PRODUCT TERMS AND CONDITIONS
PLEASE READ THESE PRODUCT TERMS AND CONDITIONS CAREFULLY BEFORE USING ANY DIGITALGLOBE PRODUCTS.
Your Order Confirmation together with these Product Terms and Conditions are, collectively, your agreement for the license or purchase of DigitalGlobe products and services (the “Agreement”). This Agreement constitutes a legally binding contract between DigitalGlobe, Inc., a Delaware corporation with offices located at 1300 W. 120th Avenue, Westminster, Colorado 80234 USA (“DigitalGlobe”), and Customer, as identified in the applicable Order Confirmation.
By signing or otherwise indicating acceptance of an Order Confirmation referencing these Product Terms and Conditions or downloading, accessing or using any DigitalGlobe product or service, Customer is accepting and agreeing to be bound by this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to the terms and conditions of this Agreement. If you do not agree to the terms on the Order Confirmation or these Product Terms and Conditions, do not sign or otherwise accept an Order Confirmation and do not download, access or use any DigitalGlobe product or service.
If Customer has an existing formal written agreement with DigitalGlobe governing the products or services provided by DigitalGlobe in Customer’s Order Confirmation, the terms in that agreement will supersede any contrary terms in these Product Terms and Conditions. Further, to the extent that any license terms embedded in a product are not consistent with this Agreement, the terms in this Agreement will supersede any contrary terms in any embedded text.
- DEFINITIONS. Capitalized terms used in this Agreement are defined in Exhibit B.
- ORDER PROCESSING.
2.1 ORDER FORMS. Customer may order Products by completing an order form via the ordering process designated by DigitalGlobe from time to time. Following submission of an order form, DigitalGlobe will review the request and prepare an Order Confirmation.
2.2 ORDER CONFIRMATION. The Order Confirmation sets forth those Products DigitalGlobe offers to license or sell to Customer, the license type, the number of Authorized Users (if applicable) and the license fee as well as other information relating to Customer’s order. Customer accepts an Order Confirmation by signing or otherwise indicating acceptance of an Order Confirmation (such as an email accepting the terms of the Order Confirmation) or by downloading, accessing or using any Product set forth on the Order Confirmation. Unless otherwise set forth on the Order Confirmation, each Order Confirmation expires thirty (30) calendar days following the date the Order Confirmation is created; however, DigitalGlobe, in its sole discretion, may extend the expiration date of any Order Confirmation. If Customer accepts an Order Confirmation following the expiration date, that Order Confirmation will be effective and form part of the Agreement unless DigitalGlobe notifies Customer within five (5) calendar days that the Order Confirmation is rejected. Following acceptance by Customer of an Order Confirmation, Customer may only make changes to an Order Confirmation as set forth in Article 5 below. However, Customer understands that each Order Confirmation is subject to regulatory review after it is accepted by Customer. Accordingly, DigitalGlobe reserves the right to terminate any Order Confirmation upon notice via e-mail and without penalty if DigitalGlobe, in its sole discretion, determines that it is prohibited by law from fulfilling the order. If any terms and conditions in an Order Confirmation are inconsistent with these Product Terms and Conditions, the terms and conditions in the Order Confirmation will govern. DigitalGlobe rejects any additional or inconsistent terms that may be included on Customer’s purchase orders or otherwise submitted or referenced by Customer.
- PRODUCTS. Customer is responsible for determining which Products best meet its needs. DigitalGlobe reserves the right to discontinue developing, producing, licensing or distributing any of the Products and to modify, replace or add to the Products at its discretion at any time. All or part of the Products distributed under this Agreement may be provided by an Affiliate of DigitalGlobe.
3.1 END USER LICENSE TERMS. Products are licensed and not sold under this Agreement. With respect to each Product licensed by Customer, the license type is set forth in the applicable Order Confirmation. The End User License Terms that correspond to each license type are available at https://www.digitalglobe.com/legal/information. The applicable End User License Terms are incorporated by reference into this Agreement.
3.2 PRODUCT SPECIFIC TERMS AND CONDITIONS. Additional terms and conditions applicable to specific Products are set forth in Exhibit A.
4.1 TIME OF DELIVERY. Any delivery date and/or suggested end collection date set forth in an Order Confirmation is an estimate only. DigitalGlobe will not be liable if it fails to deliver a Product in accordance with a delivery date set forth in an Order Confirmation.
4.2 METHODS OF DELIVERY. Products will be delivered on DVD or external hard drive, via Electronic Delivery or via the Digital Globe Platform, as set forth in the applicable Order Confirmation. However, all Subscription Service Products are delivered or made available via the applicable DigitalGlobe Platform All Products are deemed accepted upon delivery.
(a) DVD and External Hard Drive. DVDs and external hard drives will be shipped FCA DigitalGlobe’s facility (Incoterms® 2010). Accordingly, DigitalGlobe will deliver the Products cleared for export to the carrier; Customer authorizes DigitalGlobe to select the carrier unless Customer notifies DigitalGlobe in writing that it has nominated a specific carrier. Customer is responsible for all transportation fees as well as customs clearance in the destination country and any customs fees, duties and taxes; these fees, duties and taxes are not included in the Fees for the Products. Title to the Products (subject to the license rights granted to Customer) will pass to Customer at the port of entry of the destination country, prior to customs clearance.
(b) Electronic Delivery. DigitalGlobe will notify Customer by email when the applicable Products are available for download by Customer from the designated site. That email will also include instructions on how to download the Products. Products made available to Customer via Electronic Delivery are deemed to be delivered when the notification email is sent by DigitalGlobe. Customer will have fourteen (14) days from the date of this notification to download the Products from the designated site, after which the Products will be removed from the site.
(i) Extension Requests. During the original 14-day availability window, Customer may request one (1) extension of the time Products are available on the designated site free of charge. If Customer needs additional time to download the Products following the expiration of this extension, Customer must make an “Exact Copy Request” as described in Section 4.2(b)(ii) below.
(ii) Exact Copy Request. If Customer fails to download the Products while they are available on the designated site, Customer may request that an exact copy of the Products be provided via Electronic Delivery, DVD or external hard drive. A processing fee will apply. Delivery of the exact copy is subject to standard delivery times as described in Section 4.1 above.
(iii) Errors. If Customer is unable to download the Products from the designated site due to an error by DigitalGlobe, Customer must notify DigitalGlobe during the initial 14-day period or extension and provide DigitalGlobe with a description of the error and the orders affected. If DigitalGlobe determines that the error was caused by DigitalGlobe, DigitalGlobe will, at its option, either repost the affected Products to the site or deliver the Products to Customer via DVD or external hard drive, each at no additional cost to Customer.
(c) DigitalGlobe Platforms. The Subscription Service Products are made available to Customer and its Authorized Users online via a DigitalGlobe Platform. The Subscription Service Products are deemed to be delivered when Customer has been provided credentials to access the applicable DigitalGlobe Platform and DigitalGlobe sends an email notifying Customer that the Subscription Service Products are available on the DigitalGlobe Platform.
(i) Authorized Access. Authorized Users will access the DigitalGlobe Platform via the Internet by means of a specific account and passwords provided by DigitalGlobe. Customer is solely responsible for the confidentiality, security and use of its passwords and account. DigitalGlobe will have the right to rely upon any information received from any person using a password or other security measures assigned to Customer and will incur no liability for this reliance.
(ii) Restrictions on Use. Customer is responsible for Authorized Users’ access and use of the DigitalGlobe Platform and compliance with this Agreement. Customer will use commercially reasonable efforts to prevent unauthorized access to and use of the DigitalGlobe Platform and will notify DigitalGlobe promptly of any unauthorized use of which it is aware.
(iii) Disabling Devices. Customer will use commercially reasonable efforts, including using a Virus detection/scanning program, in order to remove any Disabling Devices from its systems that may be transmitted to or otherwise present any harm to DigitalGlobe’s systems. If Customer determines that a Disabling Device has been transmitted to the systems or computers of DigitalGlobe, Customer will notify DigitalGlobe promptly of the transmission and the nature of the Virus or other device. DigitalGlobe may disable Customer’s access to the DigitalGlobe Platform and other DigitalGlobe computing systems and/or networks to protect DigitalGlobe’s computing systems and/or networks from a Disabling Device or if Customer breaches any of the security measures established by DigitalGlobe, including access or attempted access to the DigitalGlobe Platform by any unauthorized person. DigitalGlobe will notify Customer if it disables Customer’s access as soon as reasonably possible thereafter.
(iv) Changes. DigitalGlobe reserves the right, in its sole discretion, to add, exclude and discontinue any functionality and Content on the DigitalGlobe Platform and to make changes and modifications in specifications, construction and design of the DigitalGlobe Platforms.
- CANCELLATIONS. Following acceptance of an Order Confirmation by Customer, an order may only be cancelled as follows:
Time of Cancellation
Subscription Service Products
After acceptance of Order Confirmation by Customer
Select New Collection Tasking & Select Plus New Collection Tasking
Prior to any Successful Collection.
After any Successful Collection
100% of what is collected unless the Requested End Date has passed and the full collect has not been completed; however, if incremental delivery is requested, 100% of what is collected regardless
Single Shot Tasking
24 or more hours before access time
Less than 24 hours before access time
All cancellation fees will be invoiced by DigitalGlobe following cancellation. Customer will pay all cancellation fees as set forth in Article 6 below.
- FEES AND PAYMENT
6.1 FEES. Customer will pay DigitalGlobe the applicable license, subscription, service and other fees for those Products licensed or purchased by Customer, as set forth in the applicable Order Confirmation (collectively, “Fees”). Except as specifically set forth in this Agreement, all Fees are non-refundable.
(a) Subscription Service Products. Unless otherwise set forth in the applicable Order Confirmation, the fee applicable to any renewal term of a Subscription Service Product will be equal to DigitalGlobe’s then current fee on the date of renewal. If, with respect to any Subscription Service Product, DigitalGlobe offers a promotional fee or discount, unless otherwise set forth in the applicable Order Confirmation, that fee or discount will only apply to the first 12-month period of the Term (and not to any subsequent 12-month period in a multi-year term or any renewals).
6.2 INVOICES. DigitalGlobe or its Affiliate will invoice Customer for Products upon delivery unless otherwise set forth in Section 6.4 below or in Exhibit A. However, with respect to Subscription Service Products, unless otherwise set forth in the applicable Order Confirmation, the fee for the first 12-month period of the term will be invoiced upon delivery, and the fee for any subsequent 12-month periods of the Term will be invoiced on or after the first day of the applicable 12-month period.
6.3 CREDIT ACCOUNT. If Customer wishes to establish a credit account, Customer must complete a credit application and otherwise comply with DigitalGlobe’s requirements for establishing a credit account. DigitalGlobe may revoke Customer’s credit account at any time.
6.4 PAYMENT. If DigitalGlobe or its Affiliate authorizes a credit account, Customer must pay all invoices to DigitalGlobe or its Affiliate, as set forth in the applicable invoice, within thirty (30) days following the date of invoice. If Customer does not have a credit account or DigitalGlobe determines that Customer’s credit history and/or credit rating are not sufficient for the Order Confirmation, Customer may be required to pre-pay Fees, in which case Customer will be invoiced following acceptance of the Order Confirmation. All Fees are payable in US Dollars. All past due amounts will accrue interest at the lower rate of: (a) 1.5% per month; or (b) the highest rate permissible under applicable law. In the event of non-payment, DigitalGlobe reserves the right to suspend all current orders and any Subscription Service Products and refuse future orders until all past due amounts have been paid.
6.5 TAXES. All Fees do not include any sales, use, value-added, foreign withholding or other taxes, duties, fees, excises or tariffs imposed on the licensing, sale or use of the Products (collectively, “Taxes”). Customer is responsible for, and if applicable will reimburse DigitalGlobe within thirty (30) days of request, all Taxes and any related penalties, except for taxes imposed on DigitalGlobe’s net income. If Customer is required to withhold Taxes from payments, the amount due and payable to DigitalGlobe must still equal the Fees that would otherwise be payable had the Taxes not been withheld, and Customer must provide DigitalGlobe with a receipt or other acceptable documentation from the applicable taxing authority evidencing the payment of the Taxes.
7. COMPLIANCE WITH END USER LICENSE TERMS
7.1 CERTIFICATION. Upon DigitalGlobe’s written request, and not more than once per calendar year, Customer will certify its compliance with licenses granted under this Agreement. If Customer is unable to provide this certification, Customer will work in good faith with DigitalGlobe to convey the proper license type and remit the appropriate Fees as remedy for any non-compliance. In addition, DigitalGlobe reserves the right to terminate all licenses and this Agreement for non-compliance in accordance with Section 11.2 below.
7.2 AUDIT. DigitalGlobe or its authorized representative will have the right to perform an audit to determine Customer’s compliance with this Agreement and the licenses granted hereunder. Customer will grant DigitalGlobe auditors access to the business location(s), books and records, employees and/or contractors pertaining to Customer’s use of the Products. The audit will: (a) require a minimum of thirty (30) days prior written notice; (b) be conducted no more than once per calendar year; (c) be limited to a three (3) year audit period unless non-compliance findings are noted, in which case the audit period can be expanded; (d) be conducted during reasonable business hours; and (e) be subject to reasonable confidentiality requirements.
7.3 AUDIT FINDINGS. If an audit results in a finding of non-compliance, DigitalGlobe may, at its discretion: (a) invoice any additional license fees due based on the standard DigitalGlobe Fees in place at the time of the original license grant; (b) assess interest charges from the time of the original Fee payment due date in accordance with Section 6.4 above; (c) recover the cost of the audit if additional Fees exceed five percent (5%) of the Fees paid during the audit period; and (d) terminate this Agreement and the DigitalGlobe licenses in accordance with Section 11.2 below. Customer must pay all invoices within thirty (30) days following the date of invoice.
- INTELLECTUAL PROPERTY.
8.1 TITLE AND OWNERSHIP. All right, title and interest in and to the Products, including all corrections, enhancements, or other modifications made by DigitalGlobe or any third party at DigitalGlobe’s instruction, and all Intellectual Property Rights therein are the sole and exclusive property of DigitalGlobe or its suppliers, as applicable. Any permitted Derivatives of the Imagery Products created by Customer pursuant to these License Terms may only be used by Customer in accordance with the use rights and restrictions applicable to Customer’s use of the underlying Product. All rights not expressly granted to Customer in this Agreement are reserved by DigitalGlobe.
8.2 PROPRIETARY RIGHTS NOTICES. Customer will not delete, alter, cover or distort any copyright, trademark or other proprietary rights notice placed by DigitalGlobe on or in the Products and will ensure that all notices are reproduced on all copies. All Derivatives must include the following copyright notice: [Product] © [YEAR] DigitalGlobe, Inc.
8.3 THIRD PARTY CONTENT. Notwithstanding anything to the contrary contained in this Agreement, any Third Party Content included in a Product is subject to the terms and conditions of any end user license agreement or additional terms accompanying the Product and/or posted on DigitalGlobe’s website.
8.4 NO TRADEMARK LICENSE. Except as required in Section 8.2, Customer may not use the trademarks, service marks, trade name, domain name or other source identifiers of DigitalGlobe without the express written consent of DigitalGlobe.
- LIMITED WARRANTIES AND DISCLAIMER.
9.1 LIMITED WARRANTY FOR PRODUCTS. DigitalGlobe warrants the Products only as set forth in the applicable End User License Terms.
9.2 DISCLAIMER. EXCEPT AS EXPRESSLY WARRANTED IN THE END USER LICENSE TERMS OR THIS ARTICLE 9, THE PRODUCTS ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATION, CONTENT OR RESULTS, OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. DIGITALGLOBE DOES NOT WARRANT THAT THE PRODUCTS WILL BE ACCURATE, CURRENT OR COMPLETE, THAT THE PRODUCTS WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS OR THAT THE OPERATION OF THE PRODUCTS WILL BE ERROR FREE OR UNINTERRUPTED. FURTHER, SPATIAL, SPECTRAL AND TEMPORAL ACCURACY IS NOT GUARANTEED.
- LIMITATION OF LIABILITY.
10.1 WAIVER OF CONSEQUENTIAL DAMAGES. In no event WILL digitalglobe, ITS AFFILIATES OR ITS SUPPLIERS be liable for ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE TO DATA, INACCURACY OF DATA, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS OR LOSS OF GOOD WILL, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
10.2 CAP ON LIABILITY. IN NO EVENT WILL THE TOTAL LIABILITY OF DIGITALGLOBE, ITS AFFILIATES OR ITS SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH thE PRODUCTS AND THis agreement exceed THE FEES PAID BY CUSTOMER FOR THE PRODUCT(S) giving RISE TO THE CLAIM.
10.3 DISCLAIMER. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS AND STATUTORY CLAIMS.
- TERM AND TERMINATION.
11.1 TERM. The Term of this Agreement commences upon acceptance of the Order Confirmation and continues until terminated as provided in Section 11.2 below. Unless otherwise set forth in the applicable Order Confirmation, Customer’s license and/or subscription to use the Product will begin upon delivery of the applicable Product and continue for that period set forth in the applicable Order Confirmation or End User License Terms, unless earlier terminated as provided in Section 11.2 below.
(a) By Either Party. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to cure the breach within thirty (30) days after receiving written notice from the non-breaching party.
(b) By DigitalGlobe. Customer understands that DigitalGlobe may suspend Customer’s access to Subscription Service Products or terminate this Agreement, effective immediately upon written notice, if Customer fails to pay any portion of the Fees when due within ten (10) days after receiving written notice from DigitalGlobe that payment is past due. In addition, DigitalGlobe may suspend Customer’s access to Subscription Service Products if Customer’s usage exceeds the usage limits set forth in the applicable Product Specification. Fees will continue to accrue during any suspension.
(c) By Customer. Customer may terminate this Agreement at any time by (i) permanently deleting the Products and Derivatives thereof from all devices and systems and destroying any copies on disk; and (ii) certifying to DigitalGlobe in writing that all copies of all Products and Derivatives thereof have been deleted or destroyed. If Customer terminates this Agreement pursuant to this Section 11.2(c), Customer is still responsible for paying all Fees.
11.3 OBLIGATIONS UPON TERMINATION. Upon the termination or expiration of this Agreement: (a) Customer will, within ten (10) days, pay in full to DigitalGlobe all outstanding Fees; (b) all licenses and subscriptions will immediately terminate and Customer will immediately cease all use of the Products and Derivatives thereof; and (c) Customer must permanently delete the Products and Derivatives thereof from all devices and systems and destroy any copies on disk. Within ten (10) days following termination or expiration, Customer must certify to DigitalGlobe in writing that all copies of all Products and Derivatives have been deleted or destroyed. The expiration or termination of this Agreement does not relieve either party of any obligations that have accrued on or before the effective date of the termination or expiration.
11.4 SURVIVAL. The following Articles and Sections will survive the termination or expiration of this Agreement: Articles 6, 7, 8, 9, 10 and 12 and Sections 11.2 and 11.3, and any other provisions of this Agreement that by reasonable interpretation are intended by the parties to survive the termination or expiration of this Agreement.
- GENERAL TERMS.
12.1 ENTIRE AGREEMENT. This Agreement, including the Order Confirmation, these Product Terms and Conditions, and the End User License Terms, constitutes the entire agreement between the parties with respect to the transactions contemplated hereby and supersedes all previous and contemporaneous agreements, understandings and arrangements with respect to these transactions, whether oral or written. The titles and headings are for reference purposes only and will not limit the construction of this Agreement, which will be considered as a whole.
12.2 AMENDMENT. This Agreement may be amended or supplemented only by a writing that refers to this Agreement and that is signed by both parties.
12.3 WAIVER. The failure or delay by a party to require performance of any provision of this Agreement does not constitute a waiver. All waivers must be in writing and signed by the party granting the waiver. The waiver by a party of any of its rights or remedies in a particular instance will not be construed as a waiver of the same or a different right or remedy in a subsequent instance.
12.4 SEVERABILITY. If any provision of this Agreement is invalid, illegal or unenforceable, that provision will be deemed to be restated so that it is enforceable to the maximum extent permissible under law and is consistent with the original intent and economic terms of the invalid provision.
12.5 ASSIGNMENT. Customer may not transfer or assign any of its rights or delegate any of its obligations under this Agreement, in whole or in part and including any transfers by operation of law, without the prior written consent of DigitalGlobe. Any attempted assignment or transfer in violation of this Section will be null and void. This Agreement will be binding on and inure to the benefit of the parties and their respective permitted successors and assigns.
12.6 COMPLIANCE WITH LAWS. Customer is responsible for its own compliance with laws, regulations and other legal requirements applicable to the conduct of its business and this Agreement, and agrees to comply with all these laws, regulations and other legal requirements including, without limitation, the Foreign Corrupt Practices Act of the United States of America and the Convention on Combating Bribery of Foreign Government Officials.
12.7 INTERNATIONAL TRADE COMPLIANCE. The Products are subject to the customs and export control laws and regulations of the United States and any country in which the Products are manufactured, received or used, including, without limitation, the Export Administration Regulations and the International Traffic in Arms Regulations. Customer will comply with these laws, regulations and rules in the performance of its obligations under this Agreement. Further, Customer will not provide Products to blocked, prohibited or restricted individuals and entities as required by the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”), including, without limitation, the Denied Persons List, Unverified List and Entity List. Customer will not knowingly do business with criminal organizations, terrorist organizations or other people or groups, either directly or indirectly, that are likely to use the Products for purposes that are illegal or adverse to the interests of the United States Government or DigitalGlobe generally. Customer will provide DigitalGlobe with the assurances and official documents that DigitalGlobe may request periodically to verify Customer’s compliance with this Agreement.
12.9 FORCE MAJEURE. Except for Customer’s obligation to make payment under this Agreement, neither party will be liable for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent the failure or delay is caused by or results from acts beyond that party’s reasonable control, including, without limitation, acts of God, fire, earthquake, storm, flood, power outage, strike, war, act of terrorism, law, export control regulation, instructions of government authorities or judgment of a court (not arising out of breach by the party of this Agreement). The party suffering a force majeure event will promptly give notice to the other party, stating the period of time the occurrence is expected to continue.
12.10 GOVERNING LAW AND DISPUTE RESOLUTION. All matters arising out of or relating to this Agreement will be governed by and construed under the laws and using the method of dispute resolution indicated below, based upon where Customer is domiciled:
If Customer is domiciled in:
The governing law is:
Any suit, action or proceeding arising out of or relating to this Agreement must be:
A country in North America, South America or Central America
New York and controlling United States federal law
Instituted in the United States District Court for the Southern District of New York or the state courts located in New York, New York
China, Hong Kong or Taiwan
Hong Kong law
Referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Center (“HKIAC”) under the HKIAC Administered Arbitration Rules in force when the notice of arbitration is submitted. The seat of arbitration will be Hong Kong.
Japan, Korea or Mongolia
Hong Kong law
Referred to and finally resolved by arbitration administered by the London Court of International Arbitration (“LCIA”) under the LCIA Rules in force when the notice of arbitration is submitted. The seat of arbitration will be London.
Australia, New Caledonia, New Zealand or South Pacific Islands
Laws of New South Wales, Australia
Instituted in the state and federal courts located in Sydney, Australia.
All other countries in the Asia Pacific region
Referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) under the Arbitration Rules of the SIAC in force when the notice of arbitration is submitted. The seat of arbitration will be Singapore.
A country in Europe, Middle East or Africa
Laws of England and Wales
Referred to and finally resolved by arbitration administered by the London Court of International Arbitration (“LCIA”) under the LCIA Rules in force when the notice of arbitration is submitted. The seat of arbitration will be London.
Each party irrevocably submits to the exclusive jurisdiction of the applicable court set forth above. However, each party will have the right at any time to seek a temporary or permanent injunction or other equitable remedy or relief in any court having subject matter jurisdiction anywhere in the world. With respect to arbitration, there will be one arbitrator and the proceedings will be conducted in English. The party or parties prevailing in any legal actions, arbitration or other proceeding relating to this Agreement, whether in arbitration, at trial or upon appeal, will be entitled to recover reasonable attorneys’ fees and other costs and expenses incurred, in addition to any other relief to which it may be entitled. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12.11 EQUITABLE REMEDIES. The parties agree that a breach or threatened breach by Customer of its obligations under this Agreement would give rise to irreparable harm to DigitalGlobe and that DigitalGlobe will be entitled to seek equitable relief (without any requirement to post bond), including injunctive relief or specific performance of the terms, in addition to any other remedy to which it is entitled at law or in equity.
12.12 NOTICES. Except for routine operational correspondence, all notices, demands, consents and other communications required or permitted to be given under this Agreement must be in writing and will be considered delivered and effective upon receipt (or when delivery is refused) when: (a) personally delivered; (b) sent by registered or certified mail (postage prepaid, return receipt requested); (c) sent by nationally-recognized private carrier (e.g., Federal Express, DHL, etc.) (with signature required and all fees prepaid); or (d) sent by email with confirmation of transmission. Notices must be sent to Customer at the address set forth in the Order Confirmation (or if none is specified, the address to which DigitalGlobe sends invoices) and for DigitalGlobe to 1300 W. 120th Avenue, Westminster, Colorado 80234, USA, or at another address as a party may designate in writing.
12.13 CONTROLLING LANGUAGE. This Agreement is drafted in the English language only. English will be the controlling language in all respects, and all versions of the Agreement in any other language are for accommodation only and will not be binding on the parties. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
PRODUCT SPECIFIC TERMS AND CONDITIONS
- SUBSCRIPTION SERVICE PRODUCTS.
1.1 SOFTWARE LICENSE. Subject to the terms of this Agreement, DigitalGlobe grants to Customer during the Term a non-sublicensable, non-transferable, non-exclusive license to install and operate the Licensed Software only on hardware owned or operated on behalf of Customer solely in connection with Customer’s use of the Subscription Service Product. Customer may make a reasonable number of copies of the Licensed Software for backup or maintenance purposes.
1.2 ASSOCIATED COSTS. Customer is responsible for all Internet, communication, hardware and other costs associated with the use of the Subscription Service Product.
1.3 OVERAGE FEES UNDER THE TRANSACTION MODEL. If Customer exceeds the number of transactions purchased, overage Fees, as set forth in the applicable Order Confirmation, will be invoiced on a monthly basis, and Customer will pay these Fees as set forth in Section 6.4 of the Product Terms and Conditions.
1.4 PRODUCT CHANGES. DigitalGlobe reserves the right, in its sole discretion, to modify the Content included in a Subscription Service Product.
- TASKING PRODUCTS.
2.1 DELIVERY OF COLLECTED IMAGERY. With respect to Tasking Products, DigitalGlobe will deliver collected Imagery Products when fully collected, unless Customer elects to receive incremental deliveries. If Customer selects incremental deliveries, Customer will be invoiced following the delivery of each increment, and standard payment terms will apply; incremental deliveries are not subject to refund or return even if the entire area of interest is not fully collected by the Requested End Date.
2.2 ESTIMATED DELIVERY DATE. Customer understands and agrees that the “Estimated Delivery Date” set forth on an Order Confirmation represents an estimate of time by which new imagery will be collected and delivered to Customer. DigitalGlobe does not guarantee that the imagery will be collected on or before the Estimated Delivery Date, and DigitalGlobe will not be liable if it fails to deliver all or part of the ordered imagery on or before the Estimated Delivery Date.
2.3 OPTIONS IF COLLECTION NOT COMPLETED. With respect to Tasking Products, if DigitalGlobe fails to deliver all of the ordered imagery on or before the Requested End Date, the order will terminate unless Customer elects to extend the Requested End Date.
(a) REQUESTED END DATE AUTO EXTENSION. Customer may elect to automatically extend the Requested End Date for a Select Tasking Product or Select Plus Tasking Product by (i) completing an election form that will apply to all orders placed under Customer’s account; or (ii) checking the election box on the applicable order form. However, once Customer has completed an election form, the Requested End Date for all orders placed under Customer’s account will be automatically extended until Customer notifies DigitalGlobe in writing that it is terminating auto extension of the Requested End Date for its account, regardless of the election Customer makes on an individual order form. If Customer elects to automatically extend the Requested End Date for a Tasking Product, DigitalGlobe will continue its collection efforts on each applicable order until the earliest to occur of (1) the order is fulfilled; (2) one year from the date of acceptance of the applicable Order Confirmation; and (3) Customer cancels the extension of the Requested End Date by notifying DigitalGlobe in writing.
“Affiliate” means any legal entity controlling, controlled by or under common control with a party, where “control” means (a) the ownership of at least fifty percent (50%) of the equity or beneficial interest of the entity; (b) the right to vote for or appoint a majority of the board of directors or other governing body of the entity; or (c) the power to direct or cause the direction of the management and policies of such party by any means.
“Agreement” means an Order Confirmation together with these Product Terms and Conditions, the End User License Terms and all exhibits.
“Authorized User” means an employee or contractor of Customer that is authorized by Customer to use the Products.
“Content” means all Imagery Products, software, applications, APIs, tools, algorithms, metadata, shapefiles and other support files and other data licensed or made available by DigitalGlobe on the DigitalGlobe Platform or included in a Subscription Service Product.
“Customer” means that individual, entity or government agency identified as “Customer” on the applicable Order Confirmation.
“Data Subject” means an identifiable natural person.
“Derivative” means any addition, improvement, update, modification, transformation, adaptation or derivative work of or to the Product, including, without limitation, reformatting of the Product into a different format or media from which it is delivered to Customer; any addition or extraction of data, information or other content to or from the Product; or any copy or reproduction of the Product.
“DigitalGlobe Platform” means a technology platform provided by DigitalGlobe, including the computer hardware, software and all other resources, upon which applications, processes or other technologies can be hosted and/or developed, used by DigitalGlobe to make the Subscription Service Products and other Imagery Products available to, and usable by, Customer via the Internet, including, without limitation, DigitalGlobe Cloud Services and the Geospatial Big Data Platform.
“Disabling Device” means any computer software, code or device, including any Virus, intended for or capable of disrupting, disabling, harming or otherwise impeding in any matter the operation of, or providing unauthorized access to, the DigitalGlobe Platform or Subscription Service Products.
“Electronic Delivery” means an electronic delivery method including, without limitation, File Transfer Protocol (FTP), Signiant and Amazon S3.
“Elevation Product” means a Product comprised of data sets, vectors and other data that depicts elevations, depths, building heights, 3D renderings of objects on the surface of the earth or other three dimensional features, as more specifically described in a Customer Agreement. Elevation Products include DEMs, DSMs, DTMs, TINs, Point Cloud elevation models, contour lines and surface mesh (including, without limitation, 3D and building models, bathymetry and sea floor mapping).
“End User License Terms” means the end user license terms available at https://www.digitalglobe.com/legal/information. End User License Terms include, without limitation, the Internal Use License, Group License, Subscription Services License, EarthWatch License, Evaluation License and Third Party license terms.
“Estimated Delivery Date” means that date identified as the estimated delivery date in an Order Confirmation.
“Fees” has the meaning set forth in Section 6.1 above.
“Imagery Products” means a Product that is aerial photography or satellite imagery owned or controlled by DigitalGlobe, including all metadata, as more specifically described in an Order Confirmation.
“Information Products” means an extracted data layer, shapefiles, vectors, summary, analysis or other report, dataset or other information that may include excerpts of satellite imagery or aerial photography. For example, Ecopia Building Footprints Powered by DigitalGlobe, Human Landscape and Imagery Analysis Reports are Information Products.
“Intellectual Property Rights” means all past, present, and future trade secret rights, patent rights, copyrights, moral rights, contract rights, trademark rights, service marks, and other proprietary rights in any jurisdiction, including those rights in inventions, software, domain names, know-how, technology, methods, processes, information, and technology.
“Licensed Software” means any software made available to Customer by DigitalGlobe.
“Order Confirmation” means that agreement or other document prepared by DigitalGlobe that sets forth the Products DigitalGlobe offers to license or sell to Customer and the related terms and that is presented to Customer for acceptance. A quotation that includes an estimated Fee is not an Order Confirmation. Following acceptance by Customer, the Order Confirmation along with these Product Terms and Conditions and the End User License Terms comprise the Agreement.
“Personal Data” means any information that directly or indirectly identifies a Data Subject, such as a name, an identification number, location data, an online identifier or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Processing” means any operation that is performed on Personal Data, whether or not by automated means, such as collection, storage, alteration, use, dissemination or destruction.
“Product(s)” means those products and services licensed or purchased by Customer, as set forth in an Order Confirmation, including without limitation, Elevation Products, Imagery Products, Information Products, Subscription Service Products, Tasking Products and Third Party Products.
“Product Specification” means with respect to each Product, the description and specification published by DigitalGlobe and available at https://www.digitalglobe.com/legal/information.
“Requested End Date” means the date on which DigitalGlobe will cease collection of imagery for a Tasking Product, as set forth on the applicable Order Confirmation and as may be extended in accordance with Section 2.3 of Exhibit A.
“Subscription Service Product” means a Product that is comprised of Imagery Products and other Content that are delivered via DigitalGlobe Cloud Services on a subscription or transactional basis. The EarthWatch service, Basemap service and FirstLook service are Subscription Services.
“Successful Collection” means a collect pursuant to an order for a Tasking Product that meets parameters specific on the applicable Order Confirmation, whether the order polygon is collected partially or in total.
“Taxes” has the meaning set forth in Section 6.5 above.
“Tasking Product” means a Product that allows Customer to designate when and where Imagery Products should be collected by DigitalGlobe’s constellation of satellites.
“Term” means the term of this Agreement, as described in Section 11.1 above.
“Third Party” means any individual, corporation, limited liability company, partnership, other organization or government agency that is not a party to this Agreement and is not an affiliate of DigitalGlobe.
“Third Party Content” means any content, software or other data that is owned by a third party not owned by DigitalGlobe or its affiliates.
“Third Party Product” means a Product that is a product and/or service offered by a Third Party that is distributed by DigitalGlobe.
“Virus” means any computer instructions, devices or techniques that can or were designed to threaten, infect, assault, vandalize, defraud, disrupt, damage, disable, alter, inhibit or maliciously shut down software and/or a processing environment.