|
DocuSign Envelope ID: 1 DCC7D1 E-6EEC-4382-AE73-8235B57FAB10
<br />equipment in connection with the WVO Services or the WVO Licensed Content, (e) the content, accuracy, or completeness of the WVO Licensed Content,
<br />all regardless of any assistance received in the use of the WVO Service from a Covered Party, (f) any delay or failure in performance beyond the reasonable
<br />control of a Covered Party, or (g) any content retrieved from the Internet even if retrieved or linked to from within the WVO Services.
<br />5.2 "Covered Party" means (a) Pictometry, its affiliates and any officer, director, employee, subcontractor, agent, successor, or assign of Pictometry or its
<br />affiliates; and (b) each third party supplier of any WVO Licensed Content, third party alliance entity, their affiliates, and any officer, director, employee,
<br />subcontractor, agent, successor, or assign of any third party supplier of any WVO 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 WVO SERVICES OR THE WVO
<br />LICENSED CONTENT OR THIS WVO LICENSE AGREEMENT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE
<br />AMOUNT YOU PAID FOR THE WVO SERVICES IN THE TWENTY-FOUR MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE
<br />CLAIM AROSE. YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU
<br />MAY HAVE 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 WVO SERVICES,
<br />THE WVO 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 (OR ANY OTHER WVO SERVICES
<br />USERS') INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO
<br />PICTOMETRY OR ITS 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 and hold you
<br />harmless against proceedings or damages of any kind or description based on a third parry's claim of patent, trademark, service mark, copyright or
<br />trade secret infringement related to use of the WVO Services or the WVO Licensed Content, asserted against you by such third party provided: (i) all
<br />use of the WVO Services and the WVO Licensed Content was in accordance with this WVO License Agreement; (ii) the claim, cause of action or
<br />infringement was not caused by you modifying or combining the WVO Services or the WVO Licensed Content with or into other products,
<br />applications, images or data not approved by Pictometry; (iii) you give Pictometry prompt notice of such claim; and (iv) you give Pictometry the right
<br />to control and direct the investigation, defense and settlement of such claim. You, at Pictometry's expense, shall reasonably cooperate with Pictometry
<br />in connection with the foregoing.
<br />(b) In addition to Section 5.5(a), if the WVO Services, the operation thereof or the WVO Licensed Content become, or in the opinion of Pictometry are
<br />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
<br />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
<br />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
<br />any pre -paid fees or fixed 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 terms and conditions of this WVO License Agreement may be changed from time to time immediately upon notice to you. If any changes are made to
<br />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
<br />similarly situated Pictometry customers using the WVO Services. You may terminate this WVO License Agreement upon written notice to Pictometry if
<br />any change to the terms and conditions of this WVO License Agreement is unacceptable to you. For termination to be effective under this Section 6.1,
<br />written notice of termination must be provided to Pictometry within 90 days of the effective date of the change. Continued use of the WVO 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 WVO License Agreement may not be supplemented, modified or otherwise revised unless signed by duly authorized representatives of both
<br />parties. Furthermore, this WVO License Agreement may not be supplemented, modified or otherwise revised by email exchange, even if the email contains
<br />a printed name or signature line bearing signature -like font. The foregoing does not prohibit the execution of electronic contracts bearing electronic
<br />signatures of authorized 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 WVO License Agreement by you or someone using the WVO Services, Pictometry may temporarily suspend or discontinue
<br />providing access to the WVO Services without notice and Pictometry may pursue any other legal remedies available to it.
<br />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,
<br />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, 25
<br />Methodist Hill Drive, Rochester, New York 14623.
<br />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
<br />constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
<br />6.5 You may not assign or otherwise transfer your rights or delegate your duties under this WVO License Agreement without the prior written consent of
<br />Pictometry. Any attempt by you to assign, transfer or delegate your rights or obligations under this WVO License Agreement without Pictometry's consent
<br />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
<br />thereto shall be binding on. and will inure to the benefit of the parties and their respective successors and permitted assigns.
<br />6.6 This WVO 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. Unless you are a government entity, in the event that any legal proceedings are commenced with respect to any matter arising under this WVO
<br />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
<br />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
<br />such action shall be in Monroe County, New York or the U.S. District Court for the Western District of New York, as applicable.
<br />6.7 This WVO License Agreement will be enforced to the fullest extent pe.uiitted by applicable law. If any provision of this WVO License Agreement is held to
<br />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
<br />valid, enforceable and consistent with its original intent and (b) such invalidity or unenforceability will not affect any other provision of this WVO License
<br />Agreement.
<br />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
<br />assert and enforce the provisions of this WVO License Agreement directly on its own behalf as a third party beneficiary.
<br />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
<br />the WVO Licensed Content, you agree to pay all of Pictometry's costs of enforcement and collection, including court costs and reasonable attorneys' fees.
<br />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
<br />or verbal communications, representations, proposals or quotations relating to that subject matter.
<br />Page 9 of 12
<br />[END OF WEB VISUALIZATION OFFERING TERMS AND CONDITIONS]
<br />City of Everett, WA — C 11015736 2019-06-25 DD-0001-20160318
<br />
|