CM-2024-199 - 7/26/2024NEW SUBSCRIPTION QUOTE
Nearmap US, Inc.
1850 W Ashton Blvd, Suite 500
Lehi, UT 84043, USA
Phone: +1 (801) 609 7250
Customer Name City of Round Rock, TX Quote Number Q101645
Contract Commencement Contract commences upon
signing of quote. Quote Expiry 06/28/2024
Subscription Term 12 Month Account Rep Dustin Loveland
dustin.loveland@nearmap.com
Subscription Start Date 06/27/2024 Payment Term Net 30
Public Facing URL https://corr.maps.arcgis.com/hom
e/index.html Payment Method Invoice
Bill To City of Round Rock, TX
Nathan Smith Ship To City of Round Rock, TX
Nathan Smith
221 E Main St Ste 221, 221 E Main St Ste 221,
Round Rock, Texas, 78664-5299 Round Rock, Texas, 78664-5299
(512)218-5423 (512)218-5423
nsmith@roundrocktexas.gov nsmith@roundrocktexas.gov
PRODUCT ALLOWANCE COVERAGE SEATS
Public Display License for Government NA Nationwide NA
ArcGIS Integration NA NA NA
Nearmap Vertical for Government
(Tier 1.1 Ortho)
NA Nationwide Unlimited
Subtotal $17,500.00
*Estimated Tax
Total
$0.00
USD $17,500.00
*The Total includes applicable sales tax for the state which the Licensee is located. If an exemption from sales tax is applicable to the Licensee, the Licensee shall
provide to Nearmap, in accordance with state law, relevant tax-exemption documentation. It will be the responsibility of the Licensee to ensure proof of tax-exempt
status remains current for subsequent renewals of the Agreement.
1
CM-2024-199
Date:
Position:
Signature / Digital Acceptance:
Full Name:
PO Number (if required):
If printed, please sign, scan and email to: orders.us@nearmap.com
By selecting “Yes” or signing below, you acknowledge that (a) you have read, understood and agree to the Products Agreement attached to this
Quote, (b) you have the authority to agree to this New Subscription Quote and (c) you agree to pay the fees set forth herein. This New Subscription
Quote constitutes a binding commitment for the Contract Term stated above. You acknowledge that the Coverage Area by Nearmap is outlined at
https://www.nearmap.com/us/en/current-aerial-maps-coverage.
ACCEPTANCE OF Q101645 will constitute an Agreement with Nearmap
2
City Manager
07/27/2024
Laurie Hadley
Schedule 1
Additional Terms and Conditions
1.The parties hereby agree that Products listed on the Quote are being purchased by the Licensee under GSA Multiple Award Schedule
(MAS) MAS contract 47QTCA22D00A0 (the “Schedule Contract”), which is hereby incorporated by this reference. The Nearmap Products
Agreement is attached to the Schedule Contract and contains the following Schedules: Schedule 1 – Fair Use Policy, Schedule 2 –
Nearmap Product-Specific Terms, and Schedule 3 – Nearmap Privacy Policy. In the event of inconsistencies between the terms and
conditions found in the Quote and those found in the Schedule Contract, the Schedule Contract shall control.
2.Certain Products listed on the Quote are Order Level Materials (OLMs) under the Schedule Contract. The OLMs are subject to GSAR
clause 552.238-115 and are offered in support of an awarded SIN.
3.In accordance with Chapter 2271, Texas Government Code, a governmental entity may not enter into a contract with a company for
goods and services unless the contract contains written verification from the company that it: (1) does not boycott Israel; and (2) will not
boycott Israel during the term of a contract. The signatory executing this Agreement on behalf of Nearmap verifies Nearmap does not
boycott Israel and will not boycott Israel during the Term of this Agreement.
4.Notwithstanding anything in the Agreement to the contrary, the Agreement shall not automatically renew following the Subscription
Term as set forth in the Quote.
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v. 06.23.2022
PRODUCTS AGREEMENT
Recitals
A. Nearmap is a provider of aerial imagery and location data and associated products and services.
B. Nearmap agrees to supply the Customer, an “Ordering Activity” (an entity entitled to order under GSA Schedule contracts as de fined in GSA Order OGP 4800.2l, as may
be revised from time to time),with the Products described in the Schedule Price List, subject to the terms of this agreement, the Additional Terms and Conditions, Product -
Specific Terms, any Schedules hereunder, the Schedule Contract, the Quote (if applicable), and the relevant ordering document ation required under the Schedule Contract,
which together constitute the legal agreement between the Licensee and Nearmap (the “Agreement”). Nearmap will look solely to Ordering Activity to enforce any violation
or breach of this Agreement by such individuals, subject to Federal law.
Definitions of capitalized words are set out in section 18 of the Agreement.
1. GRANT OF LICENSE TO USE PRODUCTS
1.1 Grant Subject to the terms of this Agreement, Nearmap grants to the Licensee a
limited, non-exclusive, non-transferable license for the Term to use the Products for
and to the extent of the Permitted Purpose (the “License”).
1.2 Authorized Users The Products available under this License are only to be used
by the total number of Authorized Users. The Licensee shall implement reasonable
controls to ensure that it does not exceed the number of Authorized Users. If the
number of users exceeds the total number of Authorized Users, the Licensee will
be in breach of this Agreement.
1.3 Renewal Upon the expiration of the initial Term, th is Agreement, this Agreement
may be renewed by mutual agreement of the parties.
1.4 Replacement Product Nearmap may from time to time supply the Licensee with a
replacement Product of no lesser quality than the previously supplied Product at its
absolute discretion. If requested by Nearmap, the Licensee must stop using any
previously supplied Product and use the replacement Product from the date of
delivery from Nearmap. Nothing in this section shall impair the U.S. Government’s
right to recover for fraud or crimes arising out of or related to this Contract
under any federal fraud statute, including the False Claims Act, 31 U.S.C.
3729-3733. Furthermore, this section shall not impair nor prejudice the U.S.
Government’s right to express remedies provided in the G SA Schedule Contract
(e.g., clause 552.238-81 – Price Reductions, clause 52.212-4(h) – Patent
Indemnification, and GSAR 552.215-72 – Price Adjustment – Failure to Provide
Accurate Information).
1.5 Acknowledge Nearmap source The Licensee must expressly acknowledge
Nearmap, in a reasonably prominent manner (by displaying the Nearmap logo or
other appropriate attribution), as the source of any Product or Derivative Works that
the Licensee uses, copies, modifies, or distributes. Unless otherwise permitted in
writing, the Licensee must not remove or cause to be removed any Nearmap logo,
watermark, or other Nearmap attribution in any Product or Derivative Works.
1.6 Data Use for Government Products Nearmap measures data usage by the
Licensee under this License for Government Products. When using Government
Products, Nearmap’s Fair Use Policy regulates the Licensee's consumption of data
during the Term (or renewal Term). The following conditions also apply to the
Licensee's use of Government Products:
(a) the amount of data used by the Licensee on the Government Products will be
monitored and then calculated at the end of every Term or renewal Term based on
the total data of all users who access and use the Licensee's Nearmap account
during that Period; and
(b) if the Licensee elects to download and/or export Government Products available to
the Licensee on the Website, this will be applied to the calculation of the Licensee’s
use of the Government Products.
1.7 Allowance for Non-Government Products Non-Government Products licensed to
the Licensee may be subject to additional Allowance, Periodic Allowance, or
Periodic Data Allowance terms that are published in the Product -Specific Terms,
and if applicable, the Periodic Allowance Section.
1.8 Unavailability Subject to section 12 and the Schedule Contract and applicable task
or purchase order, if a Product is not available for a period of
three (3) consecutive days, the Term will be extended by the period of such
unavailability.
2. RESTRICTIONS ON RIGHT TO USE PRODUCTS
2.1 Permitted Purpose The Products must only be used for the Permitted Purpose.
2.2 No right to distribute, transfer, resell, assign or sublicense This License is
granted only to the Licensee. The Licensee must not distribute, transfer, resell,
assign, rent, lease, or sublicense any Product or any of the Licensee’s rights under
this License without Nearmap’s prior written consent.
2.3 No third party access Unless otherwise provided in this Agreement, the Licensee
must not make any Product available in any medium or manner t o any third party
(including but not limited to the Licensee’s subsidiaries, affiliates, any lower or
higher tiered governments and any neighboring local government).
2.4 Employees The Licensee may make Products available to any employee of the
Licensee, subject to that person complying with the terms of the Agreement as if
they were a party to it and the total number of Authorized Users has not been
exceeded. Such employees are deemed to be Authorized Users. The Licensee is
responsible and liable for any person who uses the Licensee’s account access
details or uses Products made available to the Licensee in breach of this
Agreement.
2.5 No machine learning The Licensee must not conduct machine learning work
in connection with this Agreement or any Products, which includes but is not
limited to any:
(a) machine learning models (including the model form and model parameters);
(b) outputs of machine learning models;
(c)software that processes or transforms input data for training a machine learning
model or getting a prediction from a machine learning model into a format
suitable for training or making such prediction; or
(d) software used to train a machine learning model or compute outputs of a
machine learning model for a given set of input data.
2.6 No caching and creation of database Except as expressly permitted under
this Agreement, the Licensee is not permitted to:
(a) use its access to the Products under this Agreement for the purposes of creating
a database of imageries for resale, distribution, sublicense, or o ther commercial
purposes and mass downloads or bulk feeds of any imagery; and
(b) pre-fetch, retrieve, cache, index, or store any Content or portion of the Products.
2.7 Restriction on integration methods The Licensee is only permitted to use API
integration methods, or other integration methods, as authorized by Nearmap
in writing, including but not limited to integration with the Licensee's or other
third party platforms or software.
2.8 Limits on use of Website In the Licensee’s use of the Website, the Licensee
must not (without the prior written consent of Nearmap):
(a) provide a link to another URL;
(b) upload content or other information to the Website (except as necessary to use
the Products);
(c)do anything to damage, interfere or disrupt access to the Website or do anything
which might impair its functionality;
(d) use the Website in any way to send any unsolicited email (commercial or
otherwise) or any other material for marketing or publicity purposes;
(e) publish, post, distribute, disseminate, or otherwise transmit, defamatory,
offensive, infringing, obscene, indecent, or other unlawful or objectionable
confidential material or information;
(f) make available, upload, or distribute by any means any material or files that
contain any viruses, bugs, corrupt data, “trojan horses”, “worms”, or any other
harmful software;
(g) remove any content or information from the Website, other than that permitted
under the terms of this License;
(h) falsify the true ownership of a Product or other material or information made
available via the Website;
(i)obtain or attempt to obtain unauthorized access, through whatever means, to
the Website;
(j) use the Website other than in accordance with this Agreement;
(k)attempt any of the above acts or engage, encourage or permit another person
to do any of the above acts; or
(l)provide or allow access to the Website which exceeds the total number of
Authorized Users in connection with use of the Product.
2.9 Breach If the Licensee breaches any of sections 2.1 to 2.8 inclusive, Nearmap
reserves its rights to terminate the Agreement in accordance with section 6.2,
restrict the Licensee’s access to the Products, and take any other steps
available to it at law. Termination of Federal contracts will be in accordance with
FAR 52.212-4(l), FAR 52.212-4(m), and GSAR 552.238-79.
3. THE LICENSEE’S ACCESS TO PRODUCTS AND SERVICES
3.1 Authorized Users Any password/ID issued by Nearmap to an Authorized User
is personal and confidential to that Authorized User. If Nearmap suspects that
any password/ID is being used by an unauthorized person, by a different
Authorized User to the person to whom it was issued, or the number of
Authorized Users has been exceeded, Nearmap may:
(a) cancel that password/ID;
(b) restrict the Licensee’s access to the Product to low resolution imagery, or apply
any other restrictions on access that Nearmap determines in its absolute
discretion;
(c)immediately cease the Licensee’s access to the Product; and/or
(d) exercise any other rights available to Nearmap under the terms of this
Agreement or at law. Termination of Federal contracts will be in accordance
with FAR 52.212-4(l), FAR 52.212-4(m), and GSAR 552.238-79.
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3.2 Downtime Nearmap will use reasonable efforts to ensure that the Website
remains available but cannot guarantee that this will be the case at all times.
Nearmap agrees that, wherever possible, all planned maintenance will be done
out of normal Operational Hours to e nsure optimal uptime of the Website. The
Licensee may elect to subscribe to the Nearmap status page at
https://status.nearmap.com/ to receive notifications and updates relating to
planned maintenance and uptime/downtime of the Website and APIs. When
Nearmap becomes aware of any Fault, Ne armap will use reasonable efforts to:
(a) allocate such resources as may be necessary to remedy the Fault; and
(b) otherwise take all reasonable steps to remedy the Fault so as to minimize any
disruption to the Licensee’s use of the Products.
3.3 Expiry The Licensee’s License will expire at the end of the Term unless renewed
in accordance with section 1.3 and may be suspended or terminated, in
accordance with section 6.2, if the Licensee is in breach of this Agreement.
Termination of Federal contracts will be in accordance with FAR 52.212-4(l), FAR
52.212-4(m), and GSAR 552.238-79.
3.4 Unauthorized Use Licensee shall take reasonable steps to prevent unauthorized
access to the Products, including without limitation, protecting its passwords and
other log-in information. The Licensee shall notify Nearmap immediately of any
known or suspected unauthorized use of the Products, or breach of its security,
and shall use best efforts to stop said breach and minimize the adverse impact of
said breach on Nearmap.
3.5 Audit During the Term of this Agreement, and for two (2) years after termination
or expiry of this Agreement, the Licensee shall maintain records regarding its use
of the Products according to its record keeping policies and procedures. The
Licensee shall permit Nearmap (or its auditors) access to the Licensee’s records
pertaining to the Licensee’s use of the Products. Nearmap may conduct an audit
(a) upon reasonable notice to the Ordering Activity, (b) consistent with all security
measures of the Ordering Activity, and (c) at Nearmap’s expense.
3.6 Reserved
4. FEES
4.1 Fees The Fees payable by the Licensee are set out in the Quote based on the
pricing found in the Schedule Price List.
4.2 Payment The Fees are payable by the Licensee to Nearmap in the manner and by
the due date, as set out in the GSA Schedule Contract. Payments are governed by
the GSA Schedule Contract, FAR 52.232-33, -34, -37, 552.232-74, -79.
5. THE LICENSEE’S WARRANTIES
5.1 Warranty The Licensee warrants that:
(a) any information the Licensee supplies to Nearmap in respect of the Agreement is
complete and correct. The Licensee must keep Nearmap informed of any change
to the Licensee’s information provided to Nearmap, including any change to the
Licensee’s contact details, or the details of a credit card used for payment;
(b) the Licensee will immediately notify Nearmap of any usage of any Product outside
the Permitted Purpose, and provide any other information reasonably requested
by Nearmap;
(c)the Licensee has the power to enter into this Agreement a nd to perform the
obligations under it; and
(d) the Licensee has and will comply with all relevant laws relating to the Licensee’s
use of the:
(i)License;
(ii)Products; and
(iii)Website.
6. TERMINATION AND EXPIRY
6.1 Initial Term This Agreement commences on the Commencement Date and
continues until expiry of the Term unless terminated earlier in accordance with the
terms of this Agreement or renewed under section 1.3.
6.2 Termination by Either Party Termination of Federal contracts will be in
accordance with FAR 52.212-4(l), FAR 52.212-4(m), and GSAR 552.238-79.
6.3 Termination by Nearmap Termination of Federal contracts will be in
accordance with FAR 52.212-4(l), FAR 52.212-4(m), and GSAR 552.238-79.
6.4 Consequences If the Agreement is terminated under sections 6.2 or 6.3 or
expires at the end of the Term:
(a) the License immediately terminates and the Products will no longer be available
to the Licensee;
(b) the Licensee must immediately destroy, delete, or return to Nearmap all
Products; and
(c)subject to section 7.3, the Licensee and the Authorized Users are not permitted
to use any Products for any purpose.
6.5 Reserved.
6.6 Continuing obligations After expiry or termination of the Agreement, or a
License, sections 1.5, 2, 4, 6.5, 7, 8, 9, 10, 13, 14, 15, and 17 will still be binding
on the Licensee in relation to Products licensed or obtained during the Term.
7. INTELLECTUAL PROPERTY
7.1 Ownership Unless otherwise indicated, the Website, the Products, the Content,
and all associated Intellectual Property Rights, data, information, and software
are owned by Nearmap and are protected by copyright, moral rights, trademark,
and other laws relating to the protection of intellectual property. Nearmap
reserves all of its Intellectual Property Rights. Except for the limited License
granted to the Licensee in section 1.1, no ownership or Intellectual Property
Rights in the Website, any Product, or Content will pass or be licensed to the
Licensee.
7.2 Trademarks The Nearmap trademarks and all associated Intellectual Property
Rights are owned by Nearmap. Nothing in the Agreement confers upon the
Licensee any rights to use or modify any of Nearmap’s trademarks, except that
Nearmap grants the Licensee a royalty free, limited, non -exclusive, non-
transferrable, non-sublicensable license to reproduce and display Nearmap
trademarks only to the extent necessary to comply with the Licensee’s
obligations under the Agreement. Any such reproduction and display of those
marks must comply with the policies and rules Nearmap makes available to the
Licensee from time to time.
7.3 Derivative Works Subject to compliance with all other terms of this Agreement,
the Licensee is granted a non -exclusive right to produce and use Derivative
Works for a Permitted Purpose. Unless otherwise notified to the Licensee by
Nearmap, the Licensee may continue using Derivative Works following
termination or expiry of this Agreement. For the avoidance of doubt, Nearmap
will continue to own all rights in and to any Products and Content embedded in a
Derivative Work, but all other rights in and to the Derivative Work will belong to
the Licensee.
8. THIRD PARTY PROVIDERS
8.1 Nearmap engages Third Party Providers in order to provide the Products and
comply with its obligations under this Agreement and for the Licensee to receive
the intended benefit of this Agreement. The Licensee agrees to comply with all
requirements and restrictions that Third Party Providers may impose on the
Licensee directly or indirectly by imposition on Nearmap, in relation to their
respective products and/or services, at the time of, or subsequent to, the
Agreement. The Licensee acknowledges that provision of the Products is subject
to, and dependent upon, adequate delivery of products and services by the Third
Party Providers. In accordance with section 9 of the Agreement, Nearmap’s
liability is reduced to the extent that loss or damage of any kind is c aused or
contributed to, by Third Party Providers. For the Licensee’s convenience,
Nearmap has set out in this section 8 links to the terms and conditions of these
Third Party Providers with which the Licensee is required to comply.
(a) Google Nearmap engages Google to supply navigation and geo-location data,
and related content. By entering into the Agreement, the Licensee agrees to the
Google Terms of Service as they apply to the Licensee.
https://www.google.com/enterprise/earthmaps/legal/us/maps_purchase_agree
m ent_apac.html;
(b) Google Nearmap engages Google to supply navigation and geo -location data,
and related content. By entering into the Agreement, the Licensee agrees to the
Google Terms of Service as they apply to the Licensee.
https://www.google.com/enterprise/earthmaps/legal/us/maps_purchase_agree
m ent_apac.html;
(c)Amazon Web Services (AWS) Nearmap engages Amazon Web Service, Inc. to
provide services (the “AWS Services”) which enables delivery of the Products.
By entering into the Agreement, the Licensee agrees to comply with the AWS
Customer Agreement (http://aws.amazon.com/agreement/) as it applies to the
Licensee. Use of the Products is also subject to the Licensee’s compliance with
the following AWS policies:
Privacy Policy
(http://aws.amazon.com/privacy/)
(i) Acceptable Use Policy
(http://aws.amazon.com/aup/)
(ii) Terms of Use
(http://aws.amazon.com/terms/)
(iii) Service Terms
(http://aws.amazon.com/serviceterms/)
(iv) Trademark Guidelines
(http://aws.amazon.com/trademark-guidelines/)
(d) NASA/NCAS By entering into the Agreement, the Licensee agrees to the
following NASA/NCAS terms and conditions: (https://www.nearmap.com/us/en/
legal/copyright).
(e) Use of such third party software and embedded third party components shall be
governed by the terms of this Agreement.
9. WARRANTY AND LIABILITY
9.1 Warranty Nearmap agrees to use industry standard GPS to ensure captured
imagery has accurate geographical positioning.
9.2 DISCLAIMER OF WARRANTIES OTHER THAN AS SET FORTH IN SECTION
9.1, THE WEBSITE AND THE 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, MANDATARIES, AND AFFILIATES EXPRESSLY
DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, CONDITIONS,
AND GUARANTEES, WHETHER EXPRESS, STATUTORY OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED REPRESENTATIONS,
WARRANTIES, CONDITIONS, OR GUARANTEES OF MERCHANTABILITY,
TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND
COURSE OF DEALING OR PERFORMANCE. This clause does not limit or
disclaim any of the warranties specified in the GSA Schedule Contract under FAR
52.212-4(o). In the event of a breach of warranty, the U.S. Government reserves
all rights and remedies under the GSA Schedule Contract, t he Federal Acquisition
Regulations, and the Contract Disputes Act, 41 U.S.C. 7101-7109.
9.3 NO REPRESENTATIONS WHILE NEARMAP USES REASONABLE EFFORTS
TO ENSURE THE ACCURACY, CORRECTNESS AND RELIABILITY OF THE
CONTENT, THE PRODUCTS, AND THE WEBSITE, NEARMAP MAKES NO
REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES AS TO
THE ACCURACY, CORRECTNESS, OR RELIABILITY OF ANY PRODUCT OR
CONTENT CONTAINED ON THE WEBSITE. THE PRODUCTS AND THE
WEBSITE 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
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ENTITY SEEKING TO RELY ON ANY OF THE PRODUCTS OR THE WEBSITE.
This clause does not limit or disclaim any of the warranties specified in the GSA
Schedule Contract under FAR 52.212 -4(o). In the event of a breach of warranty,
the U.S. Government reserves all rights and remedies under the contract, the
Federal Acquisition Regulations, and the Contract Disputes Act, 41 U.S.C. 7101 -
7109.
9.4 LIMIT OF LIABILITY EXCEPT AS PROHIBITED UNDER FEDERAL LAW, THE
SCHEDULE CONTRACT, OR THE FEDERAL ACQUISITION REGULATIONS ,
NEARMAP’S LIABILITY FOR: (A) A BREACH OF A WARRANTY UNDER
SECTION 9.1; OR (B) A BREACH OF A REPRESENTATION, WARRANTY,
CONDITION, OR GUARANTEE WHICH IS IMPLIED OR IMPOSED IN RELATION
TO THIS LICENSE UNDER LEGISLATION AND CANNOT BE EXCLUDED, WILL
BE LIMITED TO, AT NEARMAP’S OPTION, REPLACING OR REPAIRING THE
PRODUCTS OR SUPPLYING PRODUCTS EQUIVALENT TO THE RELEVANT
PRODUCTS, OR PAYING THE COST OF REPLACING OR REPAIRING THE
PRODUCTS. THE FORGOING LIMITATION OF LIABILITY SHALL NOT APPLY
TO THE EXTENT THAT THE NEGLIGENCE OF NEARMAP RESULTED IN
DEATH OR BODILY INJURY. WHERE ANY LIABILITY RESULTS FROM THE
JOINT OR CONCURRENT ACT OR OMISSION OF A PARTY, THE OTHER
PARTY’S LIABILITY SHALL BE IN PROPORTION TO EACH PARTY’S
ALLOCABLE SHARE OF JOINT OR CONCURRENT CONDUCT, EVEN IF ONE
OF THE PARTIES IS MORE THAN FIFTY PERCENT AT FAULT.
9.5 NO LIABILITY FOR CLAIMS TO THE EXTENT PERMITTED BY LAW, IN NO
EVENT WILL NEARMAP, ITS CONTENT PROVIDERS, AGENTS,
MANDATARIES, OR AFFILIATES BE LIABLE FOR ANY CLAIMS OF ANY KIND
ARISING FROM OR CONNECTED WITH THE USE OF THE WEBSITE, THE
CONTENT OR THE PRODUCTS, 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), EXTRACONTRACTUAL LIABILITY, OR
OTHERWISE. THE LICENSEE IS RESPONSIBLE FOR THE ENTIRE COST OF
ALL SERVICING, REPAIR, OR CORRECTION REQUIRED DUE TO THE
LICENSEE’S USE OF THIS WEBSITE, THE CONTENT OR THE PRODUCTS.
THIS EXCLUSION APPLIES, WITHOUT LIMITATION, TO ANY CLAIMS
CAUSED BY OR RESULTING FROM RELIANCE BY A USER ON ANY
INFORMATION OBTAINED FROM NEARMAP. This clause shall not impair the
U.S. Government’s right to recover for fraud or crimes arising out of or related to
this Contract under any federal fraud statute, including the False Claims Act, 31
U.S.C. 3729-3733. Furthermore, this clause shall not impair nor prejudice the U.S.
Government’s right to express remedies provided in the GSA Schedule Contract
(e.g., clause 552.238-81 – Price Reductions, clause 52.212-4(h) – Patent
Indemnification, and GSAR 552.215-72 – Price Adjustment – Failure to Provide
Accurate Information)
9.6 AGGREGATE LIMIT EXCEPT AS PROHIBITED UNDER FEDERAL LAW, THE
GSA SCHEDULE CONTRACT, OR THE FEDERAL ACQUISITION
REGULATIONS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF
NEARMAP, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING
NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED),
EXTRACONTRACTUAL LIABILITY, PRODUCT LIABILITY, STRICT LIABILITY
OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE
PRODUCTS, THE CONTENT, OR THE WEBSITE EXCEED ANY
COMPENSATION OR FEE THE LICENSEE HAS PAID, IF ANY, TO NEARMAP
FOR ACCESS TO OR USE OF THE PRODUCTS OVER THE TWELVE (12)
MONTH PERIOD PRIOR TO THE ALLEGED DEFAULT, BREACH, OR EVENT
GIVING RISE TO THE LIABILITY.
9.7 Third Party Providers The Licensee acknowledges that Nearmap relies on the
services of Third Party Providers in order to supply the Products and related
services. Without limiting any of the above, to the fullest extent permitted by
applicable law, Nearmap will not be liable for any loss, damage, or cost of any kind,
which is caused, or contributed to, by a third party service provider.
9.8 Reserved
9.9 Reserved
10. COPYRIGHT COMPLAINTS
10.1 Subject to section 9, if any third party brings a Claim against the Licensee
alleging that the Licensee’s use of the Products, in accordance with this License,
infringes their copyright (“Infringement Claim”), Nearmap will defend the
Licensee against the Claim and pay any settlement to which Nearmap consents
or final court-awarded damages for which the Licensee is liable.
10.2 The Licensee must:
(a) promptly notify Nearmap of any such Infringement Claim;
(b) not make any admissions in relation to the Infringement Claim without Nearmap's
prior written consent;
(c)permit Nearmap to conduct the defense of the Infringement Claim including all
negotiations for settlement; and
(d) provide Nearmap with any assistance reasonably requested to allow Nearmap
to defend the Infringement Claim.
10.3 Nearmap will have no liability for any Infringement Claim:
(a) that arises from any:
(i)use of the Product in violation of this Agreement;
(ii)modification of the Product by anyone other than Nearmap, or a party
authorized by Nearmap, in writing to modify the portion of the Product
applicable to the Infringement Claim; or
(iii)third-party products, services, hardware, software, or other materials, or
a combination of these with the Products, which would not be infringing
without this combination; or
(b) if the Licensee fails to comply with section 10.2.
(c)This clause shall not impair the U.S. Government’s right to recover for fraud or
crimes arising out of or related to this Contract under any federal fraud statute,
including the False Claims Act, 31 U.S.C. 3729 -3733. Furthermore, this clause
shall not impair nor prejudice the U.S. Government’s right to express remedies
provided in the GSA Schedule Contract (e.g., clause 552.238-81 – Price
Reductions, clause 52.212-4(h) – Patent Indemnification, and GSAR 552.215-72 –
Price Adjustment – Failure to Provide Accurate Information).
10.4 To the maximum extent permitted by law, this section 10 sets out Nearmap’s sole
and exclusive liability, and the Licensee’s sole and exclusive remedy, for any
third party Infringement Claims brought against the Licensee in relation to an
infringement of Intellectual Property Rights.
11. PRIVACY POLICY
11.1 Nearmap will collect, use, and disclose any personal information supplied by the
Licensee as set out in Nearmap Privacy Policy, as amended from time to time,
and attached to this Agreement as Schedule 3 . The Licensee hereby consents
to those collections, uses, and disclosures.
11.2 To the maximum extent permitted by law, by entering into this Agreement, the
Licensee expressly consents to receiving general emails relating to product
updates, new products, or anything related to the usage of the product from
Nearmap, but prior written consent is required to receive by email direct
marketing communications from Nearmap.
11.3 By entering into this Agreement, the Licensee acknowledges that personal
information provided by the Licensee in the course of accessing Products
(including, without limitation, credit or debit card details provided by the Licensee
for the purpose of paying Nearmap) may be disclosed to and held by one or more
of Nearmap’s third party suppliers and partners (including, without limitation,
providers of payment processing services), and used by those third parties in
connection with the supply of Products. Nearmap will have no liability whatsoever
with respect to any personal information held by a third party in connection with
the supply of Products.
12. FORCE MAJEURE
12.1 Force Majeure Event If a party is unable to perform or is delayed in performing
an obligation under this Agreement (except for any obligation to pay money,
including Fees) because of an act of war, terrorism, hurricane, earthquake, other
act of God or of nature, strike or other labor dispute, riot or other act of civil
disorder, embargo, or other cause beyond the performing party’s reasonable
control (“Force Majeure Event”):
(a) that obligation is suspended but only so far and for so long as that party is
affected by the Force Majeure Event; and
(b) the affected party will not be responsible for any loss or expense suffered or
incurred by the other party, as a result of, and to the extent that, the affected
party is unable to perform, or is delayed in performing, its obligations under this
Agreement because of the Force Majeure Event.
12.2 Notice of Force Majeure Event If a Force Majeure Event occurs, the party
affected by the Force Majeure Event must:
(a) Promptly (when reasonably possible to do so) give the other party notice of the
Force Majeure Event and an estimate of the non-performance and delay;
(b) take all reasonable steps to overcome the effects of the Force Majeure Event;
and
(c)resume compliance as soon as practicable after the Force Majeure Event no
longer affects it.
13. CONFIDENTIALITY
13.1 Except as required by law, the Licensee must not use any Confidential
Information for any purpose not expressly permitted hereunder. The Licensee
will disclose Confidential Information only to its employees who have a need to
know, for purposes of this Agreement, and who are under a duty of confidentiality
no less restrictive than the Licensee’s duty hereunder. The Licensee will protect
Confidential Information from unauthorized use, access, or disclosure in the
same manner as it would protect its own confidential or proprietary information
of similar nature and with no less than reasonable care. Notwithstanding the
foregoing, the parties agree that certain information may be subject to the
Freedom of Information Act (“FOIA”) and such requests will be adm inistered
under Federal law.
14. NOTICES
14.1 All notices and consents will be in writing and will be considered delivered and
effective upon receipt (or when delivery is refused) when (a) personally delivered;
(b) sent by registered or certified mail (postage prepaid, return receipt requested);
(c) sent by nationally recognized private courier (with signature required and all
fees prepaid); or (d) sent by email with confirmation of transmission. Notices must
be sent to the Licensee at the address set forth in the Quote or relevant ordering
documentation (or if none is specified, the address to which Nearmap sends
invoices) and for Nearmap to 10897 South River Front Parkway, Suite 150, South
Jordan, UT 84095, USA, or at another address as a party may designate in writing.
15. TECHNOLOGY EXPORT
15.1 The Licensee shall not: (a) permit any third party to access or use the Product in
violation of any U.S. law or regulation; or (b) export any software provided by
Nearmap, or otherwise remove it from the United States, except in compliance with
all applicable U.S. laws and regulations. Without limiting the generality of the
foregoing, the Licensee shall not permit any third party to access or use the
Product in, or export such software to, a country subject to a United States
embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
16. NEARMAP NOW
16.1 Survey During the Term, the Licensee may request a survey of an area which is
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not covered (in its entirety or in part) by the Coverage Area (“Survey”). The
Licensee must provide a detailed description of the area that is to be covered by
the Survey and which is to be included in the Survey Specification. Completion of
the Survey may be subject to circumstances beyond the reasonable control of
Nearmap, such as weather conditions, air traffic control, FAA restrictions, or a
Force Majeure Event.
16.2 Delivery of Survey Subject to sections 12 and 16.1, Nearmap will deliver the
Survey to the Licensee by uploading the Survey to the Website within 6 months of
the completion of the Survey capture. Nearmap will notify the Licensee in writing
once the Survey has been uploaded to the Website.
16.3 Availability to other Nearmap customers Nearmap may, at its absolute
discretion, allow other customers of Nearmap to access the Survey on the
Website.
16.4 Other Products This Section 16 will not be applicable to the Licensee i f the
Licensee has not purchased a Survey.
17. MISCELLANEOUS TERMS
17.1 Reserved
17.2 Additional Terms and Conditions The Additional Terms and Conditions form
part of, and should be read in conjunction with, this Agreement.
17.3 Precedence of Documents This Agreement is comprised of:
(a) the Additional Terms and Conditions;
(b) the Quote;
(c)any Product-Specific Terms; and
(d) this products agreement.
The precedence of documents is set forth in FAR 52.212 -4(s). Amongst the
Nearmap documents alone, the order of precedence is as set forth in (a) through
(d) above.
17.4 Independent Contractors The parties are independent contractors and will so
represent themselves in all regards. Neither party is the agent of the other, and
neither may make commitments on the other’s behalf. The parties agree that
neither party’s employee or contractor is an employee of the other party.
17.5 Construction The parties agree that the terms of this Agreement result from
negotiations between them. This Agreement will not be construed in favor of or
against either party by reason for authorship.
17.6 Waiver Neither party will be deemed to have waived any of its rights under this
Agreement by lapse of time or by any statement or representation other than by
an authorized representative in an explicit written waiver. No waiver of a breach of
this Agreement will constitute a waiver of any other breach of this Agreement.
17.7 Severability If one or more of the terms of the Agreement are found to be invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of
the remaining terms will not be affected.
17.8 Amendments For revisions that will materially change the terms of the contract,
the revised Agreement must be incorporated into the contra ct using a bilateral
modification. A material change is (1) terms that change Government rights or
obligations; (2) terms that increase Government Prices; (3) terms that decrease
the overall level of service; or (4) terms that limit any other Government right
addressed elsewhere in this contract.
17.9 Assignment This Agreement shall not be assigned by either party without the prior
written consent of the other party which shall not be unreasonably withheld;
provided, however, that Nearmap may, upon written notice to the Licensee, assign
all of its rights under this Agreement to (i) a parent, subsidiary or Affiliate of
Nearmap, (ii) a purchaser of all or substantially all assets related to this Agreement,
or (iii) a third party participating in a merger, acquisit ion, sale of assets or other
corporate reorganization in which Nearmap is participating. Any attempt to assign
this Agreement in violation of this provision shall be void and of no effect. This
Agreement shall bind and inure to the benefit of the parties a nd their respective
successors and permitted assigns. This Agreement may be transferred or
assigned only in accordance with the procedures of FAR Part 42.12.
17.10 Entire Agreement This Agreement constitutes an addendum to a solicitation or
contract, as defined in Federal Acquisition Regulation 52.212-4(s).
17.11 Counterparts This Agreement may consist of a number of counterparts and, if
so, the counterparts taken together constitute one and the same instrument. This
Agreement is not binding on any party unless one or more counterparts have
been duly executed by, or on behalf of, Nearmap and the Licensee.
17.12 Language The parties have expressly agreed that this Agreement, and all
ancillary agreements, documents, or notices relating to the Agreement, be
drafted solely in the English language. Les parties aux présentes ont
expressément convenu que cet accord et toute autre convention, document ou
avis y afférent soient rédigés en anglais seulement.
17.13 Governing Law This Agreement is subject to and governed by the Contracts
Disputes Act of 1978, 41 U.S.C §§ 7101-7109, Federal Tort Claims Act, 28
U.S.C. §1346(b)), and GSAR 552.212 -4 Contract Terms and Conditions –
Commercial Items (Jan 2017) (Deviation – Feb 2007) (Deviation – Feb 2018).
The validity, interpretation and enforcement of this Agreement will be governed
by and construed in accordance with the Federal laws of the United States.
18. DEFINITIONS
In this Agreement:
Additional Terms and Conditions means the additional terms and conditions (if any)
as attached, referenced, or set forth herein.
Affiliate means, with respect to Nearmap, any entity that controls or is controlled by
Nearmap, or is under common control with Nearmap. For purposes of this definition, an
entity shall be deemed to control anothe r entity if it owns or controls, directly or indirectly,
at least 50% of the voting equity of another entity (or other comparable interest for an
entity other than a corporation).
Allowance means any usage allowance the Licensee is permitted to use and/or drawn
down against for any Licensed Non-Government Products.
API means application programming interface.
Authorized User means the number of persons specified in the “Seats” section of the
Quote or relevant ordering documentation, who have been granted access to the
Product by the Licensee pursuant to the term and conditions of this Agreement and
the GSA Schedule Contract, and who either has been assigned a unique Nearmap
user login credential or whom the Licensee has assigned a user login creden tial that
enables access to the Product.
Business Days means any day other than a Saturday, a Sunday or a recognized
public holiday in Utah, USA.
Claim means any claim, cost (including legal costs on a solicitor and client basis),
damages, debt, expense, tax, liability, loss, obligation, allegation, suit, action, demand,
cause of action, proceeding, or judgment of any kind, however calculated or caused,
and whether direct or indirect, consequential, incidental or economic.
Commencement Date means (a) for New Subscription Quotes, the date as specified
in the “Contract Commencement” section or the “Subscription Start Date” section of the
Quote, or the equivalent in the relevant ordering documentation, whichever is later, or
(b) for Renewal Quotes or Amendment Quotes, the date as specified in the
“Subscription Start Date” section or its equivalent.
Commercial Purpose means to distribute, transfer, sell, sublicense, or pass
possession of any Products (in whole or in part) for th e purpose of direct commercial
benefit or gain by the Licensee.
Confidential Information means the terms of this Agreement, the pricing, and any
other information relating to the business, finances, strategy, methods, processes,
products, metadata, services or other affairs of Nearmap or its representatives or related
bodies corporate which is disclosed to, learnt by or accessed by the Licensee in
connection with the Agreement, whether before or after the Licensee entered into the
Agreement, whether orally, electronically, in writing or otherwise, but excludes
information which:
(a) is or becomes part of the public domain otherwise than as a consequence of a
breach of the Agreement;
(b) the Licensee has obtained from a source other than Nearmap which source is
entitled to disclose it; or
(c)the Licensee has developed or acquired independently before the date of the
Agreement, and can provide reasonable proof.
Content means any content made available by or on behalf of Nearmap to the Licensee
in connection with the License, whether or not through the Website or an API.
Coverage Area means the area specified in the “Coverage” section of the Quote or
relevant ordering documentation, or more generally, the area for which Nearmap has
available Products, which may cover part or all of an area covered by a Survey under
section 16.
“Customer” means the Ordering Activity itself and shall not apply to, nor bind (1) the
individual(s) who utilize the Software/Service/Site on Contractor’s behalf or (2) any
individual users who happen to be employed by, or otherwise associated with, Ordering
Activity.
Derivative Work means any new work created by or for the Licensee that incorporates,
embeds, or includes all or part of a Nearmap Product or Content.
Fair Use Policy means the policy as attached as Schedule 1.
Fault means any fault, failure, error, or defect which prevents the Licensee from
accessing the Products, other than where access is prevented due to a planned outage,
because of an unforeseeable event beyond Nearmap’s re asonable control or any
conduct or activity undertaken by the Licensee, the Licensee’s employees, agents, or
mandataries.
Fees means the fees specified in the Quote, payable by the Licensee for the License.
Government Products means any Products specified that are described as “Nearmap
Vertical for Government” and “Nearmap Oblique for Government” and includes any
other Products offered by Nearmap for government customers only where use of its
License is connected to the Fair Use policy.
Intellectual Property Rights includes all industrial and intellectual property rights
throughout the world, including copyright, moral rights, trademarks, patents, rights to
protect confidential information, and any other similar rights.
License means the license granted in section 1.1.
Licensee means the person or entity specified in the “Customer Name” section of the
Quote or the relevant ordering documentation. Licensee, or “Customer” for purposes of
the Agreement, means an “Ordering Activity” (an entity entitled to order under GSA
Schedule Contracts as defined in GSA Order OGP 4800.2I, as may be revised from
time to time). For clarity, “Customer” or “Licensee” shall mean the Ordering Activity itself
and shall not apply to, nor bind (1) the individual(s) who utilize the Software/Service/Site
on Contractor’s behalf or (2) any individual users who happen to be employed by, or
otherwise associated with, Ordering Activity. The Contractor will look solely to Ordering
Activity to enforce any violation or breach o f this Agreement by such individuals, subject
to Federal law.
Nearmap means Nearmap US, Inc. and may also be referred to as “Contractor” in the
GSA Schedule Contract.
Non-Government Products means all Products that do not fall under the definition of
Government Products.
Operational Hours means 9am to 5pm PT.
Periodic Allowance or Periodic Data Allowance means the data allowance specified
as part of the Schedule Price List.
Periodic Allowance Section means section 1.6 (or its equivalent).
Permitted Purpose means the use of Products by the Licensee for internal purposes in
the Licensee’s ordinary business, and at all times excludes any:
(a) Commercial Purpose;
(b) Unlawful Purpose;
(c)Integration, or attempt to integrate, the Product in an internal system of the
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Licensee or of a third party; and
(d) Redistribution or copying of files, images, or photographs, or making such files,
images, or photographs available in any medium or manner that is contained in
the Products to any third party (except as expressly permitted under this
Agreement).
Privacy Policy means the Nearmap Privacy Policy attached as Schedule 3.
Products means any Nearmap products specified in the Quote (and further described on
the Website) and, if applicable, the Survey. For the avoidance of doubt, Products include
Content.
Product-Specific Terms means additional terms and conditions that apply to certain
Products attached as Schedule 2.
Quote the document produced after the Licensee places an initial order for the
Product(s), requests any changes to its’ License, or renews its License. Items
referenced on the Quote may be further referenced in the relevant ordering
documentation as required under the GSA Schedule Contract.
Schedule means a schedule to this Agreement, where such schedule has been
incorporated by reference to form part of this Agreement.
Schedule Contract or GSA Schedule Contract means the contract under which
Nearmap may participate as a contractor under the US General Services
Administration, or “GSA.”
Subscription Period means the period stated in the relevant ordering documentation
or the Quote.
Schedule Price List means the approved pricing for the Products listed as part of
the Schedule Contract.
Subscription Start Date means the date specified in the “Subscription Start Date”
section of the Quote, or as otherwise listed in the relevant ordering documentation.
Survey has the meaning (if any) given to that section 16.1.
Survey Fee means the fee for the Survey as agreed in writing between Nearmap and
the Licensee.
Survey Specification means the survey specification referred to in the Quote.
Term means the subscription term specified in the Quote or the relevant ordering
documentation, commencing on the Commencement Date. Where a Subscription
Period is stated, “Term” means the Subscription Period.
Third Party Providers means third party providers of products and services to
Nearmap.
Unlawful Purpose means any unlawful purpose, including but not limited to stalking,
harassing or intimidating any person or engaging in misleading or deceptive conduct.
Website means all pages and sub-sites available within the nearmap.com domain.
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