Loading...
HomeMy WebLinkAboutC-9859-1 - Government Quotation and License AgreementVEXCEL M AGING Licensee: Address for Notice: Email for Notice: Name of Key Contact: Email of Key Contact: Phone of Key Contact: PRODUCT: GOVERNMENT QUOTATION AND LICENSE AGREEMENT Reference No.: 20250128-083912288 Quote Created: 1/30/2025 Quote Expires: 3/31/2025 City of Newport Beach, CA Vexcel Imaging US, Inc. Address for Notice: 12503 E Euclid Dr, Unit 20 City Managers Office -IT Centennial, CO 80111 100 Civic Center Drive Attention: Legal Dept. Newport Beach, CA RStadlman@newportbeachca.gov Email for Notice legal@vexcelgroup.com Ryan Stadlman Name of Key Contact: Mark Christian RStadlman@newportbeachca.gov Email of Key Contact: mark.christian@vexcelgroup.com +1.949.644.3189 Phone of Key Contact: +1.415.450.0190 PRODUCT SKU QUANTITY 7.5cm True Ortho-RGB&NIR (perpetual license) T04-OP-US 150 square kilometers 7.5cm True Ortho-RGB (subscription) T03R-SS-US 150 square kilometers 7.5cm True Ortho-CIR (subscription) T03C-SS-US 150 square kilometers 7.5cm Refresh Ortho -RGB (subscription) R03R-SS-US 150 square kilometers 7.5cm Refresh Ortho -CIR (subscription) R03C-SS-US 150 square kilometers 7.5cm Nadir & Oblique -Compressed (subscription) ONC-SS-US 150 square kilometers 15/20cm Ortho -RGB (subscription) W03R-SS-US 150 square kilometers 15/20cm Ortho -CIR (subscription) W03R-OS-US 150 square kilometers Elements: Building Footprints (subscription) EBF-SS-US EBF-OS-US 35,000 properties Gray -Sky Imagery -All Available (subscription) GSA -SS -US GSA -OS -US All gray sky -imagery within the AOI captured during the Term Elements: Damage Assessments -All Available (subscription) EDAA-SS-US EDAA-OS-US All damaged properties within the AOI following a gray -sky event. SPECIAL LICENSE RIGHTS: LICENSE TERM Public facing website Sublicensees permitted on terms set forth in Appendix D. Total Annual Fee: 1 $21,875 DETAILS OF AOI: City of Newport Beach, CA (approximately 150 square kilometers) ACCESS: Vexcel API, Viewer, ArcGIS for all imagery Product. WMTS for current imagery only (obliques cannot be accessed through WMTS). Building Footprints only available via the Viewer. Damage Assessments available via the Vexcel API and the Vexcel Viewer. On -premises delivery for 4-band True Ortho. TERM: Three years. For multi -year terms, Licensee's obligation to make payments during any fiscal year of Licensee that comes afterthe current fiscal year shall -be subject to availability and appropriation of funds. -When funds (state -and/or federal) are not appropriated or otherwise made available for the acquisition of aerial imagery and/or analytics in a subsequent fiscal year, Licensee shall have the right to terminate this Agreement with 60-day written notice to Vexcel. For the avoidance of doubt, Licensee's termination right only arises if no funds are made available; Licensee may not procure aerial imagery and/or analytics derived from aerial imagery from a separate third party and terminate this Agreement for lack of funds in the same fiscal year. If Licensee elects such termination right, then any perpetual retention rights in the Product will be forfeited and the Product will be subject to the retention rights set forth in Section 1.3(a) of the EULA. This quotation ("Quote"), together with the attached End User License Agreement (including its attached appendices) ("EULA," and collectively with the Quote, the "Agreement") constitutes an offer by Vexcel Imaging US, Inc., a Delaware corporation ("Vexcel"), to license the products set forth above to the party identified as "Licensee" above ("Licensee," and together with Vexcel, the "Parties") on the terms set forth in this Agreement. Acceptance of the offer is expressly limited to the terms of the Agreement, and any additional or conflicting terms that Licensee purports to add upon acceptance (including, without limitation, terms set forth in any purchase order) are rejected. Any amendment to the Agreement must be in writing and must be signed by authorized representatives of both Licensee and Vexcel. The offer is valid through the expiration date noted above unless revised or revoked earlier by Vexcel or rejected by Licensee. Vexcel may revise the terms of Agreement or revoke this Quote at any time prior to Licensee indicating its acceptance of the offer by signing this Agreement. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date set forth below LICENSEE City of Newport Beach, CA By: Name: race K. Leung Title: City Manager Date: `7' 1 i I 11,-� APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 3 By: 0ton C. Harp y Attorney A ATTEST: Date: 4 / 10 /2ozS By: r LjAla& I. Brown City Clerk SEW Pp� u r c,��FOAH�P Vexcel Imaging US, Inc. By: Signed in Counterpart Name: Rob Agee Title: Chief Operating Officer Date: TERM: Three years. For multi -year terms, Licensee's obligation to make payments during any fiscal year of Licensee that comes after the current fiscal year shall be subject to availability and appropriation of funds. When funds (state and/or federal) are not appropriated or otherwise made available for the acquisition of aerial imagery and/or analytics in a subsequent fiscal year, Licensee shall have the right to terminate this Agreement with 60-day written notice to Vexcel. For the avoidance of doubt, Licensee's termination right only arises if no funds are made available; Licensee may not procure aerial imagery and/or analytics derived from aerial imagery from a separate third party and terminate this Agreement for lack of funds in the same fiscal year. If Licensee elects such termination right, then any perpetual retention rights in the Product will be forfeited and the Product will be subject to the retention rights set forth in Section 1.3(a) of the EULA. This quotation ("Quote"), together with the attached End User License Agreement (including its attached appendices) ("EULA," and collectively with the Quote, the "Agreement") constitutes an offer by Vexcel Imaging US, Inc., a Delaware corporation ("Vexcel" ), to license the products set forth above to the party identified as "Licensee" above ("Licensee," and together with Vexcel, the "Parties") on the terms set forth in this Agreement. Acceptance of the offer is expressly limited to the terms of the Agreement, and any additional or conflicting terms that Licensee purports to add upon acceptance (including, without limitation, terms set forth in any purchase order) are rejected. Any amendment to the Agreement must be in writing and must be signed by authorized representatives of both Licensee and Vexcel. The offer is valid through the expiration date noted above unless revised or revoked earlier by Vexcel or rejected by Licensee. Vexcel may revise the terms of Agreement or revoke this Quote at any time prior to Licensee indicating its acceptance of the offer by signing this Agreement. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date set forth below LICENSEE City of Newport Beach, CA By: Name: Title: Date: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: Aaron C. Harp City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk Vexcel Imaging US, Inc. By: Name: Rob Agee Title: Chief Operating Officer Date: Zo�S 2 L.' END USER LICENSE AGREEMENT 1. LICENSE TERMS 1.1. Standard License Grant. Vexcel grants Licensee a non-exclusive, non -transferable right to use, reproduce, and modify the Product (including, without limitation, through the creation of Derivatives) for Licensee's Internal Use. 1.2. Additional License Terms. If set forth in the Quote, Vexcel grants Licensee the right to display the Product on a public facing website in a non-downloadable format. Such website may include manual measurement tools for area, distance, etc., with respect to orthomosaic imagery only (i.e., not obliques). 1.3. Retention of Product During and After the Term. (a) For "Subscription " Product. Licensee may store any Product identified in the Quote as "subscription" in its internal database for the duration of the Term, but must delete all such Product and any Derivatives created from such Product upon termination of the Term, other than as part of regular computer back-ups for the period such records are normally archived so long as Licensee does not access such Product unless required to pursuant to an external audit or legal proceedings. (b) For "Perpetual " Product. Subject to the provisions set forth under "Term," Licensee may retain indefinitely any Product identified in the Quote as "perpetual," and any Derivatives made from such Product. 2. ACCESS. Licensee may access the Product as set forth in the Quote. 3. FEES AND PAYMENT. Vexcel will invoice the Annual Fee following the Effective Date, and, if the Term is for longer than a year, following each anniversary of the Effective Date during the Term. All amounts due under this Agreement shall be invoiced and paid in U.S. dollars net 30 days from date of invoice. 4. DEFINED TERMS. Capitalized terms have the meanings ascribed to them in Appendix B. =1i APPENDIX A TERMS AND CONDITIONS Licensee's Use of the Product is subject to the following additional terms and conditions. Capitalized terms used but not defined herein have the meaning ascribed to them in Appendix B. 1. LICENSE RESTRICTIONS 1.1. Limitations on Use. Licensee shall not, and shall not permit its personnel or any third party to do any of the following, except and solely to the extent expressly permitted by Section 1 of the EULA: (i) copy, reproduce, modify, market, grant access to, display, distribute, sell, rent, lease, sublicense, assign, or commercially exploit the Product or any derivatives of the Product; or (ii) remove, bypass, or circumvent any electronic or other forms of protection included on or with the Product. 1.2. No Adverse Impact on Images. Licensee shall not knowingly modify the Product that is displayed publicly in such a way that adversely affects any aspects of Product quality or accuracy, including but not limited to non- uniform scale resizing, skewing, adjusting brightness, contrast, or saturation, introducing compression artifacts, or oversampling pixels. 1.3. Artificial Intelligence Programs. If, in connection with permitted uses under any License, Licensee inputs any Product or Derivatives into any type of artificial intelligence program that is "trained" on information submitted, Licensee may only do so in a private instance of such program, such that none of the Product or Derivatives are available for such programs to "train" for purposes of other instances that are available to third parties. 2. ACCESS AND SUPPORT 2.1. Access. (a) If the Quote provides that Licensee may access the Product through the Software (or a subset of the Software), then Vexcel grants Licensee a non-exclusive, non -transferable right to use the Software (or such identified subset) during the Term. Access to the Product through the Software may be impacted by the following: (i) any services, hardware, or software provided by Licensee or by a third party, including issues resulting from inadequate bandwidth or related to Licensee's or third -party software or services, such as cloud platform services; (ii) Licensee's use of the Product after Vexcel advised Licensee to modify Licensee's use of the Product, if Licensee did not modify their use as advised; (iii) Licensee's unauthorized action or lack of action when required, or unauthorized action or lack of action when required by Licensee's employees, agents, contractors, or vendors, or anyone gaining access to the Software by means of Licensee's passwords or equipment, or otherwise resulting from Licensee's failure to follow appropriate security practices; (iv) Licensee's failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or Licensee engaging in excessive use or attempting to use the Product in a manner inconsistent with the features and functionality of the Product (for example, attempts to perform operations that are not supported) or inconsistent with Vexcel's published guidance; (v) faulty input, instructions, or arguments (for example, requests to access files that do not exist); or 0 (vi) Licensee's attempts to perform operations that resulted in Vexcel's throttling of suspected abusive behavior. (b) If Licensee is accessing the Product through the Software in such a way that Licensee's consumption of imagery tiles results in excessive use, as reasonably determined by Vexcel, Vexcel will notify Licensee, and Licensee shall work with Vexcel to adjust Licensee's consumption methods to reduce egress costs. Vexcel may charge Licensee excessive -uses fees after such notification. 2.2. Access Security. Licensee must keep its users' login credentials, including without limitation usernames and passwords, secure and confidential and must use commercially reasonable efforts to prevent unauthorized access to or use of its account. Licensee must promptly notify Vexcel of any unauthorized access or use of the Product. 2.3. Licensee Trainingand Su_p oo . Vexcel will provide training and onboarding assistance to Licensee staff. Vexcel shall provide Licensee and its personnel with reasonable materials for the Product and the Vexcel API via its standard documentation available on Vexcel's portal and any other means made generally available to licensees. 3. OWNERSHIP, ATTRIBUTION, AND SALES AND MARKETING 3.1. Ownership. Vexcel owns all right, title, and interest in the Product, all materials used by Vexcel to provide the Product, all copies thereof and customizations and modifications thereto, and the Vexcel Marks (collectively, the "Vexcel Materials"). Except for the License, nothing herein transfers or conveys to Licensee any right, title, or interest in the Vexcel Materials. Licensee shall not take any action with respect to Vexcel's intellectual property that is inconsistent with the foregoing. 3.2. Trademarks. Licensee shall not take any action inconsistent with Vexcel's exclusive ownership of the Vexcel trademarks and trade names authorized by Vexcel (the "Vexcel Marks") and shall cooperate, at Vexcel's request and expense, in any action (including the conduct of legal proceedings) that Vexcel deems necessary or desirable to establish or preserve Vexcel's exclusive rights in and to the Vexcel Marks. Licensee shall not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Vexcel Marks or in such a way as to create combination marks with the Vexcel Marks. 3.3. Attribution Requirements. Licensee shall not delete, alter, cover, or distort any copyright, trademark, or other proprietary -rights notice placed by Vexcel on or in the Product. Licensee shall also ensure that any Product publicly displayed contain the following copyright notice: © [YEAR] Vexcel Imaging US, Inc. 3.4. Sales and Marketing. Neither Party may issue any press release regarding the other Party without the written approval of the other Party (which in the case of Vexcel, must be an Authorized Representative), and Licensee may not issue any press release regarding the Product without the written approval of an Authorized Representative of Vexcel. 4. FEES AND PAYMENTS 4.1. Fees. Licensee shall pay Vexcel the Fees. If Licensee consumes Vexcel product through the Vexcel API or otherwise that Licensee has not licensed under this Agreement, then (a) Licensee shall pay Vexcel Vexcel's current price for such product; and (b) the other terms of the Agreement (or, at the discretion of Vexcel more restrictive terms) shall apply to such product. 4.2. Late Payments. Licensee shall pay 1.5% monthly interest on all late payments. If Licensee is late with payments, or Vexcel has reasonable cause to believe Licensee may not be able to pay, Vexcel may (a) stop its performance of its support and other obligations under the Agreement until assurances of payment satisfactory to Vexcel are received or payment is received; and (b) demand prepayment for access to the Product. Vexcel may terminate the Agreement if Licensee -fails to make any payment when due under the Agreement and fails to cure such failure within ten days of receiving notice thereof in writing from Vexcel. 4.3. Audits. During the Term and for three years following the Term, Licensee shall maintain complete and accurate records with respect to Licensee's activities pursuant to the Agreement. Vexcel has the right, during normal business hours and upon at least five -business -day notice, to have a reputable independent accounting firm selected by Vexcel, which is subject to reasonable confidentiality obligations, audit Licensee's records (along with software processes and code used to generate those records) relating to Licensee's use of the Product to verify that Licensee has complied with the terms and conditions of the Agreement. Vexcel shall fund the audit, but if the audit reveals that Licensee failed to comply with the Agreement, including by way of underpayment of the Fees by 5% or more, then Licensee shall reimburse Vexcel for the reasonable costs of such audit. Licensee shall promptly correct any compliance deficiencies identified by the audit and pay Vexcel any amounts shown by any such audit to be owing, plus 1.5% monthly interest. 4.4. Taxes. Licensee is responsible for paying any tax, levy, or similar governmental charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, sale, or use of the Product, or otherwise arising out of Licensee exercise of its rights under the Agreement, including without limitation all sales, use, excise, import or export, value added, governmental permit fees, license fees, and customs. 5. COVENANTS 5.1. Compliance with Laws. The Parties shall comply with all applicable laws and regulations in performing their obligations under the Agreement, including all applicable employment, tax, data -privacy, export -control, and environmental laws and regulations; provided that Vexcel's compliance with applicable data -privacy laws and regulations is conditioned upon Licensee's compliance with Section 5.4 of these Additional Terms (No PH). The Parties shall not export, re-export, sell, resell, or transfer any third -party data or any export -controlled commodity, technical data, or software (a) in violation of any law, regulation, order, policy, or other limitation imposed by the United States (including the United States Export Administration regulations and the Canadian Export and Import Permits Act) or any other government authority with jurisdiction; (b) to any country in violation of any applicable embargo; or (c) to any country for which an export license or other governmental approval is required at the time of export, without first obtaining all necessary licenses or equivalent. Without limiting the foregoing, the Parties shall comply with the United States Foreign Corrupt Practices Act and any anti -bribery or similar law or regulation in any jurisdiction where business is conducted or services performed in connection with the Agreement. 5.2. Compliance with Terms of Google Maps/Google Earth for Viewer Use. The Viewer may use geocoding services accessed from Google Maps/Google Earth. If Licensee accesses the Product through the Viewer, Licensee shall comply with the Google Maps/Google Earth Additional Terms of Service posted at https://www.google.com/intl/en_us/help/terms_maps.html (the "Google Maps Terms") when using any Google geocoding services. If there is any inconsistency between the Agreement and the Google-Maps Terms on the other hand, the Google-Maps Terms will control. 5.3. FCRA. Licensee acknowledges and agrees that the Product is not a consumer report (as defined in the Fair Credit Reporting Act ("FCRA")) and may not be used for any purpose permitted by the FCRA. 5.4. No PH. Licensee shall not share any PII with Vexcel when accessing or using the Product in any manner. Vexcel does not accept PH associated with Licensee's licensing of the Product and hereby rejects any submissions of PH. 5.5. No Reverse -Engineering. Licensee shall not reverse engineer, decompile, or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how, or other information from the executable code portions of the Software, except to the extent allowed by applicable law. 6. WARRANTIES 6.1. Warranties by Vexcel. Vexcel warrants to Licensee that Vexcel either owns or has procured the right to license all intellectual property rights necessary for Vexcel to license the Product (excluding any open -source content) to Licensee; provided, however, that any sample code that Vexcel provides to Licensee to support Licensee's use of the Software is not included in this warranty and is instead subject to the warranty disclaimers set forth in Section 6.4 of these Additional Terms (Disclaimer). 6.2. Warranties by Licensee. Licensee warrants that it owns or has the full right and authority to license any materials that it intends to integrate with the Product, and that such integration will not violate any third -party intellectual property rights. Licensee warrants that the Derivatives will not violate any third -party intellectual property rights. 6.3. Warranties by Both Parties. Each Party warrants to the other Party that (a) it has full rights, power, and authority to undertake the obligations and duties set forth in the Agreement or otherwise necessary for the grant of rights and licenses effected; and (b) it has not entered into any other agreements, nor will it enter into any other agreements, that would render it incapable of satisfactorily performing its obligations and duties hereunder. 6.4. Disclaimer. THE WARRANTIES SET FORTH IN SECTION 6.1 ARE THE EXCLUSIVE WARRANTIES MADE BY VEXCEL WITH RESPECT TO THE PRODUCT. EXCEPT AS SET FORTH IN SECTION 6.1 WITH RESPECT TO THE PRODUCT, THE PRODUCT AND THE SOFTWARE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, AND VEXCEL DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, RELATING TO THE PRODUCT AND THE SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON - INFRINGEMENT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATION, CONTENT, OR RESULTS, OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. VEXCEL DOES NOT WARRANT THAT (a) THE PRODUCT OR THE SOFTWARE WILL MEET THE BUSINESS REQUIREMENTS OF LICENSEE; (b) THE PRODUCT OR THE SOFTWARE WILL BE ACCESSIBLE, AVAILABLE, ACCURATE, CURRENT, OR COMPLETE, OR THAT THE OPERATION OF THE PRODUCT OR THE SOFTWARE WILL BE COMPLETELY SECURE, ERROR -FREE, OR UNINTERRUPTED; OR (c) ALL ERRORS WILL BE CORRECTED. VEXCEL SHALL HAVE NO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS IN ACCESS TO OR USE OF THE PRODUCT OR SOFTWARE RESULTING FROM USE OF THE INTERNET AND/OR TELECOMMUNICATIONS CONNECTIONS OR EQUIPMENT. THE SUPPLIERS OF VEXCEL MAKE NO DIRECT WARRANTY OF ANY KIND TO LICENSEE UNDER THE AGREEMENT. 7. CONFIDENTIAL INFORMATION 7.1. Obli atg ions. Each Party ("Recipient") acknowledges that confidential information (including trade secrets and confidential technical, financial, and business information) of the other Party ("Discloser") may be disclosed pursuant to the Agreement (collectively, "Confidential Information"). For the avoidance of doubt, (a) the Parties' Confidential Information includes the terms of the Agreement; and (b) Vexcel's Confidential Information includes Vexcel's product roadmap and Vexcel's customer lists. Recipient shall use no less than the same means it uses to protect its similar confidential and proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information of Discloser. Recipient shall not disclose or use the Confidential Information of Discloser except (x) for the purpose of fulfilling its obligations or exercising its rights under the Agreement (including notifying customers of Vexcel that Licensee has breached the terms of the Agreement); or (y) to Recipient's consultants, lenders, bankers, investors, auditors, and attorneys, in each case under an obligation of confidentiality. Recipient shall promptly report to Discloser any unauthorized use or disclosure of Discloser's Confidential Information that Recipient becomes aware of and provide reasonable assistance to Discloser in the 7 investigation and prosecution of any such unauthorized use or disclosure. The obligations of confidentiality will continue until the later of the end of the Term or two years from the Effective Date, whichever is later. 7.2. Exclusions. Information will not be subject to the restrictions set forth above to the extent that such information (a) is already known by Recipient without an obligation of confidentiality; (b) is publicly known or becomes publicly known through no unauthorized act of Recipient; (c) is rightfully received from a third party without any obligation of confidentiality; (d) is independently developed by Recipient without use of the Confidential Information of the Discloser; or (e) is required to be disclosed pursuant to a requirement of a governmental agency or law (provided that, if permitted, Recipient provides Discloser with notice of such requirement prior to any such disclosure). 7.3. Responsibility for Third Parties. Recipient shall, and shall cause its employees, contractors, and consultants who have access to Confidential Information of Discloser (collectively, the "Additional Recipient Parties"), to safeguard and maintain the Confidential Information of Discloser in strict confidence. Recipient shall not knowingly, and shall ensure that the Additional Recipient Parties do not knowingly, disclose, provide, or make such Confidential Information available to any third party except to Recipient's employees, contractors, and consultants who have a need to access such Confidential Information to enable Recipient to fulfill its obligations or exercise its rights under the Agreement. 8. INDEMNIFICATION 8.1. Indemnification of Vexcel. Unless not permitted pursuant to the law governing Licensee, Licensee shall indemnify, defend, and hold harmless Vexcel and its Affiliates, employees, officers, directors, and shareholders from any third -party claim that arises from (a "Vexcel Claim") (a) an allegation that any Derivative (except to the extent the claim is based on the Product on a stand-alone basis), or any products or services provided by Licensee or a third party that are bundled, sold, or used with the Product under the Agreement, infringe any intellectual property rights of a third party; (b) use of the Product or Derivatives; or (c) any failure by Licensee or any user it allows to access the Product to comply with all applicable laws and regulations. Licensee shall pay reasonable attorneys' fees incurred by Vexcel in connection with any Vexcel Claim. Licensee will not have any duties under this section arising out of the conduct of the users of its public -facing website provided that, before providing access to the website, Licensee requires such users to agree that they will not download the Product and that use of the Product is for Internal Use only. 8.2. Indemnification of Licensee. Vexcel shall indemnify, defend, and hold harmless, Licensee and its employees, officers, directors, and shareholders from any third -party claim that arises from (a "Licensee Claim") an allegation that the Product infringes any copyright rights of such third party. Vexcel shall pay reasonable attorneys' fees incurred by Licensee in connection with any Licensee Claim. This indemnification obligation shall not apply to any claims arising from the modification of the Product by Licensee where the infringement would not have occurred but for the modification. 8.3. Indemnification Procedures. Each Party's indemnification obligations set forth in this section are subject to the conditions that the indemnified party (the "Indemnitee") must (a) notify the indemnifying party (the "Indemnitor") promptly in writing of such claim, provided that Indemnitee's failure to so notify shall not relieve Indemnitor of its obligations except to the extent that Indemnitor is actually prejudiced by such failure to give prompt notice; (b) fully cooperate with Indemnitor, at Indemnitor's expense, in the defense or settlement of such claim; and (c) give the Indemnitor sole control of the defense and settlement of any claim so long as such settlement is either (i) approved in writing by the Indemnitee (and in the case of Vexcel, by an Authorized Representative); or (ii)(A) is for monetary damages only; (B) does not involve any finding or determination of wrongdoing or violation of law by the Indemnitee; and (C) provides for a full, unconditional, and irrevocable release of the Indemnitee in connection with such claim. The indemnity provided under this section shall be the sole and exclusive remedy for any third -party claim. 9. LIABILITY 9.1. Licensee's Liability. (a) Limitation of Licensee's Liability. Vexcel may recover, at Vexcel's election, one of the following forms of damages for a breach of the Agreement (to the exclusion of any other forms of damages, whether based on contract, statute, or tort): (i) documentable damages that arise directly from Licensee's breach of the Agreement, subject to a maximum liability equal to (A) three times the 12-Month Fee Amount for a breach of the License; and (B) the 12- Month Fee Amount for any other breach of the Agreement. (ii) in the event of a breach of the License only, liquidated damages as contemplated by the statutory damages provision of the Copyright Act, 17 U.S. Code §504(c), subject to a cap equal to three times the 12- Month Fee Amount. For purposes of determining breach of the License and the calculation of liquidated damages, an image is infringed when it is improperly downloaded, improperly distributed, or used in the preparation of derivative works after being improperly downloaded. This liquidated -damages provision applies whether or not Vexcel has filed for a copyright registration in connection with such image. Licensee shall reimburse Vexcel for its reasonable attorneys' fees and expenses and for investigation fees incurred by Vexcel in enforcing its rights under the Agreement. The Parties acknowledge that this calculation of damages is reasonable as proportionate to the potential losses arising from the unauthorized use of the Product in light of the proprietary intellectual property that Vexcel has developed to maintain a competitive business advantage and the complexity of determining the monetary harm caused by misappropriation of that intellectual property through a License breach. For the avoidance of doubt, the foregoing limitations do not apply to Licensee's obligations under Section 4 of these Additional Terms (Fees and Payments). (a) Licensee's Liability for Acts of Certain Third Parties. Licensee is liable for the acts and/or omissions of its Affiliates, employees, consultants, and any third -party users who access or use the Product directly or indirectly through Licensee. Any act or omission by any such third party that would constitute a breach of the Agreement if such third party were a party to the Agreement shall be deemed a breach of the Agreement by Licensee. Licensee will not have any liability arising out of the conduct of the users of its public -facing website provided that, before providing access to the website, Licensee requires such users to agree that they will not download the Product and that use of the Product is for Internal Use only. 9.2. Vexcel's Liability. (a) Limitation of Vexcel's Liability. If Vexcel breaches the Agreement for any reason other than pursuant to Section 6.1 of these Additional Terms (Warranties by Vexcel) (for which the exclusive remedy is set forth therein), Licensee may recover documentable damages that arise directly from Vexcel's breach of the Agreement (to the exclusion of all other damages, whether based on contract, statute, or tort), subject to a maximum liability equal to the 12-Month Fee Amount. (b) Vexcel's Liability for Acts of Certain Third Parties. Vexcel is liable for the acts and/or omissions of its Affiliates, employees, and consultants. Any act or omission by any such third party that would constitute a breach of the Agreement if such third party were a party to the Agreement shall be deemed a breach of the Agreement by Vexcel. 10. TERM AND TERMINATION 10.1. Termination. This Agreement may be terminated in advance of the Term: (a) by Vexcel pursuant to Section 4.2 of these Additional Terms (Late Payments); (b) by either Party if the other Party materially breaches any of its obligations under the Agreement and fails to cure such breach or provide the other Party with an acceptable plan for curing such breach within 30 days of receipt by the breaching Party of written notice specifying the breach; or (c) by either Party if the other Party (i) becomes insolvent or unable to pay its debts as they mature; (ii) makes an assignment for the benefit of its creditors; or (iii) seeks relief, or proceedings are commenced against the other Party or on its behalf, under any bankruptcy, insolvency, or debtors' relief law and such proceedings have not been vacated or set aside within 60 days from the date of commencement thereof. 10.2. Effect of Termination. (a) Cross Default. If Vexcel terminates this Agreement under Section 10.1 of these Additional Terms, Vexcel may suspend or terminate any rights Licensee may have to use Vexcel product under any other agreements. (b) Treatment of Confidential Information. Upon termination of this Agreement, either Party may request that the Recipient destroy or return its Confidential Information. 10.3. Survival. Provisions of the Agreement requiring performance or fulfillment after the termination of the Agreement survive such termination. Without limiting the generality of the foregoing sentence, the provisions of the Agreement relating to ownership, Confidential Information, warranty disclaimer, and limits of liability shall survive the termination of the Agreement. 11. GENERAL 11.1. Entire Agreement; Amendments; Waiver. The Agreement sets forth the entire understanding and agreement of the Parties and supersedes any oral or written agreements or understandings between the Parties as to the subject matter of the Agreement including, without limitation, any click -through agreement located on Vexcel's website, any terms in any purchase order or acknowledgment provided by Licensee, and any confidentiality or non -disclosure agreement executed between the Parties prior to the Effective Date. The Agreement may only be changed by a written agreement signed by both Parties. The waiver of a breach of any provision of the Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. 11.2. Non -Exclusive. The relationship established by the Agreement is non-exclusive and Vexcel may market, advertise, promote, sell, and distribute any Vexcel product on a stand-alone basis or as incorporated or bundled with other products or services, to any third party, including prospective or existing customers of Licensee. 11.3. No Partnership. The Agreement shall not be construed to establish any form of partnership, agency, or other joint venture between Vexcel and Licensee. Each Party shall act as an independent contractor and not as an agent of the other Party. 11.4. Force Maj eure. If the performance of any obligation under the Agreement is prevented, restricted, or interfered with by reason of tornado, hurricane, storm, fire, flood, earthquake, explosion, pandemic, or other casualty or accident or act of God; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, power, telecommunication services, equipment or software from suppliers, war or other violence; any law, order proclamation, regulation, ordinance, demand, or requirement of any governmental authority (other than the Licensee or another governmental entity under the Licensee's control, unless such action was required due to another force majeure event as described herein); or any other act or condition whatsoever beyond the reasonable control of the affected Party, the Party so affected will be excused from such performance to the extent of such prevention, restriction, or interference; provided, however, that the Party so affected shall take reasonable steps to avoid or remove such cause of non-performance and shall resume performance hereunder whenever such causes are removed. 10 11.5. Injunctive Relief. Any material breach of the Agreement by either Party may cause irreparable injury and monetary damages may not be a sufficient remedy. Each Party is entitled to equitable relief, including injunctive relief and specific performance, in the event of a breach, and the breaching Party waives the defense that there is an adequate remedy at law. The above will not be construed to limit the remedies available to any Party. 11.6. Cumulative Remedies. Except as otherwise set forth in the Agreement, all rights and remedies provided in the Agreement are cumulative and not exclusive. The exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity or otherwise, in the Agreement or any other agreement between the Parties. 11.7. Governing Law. Any disputes arising out of this Agreement shall be governed by the laws of the state of the United States in which the Licensee is located, without giving effect to its conflict of law rules. 11.8. Assignment. Neither Party may assign nor transfer, by operation of law or otherwise, the Agreement or any of its rights under the Agreement to any third party without the other Party's prior written consent (in the case of Vexcel, such consent to be provided by an Authorized Representative) unless such party is a Permitted Assignee. Any attempted assignment or transfer in violation of the foregoing will be null and void. The Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns and shall not confer any rights or remedies upon any person or entity not a party hereto. 11.9. Key Contact; Notice. Information for each Party's key contact is set forth in the Quote and may be updated by either Party by providing written notice. Any notice under the Agreement must be in writing and delivered by personal delivery, overnight courier, confirmed e-mail, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one day after deposit with an overnight courier, five days after deposit in the mail, or upon confirmation of receipt of email. 11.10. No Presumption Against Drafter. In executing this Agreement, each Party acknowledges that it has had the opportunity to seek the advice of independent counsel and that it has read and understood all the terms and conditions of the Agreement. The Agreement will not be construed against either Party by reason of the drafting or preparation of the Agreement. 11.11. Section Headings. The headings or captions used in the Agreement are for reference purposes only and are not intended to be used or relied upon in interpreting or enforcing the Agreement. 11.12. Severability. To the extent that any provision, portion, or extent of the Agreement is deemed to be invalid, illegal, or unenforceable, such provision, portion, or extent shall be severed and deleted or limited to give effect to the intent of the Parties insofar as possible, and the remainder of the Agreement shall remain binding upon the Parties. 11.13. Counterparts. This agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 11 S�. APPENDIX B DEFINED TERMS "12-Month Fee Amount" means (a) the highest amount of fees paid or payable in any 12-month period during the Term; or (b) if less than 12 months have elapsed before the event that created the breach, then the fees paid or payable for such shorter period (inclusive of the event giving rise to the breach), extrapolated for a full 12- month period. "Additional Recipient Parties" has the meaning set forth in Section 7.3 of the Additional Terms. "Additional Terms" means the Terms and Conditions set forth in Appendix A. "Affiliate" means an entity that Controls, is Controlled by, or is Controlled by an entity that Controls a Party. "Agreement" has the meaning set forth in the Quote. "Annual Fee" means the amount set forth as "Total Annual Fee" in the Quote. "Authorized Representative" means the Chief Executive Officer, Chief Financial Officer, or Chief Operating Officer of Vexcel. "Commercial Purpose" means redistribution, retransmission, or publication for the benefit of a third party, regardless of whether it is done in exchange for a fee or other consideration, which may include, without limitation: (a) advertising; (b) use in marketing and promotional materials and services; (c) use in any materials or services for which fees are received; and (d) use in any book, news publication, or journal. "Confidential Information" has the meaning set forth in Section 7.1 of the Additional Terms. "Control" means, directly or indirectly, the power to direct or cause the direction of the management and policies an entity, whether through the ownership of voting securities, by contract, or otherwise. "Derivatives" means works that are created by analyzing the imagery Product and extracting features and attributes from the Product, specifically excluding any portion of the images or pixels themselves. Terms. "Discloser" has the meaning set forth in Section 7.1 of the Additional Terms. "Effective Date" means the date of the last signature on the Quote. "EULA" has the meaning set forth in the Quote. "FCRA" has the meaning set forth in Section 5.3 of the Additional Terms. "Fees" means the Annual Fee and any additional fees incurred pursuant to Section 4.1 of the Additional "Google-Maps Terms" has the meaning set forth in Section 5.2 of the Additional Terms. "Indemnitee" has the meaning set forth in Section 8.3 of the Additional Terms. "Indemnitor" has the meaning set forth in Section 8.3 of the Additional Terms. "Internal Use" means internal business purposes and not for any Commercial Purpose. 12 "License" means the license set forth in Section 1 of the EULA and any additional license grants provided under "Special License Rights" in the Quote. "Licensee" has the meaning set forth in the Quote. "Licensee Claim" has the meaning set forth in Section 8.2 of the Additional Terms. "Parties" has the meaning set forth in the Quote. "Permitted Assignee" means (a) an Affiliate; or (b) any successor to a Party's business or assets, whether by merger, sale of assets, sale of stock, reorganization, or otherwise. -'TIT' means informationthat�e use oo istinguish or trace ari individual's identity, -either alone -Or ---- when combined with other personal or identifying information that is linked or linkable to a specific individual. "Product" means Vexcel's off -the -shelf digital imagery, metadata, and analytics set forth in the Quote for the geographic area described in the Quote, with the specifications set forth in Appendix C. "Quote" means the form identified as "Government Quotation." "Recipient" has the meaning set forth in Section 7.1 of the Additional Terms. "Software" means all code provided by Vexcel used to access the Product, including but not limited to the Vexcel API, the Viewer, and Vexcel's map control SDK. For clarity, the WMTS service is provided via the Vexcel API. "Term" means the period set forth under "Term" in the Quote, beginning on the Effective Date. "Vexcel" has the meaning set forth in the Quote. "Vexcel APT' means the Representational State Transfer (REST) application programming interface that Vexcel currently provides to its customers that enables a user to access the Product. "Vexcel Claim" has the meaning set forth in Section 8.1 of the Additional Terms. "Vexcel Marks" has the meaning set forth in Section 3.2 of the Additional Terms. "Vexcel Materials" has the meaning set forth in Section 3.1 of the Additional Terms. "Viewer" means Vexcel's browser -based viewing application that allows users to interact with the Product. 13 APPENDIX C PRODUCT DESCRIPTION AND SPECIFICATIONS* Imagery delivered on premises: True Ortho Imagery • Image type: Orthorectified imagery with 7.5cm average GSD • Image format: 4-band-(RGB + NIR)-imagery,—COG Imagery and Elements accessed via streaming: Ortho Imagery (True Ortho and Refresh Ortho) • Image type: Orthorectified imagery with 7.5cm average GSD • Image format: 3-band (RGB or CIR) imagery JPEG Q95 Oblique Imagery • Image type: Oblique images with 7.5cm average GSD • Image format: 3-band (RGB) imagery JPEG Q95 Nadir Imagery • Image type: Nadir images with 7.5cm average GSD • Image format: 3-band (RGB or CIR) imagery JPEG Q95 Wide -Area Ortho Imagery • Image type: Orthorectified imagery with 15/20cm average GSD • Image format: 3-band (RGB or CIR) imagery JPEG Q95 Gray -Sky Imagery • Image type: Ortho images, nadir images and oblique images (subject to availability) • Image format: 3-band (RGB or CIR (obliques RGB only)) imagery JPEG Q95 14 Elements: Building Footprint • Product description: Geographic coordinates of the vertices of a building -footprint polygon; area of the polygon; and indication of whether the building is the primary structure on the property • Data format: JavaScript Object Notation (JSON) with key -value pairs and geometric Well - Known Text (WKT) Elements: Damage Assessment • Product description: Information regarding roof and structure damage of building along with pre -damage Building Attributes and Property Attributes • Data format: Java Script Object Notation (JSON) with key -value pairs and Well -Known Text (WKT) *Historical vintages may not conform to these specifications. 15 APPENDIX D ADDITIONAL LICENSE RIGHTS: NAMED PERMITTED SUBLICENSEE ADDENDUM Licensee may grant third -party contractors that are providing services to Licensee, (the "Permitted Sublicensee") a sublicense to (a) use, reproduce, and modify the Product; (b) create Derivatives; and (c) use the Software, but solely in the case of (a)-(c) for the benefit of Licensee for Licensee's Internal Use, and provided that Permitted Sublicensee is subject to all of the same restrictions that apply to Licensee. Licensee must enter into a binding, written agreement with each Permitted Sublicensee that contains terms that (x) establish limits on the Permitted Sublicensee's usage of the Product consistent with the terms of the Agreement; and (y) state that Vexcel is an express third -party beneficiary of such agreement and entitled to enforce the terms and conditions of the agreement applicable to the Agreement (the "Sublicense Agreement"). The Sublicense Agreement may not allow further sublicenses to any other parties. Licensee shall enforce each Sublicense Agreement with at least the same degree of diligence that Licensee uses to enforce similar agreements for its own products and services, but in no event less than reasonable efforts. Licensee shall immediately notify Vexcel if Licensee becomes aware of any breach of any Sublicense Agreement related to the sublicenses permitted hereunder. 16