End User License Agreement
THIS END USER LICENSE AGREEMENT (“EULA”) IS ENTERED INTO BY AND BETWEEN NEARMAP (“NEARMAP”) AND THE CUSTOMER (INDIVIDUAL OR ENTITY) WITH ACCESS TO, OR USE OF, NEARMAP PRODUCTS (“CUSTOMER”) FROM AN ENTITY THAT HAS CONTRACTED WITH NEARMAP TO RESELL NEARMAP PRODUCTS, AND WITH WHOM CUSTOMER HAS CONTRACTED DIRECTLY TO PURCHASE THE APPLICABLE NEARMAP PRODUCTS (“RESELLER”). NEARMAP AND CUSTOMER SHALL HEREINAFTER BE REFERRED TO INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”.
BY ACCESSING OR USING THE PRODUCTS, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS EULA AND ALL TERMS INCORPORATED BY REFERENCE. THIS EULA BECOMES EFFECTIVE UPON THE EARLIER OF CUSTOMER ACCESSING OR USING ANY NEARMAP PRODUCTS (THE “EFFECTIVE DATE”). AN INDIVIDUAL ENTERING INTO THIS EULA ON BEHALF OF AN EMPLOYER OR ANOTHER LEGAL ENTITY REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions.
1.1 “API” or “APIs” means Nearmap’s application programming interfaces.
1.2 “Applicable Laws” means all existing and future federal, state, provincial, regional, territorial and local laws, international treaties, statutes, statutory instruments, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other office releases, guidelines, and policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof (including all federal and state banking laws, regulations, guidance, and policies), or any court of competent jurisdiction that are applicable to the parties in their performance of their obligations or exercise of their rights under the EULA.
1.3 “Authorized User(s)” means Customer’s employees, agents, independent contractors, and consultants that use the Products on Customer’s behalf.
1.4 “Claim” has the meaning set forth in Section 11.1.
1.5 “Confidential Information” has the meaning set forth in Section 12.
1.6 “Corporations Act” means Corporations Act 2001 (Cth) of Australia, as amended.
1.7 “Customer” means the person or entity that wishes to obtain, or that obtains, for its own internal use (and not for distribution or resale) any Nearmap Products or content purchased from a Reseller.
1.8 “Customer Data” means information, data, and other content, in any form or medium, that is uploaded to, or otherwise received by, a Platform, directly (including via a third-party provider) from an Authorized User.
1.9 “De-identified Data” has the meaning set forth in Section 4.4.
1.10 “Documentation” means any end user technical documentation provided by Nearmap for the Products located at https://help.nearmap.com.
1.11 “Effective Date” has the meaning set forth in the preamble.
1.12 “End User License Agreement” or “EULA” has the meaning set forth in the preamble.
1.13 “Feedback” has the meaning set forth in Section 5.1.2.
1.14 “Nearmap” means (a) if Customer is located in Australia or New Zealand, as determined by Customer’s billing address set forth in an Order Form, then the Nearmap contracting entity is Nearmap Australia Pty Ltd (ABN 16 120 677 250) (NZCN 6603574) (“Nearmap AU”), with offices located at Level 4, Tower One, International Towers, 100 Barangaroo Avenue, Barangaroo NSW 2000; or (b) if Customer is located in the United States of America, Canada, or any other jurisdiction other than Australia or New Zealand, as determined by Customer’s billing address set forth in an Order Form, then the Nearmap contracting entity is Nearmap US, Inc. (“Nearmap US”), with offices located at 1850 Ashton Blvd, Ste 500, Lehi, UT 84043.
1.15 “Nearmap Policies” has the meaning set forth in Section 3.9.
1.16 “Order Form(s)” means a written document or electronic form, including any order, statement of work, proposal, quote, schedule, or other such documentation, whether or not labeled “Order Form,” including forms to facilitate purchase via an application exchange marketplace, that identifies the Products, including quantities, specifications, pricing, payment terms, and any other pertinent terms and conditions agreed upon by Customer and Reseller, relating to Customer’s purchase of Products through Reseller.
1.17 “Output” has the meaning set forth in Section 3.2.
1.18 “Personal Data” means any data or information that is linked or reasonably linkable to an identified or identifiable natural person.
1.19 “Platform” means either Nearmap’s online web-based application(s) or a Reseller’s online web-based application.
1.20 “Privacy Policy” has the meaning set forth in Section 15.
1.21 “Process” or “Processing” means any operation or set of operations performed, whether by manual or automated means, on information or on sets of information, such as the collection, use, storage, disclosure by transmission, dissemination or otherwise making available, alignment or combination, analysis, restriction, deletion, or modification of information.
1.22 “Products” means, collectively, the API, Platform and any Nearmap content or imagery.
1.23 “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.
1.24 “Proposed Amendment Date” has the meaning set forth in Section 16.9.
1.25 “Reseller” has the meaning set forth in the preamble.
1.26 “Subscription Term” means the term specified in 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).
1.27 “Term” has the meaning set forth in Section 8.1.
1.28 “Territory” means, as applicable, Australia, Canada, New Zealand, and/or the United States of America. Coverage by Nearmap within the Territory is outlined at https://www.nearmap.com/coverage for Canada and the United States of America, at https://www.nearmap.com/au/coverage for Australia, and at https://www.nearmap.com/nz/coverage for New Zealand.
1.29 “Third-Party Services” has the meaning set forth in Section 4.5.
1.30 “Usage Data” has the meaning set forth in Section 4.4.
2. Scope. This EULA governs Customer’s use of the Products that are listed in one or more Order Forms between Customer and Reseller.
3. Nearmap Products.
3.1 Access to Products. Reseller is responsible for providing Customer access to the Products during the Subscription Term.
3.2 Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of the EULA, Nearmap hereby grants Customer a non-exclusive, non-sublicensable (unless otherwise permitted in this EULA), royalty-free, non-transferable (except in compliance with Section 16.1) right to access and use Products in the Territory during the Subscription Term to: (a) use Products for Customer’s internal business purposes; (b) create derivative works of the Products (subject to Section 3.4), strictly in the form of reports, presentations, maps or other documents for internal purposes only that are fixed in a non-manipulable medium (the “Output”); and (c) use and make a reasonable number of copies of the Documentation solely in connection with the exercise of Customer’s rights under this Section 3.2, solely for use by Authorized Users in accordance with the Documentation and the terms and conditions herein.
3.2.1 Other Rights Reserved. Other than as expressly set out in Section 3.2, Customer may not use Products for any other purpose, and all other rights therein and thereto are hereby reserved by Nearmap.
3.3 Resale Terms and Conditions. Customer will comply with the terms of its separate subscription agreement with Reseller, including each Order Form. Customer acknowledges that compliance with the terms of the Order Form, and any other subscription agreement and purchase terms and conditions with the Reseller, is a material condition under this EULA, and if Reseller notifies Nearmap that Customer is in breach of such Order Form or other purchase or subscription terms and conditions with Reseller, Customer is in breach of this EULA.
3.4 Nearmap Attribution. If Customer creates Output, Customer must expressly acknowledge Nearmap in a reasonably prominent manner on each Output (by displaying the Nearmap logo or such other attribution as reasonably requested by Nearmap), as the source of any data underlying the Output. Unless otherwise permitted in writing by Nearmap, Customer must not remove or cause to be removed any Nearmap logo, watermark, or other Nearmap attribution in any Output. Customer must include all requisite legends indicating and preserving Nearmap’s rights in and to the Products. All Output must include the following copyright notice on the work: “Created with [TITLE OF PRODUCT]© [year] Nearmap US, Inc.”
3.5 Authorized Users. Authorized Users may use the Products on Customer’s behalf, provided Customer remains liable and responsible for the acts and omissions of each such Authorized User. Customer acknowledges and agrees that each Authorized User must have its own unique password and cannot share such password with any other users. If Customer is given passwords to access the Products on Nearmap’s or Reseller’s systems, then Customer shall require that all Authorized Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords.
3.6 General Restrictions. Customer shall not, and shall not allow or induce any third party (including any Authorized User) to: (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 Output from the Products or any Documentation (except as permitted in Section 3.2; (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 Output composed principally of the Products; (g) 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 Output from the Products combined with any third party imagery or content; (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 Customer Data or use the Products in a way 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 EULA.
3.7 Improvements. Customer acknowledges that Nearmap may improve and modify the features and functionality of the Products during the Subscription Term.
3.8 Product-Specific Terms. For any Products listed on an Order Form, the applicable Product-Specific Terms are hereby incorporated into the EULA by reference.
3.9 Nearmap Policies. Nearmap reserves the right to update its Product-Specific Terms, 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 or obligations set forth in such Nearmap Policies during the Subscription Term in which Nearmap updates such Nearmap Policies.
4. Customer’s Obligations; Customer Data.
4.1 Customer Obligations. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer represents and warrants to Nearmap that: (a) Customer’s use of the Products and all Customer Data is and will be at all times compliant with all Applicable Laws; (b) Customer has provided all required notices and obtained and will maintain (and acknowledges it is solely responsible for obtaining and maintaining) all necessary consents as may be required by Applicable Laws to grant the Customer Data rights granted to Nearmap in Section 4.3, and Process such Customer Data as contemplated by the EULA; (c) Nearmap’s use of the Customer Data does not infringe or otherwise violate the rights of any third party, including any intellectual property rights, fiduciary duty, and/or privacy rights; (d) Customer will access the APIs using only the login credentials and API key(s) assigned to Customer and as provided by Reseller or Nearmap; (e) Customer will comply with any limits placed on access to and use of the APIs in the Order Form or in the Documentation, including any rate or data limits on queries to the API; and (f) Customer is responsible for all activities that occur with respect to the Products, use of the Products, and compliance with the EULA; (g) Customer is not a direct competitor of Nearmap. Customer is responsible for, and will hold confidential, all login credentials, including usernames and passwords, for administrator accounts, as well as the accounts of the Authorized Users. Nearmap will not be responsible for any damages, losses, or liability to Customer, Authorized Users, or anyone else due to such information not being kept confidential by Customer or the Authorized Users, or if such information is correctly provided by an unauthorized third-party logging into and accessing the products.
4.2 Customer Restrictions. Unless otherwise agreed to in writing, Customer is prohibited from uploading, or otherwise providing, directly or indirectly (including via a third-party provider or an Authorized User) by or through the Products, or provided by Customer to Nearmap to input into the Products, Customer Data that includes any sensitive information, including a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other similar information which may be subject to specific data privacy and security laws. Nearmap does not make any representations as to the adequacy of the Products to Process Customer Data or to satisfy any legal or compliance requirements which may apply to Customer Data, other than as described herein.
4.3 Rights in Customer Data. As between the Parties, Customer shall retain all right, title and interest (including all patent, copyright, trade secret, and other intellectual property rights) in and to Customer Data. Customer hereby grants to Nearmap a non-exclusive, worldwide, irrevocable, transferable, sublicensable (through multiple tiers), fully paid-up, royalty-free right and license to use, copy, store, transmit, modify, and display Customer Data in order to: (a) provide the Products to Customer, including through Reseller if applicable; and (b) as otherwise permitted by Applicable Laws. Nearmap will not share Customer Data with any third parties, except with (i) Nearmap’s Affiliates, (ii) a subcontractor for a business purpose pursuant to a written agreement; and (iii) to third parties as necessary to comply with Applicable Laws.
4.4 Usage Data and De-identified Data. Customer acknowledges and agrees that Nearmap may create, collect, analyze, retain, and use data and other information that results or is derived from (a) Customer’s use of the Products (“Usage Data”); and (b) Customer Data that is used solely in a deidentified manner such that the information is no longer Personal Data under Applicable Laws (“De-identified Data”), for the purposes of developing, maintaining, operating, improving, or providing the Products. For clarity, Usage Data and De-identified Data, and all intellectual property and proprietary rights therein, shall be exclusively owned by Nearmap. In the event Customer gains or retains any interest in the Usage Data or De-identified Data, Customer hereby irrevocably assigns to Nearmap any and all right, title, and interest in and to any Usage Data or De-identified Data.
4.5 Third Party Application Service Providers. Customer 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’s APIs) through or with its use of the Products (“Third-Party Services”). IF CUSTOMER USES ANY THIRD-PARTY SERVICES, CUSTOMER 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. CUSTOMER 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.
5. Intellectual Property Ownership.
5.1 Ownership.
5.1.1 Nearmap Ownership. Customer agrees that Nearmap or the providers of Third-Party Services own and retain all right, title, and interest (including all patent, copyright, trade secret, and other intellectual property rights) in and to (a) the Products, Documentation, Usage Data, De-identified Data, and any and all related and underlying technology, documentation, content, audio or visual material, images, graphics, photos, digital media, or other materials or content of any type, trademarks, and other information and (b) any idea, discovery, design, method, material, formula, trade secret, invention (including any discovery of a new technology and any improvement to existing technology), know-how, innovation, writing, work of authorship, compilation, and other development or improvement, whether or not patented or patentable, copyrightable, or reduced to practice or writing and all intellectual property rights thereto.
5.1.2 Feedback. In the event Customer or its Authorized Users provide Nearmap with any suggestions, ideas, improvements, or other feedback with respect to any aspect of the Products (“Feedback”), Customer hereby irrevocably assigns to Nearmap any and all right, title, and interest in and to any Feedback.
6. Term; Termination; Suspension; Effect of Termination.
6.1 Term of EULA. This EULA commences on the Effective Date and ends on the date that the Subscription Term in all applicable Order Forms has expired or terminated (the “Term”).
6.2 Termination. Nearmap may immediately terminate or suspend Customer’s access to or use of the Products due to: (a) any material breach of the EULA; (b) termination or expiration of Customer’s relationship with Reseller for any reason; (c) Reseller’s breach of its obligations to Nearmap pertaining to the provision of the Products on behalf of Customer; (d) 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; (e) Nearmap is required to do so by law (e.g., where providing access to Customer or an Authorized User may be, or become, unlawful); or (f) 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.
6.3 Resale Compliance. If Reseller notifies Nearmap that Customer’s use of the Products is out of compliance with the entitlements, limits, and constraints of the Order Form or other applicable ordering document or terms and conditions with such Reseller, Nearmap or Reseller may suspend Customer’s access to the Products, immediately and without liability to Customer.
6.4 Effect of Termination. Upon termination or expiration of the EULA, Customer must: (a) stop all uses of the Products and any Output; (b) permanently delete the Products, and any Output from all devices and systems of all Authorized Users (provided that, however, Customer may retain one copy of the Output for compliance, regulatory, and archival purposes as required by Applicable Laws, provided that such Output shall remain subject to the confidentiality and non-use obligations set forth herein for so long as such Output is retained); and (c) within five (5) days of such termination, ensure that an officer of Customer certifies in writing that all applicable copies of the Products and Output have been permanently deleted or destroyed. Except as otherwise set forth herein, termination of the EULA is not an exclusive remedy and the exercise by either party of any remedy under the EULA will be without prejudice to any other remedies it may have under the EULA, by law, or otherwise.
6.5 Customer Data. Customer acknowledges that if Customer or an Authorized User deletes or modifies Customer Data from the Products, Customer Data may still reside in Nearmap’s systems, applications, databases, and servers (including as backups and/or archives). Customer acknowledges that Customer’s deletion or modification of Customer Data during any Subscription Term may have an adverse impact on Customer’s use of the Products (and Nearmap is not liable with respect thereto).
6.6 Survival. The following Sections shall survive any expiration or termination of the EULA: 3.4, 3.6, 4, 5, 6.4, 6.5, 7, 8, 9, 10, 13, and 14.
7. Limited Warranty; Disclaimer.
7.1 Limited Warranty. Nearmap warrants that it will provide the Products in a manner consistent with general industry standards reasonably applicable to the provision thereof.
7.2 Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, THE PRODUCTS, AND ANY AND ALL RELATED AND UNDERLYING TECHNOLOGY, CONTENT, AUDIO OR VISUAL MATERIAL, IMAGES, GRAPHICS, PHOTOS, DIGITAL MEDIA OR OTHER MATERIALS OR CONTENT OF ANY TYPE, TRADEMARKS, AND OTHER INFORMATION ARE PROVIDED “AS IS” AND NEARMAP AND ITS THIRD-PARTY PROVIDERS, AGENTS, MANDATARIES, RESELLERS AND AFFILIATES HEREBY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, OF MERCHANTABILITY, OR THAT THE PRODUCTS AND ANY AND ALL RELATED AND UNDERLYING TECHNOLOGY, CONTENT, AUDIO OR VISUAL MATERIAL, IMAGES, GRAPHICS, PHOTOS, DIGITAL MEDIA OR OTHER MATERIALS OR CONTENT OF ANY TYPE, TRADEMARKS, AND OTHER INFORMATION, OR ANY RESULTS OF OR THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, BE FIT FOR PURPOSE, OPERATE WITHOUT INTERRUPTION, BE COMPATIBLE OR WORK WITH ANY PRODUCTS, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, CORRECT, RELIABLE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. ADDITIONALLY, NEARMAP STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY RESELLER OR THIRD-PARTY PRODUCTS. CUSTOMER IS SOLELY RESPONSIBLE FOR ITS AND ITS AUTHORIZED USERS’ INTERACTIONS AND SHARING OF INFORMATION WITH OTHER USERS.
7.3 Notwithstanding any other provision, the rights of a party under this EULA are in addition to and do not exclude or limit any other rights or remedies under the Australian Consumer Law in the Competition and Consumer Act 2010 (Cth), to the extent the Customer contracts with Nearmap AU.
8. Limitation of Liability.
8.1 EXCEPT AS REQUIRED BY APPLICABLE LAW, IN NO EVENT SHALL NEARMAP HAVE ANY LIABILITY TO CUSTOMER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Nearmap disclaims liability for any acts or omissions of Reseller.
9. Indemnification.
9.1 Indemnification by Customer. Subject to this EULA, Customer will (a) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Nearmap by a third party alleging that: (i) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (ii) a combination of the Products with non-Nearmap products or services; or (iii) Customer’s use of the Products, other than as authorized in this EULA, violates applicable law or regulations or infringes the intellectual property rights of, or has otherwise harmed, a third party; and (b) pay (i) any final judgment or award directly resulting from such Claim, or (ii) those damages agreed to in a monetary settlement of such Claim.
10. Confidentiality.
10.1 Confidential Information. Each Party, as a receiving party, agrees to retain in confidence the non-public information and know-how disclosed to it pursuant to the EULA which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Notwithstanding any failure to so designate them, the Products, the Documentation, the Usage Data, the De-identified Data, and the Feedback shall be Nearmap’s Confidential Information. Each Party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information, using at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care; (b) refrain from using the other Party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to Reseller, employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors, and other representatives as is reasonably required in connection with the exercise of its rights and obligations under the EULA (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each Party agrees to promptly notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested.
10.2 Exceptions. Notwithstanding the foregoing, Confidential Information shall not include information which is: (a) already publicly known without breach of the EULA; (b) discovered, created or independently developed by the receiving party without use of, reliance upon, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (c) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (d) required to be disclosed by law or court order or by the listing rules of any stock exchange where the recipient’s securities are listed or quoted; provided that the receiving party shall provide prompt notice thereof and commercially reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either Party hereto may disclose any Confidential Information hereunder to such Party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto. Each Party agrees and acknowledges that any breach or threatened breach of this Section 12 may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of the EULA or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.
11. Security. Each Party shall comply with all Applicable Laws. Nearmap shall use reasonable physical, technical, and administrative procedures, which procedures may include SOC 2 certification or the equivalent thereof depending on the Product, designed to protect, safeguard and help prevent loss, misuse, and unauthorized access, disclosure, alteration or destruction of Customer Data, and will choose these safeguards based on the sensitivity of the information that is collected, Processed, and stored and the current state of applicable technology.
12. Data Processing. Nearmap’s data security and privacy practices form an integral part of Nearmap’s product engineering and service delivery principles. Customer understands and acknowledges that to the extent Nearmap Processes any Personal Data, Nearmap shall do so in accordance with its privacy notice, which is available at https://www.nearmap.com/legal/privacy-policy (if contracting with Nearmap US) or https://www.nearmap.com/au/legal/privacy-policy (if contracting with Nearmap AU) (“Privacy Policy”); provided, however, that to the extent Customer Data includes any information which is defined as “personal data,” “personal information,” “personal identifiable information,” or similarly defined data or information under Applicable Laws, Nearmap will Process such information as a data “processor” or “service provider” (each term, as applicable) and a list of Nearmap’s sub-processors will be made available upon Customer’s written request (email to suffice).
13. Publicity. Except as otherwise agreed in writing (email to suffice), neither Party may use the other Party’s name, logos, or marks without such Party’s written pre-approval in each case.
14. General Terms.
14.1 Assignment. The EULA will bind and inure to the benefit of each Party’s permitted successors and assigns. Customer shall not assign the EULA except upon the advance written consent of Nearmap. Nearmap may assign the EULA without advance written consent in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of Nearmap’s assets or voting securities. Any attempt to transfer or assign the EULA except as expressly authorized under this Section 16.1 will be null and void.
14.2 Force Majeure. Nearmap shall not be liable to Customer for any delay or failure to perform any obligation under the EULA if the delay or failure is due to unforeseen events which occur after the signing of the EULA and which are beyond the reasonable control of Nearmap, such as a strike, blockade, war, act of terrorism, riot, natural disaster, or failure or diminishment of power or telecommunications or data networks or services.
14.3 Subcontractors. Nearmap may use the services of subcontractors for performance of services under the Agreement, provided that Nearmap remains responsible for such subcontractors’ compliance with the terms of the EULA.
14.4 Independent Contractors. The Parties to the EULA are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
14.5 Severability. If any provision of the EULA shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that the EULA shall otherwise remain in effect.
14.6 Governing Law and Venue; Waiver of Jury Trial.
14.6.1 If Customer’s Order Form is with a Reseller who is under contract with Nearmap AU, then the EULA and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court in New South Wales). The jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in New South Wales, Australia and both Parties hereby submit to the personal jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the EULA.
14.6.2 If Customer’s Order Form is with a Reseller who is under contract with Nearmap US, then the EULA and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Utah, United States of America, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Salt Lake County, Utah except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court in Salt Lake County) and both parties hereby submit to the personal jurisdiction of such courts. Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the EULA.
14.7 Notice. Legal notices to Nearmap must be delivered to the following email address: legal@nearmap.com.
14.8 Order of Precedence. In the event of any conflict between this EULA and any other applicable terms and conditions, this EULA shall govern.
14.9 Amendments; Waivers. Nearmap reserves the right to amend the EULA from time to time by posting an amended version at its website. Such amendment will be deemed accepted and become effective thirty (30) days after such amended version of the EULA is posted on Nearmap’s website (the “Proposed Amendment Date”) unless Customer first gives Nearmap written notice of rejection of the amendment. In the event of such rejection, this EULA will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Products following the Proposed Amendment Date will confirm Customer’s consent thereto. For clarity, the terms and conditions of this EULA may not be amended by Reseller. No waiver will be implied from conduct or failure to enforce or exercise rights under the EULA, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived.
14.10 Interpretation. The words “hereof,” “herein,” and “hereunder” and words of similar import, when used in the EULA, will refer to the EULA as a whole and not to any particular provision of the EULA. Terms defined in the singular will have correlative meanings when used in the plural, and vice versa. The headings herein are for convenience of reference only, do not constitute part of the EULA and will not be deemed to limit or otherwise affect any of the provisions hereof. Where a reference in the EULA is made to a section, exhibit, or schedule, such reference will be to a section, exhibit, or schedule to the EULA unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in the EULA, they will be deemed to be followed by the words “without limitation,” unless preceded by the word “not.” If a link herein redirects to a geographic-specific link, including but not limited to geographic-specific sites for Australia, New Zealand, and Canada, that geographic-specific link shall be given the same effect as if it were explicitly included in the EULA in lieu of the link from which the redirect occurred that is set forth in the EULA.
14.11 Third Party Beneficiary. Nearmap shall be a third party beneficiary to the Order Form and any other purchase terms and conditions between Customer and Reseller solely as it relates to this EULA. There are no third-party beneficiaries to this EULA.
14.12 Export Compliance. Each Party shall comply with all applicable export and re-export control and trade and economic sanctions laws, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations maintained by the U.S. State Department. Neither Party, nor any of its subsidiaries or any person acting on its behalf or owning fifty percent (50%) or more of its equity securities or other equivalent voting interests, is (a) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of sanctioned persons administered by OFAC or any other governmental entity, or (b) a national or resident of, or a segment of the government of, any country or territory for which the United States of America has embargoed goods or imposed trade sanctions.
14.13 Compliance with Anti-corruption Laws. Each Party shall comply with the U.S. Foreign Corrupt Practices Act and any Applicable Laws related to anti-corruption of other countries, to the extent applicable. Neither Party shall, at any time, directly or indirectly (through a subcontractor or other third party), pay, offer, give, or promise to pay or give, or authorize the payment of, any monies or any other thing of value to influence the improper performance of any individual government officials and employees of state-owned enterprises.
14.14 Entire Agreement. The Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications, relating to the subject matter of the EULA. Unless expressly agreed between the Parties in writing, the terms, conditions, or provisions of any purchase order, invoice, or other administrative document issued by Reseller or Customer in connection with the EULA will not modify, alter, or expand the rights, duties, or obligations of the parties under, or will not otherwise modify, the EULA, irrespective of the timing of its issuance or any failure of Nearmap to object to such terms, conditions, or provisions.