|
4. LIMITED WARRANTY
<br /> 4. 1 Pictometry represents and warrants that it has the right and authority to make the Online Services and the Licensed Content available to
<br /> you and your
<br /> Eligible Users as authorized expressly by this License Agreement.
<br /> 4.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 4. 1 , THE ONLINE SERVICES AND LICENSED CONTENT ARE PROVIDED ON AN "AS IS",
<br /> "AS AVAILABLE" BASIS AND PICTOMETRY AND EACH THIRD PARTY SUPPLIER OF LICENSED CONTENT EXPRESSLY DISCLAIM ALL
<br /> OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
<br /> 5. LIMITATION OF LIABILITY
<br /> 5. 1 No Covered Party (as defined below) shall be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from
<br /> (a) any errors in or
<br /> omissions from the Online Services or the Licensed Content, (b) the unavailability or interruption of the Online Services or any features thereof or
<br /> the
<br /> Licensed Content, (c) your or an Eligible User's use of the Online Services or the Licensed Content, (d) the loss or corruption of any data or equipment
<br /> in
<br /> connection with the Online Services or the Licensed Content, (e) the content, accuracy, or completeness of the Licensed Content, all regardless of whether
<br /> you received assistance in the use of the Online Service from a Covered Party, (f) any delay or failure in performance beyond the reasonable control
<br /> of a
<br /> Covered Party, or (g) any content retrieved from the Internet even if retrieved or linked to from within the Online Services.
<br /> 5 .2 "Covered Party" means (a) Pictometry and any officer, director, employee, subcontractor, agent, successor, or assign of Pictometry; and (b) each
<br /> third party
<br /> supplier of any Licensed Content, third party alliance entity, their affiliates, and any officer, director, employee, subcontractor, agent, successor,
<br />or assign of
<br /> any third party supplier of any Licensed Content or third party alliance entity and their affiliates.
<br /> 5.3 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF
<br /> THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR THE
<br /> LICENSED CONTENT OR THIS LICENSE AGREEMENT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT
<br /> YOU PAID FOR THE ONLINE SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE,
<br /> YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE
<br /> AGAINST ANY COVERED PARTY.
<br /> 5.4 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER YOU NOR THE COVERED PARTIES WILL BE LIABLE FOR
<br /> ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT
<br /> LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE ONLINE
<br /> SERVICES, THE LICENSED CONTENT, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS. THE FOREGOING
<br /> LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY'S INDEMNITY OBLIGATIONS OR YOUR (AND YOUR ELIGIBLE USERS')
<br /> INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO PICTOMETRY OR ITS
<br /> THIRD PARTY SUPPLIERS.
<br /> 5.5 Notwithstanding anything to the contrary in this Section 5 :
<br /> (a) If there is a breach of the warranty in Section 4. 1 above, then Pictometry, at its option and expense, shall either defend or settle any action
<br /> and hold you
<br /> harmless against proceedings or damages of any kind or description based on a third party's claim of patent, trademark, service mark, copyright
<br /> or
<br /> trade secret infringement related to use of the Online Services or the Licensed Content, asserted against you by such third party provided:
<br />(i) all use of
<br /> the Online Services and the Licensed Content was in accordance with this License Agreement; (ii) the claim, cause of action or infringement was
<br /> not
<br /> caused by you modifying or combining the Online Services or the Licensed Content with or into other products, applications, images or data not
<br /> approved by Pictometry; (iii) you give Pictometry prompt notice of such claim; and (iv) you give Pictometry the right to control and direct
<br />the
<br /> investigation, defense and settlement of such claim. You, at Pictometry's expense, shall reasonably cooperate with Pictometry in connection with
<br /> the
<br /> foregoing.
<br /> (b) In addition to Section 5 .5(a), if the Online Services, the operation thereof or the Licensed Content become, or in the opinion of Pictometry are
<br /> likely to
<br /> become, the subject of a claire of infringement, Pictometry may, at its option and expense, either: (i) procure for you the right to continue
<br /> using the
<br /> Online Services or the Licensed Content, (ii) replace or modify the Online Services or the Licensed Content so that they become non-infringing;
<br /> or (iii)
<br /> terminate the License Agreement on notice to you and grant you a pro-rata refund or credit (whichever is applicable) for any pre-paid fees
<br />or fixed
<br /> charges.
<br /> (c) The provisions of Sections 5 .5(a) and (b) shall constitute your sole and exclusive remedy for the respective matters specified therein.
<br /> 6. MISCELLANEOUS
<br /> 6. 1 The tetras and conditions of this License Agreement may be changed from time to time immediately upon notice to you. If any changes are
<br />made to this
<br /> License Agreement, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against you or your Eligible Users but
<br /> will
<br /> apply to all similarly situated Pictometry customers using the Online Services. You may terminate this License Agreement upon written notice to
<br /> Pictometry if any change to the tetras and conditions of this License Agreement is unacceptable to you. For termination to be effective under this
<br /> Section
<br /> 6. 1 , written notice of termination must be provided to Pictometry within 90 days of the effective date of the change. Continued use of the Online
<br /> Services
<br /> following the effective date of any change constitutes acceptance of the change, but does not affect the foregoing termination right. Except as provided
<br /> above, this License Agreement may not be supplemented, modified or otherwise revised unless signed by duly authorized representatives of both parties.
<br /> Furthermore, this License Agreement may not be supplemented, modified or otherwise revised by email exchange, even if the email contains a printed name
<br /> or signature line bearing signature-like font. The foregoing does not prohibit the execution of electronic contracts bearing electronic signatures of
<br />authorized
<br /> representatives of both parties, provided such signatures include digital certifications or are otherwise authenticated.
<br /> 6.2 In the event of a breach of this License Agreement by you, any Eligible User or someone using the Pictometry Credential of an Eligible User,
<br /> Pictometry
<br /> may temporarily suspend or discontinue providing access to the Online Services to any or all Eligible Users without notice and Pictometry may pursue
<br /> any
<br /> other legal remedies available to it.
<br /> 6.3 All notices and other communications hereunder shall be in writing or displayed electronically in the Online Services by Pictometry. Notices
<br /> shall be
<br /> deemed to have been properly given on the date deposited in the mail, if mailed; on the date first made available, if displayed in the Online Services;
<br /> or on
<br /> the date received, if delivered in any other manner. Legal notices to Pictometry should be sent to Pictometry, Attn: General Counsel, 100 Town
<br />Centre
<br /> Drive, Suite A. Rochester, New York 14623 .
<br /> 6.4 The failure of you, Pictometry, or any third party supplier of the Online Services or any Licensed Content to enforce any provision hereof shall
<br /> not constitute
<br /> or be construed as a waiver of such provision or of the right to enforce it at a later time.
<br /> 6.5 Neither you nor any Eligible User may assign or otherwise transfer your rights or delegate your duties under this License Agreement without the
<br /> prior
<br /> written consent of Pictometry. Any attempt by you or any Eligible User to assign, transfer or delegate your rights or obligations under this License
<br /> Agreement without Pictometry's consent shall be void, and shall also void the limited license granted to you by this License Agreement. This License
<br /> Agreement and any amendment thereto shall be binding on, and will inure to the benefit of the parties and their respective successors and permitted
<br /> assigns.
<br /> 6.6 This License Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, excluding its conflicts of law
<br /> principles.
<br /> Unless you are a government entity, in the event that any legal proceedings are commenced with respect to any matter arising under this License Agreement,
<br /> the parties specifically consent and agree that the courts of the State of New York or, in the alternative, the Federal Courts located in the State
<br /> of New York
<br /> shall have exclusive jurisdiction over each of the parties and over the subject matter of any such proceedings, and that the venue of any such action
<br /> shall be
<br /> Page 9 of 16 Indian River County, FL — C127661 20130613 CMT-00047-20130520
<br />
|