Mapware Customer Agreement
Last Updated Date: April 13, 2021
PLEASE READ THIS MAPWARE CUSTOMER AGREEMENT (THE “AGREEMENT
”) CAREFULLY. THIS AGREEMENT APPLIES TO MAPWARE’S PROVISION OF THE SOLUTION. BY ACCESSING OR USING THE SOLUTION AND/OR BY CLICKING ON THE “I ACCEPT” BUTTON, AND/OR COMPLETING THE REGISTRATION PROCESS, CUSTOMER REPRESENTS THAT (1) IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT, (2) CUSTOMER IS OF LEGAL AGE TO FORM A BINDING CONTRACT WITH MAPWARE, AND (3) CUSTOMER HAS THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY IT HAS NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, IT MAY NOT ACCESS THE SOLUTION.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY MAPWARE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Mapware will update the “Last Updated” date at the top of this Agreement. If Mapware makes any material changes, it will also send an e-mail to Customer at the last e-mail address Customer has provided to Mapware pursuant to the Agreement. If Customer does not agree to any change(s) to this Agreement, it shall not access the Solution.
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
1.1 "Access Protocols" means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Solution.
1.2 "Authorized User" means each of Customer’s employees, agents, and independent contractors who are authorized to access the Solution pursuant to Customer’s rights under this Agreement.
1.3 "Customer Intent" means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Solution.
1.4 "Documentation" means the technical materials provided by Mapware to Customer in hard copy or electronic form describing the use and operation of the Solution.
1.5 "Effective Date" means the date last signed by a party.
1.6 "Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.7 "Licensed Material" means results, reports, materials and documentation made available to Customer as part of the Solution.
1.8 "Solution" means the Mapware software-as-a-service product that allows Authorized Users to access certain features and functions through a web interface.
2. PROVISION OF SERVICES
2.1 Access. Subject to Customer’s payment of the fees set forth during Customer’s sign up for the Solution (“Fees”), Mapware will provide Customer with access to the Solution. On or as soon as reasonably practicable after the Effective Date, Mapware will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Solution in accordance with the Access Protocols. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Solution, and notify Mapware promptly of any such unauthorized use known to Customer.
2.2 Support. Subject to the terms and conditions of this Agreement, Mapware may, itself or through a third party, exercise commercially reasonable efforts to (a) provide support for the use of the Solution to Customer, and (b) keep the Solution operational and available to Customer, in each case in accordance with its standard policies and procedures.
2.3 Hosting. Mapware will, at its own expense, provide for the hosting of the Solution, provided that nothing herein will be construed to require Mapware to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Solution from the Internet.
3. INTELLECTUAL PROPERTY.
3.1 License Grant. Subject to the terms and conditions of this Agreement, Mapware grants to Customer a non-exclusive, non-transferable (except as permitted under Section 11.5 (No Assignment)) license during the Term (as defined below), solely for Customer’s internal business purposes, (a) to access and use the Solution and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Solution. Customer may permit any Authorized Users to access and use the features and functions of the Solution as contemplated by this Agreement.
3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Solution, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Solution, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Solution, except as permitted by law; (e) interfere in any manner with the operation of the Solution or the hardware and network used to operate the Solution; (f) modify, copy or make derivative works based on any part of the Solution or Documentation; (g) access or use the Solution to build a similar or competitive product or service; (h) attempt to access the Solution through any unapproved interface; or (i) otherwise use the Solution, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 (License Grant) or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the Solution will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Mapware or its licensors on the Licensed Material or any copies thereof.
3.3 Ownership. The Solution, Licensed Materials and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Mapware and its suppliers. All rights in and to the Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Mapware and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Solution, Documentation, or any part thereof.
3.4 License to Licensed Material. Subject to the terms and conditions of this Agreement, Mapware grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable, non-sublicensable license to use the Licensed Material solely for Customer’s internal business purposes.
3.3 Open Source Software. Certain items of software may be provided to Customer with the Solution and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 (Ownership) or 9 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Mapware makes such Open Source Software, and Mapware’s modifications to that Open Source Software, available by written request at the notice address specified below.
3.6 Feedback. Customer hereby grants to Mapware a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Solution any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Solution. Mapware will not identify Customer as the source of any such feedback.
4. FEES AND EXPENSES; PAYMENTS.
4.1 Fees. In consideration for the access rights granted to Customer under this Agreement, Customer will pay to Mapware the Fees. Except as otherwise agreed to by the parties, all Fees are due and payable at the start of the Term and each Renewal Term. Mapware reserves the right to modify the Fees payable hereunder upon written notice to Customer at least ninety (90) days prior to the end of the then-current term. Mapware reserves the right (in addition to any other rights or remedies Mapware may have) to discontinue the Solution and suspend all Authorized Users’ and Customer’s access to the Solution if any Fees are more than thirty (30) days overdue until such amounts are paid in full.
4.2 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Mapware’ income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Solution, or the license of the Solution to Customer. Customer will make all payments of Fees to Mapware free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Mapware will be Customer’s sole responsibility, and Customer will provide Mapware with official receipts issued by the appropriate taxing authority, or such other evidence as the Mapware may reasonably request, to establish that such taxes have been paid.
4.3 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
5. CUSTOMER CONTENT AND RESPONSIBILITIES.
5.1 License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Mapware to use the Customer Content. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Mapware to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in this Agreement. Customer grants Mapware a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Solution, (b) to use the Customer trademarks, service marks, and logos as required to provide the Solution, and (c) use the Customer Content in an aggregated and anonymized form to: (i) improve the Solution and Mapware’ related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Solution, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Mapware in this Agreement are reserved by Customer.
5.2 Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Mapware’ system or data; and (e) otherwise violate the rights of a third party. Mapware is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Solution contrary to or in violation of the representations and warranties of Customer in this Section 5.2 Customer Warranty) constitutes unauthorized and improper use of the Solution.
5.3 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Solution. Customer will have the ability to export Customer Content out of the Solution and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
6.1 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOLUTION, LICENSED MATERIAL AND DOCUMENTATION ARE PROVIDED “AS IS,” AND MAPWARE MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. MAPWARE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
7. LIMITATION OF LIABILITY.
7.1 Types of Damanges. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO MAPWARE (OR AN AUTHORIZED RESELLER OF THE SOLUTION) DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL MAPWARE’ SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
7.3 Basis of Bargain. The parties agree that the limitations of liability set forth in this Section 8 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8.1 Confidential Information "Confidential Information" means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure to the receiving party (the “Receiving Party”). The Solution, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Mapware.
8.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Mapware). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
8.3 Exceptions. The confidentiality obligations set forth in Section 9.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) was independently developed by employees and contractors of the Receiving Party without reference to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
9.1 By Mapware. Mapware will defend at its expense any suit brought against Customer, and will pay any settlement Mapware makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Solution becomes, or in Mapware’ opinion is likely to become, the subject of a claim of infringement, Mapware may, at Mapware’ option: (a) procure for Customer the right to continue using the Solution; (b) replace the Solution with non-infringing software or services which do not materially impair the functionality of the Solution; (c) modify the Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Solution and Documentation. Notwithstanding the foregoing, Mapware will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Solution in combination with other products, equipment, software or data not supplied by Mapware; or (iii) any modification of the Solution by any person other than Mapware or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of Mapware, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
9.2 By Customer. Customer will defend at its expense any suit brought against Mapware, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s breach or alleged breach of Sections 5.2 (Customer Warranty). This section states the sole and exclusive remedy of Mapware and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
9.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10. TERM AND TERMINATION.
10.1 Term. Unless otherwise agreed in writing by Mapware, this Agreement will begin on the Effective Date and continue in full force and effect and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement. Thereafter, this Agreement will automatically renew for additional terms of one (1) year unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current term (the “Renewal Term”).
10.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
1o.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses and access granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 8 (Confidentiality); and (c) any amounts owed to Mapware under this Agreement will become immediately due and payable. Sections 1 (Definitions), 3.2 (Restrictions), 3.3 (Ownership), 3.5 (Open Source Software), 4 (Fees and Expenses; Payments), 6 (Disclaimers), 7 (Limitation of Liability), 8 (Confidentiality), 9 (Indemnification), 10.3 (Termination for Breach), 10.4 (Effect of Termination), and 11 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
11.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Mapware, or any products utilizing such data, in violation of the United States export laws or regulations.
11.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
11.6 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Solution, Licensed Material and Documentation.
11.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.8 Independent Contractors. Customer’s relationship to Mapware is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Mapware.
11.9 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Mapware, by emailing firstname.lastname@example.org and if to Customer by emailing the Customer Point of Contact email address at the time of Customer’s signing up for the Solution, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address at the time of Customer’s signing up for the Solution by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
11.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
11.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters.
11.12 11.12 The communications between Customer and Mapware may take place via electronic means, including e-mails. For contractual purposes, Customer (a) consents to receive communications from Mapware in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Mapware provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Customer’s statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).