Version A 01-08-19
2. LIMITED LICENSE. Subject to the terms and conditions of this Agreement, Licensor hereby grants Company a temporary, limited, royalty free, non-exclusive, non- transferable, non-sublicensable, revocable, beta-test license to the Data during the Trial Period solely for the purpose of internal evaluation in a test environment and otherwise in accordance with the terms and conditions of this Agreement. The Data is provided for internal review only and Company may not authorize another to use the Data for any commercial, resale, distribution or other purpose. For further clarity, Company shall not: (i) sell, rent, lease, sublicense, distribute, transfer or otherwise provide the Data or any portions or copies thereof to any third party or enable any third party to do any of those acts; (ii) copy, adapt, translate, reverse engineer, or create derivative works therefrom (other than as expressly authorized herein); (iii) use the Data to improve the accuracy of any other dataset; or (iv) leverage the Data for the purpose of machine learning. UNLESS OTHERWISE AGREED BY A SEPARATE WRITING, COMPANY AGREES AND UNDERSTANDS THAT IT IS NOT AUTHORIZED TO DISTRIBUTE OR OTHERWISE USE THE DATA.
3. FURTHER OBLIGATIONS. If Company creates any written reports or generates performance analytics with respect to the Data (“Test Analytics”) such Test Analytics must be restricted under these terms of license and kept confidential in accordance with section 4 below. Company agrees that it is responsible for any acts or omissions of its agents or permitted subcontractors that access or use any of the Data and Company will ensure that such agents and permitted subcontractors comply with the terms of this Agreement.
4. OWNERSHIP. As between the Parties, Licensor shall own and retain all right, title and interest in and to the Data, together with all intellectual property rights therein and thereto. Licensor reserves all rights not expressly granted hereunder. Nothing contained in this Agreement shall be construed as transferring any right, title, or interest in the Data except as expressly set forth herein.
5. CONFIDENTIALITY. Data shall constitute confidential information belonging to Licensor, and accordingly, Company shall not disclose the Data to any third party, except with Licensor's prior written consent and as permitted under the next sentence. Company may disclose the Data to its employees, consultants or other agents who have a bona fide need to know the Data for evaluation under the limited license rights herein, provided, that each such employee, consultant or agent is bound by confidentiality obligations at least as protective as those set forth herein. Company shall protect the confidentiality the Data in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than with reasonable care). Company shall promptly notify Licensor if it becomes aware of any actual or suspected breach of confidentiality of the Data. If Company is compelled by law or legal process to disclose the Data, it shall provide Licensor with prompt prior notice of such compelled disclosure (to the extent legally permitted) and provide reasonable assistance, at Licensor’s expense, if Licensor wishes to contest the proposed disclosure. Company acknowledges and agrees that any disclosure or use or breach of the Data would result in irreparable injury to Licensor for which money damages would be inadequate and in such event, Licensor shall have the right, in addition to other remedies available at law and in equity, to seek immediate injunctive relief. Upon any termination of this Agreement, to the extent that any Data is retained, Company shall continue to maintain the confidentiality of the Data.
6. DISCLAIMER. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, AND LICENSOR EXPRESSLY DISCLAIMS (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, (II) ANY WARRANTY REGARDING CORRECTNESS, QUANTITY, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS OR CONTINUED AVAILABILITY OF THE DATA. UNDER NO CIRCUMSTANCES SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES, FOR LOSS OF PROFITS, GOODWILL USE, OR OTHER INTANGIBLE LOSSES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE DATA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM COMPANY’S ACCESS TO AND USE OF THE DATA; (II) ANY ERRORS OR OMISSIONS IN, OR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF THE DATA. IN NO EVENT SHALL LICENSOR, ITS DIRECTORS, EMPLOYEES, AFFILIATES OR LICENSORS BE LIABLE TO COMPANY FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS ARISING UNDER OR RELATING TO THIS AGREEMENT FOR MORE THAN THE LESSER OF: THE AGGREGATE AMOUNT COMPANY HAS PAID TO LICENSOR HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM OR $1000. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
7. GENERAL. This Agreement shall be governed by the laws of Ontario. Neither Party may assign this Agreement to any third party without the prior written consent of the other Party. Nothing in this Agreement is intended to confer any rights or remedies on any person or entity that is not a party to this Agreement. No modification of this Agreement or waiver of the terms and conditions hereof shall be binding upon the Parties unless approved in writing by each of the Parties. Except as otherwise provided herein, the failure of either Party to enforce at any time any provision of this Agreement shall not be constituted to be a present or future waiver of such provision, nor in any way affect the ability of either Party to enforce each and every such provision thereafter. If any provision of this Agreement is held invalid or unenforceable at law, such provision will be deemed stricken from this Agreement and the remainder of this Agreement will continue in effect and be valid and enforceable to the fullest extent permitted by law. This Agreement represents the entire agreement between the Parties and supersedes any and all prior understanding, agreements, or representations by or among the Parties, written or oral, related to the subject matter hereof. This Agreement may be executed in counterparts with the same force and effect as if each of the signatories had executed the same instrument.
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