VEXCEL END USER LICENSE AGREEMENT
AS A CONDITION OF THE RIGHTS GRANTED TO YOU IN THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”), INCLUDING THE RIGHT TO ACCESS AND USE THE LICENSED CONTENT, AS DEFINED HEREIN, OR ANY OF ITS PARTS, YOU (“YOU” OR “LICENSEE”) MUST AGREE TO THE FOLLOWING TERMS. LICENSEE’S SUBSEQUENT USE OF THE LICENSED CONTENT WILL BE SUBJECT TO ANY ADDITIONS OR MODIFICATIONS TO THIS AGREEMENT IN EFFECT AS OF THE DATE OF THAT USE. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS OR CONDITIONS, DO NOT PROCEED, AND DO NOT ACCESS OR USE THE LICENSED CONTENT. BY PROCEEDING YOU ARE INDICATING YOUR AGREEMENT TO BE GOVERNED BY THIS AGREEMENT IN ITS ENTIRETY.
THIS AGREEMENT GOVERNS YOUR USE OF THE VEXCEL IMAGING US, INC. (“VEXCEL”) GEOSPATIAL INFORMATION RELATED TO A SPECIFIC GEOGRAPHIC AREA AND DURATION, INCLUDING BUT NOT LIMITED TO, ORTHORECTIFIED IMAGERY, MEASURABLE OBLIQUE IMAGES, 3D ELEVATION MAPS, 2D/3D GEOGRAPHIC FEATURES AND ASSOCIATED METADATA OF SUCH AREAS AND WEBVIEWER (“LICENSED CONTENT”).
This Agreement is entered into by Vexcel and You as the Licensee. By signing or otherwise indicating acceptance of this Agreement or downloading, accessing or using any Licensed Content, You hereby accept and agree to be bound by this Agreement as of the date any one of the foregoing activities first occurs (the “Effective Date”).
“Geospatial Information” means geographic data including, but not limited to aerial imagery both vertical and oblique, 3D Elevation data such as digital surface models or point clouds and geographic features represented in 2D and/or 3D distributed by Vexcel.
“Webviewer” means a user interface accessible through either an Internet browser or mobile device which provides access to Geospatial Information and tools to visualize and analyze Geospatial Information.
- GRANT OF LICENSE. Vexcel hereby grants You a non-exclusive, worldwide, non-transferable, license to the Licensed Content during the term of the subscription specified in an applicable quote or order form to access and use the Licensed Content as integrated into a Webviewer or other product or service provided by Vexcel or an authorized integrator (each, an “Authorized Party”), subject to the terms and restrictions in the agreement between You and the Authorized Party (the “Customer Agreement”). You may allow your employees and contractors (“Users”) to access and use the Licensed Content in compliance with the terms of this Agreement, provided that (a) You have paid all applicable fees for such Users, and (b) the access to and use of the Licensed Content by Users must be for your sole benefit. You are responsible and liable for your Users’ compliance with the terms of this Agreement. Any act or omission by any User that would constitute a breach of this Agreement if such User were a party to this Agreement shall be deemed a breach of this Agreement by You.
Subject to your compliance with the terms and conditions of your Customer Agreement, the Customer Agreement may grant You more permissive rights to access and use the Licensed Content than are set forth in this Agreement. In the event of a conflict between the terms of your Customer Agreement and this Agreement, the terms of your Customer Agreement shall take precedence. Vexcel reserves all rights other than as expressly granted in this Agreement or your Customer Agreement.
- EVALUATION LICENSE. If You are evaluating the Authorized Party’s products or services, but have not yet entered into a license or use agreement pertaining to the Licensed Content with the Authorized Party, then, subject to your compliance with this Agreement, Vexcel grants to You a non-exclusive, fully paid-up, royalty-free, non-transferable, limited license to access and use an evaluation version of the Licensed Content (the “Evaluation Content”) solely for the purpose of evaluating the Authorized Party’s products or services, and not for any other business or commercial purpose, for a period of up to ninety (90) days. LICENSEE ACKNOWLEDGES THAT IT IS NOT AUTHORIZED OR PERMITTED TO USE THE EVALUATION CONTENT FOR ANY PRODUCTION USE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY AGREEMENT BETWEEN LICENSEE AND VEXCEL OR ANY AUTHORIZED PARTY, THE EVALUATION CONTENT IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
- RESTRICTIONS. Your use of the Licensed Content and the rights granted to You in this Agreement are subject to compliance with the restrictions set forth in this section. Except as provided in Section 2 above, You will not, and You will not allow any third party to: (a) make, copy, modify, store, access, reproduce, or display the Licensed Content; or (b) create any derivatives from the Licensed Content whatsoever, including without limitation, via formatting, editing, and/or data combination for distribution to any third party; or (c) distribute, sublicense, rent, sell, lease or loan the Licensed Content or derivatives to any third party or, directly or indirectly, make the Licensed Content publicly accessible or viewable; or (d) remove, bypass or circumvent any electronic or other forms of protection measure included on or with the Licensed Content; or (e) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Licensed Content; or (f) disrupt, disable, or interfere with the integrity or performance of the Licensed Content, including through excessive use; or (g) use the Licensed Content in a way that violates any applicable law or regulation or third party rights; or (h) create a commercial imagery data set or derivatives composed principally of the Licensed Content; or (i) otherwise access or use the Licensed Content in any way that is not expressly permitted by this Agreement or your Customer Agreement.
You may not use the Licensed Content for the purpose of product development, tuning, training, or modification of internal models, generation of aggregate analyses, or creation of scores or data elements related to the Licensed Content.
You agree that You will not share any personally identifiable information (“PII”) with Vexcel when accessing or using the Licensed Content in any manner. Vexcel does not accept PII associated with your licensing of the Licensed Content and hereby rejects any submissions of PII.
You acknowledge and agree that the Licensed Content is not a consumer report (as defined in the Fair Credit Reporting Act (“FCRA”) and may not be used for any purpose permitted by the FCRA.
- LICENSEE RESPONSIBILITIES.
a. Licensee must keep its Users’ login credentials, including, without limitation, usernames and passwords, secure and confidential and must use commercially reasonable efforts to prevent unauthorized access to or use of its account. Licensee must promptly notify Vexcel of any unauthorized access or use of the Licensed Content.
b. You will be responsible for paying all actual egress fees at cost, based on your usage of the Product for the applicable period (“Egress Fees”) as follows: data egress, temporary storage, processing, and access fees incurred by Vexcel as charged by Vexcel’s cloud service provider (“CSP”) (if directed by Vexcel, You shall use Your own billing “key” for such usage and pay directly). Vexcel will invoice You on a monthly basis for the applicable Egress Fees. All invoices will be due and payable net thirty (30) days from the date of invoice.
c. At all times during the Term, and for at least three (3) years after any expiration or termination of this Agreement, You will maintain complete and accurate records with respect to Your activities related to your access to and use of the Licensed Content. Vexcel will have the right, during normal business hours and upon at least five (5) business days prior notice, to have a reputable auditor, selected by Vexcel, which is subject to reasonable confidentiality obligations, audit your records relating to your use of the Licensed Content in order to verify that You have complied with the terms and conditions of this Agreement. The audit will be conducted at Vexcel’s expense, unless the audit reveals that You have failed to comply with your obligations under this Agreement, in which case You will reimburse Vexcel for all reasonable costs and expenses incurred by Vexcel in connection with such audit. In addition to any other remedies available to Vexcel, You will promptly correct any compliance deficiencies and pay Vexcel the cost of the audit.
- GOOGLE TERMS. The Webviewer may use geocoding services accessed from Google Maps/Google Earth. Notwithstanding anything to the contrary in this Agreement, You understand and agree that use of the Google geocoding services is subject to the Google Maps/Google Earth Additional Terms of Service posted at https://www.google.com/intl/en_us/help/terms_maps.html. If there is any inconsistency between the terms and conditions of this Agreement and the terms and conditions of the Google Maps/Google Earth Additional Terms of Service, the Google Maps/Google Earth Additional Terms of Service will apply.
- OWNERSHIP AND ATTRIBUTION. The Licensed Content and any derivatives of the Licensed Content, including, without limitation, its transformation into any other format or its incorporation into any work product, is owned by Vexcel. Licensee hereby consents to and authorizes Vexcel’s use of and sharing of Customer Information with Vexcel’s affiliates, and its authorized third parties for the following purposes: (1) use the Customer Information to make improvements to Vexcel’s product and service offerings; and (2) as otherwise necessary in order to perform its obligations under this Agreement. Vexcel and its authorized third parties shall consider such Customer Information to be confidential and shall treat such information with the same degree of care that it uses to protect its own confidential information of a similar nature. “Customer Information” means all information Vexcel receives from You in the course of performing its obligations under this Agreement.
All right, title and interest in and to the Licensed Content, including all intellectual property rights therein, are the sole and exclusive property of Vexcel or its licensors. All derivatives, if any are permitted, must include the following copyright notice on or adjacent to the derivative: [Title of Licensed Content] © [YEAR] Vexcel Imaging US, Inc.
- NO WARRANTY AND DISCLAIMER. ALL LICENSED CONTENT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATION, CONTENT OR RESULTS, OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. VEXCEL DOES NOT WARRANT THAT (A) THE LICENSED CONTENT WILL MEET YOUR BUSINESS REQUIREMENTS, (B) THE LICENSED CONTENT WILL BE ACCESSIBLE, AVAILABLE, ACCURATE, CURRENT OR COMPLETE, OR THAT THE OPERATION OF THE LICENSED CONTENT WILL BE COMPLETELY SECURE, ERROR-FREE OR UNINTERRUPTED, OR (C) ALL ERRORS WILL BE CORRECTED. VEXCEL SHALL HAVE NO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS IN ACCESS TO OR USE OF THE LICENSED CONTENT RESULTING FROM INTERRUPTIONS IN INTERNET CONNECTIVITY AND/OR RESULTING FROM DAMAGED OR DEFECTIVE TELECOMMUNICATIONS EQUIPMENT. YOU ACKNOWLEDGE AND AGREE THAT VEXCEL’S LICENSORS MAKE NO DIRECT WARRANTY OF ANY KIND TO YOU UNDER THIS AGREEMENT.
You acknowledge and agree that your access to and use of the Licensed Content may be impacted by the following: (1) any services, hardware, or software provided by You, including issues resulting from inadequate bandwidth or related to your software or services, such as cloud platform services; (2) your use of the Licensed Content after Vexcel advised You to modify your use of the Licensed Content, if You did not modify your use as advised; (3) during, or with respect to, preview, pre-release, beta or trial versions of Licensed Content (as determined by Vexcel); (4) your unauthorized action or lack of action when required, or the unauthorized action (or lack of action) when required from your employees, agents, contractors, or vendors; or anyone gaining access to the Licensed Content by means of your passwords or equipment, or otherwise resulting from your failure to follow appropriate security practices; (5) your failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or your making excessive use of the Licensed Content or attempting to use the Licensed Content in a manner inconsistent with the features and functionality of the Licensed Content (for example, attempts to perform operations that are not supported) or inconsistent with Vexcel’s published guidance; (6) faulty input, instructions, or arguments (for example, requests to access files that do not exist); or (7) your attempts to perform operations that resulted from Vexcel’s throttling of suspected abusive behavior.
- LIMITATION OF LIABILITY. In no event WILL VEXCEL or its LICENSORS be liable for ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES AND IN NO EVENT WILL THE TOTAL LIABILITY OF VEXCEL AND ITS LICENSORS, ARISING OUT OF OR IN CONNECTION WITH THE LICENSED CONTENT, EXCEED $1,000.00 USD. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
- CONFIDENTIALITY. “Confidential Information” means all non-public information disclosed to Licensee by Vexcel, including, without limitation, the Licensed Content and the terms of the Customer Agreement. Licensee shall not disclose any Confidential Information to any third party without Vexcel’s prior written consent and shall limit access to Confidential Information to those of Licensee’s employees and contractors who require access to Confidential Information for purposes consistent with the terms of this Agreement and who have signed confidentiality agreements with Licensee containing obligations no less stringent than those set forth in this Agreement. Licensee shall use the same degree of care to protect the Confidential Information that Licensee uses to protect the confidentiality of its own like confidential information, but in any event not less than reasonable care.
- TERMINATION. This Agreement will terminate upon termination of your Customer Agreement without further notice to You. In addition, if You or an Authorized Party is in breach of any agreement with Vexcel or if Vexcel reasonably suspects that You are using the Licensed Content in violation of applicable laws or regulations, Vexcel may immediately suspend your access to the Licensed Content and terminate this Agreement without further notice to You. You may terminate this Agreement at any time by (a) permanently deleting the Licensed Content and derivatives from all devices and systems and destroying any copies on disk, and (b) having an officer of your company certify to Vexcel in writing that all copies of all Licensed Content and derivatives have been deleted or destroyed. Upon termination or expiration of this Agreement, You will (i) stop all uses of the Licensed Content and derivatives; and (ii) if You have not already done so, undertake the actions set forth in subsections (a) and (b) of this Section. The termination of this Agreement does not relieve either party of any obligations that have accrued on or before the effective date of termination.
- COMPLIANCE WITH LAWS. You are responsible for your own compliance with laws, regulations and other legal requirements applicable to the conduct of your business and this Agreement, and You agree to comply with all laws, regulations and other legal requirements, including, without limitation, all customs and export control laws and regulations.
- INDEMNIFICATION. Licensee shall protect, defend, indemnify, and hold harmless Vexcel, its parent and affiliates, and their respective officers, employees, directors, partners, shareholders, agents, attorneys and advisors from and against any and all claims, suits, losses, liabilities, damages, judgments, awards, expenses and costs, including legal fees and court fees incurred by Vexcel from any litigation, as well as claims, losses, liabilities, attorneys’ fees, and fees incurred out of court, arising out of, based upon, or caused by (a) the unlawful or tortious conduct of or a breach of duty by Licensee, Licensee’s employees, agents, subsidiaries, or independent contractors, or (b) any damage or injury (including death) to persons or property caused by or sustained in connection with Licensee’s performance under the Agreement or by conditions created thereby, or based upon Licensee’s violation of any statute, ordinance, code or regulation, and the defense of any such claims or actions. Vexcel shall give Licensee notice of any such claim and provide at Vexcel’s own expense such commercially reasonable assistance as Licensee may require.
- INJUNCTIVE RELIEF; DAMAGES. Any material breach of this Agreement by You or Your Users may cause irreparable injury and Vexcel may be entitled to equitable relief, including injunctive relief and specific performance, in the event of a breach. The above will not be construed to limit the remedies available to Vexcel. YOU ACKNOWLEDGE AND AGREE THAT ANY INTENTIONAL IMPROPER DOWNLOAD AND/OR DISTRIBUTION OF THE LICENSED CONTENT, OR LICENSED CONTENT IMPROPERLY DOWNLOADED AND USED IN THE PREPARATION OF DERIVATIVE WORKS OF THE LICENSED CONTENT WILL ENTITLE VEXCEL TO DAMAGES CALCULATED IN ACCORDANCE WITH THE 17 U.S. CODE §504(C), WITH EACH IMAGE IMPROPERLY DOWNLOADED AND/OR DISTRIBUTED OR IMPROPERLY DOWNLOADED AND USED IN THE PREPARATION OF DERIVATIVE WORKS TO BE COUNTED AS A SEPARATE INFRINGEMENT, WHETHER OR NOT VEXCEL HAS FILED A COPYRIGHT REGISTRATION ON EACH IMAGE. IN ADDITION, VEXCEL WILL BE ENTITLED TO BE REIMBURSED FROM YOU FOR ALL OF ITS REASONABLE ATTORNEYS’ FEES AND EXPENSES AT ALL LEVELS OF PROCEEDINGS AND FOR INVESTIGATIONS IN ENFORCING ITS RIGHTS UNDER THIS AGREEMENT.
- GENERAL TERMS. Except with respect to the Customer Agreement, this Agreement constitutes the entire agreement between the parties with respect to access to and use of the Licensed Content and supersedes all previous and contemporaneous agreements, understandings and arrangements, whether oral or written. The failure or delay of either party to exercise any right under the Agreement shall not be deemed a waiver of that or any other right. A waiver or consent given by either party on any one occasion is effective only in that instance and will not be construed as a waiver of any right on any other occasion. Any other provisions contained herein to the contrary notwithstanding, neither party hereto shall be liable to the other party for loss, injury, delay, or damages, or other casualty suffered or incurred by such other party due to governmental regulations or directions, outbreak of a state emergency, Act of God, war, warlike hostilities, terrorism, civil commotion, riots, epidemics, storms, fires, strikes, lockouts, and any other similar cause or causes beyond the reasonable control of the party whose performance is affected by such cause or causes. Licensee shall not assign (by operation of law or otherwise), rent, sell, sublicense, sub-contract or otherwise transfer the Agreement or any portion thereof to any other person, firm, or entity without Vexcel’s express prior written consent. Any attempted assignment or transfer in violation of this Section will be null and void. Vexcel may freely assign or otherwise transfer this Agreement. The Agreement will be binding upon Licensee and Vexcel and inure to the benefit of Licensee and Vexcel and its and their respective successors and permitted assigns. In the event Vexcel must seek the services of an attorney to enforce the provisions of the Agreement, Licensee shall pay all reasonable attorney’s fees, costs and damages incurred by Vexcel, whether such attorney’s fees, costs and damages are incurred in or out of court. Any disputes arising out of this Agreement will be governed, construed, and enforced in accordance with the laws of the State of Colorado, U.S.A., without giving effect to its conflict of law rules. Each Party consents to the exclusive jurisdiction and venue of the state and federal courts located in Denver, Colorado, U.S.A. This Agreement is drafted in the English language only. English will be the controlling language in all respects, and all versions of this Agreement in any other language are for accommodation only and will not be binding on the parties. Licensee hereby grants permission and consent to receive information and notice via electronic mail transmissions from Vexcel at the address below. All notices to Vexcel shall be delivered to Vexcel at firstname.lastname@example.org. Any notice under this Agreement must be in writing and delivered by personal delivery, overnight courier, confirmed email, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one day after deposit with an overnight courier, five days after deposit in the mail, or upon confirmation of receipt of an email.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS, AND FURTHER AGREE THAT THIS IS THE COMPLETE AND EXCLUSIVE STATEMENT BETWEEN VEXCEL AND YOU RELATING TO THIS AGREEMENT.