20-122.00 Pictometry Intl: Pictometry Connect Software DocuSign Envelope ID:61 EF73C4-0687-4384-858A-99B20EDADFC9
AGREEMENT BETWEEN
PICTOMETRY INTERNATIONAL CORP. ("PICTOMETRY")AND
CITY OF SPOKANE VALLEY,WA("CUSTOMER")
1. This order form("Order Form"),in combination with the contract components listed below:
Section A:Product Descriptions,Prices and Payment Terms
Section B:License Terms:
• Online Services General Terms and Conditions
• Software License Agreement
(all of which,collectively,constitute this"Agreement")set forth the entire understanding between Pictometry and Customer with
respect to the subject matter hereof and supersedes all prior representations,agreements and arrangements,whether oral or
written,relating to the subject matter hereof. Any modifications to this Agreement must be made in writing and be signed by
duly authorized officers of each party. Any purchase order or similar document issued by Customer in connection with this
Agreement is issued solely for Customer's internal administrative purposes and the terms and conditions set forth on any such
purchase order shall be of no force or effect as between the parties.
2. In the event of any conflict among any contract components comprising this Agreement,order of precedence for resolving such
conflict shall be,from highest(i.e.,supersedes all others)to lowest(i.e.,subordinate to all others):Product Descriptions,Prices
and Payment Terms;License Terms in order as listed above under the heading'Section B:License Terms';and Order Form.
3. All notices under this Agreement shall be in writing and shall be sent to the following respective addresses:
mIJSTaDMER•N01'3GeAbDRISS•::..w:...,;..:::.r::..M:.:.:v:.EMO<:3:,:;::::,<MEM gra,c*ibl►eitililgloartCtz.&b7ttSs..' <ERMONSV
10210 E Sprague Ave 25 Methodist Hill Drive 1
Spokane Valley,WA 99206 Rochester,NY 14623
Attn: Morgan Koudelka,Senior Administrative Analyst Attn: General Counsel
Phone: (509)720-5104 Fax: Phone: (585)486-0093 Fax: (585)486-0098
Either party may change their respective notice address by giving written notice of such change to the other party at the other
party's then-current notice address. Notices shall be given by any of the following methods:personal delivery;reputable express
courier providing written receipt;or postage-paid certified or registered United States mail,return receipt requested. Notice shall
be deemed given when actually received or when delivery is refused.
4. This Agreement,including all licenses granted pursuant to it,shall be binding upon and inure to the benefit of the parties hereto,
their successors and permitted assigns,but shall not be assignable by either party except that(i)Pictometry shall have the right to
assign its right to receive Fees under this Agreement,provided no such assignment shall affect Pictometry's obligations hereunder,
and(ii)Pictometry shall have the right to assign all its rights under this Agreement to any person or entity,provided the assignee
has assumed all of Pictometry's obligations under this Agreement.
5. IN NO EVENT SHALL EITHER PARTY BE LIABLE,UNDER ANY CAUSE OF ACTION OF ANY KIND ARISING OUT
OF OR RELATED TO THIS AGREEMENT(INCLUDING UNDER THEORIES INVOLVING TORT,CONTRACT,
NEGLIGENCE,STRICT LIABILITY,OR BREACH OF WARRANTY),FOR ANY LOST PROFITS OR FOR ANY
INDIRECT,INCIDENTAL,CONSEQUENTIAL,PUNITIVE,OR OTHER SPECIAL DAMAGES SUFFERED BY THE
OTHER PARTY OR OTHERS,EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. With respect to any claims that Customer may have or assert against Pictometry on any matter relating to this Agreement,the
total liability of Pictometry shall,in the aggregate,be limited to the aggregate amount received by Pictometry pursuant to this
Agreement.
7. The waiver by either party of any default by the other shall not waive subsequent defaults of the same or different kind.
8. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be
unenforceable,such provision will be enforced to the maximum extent permissible and the remaining portions of this Agreement
shall remain in full force and effect.
9. Except with respect to Customer's payment obligations for services delivered,reports delivered or any ongoing subscription
payment obligation,each Party will be excused from performance under this Agreement,will not be deemed to be in breach
hereof,and will have no liability to the other Party whatsoever if either Party is prevented from performing any of its obligations •:
Page 1 of 8 City of Spokane Valley,WA—CI 8762181 2020-06-03 DD-0001-20 1603 1 8
DocuSign Envelope ID:61 EF73C4-0687-4384-858A-99B20EDADFC9
hereunder,in whole or in part,as a result of a Force Majeure Event. A"Force Majeure Event"means an event or occurrence
beyond the control of the notiperfornling party,such as an'act of God or of the public enemy,embargo or other act of-government
in either its sovereign or contractual capatity,,government regulation,travel ban or request,court order,civil disturbance,
terrorism,war,quarantine restriction,epidemtc,avirus,lire,weather,flood,accident,strike,slowdown,delay in tranportation,
electrical power outage,interruption or degradation in electronic communications systems,inability to obtain necessary labor,
materials or manufacturing facilities,and other sithilai events. In the event bf any delay resulting fro:tt.a Force Majeure Event,
any date of delivery hereunder will be extended for i1 petiod equal to the tithe lost because of the delay.
10. In consideration of,and subject to;payment by Customer of the Fees specified in Section A of this Agreement,Pictometry agrees
to provide Customer with access to and use of the products specified in Section A ofthis Agreement,subject to the terms and
conditions setforth in this Agreement. Customer hereby agrees to pay the Fees specified in Section A of this Agreement in
accordance with the stated payment terms imd accepts and agrees to abide by the terms of this Agreerttent.
This Agreement shall becotne effective upon execution by duly authorized officers of Customer and Pictometry and receipt by
Pictometry of such fully executed document,such date of receipt by Pictometry being the"Effective Date."
PARTIES:
isSIISVOMERt7._.., :.° an x ::i w .a , PI(� 01ViE l3R`I? w �.,� � �, ,!: .
c�,:s'.�4.aem wy�s.,r.���..rsn�:��iLaa+:.m�'+r�.,�.u*a, :+.sA..a �"✓ o'�..:.:�nw�,ilr_�, w�r';..�,.�.x. .�a,
one OF SPOKANE VALLEY1 WA PICTOMETRY INTERNATIONAL CORP.
(entity type) a Delaware corporation
SIGNATU : `- SIGNATURE:
weer
W VU
NAME: M ark a(610%. NAME: `—flteCSICSOFFMIL
Brian Brockmann
TITLE: TITLE:
C( ( _
CU4Otq-- Corporate vice President
DATE: f2fØ
EXECUTION DATE:6/23/2020
DATE OF RECEIPT(EFFECTIVE DATE): b/23/2020
Page 2 of8 City of Spokane Valley,WA—C187621812020-O6r03 DD-1001 20160318
DocuSign Envelope ID:61EF73C4-0687-4384-858A-99B20EDADFC9 .
SECTION A PRODUCT DESCRIPTIONS,PRICES AND PAYMENT TERMS
Pictometry International Corp. itegigairigniniagla
25 Methodist Hill Drive C18762181
Rochester,NY 14623
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City of Spokane Valley,WA City of Spokane Valley,WA
Morgan Koudelka,Senior Administrative Analyst Moran Koudelka,Senior Administrative Analyst
10210 E Sprague Ave 10210 E Sprague Ave
Spokane Valley,WA 99206 Spokane Valley,WA 99206
(509)720-5104 (509)720-5104
mkoudelka ce pokanevalley.org mkoudelka(aspokanevalley.org
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1 Pictometry Connect-CA- Pictometry Connect-CA-50(Custom Access)provides $2,200.00 $1,100.00 _ $1,100.00
50 up to 50 concurrent authorized users the ability to login (50%)
and access the Pictometry-hosted custom imagery
libraries specified elsewhere in this Agreement via a web-
based,server-based or desktop integration.The default
deployment is through web-based Pictometry Connect
Term commences on date of activation. The quantity
represents the number of years in the Connect term.
Applicable Terms and Conditions:Online Services
General Terms and Cottditions;Software License
Agreement
Thank you for choosing Pictometry as your service provider. aiatTAIRA1 $1,100.00
'Amount per product=((1-Discount%)*Qty•List Price)
FEES;PAYMENT TERMS
All amounts due to Pictometry pursuant to this Agreement("Fees")are expressed in United States dollars and do not include any duties,taxes
(including,without limitation,any sales,use,ad valorem or withholding,value added or other taxes)or handling Res,all of which are in addition to
the amounts shown above and,to the extent applicable to purchases by Customer,shall be paid by Customer to Pictometry without reducing any
amount owed to Pictometry unless documents satisfactory to Pictometry evidencing exemption from such taxes is provided to Pictometry prior to
billing. To the extent any amounts properly invoiced pursuant to this Agreement are not paid within thirty(30)days following the invoice due date,
such unpaid amounts shall accrue,and Customer shall pay,interest at the rate of 1.5%per month(or at the maximum rate allowed by law,if less). In
addition,Customer shall pay Pictometry all costs Pictometry incurs in collecting past due amounts due under this Agreement including,but not
limited to,attorneys'fees and court costs.
Due at Activation of Online Services $1,100.00
Total Payments $1,I00.00
PRODUCT PARAMETERS
CONNECT
Product: Pictometry Connect-CA-50
Adinin User Name: Morgan Koudelka
Admit;User Email: mkoudelka@spokanevalley.org
Geofence: WA Spokane
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SECTION B LICENSE TERMS
PICTOMETRY ONLINE SERVICES
GENERAL TERMS AND CONDITIONS
These Pictometry Online Services General Tenns and Conditions(the"General Terms and Conditions"),in combination with the corresponding Pictometry order form,
if any,collectively constitute the license agreement(the"License Agreement")that governs your use of the Pictometry online services(the"Online Services"),the
images available in the Online Services,and all associated metadata and data layers included in,provided with,or derived from those images(the"Licensed Content")
provided by Pictometry International Corp.and its affiliated companies(collectively."Pictometry"). The terms"you"and"your"in uppercase or lowercase shall mean
the individual,entity(e.g.,corporation,limited liability company,partnership,sole proprietor,etc.)or government agency entering into the License Agreement
1. GRANT OF RIGHTS;RESTRICTIONS ON USE;OWNERSHIP
1.1 You are granted a nonexclusive,nontransferable,limited right to access and use the Online Services and the Licensed Content obtained or derived from the
Online Services solely for your internal business purposes and not for resale or redistribution.The rights granted to you include,subject to the restrictions set
forth below and on the Order Form,the right to copy limited portions of the Licensed Content onto your computer to facilitate preparation of hardcopies and
work product records,and the right to make hardcopies of the Licensed Content,provided that the Licensed Content and the permitted copies thereof may
not be sold,leased,loaned,distributed,or copied for use by anyone other than you.
1.2 You may not make the Online Services available to any other party.
1.3 You may not copy the Licensed Content or portions thereof onto any computer or storage device or media for the purpose of creating or maintaining one or
more databases of that content for use in substitution for subsequent access to the content through the Online Services.
1.4 You may not distribute or otherwise make available any Licensed Content to Google or its affiliates,either directly or indirectly.
1.5 You may not exploit the goodwill of Pictometry,including its trademarks,service marks,or logos,without the express written consent of Pictometry.
1.6 You may not remove,alter or obscure copyright notices or other notices contained in the Licensed Content.
1.7 You may not offer any part of the Online Services or the Licensed Content for commercial resale or commercial redistribution in any medium.
1.8 You may not use the Online Services or the Licensed Content to compete with any businesses of Pictometry.
1.9 You may not use information included in the Online Services or the Licensed Content to determine an individual consumer's eligibility for(a)credit or
insurance for personal,family,or household purposes;(b)employment;or(c)a government license or benefit.The term"consumer"is defined in the United
States Fair Credit Reporting Act at 15 USC§1681.
1.10 You may not access the Online Services via mechanical,programmatic,robotic,scripted or any other automated means. Unless otherwise agreed by
Pictometry in writing,use of the Online Services is permitted only via manually conducted,discrete,human-initiated individual search and retrieval
activities.
1.11 All right,title,and interest(including all copyrights,trademarks and other intellectual property rights)in the Online Services and the Licensed Content in all
media belong to Pictometry or its third party suppliers.Neither you nor any users of the Online Services or the Licensed Content acquire any proprietary
interest in the Online Services,the Licensed Content,or any copies thereof;except the limited use rights granted herein.
2. ACCESS TO SERVICES
2.1 Only you,your employees,and temporary or contract employees dedicated to performing work exclusively for you(each,an"Eligible User"and
collectively,the"Eligible Users")arc eligible to access and use the Online Services and the Licensed Content pursuant to the License Agreement. Each
Eligible User to be provided access to the Online Service shall be assigned a unique login/password("Pictometry Credential")for purposes of accessing the
Online Services. You agree that each Pictometry Credential shall only be used by the Eligible User to whom it was originally assigned and that Pictometry
Credentials may not be shared with,or used by,any other person,including other Eligible Users. You will promptly deactivate an Eligible User's
Pictometry Credential in the event the Eligible User no longer meets the eligibility requirements or you otherwise wish to terminate the Eligible User's
access to the Online Services. You are responsible for all use of the Online Services accessed with Pictometry Credentials issued to your Eligible Users,
including associated charges,whether by Eligible Users or others. You will use reasonable commercial efforts to prevent unauthorized use of Pictometry
Credentials assigned to your Eligible Users and will promptly deactivate any Pictometry Credentials you suspect are lost,stolen,compromised,or misused.
2.2 The Online Services,the Licensed Content,and features and functionality within the Online Services may be enhanced,added to,withdrawn,or otherwise
changed by Pictometry without notice.
2.3 You are aware and understand that any user data collected or stored by the Online Services may be accessed by US law enforcement agencies under the US
PATRIOT Act. You hereby release,and agree to hold Pictometry harmless from,all claims against Pictometry with respect to such access.
3. DISCLAIMERS !
3.1 The Online Services and the Licensed Content are provided for visualization purposes only,are not authoritative or definitive,and do not constitute
professional engineering or surveying services.
3.2 The Online Services and the Licensed Content are not to be relied upon to precisely locate or determine property boundaries and should not be used in lieu
of a professional survey where the accuracy of measurements,distance,height,angle,area and volume,may have significant consequences.
3.3 All measurements and reports generated by the Online Services or from the Licensed Content are based upon second order visualization and measurement
data that do not provide authoritative or definitive measurement results suitable for professional engineering or surveying purposes.
3.4 Contour information obtained from the Online Services or contained in the Licensed Content is generated from undersampled elevation data,is provided for
informational purposes only,and is not suitable for use as the basis for hydrographic computations,estimations or analyses.
3.5 While the Online Services and the Licensed Content may be considered useful supplements for life critical applications,they are not designed or maintained
to support such applications and Pictometry and its third party suppliers of the Online Services and the Licensed Content hereby disclaim all liability for
damages claims and expenses arising from such use.
3.6 Your reliance on the Online Services and the Licensed Content should only be undertaken after an independent review of their accuracy,completeness,
efficacy,timeliness and adequacy fin your intended purpose.
3.7 Pictometry and each third party supplier of any portion of the Online Services or the Licensed Content assume no responsibility for any consequences
resulting from the use of the Online Services or the Licensed Content.
3.8 Pictometry and each third party supplier of any portion of the Online Services or the Licensed Content hereby disclaim all liability for damages,claims and
expenses arising from or In any way related to the accuracy or availability of the Online Services and the Licensed Content.
3.9 By accepting these General Terms and Conditions or by using the Online Services or the Licensed Content,you waive any and all rights you may have
against Pictometry,each third party supplier of any portion of the Online Services or the Licensed Content,and each of their directors,officers,members and
employees,arising out of use of or reliance upon the Online Services or the Licensed Content.
4. LIMITED WARRANTY
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4.1 Pictometry represents and warrants that it has the right and authority to make the Online Services and the Licensed Content available to you and your
Eligible Users as authorized expressly by this License Agreement.
4.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 4.1,THE ONLINE SERVICES AND LICENSED CONTENT ARE PROVIDED ON AN"AS IS",
"AS AVAILABLE"BASIS AND PICTOMETRY AND EACH THIRD PARTY SUPPLIER OF LICENSED CONTENT EXPRESSLY DISCLAIM ALL
OTHER WARRANTIES,INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5. LIMITATION OF LIABILITY
5.1 No Covered Party(as defined below)shall be liable for any loss,injury,claim,liability,or damage of any kind resulting in any way from(a)any errors in or
omissions from the Online Services or the Licensed Content,(b)the unavailability or interruption of the Online Services or any features thereof or the
Licensed Content,(c)your or an Eligible User's use of the Online Services or the Licensed Content,(d)the loss or corruption of any data or equipment in
connection with the Online Services or the Licensed Content,(e)the content,accuracy,or completeness of the Licensed Content,all regardless of whether
you received assistance in the use of the Online Service from a Covered Party,(f)any delay or failure in performance beyond the reasonable control of a
Covered Party,or(g)any content retrieved from the Internet even if retrieved or linked to from within the Online Services.
5.2 "Covered Party"means(a)Pictometry and any officer,director,employee,subcontractor,agent,successor,or assign of Pictometry;and(b)each third party
supplier of any Licensed Content,third party alliance entity,their affiliates,and any officer,director,employee,subcontractor,agent,successor,or assign of
any third party supplier of any Licensed Content or third party alliance entity and their affiliates.
5.3 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW,UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF
THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR THE
LICENSED CONTENT OR THIS LICENSE AGREEMENT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT 1
YOU PAID FOR THE ONLINE SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.
YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE
AGAINST ANY COVERED PARTY.
5.4 TO THE FUI.FST EXTENT PERMISSIBLE BY APPLICABLE LAW,NEITHER YOU NOR THE COVERED PARTIES WILL BE LIABLE FOR
ANY SPECIAL,INDIRECT,INCIDENTAL,OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER(INCLUDING,WITHOUT
LIMITATION,ATTORNEYS'FEES)IN ANY WAY DUE TO,RESULTING FROM,OR ARISING IN CONNECTION WITH THE ONLINE
SERVICES,THE LICENSED CONTENT,OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS. THE FOREGOING
LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY'S INDEMNITY OBLIGATIONS OR YOUR(AND YOUR ELIGIBLE USERS')
INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO PICTOMETRY OR ITS
THIRD PARTY SUPPLIERS.
5.5 Notwithstanding anything to the contrary in this Section S:
(a)If there is a breach of the warranty in Section 4.1 above,then Pictometry,at its option and expense,shall either defend or settle any action and hold you
harmless against proceedings or damages of any kind or description based on a third party's claim of patent,trademark,service mark,copyright or
trade secret infringement related to use of the Online Services or the Licensed Content,asserted against you by such third party provided;(i)all use of
the Online Services and the Licensed Content was in accordance with this License Agreement;(ii)the claim,cause of action or infringement was not
caused by you modifying or combining the Online Services or the Licensed Content with or into other products,applications,images or data not
approved by Pictometry;(iii)you give Pictometry prompt notice of such claim;and(iv)you give Pictometry the right to control and direct the
investigation,defense and settlement of such claim. You,at Pictornetry's expense,shalt reasonably cooperate with Pictometry in connection with the
foregoing.
(b)In addition to Section 5.5(a),if the Online Services,the operation thereof or the Licensed Content become,or in the opinion of Pictometry are likely to
become,the subject of a claim of infringement,Pictometry may,at its option and expense,either:(i)procure for you the right to continue using the
Online Services or the Licensed Content,(ii)replace or modify the Online Services or the Licensed Content so that they become non-infringing;or(iii)
terminate the License Agreement on notice to you and grant you a pro-rata refltnd or credit(whichever is applicable)for any pre-paid fees or fixed
charges.
(c)The provisions of Sections 5.5(a)and(b)shall constitute your sole and exclusive remedy for the respective matters specified therein.
6. MISCELLANEOUS
6.1 The terms and conditions of this License Agreement may be changed from time to time immediately upon notice to you. If any changes are made to this
License Agreement,such changes will:(a)only be applied prospectively;and(b)not be specifically directed against you or your Eligible Users but will
apply to all similarly situated Pictometry customers using the Online Services. You may terminate this License Agreement upon written notice to
Pictometry if any change to the terms and conditions of this License Agreement is unacceptable to you. For termination to be effective under this Section
6.1,written notice of termination must be provided to Pictometry within 90 days of the effective date of the change. Continued use of the Online Services
following the effective date of any change constitutes acceptance of the change,but does not affect the foregoing termination right. Except as provided
above,this License Agreement may not be supplemented,modified or otherwise revised unless signed by duly authorized representatives of both parties.
Furthermore,this license Agreement may not be supplemented,modified or otherwise revised by email exchange,even if the email contains a printed name
or signature line bearing signature-like font. The foregoing does not prohibit the execution of electronic contracts bearing electronic signatures of authorized
representatives of both parties,provided such signatures include digital certifications or are otherwise authenticated.
6.2 In the event of a breach of this License Agreement by you,any Eligible User or someone using the Pictometry Credential of an Eligible User,Pictometry
may temporarily suspend or discontinue providing access to the Online Services to any or all Eligible Users without notice and Pictometry may pursue any
other legal remedies available to it.
6.3 All notices and other communications hereunder shall be in writing or displayed electronically in the Online Services by Pictometry. Notices shall be
deemed to have been properly given on the date deposited in the mail,if mailed;on the date first made available,if displayed in the Online Services;or on
the date received,if delivered in any other manner. Legal notices to Pictometry should be sent to Pictometry,Attn:General Counsel,25 Methodist Hill
Drive,Rochester,New York 14623.
6.4 The failure of you,Pictometry,or any third party supplier of the Online Services or any Licensed Content to enforce any provision hereof shall not constitute
or be construed as a waiver of such provision or of the right to enforce it at a later time.
6.5 Neither you nor any Eligible User may assign or otherwise transfer your rights or delegate your duties under this License Agreement without the prior
written consent of Pictometry. Any attempt by you or any Eligible User to assign,transfer or delegate your rights or obligations under this License
Agreement without Pictometry's consent shall be void,and shall also void the limited license granted to you by this License Agreement. This License
Agreement and any amendment thereto shall be binding on,and will inure to the benefit of the parties and their respective successors and permitted assigns.
6.6 This License Agreement shall be governed by and interpreted in accordance with the laws of the State of New York,excluding its conflicts of law principles.
Unless you are a government entity,in the event that any legal proceedings are commenced with respect to any matter arising under this License Agreement,
the parties specifically consent and agree that the courts of the State of New York or,in the alternative,the Federal Courts located in the State of New York
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shall have exclusive jurisdiction over each of the parties and over the subject matter of any such proceedings,and that the venue of any such action shall be
in Monroe County,New York or the U.S.District Court for the Western District of New York,as applicable.
6.7 ibis License Agreement will be enforced to the fullest extent permitted by applicable law.If any provision of this License Agreement is held to be invalid or
unenforceable to any extent,then(a)such provision will be interpreted,construed and reformed to the extent reasonably required to render it valid,
enforceable and consistent with its original intent and(b)such invalidity or unenforceability will not affect any other provision of this License Agreement.
6.8 Where applicable,each affiliated company of Pictometry and each third party supplier of the Online Services or any Licensed Content has the right to assert
and enforce the provisions of this License Agreement directly on its own behalf as a third party beneficiary.
6.9 In the event of a breach of your obligations under this License Agreement or your payment obligations with respect to access to the Online Services or the
Licensed Content,you agree to pay all of Pictometiy's costs of enforcement and collection,including court costs and reasonable attorneys'fees.
6.10 This License Agreement constitutes the entire agreement of the parties with respect to its subject matter and replaces and supersedes any prior written or
verbal communications,representations,proposals or quotations relating to that subject matter.
]END OF ONLINE SERVICES GENERAL TERMS AND CONDITIONS]
I
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SECTION B LICENSE TERMS
PICTOMETRY SOFTWARE
LICENSE AGREEMENT
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT("LICENSE")CAREFULLY BEFORE DOWNLOADING,INSTALLING OR USING THE
SOFTWARE. BY USING THE SOFTWARE,YOU AGREE TO THE TERMS OF THIS LICENSE.IF YOU DO NOT AGREE TO THE TERMS OF THIS
LICENSE,DO NOT DOWNLOAD,INSTALL OR USE THE SOFTWARE.
I. GENERAL. The software("Pictometry Software")and any written materials that accompany the software("Documentation")in any media or form arc licensed,
not sold,to you by Pictometry International Corp.("Pictometry")for use only under the terms of this License.Pictometry reserves all rights not expressly granted
to you in this License.
2. LICENSE. Subject to the terms and conditions of this License,you arc granted a limited,non-transferable,tenninable,non-sublicenseable,non-exclusive license
to install and use the Pictometry Software and the Documentation(collectively,the"Proprietary Materials")solely for internal use. Use of the functionality
provided by the Pictometry Software other than for your internal use is prohibited,except with the prior written approval of Pictometry. You may make one copy
of the Pictometry Software in machine-readable form for backup purposes only,provided that the backup copy must include all copyright and other proprietary
notices contained in the original.You will not and will not enable others to decompile,reverse engineer,disassemble,attempt to derive the source code of,
decrypt,modify,create derivative works of,or tamper with or disable any security or monitoring features within the Pictometry Software. Any attempt to do so is
a violation of the rights of Pictometry and its licensors.
3. TITLE. The Proprietary Materials are confidential information of,trade secrets of,and are proprietary to Pictometry.Title to the Proprietary Materials is and will
remain in Pictometry and its licensors.All applicable rights to patents,copyrights,trademarks,trade secrets,and other intellectual property rights in the
Proprietary Materials are and will remain in Pictometry and its licensors.You will not assert any right,title or interest in the Proprietary Materials provided to you
under this License,except for the express license granted to you hereunder.You will not remove any copyright or other proprietary notice or legend contained on
or included in any Proprietary Materials and you will reproduce all such information on all copies made hereunder.You will keep the Proprietary Materials free of
all claims,liens and encumbrances.
4. DISCLAIMERS OF WARRANTY. USE OF THE PICTOMETRY SOFTWARE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW,THE PICTOMETRY SOFTWARE IS PROVIDED'AS IS",WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND,
AND PICTOMETRY HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE PICTOMETRY SOFTWARE,WHETHER EXPRESS,
IMPLIED OR STATUTORY,INCLUDING,BUT NOT LIMITED TO,THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A
PARTICULAR PURPOSE. PICTOMETRY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN OR PROVIDED BY THE PICTOMETRY
SOFTWARE WILL MEET YOUR REQUIREMENTS,THAT THE OPERATION OF THE PICTOMETRY SOFTWARE WILL BE UNINTERRUPTED OR
ERROR-FREE,OR THAT DEFECTS IN THE PROPRIETARY MATERIALS WILL BE CORRECTED.
5. LIMITATION OF LIABILITY. IN NO EVENT WILL PICTOMETRY BE LIABLE FOR ANY INCIDENTAL,SPECIAL,INDIRECT OR
CONSEQUENTIAL DAMAGES WHATSOEVER,INCLUDING,WITHOUT LIMITATION,DAMAGES FOR LOSS OF PROFITS,LOSS OF DATA,
BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR
INABILITY TO USE THE PICTOMETRY SOFTWARE,HOWEVER CAUSED,REGARDLESS OF THE THEORY OF LIABILITY(CONTRACT,TORT
OR OTHERWISE),EVEN IF PICTOMETRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.IN NO EVENT WILL PICTOMETRY'S
TOTAL LIABILITY TO YOU FOR ALL DAMAGES(OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING
PERSONAL INJURY)CAUSED BY,ARISING OUT OF OR IN ANY WAY RELATED TO THE PICTOMETRY SOFTWARE EXCEED THE AMOUNT OF
FIFTY DOLLARS($50.00).THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL
PURPOSE.
6. TERMINATION. This License will terminate automatically without notice from Pictometry if you fail to comply with any term of this License. Upon the
termination of this License,you will cease all use of the Pictometry Software and destroy all copies,hall or partial,of the Proprietary Materials.
7. MISCELLANEOUS PROVISIONS.
A. Restricted Rights. Pictometry Software acquired with United States Government funds or intended for use within or for any United States federal agency is
provided with"Restricted Rights"as defined in DFARS 252.227-7013,Rights in Technical Data and Computer Software and FAR 52.227-14,Rights in
Data-General,including Alternate III,as applicable.Pictometry must be notified in advance of any license grants to United States federal governmental
entities.The Pictometry Software is developed for general use in a variety of applications and is not developed or intended for use in any inherently
dangerous applications or applications that could lead to property damage,personal injury or death.If you use the Pictometry Software in such applications,
then you will be responsible for taking all appropriate fail-safe,backup,redundancy,and other measures to ensure the safe use of the Pictometry Software in
such applications,including but not limited to,in any nuclear,aviation,mass transit,public safety or medical applications.
B. Foreign Trade Restrictions The parties acknowledge that certain information,software technology,accompanying documentation and technical
information may be subject to United States export control laws.You will not directly or indirectly export or re-export the Pictometry Software in violation of
the Export Administration Regulations of the U.S.Department of Commerce.
C. Governing Law. This License will be governed by and interpreted in accordance with the laws of the State of New York,excluding its conflict of laws
principles.
D. Assignment You may not assign this License without Pictometry's prior written consent.Any assignment in violation of this License will be null,void and
of no force and effect. For all purposes under this License,any merger,consolidation,spin-off,acquisition or change-in-control will be deemed an
assignment.
E. Partial Invalidity;Survival. If any provision of this License is held invalid or unenforceable by competent authority,that provision will be construed so as
to be limited or reduced to be enforceable to the maximum extent compatible with the!awes it will then appear. The total invalidity or unenforceability of any
particular provision of this License will not affect its other provisions and this License will be construed in all respects as if the invalid or unenforceable provision
were omitted The provisions of this License that by their nature would survive its termination will survive indefinitely.
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F. Force Majeure Neither party will be liable for any costs or damages due to nonperformance under this License arising out of any cause not within the
reasonable control of such party and without its fault or negligence.Neither party will be liable for any delay or failure in the performance of its obligations
under this License that directly results from any failure of the other party to perform its obligations as set forth in this License.
G. Waiver. No waiver of a breach of any term of this License will be effective unless in writing and duly executed by the waiving party. No such waiver will
constitute a waiver of any subsequent breach of the same or any other term of this License.No failure on the part of a party to exercise,and no delay in
exercising any of its rights hereunder will operate as a waiver thereof,nor will any single or partial exercise by a party of any right preclude any other or
future exercise thereof or the exercise of any other right.No course of dealing between the parties will be deemed effective to modify,amend or discharge
any part of this License or the rights or obligations of any party hereunder.
H. Entire Agreement;Construction. This License contains the entire understanding of the parties with respect to the subject matter hereof and supersedes any
prior or contemporaneous understandings regarding that subject matter.No amendment to or modification of this License will be binding unless in writing
and signed by Pictometry.There are no representations,warranties,or obligations of any party not expressly contained herein. The headings in this License
are for convenience only.They do not constitute a portion of this License and will not be used in any construction of it.
[END OF SOFTWARE LICENSE AGREEMENT)
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