FIRST
BASE SOLUTIONS INC.
WEB MAP SERVICE ("WMS")
MASTER SUBSCRIPTION AGREEMENT
THIS AGREEMENT defines the terms of the
services between:
1. FIRST
BASE SOLUTIONS INC, hereinafter referred to as the "Licensor", and
2. the
end-user(s), hereinafter referred to as the "Licensee(s)".
IMPORTANT
- PLEASE READ CAREFULLY:
This Master Subscription
Agreement, hereinafter referred to as the "Agreement", shall govern
the purchase and ongoing use of the Services, and also the free trial period of
the services.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A
BOX, LABELED "I AGREE", INDICATING YOUR ACCEPTANCE OR BY EXECUTING
THE ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF 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 SUCH
ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE
TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS
AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH
THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE
THE SERVICES.
A Web Map Service (WMS),
hereinafter referred to as the "Service", is a standard protocol for serving
map data over the Internet that is generated by a map server from a GIS
database. The Licensor is providing the
Service to enable remote access to the data, hereinafter referred to as the
"Information", contained within the Licensor's GIS Database, such
that the Licensee is able to stream a selected view of the Information directly
into their internal software applications that supports the WMS protocol.
The Licensor will provide the Licensee with a
unique URL that can be used by any member of the Licensee's staff to access the
Service.
This Licence Agreement gives the Licensee certain limited rights to use the
Service and any technical information also provided. All rights not
specifically granted in this Agreement are the property of the the
Licensor. The Licensor warrants that it
owns or has the right to distribute the Information in accordance with this
Agreement and that it has the authority to enter into this Agreement and to
grant to the Licensee the rights granted herein.
a) access
the Information maintained by the
Licensor and only access the
Information utilizing the Service provided by the Licensor, subject to the terms and conditions set forth
herein,
b) access
the Information utilizing the Licensee's internal software applications that
have WMS request capabilities in order to view the data or create derivative
products,
c) export a view of the
Information in the form of a hard-copy print up to a maximum of 11" x 17" that combines the Licensee's
data as a deliverable to the Licensee's end client,
d) export a non-georeferenced
view of the Information that combines the Licensee's data as a digital deliverable to the Licensee's end
client (for example, JPG, PDF, PNG, TIF etc),
e) export a view of the
information for internal use and distribute in hard copy or electronic format to its internal users and
for project reports, proposals and estimation purposes.
a) provide
access to the Service through distribution of the assigned URL or the
Information to any third party, including but not limited to: Partners,
Contractors/Sub-Contractors, Consultants, Clients etc.),
b) develop
an automated batch process to access the Service or create a database of the
Information, available through the Service,
c) modify,
de-compile, disassemble or otherwise reverse engineer the Service, or the
Information contained therein, in any way,
d) add a geo-referenced
coordinate system to a digital file format (including but not limited to JPG, TIF, PNG, etc.),
e) export multiple views
of the Information for the purpose of creating a high-resolution mosaic,
f) distribute, resell, transfer
or convey all or any portion of the Service, or the Information contained therein, except as expressly
permitted herein. Without limiting the generality of the foregoing, you agree that you will not make
any portion of the Service or the Information contained therein accessible by means of the Internet
except as expressly permitted herein.
At the Licensee's
request, the Licensor may grant the Licensee a trial period of 7 days,
beginning on the date the Licensor approves the request to evaluate the
Service. This trial period will be granted under the terms of this Agreement
and will continue free of charge until the earlier of;
a)
the seventh day after the Licensee accepts this
Agreement or
b)
the commencement of purchase services by the
Licensee
The Licensee shall pay all
fees specified in all Order Forms hereunder. Except as otherwise specified
herein or in written form by the Licensor,
a.
fees
are quoted and payable in Canadian dollars,
b.
fees
are based on the selected bandwidth limit and not on the Services purchased or
the number of users accessing the Services,
c.
payment
obligations are non-cancelable and fees paid are non-refundable, and
d.
the
monthly gigabyte limit purchased cannot be decreased during the relevant
subscription term stated on the Order Form.
Subscription fees are based
on monthly periods that begin on the subscription start date and each monthly
anniversary thereof; therefore, fees for upgrading to the next subscription
level in the middle of a monthly period will be charged for that full monthly
period and the monthly periods remaining in the subscription term
In any given month during the
subscription term, the Licensee may purchase additional bandwidth to allow
their users to access data beyond the monthly bandwidth limit. Unused portions
of this top-up will carry over to subsequent months during the subscription
term.
The Licensee will provide the
Licensor with valid and updated credit card information, or with a valid
purchase order or alternative document reasonably acceptable to Licensor.
If the Licensee provides credit card information to Licensor, the Licensee
authorizes the Licensor to charge such credit for all Services listed in the
Order Form for the initial subscription term and any renewal subscription
term(s) as set forth in Section 7 (Term, Renewal, and Termination). Such
charges shall be made in advance, either annually or in accordance with any
different billing frequency stated in the applicable Order Form. If the Order
Form specifies that payment will be by a method other than a credit card, the
Licensor will invoice the Licensee in advance and otherwise in accordance with
the relevant Order Form. Unless otherwise stated in the Order Form, invoiced
charges are due net 30 days from the invoice date.
The Licensor retains
exclusive ownership of the Service and the Information contained therein, and
grants the Licensee a non-exclusive non-transferable license to use the
Service, subject to the terms of this Agreement. The Licensee agrees to use all
reasonable efforts to protect the Service from unauthorized use, distribution
or publication.
The Licensor and its
third party suppliers retain and own all right, title and interest in and to
the Information created by, originating from and delivered by the Licensor
through this Service. The underlying
rights to the Information and the Services belong to the Licensor and its third
party suppliers and are protected by copyright. Any data received using the Service is for internal use only, and
may not be redistributed, except as permitted by this Agreement.
Term of Agreement. This Agreement shall commence on the purchase
date and will continue until the subscription granted under this agreement has
expired or has been terminated. If the Licensee elects to use the 7-day free
trial, but does not choose to continue with the Service, the Agreement will
terminate at the end of the 7-day trial period.
Term of Subscription. The subscription purchased
by the Licensee shall begin on the purchase date and shall continue for a
period of one year.
Renewal. Unless either the Licensor or the Licensee provide
a written notice of non-renewal at least 30 days prior to the end of the
purchased subscription term, the subscription will automatically renew for a
term equal to the expiring term. The yearly price will be equal to the price of
the expiring subscription unless the Licensor provides written notice of
pricing increases at least 30 days prior to the end of the expiring
subscription, in which case the pricing increase shall be effective upon
renewal and thereafter.
Termination by the Licensor. The Agreement and Services
may be terminated by the Licensor without notice to the Licensee if, at the
Licensor's sole discretion, the Licensee fails to comply with the terms set
forth within this Agreement.
Termination by the Licensee. The Licensee may terminate
the Agreement and Services with 30 days advance notice to the Licensor prior to
the next billing period. The Licensor will invoice the greater of $200 or 60%
of the remaining balance owing for the subscription term.
Suspension. The Licensor may suspend access by the Licensee to
the Service without notice, for non-payment of fees.
The Licensor warrants
that it owns or has the right to distribute the Information in accordance with
this Agreement and that it has the authority to enter into this Agreement and
to grant to the Licensee the rights granted herein.
THE INFORMATION AND
ASSOCIATED WRITTEN MATERIALS IN CONNECTION THEREWITH ARE PROVIDED "AS IS"
WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES STATUTORY OR OTHERWISE OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. THE
ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE INFORMATION IS WITH THE
LICENSEE. THE LICENSOR DOES NOT
WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION THAT THE INFORMATION WILL MEET
THE LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE INFORMATION WILL BE
UNINTERRUPTED OR ERROR FREE. NO ORAL OR
WRITTEN ADVICE GIVEN BY THE LICENSOR OR ITS DEALERS, DISTRIBUTORS, AGENTS,
OFFICERS OR EMPLOYEES CREATES A WARRANTY OR IN ANY WAY INCREASES THE LICENSOR'S
LIABILITY AND, THE LICENSEE MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. NOTWITHSTANDING ANYTHING ELSE IN THIS
AGREEMENT, EITHER PARTY'S MAXIMUM AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY
OTHER PERSON FOR ANY CAUSE WHATSOEVER RELATED TO THIS AGREEMENT SHALL NOT
EXCEED THE LICENCE FEES ACTUALLY PAID BY THE LICENSEE IN THE SIX MONTHS PRECEDING
THE DATE OF ANY CLAIM.
This Agreement shall be governed by and interpreted
in accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
The
Licensor
The Licensor shall indemnify and hold harmless the
Licensee, its officers, council members, partners, agents and employees from
and against all actions, claims, demands, losses, costs, damages, suits or
proceedings whatsoever which may be brought against or made upon Licensee and
against all loss, liability, judgments, claims, suits, demands, or expenses
which Licensee may sustain, suffer or be put to resulting from or arising out
of the Licensor's failure to exercise reasonable care, skill or diligence or
omissions in the performance or rendering of any work or services required
hereunder to be performed or rendered by the Licensor its agents, officials and
employees.
The Licensee
The
Licensee shall indemnify and hold harmless the Licensor, its officers, council
members, partners, agents and employees from and against all actions, claims,
demands, losses, costs, damages, suits or proceedings whatsoever which may be
brought against or made upon Licensor and against all loss, liability,
judgments, claims, suits, demands, or expenses which Licensor may sustain,
suffer or be put to resulting from or arising out of the Licensee's failure to
exercise reasonable care, skill or diligence or omissions in the performance or
rendering of any work or services required hereunder to be performed or rendered
by the Licensee its agents, officials and employees.
Notwithstanding anything in this agreement, neither
party shall be liable for any failure or delay in performing its obligations
under this Agreement, due to causes outside its reasonable control, provided
that a party claiming the benefit of this section shall use its best efforts to
eliminate the cause or causes beyond its control including, without limitation,
obtaining materials from other sources or using services of other suppliers. Events of force majeure shall include, without limitation, failure or
malfunction of computer equipment or software, interruption in
telecommunication services, accidents, acts of God, strikes or other labour
disputes.
Normally the
service will be available 24 hours a day, 7 days a week, however the service
support will only be available during Prime Time hours. Prime Time shall be
defined as between the hours of 8 a.m. to 5 p.m. from Monday to Friday, Eastern
Standard Time, except for the Licensor's observed statutory holidays. The Service shall be
available not less than 95% in Prime Time averaged over the period of one
year. Availability in Prime Time shall
mean:
((Hours
during Prime Time in a year)-(Hours during Prime Time of outage))
(Hours
during Prime Time in a year less Excusable Downtime).
For the purpose of calculating
Availability, any downtime related to the following shall be excluded: (i) such
reasonable time as is deemed necessary by the Licensor for system maintenance
activities; (ii) any Force Majeure Event; (iii) any problems experienced by the
Licensor associated with telecom or network services of any Internet Services
Provider or telecommunications carrier used by the Licensor, including any
problems with the Internet, the Public Switched Telephone Network or any other
external telecommunications or data communications network; and (iv) problems
caused by third party suppliers outside the Licensor's control (collectively,
"Excusable Downtime").
End-user support will be
available through the following email:
wms-support@firstbasesolutions.com