MapsIndoors General Terms and Conditions
Appendix 1, MapsIndoors General Terms and Conditions (Americas)
September, 2022
Recitals
These General Terms and Conditions (together with the Order referencing these General Terms and Conditions the "Agreement") is dated as of the Order Effective Date by and between MapsPeople, Inc. (“MapsPeople”) and the customer executing the Order (“Customer”). This Agreement sets forth the terms and conditions under which Customer may Use (as defined herein) MapsPeople’s software (“Software”) as identified in an Order referencing this Agreement (each an "Order").
1. RIGHT OF USE
1.1. Software. Subject to all limitations and restrictions contained herein, MapsPeople grants Customer a subscription, software as a service (SaaS), nonexclusive and nontransferable right to use the Software as hosted by MapsPeople solely for the purposes described in the Order executed by the parties referencing this Agreement (“Use”).
1.2. Use. Customer shall not allow any website, that is not fully owned by Customer, to frame, syndicate, distribute, replicate, or copy any portion of Customer’s web site that provides direct or indirect access to the Software.
1.3.Additional Restrictions. In no event shall Customer disassemble, decompile, or reverse engineer the Software or Confidential Information (as defined herein) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Software from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Software’s operation and creating the original source code or any approximation thereof by, for example, studying the Software’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Software that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof shall be deemed Confidential Information subject to the requirements of this Agreement. Customer may use MapsPeople’s Confidential Information solely in connection with the Software and pursuant to the terms of this Agreement.
1.4. Third Parties. MapsPeople shall have the right to use third parties, including employees of MapsPeople’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of this Section, all references to MapsPeople or its employees shall be deemed to include such Subcontractors.
2. PAYMENT
2.1. Fees. The right to use the Software granted pursuant to this Agreement is a subscription, software as a service subject to the terms and conditions contained in the Agreement and the Order. Customer will pay to MapsPeople the fees indicated in the applicable Order and any subsequent Orders issued hereunder. Customer also agrees to pay reimbursable expenses described in the applicable Order. Any payments due MapsPeople from Customer will be invoiced for the first year and for any renewal period in advance and will be due and payable thirty (30) days after the invoice date. Customer will be invoiced for the first year of its MapsPeople Software subscription on the Order Effective Date and on each anniversary thereafter. All fees are due and payable in U.S. dollars, non-refundable (except to the extent set forth herein). The initial payment for the Software must be made prior to the first Use. The fees for any renewal period shall be MapsPeople's then-current subscription fee.
2.2. LATE PAYMENTS. Any sum that is not paid within thirty (30) calendar days of its due date shall bear interest from the due date thereof to the date of payment at a rate of interest equal to 1.5 % per month, or the highest rate allowed by applicable law, whichever is less, calculated and payable monthly.
2.3. TAXES. The fees required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse MapsPeople and hold MapsPeople harmless for all sales, use, VAT, excise, property or other taxes or levies which MapsPeople is required to collect or remit to applicable tax authorities. This provision does not apply to MapsPeople’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished MapsPeople with a valid tax exemption certificate.
3. OWNERSHIP & DATA
3.1. Reservation of Rights. By signing this Agreement, Customer irrevocably acknowledges that, subject to the rights granted herein, Customer has no ownership interest in the Software MapsPeople materials provided to Customer. MapsPeople shall own all right, title, and interest in such Software and MapsPeople materials, subject to any limitations associated with intellectual property rights of third parties. MapsPeople reserves all rights not specifically granted herein.
3.2. Data. Customer shall own all data collected through the Software including, but not limited to, user data (“Customer Data”). Nothing in this Agreement shall preclude MapsPeople from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by MapsPeople in the performance of services hereunder. MapsPeople owns and shall continue to own all right, title and interest in and to all aggregate and statistical information, benchmarking, comparison, and other analytics or analyses created or developed by MapsPeople from performance and usage data generated through Customer’s use of the Software (collectively, “Aggregate Data”). Aggregate Data is de-identified so that Customer cannot be identified as the source within the Aggregate Data. MapsPeople may aggregate de-identified Customer Data with the data of other MapsPeople customers and analyze user behavior data to (i) help develop new features of the Software; (ii) train algorithms; and (iii) analyze, compare, and benchmark customer data.
3.3. Customer Inputs. MapsPeople’s performance of its obligations under this Agreement will require the Customer to provide information and/or material to MapsPeople (“Customer Inputs”). The Customer shall provide all necessary Customer Inputs in a timely manner, and the Customer shall ensure that all Customer Inputs are complete and accurate in all respects. The Customer further acknowledges that MapsPeople’s performance of one or more obligations hereunder may be delayed by the Customer’s failure to provide Customer Inputs.
4. CONFIDENTIALITY
4.1. Definition. “Confidential Information” includes all information marked pursuant to this Section and disclosed by either party, before or after the Order Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information.
4.2. Confidentiality of Software. All Confidential Information in tangible form shall be marked as “Confidential” or the like or, if intangible (e.g. orally disclosed), shall be designated as being confidential at the time of disclosure and shall be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed MapsPeople Confidential Information with or without such marking or written confirmation: (i) the Software and other related materials furnished by MapsPeople; (ii) the oral and visual information relating to the Software; and the terms and conditions of this Agreement.
4.3. Exceptions. Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the other party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.
4.4. Ownership of Confidential Information. Nothing in this Agreement shall be construed to convey any title or ownership rights to the Software or other Confidential Information to Customer or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the MapsPeople Confidential Information. Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in this Agreement. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.
4.5. Non-Disclosure. Each party agrees at all times to keep strictly confidential all Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or Subcontractors who (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.
4.6. Injunctive Relief. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party shall be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section.
4.7. Suggestions/Improvements to Software. Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Software or other MapsPeople materials provided to Customer shall be owned by MapsPeople, and Customer hereby agrees to assign any such rights to MapsPeople. Nothing in this Agreement shall preclude MapsPeople from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by MapsPeople in the performance of services hereunder.
5. WARRANTY
5.1. Disclaimer of Warranties. Customer acknowledges and agrees that it is not relying on any statement or warranty not expressly provided herein with respect to the Software or other services provided hereunder. THE MATERIALS ACCESSABLE THROUGH THE SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. MAPSPEOPLE SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DATA, CONTENT OR MATERIALS ACCESSED THROUGH THE SOFTWARE AND MAPSPEOPLE MAKES NO REPRESENTATION THAT ANY DATA, CONTENT OR MATERIALS IS ACCURATE OR COMPLETE. MAPSPEOPLE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
5.2. No Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under this Agreement are VOID if Customer has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of MapsPeople.
6. LIMITATION OF LIABILITY
6.1. Liability Cap. IN NO EVENT SHALL MAPSPEOPLE BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SOFTWARE WHICH GAVE RISE TO SUCH DAMAGES IN THE SIX (6) MONTHS PRIOR TO THE CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
6.2. Disclaimer of Damages. IN NO EVENT SHALL MAPSPEOPLE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
7. TERM AND TERMINATION
7.1. Term. The term of this Agreement shall be the term of the applicable Order.
7.2. Termination by MapsPeople. This Agreement and any rights created hereunder may be terminated by MapsPeople (i) if Customer fails to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to Customer if Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
7.3. Termination by Customer. This Agreement may be terminated by Customer on thirty (30) days written notice to MapsPeople if MapsPeople fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from MapsPeople’s receipt of Customer’s notice or a longer period if MapsPeople is working diligently towards a cure.
7.4. Termination. Upon termination of this Agreement, Customer shall no longer access the Software and Customer shall not circumvent any security mechanisms contained therein.
7.5. Other Remedies. Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement.
8. MISCELLANEOUS
8.1. Compliance With Laws. Customer agrees to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement. The parties agree that the Agreement shall not be governed by the United Nations Convention on the International Sale of Goods or by UCITA, the application of which is expressly excluded.
8.2. Assignment. Customer may not assign this Agreement or otherwise transfer any rights created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of MapsPeople. Any assignment or transfer in violation of this Section shall be null and void.
8.3. Ancillary Agreements. Customer agrees that no employees of MapsPeople shall be required to individually sign any agreement in order to perform any services hereunder including, but not limited to, access agreements, security agreements, facilities agreements or individual confidentiality agreements.
8.4. Reporting. The Customer shall keep records of its activities with current and potential customers related to the Software. The Customer shall comply with applicable privacy laws in keeping such records such as the General Data Protection Regulation of the EU. MapsPeople shall be granted access to the information recorded in accordance with applicable privacy laws.
8.5. Survival. The provisions set forth in Sections 2, 4, 5.1, 6, 7.4, and 8 of this Agreement shall survive termination or expiration of this Agreement.
8.6. Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the face page hereof or to such other address as the parties may designate in writing. Unless otherwise specified, all notices to MapsPeople shall be sent to the attention of the CEO. Any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.
8.7. Force Majeure. MapsPeople shall not be liable to Customer for any delay or failure of MapsPeople to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of MapsPeople. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.
8.8. Restricted Rights. Use of the Software by or for the United States Government is conditioned upon the Government agreeing that the Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Software, when delivered to the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such delivery.
8.9. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect thereto. Any signed copy of this Agreement made by reliable means (e.g., photocopy or facsimile) shall be considered an original.
8.10. Modifications. The parties agree that this Agreement cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.
8.11. Nonsolicitation. During the term of this Agreement and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of MapsPeople without the prior written consent of MapsPeople. Customer further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of MapsPeople for a period of one (1) year from such former employee’s or Subcontractor’s last date of service with MapsPeople. Violation of this provision shall entitle MapsPeople to liquidated damages against Customer equal to two hundred percent (200%) of the solicited person’s gross annual compensation.
8.12. Publicity. Customer agrees to cooperate with MapsPeople (i) in preparation of at least one (1) press release, where the aforementioned materials can be used in/on MapsPeople’s Web site, marketing materials, trade shows, public advertisements, and other associated marketing uses (“MapsPeople Marketing Materials”); and (ii) in preparation of a MapsPeople-sponsored testimonial advertisement to be run in newspapers, magazines, and other publications and for use in MapsPeople Marketing Materials. The parties further agree that MapsPeople may include Customer’s logo on publicly displayed customer lists (including MapsPeople’s Internet Web site and public advertisements). There shall be a “Powered by MapsPeople” logo, to be provided by MapsPeople, in the bottom portion of any of Customer’s Web pages that utilize the Software, which logo shall link directly to the then-current MapsPeople Web site home page.
8.13. No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
8.14. Severability and Reformation. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
8.15. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED AND INTERPRETED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF ANY STATE OR JURISDICTION. ANY ACTION RELATED TO THIS AGREEMENT SHALL BE BROUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN AUSTIN, TEXAS AND CUSTOMER HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.