SITEMAP AUTHORIZED USER LICENSE AGREEMENT
This Authorized User License Agreement (“AULA”) governs your use of the SiteMap Software (“Software”), including all technical manuals, user manuals, and other materials provided to you (“you” or “your”) regardless of whether in printed, electronic, or other form that contain details about the Software or its use or specifications (collectively, the “Documentation”) by Ground Penetrating Radar Systems, LLC (“Licensor” or “GPRS”).
BY CLICKING A HYPERLINK THAT NAVIGATES YOU TO THE SITEMAP PLATFORM, YOU HEREBY REPRESENT AND WARRANT THAT:
(A) YOU ARE AT LEAST EIGHTEEN YEARS OF AGE AND HAVE THE LEGAL CAPACITY TO ENTER INTO A CONTRACT;
(B) YOU HAVE READ AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AULA;
(C) TO THE EXTENT THAT THE LICENSING PARTY (“LICENSEE”) IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, AUTHORITY, AND POWER TO ENTER INTO THIS AULA ON BEHALF OF LICENSEE AND TO BIND LICENSEE TO THESE TERMS; AND
(D) TO THE EXTENT THAT LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY THAT HAS ENTERED INTO A SOFTWARE AS A SERVICE AGREEMENT (“SAAS AGREEMENT”) WITH GPRS, YOU ARE A DULY AUTHORIZED USER TO ACCESS AND USE THE SOFTWARE PURSUANT TO THE AGREEMENT.
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AULA, YOU MUST NOT DOWNLOAD, ACCESS, INSTALL, OR OTHERWISE USE THE SOFTWARE, INCLUDING THE SOFTWARE DOCUMENTATION.
THIS AULA CONTAINS AN ARBITRATION CLAUSE THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, WAIVER OF CLASS ACTIONS, AND WAIVER OF JURY TRIAL. PLEASE CAREFULLY REVIEW SECTIONS 9-11 OF THIS AULA.
1. Definitions. Capitalized terms shall have the meaning provided in the SaaS Agreement, if applicable, or as defined herein:
a. “Authorized User” means the Licensee who has agreed to the terms of this AULA or, in the event there is an applicable SaaS Agreement, those employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased thereunder.
b. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence as it relates to any patent, copyright, trademark, trade secret, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
c. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
d. “Term” has the meaning set forth in: (i) Section 7 for free accounts, or (ii) as defined in the SaaS Agreement for paid accounts.
e. “Third Party” means any Person other than Licensee or Licensor.
f. Any other terms not included in this Section 1, but otherwise defined in the text of the AULA shall have the meaning ascribed thereto.
2. License Grant. Subject to your compliance with all applicable terms and conditions, Licensor grants you a limited, non-exclusive, non-transferable, and non-sublicensable license to use the Software in accordance with this AULA, the SaaS Agreement (if applicable), and the Software’s Documentation solely for Licensee’s internal business purposes. The license granted herein will terminate on the earlier to occur of: (a) expiration or termination of the SaaS Agreement between Licensor and Licensee; or (b) you no longer being an Authorized User to use the Software. If Licensee is granted access to the Software under a free account, Licensee acknowledges and agrees that the license is being provided to Licensee without charge and, therefore, the Software will include restrictions on its use with no direct customer support available to Licensee. At any time, Licensee may opt into a paid account with Licensor under a separate agreement. The free account license will terminate upon expiration of the Term as defined in Section 7.
3. Collection and Use of Your Information. Your use of the Software is subject to Licensor’s Privacy Policy, which is available at and incorporated by reference herein. All information that Licensor collects through or in connection with this Software is governed by the Privacy Policy, in addition to the terms of this AULA and applicable SaaS Agreement. Your acceptance of this AULA and your use of the Software shall constitute your acceptance to the terms and conditions of the Privacy Policy.
4. Use Restrictions. You shall not, directly or indirectly:
a. Use (including make any copies of) the Software or Documentation beyond the scope of the license granted herein;
b. Provide any other Person that is not an Authorized User, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;
c. Modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
d. Upload any file or content into the Software that contains harmful, obscene, offensive, pornographic, hateful, abusive, or otherwise objectionable content or materials as determined in GPRS’ sole discretion;
e. Combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
f. Reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
g. Upload any file to the Software that you do not have all rights, title, and interest to;
h. Remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
i. Copy the Software, in whole or in part;
j. Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, software as a service, cloud, or other technology or service;
k. Use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including power generation systems, safety-critical applications, including medical or life-support system, vehicle operation application, or any police, fire, or other safety response systems;
l. Use the Software or Documentation in violation of any law, regulation, or rule; or
m. Use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.
5. Geographic Restrictions. The Software is made available for use within the United States of America. You hereby acknowledge and agree that you may not be able to access all or some of the features of the Software outside of the United States and that access and use of such Software may not be legal by certain persons or in certain countries. Your use of the Software outside of the United States is entirely at your own risk and you are responsible for compliance with all such local laws.
6. Compliance Measures. The Software contains technological copy protection and other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited hereunder. You shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
7. Terms of Access and Use Under a Free Account. Licensees’ access to and use of the Software and Documentation under a free account are further governed by the following terms. Paid account Licensees are subject to and governed by comparable terms as provided in their respective SaaS Agreements.
b. Intellectual Property Rights. You acknowledge and agree that the Software and Documentation are provided under license, and not sold, to you. You do not acquire any ownership interest in the Software or Documentation under this AULA, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this AULA. All rights, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software are and shall remain with Licensor and its licensors and service providers. You shall use your best efforts to safeguard all Software from infringement, misappropriation, theft, misuse, or unauthorized access. All rights not expressly granted hereunder are reserved to Licensor, its licensors and service providers.
c. Term and Termination. This AULA and the License granted hereunder shall commence upon your acceptance of these terms and conditions and will continue until terminated as set forth in this Section 7 (the “Term”).
i. Licensor may terminate this AULA, effective upon written notice to Licensee, if Licensee breaches this AULA and the breach is incapable of being cured, or is capable of being cured, but remains uncured within thirty (30) days after Licensor provides written notice thereof to Licensee.
ii. Licensee may terminate this AULA immediately by ceasing to use and destroying any Documentation that Licensee may have in its possession, custody, or control.
iii. Licensor may terminate this AULA, effective immediately, if Licensor stops supporting or discontinues the Software.
iv. Upon the earlier to occur of expiration or termination of this AULA, Licensee shall immediately discontinue its use of the Software and Documentation. Licensee shall have thirty (30) days from the date of expiration or termination of this AULA, as applicable, to download and retrieve any files that Licensee may have uploaded to the Software, including photographs, blueprints, documents, and other materials that are not owned by Licensor (collectively, “Licensee Content”). At the end of thirty (30) days following the earlier to occur of expiration or termination of this AULA, Licensor shall have the option to delete and destroy all Licensee Content uploaded to the Software.
d. Warranty Disclaimer. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATE SAND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY BE IMPLIED OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR TRADE PRACTICE. LICENSOR PROVIDES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND THAT THE SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, EQUIPMENT, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
e. Indemnification. Licensee shall fully indemnify and hold Licensor, including its affiliates, licensors, and service providers and their respective officers, directors, employees, agents, successors and assigns from and against any and all claims, lawsuits, causes of actions, and other proceedings and pay all losses, damages, liabilities, judgements, orders, penalties, fines, interest, fees and expenses (including attorneys fees and court costs) arising out of or in connection with (i) any breach of this AULA by Licensee; (ii) any violation of applicable law by Licensee; or (iii) negligence or willful misconduct by Licensee in connection with Licensee’s use of the Software.
f. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, COMPENSATORY, OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AULA. UNDER NO CIRCUMSTANCES WILL LICENSOR OR ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE; LOSS OF REVENUES OR PROFITS; DELAYS; BUSINESS INTERRUPTION; LOSS OF SERVICES, BUSINESS, BUSINESS OPPORTUNITY, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; SYSTEM INCOMPATIBILITY; OR BREACHES IN SYSTEM SECURITY. IN NO EVENT WILL LICENSOR’S, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS’ TOTAL AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY LICENSEE TO LICENSOR PURSUANT TO THIS AULA FOR THIS LICENSE IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS IN THIS SECTION 7 SHALL APPLY REGARDLESS OF WHETHER THE LEGAL CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR SOME OTHER THEORY OF LIABILITY AND REGARDLESS OF WHETHER OR NOT THE LICENSOR WAS WARNED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Export Regulation. The Software may be subject to United States export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.
9. Dispute Resolution; Arbitration.
a. If a dispute arises out of or relates to this AULA, the parties shall attempt in good faith to resolve any dispute through informal negotiation to settle the dispute. The parties agree to engage in an initial dispute resolution period (“Initial Dispute Resolution”), which shall begin upon receipt of written notice from the party raising the dispute. The notice shall include sufficient information describing the nature of the claim or dispute and the underlying facts. The Initial Dispute Resolution period will include a conference between the parties to attempt to informally resolve the dispute in good faith.
b. If the parties do not reach an agreement following the Initial Dispute Resolution period, the parties agree that any claim, controversy, matter of interpretation, or proceeding arising out of or relating to this AULA shall be settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules. The arbitrator shall determine the scope and enforceability of this arbitration agreement, including whether a Dispute is subject to arbitration. The arbitrator has authority to decide all issues of validity, enforceability, or arbitrability. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The location of any such arbitration shall take place before a single arbitrator in Toledo, Ohio and be conducted in English. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
c. Notwithstanding any term to the contrary, if twenty-five (25) or more demands for arbitration are filed relating to the same or similar subject matter and sharing common issues of law or fact, and counsel for the parties submitting the demands are the same or coordinated, you and we agree that this will constitute a mass arbitration (“Mass Arbitration”). You and GPRS agree a Mass Arbitration shall be administered by AAA in accordance with its Mass Arbitration Supplementary Rules. The parties agree to cooperate in good faith to implement the Mass Arbitration process to minimize the time, filing fees, and costs, which include, but are not limited to (i) the appointment of a Process Arbitrator to manage the Mass Arbitration and to rule on proposals by the parties for the efficient and cost-effective management of the Mass Arbitration to the extent the parties cannot agree; and (ii) the adoption of an expedited calendar for the arbitration proceedings.
10. Class and Collective Action Waiver. To the fullest extent permitted by applicable law, the parties hereto expressly waive any right that either may have to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, class arbitration, or any other proceeding in which any part acts or proposes to act in a representative capacity.
11. Waiver of Jury Trial. Each party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action, proceeding, cause of action or counterclaim arising out of or relating to this AULA, including any exhibits, schedules, and appendices attached to this AULA, or the transactions contemplated hereby. Each party certifies and acknowledges that (a) no representative of the other party has represented, expressly or otherwise, that the other party would not seek to enforce the foregoing waiver in the event of a legal action, (b) it has considered the implications of this waiver, (c) it makes this waiver knowingly and voluntarily, and (d) it has decided to enter into this AULA in consideration of, among other things, the mutual waivers and certifications in this section.
12. Notice. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth herein (or to such other address as may be designated by a party from time to time in accordance with this Section:
If to Licensor: Ground Penetrating Radar Systems, Inc.
1901 Indian Wood Cir
Maumee, Ohio 43537
support@sitemap.com
With a copy to: Austin K. Irving
Shumaker, Loop & Kendrick, LLP
1000 Jackson Street
Toledo, Ohio 43604
airving@shumaker.com
13. Severability. If any provision of this AULA is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this AULA will continue in full force and effect.
14. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this AULA and the Agreement or any applicable purchase or other terms, the terms of this AULA shall govern with respect to usage of the Software.
15. Governing Law. This AULA shall be governed by and construed in accordance with the laws of the State of Ohio, without regard for any choice or conflict of law provision or rule that would result in the application of any jurisdiction’s laws other than Ohio.
16. Entire Agreement. This AULA, applicable SaaS Agreement, and our Privacy Policy, constitute the entire agreement between you and Licensor and supersedes all prior and contemporaneous understandings, agreements, and negotiations, whether written, oral, or otherwise, with respect to the Software and Documentation.