POINT INSIDE SUBSCRIPTION AGREEMENT
This Point Inside Subscription Agreement (“Agreement”) is an agreement between you (“Customer”) and Point Inside, Inc., a Washington corporation with its principal place of business at the address identified above (“Point Inside”), and sets forth the terms and conditions under which Point Inside agrees to grant you the right to access and use certain aspects of Point Inside’s proprietary software as a service offering, as described in one or more applicable Orders (the “Service”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY SIGNING AN ORDER REFERENCING THESE TERMS, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE REFERENCES TO “CUSTOMER,” “YOU” AND “YOUR” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICE.
1.1 “End User” means an individual consumer to whom the Licensed Data are made available through the Licensed Application by means of the Point Inside Mapping Component for personal non-commercial use.
1.2 “Licensed Data” means Point Inside’s proprietary mapping and point of interest data.
1.3 “Licensed Application” Customer’s mobile and web applications, as further defined in the applicable Order.
1.4 “Order” means one or more orders for Point Inside products and services, as agreed upon by the parties from time to time, including without limitation, those orders submitted electronically on the Point Inside website by Customer.
1.5 “Point Inside Mapping Component” means those elements of Point Inside’s library that enables Customer to access to the Licensed Data from within the Licensed Application, in each case, to the extent granted in an applicable Order. Depending on the details of your Order, the Point Inside Mapping Component may or may not include all SDK versions.
2. SUBSCRIPTION SERVICE.
2.1 Data Services. Subject to the terms and conditions of this Agreement, Point Inside agrees to provide the Licensed Data to End Users of the Licensed Application through the embedded Point Inside Mapping Component during the term of the subscription set forth in the applicable Order. Customer is granted no right under this Agreement, and agrees not to access the Licensed Data directly, or to store, cache, copy or transmit the Licensed Data in any manner. Point Inside shall deliver the Point Inside Mapping Component to Customer in the manner set forth in the applicable Order. Notwithstanding anything to the contrary contained in this Agreement or its Exhibits, Customer agrees and acknowledges that the Licensed Data will include only that information which Point Inside, in its sole discretion, collects and distributes in the ordinary course of its business.
2.2 License to SDK. Point Inside hereby grants to Customer, during the term of the subscription set forth in an applicable Order and subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-assignable, non-transferrable license to (a) use the Point Inside Mapping Component in the Licensed Application for distribution to End Users, and (b) use the Point Inside SDK Documentation internally for the sole purpose of implementing the Point Inside Mapping Component into the Licensed Application as described in this Agreement. Customer must maintain the most current version of the Point Inside Mapping Component and its associated SDKs, as provided by Point Inside. Customer will ensure that it’s Licensed Applications are updated to reflect updated versions of the Point Inside Mapping Component and associated SDKs within six (6) months of the initial release of each update to the Point Inside Mapping Component and associated SDKs.
2.3 Restrictions and Conditions. Customer will implement the Point Inside Mapping Component only as expressly set forth in the applicable Order. Customer shall not, directly, indirectly or through its End Users, employees and/or the services of independent contractors: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service; (b) “frame,” “mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (c) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any Point Inside technologies, services, systems or other offerings, including data transmission, storage and backup; (e) use the Service for the purpose of developing a product or service that competes with Point Inside’s products and services; (f) circumvent or disable any security features or functionality associated with Service or the Point Inside Mapping Component, including without limitation, taking any action to interfere with or disable telemetry calls to the Service or other data exchange between the Service and the Point Inside Mapping Component; or (g) use the Service in any manner prohibited by law. Customer agrees that it will not develop, distribute or otherwise commercialize any product or service that is similar or competitive with the Service or the Licensed Data during the term of this Agreement and for a period of 36 months immediately following the expiration or termination of this Agreement.
2.4 Limited Rights. Except as expressly provided in this Agreement, Point Inside does not grant Customer any rights or licenses in or to the Licensed Data, the related names and trademarks or associated components, including without limitation the content and proprietary systems used by Point Inside in connection with its provision of the Licensed Data. Customer shall not alter or modify the Point Inside Mapping Component without Point Inside’s prior written consent. All rights not expressly granted to Customer are reserved by Point Inside, its suppliers and licensors.
2.5 Third Party Developers. If Customer uses a third party to develop the Licensed Application, Customer will enter into an agreement with that third party that is at least as protective of Point Inside and Point Inside’s intellectual property rights as the terms of this Agreement, including without limitation the following restrictions: (a) the third party may only use Licensed Data internally for the purpose of supporting the Licensed Application, (b) the third party will not allow the Licensed Data to become publicly available through willful or negligent actions, (c) the third party will not re-distribute the Licensed Data. Additionally, Customer’s agreement with such third party must bind the third party not to create or support the creation of any other indoor mapping related applications, and must expressly name Point Inside as a third party beneficiary.
3. CUSTOMER CONTENT / INDEMNITY. Customer Provided Content. Customer will continue to own the rights in and to any content that it provides to Point Inside for incorporation into the Point Inside system (the “Customer Content”). The Customer Content may include, for example, feedback collected from users regarding map changes and all transactional analytics logged by usage of the Licensed Application. Customer acknowledges that some or all Customer Content that it provides to Point Inside will be modified and published to the public as part of Point Inside’s online services. Customer hereby grants to Point Inside, a nonexclusive, royalty free, perpetual, irrevocable, worldwide, transferable, sublicensable (including through multiple tiers of sublicensees) license to (i) copy, use, distribute, publicly display, modify, make derivative works and otherwise exploit the maps and map-related content contained within Customer Content, and the intellectual property rights therein; and (ii) reference Customer using Customer trademarks as part of Point inside’s online services. Licensee shall indemnify and hold Point Inside harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (i) Licensee’s use of the SDK, or (ii) any claim which, if true, would constitute a breach of Customer’s obligations under this Agreement.
4. TERM AND TERMINATION. This Agreement shall begin on the Effective Date and continue until terminated by either party upon ninety (90) days written notice to the other. Upon termination, all rights and licenses granted to Customer shall immediately terminate. Upon expiration or termination of this Agreement for any reason, (a) all rights granted by Point Inside under this Agreement shall immediately terminate; (b) Customer shall immediately cease to display, reproduce, retransmit or otherwise use any Licensed Data; (c) Customer will not use for any purpose thereafter any information included in or derived from the Licensed Data; and (d) Customer shall return to Point Inside any software or other materials provided by Point Inside under this Agreement.
5. LIABILITY/ TOTAL LIABILITY.
5.1 Disclaimer. Customer acknowledges and agrees that: (a) the Licensed Data is produced by Point Inside in good faith from information compiled and supplied by unrelated third parties; (b) the Licensed Data is therefore subject to various inaccuracies; and (c) Point Inside has no obligation to verify the accuracy of information received from third parties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE, THE POINT INSIDE MAPPING COMPONENT, AND ANY OTHER PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT (COLLECTIVELY, THE “POINT INSIDE OFFERINGS”) ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY POINT INSIDE, ITS SUPPLIERS AND ITS LICENSORS.
5.2 Limitation. CUSTOMER’S EXCLUSIVE REMEDY AND POINT INSIDE’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY CUSTOMER, UP TO ONE HUNDRED DOLLARS ($100). THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. CUSTOMER HEREBY RELEASES POINT INSIDE, ITS SUPPLIERS AND LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT POINT INSIDE’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.
5.3 Exclusion of Certain Damages and Limitations of Types of Liability. IN NO EVENT WILL POINT INSIDE BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
6. PROPRIETARY INTEREST.
6.1 Reservation of Rights. Customer acknowledges that Point Inside owns all copyrights and other proprietary rights in and to the Licensed Data. Customer shall not, by virtue of this Agreement or by virtue of its access to the Licensed Data, obtain any copyright or other proprietary right or interest in or to the Licensed Data except the rights specifically granted to Customer herein. Customer agrees that it will not remove, alter or otherwise obscure any proprietary rights notices appearing in the Licensed Data or Point Inside Mapping Component.
6.2 End User Licensing. Customer agrees that it will license the Licensed Applications under the terms of an end user license agreement that is at least as protective of Point Inside, the Licensed Data and the Point Inside Mapping Component as the terms of this Agreement. This end user license agreement must be approved in advance by Point Inside prior to Customer’s distribution of a Licensed Application, and must at a minimum (a) prohibit the use of the Licensed Data for commercial purposes, (b) prohibit the redistribution by the end user of the Licensed Data, and (c) expressly name Point Inside as a third party beneficiary.
6.3 Confidentiality. Customer shall treat as confidential all of the Point Inside’s Confidential Information and shall not use and not disclose such Confidential Information in any way, nor disclose to any third party any Confidential Information except as expressly permitted under this Agreement. Customer shall disclose the Confidential Information only to the employees of the Customers who have a need to know such information for purposes expressly permitted under this Agreement. Without limiting the foregoing, the Customer shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of Point Inside’s Confidential Information. For the purpose of this Agreement, “Confidential Information” means any information disclosed by Point Inside to Licensee that is either identified as confidential by Point Inside at the time of disclosure, or that would be reasonably understood to be considered confidential based on the circumstances surrounding disclosure. The SDK, Licensed Data and Mapping Component provided to Customer in connection with this Agreement is considered Confidential Information
7. ADDITIONAL TERMS. Point Inside shall not be bound by any subsequent terms, conditions or other obligations included in any Customer purchase order, receipt, acceptance, confirmation or other correspondence from Customer unless expressly assented to in writing by Point Inside and counter-signed by its authorized agent.
8. GENERAL. This Agreement shall be governed by Washington law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in King County, Washington. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service. The failure of Point Inside to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. All disclaimers, limitations, payment obligations and restrictions of warranty shall survive termination of this Agreement, as well as the provisions of this “General” section shall survive termination of this Agreement. All notices and requests in connection with this Agreement shall be given in writing and shall be deemed given as of the day they are received either by messenger, delivery service, or in the United States of America mail, postage prepaid, certified or registered, return receipt requested, and addressed to the other party at the mailing address specified in an applicable Order, or such other address as a party may designate pursuant to this notice provision. This Agreement and any applicable Orders comprise the entire agreement between Customer and Point Inside and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.