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HomeMy WebLinkAbout2015-222AGREEMENT BETWEEN PICTOMETRY INTERNATIONAL CORP. ("Pictometry") AND INDIAN RIVER COUNTY, FL ("Customer") 1 This order form ("Order Form"), in combination with the contract components listed below. Section A: Product Descriptions, Prices and Payment Terms Section B: License Terms. • Delivered Content Terms and Conditions of Use • Online Services General Terms and Conditions • Web Visualization Offering Terms and Conditions • Software License Agreement Section C. Non -Standard Terms and Conditions (all of which, collectively, constitute this "Agreement") set forth the entire understanding between Pictometry and Customer with respect to the subject matter hereof and supersedes all prior representations, agreements and arrangements, whether oral or written, relating to the subject matter hereof. Any modifications to this Agreement must be made in writing and be signed by duly authorized officers of each party. Any purchase order or similar document issued by Customer in connection with this Agreement is issued solely for Customer's internal administrative purposes and the terms and conditions set forth on any such purchase order shall be of no force or effect as between the parties. 2. In the event of any conflict among any contract components comprising this Agreement, order of precedence for resolving such conflict shall be, from highest (i.e., supersedes all others) to lowest (i.e., subordinate to all others): Non -Standard Terms and Conditions; Product Descriptions, Prices and Payment Terms; License Terms in order as listed above under the heading `Section B: License Terms'; and Order Form. 3. All notices under this Agreement shall be in writing and shall be sent to the following respective addresses: CUSTOMER NOTICE ADDRESS PICTOMETRY NOTICE ADDRESS 1800 27th Street 100 Town Centre Drive, Suite A Vero Beach, Florida 32960 Rochester, NY 14623 Attn: Will Rice. GIS Manager Attn: Contract Administration Phone: (772) 226-1609 Fax: Phone: (585) 486-0093 Fax. (585) 486.0098 Either party may change their respective notice address by giving written notice of such change to the other party at the other party's then -current notice address. Notices shall be given by any of the following methods: personal delivery; reputable express courier providing written receipt; or postage -paid certified or registered United States mail, return receipt requested. Notice shall be deemed given when actually received or when delivery is refused. 4. This Agreement, including all licenses granted pursuant to it, shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns, but shall not be assignable by either party except that (i) Pictometry shall have the right to assign its right to receive Fees under this Agreement, provided no such assignment shall affect Pictometry's obligations hereunder, and (ii) Pictometry shall have the right to assign all its rights under this Agreement to any person or entity, provided the assignee has assumed all of Pictometry's obligations under this Agreement. 45 IN NO EVENT SHALL EITHER PARTY BE LIABLE, UNDER ANY CAUSE OF ACTION OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING UNDER THEORIES INVOLVING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR BREACH OF WARRANTY), FOR ANY LOST PROFITS OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER SPECIAL DAMAGES SUFFERED BY THE OTHER PARTY OR OTHERS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 6. With respect to any claims that Customer may have or assert against Pictometry on any matter relating to this Agreement, the total liability of Pictometry shall, in the aggregate, be limited to the aggregate amount received by Pictometry pursuant to this Agreement. 7 The waiver by either party of any default by the other shall not waive subsequent defaults of the same or different kind. 8. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be enforced to the maximum extent permissible and the remaining portions of this Agreement shall remain in full force and effect. Page 1 of 16 Indian River County, FL — C 170424 20150909 CMT -00047-20150715 9. ` Pictometry shall not be responsible for any failure on its part to perform due to unforeseen circumstances or to causes beyond Pictometry's reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, weather, floods, accidents, strikes, failure to obtain export licenses or shortages or delays of transportation, facilities, fuel, energy, supplies, labor or materials. In the event of any such delay, Pictometry may defer performance for a period of time reasonably related to the time and nature of the cause of the delay. 10. In consideration of, and subject to, payment by Customer of the Fees specified in Section A of this Agreement, Pictometry agrees to provide Customer with access to and use of the products specified in Section A of this Agreement, subject to the terms and conditions set forth in this Agreement. Customer hereby agrees to pay the Fees specified in Section A of this Agreement in accordance with the stated payment terms and accepts and agrees to abide by the terms of this Agreement. This Agreement shall become effective upon execution by duly authorized officers of Customer and Pictometry and receipt by Pictometry of such fully executed document, such date of receipt by Pictometry being the "Effective Date." PARTIES: CUSTOMER PICTOMETRY INDIAN RIVER COUNTY, FL PICTOMETRY INTERNATIONAL CORP. (entity type) a Delaware '•FpO SIGNr�aG CPCX-99.4- _ SIGNA't'll , NAME: Bob Solari NAME: 11(1Q 1' , ►'ll TITLE: Chairman TITLE:,tty, DATE: November 17, 2015 EXECI.I ON DATE: ll f f ZOI a lip DATE OF RECEIPT (EFF C DATE) [ i f lcjJ c APPROVED AS TO FORM MAD LEGAL SUFF1C1CNC r�lY G:ItISIR94 iG I,EFFR.4A1. fI4 TyeOU 1T!A'rrORN1iY ATTEST: Jeffrey R. Smith, Clerk of Court and Comptroller BY: Date: November 17, 2015 Page 2 of 16 Indian River County, FL — CI 70424 20150909 CMT -00047.20150715 SECTION A Pictometry International Corp. 100 Town Centre Drive, Suite A Rochester, NY 14623 PRODUCT DESCRIPTIONS, PRICES AND PAYMENT TERMS BILL TO Indian River County, FL Will Rice GIS Manager 1800 27th Street Vero Beach, Florida 32960 (772) 226-1609 wriceAircgov.com ORDER # C 170424 SHIP TO Indian River County, FL Will Rice GIS Manager 1800 27th Street Vero Beach, Florida 32960 (772) 226-1609 wrice(u,ircgov.com CUSTOMER ID SALES REP FREQUENCY OF PROJECT A116541 CDeca Biennial QTY PRODUCT NAME PRODUCT DESCRIPTION LIST PRICE DISCOUNT PRICE (%) AMOUNT' Change Analysis Enterprise- wide License Perpetual Enterprice-wide License of Change Analysis. $15,000 00 $0.00 (100%) $0.00 1 E-911 Interface - Unlimited seats in one PSAP Perpetual License. Product enables system interface but does not cover the actual integration. Licensee must engage third party to provide this integration. $5,000.00 $0.00 (100%) $0.00 1 EAP PROGRAM 1 Electronic Field Study (EFS) 285 IMAGERY - NEIGHBORHOOD - 4 -way (N5) (3in) Per Sector 1 Integrated Pictometry Application Refer to detailed description of EAP Program in attached Agreement. $0.00 $0.00 One copy of Electronic Field Study software, latest version. Product includes: 3 -inch GSD oblique frame images (4 - way), 3 -inch GSD orthogonal frame images, 1 -meter GSD ortho mosaic sector tiles and one area -wide 1 -meter GSD mosaic (ECW format). Orthogonal GSD- 0.25 feet/pixel; Nominal Oblique GSD (all values +/-10%): Front Line: 0.24 feet/pixel, Middle Line: 0.28 feet/pixel, Back Line: 0.34 feet/pixel. $0.00 $450.00 $405.00 (10%) $0.00 $115,425 00 Integrated Pictometry Applications are web based technologies that allow a developer to embed a web instance into a product / application that connects 10 a customers Licensed Pictometry-hosted imagery Currently supports JavaScript / iFrame applications for both Visualization (External or Public Facing) use and/or Analytics (Internal with Measurement Tools) use. Requires a Pictometry Connect or Pictometry Connect PFW / View Account depending on use type. $1,990.00 $1,990.00 1 Media Drive Capacity 931G - Drive Model IT - EXTPOWER External USB 2.0 / eSATA Externally Powered. Delivery media prices include copying a complete image library onto media, Sub -warehousing sold separately. $199.00 $199.00 285 Mosaic - Area Wide (3in GSD; MrSID format; individual) Per Sector Available with purchase of corresponding AccuPlus product. New processing or re -processing to MrSID of individual tiles of 3 -inch GSD imagery. Tiles are provided "as is." Refer to Product Parameters for additional details. 52.00 $1.80 (10%) 5513.00 Oblique Imagery Bundle with Two (2) Years of EFS Maintenance & Support Pictometry Connect View - CA Page 3 of 16 Includes digital copy of the Licensed Documentation for the License Software, two (2) End User Training Sessions, one (1) Advanced User Technical Training, one (1) Administration / IT Training Session, ten (10) hours of telephone support, one copy of Pictometry Electronic Field Study (EFS) software, latest version, on the storage media specified herein, and access to download updated versions of the EFS Licensed Software for a period of two years from the initial date of shipment of the EFS software, along with a copy of the updated documentation. Pictometry Connect View - CA (Custom Access) provides visualization -only access to the Pictometry-hosted custom imagery libraries specified elsewhere in this Agreement via a web application or server based integration. Requires a customer -provided web application or server based application. With respect to imagery available through this product to third parties or the Public, Pictometry reserves $0.00 $0.00 $500.00 $500.00 Indian River County, FL—C170424 20150909 CMT -00047-20150715 Thank you for choosing Pictometry as your service provider 'Amount per product =((1-Discount%)Qty' List Price) TOTAL $124,783.00 FEES; PAYMENT TERMS All amounts due to Pictometry pursuant to this Agreement ("Fees") are expressed in United States dollars and do not include any duties, taxes (including, without limitation, any sales, use, ad valorem or withholding, value added or other taxes) or handling fees, all of which are in addition to the amounts shown above and, to the extent applicable to purchases by Customer, shall be paid by Customer to Pictometry without reducing any amount owed to Pictometry unless documents satisfactory to Pictometry evidencing exemption from such taxes is provided to Pictometry prior to billing. To the extent any amounts properly invoiced pursuant to this Agreement are not paid within thirty (30) days following the invoice due date, such unpaid amounts shall accrue, and Customer shall pay, interest at the rate of 1.5% per month (or at the maximum rate allowed by law, if less). In addition, Customer shall pay Pictometry all costs Pictometry incurs in collecting past due amounts amount due under this Agreement including, but not limited to, attorneys' fees and court costs. Due at Initial Shipment of Imagery Due at Activation Total Payments PRODUCT PARAMETERS IMAGERY Product: IMAGERY - NEIGHBORHOOD - 4 -way (N5) (3in) Per Sector Elevation Source. Customer Provided — LiDAR Leaf Less than 30% leaf cover (0ft) Special Instructions. $122,293.00 $2,490.00 5124,783.00 Standard Ortho Mosaic Products: Pictometry standard ortho mosaic products are produced through automated mosaicking processes that incorporate digital elevation data with individual Pictometry ortho frames to create large -area mosaics on an extremely cost-effective basis. Because these products aro produced through automated processes, rather than more expensive manual review and hand -touched corrective processes, there may be inherent artifacts in some of the resulting mosaics. While Pictometry works to minimize such artifacts, the Pictometry standard ortho mosaic products are provided on an 'AS IS' basis with respect to visible cutlines along mosaic seams resulting from the following types of artifacts: i Disconnects in non -elevated surfaces generally caused by inaccurate elevation data; ii. Disconnects in elevated surfaces (e.g., roadways, bridges, etc.) generally caused by elevated surfaces nut being represented in the elevation data; iii Building intersect and clipping generally caused by buildings not being represented in the elevation data; iv Seasonal variations caused by images taken at different times during a season, or during different seasons; v Ground illumination variations caused by images taken under different illumination (e.g., sunny, high overcast, morning light, afternoon light, etc.) within one flight day or during different flight days; vi. Single GSD color variations caused by illumination differences or multiple-aircraft/camera captures; vii. Mixed GSD color variations caused by adjacent areas being flown at different ground sample distances (GSDs); and viii. Water body color variations caused by multiple individual frames being used to create a mosaic across a body of water (e.g., lakes, ponds, rivers, etc.). Other Pictometry products may be available that are less prone to such artifacts than the Pictometry standard ortho mosaic products, CONNECT Product: Admin User' Page 4 of 16 Pictometry Connect View - CA Will Rice Indian River County, FL — C 170424 20150909 CMT -00047-20150715 the right to reduce the resolution of the imagery available. Term commences on date of activation. Term ends upon the earlier to occur of (i) the expiration of the term specified elsewhere in this Agreement, or (ii) the volume of geocode requests submitted through the application exceeding 10,000. License Term: 1 Year(s) 1 State License Fee State license fee. $0.00 $0.00 1 Survey Report - Imagery Available with corresponding imagery purchase. Product $1,500.00 $0.00 $0.00 Project - Compiled To Includes: Report signed/sealed by appropriately Accuracy Statement credentialed personnel. Report details production statistics including GPS/INS post processing and includes an (100%) NSSDA compliant "Compiled To" accuracy statement. 285 Tiles - Standard (3in GSD; TIFF format) Per Sector Available with corresponding 3" GSD imagery purchase, 3- inch GSD Mosaic Tiles in TIFF Format. Tiles are provided $20.00 $18.00 $5,130.00 "as is." Refer to Product Parameters for additional details. (10%) 285 Tiles - Standard Compressed Available with purchase of corresponding tile product. $4.00 $3.60 $1,026.00 (3in GSD; MrSID format) Per New processing or re -processing to MrSID of individual "as Sector tiles of 3 -inch GSD imagery. Tiles are provided is," Refer to Product Parameters for additional details. (10%) Thank you for choosing Pictometry as your service provider 'Amount per product =((1-Discount%)Qty' List Price) TOTAL $124,783.00 FEES; PAYMENT TERMS All amounts due to Pictometry pursuant to this Agreement ("Fees") are expressed in United States dollars and do not include any duties, taxes (including, without limitation, any sales, use, ad valorem or withholding, value added or other taxes) or handling fees, all of which are in addition to the amounts shown above and, to the extent applicable to purchases by Customer, shall be paid by Customer to Pictometry without reducing any amount owed to Pictometry unless documents satisfactory to Pictometry evidencing exemption from such taxes is provided to Pictometry prior to billing. To the extent any amounts properly invoiced pursuant to this Agreement are not paid within thirty (30) days following the invoice due date, such unpaid amounts shall accrue, and Customer shall pay, interest at the rate of 1.5% per month (or at the maximum rate allowed by law, if less). In addition, Customer shall pay Pictometry all costs Pictometry incurs in collecting past due amounts amount due under this Agreement including, but not limited to, attorneys' fees and court costs. Due at Initial Shipment of Imagery Due at Activation Total Payments PRODUCT PARAMETERS IMAGERY Product: IMAGERY - NEIGHBORHOOD - 4 -way (N5) (3in) Per Sector Elevation Source. Customer Provided — LiDAR Leaf Less than 30% leaf cover (0ft) Special Instructions. $122,293.00 $2,490.00 5124,783.00 Standard Ortho Mosaic Products: Pictometry standard ortho mosaic products are produced through automated mosaicking processes that incorporate digital elevation data with individual Pictometry ortho frames to create large -area mosaics on an extremely cost-effective basis. Because these products aro produced through automated processes, rather than more expensive manual review and hand -touched corrective processes, there may be inherent artifacts in some of the resulting mosaics. While Pictometry works to minimize such artifacts, the Pictometry standard ortho mosaic products are provided on an 'AS IS' basis with respect to visible cutlines along mosaic seams resulting from the following types of artifacts: i Disconnects in non -elevated surfaces generally caused by inaccurate elevation data; ii. Disconnects in elevated surfaces (e.g., roadways, bridges, etc.) generally caused by elevated surfaces nut being represented in the elevation data; iii Building intersect and clipping generally caused by buildings not being represented in the elevation data; iv Seasonal variations caused by images taken at different times during a season, or during different seasons; v Ground illumination variations caused by images taken under different illumination (e.g., sunny, high overcast, morning light, afternoon light, etc.) within one flight day or during different flight days; vi. Single GSD color variations caused by illumination differences or multiple-aircraft/camera captures; vii. Mixed GSD color variations caused by adjacent areas being flown at different ground sample distances (GSDs); and viii. Water body color variations caused by multiple individual frames being used to create a mosaic across a body of water (e.g., lakes, ponds, rivers, etc.). Other Pictometry products may be available that are less prone to such artifacts than the Pictometry standard ortho mosaic products, CONNECT Product: Admin User' Page 4 of 16 Pictometry Connect View - CA Will Rice Indian River County, FL — C 170424 20150909 CMT -00047-20150715 Admin User Email: wrice@ircgov.com Requested Activation: On contract execution Special Instructions. Geofence. FL Brevard Geofence. FL Okeechobee Geofence. FL Osceola Geofence FL St, Lucie Geofence. FL Indian River (Primary) CONNECT -SERVER INTEGRATION Product: Integrated Pictometry Application Server Integration. IPA (Both Visualization & Analytics) Special lnstructions: Technical Contact: Will Rice Company Name. Indian River County, FL Phone Number. (772) 226-1609 Email Address: wrice@ircgov,com Economic Alliance Partnership (EAP) Customer is eligible for the EAP program described below for a period of two years from the Effective Date. Following payment to Pictometry of amounts due with respect to each subsequent capture, Customer will be eligible for the then -current EAP program for a period of two years from delivery of such subsequent capture. A. Disaster Coverage Imagery at No Additional Charge — Pictometry will, upon request of Customer and at no additional charge, provide updated imagery of up to 200 square miles of affected areas (as determined by Pictometry) upon the occurrence of any of the following events during any period Customer is eligible for the EAP program. • hurricane: areas affected by hurricanes of Category II and higher (Coverage for hurricanes below Category II and for areas exceeding 200 square miles will be, subject to Pictometry resource availability, available to Customer at the then -current EAP rates.) Tornado. areas affected by tornados rated EF4 and higher (Coverage for tornados below EF4 and for areas exceeding 200 square miles will be, subject to Pictometry resource availability, available to Customer at the then -current EAP rates.) • Terrorist: areas affected by damage from terrorist attack. (Coverage for areas exceeding 200 square miles will be, subject to Pictometry resource availability, available to Customer at the then -current EAP rates.) • Earthquake: areas affected by damage to critical infrastructure resulting from earthquakes measured at 6.0 or higher on the Richter scale. (Coverage for earthquakes rated below 6 0 on the Richter scale and for areas exceeding 200 square miles will be, subject to Pictometry resource availability, available to Customer at the then -current EAP rates.) • Tsunami: areas affected by damage to critical infrastructure resulting from tsunamis. (Coverage for areas exceeding 200 square miles will be. subject to Pictometry resource availability, available to Customer at the then -current EAP rates.) B. Software — Use of Pictometry Change AnalysisTM — Pictometry's EAP program includes the use of Change Analysis software for a term of ninety days from the date of delivery of the EAP imagery. The Change Analysis software simultaneously compares pre and post disaster images to aid recovery and restoration efforts. Page 5 of 16 Indian River County, FL — C170424 20150909 CMT -00047-20150715 SECTION B LICENSE TERMS PICTOMETRY DELIVERED CONTENT TERMS AND CONDITIONS OF USE These Pictometry Delivered Content Terms and Conditions of Use (the "Delivered Content Terrns and Conditions"), in combination with the corresponding Agreement into which these terms are incorporated, collectively set forth the terms and conditions that govern use of Delivered Content (as hereinafter defined) for use within computing environments operated by parties other than Pictometry As used in the Delivered Content Terms and Conditions the terms "you" and `jour" in uppercase or lowercase shall mean the Customer that entered into the Agreement into which the Delivered Content Terms and Conditions are incorporated. 1. DEFINITIONS 1.1 "Authorized Subdivision" means, if you are a county or a non -state consortium of counties, any political unit or subdivision located totally or substantially within your boundaries that you authorize to have access to Delivered Content pursuant to the Delivered Content Terms and Conditions, 1.2 "Authorized System" means a workstation or server that meets each of the following criteria (i) it is owned or leased by you or an Authorized Subdivision, (ii) it is located within and only accessible from facilities that are owned or leased by you or an Authorized Subdivision, and (iii) it is under the control of and may only be used by you or Authorized Subdivisions, 1.3 "Authorized liser" means any employee of you or Authorized Subdivisions that is authorized by you to have access to the Delivered Content through an Authorized System. 1.4 "Delivered Content" means the images, metadata, data layers, models, reports and other geographic or structural visualizations or embodiments included in, provided with, or derived from the information delivered to you by or on behalf of Pictometry pursuant to the Agreement. 1.5 "Project Participant" means any employee or contractor of persons or entities performing services for compensation for you or an Authorized Subdivision that has been identified by written notice to Pictometry prior to being granted access to Delivered Content and, unless Pictometry expressly waives such requirement for any individual, has entered into a written agreement with Pictometry authorizing such access. 2. GRANT OF RIGHTS; RESTRICTIONS ON USE; OWNERSHIP 2.1 Subject to the teens and conditions of the Agreement, you are granted nonexclusive, nontransferable, limited rights to: (a) install the Delivered Content on Authorized Systems; (b) permit access and use of the Delivered Content through Authorized Systems by (i) Authorized Users for performance of public responsibilities of you or Authorized Subdivisions that are to be performed entirely within facilities of you or Authorized Subdivisions; (ii) Project Participants under the supervision of Authorized Users for performance of tasks or preparation of materials using only hard copies (or jpg copies) of Delivered Content solely for fulfilling public responsibilities of you or Authorized Subdivisions to be performed entirely within facilities of you or Authorized Subdivisions; and (iii) individual members of the public, but only through Authorized Users and solely for the purpose of making hard copies or jpg copies of images of individual properties or structures (but not bulk orders of multiple properties or structures) to the individual members of the public requesting them. 2.2 You may not reproduce, distribute or make derivative works based upon the Delivered Content in any medium, except as expressly permitted in the Delivered Content Terrns and Conditions, 2.3 You may not offer any part of the Delivered Content for commercial resale or commercial redistribution in any medium. 2.4 You may not distribute or otherwise make available any Delivered Content to Google or its affiliates, either directly or indirectly. 2.5 You may not exploit the goodwill of Pictometry, including its trademarks, service marks, or logos, without the express written consent of Pictometry 2.6 You may not remove, alter or obscure copyright notices or other notices contained in the Delivered Content. 2.7 All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in Delivered Content in all media belong to Pictometry or its third party suppliers. Neither you nor any users of the Delivered Content acquire any proprietary interest in the Delivered Content, or any copies thereof, except the limited use rights granted herein. 3. OBLIGATIONS OF CUSTOMER 3.1 Geographic Date. If available, you agree to provide to Pictometry geographic data in industry standard format (e.g., shape, DBF) including, but not limited to, digital elevation models, street centerline maps, tax parcel maps and centroids, which data, to the extent practicable, shall be incorporated into the Delivered Content. You agree that any of this data that is owned by you may be distributed and modified by Pictometry as part of its products and services, provided that at no time shall Pictometry claim ownership of that data. 3.2 Notification. You shall (a) notify Pictometry in writing of any claims or proceedings involving any of the Delivered Content within ten (10) days after you learn of the claim or proceeding, and (b) report promptly to Pictometry all claimed or suspected defects in Delivered Content. 3.3 Authorized User Compliance. You shall at all times be responsible for compliance by each Authorized User with the Delivered Content Terms and Conditions. 3.4 Authorized Subdivision Compliance. You shall at all times be responsible for compliance by each Authorized Subdivision with the Delivered Content Terms and Conditions. 3.5 Project Participants. Each notice to Pictometry identifying a potential Project Participant shall include a detailed description of the scope and nature of the Project Participants' planned work and the intended use of the Delivered Content in such work. Pictometry retains the right to restrict or revoke access to Delivered Content by any Project Participant who does not comply with the terms of the Delivered Content Terms and Conditions. 4. LICENSE DURATION; EFFECT OF TERMINATION 4.1 Term. "fhe license granted to you in the Delivered Content Terms and Conditions is perpetual, subject to Pictometry's right to terminate the license in the event you do not pay in full the Fees specified elsewhere in the Agreement, the Agreement is terminated for any reason other than a breach of the Agreement by Pictometry, or as otherwise provided in the Agreement, 4.2 Effect of Termination. Upon termination of the license granted to you in the Delivered Content Terms and Conditions, you shall immediately cease all use of the Delivered Content, promptly purge all copies of the Delivered Content from all workstations and servers on which any of it may be stored or available at the time, and retum hard drive/media containing Delivered Content to Pictometry 5. TRADEMARKS; CONFIDENTIALITY 5.1 Use of Pictometry's Marks. You agree not to attach any additional trademarks, trade names, logos or designations to any Delivered Content or to any Page 6 of 16 Indian River County, FL—C170424 20150909 CMT -00047-20150715 copies of any Delivered Content without prior written approval from Pictometry You may, however, include an appropriate government seal and your contact information so long as the seal and contact information in no way obscure or deface the Pictometry marks. You further agree that you will not use any Pictometry trademark, trade name, logo, or designation in connection with any product or service other than the Delivered Content, Your nonexclusive right to use Pictometry's trademarks, trade name, logos, and designations are coterminous with the license granted to you in the Delivered Content Terms. 5.2 Confidentiality of Delivered Content. The Delivered Content consists of commercially valuable, proprietary products owned by Pictometry, the design and development of which reflect an investment of considerable time, effort, and money The Delivered Content is treated by Pictometry as confidential and contains substantial trade secrets of Pictometry. You agree that you will not disclose, provide a copy of, or disseminate the Delivered Content (other than as expressly permitted in the Delivered Content Terms and Conditions) or any part thereof to any person in any manner or for any purpose inconsistent with the license granted to you in the Delivered Content Terms and Conditions. You agree to use your best efforts to assure that your personnel, and any others afforded access to the Delivered Content, protect the Delivered Content against unauthorized use, disclosure, copying, and dissemination, and that access to the Delivered Content and each part thereof will be strictly limited. 6. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES 6.1 Limited Warranties; Exclusive Remedy. Pictometry warrants that the Delivered Content will contain true and usable copies of the designated imagery as of the date of capture. As the sole and exclusive remedy for any breach of the foregoing warranty, Pictometry shall use reasonable efforts to correct any deficiency that precludes use of the Delivered Content in the manner intended. 6.2 Disclaimer of Other Warranties. Except as provided in Section 6.1, above, THE DELIVERED CONTENT IS PROVIDED TO YOU "AS IS" AND "WITH ALL FAULTS." PICTOMETRY MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ACCURACY, ARE HEREBY DISCLAIMED AND EXCLUDED BY PICTOMETRY. 6.3 Limitation of Liability. With respect to any other claims that you may have or assert against Pictometry on any matter relating to the Delivered Content, the total liability of Pictometry shall, in the aggregate, be limited to the aggregate amount received by Pictometry in payment for Delivered Content during the immediately preceding twenty-four (24) month period. 7. MISCELLANEOUS PROVISIONS 7.1 Restricted Rights. Delivered Content acquired with United States Government funds or intended for use within or for any United States federal agency is provided with "Restricted Rights" as defined in DFARS 252,227-7013, Rights in Technical Data and Computer Software and FAR 52.227-14, Rights in Data -General, including Alternate III, as applicable. 7.2 Governing Law. 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 principles, Page 7 of 16 [END OF DELIVERED CONTENT TERMS AND CONDITIONS] Indian River County, FL—C170424 20150909 CMT -00047-20150715 SECTION B LICENSE TERMS PICTOMETRY ONLINE SERVICES GENERAL TERMS AND CONDITIONS These Pictometry Online Services General Terms and Conditions (the "General Terms and Conditions"), in combination with the corresponding Pictometry order form, if any, collectively constitute the license agreement (the "License Agreement") that governs your use of the Pictometry online services (the "Online Services"), the images available in the Online Services, and all associated metadata and data layers included in, provided with, or derived from those images (the "Licensed Content") provided by Pictometry International Corp: and its affiliated companies (collectively, `Pictometry"). The terms "you" and `your" in uppercase or lowercase shall mean the individual, entity (e g,, corporation, limited liability company, partnership, sole proprietor, etc.) or government agency entering into the License Agreement. L GRANT OF RIGHTS; RESTRICTIONS ON USE; OWNERSHIP 1.1 You are granted a nonexclusive, nontransferable, limited right to access and use the Online Services and the Licensed Content obtained or derived from the Online Services solely for your internal business purposes and not for resale or redistribution, The rights granted to you include, subject to the restrictions set forth below and on the Order Form, the right to copy limited portions of the Licensed Content onto your computer to facilitate preparation of hardcopies and work product records, and the right to make hardcopies of the Licensed Content, provided that the Licensed Content and the permitted copies thereof may not be sold, leased, loaned, distributed, or copied for use by anyone other than you. 1.2 You may not make the Online Services available to any other party 1.3 You may not copy the Licensed Content or portions thereof onto any computer or storage device or media for the purpose of creating or maintaining one or more databases of that content for use in substitution for subsequent access to the content through the Online Services. 1.4 You may not distribute or otherwise make available any Licensed Content to Google or its affiliates, either directly or indirectly 1.5 You may not exploit the goodwill of Pictometry, including its trademarks, service marks, or logos, without the express written consent of Pictometry 1.6 You may not remove, alter or obscure copyright notices or other notices contained in the Licensed Content. 1 7 You may not offer any part of the Online Services or the Licensed Content for commercial resale or commercial redistribution in any medium. 1.8 You may not use the Online Services or the Licensed Content to compete with any businesses of Pictometry 1.9 You may not use information included in the Online Services or the Licensed Content to determine an individual consumers eligibility for (a) credit or insurance for personal, family, or household purposes; (b) employment; or (c) a government license or benefit. The term "consumer" is defined in the United States Fair Credit Reporting Act at 15 USC §1681. 1.10 You may not access the Online Services via mechanical, programmatic, robotic, scripted or any other automated means. Unless otherwise agreed by Pictometry in writing, use of the Online Services is permitted only via manually conducted, discrete, human -initiated individual search and retrieval activities. 1.11 All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in the Online Services and the Licensed Content in all media belong to Pictometry or its third party suppliers. Neither you nor any users of the Online Services or the Licensed Content acquire any proprietary interest in the Online Services, the Licensed Content, or any copies thereof, except the limited use rights granted herein. 2. ACCESS TO SERVICES 2.1 Only you, your employees, and temporary or contract employees dedicated to performing work exclusively for you (each, an "Eligible User" and collectively, the "Eligible Users") are eligible to access and use the Online Services and the Licensed Content pursuant to the License Agreement. Each Eligible User to be provided access to the Online Service shall be assigned a unique login/password ("Pictometry Credential") for purposes of accessing the Online Services. You agree that each Pictometry Credential shall only be used by the Eligible User to whom it was originally assigned and that Pictometry Credentials may not be shared with, or used by, any other person, including other Eligible Users. You will promptly deactivate an Eligible User's Pictometry Credential in the event the Eligible User no longer meets the eligibility requirements or you otherwise wish to terminate the Eligible User's access to the Online Services. You are responsible for all use of the Online Services accessed with Pictometry Credentials issued to your Eligible Users, including associated charges, whether by Eligible Users or others. You will use reasonable commercial efforts to prevent unauthorized use of Pictometry Credentials assigned to your Eligible Users and will promptly deactivate any Pictometry Credentials you suspect are lost, stolen, compromised, or misused. 2.2 The Online Services, the Licensed Content, and features and functionality within the Online Services may be enhanced, added to, withdrawn, or otherwise changed by Pictometry without notice. 2.3 You are aware and understand that any uscr data collected or stored by the Online Services may be accessed by US law enforcement agencies under the US PATRIOT Act. You hereby release, and agree to hold Pictometry harmless from, all claims against Pictometry with respect to such access. 3. DISCLAIMERS 3.1 The Online Services and the Licensed Content are provided for visualization purposes only, are not authoritative or definitive, and do not constitute professional engineering or surveying services. 3.2 The Online Services and the Licensed Content are not to be relied upon to precisely locate or determine property boundaries and should not be used in lieu of a professional survey where the accuracy of measurements, distance, height, angle, area and volume, may have significant consequences. 3.3 All measurements and reports generated by the Online Services or from the Licensed Content are based upon second order visualization and measurement data that do not provide authoritative or definitive measurement results suitable for professional engineering or surveying purposes. 3.4 Contour information obtained from the Online Services or contained in the Licensed Content is generated from undersampled elevation data, is provided for informational purposes only, and is not suitable for use as the basis for hydrographic computations, estimations or analyses. 3.5 While the Online Services and the Licensed Content may be considered useful supplements for life critical applications, they are not designed or maintained to support such applications and Pictometry and its third party suppliers of the Online Services and the Licensed Content hereby disclaim all liability for damages claims and expenses arising from such use. 3.6 Your reliance on the Online Services and the Licensed Content should only be undertaken after an independent review of their accuracy, completeness, efficacy, timeliness and adequacy for your intended purpose. 3.7 Pictometry and each third party supplier of any portion of the Online Services or the Licensed Content assume no responsibility for any consequences resulting from the use of the Online Services or the Licensed Content. 3.8 Pictometry and each third party supplier of any portion of the Online Services or the Licensed Content hereby disclaim all liability for damages, claims and expenses arising from or in any way related to the accuracy or availability of the Online Services and the Licensed Content. 3.9 By accepting these General Terms and Conditions or by using the Online Services or the Licensed Content, you waive any and all rights you may have against Pictometry, each third party supplier of any portion of the Online Services or the Licensed Content, and each of their directors, officers, members and employees, arising out of use of or reliance upon the Online Services or the Licensed Content. Indian River County, FL— C170424 20150909 CMT -00047-20150715 Page 8 of 16 4. LIMITED WARRANTY 4.1 Pictometry represents and warrants that it has the right and authority to make the Online Services and the Licensed Content available to you and your Eligible Users as authorized expressly by this License Agreement. ; 4.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 4 I, THE ONLINE SERVICES AND LICENSED CONTENT ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS AND PICTOMETRY AND EACH THIRD PARTY SUPPLIER OF LICENSED CONTENT EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 5. LIMITATION OF LIABILITY 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 (a) any errors in or omissions from the Online Services or the Licensed Content, (b) the unavailability or interruption of the Online Services or any features thereof or the 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 in connection with the Online Services or the Licensed Content, (e) the content, accuracy, or completeness of the Licensed Content, all regardless of whether 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 of a Covered Party, or (g) any content retrieved from the Internet even if retrieved or linked to from within the Online Services. 5.2 "Covered Party" means (a) Pictometry and any officer, director, employee, subcontractor, agent, successor, or assign of Pictometry; and (b) each third party supplier of any Licensed Content, third party alliance entity, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of any Licensed Content or third party alliance entity and their affiliates. 5.3 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR THE LICENSED CONTENT OR THIS LICENSE AGREEMENT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT YOU PAID FOR TIIE ONLINE SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY. 5.4 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER YOU NOR THE COVERED PARTIES WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE ONLINE SERVICES, THE LICENSED CONTENT, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY'S INDEMNITY OBLIGATIONS OR YOUR (AND YOUR ELIGIBLE USERS') INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO PICTOMETRY OR ITS THIRD PARTY SUPPLIERS 5.5 Notwithstanding anything to the contrary in this Section 5 (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 and hold you harmless against proceedings or damages of any kind or description based on a third party's claim of patent, trademark, service mark, copyright or trade secret infringement related to use of the Online Services or the Licensed Content, asserted against you by such third party provided: (i) all use of the Online Services and the Licensed Content was in accordance with this License Agreement; (ii) the claim, cause of action or infringement was not caused by you modifying or combining the Online Services or the Licensed Content with or into other products, applications, images or data not approved by Pictometry; (iii) you give Pictometry prompt notice of such claim; and (iv) you give Pictometry the right to control and direct the investigation, defense and settlement of such claim. You, at Pictometry's expense, shall reasonably cooperate with Pictometry in connection with the foregoing. (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 likely to become, the subject of a claim of infringement, Pictometry may, at its option and expense, either (i) procure for you the right to continue using the Online Services or the Licensed Content, (ii) replace or modify the Online Services or the Licensed Content so that they become non -infringing; or (iii) 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 or fixed charges. (c) The provisions of Sections 5.5(a) and (b) shall constitute your sole and exclusive remedy for the respective matters specified therein. 6. MISCELLANEOUS 6.1 The terms and conditions of this License Agreement may be changed from time to time immediately upon notice to you. If any changes are made to this License Agreement, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against you or your Eligible Users but will apply to all similarly situated Pictometry customers using the Online Services. You may terminate this License Agreement upon written notice to Pictometry if any change to the terms and conditions of this License Agreement is unacceptable to you. For termination to be effective under this Section 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 Services following the effective date of any change constitutes acceptance of the change, but does not affect the foregoing termination right. Except as provided above, this License Agreement may not be supplemented, modified or otherwise revised unless signed by duly authorized representatives of both parties. Furthermore, this License Agreement may not be supplemented, modified or otherwise revised by email exchange, even if the email contains a printed name or signature line bearing signature -like font, The foregoing does not prohibit the execution of electronic contracts bearing electronic signatures of authorized representatives of both parties, provided such signatures include digital certifications or are otherwise authenticated. 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, Pictometry may temporarily suspend or discontinue providing access to the Online Services to any or all Eligible Users without notice and Pictometry may pursue any other legal remedies available to it. 6.3 All notices and other communications hereunder shall be in writing or displayed electronically in the Online Services by Pictometry Notices shall be 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; or on the date received, if delivered in any other manner Legal notices to Pictometry should be sent to Pictometry, Attn: General Counsel, 100 Town Centre Drive, Suite A, Rochester, New York 14623. 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 not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. 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 prior written consent of Pictometry, Any attempt by you or any Eligible User to assign, transfer or delegate your rights or obligations under this License Agreement without Pictometry's consent shall be void, and shall also void the limited license granted to you by this License Agreement. This License Agreement and any amendment thereto shall be binding on, and will inure to the benefit of the parties and their respective successors and permitted assigns, 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 principles. Unless you are a government entity, in the event that any legal proceedings are commenced with respect to any matter arising under this Indian River County, FL — C170424 20150909 CMT -00047-20150715 Page 9 of 16 License Agreement, 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 of New York 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 shall be in Monroe County, New York or the U.S. District Court for the Westem District of New York, as applicable. 6.7 This License Agreement will be enforced to the fullest extent permitted by applicable law, If any provision of this License Agreement is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent and (b) such invalidity or unenforceability will not affect any other provision of this License Agreement. 6.8 Where applicable, each affiliated company of Pictometry and each third party supplier of the Online Services or any Licensed Content has the right to assert and enforce the provisions of this License Agreement directly on its own behalf as a third party beneficiary. 6.9 In the event of a breach of your obligations under this License Agreement or your payment obligations with respect to access to the Online Services or the Licensed Content, you agree to pay all of Pictometry's costs of enforcement and collection, including court costs and reasonable attorneys' fees, 6.10 This License Agreement constitutes the entire agreement of the parties with respect to its subject matter and replaces and supersedes any prior written or verbal communications, representations, proposals or quotations relating to that subject matter Page 10 of 16 (END OF ONLINE SERVICES GENERAL TERMS AND CONDITIONS] Indian River County, FL — C170424 20150909 CMT -00047-20150715 SECTION B LICENSE TERMS PICTOMETRY WEB VISUALIZATION OFFERING TERMS AND CONDITIONS These Pictometry Web Visualization Offering Terms and Conditions (the "WVO Terms and Conditions"), in combination with the corresponding Pictometry order form, if any, collectively constitute the license agreement (the "WVO License Agreement") that governs your use of Pictometry web visualization offerings (the "WVO Services"), the images available in the'WVO Services, and all associated metadata and data layers included in, provided with, or derived from those images (the "WVO Licensed Content") provided by Pictometry International Corp. and its affiliated companies (collectively. "Pietometry"), the terms "you" and `jour" in uppercase or lowercase shall mean the individual, entity (e.g.. corporation, limited liability company, partnership, sole proprietor, etc.) or government agency entering into the WVO License Agreement. 1. GRANT OF RIGHTS; RESTRICTIONS ON USE; OWNERSHIP 1 1 You are granted a nonexclusive, nontransferable, limited right to use and to provide public access to, and use of, the WVO Services solely for purposes of providing access to WVO Licensed Content in response to human -initiated, discrete location -specific requests through a single web site operated exclusively by or for you to serve you and your public constituencies and not for resale or redistribution or commercial use of any nature. 1.2 You may not copy or retain copies of the WVO Licensed Content obtained through the WVO Services or portions thereof onto any computer or storage device or media for the purpose of creating or maintaining one or more databases of that content for use in substitution for subsequent access to the content through the WVO Services or any other Pictometry Services, nor will your authorize or permit any user of the WVO Services to do so. 1.3 You may not exploit the goodwill of Pictometry, including its trademarks, service marks, or logos without the express written consent of Pictometry. 1 4 You may not remove, alter or obscure copyright notices or other notices contained in the WVO Licensed Content, 1,5 You may not offer any part of the WVO Services or the WVO Licensed Content for commercial resale or commercial redistribution in any medium. 1.6 All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in the WVO Services and the WVO Licensed Content in all media belong to Pictometry or its third party suppliers. Neither you nor any users of the WVO Services or the WVO Licensed Content acquire any proprietary interest in the WVO Services, the WVO Licensed Content, or any copies thereof, except the limited use rights granted herein. 2. TERMS OF ACCESS TO WVO SERVICES 2.1 You shall provide to all end-users of the W V.O Services on the page through which.lhey access such services conspicuous notice of the following terms of access: (a) WVO I.icensed.Content available through the WVO is copyrighted material, (b) end-users of the WVO Services are granted the right to access and view the WVO Licensed Contcnt through the WVO Services for personal use only and not for commercial purposes of any type, (c) end-users of the WV() Services arc prohibited from reproducing, reselling, transferring, redistributing or creating derivative works from WVO Licensed Content, (d) all right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in the WVO Services and the WVO Licensed Content in all media belong to Pictometry or its third party suppliers, and (e) THE WVO SERVICES AND WVO LICENSED CONTENT ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS AND PICTOMETRY AND EACH THIRD PARTY SUPPLIER OF WVO LICENSED CONTENT EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 2.2 The WVO Services, the WVO Licensed Content, and features and functionality within the WVO Services may be enhanced, added to, withdrawn, or otherwise changed by Pictometry without notice. 2.3 You are aware and understand that any user data collected or stored by the WVO Services may be accessed by US law enforcement agencies under the US PATRIOT Act, You hereby release, and agree to hold Pictometry harmless from, all claims against Pictometry with respect to such access. 3. DISCLAIMERS 3.1 The WVO Services and the WVO Liccnsed Content are provided for visualization purposes only, are not authoritative or definitive, and do not constitute professional engineering or surveying services. 3.2 The WV() Services and the WVO Liccnsed Content are not to be relied upon to precisely locate or determine property boundaries and should not be used in lieu of a professional survey where the accuracy of measurements, distance, height, angle, area and volume, may have significant consequences. 3.3 All measurements and reports generated by the WVO Services or from the WVO Licensed Content are based upon second order visualization and measurement data that do not provide authoritative or definitive measurement results suitable for professional engineering or surveying purposes, 3 4 Contour information obtained from the WVO Services or contained in the WVO Licensed Content is generated from undersampled elevation data, is provided for informational purposes only, anil is not suitable for use as the basis for hydrographic computations, estimations or analyses. 3,5 While the WVO Services and the WVO Liccnsed Contcnt may be considered useful supplements for life critical applications, they are not designed or maintained to support such applications and Pictometry and its third party suppliers of the WVO Services and the WVO Licensed Content hereby disclaim all liability for damages, claims and expenses arising from such use. 3.6 Your reliance on the WVO Services and the WVO Licensed Content should only be undertaken after an independent review of their accuracy, completeness, efficacy, timeliness and adequacy for your intended purpose. 3 7 Pictometry and each third party supplier of any portion of the WVO Services or the WVO Liccnsed Cirntent as"sumc no responsibility for any consequences resulting from the use of the WVO Services or the WVO Liccnsed Content. 3.8 Pictometry and each third party supplier of any portion of the WVO Services or the WVO Licensed Contcnt hereby disclaim all liability for damages, claims and expenses arising from or in any way related to the accuracy or availability of the WVO Services and the WVO Licensed Content. 3.9 By accepting these WVO Terms and Conditions or by using the WVO Services or the WVO Liccnsed Content, you waive any and all rights you may have against Pictometry, each third party supplier of any portion of the WVO Services or the WVO Licensed Content, and each of their directors, officers, members and employees, arising out of use of or reliance upon the WVO Services or the WVO Licensed Content. 4. LIMITED WARRANTY 4.1 Pictometry represents and warrants that it has the right and authority to make the WVO Services and the WVO Licensed Content available to you as authorized expressly by this WVO License Agreement. 4.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 4 1, THE WVO SERVICES AND WVO LICENSED CONTENT ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS AND PICTOMETRY AND EACH THIRD PARTY SUPPLIER OF WVO LICENSED CONTENT EXPRESSLY DISCLAIM ALL OTHF,R WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 5. LIMITATION OF LIABILITY 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 Crum (a) any errors in, or omissions front the WVOServiceS or the WVO Licensed Content, (b) the unavailability or interruption of the WVO Services or any features titer -color the WVO Licensed Content, (c) your or any other party's use of the WVO Services or the WVO Licensed Contcnt, (d) the loss or corruption of any data or equipment in connection with the WVO Services or the WVO Licensed Content, (e) the content, accuracy, or completeness of the WVO Licensed Indian River County, FL — C 170424 20150909 CMT -00047-20150715 Page 11 of 16 Content, all regardless of any assistance received in the use of the WVO Service from a Covered Party, (0 any delay or failure in performance beyond the reasonable control of a Covered Party, or (g) any content retrieved from the Internet even if retrieved or linked to from within the WVO Services. 5.2 "Covered Party" means (a) Pictometry, its affiliates and any officer, director, employee, subcontractor, agent, successor, or assign of Pictometry or its affiliates; and (b) each third party supplier of any WVO Licensed Content, third party alliance entity, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of any third party supplier of any WVO Licensed Content or third party alliance entity and their affiliates. 5.3 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, ANDER NO CIRCUMSTANCES WILL TI IE AGGREGATE LIABILITY OF THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE WVO SERVICES OR THE WVO LICENSED CONTENT OR THIS WVO LICENSE AGREEMENT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT YOU PAID FOR THE WVO SERVICES IN THE TWENTY-FOUR MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY 5.4 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER YOU NOR THE COVERED PARTIES WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE WVO SERVICES, THE WVO LICENSED CONTENT, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY'S INDEMNITY OBLIGATIONS OR YOUR (OR ANY OTHER WVO SERVICES USERS') INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO PICTOMETRY OR ITS THIRD PARTY SUPPLIERS. 5.5 Notwithstanding anything to the contrary in this Section 5 (a) If there is a breach of the warranty in Section 4 I above, then Pictometry, at its option and expense, shall either defend or settle any action and hold you harmless against proceedings or damages of any kind or description based on a third party's claim of patent, trademark, service mark, copyright or trade secret infringement related to usc.of the WVO Sctviecs.or the WVO Licensed Content, asserted against you by such third party provided: (i) all use of dee WVO Services and the WVO Licensed Content was in accordance with this WVO Licerisc Agreement; (ii) the claim, cause of action or infringement was not caused by you modifying or combining the WVO Services or the WVO Licensed Content with or into other products, applications, images or data not approved by Pictometry; (iii) you give Pictometry prompt notice of such claim; and (iv) you give Pictometry the right to control and direct the investigation, defense and settlement of such claim. You, at Pictomctry's expense, shall reasonably cooperate with Pictometry in connection with the foregoing (b) In addition to Section 5.5(a), if the WVO Services, thc operation thereof or the WVO Licensed Content become, or in the opinion of Pictometry are likely to become, the subject of a claim of infringement, Pictometry may, at its option and expense, either: (i) procure for you the right to continue using the WVO Services or the WVO Licensed Content, (ii) replace or modify the WVO Services or the WVO Licensed Content so that they become non -infringing; or (iii) terminate the WVO License Agreement on notice to you and grant you a pro -rata refund or credit (whichever is applicable) for any pre -paid fees or fixed charges. (c) The provisions of Sections 5.5(a) and (b) shall constitute your sole and exclusive remedy for thc respective matters specified therein. 6. MISCELLANEOUS 6.1 The terms and conditions of this WVO License Agreement may be changed from time to time immediately upon notice to you. Harty changes are made to this WVO License Agreement, such changes will (a) only be applied prospectively; and (b) not be specifically directed against you but will apply to all siinilarly situatcd'Pictomctry customers using the WVO Services. You may terminate this WVO Liccnsc Agreement upon written notice to Pictometry if any change to the terms and conditions of this WVO Liccnsc Agreement is unacceptable to you. For termination w be effective under this 'Section 6.1, written notice of termination must be provided to Pictometry within 90 days of the effective date oldie change. Cohtinucd use of the WVO Services following the effective date of•any change constitutes acceptance of the change, but does not affect the foregoing termination,righL Except as provided above, this WVO Liccnsc Agreement may not he supplemented, modified or Otherwise revised unless signed by duly authorized representatives of both parties. Furthermore, this WVO License Agreement may not he supplemented, modified or otherwise revised by email exchange, even if the email contains a printed name or signature line bearing signature -like font. The foregoing does.not prohibit the execution of electronic contracts bearing electronic signatures of authorized representatives of both parties, provided such signatures include digital certifications or are otherwise authenticated. 6.2 In the event of a breach of this WVO License Agreement by you or someone using the WVO Services,.Pictometry may temporarily suspend or discontinuc.providing access to the WVO Services without notice and Pictometry may pursue any other legal remedies avnilahte to it. 6.3 All notices and other communications hereunder shall be in writing. Notices shall be deemed to have been properly given on the date deposited in the mail, if mailed or on the date received, if delivered in any other manner, Legal notices to Pictometry should be sent to Pictometry, Attn: General Counsel, 100 Town Centre Drive, Suite A, Rochester, New York 14623 6.4 The failure of you, Pictometry, or any third party supplier of the WVO Services or any WVO Licensed Content to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time, 6.5 'You may not assign or otherwise transfer your rights or delegate your duties under this WVO Liccnsc Agreement without the prior written consent of Pictometry Any attempt by you to assign, transfer or delegate ynur.rights or obligations under this WVO License Agreement without Pictometry's consent shall be void, and shall also void the limited license granted to you by this WVO License Agreement. This WVO License Agreement and any amendment thereto shall be binding on, and will inure to the benefit of the parties and their respective succcssixs and permitted assigns. 6.6 This WVO License Agreement shall be govemed by and interpreted in accordance with thc laws of the State of New York, excluding its conflicts of law principles. Unless you are a government entity, in the event that any legal proceedings we commenced with respect to any matter arising under this WVO License Agreement, thc 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 of New York 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 shall be in Monroe County, New York or the U S. District Court for the Western District of New York, as applicable. 6.7 This WVO License Agreement will be enforced to the fullest extent pctmittcd by applicable law If any provision of this WVO License Agreement is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent and (b) such invalidity or unenforceability will not affect any other provision of this WVO License Agreement. 6 8 Where applicable, each affiliated company of Pictometry and each third party supplier of the WVO Services or any WVO Licensed Content has the right to assert and enforce the provisions of this WVO I.icense Agreement directly on its own behalf as a third party beneficiary 6.9 In the event of a breach of your obligations under this WVO License Agreement or your payment obligations with respect to access to the WVO Services or the WVO Licensed Content, you agree to pay all of Pictometry's costs of'cnforcemcauand collection, including court costs and reasonable attorneys' fees. 6.10 This WVO License Agreement constitutes the entire agreement of the parties with respect to its subject matter and replaces and supersedes any prior written or verbal communications, representations, proposals or quotations relating to that subject matter. Page 12 of 16 IEND OF WEB VISUALIZATION OFFERING TERMS AND CONDITIONS1 Indian River County, FL— C170424 20150909 CMT -00047.20150715 SECTION B LICENSE TERMS PICTOMETRY SOFTWARE LICENSE AGREEMENT PLEASE READ TIIIS SOFTWARE LICENSE AGREEMENT ,("LICENSE") CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING TIIE SOFTWARE. BY USING; THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS LICENSE. IF YOU'D() NOT AGREE TO TIIE TERMS OF THIS LICENSE, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. GENERAL. The software ("Pictometry Software") and any written materials that accompany the software ("Documentation") in any media or form are licensed, not sold, to you by Pictometry International Corp. ("Pictometry") for use only under the terms of this License. Pictometry reserves all rights not expressly granted to you in this License, 2. LICENSE. Subject to the terms and conditions of this License, you are granted a limited, non -transferable, terminable, non-sublicenseable, non-exclusive license to install and use the Pictometry Software and the Documentation (collectively, the "Proprietary Materials") solely' for internal use. Use of the functionality provided by the Pictometry Software other than for your internal use is prohibited, except with the prior written approval of Pictometry You may make one copy of the Pictometry Software in machine-readable form for backup purposes only; provided that the backup copy must include till copyright and other proprietary notices contained in the original. You will not and will not enable others to decompile, reverse engineer,:disassemble, attempt to derive the source code of, decrypt, modify, create derivative works of, or tamper with or disable any security or monitoring features within the Pictometry Software. Any attempt to do so is a violation of the rights of Pictometry and its licensors, 3. TITLE. The Proprietary Materials ate confidential information of, trade secrets of, and arc proprietary to Pictometry Title to the Proprietary Materials is and will remain in Pictomeuy and its licensors. All applicable rights to patents, copyrights, trademarks, irade.secrets, and other intellectual property rights in the Proprietary Materials arc and Will remain in Pictometry and its licensors. You will not assert any right, title or interest in thc'Proprictary Materials provided to you under this I,icense,,except for the express license granted to you hereunder You will.not remove any copyright or other proprietary notice or legend contained on or included in any Proprietary Materials and you will reproduce all such information on all copies made hereunder You will keep the Proprietary Materials free of all claims, liens and encumbrances. 4. DISCLAIMERS OF WARRANTY. USE OF THE PICTOMETRY SOFTWARE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PICTOMETRY SOFTWARE IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PICTOMETRY HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE PICTOMETRY SOFTWARE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. PICTOMETRY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN OR PROVIDED BY THE PICTOMETRY SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PICTOMETRY SOFTWARE WILL BE UNINTERRUPTED OR ERROR -FREE, OR THAT DEFECTS IN THE PROPRIETARY MATERIALS WILL BE CORRECTED 5. LIMITATION OF LIABILITY. IN NO EVENT WILL PICTOMETRY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PICTOMETRY SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), EVEN IF PICTOMETRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PICTOMETRY'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) CAUSED BY, ARISING OUT OF OR IN ANY WAY RELATED TO THE PICTOMETRY SOFTWARE EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 6. TERMINATION. This License will terminate automatically without notice from Pictometry if you fail to comply with any term of this License. Upon the termination of this License, you will cease all use of the Pictometry Software and destroy all copies, full or partial, of the Proprietary Materials. 7. MISCELLANEOUS PROVISIONS. A. Restricted Rights. Pictometry Software acquired with United States Government funds or intended for use within or for any United States federal agency is provided -with "Restricted Rights" as defined in DFARS 252.227-7013, Rights in Technical Data and Computer Software and FAR 52.227- 14, Rights in Data -General, including Alternate III, as applicable. Pictometry Must he notified in advance -of any license grants to United States federal governmental entities: The Pictometry Software is developed for general use in'a variety of applications and is not developed or intended fon use in any inherently dangerous applications or applications that could lead to property damage, personal injury or death. If'you use the Pictometry.Softwarc in such applications, that you will be responsible fin• taking all appropriate fail-safe, backup, redundancy, and other measures to ensure the safe use of the Pictometry Software in such applications, including but not limited to, in any nuclear, aviation, mass transit, public safety or medical applications. B. Foreign Trade Restrictions The parties acknowledge that certain information, software technology, accompanying documentation and technical information may be subject to United States export control laws. You will not directly or indirectly export or re-export the Pictometry Software in violation of the Export Administration Regulations of the U S. Department of Commerce, C. Governing Law. This License will be govemed by and interpreted in accordance with the laws of the State of New York, excluding its conflict of laws principles. D Assignment You may not assign this License without I'ictornetry's prior written consent. Any assignment in violation of this License will be null, void and of no force and effect. For all purposes under this'License, any merger, consolidation, spin-off, acquisition or change -in -control will be deemed an assignment. E. Partial Invalidity; Survival. If any provision of this License is held invalid or unenforceable by competent authority, that provision will be construed so as to be limited or reduced to be enforceable to the maximum extent compatible with the law as it will then appear. The total invalidity or Page 13 of 16 Indian River County, FL — C170424 20150909 CMT -00047-20150715 unenforceability of uny particular provision of this License will not affect its other provisions and this License will be construed in all respects as if the invalid or.unenforceahle provision we a omitted. The provisions of this License that by their nature would survive its termination will survive indefinitely F Force Majeure. Neither party will he liable liter any costs or damages due to nonperformance under this License arising out of any cause not within the reasonable control of such party and without its fault or negligence. Neither party will be liable for any delay or failure in the performance of its obligations under this License that directly results from any failure of the other party to perform its obligations as set forth in this License G. Waiver. No waiver of a breach of any term of this License will be effective unless in writing and duly executed by the waiving party No such waiver will constitute a waiver of any subsequent breach of the same or any other term of this License, No failure on the part of a party to exercise, and no delay in exercising any of its rights hereunder will operate as a waiver thereof, nor will any single or partial exercise by a party of any right preclude any other or future exercise thereof or the exercise of any -other right. No course of dealing between the parties will be deemed effective to modify, amend or discharge arty part of this License or the rights or obligations of any party hereunder H. Entire Agreement; Construction. This Liccnsc contains the entite understanding of the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous understandings regarding that suhject matter No amendment to or modification of this Liccnsc will be binding unless in writing and signed by Pictometry. There are no representations, warranties, or obligations of imy party not -expressly contained herein. The headings in this License are for convenience only. They do not constitute a portion of this License and will not be used in any construction of it, Page 14 of 16 [END OF SOFTWARE LICENSE AGREEMENT] Indian River County, FL — C 170424 20150909 CMT -00047-20150715 SECTION C NON-STANDARD TERMS AND CONDITIONS 1 Online Services Eligible Users: Notwithstanding anything in the Online Services General Terms and Conditions incorporated in this Agreement to the contrary, the terms 'Eligible User' and 'Eligible Users' as defined in those Online Services General Terms and Conditions shall, for the purposes of this Agreement, also include each 'Authorized User' as that term is defined in the Delivered Content Terms and Conditions of Use incorporated in this Agreement. 2. With respect to the Pictometry Connect View service ("PCV Service") as described in Section A, Pictometry warrants that if a reduction in the resolution of the imagery, or otherwise changed feature, reduces the value of the PCV Service to Customer, Customer has the option to terminate the PCV Service, without penalty, and will receive a prorated refund for any amount prepaid up until the time of termination. Page 15 of 16 [END OF NON-STANDARD TERMS AND CONDITIONS] Indian River County, FL— C170424 20150909 CMT -00047-20150715 SECTOR MAP C") , efo C m C, (.) m 0 m m - n «'ice n _ m {`r m Q' n (D CJ 3 $. '`n m 7.1 ii nt r— r- 4 ri ✓I r") m ,1 4 Page 16 of 16 Indian River County,FL—C170424 20150909 CMT-00047-20150715