IMPORTANT NOTICE: READ THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE ACCESSING OR USING THE PRODUCTS (AS DEFINED BELOW). BY ACCESSING OR USING THE PRODUCTS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A BUSINESS ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” MEANS SUCH ENTITY.
IF YOU DO NOT AGREE TO THE TERMS SET OUT IN THIS AGREEMENT, DO NOT USE THE PRODUCTS, AND IMMEDIATELY CONTACT YOUR SUPPLIER.
Subject to Your compliance with the terms of this Agreement, MapD Technologies, Inc., or a subsidiary or affiliate (“MapD”) grants You a limited, non-exclusive, non-transferable, non-sublicensable license to use MapD® brand Products. Products may include software and documentation (together, the “Software”). The Products are licensed for Your internal business purposes only.
This Agreement applies to any MapD® Software that is made available, at any time, for use in connection with the Products, whether as original Software, installed in third-party hardware, or made available separately as an update, upgrade, or otherwise. All such Software is also included in the term “Products.” You may only use any such Software in conjunction with the Products, or as otherwise authorized by MapD.
Software may be provided to You for local installation or as a service accessible through a browser or other remote access interface. In either case, or both, the terms of this Agreement apply. All Software will be delivered by electronic means unless otherwise specified on the applicable Ordering Documents (defined below). Software will be deemed delivered when it is first made available for Your access and use or download (“Delivery”).
You must not remove any copyright, proprietary rights or confidentiality notice included with the Products, and must reproduce all such notices on any copies of the Products that You make. You have no rights in or to source code or design specifications for the Products. You may not translate, adapt, reverse-engineer, decompile, create derivative works, disassemble or modify the Products in whole or in part for any purpose. You will not publish, rent, lease, license, sell, sub-license, assign, transmit, or use the Products to provide services to, or process or store the data of, third parties, whether as a service bureau, an application service provider, or otherwise. You must not transfer the Products or any copies thereof to any third party. You will comply with all applicable laws and regulations relating to the use of the Products. Except as specifically permitted in this Agreement, You may not use the Products for the benefit of any other person or entity, or permit any third party to make such use. Except as expressly provided in this Agreement, You have no other rights or licenses with respect to the Products or other intellectual property rights of MapD. MapD reserves all rights not expressly granted herein. You understand that MapD may deploy the Products with license key or other technology that prohibits use of the Products beyond the applicable license term or license parameters.
The Products are proprietary to MapD and its licensors, protected by copyright and other intellectual property laws. You have only the right to use the Products and not any rights, express or implied, in the Products other than those specified in this Agreement.
The Products contain or are provided with certain components subject to third party or “open source” licenses (“Third-Party Products”). Attributions and terms relating to the Third-Party Products components, along with copies of any applicable source code, are available upon request. (See Section 15 – Contact – below.) The terms of this Agreement may not apply to certain Third-Party Products. You obtain only a limited license right to the Software and Third-Party Products and, notwithstanding of any use of the words “purchase,” “sale” or like terms in connection with this Agreement, no ownership rights are being conveyed to You under this Agreement or otherwise.
If You provide any comments, criticisms, or other feedback relating to the Products to MapD (collectively, “Feedback”), such Feedback will be deemed non-confidential and non-proprietary information for purposes of this Agreement. MapD will have no obligation to You or any third party with respect to such Feedback, and will be free to use and exploit such Feedback in any form or manner and for any purpose and without payment of any consideration.
You must permit MapD to audit Your use of the Products upon reasonable notice. In connection with such audit, You must: (a) provide assistance and access to information, at no cost to MapD, and (b) permit MapD to report the audit results to licensors.
If You order and pay for it, or purchase a Product that includes it, MapD will provide remote support services ("Support") by telephone and email only to assist with basic operation of the Software. Support is not a substitute for training, and will be made available during MapD normal business hours only. MapD may limit the number of authorized Support contacts who may contact MapD for Support.
If specified and agreed to in “Ordering Documents” (MapD order forms or similar documents executed by MapD or an authorized agent), MapD may provide certain services (“Services,” not including Support). In the absence of a specific written agreement governing the Services, the terms set out in the next paragraph will apply.
The fee for the Services is as set forth in the Ordering Documents. In addition, You are responsible for all travel and living expenses (“Expenses”) incurred by MapD personnel while traveling to and from Your facilities to perform Services. Unless otherwise agreed in the Ordering Documents, Fees for Services and reasonable Expenses will be billed monthly, or after the conclusion of the Services. You must use reasonable efforts to: (i) provide MapD’s employees, agents and contractors (collectively, “Personnel”) with such information, co-operation and support as may reasonably be required for MapD to provide the Services; (ii) permit MapD’s Personnel to access such of Your systems, networks, premises and property as is necessary to perform the Services and ensure that MapD is granted sufficient authorization to use any third party systems, programs, or networks necessary to provide the Trial; (iii) ensure that all necessary consents, authorizations and licenses have been obtained so that MapD’s provision of the Services does not breach any statutory or regulatory provisions (of whatever jurisdiction) relating to the use of and access to personal data; and (iv) ensure the health and safety of MapD’s Personnel engaged in providing the Services at Your premises.
Unless otherwise specified in the Ordering Documents, You must pay the fees set out in the Ordering Documents (the “Fees”) within 30 days of Delivery of the Software, and You may be invoiced for the Fees upon execution of this Agreement without the need for a purchase order. Unless otherwise specified on the Ordering Documents, the Fees are for a term license of one year only. MapD may increase the Fees for any applicable subsequent subscription periods upon written notice to You.
Interest on all overdue amounts payable by You will be charged at the rate of 1½% per month (or part thereof) or the maximum legal rate permitted, whichever is less, until paid. The Fees do not include taxes. You are responsible for, and agree to pay, all applicable sales, use, excise, and value added taxes, or taxes of a similar nature, related to the Fees, excepting only taxes based on MapD’s and its authorized agents’ net income.
Unless otherwise specified in Ordering Documents, all Products are Trial Products, as defined below.
MapD may, in its discretion, provide access to “pre-release” or “trial” Products (however designated, collectively, “Trial Products”). You may only use Trial Products on a non-production basis for no more than 14 days, and MapD may terminate Your license to use such Trial Products at any time, upon written notice. In addition, the following Sections of this Agreement do not apply to Trial Products: 7 (WARRANTY) and 11 (INDEMNITY).
The Products may transmit diagnostic data relating to the Products, including, without limitation, system performance, capacity usage, system faults, and other information of a similar nature (collectively, “Diagnostic Data”) to MapD. Diagnostic Data may be sent on a periodic basis and upon a failure or fault in the Products. You may turn off the feature that sends Diagnostic Data automatically to MapD. In addition to the automatic transmission of Diagnostic Data, You may choose to provide additional data files (“Core Dumps”) to MapD’s support organization for technical analysis. In all cases, MapD will treat the contents of Diagnostic Data and Core Dumps as Your confidential information, and will take reasonable steps to safeguard same, using at least the degree of care it applies to its own Confidential Information. MapD may use the Diagnostic Data and Core Dumps to provide Support, troubleshoot the Products and to enhance, improve, and develop its products. MapD will only disclose Diagnostic Data, if at all, to third parties: (a) to MapD partners, under nondisclosure obligations, to assist with specific Support issues, or (b) in an anonymous and aggregated form that does not link such information to You or to any identifiable person.
For 90 days from the date of initial receipt of non-Trial Products (the “Warranty Period”), the Products will perform substantially as described in the documentation provided in or with the Products (the “Product Warranty”).
You must promptly notify MapD when You become aware of any breach of the Product Warranty. MapD’s exclusive obligations and Your exclusive remedies in relation to any reproducible breach of such Product Warranty are limited to the following, at MapD’s option: (a) repair of the Products; (b) replacement of the Products, or any relevant part, with other products of substantially equivalent functionality; or (c) if neither of the foregoing are commercially practicable, then at MapD’s sole discretion, return of the Products and a refund of the applicable fees paid in relation to the Products. MapD will not be liable pursuant to the Product Warranty for any issues relating to or arising because of: (i) the use or operation of the Products other than in accordance with this Agreement and the applicable MapD documentation provided in or with the Products; (ii) alterations, modifications, repairs or any other work done on or in relation to the Products by anyone other than MapD or its authorized agents; (iii) incorrect configuration of or problems with Your equipment, operating environment or other products; or (iv) any other act or omission (whether accidental or deliberate) or other cause outside MapD’s control. You must provide written notice of any non-compliance that is discovered during the applicable Warranty Period no later than 10 days from the end of the applicable Warranty Period. In no event may You bring any claim arising out of the Product Warranty more than 1 year after the date on which the alleged breach of warranty occurred.
THE PRODUCT WARRANTY PROVIDES SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR FROM COUNTRY TO COUNTRY.
The Products (including any software source code and object code portions thereof), any related benchmark or performance tests relating to the Products, and information regarding the Products, and MapD’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, is considered MapD’s “Confidential Information.” You may use the Confidential Information only for use of the Products pursuant to this Agreement, and You must protect the Confidential Information from unauthorized dissemination and use with the same degree of care that You use to protect Your own like information and, in any event, with no less than a reasonable degree of care.
The Products are subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Products. These laws include restrictions on destinations, end users and end use.
None of the Products or underlying information or technology may be accessed or otherwise exported or re-exported (a) into any country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s List of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By accessing or using the Products, You are agreeing to the foregoing and You are representing and warranting that You are not located in, under the control of, or a national or resident of any such country or on any such list.
The Products are not designed or intended for use in connection with hazardous environments requiring fail-safe performance, such as the operation of nuclear facilities, aircraft navigation or communications systems, life support systems, and weapons systems, in which the failure of software could lead to personal injury and death (“High Risk Activities”). You may not use the Products for High Risk Activities.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE PRODUCTS ARE DISTRIBUTED “AS IS” AND MAPD DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MAPD DOES NOT WARRANT THAT THE PRODUCTS WILL MEET YOUR REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS FREE.
IN NO EVENT WILL MAPD BE LIABLE FOR DAMAGES OF ANY KIND INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (WHICH INCLUDE WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS) WHETHER BASED ON CONTRACT, TORT, WARRANTY OR OTHER LEGAL THEORY, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS, SUPPORT, OR ANY SERVICES, EVEN IF MAPD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MAPD’S LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID FOR THE PRODUCTS OR, AS APPLICABLE, SERVICES, IN THE 12 MONTHS PRIOR TO THE CLAIM AT ISSUE.
THE LIMITATIONS ON DAMAGES IN THIS SECTION 10 APPLY TO: (A) ANY CLAIM RELATED TO THE PRODUCTS, SUPPORT, AND RELATED SERVICES OR THIRD-PARTY PROGRAMS, AND (B) CLAIMS FOR BREACH OF CONTRACT, BREACH OF WARRANTY, GUARANTEE OR CONDITION, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORT TO THE EXTENT PERMITTED BY APPLICABLE LAW. THEY ALSO APPLY EVEN IF REPAIR, REPLACEMENT OR A REFUND FOR THE PRODUCTS DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES, OR IF MAPD KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
If You have paid for a non-Trial license to use the Products, MapD will indemnify, defend and hold You harmless against any damages, settlements, liabilities, expenses, losses and costs, including reasonable legal fees, incurred by You in any action, suit, dispute or claim (collectively, “Claim”) brought against You by a third party alleging that Your use of the Products in accordance with this Agreement infringes any copyrights or patents (together, “Intellectual Property Rights”) of a third party, provided that: (a) You notify MapD in writing promptly after You become aware of any such Claim; (b) You make no admissions in respect of such Claim and comply with all reasonable MapD instructions relating to the Claim; (c) You allow MapD, at MapD’s expense, to assume full control of the Claim, with an obligation to keep You informed about the Claim; and (d) You provide all reasonable assistance and information required for the defense of such Claim. MapD will have no liability or obligation to You with respect to any alleged infringement of Intellectual Property Rights based upon (i) Your use of the Products in combination with devices, products or other Products not provided or authorized by MapD, (ii) use of the Products in an application or environment for which such Products was not designed or contemplated, (iii) modifications, alterations or enhancements of the Products not created by or for MapD, or (iv) any claims of infringement of Intellectual Property Rights in which You or any affiliate of Yours has an interest. You must indemnify and hold MapD harmless from all costs, damages and expenses (including reasonable attorneys’ fees) arising from any claim enumerated in clauses (i) through (iv) above.
The indemnification remedies set forth in this Section 11 constitute Your exclusive remedies, and MapD’s exclusive liability, with respect to the claims described in this Section 11.
This Agreement commences when You click “I AGREE” (or earlier, by any written agreement to be bound by this Agreement, or by any use of the Products), and will remain in effect until terminated in accordance with the terms indicated on the Ordering Documents.
Your rights to use the Products may be limited by time or other constraints, all as set out in the Ordering Documents. In the event either party (the "breaching party") is in material breach of this Agreement, the other party (the "non-breaching party") may terminate this Agreement as set out below. The non-breaching party will give the breaching party notice specifying the nature of the breach, and, if the breaching party fails to cure the breach within 30 days of receipt of such notice, the non-breaching party may thereafter terminate this Agreement effective immediately upon giving written notice of same.
Upon any termination of this Agreement, the license granted by MapD in Section 1 will terminate immediately and You may no longer use the Products. No termination will relieve either party of any obligation to pay amounts due as a result of transactions occurring prior to the effective date of termination. Except as specifically provided in this Agreement, MapD will in no event refund fees paid for the Products.
The provisions of Sections 2, 4, 8, 9, 12, 13, and 14 will survive any termination of this Agreement.
This Agreement is governed by the laws of the State of California, excluding (i) that body of law known as conflicts of law, (ii) the Uniform Computer Information Transactions Act, and (iii) the United Nations Convention on Contracts for the Sale of Goods, and each party hereto irrevocably submits to the exclusive jurisdiction of the state courts located in California state courts of San Francisco County, California (or, if there is federal jurisdiction, the United Stated District Court for the Northern District of California) for the determination of any action arising out of or in connection with this Agreement. Notwithstanding the foregoing, MapD may commence appropriate legal action in any jurisdiction to protect its Products or Confidential Information.
This Agreement is the complete and exclusive statement of the agreement between You and MapD relating to the use of the Products, and, as applicable, the Services. Any purchase order or other document issued by You in connection with Your purchase of the Products, the Services, or purchase of a license for the Products (in each case, a “Purchase Order”) shall be placed pursuant to, and subject to, this Agreement. No terms contained in a Purchase Order issued in connection with a purchase of Products, Support, or Services will be binding on MapD.
Notwithstanding the foregoing paragraph, if You have entered into a separate written agreement signed by MapD for use of the Products, Support, or Services, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement.
No amendment or modification to this Agreement, nor any waiver of any rights hereunder, shall be effective unless assented to in writing by both parties. The waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default. The parties to this Agreement 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 pursuant to this Agreement.
You may not assign Your rights or delegate Your obligations under this Agreement without the prior written consent of MapD. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the successors and assigns of the parties hereto.
Neither party shall be liable for the failure to perform its obligations under this Agreement due to events beyond such party's reasonable control including, but not limited to, strikes, riots, wars, fire, acts of nature or acts in compliance with any applicable law, regulation or order (whether valid or invalid) of any court or governmental body.
If You are licensing Products on behalf of the U.S. Government, they are classified as “Commercial Computer Products” and “Commercial Computer Documentation” developed at private expense, contain confidential information and trade secrets of MapD and its licensors, and are subject to “Restricted Rights” as that term is defined in the Federal Acquisition Regulations. Contractor/Manufacturer is: MapD (see Contact – Section 15, below).
Each party will obtain the other party’s written consent prior to any other disclosure or any publication, presentation, public announcement, or press release concerning the terms and conditions of this Agreement. However, You agree that MapD may refer to You or Your company/organization as a customer in promotional materials to prospective customers and may issue a press release announcing You as a customer of MapD upon the parties’ execution of this Agreement. You further agree that You will not unreasonably withhold Your consent to (a) MapD using Your corporate name and logo (pursuant to trademark usage guidelines You may provide) in other marketing, advertising, and promotional materials to identify You as a customer, and (b) serving as a public customer reference for MapD, which may include a joint press release, a case study and the like.
MAPD™ and the MapD logo are either registered trademarks or trademarks of MapD Technologies, Inc. in the United States and other countries.
All notices to be given in connection with this Agreement will be effective upon receipt, must be made in writing and will be sufficiently given if personally delivered or if sent by courier or certified mail, return receipt requested, addressed to MapD as set out below, and to You at the address provided in the Ordering Documents whereby You purchased or obtained the Products.
Either party may by such notice to the other change its notice address.
MapD Notice Address:MapD Technologies, Inc.