THIS TELE ATLAS NORTH AMERICA, INC. ONLINE GEOCODING
SERVICES AGREEMENT (the "Agreement") is entered into by and between
Tele Atlas North America, Inc., a
1. Definitions.
“Geocoding Results” means postal, geographic and census data appended to End User’s street address records.
“Software” means an executable program that allows End User to open files of records containing street addresses on End User’s computer and source code that documents the protocol for performing transactions with TANA’s server. The source code contains routines for connecting and logging on to the server, sending records containing street addresses to the server via the Internet, postally standardizing and geocoding the records, sending Geocoding Results back to the End User’s computer via the Internet, interpreting the Geocoding Results and detecting and reporting errors in the geocoding process.
“Products” means the Geocoding Results and the Software.
2. License. TANA hereby grants End User a
non-exclusive, non-transferable license to (a) download the Software from
TANA’s Website, (b) use the Software to configure End User’s address records
(the “Records”) into a format readable by TANA’s Internet server, (c) access
TANA’s Internet server through the use of a security password in order to
process and append the Geocoding Results to the Records (the “Data File”), (d) download the Data File from TANA’s Internet server and (e) use the geocoding
results for internal business purposes
which includes the right to use the Data File and/or Geocoding Results within
End User’s company by employees with password access. This license
grant is conditioned upon End User’s compliance with the payment of all
applicable fees as set forth in Section 4 below and with all provisions of this
Agreement. Upon delivery of the Data File to End User, TANA shall promptly
destroy any and all copies of the Records and the Data File.
3. Prohibitions on Use of Software
and Geocoding Results. End User
shall not distribute, disclose, market, rent, publish, sell, assign, lease,
sublicense, transfer or use the Products in any manner not expressly authorized
by this Agreement. End User does not receive any, and TANA retains all,
ownership rights in the Products. The
Products are copyrighted and may not be copied (except for internal or business
use as permitted above by this Agreement), even if modified or merged with
other software or data. End User shall
not alter or remove any copyright notice or proprietary legend contained in or
on the Products. End User shall not
duplicate, manufacture, copy or reproduce any Products, or any portion, except
as necessary for backup and archival purposes.
4. Payment. End User agrees to pay to TANA the fee for
geocoding the specific number of records requested by End User at the time of
registration for the Products (the
“Fee”). The Fee is due and payable upon
execution of this Agreement and prior to End User being given a user name and
password. Once the End User has geocoded
the full number of records allowed under the Fee, End User’s access to TANA’s
Internet server will automatically be discontinued. End User may pay to TANA another fee for the
geocoding of further records under an amendment to this Agreement. If End User does not geocode the full number
of records allowed by the Fee within one (1) year, this Agreement will
terminate and End User will need to pay a new fee to obtain access to TANA’s
Internet server. End User will not receive
a refund of the Fee or any portion for any unused transactions after the one
(1) year term. End User shall pay any
taxes on the Fee, except for those based on TANA's annual net income.
5. Confidentiality of the Products. The Products, including all portions,
together with all materials and knowledge related thereto (the “Confidential
Items”), are obtained by End User, and its employees, agents and
representatives, in confidence and trust and except as expressly permitted by
this Agreement, shall not be used, duplicated or disclosed by any of them in
any form for the use or benefit of any person or entity, nor reproduced,
transcribed, imitated or simulated in whole or in part. End User may disclose relevant aspects of the
Confidential Items to its employees, agents or representatives with a need to
know who have been advised of and bound by the confidentiality provisions of
this Agreement. End User shall take all
other reasonable steps to maintain the confidentiality of the Products and to
protect the Products from misappropriation or misuse. End User shall notify TANA immediately if End
User learns of any misappropriation of the Products or use of the Products by
anyone in any manner not expressly authorized by this Agreement and shall
cooperate with any efforts by TANA to prevent any misappropriation or misuse of
the Products. In the event of any
violation or suspected violation of any provision of this Section 4, End User
shall immediately notify TANA and shall, at its expense, assist TANA in TANA’s
enforcement of Section 4 against any current or former employee, agent or
representative of End User.
6. Warranty Disclaimer. Due to the complexity of geocoding, the
Products may contain some non-conformities, omissions, defects or errors. TANA does not warrant that the Products will
meet End User’s needs or expectations, that the Products will be error-free or
complete, or that all non-conformities can or will be corrected. TANA provides the Products on an “AS IS” and
“WITH ALL FAULTS” basis. End User
assumes the entire risk of loss in using the Products. TANA does not warrant that End User’s use of
the TANA server will be uninterrupted or that the operation of the Products and
TANA server will be error-free or secure. TANA MAKES AND END USER RECEIVES NO
WARRANTY, WHETHER EXPRESS OR IMPLIED, AND ALL WARRANTIES OF MERCHANTABILITY,
FITNESS FOR ANY PARTICULAR PURPOSE AND NONINFRINGEMENT ARE EXPRESSLY
EXCLUDED. THE STATED EXPRESS WARRANTY IS
THE EXCLUSIVE REMEDY FOR DAMAGES AND IS IN LIEU OF ALL LIABILITIES OR
OBLIGATIONS OF TANA.
THE
WARRANTY EXCLUSION SET
7. Indemnification.
End User shall indemnify, defend and hold harmless TANA at End User’s sole
expense against any and all losses, damages, claims, demands, expenses,
including reasonable attorney’s fees and costs, made or brought against TANA
arising from or connected with the Data File (including but not limited to, any
claim of infringement or misappropriation of any intellectual property rights
by a third party), breach of title, or breach of any provision of this
Agreement by End User; and/or End User’s use of the Geocoding Results. End User
hereby warrants to TANA that End User has all necessary rights, power,
authority and licenses necessary to deliver the Data File to TANA and to
authorize TANA to process the Data File, and agrees to hold harmless and
indemnify TANA from any breach of this warranty.
8. Limitation
of Liability. IN NO EVENT SHALL
TANA’S AGGREGATE LIABILITY FOR ALL MATTERS ARISING OUT OF THE SUBJECT MATTER OF
THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNTS PAID
TO TANA BY LICENSEE UNDER THIS AGREEMENT. TANA SHALL NOT BE LIABLE TO LICENSEE
FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, AND THE LIKE) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR
INABILITY TO USE THE PRODUCTS, EVEN IF TANA HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
9. Term
and Termination. Unless
terminated earlier pursuant to any provision of this Section 8, this Agreement
shall commence on the date of initial registration for the Products and shall
continue in force until the earlier of
(a) the number of transactions purchased and paid for by End User are
used up and no more are purchased, or (b) one (1) year, at which time this
Agreement will expire automatically without judicial action. TANA shall have
the right to terminate the Agreement at any time with thirty (30) days prior
written notice. End User does not have
or acquire by execution of this Agreement, by performance hereunder, or
otherwise, any vested right with respect to the Products or the renewal of this
Agreement. If TANA continues a business
relationship with End User after termination or non-renewal of this Agreement,
that relationship shall not be construed as a renewal of this Agreement or a
waiver of termination, but such relationship shall be “at will,” terminable at
any time with or without cause or notice by either Party, and all such transactions
shall be governed by terms otherwise identical to the relevant provisions of
this Agreement. TANA may terminate this
Agreement immediately without notice if End User violates any of the provisions
of Sections 2, 3 or 5; and with thirty (30) days notice and opportunity to cure
if End User commits a material breach of any other provision of this Agreement
or otherwise fails materially to fulfill any of its obligations hereunder. All
Sections of this Agreement except Sections 1 and 2 shall survive termination of
this Agreement. All Sections of this Agreement except Section 1 shall survive
expiration of this Agreement. Promptly upon expiration or termination of this
Agreement, End User shall destroy all copies of the Software.
10. Miscellaneous. This is the exclusive Agreement between TANA
and End User regarding its subject matter which may only be amended by a
writing signed by both Parties. End User
shall not assign any part of this Agreement without TANA's prior written
consent. This Agreement shall be
governed by the internal laws of
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