Mapware Customer Agreement
Last Updated Date: April 13, 2021
PLEASE READ THIS MAPWARE CUSTOMER AGREEMENT (THE “AGREEMENT”) CAREFULLY. THIS AGREEMENT APPLIES TO MAPWARE’S PROVISION OF THE SOLUTION. BY ACCESSING OR USING THE SOLUTION AND/OR BY CLICKING ON THE “I ACCEPT” BUTTON, AND/OR COMPLETING THE REGISTRATION PROCESS, CUSTOMER REPRESENTS THAT (1) IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT, (2) CUSTOMER IS OF LEGAL AGE TO FORM A BINDING CONTRACT WITH MAPWARE, AND (3) CUSTOMER HAS THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY IT HAS NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, IT MAY NOT ACCESS THE SOLUTION.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY MAPWARE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Mapware will update the “Last Updated” date at the top of this Agreement. If Mapware makes any material changes, it will also send an e-mail to Customer at the last e-mail address Customer has provided to Mapware pursuant to the Agreement. If Customer does not agree to any change(s) to this Agreement, it shall not access the Solution.
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Solution.
1.2 “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Solution pursuant to Customer’s rights under this Agreement.
1.3 “Customer Intent” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Solution.
1.4 “Documentation” means the technical materials provided by Mapware to Customer in hard copy or electronic form describing the use and operation of the Solution.
1.5 “Effective Date” means the date last signed by a party.
1.6 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.7 “Licensed Material” means results, reports, materials and documentation made available to Customer as part of the Solution.
1.8 “Solution” means the Mapware software-as-a-service product that allows Authorized Users to access certain features and functions through a web interface.
2. PROVISION OF SERVICES
2.1 Access. Subject to Customer’s payment of the fees set forth during Customer’s sign up for the Solution (“Fees”), Mapware will provide Customer with access to the Solution. On or as soon as reasonably practicable after the Effective Date, Mapware will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Solution in accordance with the Access Protocols. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Solution, and notify Mapware promptly of any such unauthorized use known to Customer.
2.2 Support. Subject to the terms and conditions of this Agreement, Mapware may, itself or through a third party, exercise commercially reasonable efforts to (a) provide support for the use of the Solution to Customer, and (b) keep the Solution operational and available to Customer, in each case in accordance with its standard policies and procedures.
2.3 Hosting. Mapware will, at its own expense, provide for the hosting of the Solution, provided that nothing herein will be construed to require Mapware to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Solution from the Internet.
3. INTELLECTUAL PROPERTY.
3.1 License Grant. Subject to the terms and conditions of this Agreement, Mapware grants to Customer a non-exclusive, non-transferable (except as permitted under Section 11.5 (No Assignment)) license during the Term (as defined below), solely for Customer’s internal business purposes, (a) to access and use the Solution and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Solution. Customer may permit any Authorized Users to access and use the features and functions of the Solution as contemplated by this Agreement.
3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Solution, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Solution, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Solution, except as permitted by law; (e) interfere in any manner with the operation of the Solution or the hardware and network used to operate the Solution; (f) modify, copy or make derivative works based on any part of the Solution or Documentation; (g) access or use the Solution to build a similar or competitive product or service; (h) attempt to access the Solution through any unapproved interface; or (i) otherwise use the Solution, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 (License Grant) or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the Solution will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Mapware or its licensors on the Licensed Material or any copies thereof.
3.3 Ownership. The Solution, Licensed Materials and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Mapware and its suppliers. All rights in and to the Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Mapware and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Solution, Documentation, or any part thereof.
3.4 License to Licensed Material. Subject to the terms and conditions of this Agreement, Mapware grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable, non-sublicensable license to use the Licensed Material solely for Customer’s internal business purposes.
3.3 Open Source Software. Certain items of software may be provided to Customer with the Solution and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 (Ownership) or 9 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Mapware makes such Open Source Software, and Mapware’s modifications to that Open Source Software, available by written request at the notice address specified below.
3.6 Feedback. Customer hereby grants to Mapware a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Solution any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Solution. Mapware will not identify Customer as the source of any such feedback.
4. FEES AND EXPENSES; PAYMENTS.
4.1 Fees. In consideration for the access rights granted to Customer under this Agreement, Customer will pay to Mapware the Fees. Except as otherwise agreed to by the parties, all Fees are due and payable at the start of the Term and each Renewal Term. Mapware reserves the right to modify the Fees payable hereunder upon written notice to Customer at least ninety (90) days prior to the end of the then-current term. Mapware reserves the right (in addition to any other rights or remedies Mapware may have) to discontinue the Solution and suspend all Authorized Users’ and Customer’s access to the Solution if any Fees are more than thirty (30) days overdue until such amounts are paid in full.
4.2 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Mapware’ income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Solution, or the license of the Solution to Customer. Customer will make all payments of Fees to Mapware free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Mapware will be Customer’s sole responsibility, and Customer will provide Mapware with official receipts issued by the appropriate taxing authority, or such other evidence as the Mapware may reasonably request, to establish that such taxes have been paid.
4.3 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
5. CUSTOMER CONTENT AND RESPONSIBILITIES.
5.1 License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Mapware to use the Customer Content. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Mapware to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in this Agreement. Customer grants Mapware a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Solution, (b) to use the Customer trademarks, service marks, and logos as required to provide the Solution, and (c) use the Customer Content in an aggregated and anonymized form to: (i) improve the Solution and Mapware’ related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Solution, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Mapware in this Agreement are reserved by Customer.
5.2 Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Mapware’ system or data; and (e) otherwise violate the rights of a third party. Mapware is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Solution contrary to or in violation of the representations and warranties of Customer in this Section 5.2 Customer Warranty) constitutes unauthorized and improper use of the Solution.
5.3 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Solution. Customer will have the ability to export Customer Content out of the Solution and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
6.1 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOLUTION, LICENSED MATERIAL AND DOCUMENTATION ARE PROVIDED “AS IS,” AND MAPWARE MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. MAPWARE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
7. LIMITATION OF LIABILITY.
7.1 Types of Damanges. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO MAPWARE (OR AN AUTHORIZED RESELLER OF THE SOLUTION) DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL MAPWARE’ SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
7.3 Basis of Bargain. The parties agree that the limitations of liability set forth in this Section 8 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8.1 Confidential Information “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure to the receiving party (the “Receiving Party”). The Solution, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Mapware.
8.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Mapware). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
8.3 Exceptions. The confidentiality obligations set forth in Section 9.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) was independently developed by employees and contractors of the Receiving Party without reference to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
9.1 By Mapware. Mapware will defend at its expense any suit brought against Customer, and will pay any settlement Mapware makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Solution becomes, or in Mapware’ opinion is likely to become, the subject of a claim of infringement, Mapware may, at Mapware’ option: (a) procure for Customer the right to continue using the Solution; (b) replace the Solution with non-infringing software or services which do not materially impair the functionality of the Solution; (c) modify the Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Solution and Documentation. Notwithstanding the foregoing, Mapware will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Solution in combination with other products, equipment, software or data not supplied by Mapware; or (iii) any modification of the Solution by any person other than Mapware or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of Mapware, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
9.2 By Customer. Customer will defend at its expense any suit brought against Mapware, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s breach or alleged breach of Sections 5.2 (Customer Warranty). This section states the sole and exclusive remedy of Mapware and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
9.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10. TERM AND TERMINATION.
10.1 Term. Unless otherwise agreed in writing by Mapware, this Agreement will begin on the Effective Date and continue in full force and effect and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement. Thereafter, this Agreement will automatically renew for additional terms of one (1) year unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current term (the “Renewal Term”).
10.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
10.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses and access granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 8 (Confidentiality); and (c) any amounts owed to Mapware under this Agreement will become immediately due and payable. Sections 1 (Definitions), 3.2 (Restrictions), 3.3 (Ownership), 3.5 (Open Source Software), 4 (Fees and Expenses; Payments), 6 (Disclaimers), 7 (Limitation of Liability), 8 (Confidentiality), 9 (Indemnification), 10.3 (Termination for Breach), 10.4 (Effect of Termination), and 11 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
11.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Mapware, or any products utilizing such data, in violation of the United States export laws or regulations.
11.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
11.6 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Solution, Licensed Material and Documentation.
11.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.8 Independent Contractors. Customer’s relationship to Mapware is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Mapware.
11.9 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Mapware, by emailing email@example.com and if to Customer by emailing the Customer Point of Contact email address at the time of Customer’s signing up for the Solution, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address at the time of Customer’s signing up for the Solution by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
11.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
11.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters.
11.12 The communications between Customer and Mapware may take place via electronic means, including e-mails. For contractual purposes, Customer (a) consents to receive communications from Mapware in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Mapware provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Customer’s statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
Last Updated Date: January 20, 2022
The Application is designed to assist users in (i) planning flight missions in connection with their operation of a drone or unmanned aerial vehicle (collectively, “UAV”) by navigating to a location of interest on a map and defining a flight area for the UAV, and (ii) take photos automatically in a pre-configured pattern (iii)flying the UAV safely by providing a number of safety features both pre-flight and during the UAV flight. WHILE THE APPLICATION PROVIDES TOOLS THAT ARE DESIGNED TO FACILITATE YOUR SAFE OPERATION OF A UAV, YOU ARE SOLELY RESPONSIBLE FOR THE SAFE AND LEGAL OPERATION OF ANY UAV. IT IS YOUR RESPONSIBILITY TO EXERCISE REASONABLE JUDGMENT WHEN EVALUATING WHETHER OR NOT IT IS SAFE OR LEGAL TO OPERATE A UAV AT A GIVEN TIME OR PLACE. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOU HAVE SECURED THE NECESSARY PERMITS, LICENSES, CERTIFICATIONS, AND APPROVALS, AS MAY BE REQUIRED BY APPLICABLE LAWS, RULES, AND REGULATIONS, IN ORDER TO OPERATE THE UAV WITHIN ANY AIRSPACE IN WHICH YOU PLAN TO USE THE APPLICATION. MAPWARE SHALL NOT, AND HEREBY DISCLAIMS, ANY AND ALL LIABILITY WITH RESPECT TO YOUR OPERATION OF THE UAV. ANY INFORMATION OR RESOURCES PROVIDED BY AERIAL APPLICATIONS ARE (A) PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND AERIAL APPLICATIONS DOES NOT GUARANTEE TO ACCURACY OR LEGALITY OF ANY SUCH INFORMATION AND (B) ARE NOT CONSIDERED OFFICIAL AERONAUTICAL SOURCES. CONSULTANT IS RESPONSIBLE FOR CONSULTING WITH OFFICIAL SOURCES AND COMPLYING WITH ALL APPLICABLE LOCAL, STATE, FEDERAL AND FOREIGN LAWS (INCLUDING MINIMUM AGE REQUIREMENTS) REGARDING THE USE, OPERATION, OR PILOTING OF UAVS.
2.1 Mapware Properties. The Application, the Services, and the information and content available in the Application and the Services (each, a “Mapware Property,” and, collectively, the “Mapware Properties”) are protected by copyright and other laws throughout the world.
2.2 Application License. Subject to your compliance with the Agreement, Mapware grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
2.3 Updates. You understand that Mapware Properties are evolving. As a result, Mapware may require you to accept updates to Mapware Properties that you have installed on your computer or mobile device. You acknowledge and agree that Mapware may update Mapware Properties with or without notifying you. You may need to update third-party software from time to time in order to use Mapware Properties.
2.4 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Mapware Properties or any portion of Mapware Properties, (b) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Mapware Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (c) you shall not access Mapware Properties in order to build a similar or competitive application, product or service; (d) except as expressly stated herein, no part of Mapware Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Mapware Properties. Any future release, update or other addition to Mapware Properties shall be subject to the terms of this Agreement. Mapware, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Mapware Property terminates the licenses granted by Mapware pursuant to the Agreement.
3.1 Registering Your Account. In order to access certain features of Mapware Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Application (“Account”), or has a valid account on a third-party platform, such as Gmail (“THIRD-PARTY PLATFORM”) through which the user has connected to the Application (each such account, a “Third-Party Account”).
3.2 Access Through a THIRD-PARTY PLATFORM. If you access the Mapware Properties through a THIRD-PARTY PLATFORM as part of the functionality of the Application and/or the Services, you may link your Account with Third-Party Accounts, by allowing Mapware to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Mapware and/or grant Mapware access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Mapware to pay any fees or making Mapware subject to any usage limitations imposed by such third-party service providers. By granting Mapware access to any Third-Party Accounts, you understand that Mapware may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Mapware Properties (collectively, “Content”) that you have provided to and stored in your Third-Party Account (“THIRD-PARTY PLATFORM Content”) so that it is available on and through Mapware Properties via your Account. Unless otherwise specified in the Agreement, all THIRD-PARTY PLATFORM Content shall be considered to be Your Content (as defined in Section 4.1) for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Mapware Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Mapware’ access to such Third-Party Account is terminated by the third-party service provider, then THIRD-PARTY PLATFORM Content will no longer be available on and through Mapware Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND MAPWARE DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Mapware makes no effort to review any THIRD-PARTY PLATFORM Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Mapware is not responsible for any THIRD-PARTY PLATFORM Content.
3.3 Registration Data. In registering an account on the Application, you agree (a) to provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) to maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) of legal age to form a binding contract; and (ii) not a person barred from using Mapware Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree (y) to notify Mapware immediately of any unauthorized use of your password or any other breach of security; and (z) to exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Mapware has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Mapware has the right to suspend or terminate your Account and refuse any and all current or future use of Mapware Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use Mapware Properties if you have been previously removed by Mapware, or if you have been previously banned from any of Mapware Properties.
3.4 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Mapware.
3.5 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Mapware Properties, including, but not limited to, a mobile device that is suitable to connect with and use Mapware Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Mapware Properties.
4.1 Types of Content. You acknowledge that all content on or accessible via the Application or Services is the sole responsibility of the individual or entity from whom such content originated. This means that you, and not Mapware, are entirely responsible for all content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services, including, without limitation, UAV flight plan data, photos, videos, UAV flight log data and UAV flight metadata (“Your Content”), and that you and other Registered Users of the Services, and not Mapware, are similarly responsible for all content that you and they Make Available through the Services (“User Content”).
4.2 No Obligation to Pre-Screen Content. You acknowledge that Mapware has no obligation to pre-screen Your Content or any User Content, although Mapware reserves the right in its sole discretion to pre-screen, refuse or remove any such content. By entering into this Agreement, you hereby provide your irrevocable consent to such monitoring and acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including, without limitation, chat, text, or voice communications. If Mapware pre-screens, refuses or removes Your Content or User Content, you acknowledge that Mapware will do so for Mapware’ benefit, not yours. Without limiting the foregoing, Mapware shall have the right to remove any content that violates the Agreement or is otherwise objectionable.
4.3 Storage. Unless expressly agreed to by Mapware in writing elsewhere, Mapware has no obligation to store any of Your Content that you Make Available on the Services. Mapware has no responsibility or liability for the deletion or accuracy of any content; the failure to store, transmit or receive transmission of any content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Mapware retains the right to create reasonable limits on its use and storage of content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the App and as otherwise determined by Mapware in its sole discretion.
5.1 Services. Except with respect to Your Content and User Content, you agree that Mapware and its licensors and suppliers own all rights, title and interest in the Services (including but not limited to, any data (including game data), computer code, themes, objects, concepts, artwork, animations, sounds, audiovisual effects, moral rights, and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Services.
5.2 Trademarks. Mapware and all related graphics, logos, service marks and trade names used on or in connection with the Services or the Mapware Properties are the trademarks of Mapware and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services or the Mapware Properties are the property of their respective owners.
5.3 Your Content. Mapware does not claim ownership of Your Content. However, when you as a Registered User post or publish Your Content on or in Mapware Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
5.4 License to Your Content. Subject to any applicable account settings that you select, you grant Mapware a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Mapware Properties to you and to our other Registered Users. We may also use images and other types of Your Content that do not include personally identifiable information for the purposes of improving our Application and the Mapware Properties. Please remember that other Registered Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Mapware Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Mapware, are responsible for all of Your Content that you Make Available on or in Mapware Properties.
5.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Mapware through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Mapware has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Mapware a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Mapware Properties and/or Mapware’ business.
As a condition of your use of the Services, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party to) either take any action or Make Available any Content on or through the Services that: (a) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (b) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (c) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (d) involves commercial activities and/or sales without Mapware’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (e) impersonates any person or entity, including any employee or representative of Mapware; (f) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; or (g) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services. Notwithstanding the foregoing, you agree to comply with all applicable laws, including all applicable data protection laws.
The Services are not intended for use in the operation of manned aircraft navigation or communication systems, air traffic control systems, life support machines or other equipment in which the failure of the Services could lead to death, personal injury, or severe physical or environmental damage (collectively, the “Excluded Uses”). You agree not to use the Services for any such Excluded Uses.
8.2 Third-Party Websites and Applications. The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Mapware. Mapware is not responsible for any Third-Party Websites or Third-Party Applications. Mapware provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Applications at your own risk. When you leave the App, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.3 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Mapware and not with the App Store. Mapware, not the App Store, is solely responsible for Mapware Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Mapware Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Mapware Property, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
8.4 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Mapware only, and not Apple, and (ii) Mapware, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Mapware and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Mapware.
(d) You and Mapware acknowledge that, as between Mapware and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Mapware acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Mapware and Apple, Mapware, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Mapware acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
9.1 Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You may be required to provide Mapware with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”) in order to purchase any of the options offered on the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Agreement to determine your rights and liabilities. By providing Mapware with your credit card number and associated payment information, you agree that Mapware is authorized to immediately invoice your Account for all fees and charges due and payable to Mapware hereunder and that no additional notice or consent is required. You agree to immediately notify Mapware of any change in your billing address or the credit card used for payment hereunder. Mapware reserves the right at any time to change its prices and billing methods, either immediately upon posting on Mapware Properties or by e-mail delivery to you.
9.2 Service Subscription Fees. If you purchase a subscription, you will be responsible for payment of the applicable subscription fee for any Services (each, a “Service Subscription Fee”) at the time you select a subscription package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and Mapware for the Services until Mapware accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
9.3 Automatic Renewal. If you purchase a subscription, your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Mapware’ then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Mapware that your subscription will be automatically renewed, you will have thirty (30) days from the date of the Mapware notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Mapware at firstname.lastname@example.org or log in and go to the “Change/Cancel Membership” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Mapware to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Mapware does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Mapware may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
9.4 Taxes. The payments required under Section 9.2 of this Agreement do not include any Sales Tax that may be due in connection with the Services provided under this Agreement. If Mapware determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Mapware shall collect such Sales Tax in addition to the payments required under Section 9.2 of this Agreement. If any Services, or payments for any Services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Mapware, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Mapware for any liability or expense Mapware may incur in connection with such Sales Taxes. Upon Mapware’ request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
9.5 Withholding Taxes. You agree to make all payments of fees to Mapware free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Mapware will be your sole responsibility, and you will provide Mapware with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
9.6 Disputes. Unless otherwise provided by the applicable payment processor or payment platform used in connection with your payment for Services, you must notify us in writing within seven (7) days after receiving your credit card statement if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: email@example.com.
9.7 Free Trials and Other Promotions. Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire, and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Mapware to have the charges reversed.
You agree to indemnify and hold harmless Mapware, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Mapware Party” and collectively, the “Mapware Parties”) from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Mapware Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Mapware reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Mapware in asserting any available defenses. This provision does not require you to indemnify any of the Mapware Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Application or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Mapware Properties.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF MAPWARE PROPERTIES IS AT YOUR SOLE RISK, AND MAPWARE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. MAPWARE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF ANY MAPWARE PROPERTY.
(a) MAPWARE PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) MAPWARE PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF MAPWARE PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF MAPWARE PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH MAPWARE PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS MAPWARE PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS, SUCH AS INCLEMENT WEATHER. MAPWARE MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING, BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MAPWARE OR THROUGH MAPWARE PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, MAPWARE MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT MAPWARE’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
(f) ANY AND ALL AIRSPACE MAPS, AIRSPACE DATA AND FLIGHT RESTRICTIONS PROVIDED THROUGH THE SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY, AND MAY CONTAIN INACCURACIES. EVEN THOUGH THE SERVICES MAY DESIGNATE A MAP AREA AS OPEN OR FREE OF FLIGHT RESTRICTIONS, THIS DESIGNATION DOES NOT MEAN THAT MAPWARE RECOMMENDS THAT AREA FOR DRONE FLIGHT, AND MAPWARE CANNOT GUARANTEE THAT YOU MAY LEGALLY OPERATE YOUR UAV WITHIN THAT AREA.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT MAPWARE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD MAPWARE PARTIES LIABLE, OR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL MAPWARE PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT MAPWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF MAPWARE PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE MAPWARE PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH MAPWARE PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON MAPWARE PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO MAPWARE PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. THE FOREGOING SHALL NOT APPLY TO LIABILITY OF A MAPWARE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A MAPWARE PARTY’S NEGLIGENCE; OR (B) ANY INJURY CAUSED BY A MAPWARE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL MAPWARE PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Mapware by you during the one-month period prior to the act, omission or occurrence giving rise to such liability and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A MAPWARE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A MAPWARE PARTY’S NEGLIGENCE; OR (B) ANY INJURY CAUSED BY A MAPWARE PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MAPWARE AND YOU.
13.1 Violations. If Mapware becomes aware of any possible violations by you of the Agreement, Mapware reserves the right to investigate such violations. If, as a result of the investigation, Mapware believes that criminal activity has occurred, Mapware reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Mapware is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Mapware Properties, including Your Content, in Mapware’ possession in connection with your use of Mapware Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Agreement, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Mapware, its Registered Users or the public, and all enforcement or other government officials, as Mapware in its sole discretion believes to be necessary or appropriate.
13.2 Breach. In the event that Mapware determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Mapware Properties, Mapware reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Mapware) that you have violated the Agreement;
(b) Delete any of Your Content provided by you or your agent(s) to Mapware Properties;
(c) Discontinue your registration(s) with any of Mapware Properties;
(d) Discontinue your subscription to any Services;
(e) Notify and/or send content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which Mapware deems to be appropriate.
14.1 Termination of Services by Mapware. You will have thirty (30) days from the Service Commencement Date, or any Renewal Commencement Date, for any Services hereunder, to cancel such Service, in which case Mapware will refund your Service Subscription Fee, if already paid pursuant to Section 9.1 or 9.2, for the applicable Service. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Mapware is required to do so by law (e.g., where the provision of the Application or the Services is, or becomes, unlawful), Mapware has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Mapware’ sole discretion and that Mapware shall not be liable to you or any third party for any termination of your Account.
14.2 Termination of Services by You. If you want to terminate the Services provided by Mapware, you may do so by (a) notifying Mapware at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Mapware’ address set forth below.
14.3 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Mapware will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, indemnification commitments, warranty disclaimers, and limitation of liability.
14.4 No Subsequent Registration. If your registration(s) with or ability to access Mapware Properties, or any other Mapware community is discontinued by Mapware due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Mapware Properties or any Mapware community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Mapware Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Mapware reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
Mapware Properties can be accessed from countries around the world and may contain references to Services and content that are not available in your country. These references do not imply that Mapware intends to announce such Services or content in your country. Mapware Properties are controlled and offered by Mapware from its facilities in the United States of America. Mapware makes no representations that Mapware Properties are appropriate or available for use in other locations. Those who access or use Mapware Properties from other countries do so at their own volition and are responsible for compliance with local law.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Mapware and limits the manner in which you can seek relief from us. This Section 16 only applies to residents of the United States.
16.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Mapware Properties, to any content or products sold or distributed through the Mapware Properties, or to any aspect of your relationship with Mapware, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify,; and (2) you or Mapware may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
16.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent: orporation Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Mapware will pay them for you. In addition, Mapware will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Mapware. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
16.4 Waiver of Jury Trial. YOU AND MAPWARE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Mapware are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.5 Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the District of Columbia. All other disputes, claims, or requests for relief shall be arbitrated.
16.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: firstname.lastname@example.org, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Mapware username (if any), the email address you used to set up your Mapware account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
16.7 Severability. Except as provided in Section 16.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
16.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Mapware.
16.9 Modification. Notwithstanding any provision in this Agreement to the contrary, if Mapware makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Mapware at the following address: Mapware, Inc.,12 H St. NE, Suite 890, Washington DC 20002.
As part of your use of the Services, you may receive notifications, text messages, alerts, emails and other electronic communications. You agree to the receipt of these communications. You can control most communications from the Application using your Account settings. We may need to provide you with certain communications, such as service announcements and administrative messages. You are responsible for any messaging or data fees you may be charged by your wireless carrier.
18.1 Electronic Communications. The communications between you and Mapware may take place via electronic means, whether you visit Mapware Properties or send Mapware e-mails, or whether Mapware posts notices on Mapware Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Mapware in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Mapware provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
18.2 Release. You hereby release Mapware Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Users, first responders or medical personnel of any kind arising in connection with or as a result of the Agreement or your use of Mapware Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Mapware Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Application or any Services provided hereunder.
18.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Mapware’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.4 Force Majeure. Mapware shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, acts or decrees of governmental agencies, pandemics, epidemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Mapware Properties, please contact us at: Mapware, Inc.,12 H St. NE, Suite 890, Washington DC 20002.
18.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Mapware agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the District of Columbia.
18.8 Notice. Where Mapware requires that you provide an e-mail address, you are responsible for providing Mapware with your most current e-mail address. In the event that the last e-mail address you provided to Mapware is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Mapware’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Mapware at the following address: Mapware, Inc., 12 H St. NE, Suite 890, Washington DC 20002. Such notice shall be deemed given when received by Mapware by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
18.9 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
18.11 Export Control. You may not use, export, import, or transfer Mapware Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Mapware Properties, and any other applicable laws. In particular, but without limitation, Mapware Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Mapware Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Mapware Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Mapware are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Mapware products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
18.13 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.