and marked or identified f proprietary or Confidential Information shall not is kind,which is caused,or contributed to,by a third party service provider except disclosed for l period of three agreed years from termination or expiry of this to the extent it was caused or contributed by the acts,defaults or omissions of Agreement, unless mutually agreed in writing m the parties. The parties will Nearmap. disclose Confidential Information only to their employees who have a need to 9.8 Indemnity To the extent permitted by law, the Licensee agrees to indemnify 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 Nearmap and its directors, officers, employees, agents, mandataries, and s Recipient will protect Confidential Information from unauthorized use,access,or subcontractors,from and against any and all direct or indirect claims,damages, disclosure in the same manner at it would protect their own confidential or losses,liabilities,expenses,and costs(including reasonable attorney's fees and proprietary information of similar nature and with no less than reasonable care. costs)arising from or out of: 13.2 The confidentiality obligations do not apply to the Recipient if: (a) the Licensee's actual or alleged breach of any provisions of this Agreement; (a) the Discloser has first agreed in writing to the particular disclosure, use, or (b) the Licensee's use of the Product for any purpose;and copying; (c) the Licensee's use of, or any third parry's use of, or inability to use, any Derivative Works,including without limitation,any output from the Derivative (b) the Confidential Information was generally known by or available the public through no wrongful act of the Recipient or otherwise than as a consequence of Works. 9.9 Notice of claim Nearmap will provide the Licensee with notice of any claim or a breach of this Agreement; c) the Confidential Information was received by the Recipient without breach of this allegation,under section 9.8,and Nearmap has the right to participate in the ( defense of any such claim at its expense. Agreement from third party without restriction as to the use and disclosure of 10. COPYRIGHT COMPLAINTS the Confidential Information;or 10.1 if any third party brings a Claim against the Licensee alleging that the (d) the disclosure of Confidential Information legally compelled due to compliance with federal and state laws or an order by a court. Licensee's use of the Products,in accordance with this License,infringes their 13.3 Immediately upon termination or expiry of this Agreement,the Recipient must copyright("Infringement Claim"), Nearmap will defend the Licensee against (at its expense): the Claim and pay any settlement to which Nearmap consents or final court- (a) cease all use of the materials and Confidential Information; awarded damages for which the Licensee is liable. (b) destroy or return (at the Discloser's discretion)the Confidential Information to 10.2 The Licensee must: the Discloser together with all copies, reproductions and summaries of the (a) promptly notify Nearmap of any such Infringement Claim; same; (b) not make any admissions in relation to the Infringement Claim without (c) destroy all of its notes,memoranda and records(in whatever form)containing, Nearmap's prior written consent; referring to or based on the Confidential Information; (c) permit Nearmap to conduct the defense of the Infringement Claim including all (d) ensure that any person who receives the Confidential Information by the negotiations for settlement;and Recipient's authority returns the Confidential Information to the Discloser in any (d) provide Nearmap with any assistance reasonably requested to allow Nearmap form in which it is held or destroys it and gives evidence of its destruction to the to defend the Infringement Claim. Discloser;and 10.3 Nearmap will have no liability for any Infringement Claim: (a) provide to the Discloser a written certificate confirming compliance with the (a) that arises from any: requirements under this section. (i) use of the Product in violation of this Agreement; 14. NOTICES (ii) modification of the Product by anyone other than Nearmap,or a party 14.1 All notices and consents will be in writing and will be considered delivered and authorized by Nearmap,in writing to modify the portion of the Product Page 6 of 9 Nearmap US,Inc. effective upon receipt(or when delivery is refused)when: Affiliate means,with respect to Nearmap,any entity that controls or is controlled by (a) personally delivered; Nearmap,or is under common control with Nearmap.For purposes of this definition,an (b) sent by registered or certified mail(postage prepaid,return receipt requested); entity shall be deemed to control another entity if it owns or controls,directly or indirectly, (c) sent by nationally recognized private courier(with signature required and all at least 50%of the voting equity of another entity(or other comparable interest for an fees prepaid);or entity other than a corporation). (d) sent by email with confirmation of transmission. Allowance means any usage allowance the Licensee is permitted to use and/or drawn 14.2 Notices must be sent to the Licensee at the address set forth in the Quote(or if down against for any Licensed Non-Government Products as specified the Quote. none is specified,the address to which Nearmap sends invoices)and for API means application programming interface. Nearmap to 10897 South River Front Parkway,Suite 150,South Jordan,UT Authorized User means the number of persons specified in the"Seats"section of the 84095,USA,or at another address as a party may designate in writing. Quote,who have been granted access to the Product by the Licensee pursuant to the 15. TECHNOLOGY EXPORT term and conditions of this Agreement,and who either has been assigned a unique The Licensee shall not:(a)permit any third party to access or use the Product in Nearmap user login credential or whom the Licensee has assigned a user login violation of any U.S.or Canadian law or regulation;or(b)export any software credential that enables access to the Product through the Website or API. provided by Nearmap,or otherwise remove it from the United States or Canada, Business Days means any day other than a Saturday,a Sunday or a recognized public except in compliance with all applicable U.S.and Canadian laws and regulations. holiday in the State of Utah,USA. Without limiting the generality of the foregoing,the Licensee shall not permit any Claim means any claim, cost (including legal costs on a solicitor and client basis), third party to access or use the Product in,or export such software to,a country damages,debt,expense,tax,liability,loss,obligation,allegation,suit,action,demand, subject to a United States embargo(as of the Effective Date,Cuba,Iran,North cause of action,proceeding,orjudgment of any kind,however calculated or caused,and Korea,Sudan,and Syria)or a Canadian embargo. whether direct or indirect,consequential,incidental or economic. 16. MISCELLANEOUS TERMS Commencement Date means(a)for New Subscription Quotes,the date as specified in 16.1 Nearmap customer Licensee grants Nearmap the right to use Licensee's name the"Contract Commencement"section or the"Subscription Start Date"section of the and logo to identify as a Nearmap customer for marketing or promotional Quote,whichever is later,or(b)for Renewal Quotes or Amendment Quotes,the date as purposes in public or private communications with Nearmap's existing or specified in the"Subscription Start Date"section of the Quote. potential customers, subject to Licensee's standard trademark usage Commercial Purpose means to distribute, transfer, sell, sublicense, or pass guidelines as provided to Nearmap from time to time. possession of any Products(in whole or in part)for the purpose of direct commercial 16.2 Additional Terms and Conditions The Additional Terms and Conditions form benefit or gain by the Licensee. part of,and should be read in conjunction with,this Agreement. Confidential Information means the terms of this Agreement,the pricing,and any other 16.3 Precedence of Documents This Agreement is comprised of: information relating to the business,finances,strategy,methods,processes,products, (a) the Additional Terms and Conditions under Schedule 1; metadata, services or other affairs of a party or its representatives or related bodies (b) the Quote and attached Schedules; corporate which is disclosed to,learnt by or accessed by the Licensee in connection with (c) any Product-Specific Terms;and the Agreement, whether before or after the Licensee entered into the Agreement, (d) this products agreement, whether orally,electronically,in writing or otherwise. If there is any ambiguity or inconsistency between the documents comprising Content means any content made available by or on behalf of Nearmap to the Licensee the Agreement,the document appearing higher in the list will have precedence. in connection with the License,whether or not through the Website or an API. If the Licensee purchases the Products through a reseller,the terms and Coverage Area means the area specified in the"Coverage"section of the Quote for conditions under this Agreement will apply. This Agreement between Nearmap which Nearmap has available Products,which may cover part or all of that area and and the Licensee supersedes all terms and conditions attached to the which may cover part(but not all)of the area covered by the Survey. Licensee's and/or reseller's purchase order. Derivative Work means any new work created by or for the Licensee that incorporates, 16.4 Independent Contractors The parties are independent contractors and will so embeds,or includes all or part of a Nearmap Product or Content. represent themselves in all regards.Neither party is the agent of the other,and Discloser has the meaning given in section 13.1. neither may make commitments on the other's behalf.The parties agree that Fair Use Policy means the policy as attached to the Quote. neither party's employee or contractor is an employee of the otherparty. Fault means any fault, failure, error, or defect which prevents the Licensee from 16.5 Construction The parties agree that the terms of this Agreement result from accessing the Products,other than where access is prevented due to a planned negotiations between them.This Agreement will not be construed in favor of or outage,because of an unforeseeable event beyond Nearmap's reasonable control or against either party by reason for authorship. any conduct or activity undertaken by the Licensee,the Licensee's employees,agents, 16.6 Waiver Neither party will be deemed to have waived any of its rights under this or mandataries. Agreement by lapse of time or by any statement or representation other than by Fees means the fees specified in the Quote,payable by the Licensee for the License, an authorized representative in an explicit written waiver.No waiver of a breach or as otherwise agreed in writing between Nearmap and the Licensee. of this Agreement will constitute a waiver of any other breach of this Agreement. Force Majeure Event has the meaning given in section 12.1. 16.7 Severability If one or more of the terms of this Agreement are found to be Government Products means any Products specified in the Quote that are described invalid, illegal or unenforceable in any respect, the validity, legality and as "Nearmap Vertical for Government" and "Nearmap Oblique for Government" and enforceability of the remaining terms will not be affected. includes any other Products offered by Nearmap for government customers only 16.8 Amendments Other than as expressly specified in this Agreement, this where use of its License is connected to the Fair Use policy. Agreement may only be varied with the written consent of Nearmap and the Infringement Claim has the same meaning given in section 10.1. Licensee. Intellectual Property Rights includes all industrial and intellectual property rights 16.9 Assignment This Agreement shall not be assigned by either party without the throughout the world,including copyright,moral rights,trademarks,patents,rights to prior written consent of the other party which shall not be unreasonably withheld; protect confidential information,and any other similar rights. provided, however, that Nearmap may, upon written notice to the Licensee, License means the license granted in section 1.1. assign all of its rights under this Agreement to(i)a parent,subsidiary or Affiliate Licensee means the person or entity specified in the"Customer Name"section of the of Nearmap, (ii) a purchaser of all or substantially all assets related to this Quote. Agreement, or Ili a third a Nearmap means Nearmap US,Inc. g (co party participating in a merger, acquisition, sale of Non-Government Products means all Products specified in the Quote that do not fall assets t other corporate reorganization in which Nearmap is participating.Any under the definition of Government Products. attempt to assign this Agreement in violation r this provision shall a void and of Operational Hours means 9am to 5pm MT. no effect. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns. Periodic Allowance or Periodic Data Allowance means the data allowance specified 16.10 Entire Agreement This Agreement: in the "Allowance" section of the Quote unless otherwise agreed in writing between (a)comprises the entire agreement and understanding between the parties on Nearmap and the Licensee. everything connected with the subject matter of this Agreement;and Periodic Allowance Section means section 1.6(or its equivalent)in the most current (b)supersedes any prior agreement or understanding on anything connected version of the products agreement currently located at here. with that subject matter. permitted Purpose means the use of Products by the Licensee for internal purposes i 16.11 Counterparts This Agreement may consist of a number of counterparts and,if n the Licensee's ordinary business,and at all times excludes any: so,the counterparts taken together constitute one and the same instrument. (a) Commercial Purpose; This Agreement is not binding on any party unless one or more counterparts (b) Unlawful Purpose; have been duly executed by,or on behalf of,Nearmap and the Licensee. (c) Integration, or attempt to integrate, the Products in an internal system of the 16.12 Language The parties have expressly agreed that this Agreement, and all Licensee or of a third party;and ancillary agreements, documents, or notices relating to the Agreement, be (d) Redistribution or copying of files, images,or photographs, or making such files, drafted solely in the English language. Les parties aux pr6sentes ont images,or photographs available in any medium or manner that is contained in expressement convenu que cet accord et touts autre convention,document the Products to any third party (except as expressly permitted under this ou avis y affLsrent soient r6dig6s en anglais seulement. Agreement). 16.13 Governing Law This Agreement will be governed by and construed in Products means any Nearmap products specified in the Quote(and further described accordance with the laws of the State where the Licensee conducts business on the Website)and, if applicable, the Survey. For the avoidance of doubt, Products (without giving effect to the conflicts of laws provisions thereof). include Content. 17. DEFINITIONS Product-Specific Terms means additional terms and conditions that apply to certain In this Agreement: Products,currently located here. Additional Terms and Conditions means the additional terms and conditions (if Quote the document produced after the Licensee places an initial order for the any) set out in the Quote. Product(s),requests any changes to its License,or renews its License,which may be titled"New Subscription Quote","Renewal Quote"or"Amendment Quote". Page 7 of 9 Nearmap US,Inc. 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 of 9 Nearrnap US,Inc. FAIR USE POLICY General 1.It is important to Nearmap that all customers are able to access the Products and Services.Accordingly,we have devised a Fair Use Policy that applies to the data usage of the Products and Services. 2.In this Fair Use Policy: a.Excessive Use has the meaning given to that term in section 7 of this Fair Use Policy; b.Fair Use Policy means this policy; c.Nearmap,we,us or our means Nearmap US,Inc.; d.Products has the meaning given to that term in Your Nearmap Agreement; e.Services has the meaning given to that term in Your Nearmap Agreement; f.You or Your means any customer of Nearmap; g.Your Nearmap Agreement means the agreement pursuant to which Nearmap provides You with various products and services;and h.Unreasonable Use has the meaning given to that term in section 5 of this Fair Use Policy. 3.We reserve the right to vary the terms of this Fair Use Policy from time to time. 4.This Fair Use Policy is in addition to Your Nearmap Agreement and in the event of any inconsistency between the terms of this Fair Use Policy and the terms and conditions of Your Nearmap Agreement,Your Nearmap Agreement prevails. Unreasonable Use 5.We consider Your use of the Products and Services unreasonable where You use it in a manner which is reasonably considered by Nearmap to be fraudulent use,to be contrary to Your Nearmap Agreement or to adversely affect other Nearmap customers'use of or access to the Products and Services. 6.Among 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(if applicable). 9.If,after Nearmap has contacted You,Your Unreasonable Use and/or Excessive Use continues,Nearmap may,without further notice to You: a.restrict Your access to low resolution imagery for the remainder of the month;and/or b.restrict Your access to low resolution imagery for the remainder of the month until Your data allowance is reset at the beginning of the next month(if applicable); and/or c.restrict Your access for the remainder of the month;and/or d.restrict Your access to Nearmap until Your data allowance is reset at the beginning of the next month(if applicable);and/or e.immediately cease Your access to Nearmap;and/or f.exercise any other right available to Nearmap under the terms of Your Nearmap Agreement. Page 9 of 9 Nearmap US,Inc.