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SATELLITE IMAGERY PRODUCT
END USER LICENSE AGREEMENT FOR MEDIA USE ONLY
THIS END USER LICENSE AGREEMENT (“
Agreement”) is made between Vizrt Sarl. (“
Vizrt”) and you or, if you represent an entity or other organization, that entity or organization (in either case, “
You”). You have ordered or otherwise expressed an interest in obtaining a license to DigitalGlobe Inc.’s (“
DigitalGlobe”) satellite imagery Products. Vizrt, as DigitalGlobe’s authorized licensee, is willing to provide You with a license to those DigitalGlobe products described in the confirmation of Your order provided by Vizrt (Your “
Confirmation”) or otherwise provided to You in connection with this Agreement (collectively, the “
Product”) if You agree to be bound by the terms and conditions of this Agreement and any other terms set out in the order Confirmation. In the event of a conflict between the terms of this Agreement and the terms of any other license terms with respect to use of DigitalGlobe satellite imagery Products which are made available to you through the Confirmation process, the terms of this Agreement shall control.
Please read the terms and conditions of this Agreement provided below carefully. By accessing or using the Product, You acknowledge that You have read, and agree to be bound by the terms and conditions of, this Agreement.
If You do not agree to the terms and conditions of this Agreement, VizRT is not willing to license the Product to You. if the Product was delivered to You on a tangible medium such as a CD, then You must return the Product in its original packaging, without breaking the seal. If the Product was made available to You in an electronic format, then You must not download, access or use the Product. If You do not return the Product or if You download, access or use the Product, as specified above, You acknowledge and agree to be bound by the terms and conditions of this Agreement.
This Agreement will be entered into as of the date You first download, access or use the Product (the “
Effective Date”). This Agreement consists of these terms and conditions and Your Confirmation (which is incorporated herein and made a part hereof). Unless otherwise amended as set forth herein, this Agreement represents the entire agreement and understanding between You and Vizrt as to the matters set forth herein and will exclusively govern Your access to and use of the Product and will supersede any oral or written proposal, agreement or other communication between You and Vizrt regarding the Product. Your acceptance of this Agreement is expressly limited to the terms and conditions set forth herein and Your Confirmation. Any additional or inconsistent terms provided by You in any other documents such as a purchase order will not have any legally binding effect on Vizrt. This Agreement may be modified only by a binding written instrument entered into by You and Vizrt. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Definitions. For purposes of this Agreement, the following definitions apply. Any capitalized terms in this Agreement not listed below will have the meanings given to them in this Agreement or, if not defined in this Agreement, will have their plain English (US) meanings.
Commercial Purpose. R
edistribution, retransmission or publication of the Product as a standalone product or bundled with other products and/or services in which an incremental fee is charged for the Product’s inclusion, 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 (e.g., textbook supplemental materials, books, syllabi, course packs); and (iv) use in any books, news publication or journal.
Derivative Product. Any addition, improvement, update, modification, translation, transformation, adaptation or 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, information or other content to the Product, or any copy or reproduction of the Product.
Broadcast Use. Display or publication of video or animated sequences which include Licensed Images, solely in support of broadcast programming and not for a Commercial Purpose.
Fees. The fees set forth in Your Confirmation.
Permitted Contractors. Any entity 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.
Permitted Users. Users employed by You or any affiliate of You.
Purpose. As may be indicated in Your Confirmation.
User. Employees of You, Your Permitted Users, or, as applicable, a Permitted Contractor.
Grant of License. Subject to the compliance with the terms and conditions of this Agreement by You and Your Permitted Users, including, without limitation, payment of all applicable Fees, Vizrt 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, for the Broadcast Use by You alone, (ii) publish the Product and Derivative Products in hardcopy or broadcast format for Your Broadcast Use, and (iii) publish the Product or Derivative Products in electronic format to internet websites solely for Your own, Broadcast 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. Unless otherwise agreed in writing by Vizrt, all electronic publication of static image Products shall be limited to jpeg format Products only, and all electronic publication of any published Products must be less than 10MB in size and may be displayed for no longer than 60 days.
Sublicense. Subject to compliance with the terms and conditions of this Agreement by You and Your Permitted Users, including, without limitation, 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 2 to access and reproduce the Product to Permitted Contractors solely for the purpose of assisting You in the exercise of Your rights under Section 2 above. 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 respective sublicensee and/or sublicensee’s breach of this Agreement.
Restrictions. You and Your Permitted Users recognize and agree that the Product is the property of Vizrt and/or its licensors and its and/or their suppliers and contains valuable assets and proprietary information. Accordingly, except as expressly permitted in Sections 2 or 3, You and Your Permitted Users will not, and will not permit any 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 Derivative Product for any purpose not expressly permitted under this Agreement, including, without limitation, for Commercial Purposes. You acknowledge that You and Your Permitted Users need to obtain a separate distribution license from Vizrt and/or its licensors in order to distribute or publish the Product or any Derivative Work in any form not expressly permitted under Section 2 or 3.
Attribution. All Products and Derivative Products must be displayed with the following attribution
- For print, presentation and website display of images:
- All Products or Derivative Products must contain the following copyright notice conspicuously displayed next to, or beneath, the Product or Derivative Product: "Image (c) 20xx DigitalGlobe, Inc." annotating the applicable year.
- For broadcast display by any means:
- In the event the Product is specifically referenced, DigitalGlobe shall be given verbal attribution.
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 generisrights and other right in databases, and all rights arising from or pertaining to the foregoing rights, are and will remain the exclusive property of DigitalGlobe and its suppliers. All rights in and to the Product not expressly granted to You or Your Permitted Users are reserved by DigitalGlobe and its suppliers. This Agreement does not grant You or Your Permitted Users, title to the Product or any copies of the Product. Any rights of Customer in any Derivative Product do not provide Customer with any rights in or to any Product used or incorporated in that Derivative Product except as granted under this Agreement.
Confidentiality. The Product includes metadata and other confidential and proprietary information of DigitalGlobe and/or Vizrt (“
Confidential Information”). You will not use any Confidential Information for any purpose not expressly permitted hereunder and will disclose Confidential Information only to Your Permitted 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.
Term and Termination. Unless otherwise specified in Your Confirmation, this Agreement, and your right to use Products as contemplated in this Agreement, remains in full force until terminated as provided below. Vizrt has the right to terminate this Agreement, effective immediately upon notice to You, if 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 and sublicensees will: (a) discontinue all use of the Product; (b) if the Product was delivered on a tangible medium, return to Vizrt the Product and all copies thereof; (c) purge all copies of the Product or any portion thereof from all computer storage devices or medium on which You have placed or permitted others to place the Product; and (d) give Vizrt a written certification that You have complied with all of Your obligations hereunder. Notwithstanding the foregoing, You may, upon written agreement of Vizrt, maintain one copy of the Products solely for archival purposes.
Warranty; Disclaimer. Except as expressly provided herein, all Products are provided “as is” without any representations or warranties of any kind and all warranties, whether express or implied, oral or written, arising by law or otherwise, are expressly disclaimed and excluded by VizRt and/or its licensors, including, without limitation all implied warranties of merchantability, title, non-infringement, and fitness for a particular purpose. Neither VizRt nor its licensors warrants that the Product will be accurate, current or complete, that the Product will meet Your needs or expectations or those of your Permitted Users or Expanded User Group, or that the operation of the Product will be error free or uninterrupted. VizRt provides all Content as a service to You. Spatial, spectral, and temporal accuracy cannot be guaranteed. VizRt and/or its licensors reserve the right, at its or their sole discretion, to modify certain image characteristics of the Content including, but not limited to, watermarking and dimensions.
Limitation of Liability. In no event will VizRt and/or its licensors and/or its or their suppliers 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 VizRt and/or its licensors and/or its or their suppliers have been advised of the possibility of such damages. VizRt’s and its licensors’ and their suppliers’ 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 to VizRt for the Product. This Section 10 shall be given full effect even if the warranty provided in section 9 is deemed to have failed of its essential purpose.
Indemnification. You will indemnify, defend, and hold harmless Vizrt and its licensors and their respective suppliers, 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. Vizrt will provide You with notice of any such claim or allegation, and Vizrt and its licensors have the right to participate in the defense of any such claim at its expense.
Export Control. You will not export or re-export any Software in violation of the U.S. Export Administration regulations or other applicable laws and regulations. You will defend, indemnify, and hold harmless Vizrt and its licensors from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by Vizrt and its licensors as a result of any violation of such laws and regulations by You or any of Your agents or employees.
- You acknowledge that any actual or threatened breach of Section 2, 3, 4, or 7 will constitute immediate and irreparable harm to Vizrt and/or its licensors 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, Vizrt and/or its licensors 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 Vizrt and/or its licensors 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 to enforce this Agreement, the 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.
- Failure to require performance of any provision of this Agreement does not waive Vizrt’s and/or its licensors’ 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.
- 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 Vizrt. 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.
- This Agreement shall be governed by the laws of the State of New York, U.S.A., 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 New York County, New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
- Any notices to Vizrt relating to this Agreement shall be in writing and delivered by personal delivery, electronic mail, facsimile transmission or certified mail (return receipt requested) to the address provided below and will be effective upon receipt by Vizrt:
VIZRT SWITZERLAND SARL
ATTN: LEGAL DEPT.
64 Route du Stand CH-1260
All notices to You relating to this Agreement shall be delivered by personal delivery, electronic mail, facsimile transmission or by certified mail (return receipt requested) to the address Vizrt has on file for You, and will be deemed given upon personal delivery, 5 days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission.