RoadSafe GIS Agreement for Software and Services
IMPORTANT PLEASE READ CAREFULLY
This Agreement for Software and Services along with all materials referenced herein (“Agreement”) is a legal agreement between an entity or political subdivision (“User”) and RoadSafe GIS, Inc., a Delaware corporation (“RoadSafe GIS”) permitting User to access and use, subject to the terms of this Agreement, (i) RoadSafe GIS’s software identified on the license agreement page, and accompanying documentation provided electronically (“Software”) and (ii) services relating to User’s access and use of the Software, including the provision of a web site, content therein and hardware and software relating thereto (“Services”). USERS MUST READ THIS AGREEMENT CAREFULLY BEFORE INDICATING ACCEPTANCE BY LOGGING INTO THE ROADSAFE GIS APPLICATION.
- LICENSE GRANT. Subject to the terms of this Agreement, RoadSafe GIS grants User a nonexclusive, nontransferable license to access and use the Software and Services for internal business purposes only, without the right to sublicense such rights, provided User unconditionally agrees to access and use the Software and Services in accordance with this Agreement (“License”). Under the License, User may print out, or otherwise make, printed copies (“Copies”) of the reports, numeric results, and other information or materials generated from User’s access and use of the Software and Services for internal business purposes only. Any updates, modifications, enhancements or new versions of the Software and Services provided or made available to User by RoadSafe GIS, in accordance with Section 14 of this Agreement, shall be considered Software and Services subject to this Agreement. RoadSafe GIS may at any time and for any reason elect to modify, discontinue, delete or restrict any aspect or feature of the Software and Services without notice to User or any liability to RoadSafe GIS or any RoadSafe GIS Party (as defined in Section 2); however, RoadSafe GIS agrees to make commercially reasonable efforts to provide User with prior notice of any such changes.
- DISCLAIMERS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SOFTWARE AND SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RoadSafe GIS AND ITS DIRECTORS, OFFICERS, LICENSORS, SUBCONTRACTORS AND AGENTS (“RoadSafe GIS PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND SERVICES OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT AND ACCURACY; (B) NEITHER RoadSafe GIS NOR ANY RoadSafe GIS PARTY WARRANTS THAT THE SOFTWARE AND SERVICES ARE OR WILL BE ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; (C) USER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF RoadSafe GIS’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) EACH OF RoadSafe GIS AND THE RoadSafe GIS PARTIES DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE REPORTS, DATA, SCORES, RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY USER FROM ACCESSING AND/OR USING THE SOFTWARE AND/OR SERVICES OR OTHERWISE RESULTING FROM THIS AGREEMENT, AND (E) USE OF THE SOFTWARE, SERVICES AND REPORTS IS ENTIRELY AT USER’S OWN RISK AND RoadSafe GIS AND EACH OF RoadSafe GIS PARTIES SHALL HAVE NO LIABILITY OR RESPONSIBILITY THEREFOR.
- LIMITATIONS ON LIABILITY. THE TOTAL LIABILITY OF RoadSafe GIS AND THE RoadSafe GIS PARTIES IN THE AGGREGATE TO USER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE AND SERVICES WILL BE LIMITED TO THE PAYMENTS RECEIVED FROM USER UNDER THIS AGREEMENT. RoadSafe GIS AND THE RoadSafe GIS PARTIES SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY TYPE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE AND/OR SERVICES, WHETHER OR NOT RoadSafe GIS AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE). RoadSafe GIS AND THE RoadSafe GIS PARTIES SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM ALTERATION, DESTRUCTION OR LOSS OF ANY DATA OR INFORMATION INPUT, GENERATED OR OBTAINED FROM ACCESS AND/OR USE OF THE SOFTWARE AND SERVICES, INCLUDING ANY REPORTS OR NUMERIC RESULTS, WHETHER OR NOT RoadSafe GIS AND THE RoadSafe GIS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF DAMAGES AND LIABILITIES SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN RoadSafe GIS AND USER, AND THE PRICING FOR THE LICENSE REFLECTS SUCH LIMITATIONS. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES (SUCH AS CONSEQUENTIAL OR INCIDENTAL DAMAGES), OR THE EXCLUSION OF IMPLIED WARRANTIES AND LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, THE ABOVE LIMITATIONS MAY NOT APPLY TO USER. NOTWITHSTANDING THE FOREGOING, RoadSafe GIS WILL INDEMNIFY USER AND HOLD IT HARMLESS FROM AND AGAINST ANY LIABILITY, JUDGMENTS, CLAIMS, LOSSES AND EXPENSES (INCLUDING ATTORNEYS’ FEES) RESULTING FROM OR RELATED TO A CLAIM BY ANY PARTY CLAIMING DAMAGES FOR INFRINGEMENT OF COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY BASED ON MATERIAL SUPPLIED BY RoadSafe GIS TO USER UNDER THIS AGREEMENT.
- USER REPRESENTATIONS AND WARRANTIES. User represents and warrants to RoadSafe GIS that this Agreement shall be binding on User, and, unless User is an individual, User represents and warrants that this Agreement was executed by an authorized signatory of User with the authority to enter into binding agreements on behalf of User.
- PROPRIETARY RIGHTS. The Software and Services are protected by applicable United States and foreign laws and treaties, including copyright laws and treaty provisions. RoadSafe GIS or its licensors own all rights, title and interests in the Software and Services, including trade secrets, patents, copyrights and database rights, and the Software and Services shall remain the sole and exclusive property of RoadSafe GIS or its licensors. Except as provided in Section 1 of this Agreement, User has no, and is not granted, any right, title, interest or license in the Software or Services.
- RESTRICTIONS ON USE. Software and Services. Except as otherwise expressly provided in this Agreement, User agrees to: (a) only use the Software and Services in the manner, and for the purposes, expressly specified in this Agreement; (b) not decompile, disassemble, analyze or otherwise examine the Software and Services for the purpose of reverse engineering (except to the extent this restriction is expressly prohibited by applicable law); (c) not delete or in any manner alter any notices, disclaimers or other legends contained in the Software and Services or appearing on any screens, documents, reports, numeric results or other materials obtained by User through use of the Software and Services (“Notices”); (d) reproduce and display all Notices on Copies User makes, in accordance with this Agreement; (e) not provide service bureau facilities or commercial time-sharing services to any third party or supporting operations for any third party through the access and/or use of the Software and/or Services; (f) not attempt to access any systems, programs or data of RoadSafe GIS or any RoadSafe GIS Party that are not licensed under this Agreement, or otherwise made available by RoadSafe GIS or a RoadSafe GIS Party for public use; (g) not copy, reproduce, republish, upload, post, transmit, or distribute the Software or Services, or any portion thereof, or facilitate or permit a third party to do so; (h) not use any device or software to interfere or attempt to interfere with the proper operation of the Software and Services; (i) not ship, transmit, transfer, or export the Software and Services into any country or use the Software and Services in any manner prohibited by United States export laws, restrictions or regulations; and (j) abide by all applicable local, state, national and international laws and regulations, including The Health Insurance Portability and Accountability Act of 1996 and all laws, rules and regulations relating thereto.
- DATA. User agrees that RoadSafe GIS and the RoadSafe GIS Parties are permitted to access any information or data User inputs or provides while accessing or using the Software and Services (“Data”) and any reports or numeric results, and prior to User’s submission of Data, reports and numeric results, for the sole purpose of ensuring proper access and use of the Software and Services by User in accordance with this Agreement and to maintain and troubleshoot Software and Services. Following User’s submission of Data, reports and numeric results to RoadSafe GIS, RoadSafe GIS has access to such Data, reports and numeric results in accordance with this Agreement. Subject to the terms and conditions of this Agreement, RoadSafe GIS shall store and otherwise maintain Data, reports and numeric results, and RoadSafe GIS shall follow the same archival procedures for User’s Data, reports and numeric results as RoadSafe GIS employs for its own data, as modified from time to time in RoadSafe GIS’s discretion. In the event of any loss or damage to User’s Data, reports or numeric results, User’s sole and exclusive remedy shall be for RoadSafe GIS to use commercially reasonable efforts to replace or restore the lost or damaged data from the latest backup of such Data, reports or numeric results which RoadSafe GIS has maintained in accordance with its standard archival procedures.
- CONFIDENTIALITY. User acknowledges that the Software and Services constitute and contain confidential, proprietary and copyrighted information and subject matter of RoadSafe GIS and RoadSafe GIS Parties (“Confidential Information”). User agrees to not, directly or indirectly, without RoadSafe GIS’s prior written consent, use the Confidential Information for any purpose other than as expressly permitted under this Agreement; divulge, discuss, provide, transmit, copy, make available or otherwise communicate the Confidential Information to a third party; or permit any third party to use such Confidential Information. “Confidential Information” shall not include information that, as shown by competent evidence: (a) is in or enters the public domain without breach of this Agreement; (b) was possessed by User prior to first receiving it from RoadSafe GIS or a RoadSafe GIS Party; (c) was developed by User independently and without use of or reference to the Confidential Information; or (d) was received by User from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Notwithstanding the foregoing, each party shall be permitted to disclose Confidential Information of the other party if such disclosure is required by law, provided that the party required to disclose Confidential Information of the other party shall (y) give prompt notice of such requirement to the other Party so it will have the opportunity to seek a protective order or other appropriate remedy; and (z) cooperate in the other party’s attempts to obtain confidential treatment of such Confidential Information.
- TRADENAMES AND TRADEMARKS. This Agreement does not grant to any party a license to use any trademark, trade name, or logo of the other party, and each party recognizes that the trademarks, trade names, and logos of the other party represent valuable assets of that party and that substantial recognition and goodwill are associated with such trademarks, trade names, and logos. Each party hereby agrees that it shall not use or permit any third party to use, at any time, the other party’s trademarks, trade names, or logos.
- INJUNCTIVE RELIEF. Each party acknowledges that a violation of Sections 7, 9 or 10 of this Agreement would cause irreparable harm to the other party for which no adequate remedy at law exists and each party therefore agrees that, in addition to any other remedies available, the aggrieved party shall be entitled to seek injunctive relief to enforce the terms of Sections 7, 9 or 10. The prevailing party shall be entitled to recover all costs and expenses, including reasonable attorneys’ fees incurred because of any such legal action.
- HARDWARE AND SERVICE REQUIREMENTS. User is solely responsible for acquiring, servicing, maintaining, and updating all equipment, computers, software and communications services (such as long distance phone charges) not owned or operated by or on behalf of RoadSafe GIS, that allow User to access and use the Software and Services, and for all expenses relating thereto (plus any applicable taxes). User agrees to access and use the Software and Services in accordance with any and all operating instructions or procedures that may be issued by RoadSafe GIS, and amended by RoadSafe GIS from time to time. RoadSafe GIS and the RoadSafe GIS Parties do not make any commitments with respect to use or performance of the Software and Services with browsers other than the latest versions of Google Chrome, Mozilla Firefox and Internet Explorer.
- PERFORMANCE. User understands and agrees that the operation and availability of the systems used for accessing and interacting with the Software and Services, including, the public telephone, computer networks and the Internet or to transmit information, whether or not supplied by User or RoadSafe GIS, can be unpredictable and may, from time to time, interfere with or prevent the access to and/or the use or operation of the Software and Services. RoadSafe GIS and the RoadSafe GIS Parties are not in any way responsible for any such interference with or prevention of User’s access and/or use of the Software and Services.
- TRAINING AND SUPPORT. Unless User and RoadSafe GIS enter into a separate agreement, RoadSafe GIS will not provide any training or on-site support to User relating to the Software and Services. RoadSafe GIS will provide User with (a) commercially reasonable telephone and email support for the Software and Services during normal business hours; and (b) updates and enhancements for the Software and Services, to the extent that RoadSafe GIS generally makes such updates and enhancements available to Users without a separate charge.
- INDEMNITY. User agrees to defend, indemnify and hold RoadSafe GIS and each RoadSafe GIS Party, as well as the directors, officers, agents, and employees of RoadSafe GIS and each RoadSafe GIS Party, harmless from any losses, liabilities, damages, actions, claims or expenses (including reasonably attorneys’ fees and court costs) arising or resulting from User’s breach of any term of this Agreement or caused by acts or omissions performed by User or under User’s Password or any password issued to Licensed Users.
- U.S. GOVERNMENT USERS. If User uses the Software and Services on behalf of a U.S. Government agency, this Agreement constitutes the entire agreement between the Government agency and RoadSafe GIS and is binding on government users in accordance with the policy stated at Federal Acquisition Regulation (FAR) [48 CFR] §§ 12.211 and 12.212 (for non-defense agencies) or Defense FAR Supplement (DFARS) [48 CFR] §§ 227.7201 and 227.7202 (for defense agencies). The Software and Services are commercial items which have been developed at private expense and not under a Government contract. Pursuant to Federal Acquisition Regulation (FAR) [48 C.F.R.] § 12.212 (for non-defense agencies) and Defense FAR Supplement (DFARS) [48 C.F.R.] § 227.7202-1 for defense agencies, the Government’s rights in the Software and Services are limited to those rights granted in this Agreement.
- TERMINATION. User’s right to use the Software and Services shall be effective from the date User accepts this Agreement by clicking “I ACCEPT” below, and shall terminate when User ceases all access and use of the Software and Services and provides RoadSafe GIS with notice of such termination or as otherwise provided in this Agreement. RoadSafe GIS may terminate this Agreement immediately if User breaches a material term of this Agreement and fails to remedy that breach within five (5) business days after notice from RoadSafe GIS. Upon termination of this Agreement, all rights, including the License granted to User, under this Agreement will cease and User’s access to the Software and Services may be disabled. Upon termination of this Agreement, Sections 2, 3, 5, 6, 7, 9, 10, 11, 15, 16, 17, 18, and 19 of the Agreement, along with all payment obligations under this Agreement, shall survive such termination.
- ELECTRONIC AGREEMENT/NOTICES.
- 18A. Notices. All questions, comments or notices concerning this Agreement shall be submitted to RoadSafe GIS by User via email at email@example.com or via mail at: RoadSafe GIS, Attention: Customer Support, PMB 204, 2425 Channing Way Ste B, Berkeley, CA 94705. All notices to be given under this Agreement to User shall be submitted by RoadSafe GIS via email at the account User provided to RoadSafe GIS pursuant to Section 4 or to User upon accessing the Software and Services.
- 18B. Acceptance. By clicking “I accept” below and providing RoadSafe GIS with User’s email address under Section 4, User agrees and consents to (i) contract electronically with RoadSafe GIS for the Software and Services in accordance with this Agreement; (ii) receipt of electronic legal notices regarding this Agreement to the email account User provided under Section 4 or upon accessing the Software and Services; and (iii) that by clicking “I accept”, User intends to be bound by this Agreement.18C. Changes. If User consented to receive ongoing legal notices from RoadSafe GIS via email User may (i) update its email information by providing notice to RoadSafe GIS and/or (ii) withdraw such consent by providing notice to RoadSafe GIS. Please be aware that if User withdraws its consent, such withdrawal of consent will not be effective until the date of receipt. The legal effect of this intervening time period is that User is still bound by the terms of this Agreement during such period. The legal consequence of withdrawing User’s consent shall not act to void or invalidate User’s actions prior to the effective date that shall remain subject to the terms of this Agreement. Upon withdrawing User’s consent, User will be responsible for all incurred fees and charges payable under this Agreement.
- 19B. Force Majeure. RoadSafe GIS shall not be responsible for any failure to perform due to causes beyond its reasonable control, including, acts of God, acts of terrorism, war, riot, embargoes, acts of civil or military authorities, national disasters, strikes and the like.
- 19C. Governing Law and General Provisions. This Agreement will be governed by the laws of the State of California, excluding the application of its conflicts of law rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the remainder of the Agreement, which shall remain valid and enforceable according to its terms. The words “and” as well as “or” shall be interchangeable to provide the broadest interpretation, and the word “including” shall mean “including without limitation” and “including but not limited to” to provide the broadest interpretation. The headings contained in this Agreement are for reference only and shall not affect the meaning or interpretation of this Agreement. RoadSafe GIS’s failure to exercise or enforce any right or power under this Agreement shall not constitute a waiver of such right or power.
- 19D. Nothing contained in this Agreement is intended to confer upon any person other than the parties hereto and their respective successors and permitted assigns, any benefit, right or remedy under or by reason of this Agreement, except with respect to RoadSafe GIS Parties who shall be deemed third party beneficiaries under this Agreement but solely with respect to those terms that specifically reference a RoadSafe GIS Party.
- 19E. Certain materials incorporated herein are Copyright © 2009 – 2014, The Regents of the University of California (REGENTS). All Rights Reserved. The University of California specifically disclaims any warranties, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The software provided hereunder is on an “as is” basis, and the University of California has no obligation to provide maintenance, support, updates, enhancements, or modifications.
IN NO EVENT SHALL REGENTS BE LIABLE TO ANY PARTY FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF THE USE OF THIS SOFTWARE AND ITS DOCUMENTATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
REGENTS SPECIFICALLY DISCLAIMS ANY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE AND ACCOMPANYING DOCUMENTATION, IF ANY, PROVIDED HEREUNDER IS PROVIDED “AS IS”. REGENTS HAS NO OBLIGATION TO PROVIDE MAINTENANCE, SUPPORT, UPDATES, ENHANCEMENTS, OR MODIFICATIONS