4. LIMITED WARRANTY
41
42
Pictometry represents and warrants that it has the right and authority to make the Online Services and the Licensed Content available to you and your
Eligible Users as authorized expressly by this License Agreement.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 4.], THE ONLINE SERVICES AND LICENSED CONTENT ARE PROVIDED ON AN "AS I8’,
"AS AVAILABLE" BASIS AND PICTOMETRY AND EACH THIRD PARTY SUPPLIER OF LICENSED CONTENT EXPRESSLY DISCLAIM ALL
OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
5. LIMITATION OF LIABILITY
5.1
3.2
53
54
5.5
No Covered Party (as defined below) shall be liable for any loss, injury, claim, lability, or damage of any kind resulting in any way from (2) any errors in or
omissions from the Online Services or the Licensed Content, (b} the unavailability or interruption of the Online Services or any features thereof or the
Licensed Content, (c) your or an Eligible User's use of the Online Services or the Licensed Content, (d) the loss or corruption of any data or equipment in
connection with the Online Services or the Licensed Content, (e) the content, accuracy, or completeness of the Licensed Content. all regardless of whether
you received assistance in the use of the Online Service from a Covered Party, (f) any delay or failure in performance beyond the reasonable control of a
Covered Party, or (g) any content retrieved from the Internet even if retrieved or linked to from within the Online Services.
“Covered Party" means (a) Pictometry and any officer, director, employee, subcontractor, agent, successor, or assign of Pictometry; and (b) each third party
supplier of any Licensed Content, third party alliance entity, their affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of
any third party supplier of any Licensed Content or third party alliance entity and their affiliates,
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILf IY OF
THE COVERED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR THE
LICENSED CONTENT OR THIS LICENSE AGREEMENT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT
YOU PAID FOR THE ONLINE SERVICES IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE
YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL GTHER REMEDIES WHICH YOU MAY HAVE
AGAINST ANY COVERED PARTY.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER YOU NOR THE COVERED PARTIES WILL BE LIABLE FOR
ANY SPECIAL, INDIRECT, INCIDENTAL. GR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE ONLINE
SERVICES, THE LICENSED CONTENT, OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS. THE FOREGOING
LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY’S INDEMNITY OBLIGATIONS OR YOUR (AND YOUR ELIGIBLE USERS')
INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO PICTOMETRY OR ITS
THIRD PARTY SUPPLIERS.
Notwithstanding anything to the contrary in this Section 5:
(a) If there is a breach of the warranty in Section 4.1 above, then Pictometry, at its option and expense, shall either defend or settle any action and hold you
harmless against proceedings or damages of any kind or description based on a third party’s claim of patent, trademark, service mark, copyright or
trade secret infringement related to use of the Online Services or the Licensed Content, asserted against you by such third party provided: (i) all use of
the Online Services and the Licensed Content was in accordance with this License Agreement; (ii) the claim, cause of action or infringement was not
caused by you modifying or combining the Online Services or the Licensed Content with or into other products, applications, images or data not
approved by Pictomctry; (iii) you give Pictometry prompt notice of such claim, and (iv) you give Pictometry the right to control and direct the
investigation, defense and settlement of such claim, You, at Pictometry’s expense, shal] reasonably cooperate with Pictometry in connection with the
foregoing.
(b) In addition to Section 5.4(a), if the Online Services, the operation thereof or the Licensed Content become, or in the opinion of Pictometry are likely to
become, the subject of a claim of infringement, Pictometry may, at its option and expense, either: (i) procure for you the right to continue using the
Online Services or the Licensed Content, (ii) replace or modify the Online Services or the Licensed Content so that they become non-in fringing; or (iii)
terminate the License Agreement on notice to you and grant you a pro-rata refund or credit (whichever is applicable) for any pre-paid fees or fixed
charges.
(c) The provisions of Sections 5,5(a) and (b) shall constitute your sole and exclusive remedy for the respective matters specified therein.
6. MISCELLANEOUS
6.1
6.2
6.3
6.4
6.5
6.6
The terms and conditions of this License Agreement may be changed from time to time immediately upon notice to you. If any changes are made to this
License Agreement, such changes will: (a) only be applied prospectively; and (b) not be specifically directed against you or your Eligible Users but will
apply to all similarly situated Pictometry customers using the Online Services. You may terminate this License Agreement upon written notice to
Pictometry if any change to the terms and conditions of this License Agreement is unacceptable to you. For termination to be effective under this Section
6.1, written notice of termination must be provided to Pictometry within 90 days of the effective date of the change. Continued use of the Online Services
following the effective date of any change constitutes acceptance of the change, but does not affect the foregoing termination right. Except as provided
above, this License Agreement may not be supplemented, modified or otherwise revised unless signed by duly authorized representatives of both parties.
Furthermore, this License Agreement may not be supplemented, modified or otherwise revised by email exchange, even if the email contains a printed name
or signature line bearing signature-like font. The foregoing does not prohibit the execution of electronic contracts bearing electronic signatures of authorized
representatives of both parties, provided such signatures include digital certifications or are otherwise authenticated,
In the event of a breach of this License Agreement by you, any Eligible User or someone using the Pictometry Credential of an Eligible User, Pictometry
may temporarily suspend or discontinue providing access to the Online Services to any or all Eligible Users without notice and Pictometry may pursue any
other legal remedies available to it.
All notices and other communications hereunder shal] be in writing or displayed electronically in the Online Services by Pictometry. Notices shall be
deemed to have been properly given on the date deposited in the mail, if mailed; on the date fust made available, if displayed in the Online Services; or on
the date received, if delivered in any other manner. Legal notices to Pictometry should be sent to Pictometry, Attn: General Counsel, 25 Methodist Hill
Drive, Rochester, New York 14623.
The failure of you, Pictometry, or any third party supplier of the Online Services or any Licensed Content to enforce any provision hereof shall not constitute
or be construed as a waiver of such provision or of the right to enforce it at a later time.
Neither you nor any Eligible User may assign or otherwise transfer your rights or delegate your duties under this License Agreement without the pnor
written consent of Pictometry. Any attempt by you or any Eligible User to assign, transfer or delegate your rights or obligations under this License
Agreement without Pictometry’s consent shall be void, and shall also void the limited license granted to you by this License Agreement. This License
Agreement and any amendment thereto shall be binding on, and will inure to the benefit of the parties and their respective successors and permitted assigns.
This License Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, excluding its conflicts of law principles.
Unless you are a government entity, in the event that any legal proceedings are commenced with respect to any matter arising under this License Agreement,
Page 12 of 18 City of Nashua, NH — C179899 20160603 ~ DD-0002-20160318
