MAPPEDIN SOFTWARE ACCESS LICENSE FOR END CUSTOMER

V01112021

Mappedin Inc. (“Mappedin”), is pleased to permit access and otherwise make available its proprietary Software to End Customer subject to the terms and conditions below. End Customer’s use of the Software is subject to its agreement to be bound by the terms of this software access license (the “Agreement”), which is a legal agreement between End Customer and Mappedin. By clicking on the appropriate button below, or by accessing, installing or using the Software, you are agreeing on behalf of End Customer to be bound by the terms of this Agreement and are representing that you have the right to do so. If you or End Customer have any questions or concerns about the terms of this Agreement, please contact us at legal@mappedin.ca. If, prior to accessing, installing or otherwise using the Software, End Customer decides it is unwilling to agree to the terms of this Agreement, End Customer should immediately provide notice of this decision to Mappedin at the email address above and to System Integrator (in accordance with the agreement between End Customer and System Integrator) and request from System Integrator a refund of any monies End Customer has paid in respect of the Software.   In that case neither you nor End Customer have a right to access the Server Software or install or use the Application Software or permit others to do so.   

”Affiliate” means, with respect to End Customer, any other such entity Controlling, Controlled by, or under common Control with such entity that Mappedin has authorized to obtain Software. "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. For avoidance of doubt, an entity shall be deemed an Affiliate only if it is approved in writing by Mappedin, and shall remain an Affiliate only for so long as the Control described above exists.

“Application Software” means the Mappedin proprietary software to be supplied to End Customer and its Affiliates.

“Directories” means the directories, kiosks, totems, digital signage or other display devices covered by an SOW or other proposal agreed to by System Integrator and End Customer.

“End Customer” means the entity to whom System Integrator has agreed to provide access to the Software under an SOW or other proposal.

“Properties” means the End Customer properties covered by an SOW or other proposal agreed to by System Integrator and End Customer.

“System Integrator” means the entity supplying the Application Software and Services to End Customer and its Affiliates that has been authorized by Mappedin to do so.

“Server Software” means the Mappedin proprietary software hosted on a third party server.

“Services” means the provision of access to the Server Software, and support for, the Software.

“Software” means the Application Software and Server Software, as applicable.

  1. License Grant. Subject to receipt by Mappedin of all applicable fees for its Software and Services from System Integrator, and in consideration of Mappedin permitting System Integrator to make the Software available to End Customer, End Customer executing this license agreement: (a) Mappedin has authorized System Integrator to distribute the Application Software and make available the Services to End Customer; and (b) Mappedin hereby grants to End Customer a personal, non-exclusive, terminable license which is sub-licenseable only to Affiliates, to: (i) access the Mappedin Server Software via the web to create, modify and maintain digital maps for Properties with System Integrator solely for Customer’s own use and the use of its Affiliates; and (ii) use the Mappedin Application Software provided by Mappedin (including the Mappedin SDK Software) solely to display the digital maps resulting from the exercise of the rights granted in (i) and to make available the functionality in each these digital maps on: a) Directories , and/or b) on Client's website or in Customer’s iOS or Android application agreed to in writing by Mappedin, in each case solely for the personal and non-commercial use of its users; until the earliest of: a) the Term expiring or the Agreement being terminated. Mappedin has separately licensed System Integrator to use the Mappedin SDK solely for the purposes set out above.
  2. Restrictions on Use. End Customer shall not and shall ensure its Affiliates do not knowingly, after making such inquiries as a reasonable person in End Customer’s or its Affiliates position would undertake, use or permit others to use the software or any portion thereof, in isolation or with any other software, digital product, or data, including any materials supplied by End Customer to System Integrator in order to create the digital maps, in a manner that in Mappedin’s judgement, 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 End Customer shall and shall ensure that its Affiliates immediately cease any such activity upon Mappedin delivering notice requiring same to End Customer. Further End Customer shall not and shall ensure that Affiliates do not, use or permit others to use the Software or any results of the Software to commit a crime, or for any tortious purpose; or resell or attempt to resell the Software or any results of the Software including the digital maps, or except as expressly contemplated by the SOW, or otherwise agreed in writing by Mappedin, otherwise make or attempt to make available to third parties the rights(s) to access the Software or the digital maps. Further End Customer shall not and shall ensure that its Affiliates do not, exceed, nor permit any other person to exceed, any usage limits or quotas or access the Mappedin Software in a manner designed to improperly avoid incurring fees; remove or alter any proprietary rights notices on the Mappedin Software; circumvent any security technology that is part of the Mappedin Software, or attempt to do so.
  3. No Reverse Engineering. Except to the extent this provision is prohibited by law, End Customer shall not alter, modify, adapt, create derivative works, deface, disassemble, or Reverse Engineer the Mappedin Software or any other Mappedin supplied product or service, or attempt to do so, or permit, acquiesce, authorize or encourage any other person, including any of its Affiliates, 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 End Customer to utilize that information, digital maps or data contained therein or software for purposes other than those contemplated by this Agreement.
  4. Ownership. Nothing herein transfers any ownership right, title or interest in or to any Mappedin Software to End Customer or its Affiliates. Mappedin shall own the results, including the digital maps, generated by use of the Software, but subject to End Customer and Affiliates complying with the terms and conditions of this License, Mappedin hereby grants to End Customer an exclusive license to the digital maps generated by the Mappedin Software.
  5. Anonymized Extracted Data. End Customer hereby agrees that Mappedin may extract and create anonymized data from any data provided to Mappedin by End Customer or generated by the use of the Software (“Extracted Data”). Extracted Data shall not contain, disclose or otherwise identify End Customer, its Affiliates or any of their respective users. Mappedin shall use the Extracted Data solely to create, or to train and thereby improve, algorithms used in the Software and/or Access Services and to otherwise improve Mappedin Software and/or Access Services. The rights set out in this paragraph are non-terminable and shall survive expiration or termination of this Agreement. For avoidance of doubt, Mappedin shall not be required to return or destroy the Extracted Data on expiration or termination of this Agreement.
  6. Maintenance. End Customer will have access to the most recent version of the Server Software so long as this Access Service license is in effect and the annual Access Fees are paid by System Integrator. Changes to Server Software may require updates or upgrades to Application Software and End Customer may need to obtain these through the System Integrator at an additional charge. NOTHING HEREIN GUARANTEES THAT SERVICES WILL BE AVAILABLE 24*7 OR OBLIGATES MAPPEDIN TO PROVIDE FRONT LINE SUPPORT TO END CUSTOMER. End Customer should contact System Integrator if the Software fails to operate in accordance with its documentation or the Services become unavailable.
  7. Termination. Without limiting Mappedin’s legal recourse, Mappedin may terminate the right to use the Application Software and to access the Server Software at any time that End Customer or any of its Affiliates are in breach of this License.
  8. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the province of Ontario and the laws of Canada applicable therein, excluding conflict of law rules. 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 located in the province of Ontario, Canada. In construing, interpreting and enforcing this Agreement, choice of law principles shall not apply. The United Nations Convention on Contracts for the International Sale of Goods is inapplicable, and the Parties expressly disclaim its applicability.
  9. Injunctive relief. The Parties agree that a material breach of this Agreement may cause irreparable harm Mappedin, 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, Mappedin may seek injunctive relief without posting any security.
  10. No Implied Warranties or Conditions. NEITHER PARTY MAKES ANY WARRANTIES, CONDITIONS, ENDORSEMENTS, REPRESENTATIONS OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OR DURABILITY, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OF USE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE.
  11. Mission Critical Applications IN NO EVENT SHALL MAPPEDIN HAVE ANY LIABILITY WHATSOEVER, FOR USE OF THE SOFTWARE IN MISSION CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS OR ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING, WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS.
  12. Exclusion of Types of Damages. IN NO EVENT SHALL MAPPEDIN BE LIABLE TO END CUSTOMER OR ITS AFFILIATES 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.
  13. Limitation on Liability. UNLESS, AND EXCEPT TO THE EXTENT, REQUIRED BY THE LAWS OF A COMPETENT JURISDICTION, IN NO EVENT SHALL MAPPEDIN’S AGGREGATE LIABILITY TO END CUSTOMER AND ITS AFFILIATES IN RELATION TO OR ARISING FROM THE SOFTWARE OR SERVICES EXCEED THE GREATER OF: (A) THE AMOUNT PAID TO MAPPEDIN BY END CUSTOMER AND ITS AFFILIATES FOR THE SOFTWARE THAT GAVE RISE TO THE DAMAGE OR FOR THE ACCESS SERVICES IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE DAMAGES OCCURRING; AND (B) $5000 USD.
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