Software Access License Terms and Conditions for Orders
1. Unless otherwise defined in the Order Form, the terms listed below shall have the following meaning when used in the Agreement:
“Access Fees” means the annual fees charged by Mappedin for Customer and its Users to: (i) obtain access to the Server Software; (ii) use the Application Software (if any is included in the Order Form); and (iii) obtain maintenance for the Software in each case for the following year unless otherwise specified in the Order Form. Notwithstanding Section 7.2, after the Service Period set out in an Order Form expires, Mappedin reserves the right to change its Access Fees for the Properties in that Order Form, no more than once annually.
“Access Services” means the provision of access to the Server Software as, and to the extent, set out in an Order Form, and maintenance for the Server Software.
“Administrators” means the Users that Customer authorizes to access the Server Software and to create, modify, maintain and export the Floorplans. Subject to Section 2.1, Administrators may include individuals engaged by Customer IT Contractor(s).
“Affiliate” means, with respect to Customer, any other such entity Controlling, Controlled by, or under common Control with such entity that is identified as an Affiliate on an Order Form. "Control" means direct or indirect: (i) ownership of more than fifty percent (50%) of the outstanding shares representing the right to vote for members of the board of directors or other managing officers of such entity; or (ii) for an entity that does not have outstanding shares, more than fifty percent (50%) of the ownership interest representing the right to make decisions for such entity. Customer agrees to be jointly and severally liable for any acts or omissions of an Affiliate that constitute a breach of this Agreement or would constitute a breach of this Agreement if performed or omitted by Customer. Entities shall remain Affiliates only for so long as the Control described above exists.
“Agreement” means these Software Access License Terms and Conditions including any Schedules hereto, and any Order Forms executed by the parties that incorporate these terms and conditions.
“Application Software” means the Mappedin proprietary software, if any, identified in the Order Form to be delivered to Customer or installed on a Directory.
“Confidential Information” means any information provided or otherwise made available by one Party to the other hereunder that is: (a) marked as confidential; (b) otherwise identified as confidential at the time of disclosure; or (c) would obviously be considered confidential in the context in which it was given that: i) is not publicly available at the time of its disclosure and does not later become publicly available through no fault of the receiving Party; ii) was not in the possession of the receiving Party prior to its disclosure under this Agreement; and iii) was not independently developed by the receiving Party. Mappedin shall treat Mapping Materials as the Confidential Information of Customer.
“Customer IT Contractor” means outsourcing company(ies)or independent third party contractors(s) contracted by Customer or its Affiliates to provide them with information technology services and authorized by Mappedin in writing and in accordance with Section 2.1.
“Directory” or “Kiosk” or “Totem” are used interchangeably in instances where Mappedin is providing Application Software to enable Users to view the Floorplans on digital displays on the Property, such as at a mall, hospital, stadium or airport. Each such reference refers to a single sided screen and a two-sided unit with each side displaying Application Software constitutes two Directories.
“Documentation” means user manual(s) and other documentation as prepared and supplied by Mappedin for the Software.
“Effective Date” means the day as of which the initial Order Form has been signed by both Parties.
“Floorplans” means the digital representations of floors or other areas of the Properties specified in an Order Form created or to be created by or on Customer’s or Affiliates’ behalf using the Software and stored by Mappedin in its Server Software.
“including” means including, without limitation.
“Mapping Materials” means any pre-existing physical maps, data and information provided to Mappedin or used by Customer or Affiliates to create the Floorplans.
“Mappedin Works” means the Floorplans and any other results generated by the use of the Software.
“Order Form” means a Mappedin order form, a proposal in which these terms and conditions are incorporated by reference, or a statement(s) of work (SOWs) in a schedule(s) attached to these terms and conditions, and any Exhibits attached thereto. Once accepted by both Parties, an Order Form shall not be modified except as agreed in writing by the Parties.
“Personal Information” is any information that can be used to identify an individual and is protected under any applicable federal, provincial, or local privacy laws.
“Property” means the properties or part of properties owned or rented by Customer or an Affiliate for which Floorplans are to be input into the Server Software as set out in the Order Form.
“Server Software” means the Mappedin proprietary server software referenced in the Order Form and hosted on behalf of Mappedin on third party servers, including the Mappedin CMS software.
“Services” means Set-Up Services, Access Services, Update Services and any additional services detailed in an Order Form.
“Service Period” and “Service Period End Date” mean respectively the period during which the Access Services are to be provided for the Properties included in an Order Form and the last day of that period, in each case as set out in an Order Form.
“Set-Up Services” means set-up services, including digitizing the Floorplans for storage in the Server Software, installing Directories and delivery of Application Software, as and to the extent set out in an Order Form.
“Software” means the Server Software, Application Software and any other Mappedin proprietary software to be provided to Customer as set out in an Order Form.
“Term” means the term of this Agreement as set out in section 7.
“Third Party Products” means a) any hardware product that is not manufactured by or on behalf of Mappedin; and/or b) standalone software applications that are proprietary to a third party; and (c) any service provided by anyone other than Mappedin.
“Update Services” means the modifications or updates that Mappedin agrees to make on behalf of Customer as, and to the extent, set out in an Order Form.
“Users” means, subject to the restrictions, if any, set out in an Order Form, those individuals that Customer permits to access the Floorplans in order to facilitate those individuals navigating around, or managing a Property, as part of Customer’s or its Affiliate’s normal course of business.
2. Software and Services
2.1 Software License. Subject to payment of all applicable fees, Mappedin hereby grants Customer a personal, non-exclusive, terminable license to: (i) have Administrators access the Server Software via the web to create, modify and/or maintain Floorplans for the floors or areas of the Properties specified in the Order Form solely for Customer and its Affiliates’ own use and (ii) use the Application Software (including the Mappedin SDK Software if applicable) solely to enable the display of the Floorplans and make available any functionality in each such Digital Map: a) on the number of Directories specified in the Order Form, and/or b) through third party software products and/or on Customer’s website, a web product or other digital display used by Customer, or in Customer’s iOS or Android application, in each case identified in an Order Form or otherwise agreed to in writing by Mappedin, and solely for the personal and non-commercial use of its and its Affiliates’ Users; until the earliest of: a) the Term expiring or the Agreement being terminated; and b) thirty (30) days following Customer failing to make a payment in accordance with this Agreement including failing to pay any applicable Access Fees. Notwithstanding the foregoing, Customer may permit a Customer IT Contractor agreed to in writing by Mappedin to access the Software for the purposes set out above, provided that: (I) that Customer IT Contractor agrees in writing: (x) that Mappedin has no responsibility or liability to it whatsoever; (y) to be bound by sections 2.3 (Restrictions on Use), 2.4 (No Reverse Engineering), 2.5 (Ownership of Mapping Materials, Software and Mappedin Works), 2.7 (Feedback and Innovations), 4 (Confidentiality) 9.3 (Governing Law),and 9.4 (Court Jurisdiction) below; and (z) to be liable to Mappedin for any breach thereof; and (II) that Customer hereby agrees that it is jointly and severally liable with Customer IT Contractor(s) for any breach of those provisions.
2.2 Services. Mappedin shall provide the Services in a competent and professional manner and the Service Level Addendum (“SLA”) in Schedule “A” and the Data Security Exhibit in Schedule “B” shall apply to the Services and Mappedin shall maintain the insurance set out in the Insurance Addendum in Schedule “C” during the Term. If at any time the Software is not operating substantially in accordance with its Documentation, Customer shall contact Mappedin by email or customer service chat as provided to Customer from time to time and describe the issue; and the processes in the Service Level Addendum shall apply.
2.3 Restrictions on Use. None of Customer, its Affiliates, Customer IT Contractors or Users may use the Software or any information contained therein or otherwise provided by Mappedin for anything other than furthering the purposes of this Agreement, and without limiting the generality of the foregoing, none of Customer, Affiliates, Customer IT Contractors or Users will use the Software for the purpose of developing or having developed any products competitive with products or services made commercially available by Mappedin. None of Customer, Affiliates or any Customer IT Contractor shall knowingly, after making such inquiries as a reasonable person in their position would undertake, use or permit others to use the Software or Mappedin Works, or any portion thereof, in isolation or with any other software, digital product, or data, including any Mapping Materials, in a manner that in Mappedin’s judgment, acting reasonably, interferes with, degrades or adversely affects any software, system, network or data used by any person including Mappedin or its partners or otherwise has a detrimental effect upon Mappedin or any of their respective customers or products or services, and Customer shall, and shall ensure that its Affiliates and any Customer IT Contractor immediately cease any such activity upon Mappedin delivering notice requiring same to Customer. Further, none of Customer, its Affiliates or any Customer IT Contractor will use or permit others to use the Software to commit a crime, or for any tortious purpose; or resell or attempt to resell, or except as expressly contemplated by an Order Form, otherwise make or attempt to make available to third parties the right(s) to access the Software or Mappedin Works or any data contained therein. Further, none of Customer, Affiliates, or any Customer IT Contractor shall exceed, nor permit any other person to exceed any restrictions or access the Software in a manner designed to improperly avoid incurring fees; remove or alter any proprietary rights notices on the Software; circumvent any security technology that is part of the Software, or attempt to do any of the foregoing.
2.4 No Reverse Engineering. Except to the extent that this prohibition is prohibited by law, none of Customer, its Affiliates, or any Customer IT Contractor shall alter, modify, adapt, create derivative works, deface, disassemble, benchmark, or Reverse Engineer the Software or any other Mappedin supplied product or service (including any Mappedin Works), or attempt to do so, or permit, acquiesce, authorize or encourage any other person to do so. For the purposes of this Agreement, “Reverse Engineer” means any act of reverse engineering, translating, disassembling, decompiling, decrypting, scraping, or deconstructing (including any aspect of “dumping of RAM/ROM or persistent storage”, “cable or wireless link sniffing”, “protocol analysis” or “black box” reverse engineering) data, software (including backend APIs, interfaces and any other data included in or used in conjunction with programs that may or may not technically be considered software code) or hardware or any method of obtaining or converting any information, data or software from one form into human-readable form or such other form as enables Customer or its Affiliate(s) or Customer IT Contractor(s) to utilize that information, the Floorplans or data contained therein, or software for purposes other than those contemplated by this Agreement.
2.5 Ownership of Mapping Materials, Software, and Mappedin Works. Nothing herein transfers any ownership right, title or interest in or to any Mapping Materials to Mappedin. Mappedin shall have the right to use the Mapping Materials solely to provide the Services and to train and otherwise improve its Software (e.g. to train the software to automatically recognize symbols used in pre-existing Mapping Materials) and to use analytics (including error and security logs) generated by the Software to provide the Services and to improve the Software. Nothing in this Agreement transfers or grants to Customer, or to any Affiliate, User or Customer IT Contractor, any ownership right, title or interest in or to any Software or to any Mappedin Works, or in or to any intellectual property rights associated with the Software or Mappedin Works, or to any portion thereof. For avoidance of doubt, subject to Customer’s underlying rights in the Mapping Materials, Mappedin shall own all rights, title and interest and all intellectual property rights in or to any subject matter created, developed or contributed by Mappedin or its Software hereunder (including the Mappedin Works) provided that subject to Customer and Affiliates complying with the terms and conditions of this Agreement, the license granted hereunder to the Floorplans shall be the sole license granted by Mappedin to the Floorplans and unless, and to the extent that they are made available to the general public by or on behalf of Customer or its Affiliates, or Customer or its Affiliates indicate otherwise in writing, the Floorplans shall be deemed to contain the Confidential Information of Customer. Upon expiration or termination of the Agreement Mappedin shall provide or enable Customer to obtain the Floorplans stored at that time in the Server Software in a public GeoJSON format, with the right to do whatsoever Customer decides with those maps. For clarity, except to third party cloud service providers solely as required and for the purpose of providing the Services (e.g. provided as part of data to be stored or to be used to enable Administrators to log into the Software), nothing identifying Customer or its Affiliates shall be provided to any third party by Mappedin without first obtaining Customer’s prior written express consent to do so.
2.6 Protection of Commercial Opportunities and Mappedin Works. In instances where the Mappedin Works are intended to be accessible by the general public, Customer shall use reasonable commercial efforts to prevent third parties from obtaining the benefit of the commercial opportunities in the Floorplans. Without limiting the foregoing, where the Floorplans are intended to be accessible by the general public, Customer shall make gaining access to a website or app in which a Floorplans can be accessed subject to terms and conditions which include the following language or its equivalent, “You may only use or reproduce any Floorplans or data contained therein for your own personal and non-commercial use. The framing, scraping, datamining, extraction or collection of the Floorplans and data contained therein, in any form and by any means whatsoever is strictly prohibited. Furthermore, you may not mirror any such materials.” In addition, Customer shall include a robots.txt file in its website which shall strictly prohibit crawling and scraping in relation to any Mappedin Works and any Mapping Materials contained therein.
2.7 Feedback and Innovations. Customer, its Affiliate(s), and any Customer IT Contractor(s) agree to provide Mappedin with feedback on the Software and any portion thereof, and on any beta testing of new functionality or products and services, as reasonably requested by Mappedin and hereby agrees that Mappedin shall own all such feedback, including any associated intellectual property rights. Customer acknowledges and agrees that the knowledge it has with respect to Floorplans and wayfinding directories and the uses thereof, is based in large part on its access to the Software, and Customer, its Affiliate(s) and any Customer IT Contractor(s) hereby agree that in consideration of the access to the Software and Mappedin’s business granted herein, they shall not take any steps or threaten to take any steps, directly or indirectly through some other person, to prevent Mappedin from further developing the Software or any portion thereof, in any manner whatsoever, or to prevent Mappedin, its distributors, resellers, value added resellers, technology partners or integrators (collectively “Partners”) from distributing the Software or such further developments or from their respective customers using the Software or such developments whether Customer, its Affiliate(s) or Customer IT Contractor(s) develops or implements such further developments or obtains associated intellectual property rights (including for avoidance of doubt, patent rights) related to the Software or developments prior to Mappedin doing so or not. Customer, Affiliates and any Customer IT Contractors further agree that they shall not seek any compensation from Mappedin, its Partners or customers in relation to such developments and agrees to sign such further documents and take such further steps as are reasonably necessary to give effect to this provision and further agrees that it shall not challenge the enforceability or validity of this provision.
2.8 Limitations on Mappedin’s Responsibility. Unless Mappedin expressly agrees otherwise, its sole responsibility is the provision of the Software and Services. Customer shall be responsible to provide all other aspects of its system, including any required hardware or telecommunications equipment or services and any Mapping Materials required to create the Floorplans. Mappedin shall have no responsibility for: (i) any performance or non-performance of these Third Party Products or for any third party cloud services; (ii) any delays caused by delays in Customer fulfilling these requirements or in delivering the Mapping Materials; and/or (iii) any delays or other problems caused by the quality of the Mapping Materials delivered to Mappedin to create the Floorplans. Customer hereby authorizes the digitization of the Floorplans and storage of the Floorplans on third party servers located in the United States, Canada and/or other country(ies) as specified in an Order Form and represents, warrants and covenants that it has the right to do so.
3. Fees
3.1 Customer shall pay to Mappedin the fees specified in the Order Form in accordance with the payment terms set out therein and shall pay the applicable Access Fees (specified in the Order Form or otherwise in the Agreement) on an annual basis in advance. Unless otherwise specified in the Order Form, all invoiced amounts shall be in United States Dollars (USD) and Customer shall pay all invoices net thirty (30) days from date of invoice. After the payment of Access Fees for the first year that this Agreement is in effect, Mappedin may invoice Customer for subsequent Access Fees up to thirty (30) days prior to the applicable anniversary of Customer’s initial set-up date. Access Fees for licenses added after the term commences shall be pro-rated based on the Customer’s initial set-up date.
3.2 Software shall be delivered to Customer by way of a secure website and Customer shall be responsible for all costs, including, but not limited to, any import duties or other taxes (except for taxes on the income of Mappedin) associated with the supply of Software and Services under this Agreement. If any amounts are required to be withheld by Customer from any amount otherwise payable by Customer to Mappedin under this Agreement, Customer shall pay an additional amount such that the net amount actually received by Mappedin will, after such withholding (including withholding from any additional amount payable pursuant to this sentence), equals the full amount of the payment then due.
4. Confidentiality
4.1 The Parties acknowledge and agree that they may disclose to the other Party (each in turn a “Disclosing Party”) certain Confidential Information in order to further the purposes of this Agreement. The Party receiving such information (the “Receiving Party”) will hold in confidence and except as specifically authorized in writing by the Disclosing Party shall not disclose to any third party (including to any Customer IT Contractor(s)) any Confidential Information disclosed to them or to which they are provided access in relation to this Agreement. It shall not be a breach of this requirement to; (a) provide the Confidential Information to employees, dependent contractors or legal advisors of the Receiving Party, that have a need to know to fulfill the purposes of this Agreement and are each subject to obligations consistent with the requirements in this provision; or (b) disclose the Confidential Information to the extent required to do so by a court of law provided that the Receiving Party uses all reasonable efforts to provide sufficient notice of this requirement to the Disclosing Party to enable the Disclosing Party to seek an order limiting or preventing the disclosure of the Confidential Information. The Receiving Party further agrees not to use or reproduce the Confidential Information except as reasonably necessary to fulfill the purposes of this Agreement. The Receiving Party shall ensure that it has taken precautions that are consistent with industry practices and in all instances are not less than a reasonable standard of care to ensure that the Confidential Information is not lost or stolen. Upon the termination of this Agreement or at any time upon request, the Receiving Party shall either return the Confidential Information or have an officer certify its destruction, provided that this obligation shall not apply to any archival copies of the Confidential Information which form part of the automatic back-up of the Receiving Party’s data. These restrictions shall apply for three years following the expiry or termination of this Agreement, except in the case of trade secrets when they shall apply for so long as the Confidential Information in question remains a trade secret.
5. Privacy
5.1 Mappedin collects and uses certain information in the provision of the Software or Services, including information which may constitute Personal Information under applicable privacy laws. For example, Mappedin uses email addresses to enable Users to log into the Software and to communicate with Customer and its Users. Mappedin also collects the IP addresses of the devices that directly access or attempt to access the Server Software, for security purposes. For more information regarding the type of Personal Information Mappedin collects, uses, and discloses in the context of the Software or Services, consult our Privacy Policy. By using the Software or Services, or submitting any Personal Information to Mappedin, Customer agrees to the terms of the Privacy Policy.
5.2 If Customer provides any Personal Information to Mappedin, Customer shall provide prior written notice of this to Mappedin and hereby represents and warrants that Customer will have obtained all necessary consents from the identifiable individual for, and in advance of, the collection, use, processing, storage, transmission and/or disclosure of such information by or to Mappedin, its agents, contractors and/or cloud service providers solely to further the purposes of this Agreement and any other purposes for which Customer and/or its Users expressly consent in writing.
6. Indemnity
6.1 Mappedin Indemnity. Mappedin shall defend Customer and its Affiliates against any third party claim or action brought against Customer or its Affiliates to the extent the claim or action or any liability therefrom arises from an allegation that the Software infringes the intellectual property rights of a third person (each a “Customer Claim”) and shall indemnify Customer for, and pay every judgment of a court of competent jurisdiction awarded against Customer to the extent it results from a Customer Claim. Customer must: (i) immediately notify Mappedin upon receiving notice of a Customer Claim; (ii) give Mappedin the right to conduct the defence and settlement of the claim; and (iii) act in accordance with the reasonable instructions of Mappedin and give Mappedin such assistance as Mappedin reasonably requests provided that Mappedin reimburses Customer for any out of pocket expenses it incurs as a result. Mappedin shall not be responsible for any Customer Claim where an alleged infringement arises from (a): a modification to the Software or Services not made by or on behalf of Mappedin; or (b) the combination of the Software and Services with any Third Party Product, including any Customer product or service.
6.2 Customer Indemnity. Customer shall defend Mappedin against any claim or action brought against Mappedin to the extent that the claim or action or any liability therein arises from (a): modification to the Software or Services made available hereunder, that were not made by or on behalf of Mappedin; or (b) the combination of the Software and Services by or on behalf of, Customer or Affiliates with any Third Party Product, including any Customer or Affiliate product or service (each a “Mappedin Claim”) and shall pay every judgment of a court of competent jurisdiction awarded against Mappedin to the extent that it results from a Mappedin Claim. Mappedin must (i) immediately notify Customer upon receiving notice of a Mappedin Claim; (ii) where Customer is responsible for the entire claim and not just a portion of the liability in the claim or action, give Customer the right to conduct the defence and settlement of the claim and act in accordance with the reasonable instructions of Customer; and (iii) give Customer such assistance as Customer reasonably requests provided that Customer reimburses Mappedin for any out of pocket expenses it incurs as a result.
6.3 Entire Remedy. The indemnities set out in this section set out the entire remedy of the Parties in respect of third party claims.
7. Term and Termination
7.1 This Agreement shall come into effect on the Effective Date and shall remain in effect until the latest Service Period End Date in the initial Order Form. Thereafter it shall subsequently automatically renew for one year periods unless Mappedin or Customer indicate their decision not to renew at least thirty (30) days prior to the end of a renewal period (collectively the “Term”).
7.2 Notwithstanding section 7.1, if Mappedin changes the terms of this Agreement, which it may do to reflect or address changes in its business or changes in applicable laws, by providing notice of same to Customer, Customer may terminate the Agreement by providing at least ten (10) days written notice to Mappedin of its decision to do so no later than sixty (60) days following delivery of notice of the change to Customer. If Customer decides to terminate the Agreement as a result of a change in its terms, Mappedin shall refund any Access Fees paid by Customer for that year on a pro-rata basis.
7.3 Either Party may terminate this Agreement by delivering written notice of its decision to do so to the other Party if the other Party is in breach of this Agreement and has not cured such breach within thirty (30) days of receipt of written notice of the breach.
8. Limitation on Liability
8.1 Implied Warranty Disclaimer. EXCEPT AS EXPRESSLY SET OUT HEREIN, NEITHER PARTY MAKES ANY WARRANTIES, CONDITIONS, ENDORSEMENTS, REPRESENTATIONS OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE.
8.2 Third Party Cloud Services. CUSTOMER ACKNOWLEDGES AND AGREES THAT MAPPEDIN USES THIRD PARTY CLOUD SERVICES SUCH AS AMAZON, AZURE, MONGODB AND AUTH0, AND FURTHER ACKNOWLEDGES THAT MAPPEDIN HAS LIMITED ABILITY TO CONTROL THE PERFORMANCE OF THESE CLOUD SERVICE PROVIDERS OR THE TERMS AND CONDITIONS ON WHICH THE CLOUD SERVICES ARE PROVIDED. EXCEPT TO THE EXTENT CAUSED BY MAPPEDIN,MAPPEDIN IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF THESE CLOUD SERVICE PROVIDER(S); PROVIDED, HOWEVER, IF ANY ACT OR OMISSION OF THE CLOUD SERVICE PROVIDER RESULTS IN MATERIAL HARM TO CUSTOMER, MAPPEDIN AGREES TO COOPERATE WITH CUSTOMER TO EXERCISE ANY RIGHTS AVAILABLE TO MAPPEDIN UNDER ITS AGREEMENT WITH THE CLOUD SERVICES PROVIDER TO REMEDY SUCH HARM FOR THE BENEFIT OF MAPPEDIN AND CUSTOMER.
8.3 Exclusion of Types of Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, OR A FAILURE TO REALIZE EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR WHETHER OR NOT A PARTY HAS BEEN ADVISED OF OR WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.4 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES ARISING IN ANY MANNER WHATSOEVER, FROM OR IN CONNECTION WITH THIS AGREEMENT IN A TOTAL AGGREGATE AMOUNT EXCEEDING THE GREATER OF: (A) THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO MAPPEDIN UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY; AND (B) $75,000.
8.5 Third Party Products. IF MAPPEDIN AGREES TO PROVIDE TO, OR INSTALL ANY THIRD PARTY PRODUCT ON BEHALF OF CUSTOMER, MAPPEDIN DOES SO AS A SERVICE TO CUSTOMER, AND CUSTOMER ACKNOWLEDGES AND AGREES, THAT MAPPEDIN HAS NO ABILITY TO CONTROL THE DESIGN OR PERFORMANCE OF SUCH THIRD PARTY PRODUCT, THAT MAPPEDIN PROVIDES THE THIRD PARTY PRODUCT ON AN “AS IS” BASIS AND THAT NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, MAPPEDIN SHALL HAVE NO LIABILITY FOR THE DESIGN OR PERFORMANCE OF THAT THIRD PARTY PRODUCT WHATSOEVER, AND THAT MAPPEDIN’S SOLE RESPONSIBILITY WITH RESPECT TO THE THIRD PARTY PRODUCT, INCLUDING WITHOUT LIMITATION, ITS DESIGN OR PERFORMANCE, SHALL BE TO PASS THROUGH THE BENEFIT OF ANY WARRANTY PROVIDED BY THE SUPPLIER OF THE THIRD PARTY PRODUCT TO CUSTOMER.
8.6 Exclusion of Liability for Specified Persons. EXCEPT WHERE AN INDIVIDUAL HAS ACTED OUTSIDE THE SCOPE OF HIS OR HER AUTHORITY AND IN A WILFUL MANNER, IN NO EVENT WILL EITHER PARTY'S OFFICERS, DIRECTORS OR EMPLOYEES HAVE ANY PERSONAL LIABILITY UNDER OR IN RELATION TO THIS AGREEMENT. THE PERSONS MENTIONED IN THIS PROVISION SHALL BE DEEMED TO BE THIRD PARTY BENEFICIARIES OF THIS AGREEMENT SOLELY FOR THE PURPOSES OF OBTAINING THE BENEFIT OF THIS PROVISION.
8.7 Application of Limitations, Exclusions and Disclaimers. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THIS AGREEMENT SHALL APPLY: (A) WHETHER AN ACTION, CLAIM OR DEMAND ARISES FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER KIND OF CIVIL OR STATUTORY LIABILITY CONNECTED WITH OR ARISING OUT OF THIS AGREEMENT; AND (B) TO EACH PARTY AND TO EACH PARTY'S AFFILIATES.
8.8 Exclusions from limitations. NOTWITHSTANDING ANY OTHER PROVISION, THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL NOT APPLY TO: (A) ANY WILFUL OR MALICIOUS BREACH OF ANY PART OF SECTION 2 SOFTWARE AND SERVICES; (B) ANY BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET OUT IN SECTION 4.1; (C) ANY WILFUL VIOLATION OR INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF ONE PARTY BY THE OTHER PARTY OR BY ITS AFFILIATES OR CUSTOMER IT CONTRACTOR(S); (D) THE PAYMENT OF AMOUNTS DUE TO MAPPEDIN UNDER THIS AGREEMENT; (E) THE AMOUNTS PAYABLE IN RELATION TO THE INDEMNITIES UNDER SECTION 6; OR (F) IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRE LIABILITIES BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS.
8.9 Mission Critical Applications. NETWORK COMMUNICATIONS ARE INHERENTLY UNRELIABLE, AND MAPPEDIN DOES NOT AUTHORIZE NOR TAKE ANY RESPONSIBILITY WHATSOEVER FOR SOFTWARE USE OR THE ABILITY TO ACCESS FLOORPLANS IN MISSION CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS OR ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, OR IN ANY SITUATION REQUIRING GUARANTEED IMMEDIATE ACCESS TO FLOORPLANS, INCLUDING, WITHOUT LIMITATION, EMERGENCY RESPONSE OPERATIONS, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS.
9. General
9.1 This Agreement including all Order Forms and Schedules, constitutes the entire agreement of the Parties with respect to the subject matter thereof. It supersedes all requests for quotes, discussions, correspondence or communication of any nature relating to the subject of this Agreement, all of which shall no longer be of any force or effect. In the event of a conflict between the body of this Agreement and an Order Form or other Schedule, the body of this Agreement shall take priority, solely to the extent of the conflict, unless the Order Form or Schedule indicates a specific intent to override the terms of the body of the agreement. In the event of a conflict, the Order Form shall take priority over the (other) Schedules. This Agreement may only be modified in writing signed by the Party against whom enforcement of the modification is being sought.
9.2 If either of the Parties becomes unable to carry out the whole or any part of its obligations under this Agreement, for any reason beyond its control including acts of God, acts of governmental authorities, strikes, war, riots or any other cause of such nature (“Event of Force Majeure”), then the performance of the obligations of the affected Party shall be excused during the continuance of any inability so caused, but such inability shall, as far as possible, be remedied with all reasonable dispatch. Either Party shall give immediate notice to the other Party upon becoming aware of an Event of Force Majeure. If an Event of Force Majeure continues for a period exceeding sixty (60) days or such other period as is mutually agreed to by the Parties, the other Party may terminate this Agreement by giving the affected Party seven days written notice of its intention to do so.
9.3 The Agreement shall be governed and construed in accordance with the laws of the Province of Ontario along with any federal laws applicable therein unless Customer’s address as set out in this Agreement is located in the United States, in which case the Agreement shall be governed and construed in accordance with the laws of the State of New York along with any federal laws applicable therein. In either case the rules of private international law that lead to the application of the laws of any other jurisdiction shall not apply. The United Nations Convention on Contracts for the Sale of Goods (1980) does not apply.
9.4 The Provincial and Federal courts of the Province of Ontario shall have exclusive jurisdiction to hear any matter arising in connection with this Agreement unless Customer’s address as set out in this Agreement is located in the United States, in which case the courts located in the Borough of Manhattan, New York, New York shall have exclusive jurisdiction to hear any matter arising in connection with this Agreement. In either case, each party irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents and attorns to the exclusive jurisdiction and venue of the courts as set out in this provision.
9.5 The Parties agree that a material breach of this Agreement may cause irreparable harm to a Party, for which a remedy at law may be inadequate. Accordingly, in addition to any remedies at law, subject to any express limitations under this Agreement, either Party may seek injunctive relief without posting any security.
9.6 If any court finds any part of this Agreement to be invalid or unenforceable that part shall be severed from this Agreement and its invalidity or unenforceability shall not in any way affect the remaining provisions of this Agreement, which shall continue in full force and effect.
9.7 Any notice, request, demand or other communication required or permitted hereunder shall be sufficiently given only if in writing and only if delivered by hand, email or courier addressed to the other Party at the address set out in the Agreement or Order Form or to such other person or address as the Parties may from time-to-time designate in writing delivered pursuant to this notice provision, with a copy of all notices (except for support notices) also emailed to legal@mappedin.ca. Any such notices, requests, demands or other communications shall be received and effective: (i) upon the date of receipt if delivered by hand, registered mail (or its equivalent) or courier; or (ii) on the date of confirmation of receipt by answer-back from the Party to whom the notice, request, demand or other communication was given, in the case of email.
9.8 Notwithstanding the termination or expiration of this Agreement, those provisions that by their nature are intended to survive after the Agreement ends, including, sections 1, 2.4, 2.5, 2.7, 2.8, 4, 5, 6, 8 and 9, shall survive.
9.9 No Party shall have authority to or shall hold itself out as having any authority to incur, assume or create, orally or in writing, any liability, obligation or undertaking of any kind in the name of or on behalf of or in any way binding upon the other Party.
9.10 Customer may not assign or transfer all or any of its rights, benefits and obligations under this Agreement without the prior written consent of Mappedin and any purported assignment without such consent shall be null and void and of no effect. Notwithstanding the foregoing, either Party may freely transfer and assign this Agreement or any of its rights or obligations hereunder to any entity to whom it sells all or substantially all of its assets provided that if the assignee is a competitor of the other Party (in the case of Mappedin is a software or wayfinding service provider), that Party may immediately terminate this Agreement by delivering notice of its decision to do so within thirty (30) days of its learning of the assignment.
9.11 This Agreement may be executed in counterparts, including electronic counterparts, each of which when executed by any of the Parties shall be deemed to be an original, and such counterparts shall together constitute one and the same Agreement.