Services Subscription Agreement

This Subscription Agreement (“Agreement”) is entered into between RepMatix, LLC a Arizona corporation, having an office at 3697 Highland Rd, Lafayette, CA 94549  (“Provider”), and the individual or entity agreeing to these terms (“Customer” or “you”). This Agreement is executed by you clicking a box on an online order form referencing this Agreement (an “Order Form”) and may be amended by any written modifications laid out in that Order Form. This Agreement is effective on the start date indicated in your order form (the “Effective Date”). This is a legal agreement that governs your use and Provider’s supply of the RepMatrix services, which services includes software, content and related electronic documentation and media (the “Services”), during the applicable subscription period.

You must read and accept the terms of this Agreement before you may access or use the Services. Provider is willing to supply the Services only on the condition that you accept all of the terms in this Agreement. BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS.

If you are acting on behalf of an entity, then you represent that you have the authority to enter into this Agreement on behalf of that entity. If you do not accept these terms in their entirety, you are not authorized to access or use the Services.

  1. SCOPE OF SUBSCRIPTION AND PAYMENT TERMS

1.1 Scope of Access. Access to the Services is made available on a per user basis. The number of authorized individual end users will be indicated on your Order Form (each submitted Order Form, an “Order“). You agree to pay the applicable monthly subscription fee associated with such number of authorized end users, as indicated on your Order Form.

1.2 Access to Services. Following acceptance of your Order by Provider, Provider will provide a unique user ID for each authorized end user associated with Customer’s account. Customer agrees that each individual using the Services will have his or her own user ID and Customer will not share or allow its users to share user IDs nor will it allow any unauthorized individual or third party to use such IDs to access and use the Services under any circumstances. Customer is responsible for any and all activities engaged in using its users’ IDs. Customer agrees to immediately notify Provider of any unauthorized access or use of its account or user IDs, or any other breach of security known to Customer. Customer is responsible for its authorized end users’ compliance with the terms of this Agreement and each end user will be required to agree to Provider’s terms of use, which will be presented to each end user at the time of their first log-in. Provider may make commercially reasonable changes to the Services from time to time, so long as there is no material reduction in the functionality of the Services.

1.3 Term and Renewal. The term of this Agreement will begin on the Effective Date. Except as otherwise specified in the applicable Order Form, this Agreement will automatically renew for additional periods equal to the expiring subscription term or 12 months (whichever is shorter), unless either party gives the other party notice of its decision not to renew at least 30 days before the end of the relevant subscription term or otherwise terminates this Agreement in accordance with Section 8. For so long as Customer has paid or is paying the monthly subscription fee associated with the Services, Provider grants Customer the non-exclusive right to access and use the Services, subject to the restrictions set forth in this Agreement and any other restrictions communicated by Provider in writing. All terms and conditions of this Agreement shall apply during each renewal term, except for the subscription fee and number of end user accounts. Provider may amend its subscription fees for the Services at any time with 30 days’ prior written notice to Customer, provided that any increase in subscription fees shall not exceed 7%, year over year. . Customer will notify Provider of any changes to its number of authorized end users at least five days prior to the expiration of the then-current term.

1.4 Payment Terms. Subscription fees are non-refundable and will be charged directly to the credit card submitted to Provider at the time of Customer’s order, unless otherwise agreed by Provider and Customer. If the credit card is not valid or payment is not to be made by credit card, Customer will receive an invoice from Provider. All subscription fees are due and payable within 30 days of the date of Provider’s invoice. Amounts invoiced are payable in full, without deduction for taxes or duties. Customer is responsible for all taxes and duties (including but not limited to sales, use and withholding taxes), except for taxes based on Provider’s net income. Customer will reimburse Provider for any taxes and duties that Provider pays with respect to Customer’s purchase of the Services.

1.5 Late Payments. Payments that are not made within 30 days of the invoice due date will be considered past due and a late payment charge of 1.5% per month (or the maximum rate permitted by law, whichever is less) may be added to Customer’s invoice. Customer agrees to pay all reasonable attorney’s fees and costs incurred by Provider to collect any past due amounts. Provider reserves the right to suspend or terminate Customer’s access to the Services without notice if payment is past due, regardless of dollar amount.

1.6 Additional End User Accounts. Customer may increase the number of end user accounts at any time. For end users added mid-month, the first month for such end user accounts will be pro-rated, beginning on the date of the applicable order and ending on the expiration of the applicable month’s term, and will automatically renew in accordance with the terms of Section 1.3, unless terminated by either party in accordance with the terms of this Agreement. Provider will charge or invoice the Customer in accordance with Section 1.4 for any additional end user accounts purchased mid-term at the time such accounts are made available to Customer.

  1. OWNERSHIP. Subject to the limited rights expressly granted to Customer under this Agreement, as between Customer and Provider, Provider retains all right, title and interest, including but not limited to all rights of copyright, trademark, trade secret, patent, or other intellectual property right, in the Services. The Services are owned by Provider and its suppliers and licensors, and its structure, organization, and code comprise valuable trade secrets of Provider and its suppliers and licensors. The Services are protected by United States copyright law and international copyright treaties and may be protected by other copyright, patent and trade secret laws. RepMatrix is a trademark of Provider, which may be registered in certain jurisdictions. The Services may contain trade names, trademarks, service marks, logos, domain names, and other distinctive brand features (collectively, “Marks“) of Provider and its suppliers, licensors and other third party rights holders of content included in the Services. This Agreement does not grant Customer any rights of ownership in these Marks. Customer may use these Marks only to identify content and printed output produced by the Services, in accordance with accepted trademark practice, including identification of the trademark or service mark owner’s name. Customer agrees not to remove, obscure or alter any Marks pertaining to the origin, identity or ownership of the Services or any content associated with the Services.
  2. GRANT OF LICENSE. Pursuant to this Agreement, Provider grants Customer a non-exclusive, non-transferable, limited right to access and use the Service for the number of authorized end users set forth in the Order on the terms and conditions set forth in this Agreement. Customer (and its agents and independent contractors) may use the Services solely for Customer’s own internal business operations and not for the benefit of any other person or entity, for so long as Customer has paid and continues to pay the applicable subscription fees. Customer agrees that it shall not use the Services or any output from the Services, such as static map images, for any external use or external presentations (including externally accessed web pages). Customer remains responsible for any breach of this Agreement by its employees, agents or independent contractors.
  3. RESTRICTIONS. All rights not expressly granted to Customer are reserved by Provider. Without limitation, Customer will not (and will not allow its end users or any other third party to): (A) resell, rent, lease, sublease, lend, timeshare, sublicense or otherwise distribute or operate the Services or any content associated with the Services to or for the benefit of any third party; (B) adapt, modify, translate, reverse engineer, decompile, disassemble, or otherwise attempt to extract the source code of the Services or any part thereof; (C) make or prepare any derivative work with respect to the Services; (D) make or prepare any derivative work using content associated with the Services, other than as expressly permitted by this Agreement; (E) disable any licensing or control features associated with the Services; (F) upload or use any content in a way that infringes any patent, trademark, copyright trade secret or other proprietary right of a third party; (G) use the Services in a manner that gives Customer or any other party access to mass downloads or bulk feeds of any content, including but not limited to numerical latitude or longitude coordinates, imagery, visible map data, or places data (including business listings); (H) post on its website or otherwise make available to the public or any parties other than its authorized users any interactive maps; (I) access or use the Services through any technology or means other than those provided in the Services; or (J) use or assist any party in using any information, material or know-how obtained through the use of the Services to supply products, content or services to compete with the products or services offered by Provider. Nothing in this Agreement will be construed to grant Customer any right to market or commercially exploit the Services or use the Services for the benefit of any parties other than Customer.
  4. USE OF CONTENT. Content incorporated within, accessible through and generated by the Services may include street maps, topographic maps, population demographics, business data, imagery and other information. In accessing and using the Services, Customer acknowledges and agrees that Provider makes no warranties and provides no guarantees with respect to the accuracy and completeness of such content. Certain content is made available through licenses with third parties, including Google, Inc. (“Google“), and is subject to copyright and other intellectual property rights owned by or licensed to such third parties. As a result Customer’s access and use of the Services is expressly subject to and Customer agrees to be bound by Google’s Acceptable Use Policy, located at https://www.google.com/enterprise/earthmaps/legal/us/maps_AUP.html (or such other URL as Google may designate from time to time), Google’s Maps Terms, located at http://maps.google.com/help/terms_maps.html (or such other URL as Google may designate from time to time), and the additional restrictions set forth in Google’s Legal Notices page, located at http://www.google.com/intl/en-us/help/legalnotices_maps.html (or such other URL as Google may designate from time to time). Customer is responsible for its end users’ compliance with the Google’s Acceptable Use Policy, Maps Terms and Legal Notices. Other than the limited license set forth in Section 3, nothing in this Agreement may be construed to grant Customer any rights, by license or otherwise, to any content associated with the Services.
  5. CUSTOMER CONTENT. Provider claims no ownership over content submitted, posted or displayed or otherwise provided by Customer and its end users through the Services, including data, images, video or software, and Customer retains any copyright and other rights it holds in such content. By submitting, posting or displaying content in the Services, Customer and its end users grant Provider and its suppliers and licensors the right to use such content for the purpose of enabling Provider and its suppliers and licensors to provide Customer with the Services in accordance with both Provider’s privacy policy, located athttp://badgermapping.com/privacy (or such other URL as Provider may designate from time to time), and Google’s privacy policy, located at http://www.google.com/policies/privacy/ (or such other URL as Google may designate from time to time), both as amended by Provider or Google (as applicable) from time to time. Customer acknowledges that it is responsible for obtaining any necessary consents from its end users to allow Customer, Provider and Provider’s suppliers and licensors to access, monitor, use or disclose any data submitted through the Services.
  6. CUSTOMER OBLIGATIONS. Customer represents and warrants that it will comply with all laws, statutes, regulations and ordinances applicable to its use of the Services and will only use the Services for legitimate business purposes, and will be responsible for ensuring that its authorized end users with access to the Services do the same. Customer will defend, indemnify and hold Provider harmless from any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any claims, demands, suits or proceedings brought against Provider by a third party alleging, relating to or arising out of Customer’s breach of its obligations under this Agreement or infringement of intellectual property rights.
  7. TERMINATION; SUSPENSION

8.1 Termination. Either party may terminate this Agreement (i) prior to the start date indicated on your Order Form through written notice to the other party, or (ii) at any time if the other party has breached a material term of this Agreement that has not been cured within 30 days of notice from the non-breaching party. Customer acknowledges and agrees that termination of this Agreement will not relieve it of any obligation to pay any accrued and unpaid charges; provided that if Customer terminates this Agreement for a material breach by Provider, Provider will refund Customer, on a pro rata basis, for any prepaid subscription fees associated with that portion of the then-current term that has been terminated. Customer agrees to pay any outstanding balance in full within 30 days of cancellation or termination of the Services. Termination of this Agreement will terminate Customer’s right to access and use the Services. All provisions that by their nature and terms should survive the expiration or termination of this Agreement will continue in full force and effect notwithstanding the termination of this Agreement.

8.2 Suspension. Provider reserves the right to immediately suspend Services to Customer or any end user in the event that any end users use the Services to harm or harass any individual or entity; disrupt Provider’s provision of the Services or impede the ability of others to use the Services; or engage in any unlawful conduct or activity.

  1. CONFIDENTIALITY

9.1 Confidential Information. For purposes of this Agreement “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure. Customer Confidential Information includes your data and Provider Confidential Information includes its software and tools, models, algorithms, technical data, documentation, and research with respect to Provider’s services and products. Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information does not include, and this Section does not apply to, information that (A) is or subsequently becomes published or available to the public through no fault of Receiving Party, (B) is received by Receiving Party from a third party without a duty of confidentiality; (C) is independently developed by Receiving Party without reference to Disclosing Party’s Confidential Information, or (D) was in Receiving Party’s possession or was known to Receiving Party before it was disclosed to Receiving Party by Disclosing Party.

9.2 Restrictions on Disclosure and Use. Receiving Party agrees that it will not use any of Disclosing Party’s Confidential Information or any copies thereof, for any purpose other than those contemplated by this Agreement and will not disclose or provide access to such Confidential Information without Disclosing Party’s prior written consent, provided that Receiving Party may share Confidential Information with its responsible employees, contractors and agents who have a need to know such Confidential Information to perform their duties. Receiving Party will take security precautions at least as great as the precautions it takes to protect its own confidential information, and at any rate will take commercially reasonable security precautions to ensure that no one, other than a person authorized pursuant to this Section, gains access to Disclosing Party’s Confidential Information without Disclosing Party’s prior written consent. In the event that Receiving Party becomes aware of any unauthorized use or disclosure of Disclosing Party’s Confidential Information, Receiving Party will immediately give notice to Disclosing Party and will assist Disclosing Party in remedying such unauthorized use or disclosure. Confidential Information is and will remain the exclusive property of Disclosing Party and nothing contained in this Agreement will be construed to grant Receiving Party any rights, by license or otherwise, to any Confidential Information disclosed pursuant to this Agreement.

  1. DISCLAIMER OF WARRANTY. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND PROVIDER MAKES NO WARRANTY OF ANY KIND AS TO ITS USE OR PERFORMANCE OR THE ACCURACY OR COMPLETENESS OF ANY CONTENT ASSOCIATED WITH THE SERVICES. PROVIDER DOES NOT WARRANT THAT THE SERVICES OR ANY CONTENT RELATED TO THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER AND ITS SUPPLIERS AND LICENSORS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. THE SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES SUCH AS THE OPERATION OF EMERGENCY SERVICES, NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT SYSTEMS, WHERE THE USE OR FAILURE OF THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY OR ENVIRONMENTAL DAMAGE.
  2. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY OR ANY OF ITS AFFILIATES, SUPPLIERS OR LICENSORS BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHERWISE, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT THESE DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS AFFILIATES, SUPPLIERS OR LICENSORS BE HELD LIABLE UNDER THIS AGREEMENT FOR AN AMOUNT EXCEEDING THE FEES PAID BY CUSTOMER TO PROVIDER DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. Some jurisdictions do not allow the limitation or exclusion of certain damages, so the limitations and exclusions set forth above may not apply to Customer in full, but shall be interpreted to apply to the maximum extent permissible under applicable law.
  3. FORCE MAJEURE. Provider will not be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, acts of terrorism, hostilities, disturbances to the Internet or any other similar cause beyond the reasonable control of Provider.
  4. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State of Arizona, without regard to its choice of law principles. Customer irrevocably agrees to submits to the non-exclusive jurisdiction and venue (and waives any claim of forum non conveniens) of the federal and state courts located in the County of Pima with respect to any dispute, claim or proceeding arising out of or relating to this Agreement. The prevailing party in any dispute, claim or proceeding arising out of this Agreement shall be entitled to reimbursement of its expenses, including court costs and reasonable attorneys’ fees, in addition to any other rights and remedies available to such party.
  5. PUBLICITY. Customer hereby consents to Provider’s inclusion of Customer’s name (together with any identifying Customer logo or mark) in a customer list. Other than this, neither party will make any public statement regarding the relationship contemplated by this Agreement without the consent of the other party.
  6. MISCELLANEOUS. Customer may not sublicense, assign, or transfer its rights or obligations under this Agreement without first obtaining the prior written approval of Provider and any attempt to do so without Provider’s written approval will be void and will automatically terminate this Agreement. Subject to the foregoing, this Agreement will inure to the benefit of each party and its successors and assigns. No modification of or amendment to this Agreement will be valid unless signed by an authorized representative of Provider. No waiver or discharge under this Agreement will be valid unless made in writing and signed by an authorized representative of the party against which such waiver or discharge is sought to be enforced. No delay or omission by either party to exercise any right or power under this Agreement will be construed to be a waiver. A waiver by either party of any breach or covenant will not be construed to be a waiver of any succeeding breach or any other covenant. If any provision of this Agreement is found to be illegal or otherwise unenforceable in any respect, that provision will be deemed to be restated to reflect as nearly as possible the original intent of the parties in accordance with applicable law. The remainder of this Agreement will remain in full force and effect. This Agreement constitutes the entire agreement between the parties regarding the use of the Services and all content within and/or generated by the Services and supersedes all prior or contemporaneous representations, discussions, proposals and agreements, whether written or oral, between the parties relating to the subject matter hereof.