PORTAL END-USER LICENSE AGREEMENT (“EULA”)


USE OF DIGITALGLOBE OWNED AND/OR CONTROLLED SATELLITE IMAGERY, METADATA, AND OTHER DATA PROVIDED (“LICENSED IMAGES”) OF DIGITALGLOBE, INC. (“LICENSOR”) IS PROHIBITED UNLESS THESE TERMS ARE ACCEPTED. TRANSPARENT WORLD (“LICENSEE”) MAY INCORPORATE THE LICENSED IMAGES IN ITS ENVIRONMENTAL PORTAL EMBEDDED ACCESSIBLE EXCLUSIVELY THROUGH LICENSEE SERVERS (“PERMITTED PRODUCTS”) SUBJECT TO THE TERMS HEREIN.   INSTALLING AND/OR USING THE LICENSED IMAGES (AS FURTHER DEFINED BELOW) MEANS THAT LICENSEE AND ITS END-USERS AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE.



1. Grant of License.  Licensee agrees to use the Licensed Images only in accordance with these terms.  Subject to the terms and conditions herein, Licensor hereby grants Licensee a worldwide, nonexclusive, royalty-free, perpetual license to:  (i)  copy Licensed Images for use in the Permitted Products and distribute in non-extractable, non-modifiable form as embedded in the Permitted Products; adapt, alter, modify or edit the Licensed Images solely to format and properly use the Licensed Images within the Permitted Products; publicly display as an embedded part of the Permitted Products; use the Licensed Images internally and externally as an integrated component of the Permitted Products; (ii) grant to End Users the right to access, and view in JPEG form the licensed Images as incorporated in the Permitted Products; provided however, Licensee must prohibit End Users from otherwise downloading, duplicating, copying, modifying, altering or transferring Licensed Images; and, (iii)  sublicense to End Users the right to use the Licensed Images as part of the End User’s use of the Permitted Products under terms that are no less restrictive than the License granted herein.  “End User”, as used herein, means consumers of Licensee Permitted Products that use such products for on-line viewing, but do not resell or otherwise re-distribute the products and services for an incremental fee.



2. Reservation of Rights. Licensor reserves all rights to the Licensed Images not expressly granted to Licensee under this EULA, including, without limitation, exclusive ownership of all Proprietary Rights associated with the Licensed Images. For the avoidance of doubt, none of the provisions of this Section 2 authorize Licensee to use or distribute the Licensed Images other than as part of or in connection with its Permitted Products and subject to the terms and conditions set forth in this EULA. Licensee will prominently display the following Licensor logo and copyright notice within the Permitted Products:

  “Image © 20    DigitalGlobe, Inc.”



3. Limited Right to Incorporate and Modify. Licensee shall have the limited right to modify, enhance, adapt, and create Derivative Works of the Licensed Images to develop the Permitted Products, including the right (i) to overlay graphics, text and/or other content over any Licensed Images, and (ii) to resize any such Licensed Images (subject to the terms and conditions of this EULA); provided, however, that no such modification shall affect the requirement of Licensee to display Licensor copyright, or materially and/or adversely affect any Licensed Image, or infringe upon the Intellectual Property rights of third parties, or violate any laws.



4. Term and Termination. This EULA shall continue in effect unless terminated by Licensor pursuant to this Section 4. Licensor may terminate the EULA for cause, effective immediately upon notice, in the event that Licensee breaches any of its obligations under or relating to this EULA and fails to cure the breach (if curable) within five (5) days or receiving a notice of breach. All obligations of Licensee herein survive termination and shall continue in full force and effect notwithstanding termination.



5. Compliance with Law. Licensee shall obtain all required governmental authorizations and adhere to all applicable laws, regulations and rules in the performance of its obligations hereunder and use of the Licensed Images, including, without limitation, all applicable export control laws, regulations and rules and all applicable U.S. and international intellectual property laws with respect to the Licensed Images herein.



6. Warranty Disclaimer. Licensor provides a limited warranty for thirty (30) days from the date of delivery that the Product delivered will meet the applicable DigitalGlobe product specification (“Limited Warranty”). Licensor’s sole liability shall be to replace the Product if the Licensee returns the Product to Licensor within thirty (30) days of delivery. WITH THE EXCEPTION OF THE PRECEDING LIMITED WARRANTY, THE PRODUCT IS PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND ALL WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. LICENSOR DOES NOT WARRANT THAT THE PRODUCT WILL MEET THE LICENSEE’S NEEDS OR EXPECTATIONS, OR THAT OPERATIONS OF THE PRODUCT WILL BE ERROR FREE OR UNINTERRUPTED. NO INFORMATION PROVIDED BY LICENSOR OR ITS AGENTS, EMPLOYEES, OR ITS RESELLERS OR DISTRIBUTORS SHALL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OF THIS LIMITED WARRANTY, AND THE LICENSEE IS NOT ENTITLED TO RELY ON ANY SUCH INFORMATION.



7. Limitation of Liability. IN THE EVENT THAT LICENSEE INCURS ANY DAMAGES IN CONNECTION WITH THESE TERMS OR THE LICENSED IMAGES, LICENSOR'S LIABILITY SHALL NOT EXCEED THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE LICENSED IMAGES OR (II) ONE HUNDRED THOUSAND US DOLLARS ($100,000.00). TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR SHALL HAVE NO LIABILITY TO LICENSEE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL, INCLUDING ANY LOST PROFITS, LOST DATA, OR LOST SAVINGS, WHETHER OR NOT FORESEEABLE. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT LICENSOR IS GRANTING THIS LICENSE IN RELIANCE ON THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS EULA, AND FURTHER ACKNOWLEDGES AND AGREES THAT SUCH LIMITATIONS ARE REASONABLE.RELIANCE ON THE DISCLAIMERS AND LIMITATIONS SEAGREES THAT SUCH LIMITATIONS ARE REASONABLE.



8. Proprietary Rights. (a) The Licensed Images are licensed not sold, and Licensee acknowledges and agrees that the Licensed Images, together with all copyrights, trade secrets and other intellectual property rights related thereto are proprietary to Licensor and protected by U.S. and international civil and criminal laws. Licensor reserves all right, title and interest in and to the Licensed Images not expressly granted to End User herein. There are no implied licenses under this EULA, and all rights not expressly granted are reserved by Licensor. Licensee agrees to comply with reasonable guidelines as may be provided to Licensee by Licensor from time to time for the use and protection of the Licensed Images. (b) Except as expressly authorized herein, Licensee may not use the trademarks, service marks, trade name, domain name or other source identifiers of the Licensor without the express written consent of Licensor. Any use of the Licensor’s names or trademarks in press releases, marketing materials, advertising or other materials shall be subject to Licensor’s prior review and written approval, which approval shall not be unreasonably withheld or delayed.



9. Transfer. Licensee may not assign or transfer any rights or obligations under this EULA, without Licensor’s prior written consent, and any attempt by Licensee to otherwise assign or transfer any of its rights hereunder shall be void.



10.           Representations. Licensee represents and warrants to Licensor that: (i) it will not use nor permit any End User or other third party to use the Licensed Images in any way not expressly authorized in this EULA, (ii) it will not make any representations or warranties on behalf of Licensor, and (iii) it will use best effort methods to incorporate the Licensed Images into its Permitted Products in such away that the Licensed Images cannot be extracted from its Permitted Products and used or distributed independently of the PermittedProducts in its raw format or in any manner that violates this License.



11. Choice of Law; Venue; Remedies. This EULA shall be governed exclusively by its terms and by the laws of the State of Colorado, U.S.A., without regard to Colorado rules concerning choice of law, and excluding the United Nations Convention on Contracts for the International Sale of Goods. Each party hereby expressly consents to jurisdiction and venue in Boulder County, Colorado,U.S.A. In the event that Licensee breaches this EULA, Licensee acknowledges that Licensor shall be entitled to all available remedies at law or in equity and reimbursement of reasonable attorneys' fees, costs and expenses incurred by Licensor in connection with suchbreach. In addition, Licensee acknowledges that any actual or threatened breach of Sections 1, 3 and 8 by Licensee will constitute immediate and irreparable harm to Licensor for which monetary damages would be an inadequate remedy and that injunctive relief is an appropriate remedy for such breach.



12.  Integration; Modification; Severability. These terms reflect the entire agreement of the parties relating to the subject matter hereof, and supersede any prior or contemporaneous understandings, communications, proposals, or representations related to the same subject matter. No provision of these terms shall be deemed amended, modified or waived by any party unless a written amendment is signed by the parties or a form of waiver is signed by the party against whom the waiver is asserted. If any provision of these Terms is held to be invalid or unenforceable, the remainder shall continue in full force and effect, and the provision adjudicated to be invalid or unenforceable shall continue in full force and effect in all jurisdictions other than where it was adjudicated to be invalid or unenforceable.


 

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