Developer License Terms and Conditions
These Developer License Terms and Conditions are entered into under the Master Partner Agreement and any applicable Program Addenda (collectively, the “Agreement”) between the Parties and is deemed incorporated into and made part of the Agreement. In the event of an express conflict between the terms of these Developer License Terms and Conditions and the terms of the Agreement or an Order Form, the order of precedence shall be: (i) Order Form, (ii) the Program Addendum, (iii) the Developer License Terms and Conditions, (iv) the Master Partner Agreement, and (v) Program Guides, in that order.
All capitalized terms used and not defined in this Developer License shall have the meaning given to them in the Agreement.
1. Definitions.
1.1. “Developer License” means a development-specific subscription or license for Nearmap Products provided by Nearmap to Partner for the sole and exclusive purpose of internal testing, development, and support related to integration of or access between Partner Products and Nearmap Products.
1.2. “Nearmap Policies” has the meaning set forth in Section 11.
1.3. “Output” means derivative works of the Products, strictly in the form of reports, presentations, maps or other documents that are fixed in a non-manipulable medium.
1.4. “Periodic Allowance” has the meaning set forth in Section 3.
1.5. “Product-Specific Terms” means the terms and conditions governing the use of specific then-current Products generally available to Nearmap customers via the Nearmap website at https://www.nearmap.com/legal/product-specific-terms, which are incorporated herein by reference. 1.6. “Service Level Agreement” or “SLA” means the service level agreement provided by Nearmap for the Platform, as further described at https://www.nearmap.com/legal/service-level-agreement. For the purpose of this Agreement, any references to “Customer” in the SLA shall be understood to be references to “Partner.” 1.7. “Status” has the meaning set forth in Section 7.1 herein.
1.8. “Subscription Term” means the term specified on an Order Form, including without limitation in the “License Term,” “Subscription Term,” or “Subscription Period” section of the Order Form, together with any renewal term(s).
1.9. “Support Policy” has the meaning set forth in Section 7.3 herein.
1.10. “Third-Party Services” has the meaning set forth in Section 7.4 herein.
1.11. “Usage Data” has the meaning set forth in Section 6 herein.
2. Scope of License. To the extent a Developer License has been granted to Partner, Partner has the non-exclusive, non-sublicensable, royalty-free, non-transferable right to access and use the Products in the Territory during the Subscription Term of the applicable Order Form for the exclusive purpose of: (i) internal testing, development and support related to the integration of Products with non-Nearmap products or services; and (ii) creating Output for internal market analysis and non-commercial research and development purposes only (subject to any attribution requirements in the Agreement and applicable Program Addenda). Partner is expressly prohibited from using the Developer License for commercial or revenue-generating purposes.
2.1. Other Rights Reserved. Other than as expressly set forth in Section 2, Partner may not use the Products for any other purpose without Nearmap’s prior written consent, and all other rights therein and thereto are reserved by Nearmap.
3. Periodic Allowance.
3.1. Partner’s use of the Developer License is subject to a periodic allowance (the “Periodic Allowance”), identified in the applicable Order Form. Partner’s consumption must not exceed the Periodic Allowance.
3.2. If Partner does not consume the Periodic Allowance in a given period, the balance will not be rolled over to a following period.
3.3. If Partner exceeds the Periodic Allowance in a given period, Nearmap may, in its absolute discretion, elect to: (i) restrict Partner’s access to the Developer License until the Periodic Allowance is reset in the next period; or (ii) immediately cease Partner’s access to the Developer License for the remainder of the period.
4. Term; Termination, Suspension.
4.1. The term of the Developer License shall begin on the commencement date of the Subscription Term identified in the applicable Order Form and shall end upon the expiration of the Subscription Term identified in the applicable Order Form, unless otherwise terminated as provided herein.
4.2. To the extent a Developer License has been granted to Partner, the grant may be revoked, suspended, or terminated if: (i) Nearmap, in its sole discretion, believes that Partner or an Authorized User has breached any provision of the Order Form, the Agreement, or these Developer License Terms and Conditions; (ii) the Partner, including through any Authorized User, exceeds the applicable Periodic Allowance; (iii) the Partner fails to meet any further requirements for continuation or renewal of the Developer License in the terms and conditions of the applicable Program Addenda and Program Guide; (iv) there is an attack on the Products, access or manipulation of the Products by a third party, or there is another event for which Nearmap reasonably believes that the suspension of Customer’s access to the Products is necessary to protect Nearmap’s network or its other customers; or (v) a licensor, supplier, or provider of Third-Party Services offering its products or services to Nearmap has terminated its relationship with Nearmap or ceased to offer such products or services.
4.3. Upon expiry or termination of the Developer License for any reason, Partner must, and must ensure the Authorized Users, immediately destroy, delete or return to Nearmap all Products. If requested by Nearmap, Partner must certify in writing within ten (10) business days that all applicable copies of the Products have been permanently deleted or destroyed.
5. Product-Specific Terms. Any Products accessed by Partner under the Developer License are subject to the applicable Product-Specific Terms.
6. Usage Data. Partner acknowledges and agrees that Nearmap may create, collect, analyze, retain, and use data and other information that results or is derived from Partner’s use of the Products through the Developer License (“Usage Data”) for the purposes of developing, maintaining, operating, improving, or providing the Products. For clarity, Usage Data and all intellectual property and proprietary rights therein, shall be exclusively owned by Nearmap. In the event Partner gains or retains any interest in the Usage Data, Partner hereby irrevocably assigns to Nearmap any and all right, title, and interest in and to any Usage Data.
7. Access to Developer License.
7.1. SLA. Nearmap’s uptimes, metrics, and provision of the Platform are in accordance with the system status located at: https://www.nearmap.com/status (“Status”). Partner may subscribe to receive optional Status updates. Nearmap will provide the Products in accordance with the availability obligations, service credits, and other terms set forth in the Service Level Agreement.
7.2. Authorized Users. Authorized Users may use the Developer License on Partner’s behalf, provided Partner remains liable and responsible for the acts and omissions of each such Authorized User. Partner acknowledges and agrees that each Authorized User must have its own unique password and cannot share such password with any other users. If Partner is given passwords to access the Products on Nearmap’s systems Partner shall require that all Authorized Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Partner shall be responsible for any and all actions taken using Partner’s accounts and passwords.
7.3. Support; Improvements. Partner acknowledges that Nearmap may improve and modify the features and functionality of the Products at any time. Nearmap will provide Partner with commercially reasonable notice of any changes made to a material feature or functionality of the Products and will provide support to Partner in accordance with its then-current support policies generally available to Nearmap customers via the Nearmap website: https://www.nearmap.com/contact-support (“Support Policy”). Notwithstanding the foregoing, Nearmap has no obligation to provide Partner with any additional support, but if Nearmap and Partner agree to do so, Nearmap may charge Partner reasonable additional fees for the additional support provided to Partner by Nearmap. For clarity, nothing in this Section obliges Nearmap to provide support to Partner regarding integration of the Products into any non-Nearmap products or services, or to provide any support to any Customers.
7.4. Third Party Application Service Providers. Partner may be able to access and use certain third-party services or products (e.g., a third-party service that integrates with Nearmap via opt-in or uses Nearmap APIs) through or with its use of the Products (“Third-Party Services”). IF PARTNER USES ANY THIRD-PARTY SERVICES, PARTNER AGREES TO SUCH THIRD-PARTY SERVICES’ TERMS AND CONDITIONS AND NEARMAP WILL NOT BE RESPONSIBLE FOR ANY ACT OR OMISSION OF ANY PROVIDER OF SUCH THIRD-PARTY SERVICES. NEARMAP DOES NOT WARRANT OR PROVIDE DIRECT SUPPORT FOR ANY THIRD-PARTY SERVICES. PARTNER ACKNOWLEDGES AND AGREES THAT NEARMAP WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE ACTS OR OMISSIONS OF ANY AUTHORIZED USERS IN CONNECTION WITH ANY THIRD-PARTY SERVICES.
8. License Restrictions. Except as otherwise expressly set forth in the Agreement, applicable Program Guide, or applicable Order Form, Partner shall not, and shall not allow or induce any third party (including any Authorized User or Customer) to, directly or indirectly: (a) sell, rent, lease, or use the Products for time sharing purposes; (b) use the Products to help develop, or help provide to any third party, any product or service similar to or competitive with the Products, or copy any ideas, features, functions, documentation, content, audio or visual material, images, graphics, photos, digital media, or other materials or content of any type that are provided by, derived from, or based on the Products; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of the Products; (d) copy, modify, or create derivative works from the Products or any Documentation (except as otherwise expressly permitted herein); (e) remove or obscure any copyright or proprietary or other notice contained in the Products or Documentation; (f) create an internal or commercial imagery dataset or derivative works composed principally of the Products; (g) unless otherwise stated in an Order Form, make the Products publicly accessible or viewable; (h) use the Products for the purpose of product development, tuning, training, or modification of internal models, generation of aggregated analysis, or creation of data elements related to the Products; (i) create any derivative works from the Products combined with any third party imagery or based on any third party imagery; (j) propagate any virus, Trojan horse, or other malware or programming routine intended to damage any system or data; (k) access or use the Products in a manner intended to circumvent or exceed service account limitations, contractual usage limits, or requirements; (l) disrupt, disable, interfere with, or disrupt the integrity or performance of the Products or the data contained therein, including through excessive use; (m) use any Products in a manner that violates any Applicable Law, regulation, or legal requirement or obligation; (n) use any Products in violation of any third-party rights of privacy or intellectual property rights; (o) use or permit the use of any tools in order to probe, scan, or attempt to penetrate or benchmark any Products; (p) post, upload, transmit, or provide any Partner Data that Nearmap reasonably deems to be unlawful, harmful, abusive, or otherwise objectionable; (q) attempt to gain unauthorized access to the Products or its related systems or networks; (r) utilize any machine learning products, including any open-source products, in connection with the use of the Products; or (s) use the Products except as expressly permitted by the Agreement, applicable Program Addenda, and applicable Order Form.
9. Password/ID. Any password/ID issued by Nearmap to Partner and any Authorized Users are personal and confidential to that individual. If Nearmap suspects that any password/ID is being used by a different user to the individual whom it was issued to, Nearmap may: (i) immediately cancel that password/ID; and/or (ii) immediately cease Partner’s and/or any Authorized User’s access to the Developer License.
10. Unauthorized Use. Partner shall take reasonable steps to prevent unauthorized access to the Developer License and Products, including without limitation protect its passwords and other log-in information. Partner shall immediately notify Nearmap of any known or suspected unauthorized use of the Developer License or Products or breach of its security and shall use best efforts to stop any breaches.
11. Nearmap Policies. Nearmap reserves the right to update its Product-Specific Terms, Support Policy, Documentation, and Privacy Policy (collectively “Nearmap Policies”) at any time in its sole discretion provided that any updates shall not materially diminish the level of privacy, support, or obligations set forth in such Nearmap Policies during the Term in which Nearmap updates such Nearmap Policies.
12. Indemnification. Partner agrees to defend, indemnify and hold harmless Nearmap and its affiliates, licensors, and suppliers, and Nearmap’s and their respective employees, contractors, agents, officers, and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including reasonable attorneys’ fees and costs) arising from: (i) Partner’s and any Authorized User’s use of the Developer License; (ii) Partner’s or any Authorized User’s violation of Sections 2 or 8 herein.
13. Warranty and Liability.
13.1. Disclaimer of Warranties. WHILE NEARMAP USES REASONABLE EFFORTS TO ENSURE THE ACCURACY, CORRECTNESS AND RELIABILITY OF THE PRODUCTS, NEARMAP MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, CORRECTNESS OR RELIABILITY OF THE DEVELOPER LICENSE OR ANY PRODUCTS ACCESSED VIA THE DEVELOPER LICENSE. THE DEVELOPER LICENSE AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW. NEARMAP AND ITS CONTENT PROVIDERS, AGENTS, AFFILIATES AND RELATED PARTIES EXPRESSLY EXCLUDE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ANY WARRANTIES AS TO THE CURRENCY OR REGULATORY OF THE UPDATES TO THE DEVELOPER LICENSE OR PRODUCTS, ANY WARRANTIES AS TO ANY FILES PARTNER OR AN AUTHORIZED USER DOWNLOAD FROM THE DEVELOPER LICENSE OR PRODUCTS BEING FREE FROM VIRUS OR HARMFUL CODE, COURSE OF DEALING OR PERFORMANCE WARRANTIES, AND ANY WARRANTIES WHICH WOULD OTHERWISE BE IMPLIED INTO THESE TERMS OF USE WHETHER BY LAW, STATUTE OR OTHERWISE. THE DEVELOPER LICENSE AND PRODUCTS ARE SUBJECT TO ERRORS, OMISSIONS, INACCURACIES AND DISTORTIONS AND NEARMAP WILL NOT BE RESPONSIBLE FOR, OR LIABLE FOR ANY CLAIMS MADE BY OR ARISING OUT OF, ANY PERSON OR ENTITY SEEKING TO RELY ON ANY OF THE DEVELOPER LICENSE OR PRODUCTS. PARTNER OR AN AUTHORIZED USER MAY ACCESS THE DEVELOPER LICENSE AND PRODUCTS AT PARTNER’S OR THE AUTHORIZED USER’S (AS APPLICABLE) OWN DISCRETION AND RISK, AND PARTNER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO PARTNER’S OR AN AUTHORIZED USER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE AND ACCESS OF PRODUCTS VIA THE DEVELOPER LICENSE.
13.2. No Liability for Claims. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL NEARMAP, ITS CONTENT PROVIDERS, THIRD PARTY PROVIDERS, AGENTS, AFFILIATES OR RELATED PARTIES BE LIABLE FOR ANY CLAIMS OF ANY KIND ARISING FROM OR CONNECTED WITH THE USE OF THE PRODUCTS OR DEVELOPER LICENSE, OR THE UNAVAILABILITY OF THE SAME, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, AND DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE. PARTNER IS RESPONSIBLE FOR THE ENTIRE COST OF ALL SERVICING, REPAIR OR CORRECTION REQUIRED DUE TO PARTNER’S AND AUTHORIZED USER’S USE OF THE DEVELOPER LICENSE AND PRODUCTS. THIS EXCLUSION APPLIES, WITHOUT LIMITATION, TO ANY CLAIMS CAUSED BY OR RESULTING FROM RELIANCE BY A USER (INCLUDING AN AUTHORIZED USER) ON ANY INFORMATION OBTAINED FROM NEARMAP.
13.3. Limit of Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF NEARMAP, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE WEBSITE, APIS AND THE NO CHARGE PRODUCTS SHALL EXCEED USD$100 IF PARTNER RESIDES IN NORTH AMERICA OR AUD$100 IF PARTNER RESIDES IN AUSTRALIA OR OUTSIDE OF NORTH AMERICA.