LEGAL

TCARTA MARINE, LLC – END USER LICENSE AGREEMENT

This END USER LICENSE AGREEMENT (“Agreement”) is made between TCarta Marine, LLC (“TCarta”) and you or, if you represent an entity or other organization, that entity or organization (in either case, “You”).  You have ordered a license to TCarta’s bathymetric products and data.  TCarta is willing to provide You with a license to those products described in the confirmation of your order provided by TCarta, or any of its agents, contractors or resellers (“Confirmation”), or otherwise provided to You in connection with this Agreement (collectively referred to herein as the “Product”) if You agree to be bound by the terms and conditions of this Agreement.

You accept and agree to be bound by the terms of this Agreement by doing any of the following: (a) accessing or using the Product, including, but not limited to, opening or breaking the seal of the original packaging of the Product or downloading the Product; (b) paying in whole or in part for the Product; or (c) retaining the Product for more than fourteen (14) calendar days following receipt thereof.  If You do not agree to the terms and conditions of this Agreement, TCarta will not license the Product to You.  If You do not return the Product within fourteen (14) days of receipt thereof or if you access, use or pay for the Product, as stated above, you acknowledge and agree to be bound by the terms and conditions of this Agreement.

1. DEFINITIONS

1. “Affiliate” means any entity now or hereafter directly or indirectly owned or controlled by You.

2. “Commercial Purpose” means any redistribution, retransmission or publication in exchange for a fee or other consideration, which may include, without limitation (i) advertising; (ii) use in marketing and promotional materials and services on behalf of a customer, client, employer, employee or for Your own benefit; (iii) use in any materials or services for sale or for which fees or charges are paid or received, including, but not limited to, textbook supplemental materials, books, syllabi, course packs; and (iv) use in any books, news publication, magazines or journals.

3. “Derivative Product” means any addition, improvement, update, modification, translation, transformation, adaptation or other derivative work of or to the Product which retains elements of the original pixels, authored, created or developed by or on behalf of You, including, without limitation, any reformatting of the Product into a different format or media from which it is delivered to You, any addition of data, images, information or other content to the Product, or any copy or reproduction of the Product.

4. “Editorial Use” means a non-commercial display or publication solely in support of newsworthy current events.

5. “Fees” mean the fees set forth in your Confirmation.

6. “Permitted Contractors” means any entity or organization under contract with You or Your Permitted Users to perform specific projects that require access to the Product, provided, however, that upon completion of the specified project all Products must be returned to You or Your Permitted Users and no copies may be maintained by such entity or organization.

7. “Permitted Users” means Users employed by You or any Affiliate.

8. “Purpose” means any purpose for Your acquisition or use of the Product as indicated in Your Confirmation.

9. “User” means employees of You, Your Permitted Users, or, as applicable, a Permitted Contractor.

2. TERM AND TERMINATION

This Agreement shall be effective as of the date You first download, access, use, pay for, in whole or in part, or retain the Product for fourteen (14) days, whichever occurs first (the “Effective Date”).  This Agreement shall remain in full force and effect until terminated as provided below.  TCarta has the right to terminate this Agreement, effective immediately upon written notice to You, in the event You or Your Permitted Users breach any provision of this Agreement.  Upon termination of this Agreement, all rights granted to You and Your Permitted Users hereunder shall immediately cease and You and Your Permitted Users will: (a) immediately discontinue all use of the Product; (b) if the Product was delivered in a tangible medium, return to TCarta the Product and all copies thereof; (c) remove and delete all copies of the Product or any portion thereof from all computer storage devices or any other medium on which You have placed or permitted other to place the Product; and (d) provide TCarta with a written certification that You have complied with the above stated obligations.  

3. GRANT OF LICENSE

Subject to the compliance with the terms and conditions of this Agreement by You and Your Permitted Users, TCarta grants to You and Your Permitted Users a non-exclusive, non-transferable, limited license to (i) access, reproduce, store, display and create Derivative Products of the Product, solely for the internal Editorial Use by You, (ii) publish the Product and Derivative Products in hardcopy or broadcast format for Editorial Use, and (iii) publish the Product or Derivative Products in electronic format to internet websites solely for your internal, Editorial Use, provided that the Product or Derivative Product posted to publicly accessible websites is in a secure, non-modifiable, non-downloadable format that allows printing and viewing only in compressed format without separate or associated geospatial information files.

4. SUBLICENSE

Subject to compliance with the terms and conditions of this Agreement by You and Your Permitted Users and Your timely payment of all applicable Fees, You and Your Permitted Users may grant sublicenses of the rights granted to You and Your Permitted Users under Section 3 to access and reproduce the Product to Permitted Contractors solely for the purpose of assisting You in the exercise of Your rights under Section 3.  Each sublicense must require the sublicensee to agree to be bound by this Agreement.  You and Your Permitted Users will remain responsible for any noncompliance by your sublicensee/s and/or sublicensee’s breach of this Agreement.

5. RESTRICTIONS

You and Your Permitted Users hereby acknowledge and agree that the Product is the property of TCarta and contains valuable assets and proprietary information.  Accordingly, except as expressly permitted in Sections 3 or 4, You and Your Permitted Users will not, and will not permit and User or third party to: (a) publish, transmit, reproduce, create Derivative Products of or otherwise utilize the Product in any form, format or media; (b) merge the Product with any other data, information or content; (c) reverse engineer or otherwise attempt to derive the algorithms, databases or data structures upon which the Product is based; (d) distribute, sublicense, rent, lease or loan the Product; (e) use the Product for the business needs of any third person or entity, including without limitation, providing any services to any third parties; (f) remove, bypass or circumvent any electronic or other forms of protection measure included on or with the Product; (g) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Product; or (h) otherwise use or access the Product or any Derivatives for any purpose not expressly permitted under this Agreement, including, without limitation, for Commercial Purposes. All Products or Derivatives must contain the following copyright notice conspicuously displayed in connection with the Product or Derivative Work: “© TCarta Marine, LLC, All Rights Reserved” for the Product, and “Includes copyrighted material of TCarta Marine, LLC, All Rights Reserved” for Derivatives. You acknowledge that You need to obtain a separate distribution license from TCarta in order to distribute or publish the Product or any Derivative Work in any form not expressly permitted under Section 3 or 4.

6. OWNERSHIP

The Product, and all worldwide intellectual property and proprietary rights therein and related thereto, including, without limitation, all patents, copyrights, trademarks, trade secrets, moral rights, sui generis rights and other right in databases, and all rights arising from or pertaining to the foregoing rights, are and will remain the exclusive property of TCarta and its suppliers. All rights in and to the Product not expressly granted to You are reserved by TCarta and its suppliers. This Agreement does not grant You title to the Product or any copies of the Product.

7. CONFIDENTIALITY

The Product includes confidential and proprietary information of TCarta (“Confidential Information”). You will not use any Confidential Information for any purpose not expressly permitted hereunder and will disclose Confidential Information only to Your Users and permitted sublicensees who have a need to know for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Your duty hereunder. You will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as You protect Your own confidential or proprietary information of similar nature and with no less than reasonable care.

8. AUDIT

At TCarta’s request, You will provide assurances acceptable to TCarta that You are using the Product consistent with the terms of this Agreement. Upon notice, TCarta may inspect Your records, accounts and books relating to the use of the Product to ensure that the Product is being used in accordance with this Agreement.

9. LIMITATION OF LIABILITY

IN NO EVENT WILL TCARTA BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INDIRECT DAMAGES (INCLUDING LOST PROFITS OR LOST DATA) ARISING FROM, OR RELATING TO, THIS AGREEMENT OR THE PRODUCT, EVEN IF TCARTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TCARTA’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE PRODUCT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID BY YOU FOR THE PRODUCT.

10. INDEMNIFICATION

You will indemnify, defend, and hold harmless TCarta and its subsidiaries, affiliates and subcontractors, and their respective owners, officers, directors, employees and agents, from and against any and all direct or indirect claims, damages, losses, damages, liabilities, expenses, and costs (including reasonable attorneys’ fees) arising from or out of: (1) Your use of the Product for any purpose; (2) Your actual or alleged breach of any provision of this Agreement; or (3) damage to property or injury to or death of any person directly or indirectly caused by You.

11. ADDITIONAL TERMS

1. You acknowledge that any actual or threatened breach of Section 3, 4, 5, 6, and 7 will constitute immediate and irreparable harm to TCarta for which monetary damages would be an inadequate remedy. Therefore, without limiting any other remedy available at law or in equity, upon any such breach or any threat thereof, TCarta will be entitled to seek injunctive relief against You as remedy for such breach. To the fullest extent not prohibited by applicable law, any action brought for such relief may be brought by TCarta upon ex parte application and without notice or posting of any bond, and You expressly waive any requirement for notice or the posting of any bond. If any action is brought by TCarta to enforce this Agreement, TCarta, if the substantially prevailing party, will be entitled to receive its reasonable attorney’s fees, court costs, and other collection expenses, in addition to any other relief it may receive.

2. Failure to require performance of any provision of this Agreement does not waive TCarta’s right to subsequently require full and proper performance of such provision. If any provision of this Agreement is determined to be invalid or unenforceable, such provision will to the extent possible be deemed amended by limiting and reducing it to the minimum extent necessary to make such provision valid and enforceable and the remaining provisions of this Agreement shall continue to be valid and enforceable and will be liberally construed to carry out the provisions and intent hereof. The invalidity or unenforceability of any provision of this Agreement in any jurisdiction will not affect the validity or enforceability of such provision in any other jurisdiction, nor will the invalidity or unenforceability of any provision of this Agreement with respect to any person affect the validity or enforceability of such provision with respect to any other person.

3. Neither this Agreement nor any of the rights or obligations hereunder may be assigned or transferred by You (by operation of law or otherwise) without the prior written consent of TCarta. This restriction on assignment or transfer shall apply to assignments or transfers by operation of law, as well as by contract, merger or consolidation. Any attempted assignment or transfer in violation of the foregoing will be null and void.

4. This Agreement shall be governed by the laws of the State of Colorado, without regard to conflicts of law principles that would require the application of the laws of any other state or jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in the federal courts or state courts for City and County of Denver, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.