3dMapperTM

Terms and Conditions of Use and License Agreement

 

You (“Customer”) wish to install and use the 3dMapperTM landscape visualization and mapping software (“3dMapperTM”).  Terrain Analytics, LLC (“Terrain Analytics”) is willing to license 3dMapperTM to you if you agree to the terms and conditions of use set forth below.

3dMapperTM

TERMS AND CONDITIONS

1.             Grant of License and Restrictions. 

1.1           License. During the trial period and during renewal of this License after payment of the License Fees set forth in Paragraph 2 of this Agreement, Terrain Analytics licenses to Customer the following rights (collectively referred to as the “License”):

(a) a non-assignable, non-exclusive license to access, download, install, use and display 3dMapperTM Version 4; and

(b) the Customer may make one copy of 3dMapperTM for archival purposes only; and

(c) the License is limited to installation on one (1) computer and use by one (1) individual.  No further copying or access to the software, electronically or otherwise, is permitted by this License without the payment of an additional license fee. 

1.2.               Internal Business.  Customer may only use 3dMapperTM for its own internal business purposes.

1.3.               Subsequent Versions of 3dMapper™.  The purchase of new licenses will be required for any additional versions of 3dMapper™ that may become available in the future.

1.4           Competing Products.  Customer may not use all or any part of 3dMapperTM or any documentation provided with the product to create a product that, in Terrain Analytics’ sole determination, competes with or is used in a product that competes with all or any part of 3dMapperTM, regardless of whether such product is distributed with or without consideration.

1.5           Reservation of Rights.  Terrain Analytics reserves all rights in 3dMapperTM not granted in this Agreement.

2.                  License Fee.  To keep this License in effect after the thirty (30) day trial period, Customer shall pay Terrain Analytics the license fee posted on Terrain Analytics’ 3dMapper™ website. .

3.                  Updates and Maintenance.  Terrain Analytics may make available maintenance releases of 3dMapper (“Updates”) addressing bugs that may be identified in 3dMapper™.   If any Updates are issued for the version of 3dMapper™ that Customer has licensed, it will receive those Updates at no additional cost.

4.             Term and Termination.

4.1           Initial Term.  The Initial Term of this Agreement is for a thirty (30) day trial period that begins on the day Customer installs 3dMapper™.  If the Initial Term expires before Customer has paid the License fee set forth in Paragraph 2, Customer agrees to stop using 3dMapper™.

4.2                Renewal.  If Customer pays the License fee set forth in Paragraph 2 during the Initial Term or after the expiration of the Initial Term, Terrain Analytics will send Customer a keycode to permit continued access and use of the 3dMapper™.  The keycode is to be used to obtain continued use of 3dMapper™ on only one of Customer’s computers after the expiration of the Initial Term.  Additional licenses must be purchased to permit use of 3dMapper™ on other Customer computers.

5.                Amendments. Terrain Analytics may amend this Agreement at any time by posting the amendments in the Terms and Conditions section of its website.  The effective date of any such amendment will be the date on which the amendment is posted. In addition, Terrain Analytics will e-mail all customers with active accounts a notice of the amended Terms and Conditions of Use and License Agreement.

6.             Terrain Analytics’ Warranty and Remedies.

6.1                Warranty.  Terrain Analytics warrants that Terrain Analytics has all the necessary rights, title, and interest to 3dMapperTM to grant the licenses to Customer as provided in this Agreement and by doing so Terrain Analytics will not infringe upon any third party rights in 3dMapperTM. 

6.2                Warranty Limitations.  EXCEPT FOR THE FOREGOING EXPRESS WARRANTY, TERRAIN ANALYTICS NEITHER MAKES NOR GRANTS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.  TERRAIN ANALYTICS EXCLUDES ALL IMPLIED WARRANTIES INCLUDING SPECIFICALLY ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.  TERRAIN ANALYTICS HEREBY EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR OTHERWISE.  THE EXPRESS WARRANTY IN SECTION 7.1 IS THE ONLY WARRANTY OF ANY KIND FOR 3DMAPPERTM. 

7.                Limitation of Terrain Analytics’ Liability, Consequential Damages.  The cumulative liability of Terrain Analytics to Customer for all claims relating to 3dMapperTM and any services rendered under this Agreement, will not exceed the total amount of all License Fees paid to Terrain Analytics by Customer for 3dMapperTM during the one (1) year period prior to the date Terrain Analytics is notified of such claim.  IN NO EVENT WILL TERRAIN ANALYTICS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES EVEN IF TERRAIN ANALYTICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. 

8.             Customer Warranties.  Customer warrants that it will only allow the use of 3dMapper™ on the number of computers for which it has paid the License Fees.  Customer warrants that it will only allow use of 3dMapper™ by one individual on each computer for which it has paid the License Fee. If Customer wishes to extend its use of 3dMapper™ to other computers or more users, Customer will contact Terrain Analytics and pay the applicable License fees.

9.             General Provisions.

9.1                System Requirements.  Customer is responsible for providing all equipment and for assuring it has the basic system in place to run 3dMapperTM. 

 

9.2           Notification of Rights.  In accessing and using 3dMapperTM as authorized under the terms of this Agreement, Customer will not remove, suppress or modify any notice of copyright, trademark, or other proprietary rights that appear in 3dMapperTM.   

9.3           Force Majeure.  Neither party shall be deemed in default or otherwise liable under this Agreement due to its inability to perform its obligations by reason of any fire, earthquake, flood, hurricane, tornado, substantial snowstorm, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order (which order is not the result of any act or omission which would constitute a default hereunder), or any failure or delay of any transportation, power, or communications system or any other or similar cause beyond that party’s reasonable control.

9.4           Complete Agreement, Modification of this Agreement.  This Agreement contains the complete and final agreement of the parties and supersedes previous understandings related to the subject matter hereof whether oral or written.  This Agreement may only be modified by an amendment signed by authorized representatives of Terrain Analytics and Customer.  Any term in Customer’s purchase order that is in addition to or different from terms of this Agreement other than acceptance of the License Fees for the Renewal Term, are not part of this Agreement.

9.5           Non-assignment.  Neither this Agreement nor the rights of Customer under this Agreement may be transferred, leased, assigned, or sublicensed without Terrain Analytics’ prior written consent. 

9.6           Waiver.  The waiver by either party of any default or breach of this Agreement does not constitute a waiver of any other default or breach of this Agreement or a subsequent waiver of that same default or breach.

9.7           Governing Law and Severability.  The laws of the State of Wisconsin and the United States govern this Agreement.  Customer consents to jurisdiction and venue in the courts of Dane County, Wisconsin or in the Federal District court in the Western District of Wisconsin, for any claims arising out of this Agreement.  If any part of this Agreement is held to be invalid, that part will be omitted, but the balance of the Agreement will remain in full force and effect.

9.8                Survival. All provisions of this Agreement relating to warranties, confidentiality, non-disclosure, proprietary rights, limitation of liability, indemnification obligations and payment obligation survive the termination or expiration of this Agreement.

 

9.9           Notices.  All notices or other communications required or permitted under this Agreement will be in writing and will be delivered by personal delivery, email (with delivery receipt), registered mail return receipt requested, a "Next Day Air" delivery service, or by facsimile transmission.