END USER LICENSE TERMS
INTERNAL USE LICENSE
These Internal Use License terms (the “License Terms”) apply to your use of a Product if you have licensed the Product subject to a Internal Use License either from European Space Imaging / DigitalGlobe, Inc. (“European Space Imaging / DigitalGlobe”) directly or from a Certified Reseller of European Space Imaging / DigitalGlobe. These License Terms are entered into by European Space Imaging / DigitalGlobe, whose principal place of business is 1300 W. 120th Avenue, Westminster, Colorado 80234 USA, and Customer. European Space Imaging / DigitalGlobe enters into these License Terms on behalf of itself and its Affiliate, MDA Geospatial Services Inc. (“MDA”). If you have licensed an MDA RADARSAT-2 Product, to the extent these License Terms apply to the use of that MDA RADARSAT-2 Product, references to European Space Imaging / DigitalGlobe will also mean MDA. These License Terms contain the general terms relating to Customer’s access to and use of the Product. The applicable Customer Agreement sets forth the terms pursuant to which Customer purchased the Internal Use License.
By signing or otherwise indicating acceptance of a Customer Agreement or downloading, accessing or using any Product licensed under a Internal Use License, you, on behalf of Customer, are accepting and agreeing to be bound by these License Terms. If you are entering into these License Terms on behalf of a company, other legal entity or government agency, you represent that you have the authority to bind that entity to the terms and conditions of these License Terms. Capitalized terms used in these License Terms are defined in Section 14 of these License Terms.
- GRANT OF LICENSE. Subject to Customer’s compliance with these License Terms and the applicable Customer Agreement, including, without limitation, payment of all applicable fees, during the Term, European Space Imaging / DigitalGlobe grants to Customer a non-exclusive, non-transferable, limited license to allow an unlimited number of its Authorized Users to:
(a) store, access, evaluate, use and reproduce the Product solely for Customer’s Internal Use;
(b) process, modify, enhance, adapt and create Derivatives of the Product (including Data Derivatives as defined in Section 2.3 of these License Terms depending on the type of Product) via formatting, editing, digitization, data combination; or via extraction of geographic features, human-made features, persons or animals and related data via identification, measurement and/or analysis, and store, access, evaluate, use and reproduce those Derivatives solely for Customer’s Internal Use; provided, however, that Data Derivatives can be used for any and all purposes, subject to the attribution requirements set forth in Section 7 of these License Terms; and
(c) display an extract of the Product (excluding Information Products) or a Derivative thereof on a public website in a secure, non-extractable, and non-downloadable format that prohibits manipulation of any pixel or metadata contained in the Product or Derivative thereof and does not result in any revenue to Customer, as follows:
(i) on one domain name;
(ii) 2048 x 2048 pixels;
(iii) at a resolution no better than resolution of imagery in the Product;
(iv) .png, .gif, .jpg, .jpeg, .jpe, .jfif, .bmp, .pdf; or any format without geo-referencing information (TIFF, NITF, GeoPDF, JP2 and JPEG2000 are not permitted);
(v) only collection date/time, vehicle, and band combination metadata can be published with the extract; and
(vi) properly attribute the imagery as required in Section 7 of these License Terms.
- SUBLICENSE RIGHTS.
2.1 GENERALLY. Customer may not sublicense to any Third Party the rights granted to Customer in Section 1 of these License Terms. Customer will ensure that each Authorized User complies with these License Terms. Customer will be liable for all acts and omissions of its Authorized Users relating to the Product or any violation of these License Terms. A breach of these License Terms by an Authorized User is deemed to be a breach by Customer. If Customer wants to sublicense the Product to an Affiliate of Customer, Customer must purchase a Group License.
2.3 DATA DERIVATIVES. “Data Derivatives” are those Derivatives created by Customer that Customer is permitted to use for any and all purposes. With respect to each Product type, the following Derivatives are deemed to be “Data Derivatives”:
(a) Elevation Products. With respect to Elevation Products, a Data Derivative is a Derivative of the Elevation Product that does not contain any elevation, depth or height information from the source Elevation Product.
(b) Imagery Products. With respect to Imagery Products, a Data Derivative is a Derivative of the Imagery Product that does not contain any imagery data or metadata from the source Imagery Product and is irreversible and uncoupled from the imagery data in the source Imagery Product. However, Data Derivatives specifically exclude the following Derivatives: orthorectified imagery; PAN, MS and PAN-Sharpened imagery; and Digital Elevation Models (DEM), Digital Surface Models (DSM), Digital Terrain Models (DTM), Triangulated Irregular Network (TIN) and Point Cloud elevation models (including, without limitation, 3D and building models, bathymetry and sea floor mapping).
(c) Information Products. With respect to Information Products, there are no Data Derivatives.
(d) MDA RADARSAT-2 Products. With respect to MDA RADARSAT-2 Products, a Data Derivative means a Derivative of the MDA RADARSAT-2 Product created by Customer that (i) is processed using interferometric processing techniques, such as interferograms, coherent change detection products or interferometric digital elevation models; or (b) does not retain any pixels of the source MDA RADARSAT-2 Product.
(e) Tasking Products. With respect to Tasking Products, a Data Derivative will be determined based upon the type of Product collected. For example, if the Tasking Product results in the generation of an Imagery Product, then the permitted Data Derivatives for the Tasking Product are the same as those for the resulting Imagery Product.
- ADDITIONAL LICENSE RIGHTS.
3.1 EDUCATION LICENSE RIGHTS. If Customer licenses a Product pursuant to the Education Discount, in addition to the rights set forth in Section 1 of these License Terms, during the Term, European Space Imaging / DigitalGlobe grants to Customer a non-exclusive, non-transferable, limited license to use the Product for research purposes.
3.2 NGO/GDO LICENSE RIGHTS. If Customer licenses a Product pursuant to the NGO/GDO Discount, in addition to the display rights set forth in Section 1 of these License Terms, during the Term, European Space Imaging / DigitalGlobe grants to Customer a non-exclusive, non-transferable, limited license to publish extracts of the Product or a Data Derivative to supplement text or newsworthy events in a hardcopy, broadcast or electronic format in publications, on a website, in a video/movie or other similar media, subject to the same formatting restrictions and requirements set forth in Section 1 of these License Terms.
- LICENSE TERM. The Term of the Internal Use License for each Product will begin upon delivery of the Product to Customer or Certified Reseller, whichever occurs first, and will continue perpetually or for a one-year term, as set forth in the Customer Agreement, unless terminated as set forth in Section 12 of these License Terms. However, upon expiration of each one-year term, the license Term will automatically renew and Customer will be invoiced for the applicable license fees under the Customer Agreement, unless Customer notifies European Space Imaging / DigitalGlobe or Certified Reseller at least thirty (30) days prior to the end of the then current Term that Customer does not want to renew the license.
- USE RESTRICTIONS. Customer recognizes and agrees that the Product is the property of European Space Imaging / DigitalGlobe and contains valuable assets and proprietary information of European Space Imaging / DigitalGlobe and its suppliers, as applicable. Accordingly, except as expressly permitted in Sections 1, 2, and 3 of these License Terms, Customer will not, and will not permit any Authorized User or other Third Party to:
(a) Distribute, sublicense, transfer, assign, rent, sell, lease, loan, make publicly available, publish or otherwise convey access to or use of the Product or Derivatives (other than Data Derivatives) to anyone other than Authorized Users;
(b) Use the Product or Derivatives (other than Data Derivatives) for the business needs of any Third Party, including without limitation, providing any services to any Third Parties;
(c) Store, post or process the Product or Derivatives (other than Data Derivatives) other than in a system that is made not accessible by the public through the use of sufficient information assurance measures;
(d) Use the Product or Derivatives to improve the accuracy of any other satellite imagery via algorithmic processing or any other method;
(e) With respect to Information Products, use or attempt to use the Information Product or Derivatives thereof to train machine learning algorithms for feature extraction or any other purpose;
(f) Remove, bypass or circumvent any electronic or other forms of protection 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;
(h) Modify or use the Product and Derivatives in any manner that infringes upon the Intellectual Property Rights of another entity or individual, or violates any applicable laws;
(i) reverse engineer, disassemble, decompile, adapt or otherwise attempt to derive the algorithms, source code, databases or data structures upon which the Product is based, but only to the extent this restriction is permitted by law; or
(j) Otherwise use or access the Product or any Derivative for any purpose not expressly permitted under these License Terms, including, without limitation, for Commercial Purposes.
In addition, with respect to MDA RADARSAT-2 Products, Customer will not, and will not permit any Authorized User or other Third Party to:
(1) Provide any SLC Data generated from Spotlight beam mode via a physical delivery protocol or an electronic delivery protocol unless the SLC Data are encrypted using an encryption software certified by NIST;
(2) On its own, or permit any Third Party to, release or publish hardcopies of SLC Data in any beam mode or post such SLC Data on any publicly accessible network;
(3) Further process SLC Data to generate any Derivative with an impulse response resolution in either range or azimuth finer than 2.0 meters for single- or dual-polarization modes or 6.0 meters for quad-polarization beam modes, where resolution is measured horizontally in the ground plane;
(4) Further process, or permit any Third Party to further process, any MDA RADARSAT-2 Product generated from Spotlight Beam Mode to generate any Derivative with an impulse response resolution finer than 2.0 meters in range and 0.74 meters in azimuth, where resolution is measured horizontally in the ground plane; or
(5) Generate, or permit any Third Party to generate, a Derivative using interferometric processing techniques from the MDA RADARSAT-2 Product containing SLC Data where the interval of collection between the two or more products is fewer than twenty-four (24) days.
- All right, title and interest in and to the Product and all corrections, enhancements, or other modifications to the Product made by European Space Imaging / DigitalGlobe or any Third Party at European Space Imaging / DigitalGlobe’s direction, and all Intellectual Property Rights therein are the sole and exclusive property of European Space Imaging / DigitalGlobe or its suppliers, as applicable. All right, title and interest, including all Intellectual Property Rights, in and to enhancements or modifications made by Customer in the creation of a Derivative and any new material contributed by Customer in the creation of a Derivative, but specifically excluding materials owned by European Space Imaging / DigitalGlobe or its suppliers (including, without limitation, Products integrated, referenced, recast, transformed or adapted in the Derivative) are the exclusive property of Customer. However, notwithstanding the ownership rights of Customer in the enhancements, modifications and contributed materials, use of a Derivative by Customer is subject to the license and use restrictions set forth in Sections 1, 2, 3 and 5 of these License Terms. All rights not expressly granted to Customer in these License Terms are reserved by European Space Imaging / DigitalGlobe.
- ATTRIBUTION. Customer will not delete, alter, cover or distort any copyright, trademark or other proprietary rights notice placed on or in the Product and will ensure that all notices are reproduced on all copies. All Derivatives (including Data Derivatives) must include the following copyright notice on or adjacent to the Derivative:
(a) European Space Imaging / DigitalGlobe Products. [Product] © [YEAR] European Space Imaging / DigitalGlobe, Inc., a Maxar company.
(b) AW3D Enhanced, AW3D Metro, AW3D Standard and AW3D Telecom Products. [Product] © [YEAR] NTT Data Corporation.
(c) Ecopia Building Footprints Powered by European Space Imaging / DigitalGlobe. Ecopia Building Footprints © [YEAR] Ecopia Tech Corporation. Imagery © [YEAR] European Space Imaging / DigitalGlobe, Inc.
(d) MDA RADARSAT-2 Products. [Product] © [YEAR] MDA Geospatial Services Inc. Copyright in all MDA RADARSAT-2 Products is and will remain held by MDA Geospatial Services Inc. RADARSAT is an official mark of the Canadian Space Agency.
- COMPLIANCE WITH LICENSE TERMS.
8.1 Certification. Upon European Space Imaging / DigitalGlobe’s written request, and not more than once per calendar year, Customer will certify its compliance with the licenses granted under these License Terms. If Customer is unable to provide this certification, Customer will work in good faith with European Space Imaging / DigitalGlobe to convey the proper license type and remit the appropriate fees as remedy for any non-compliance. In addition, European Space Imaging / DigitalGlobe reserves the right to terminate all licenses and these License Terms for non-compliance in accordance with Section 12.1 of these License Terms.
8.2 Audit. European Space Imaging / DigitalGlobe or its authorized representative will have the right to perform an audit to determine Customer’s compliance with these License Terms and the licenses granted hereunder. Customer will grant European Space Imaging / DigitalGlobe auditors access to the business location(s), books and records, employees and/or contractors pertaining to Customer’s use of the Product. 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. However, with respect to any audit relating to MDA RADARSAT-2 Products required by applicable law, European Space Imaging / DigitalGlobe’s audit rights are not limited by the foregoing restrictions.
8.3 Audit Findings. If an audit results in a finding of non-compliance, European Space Imaging / DigitalGlobe may, at its discretion: (a) invoice any additional license fees due based on the standard European Space Imaging / 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 at the lower rate of: (i) 1.5% per month; or (ii) the highest rate permissible under applicable law; (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 these License Terms and the European Space Imaging / DigitalGlobe licenses in accordance with Section 12 of these License Terms. Customer must pay these invoices within thirty (30) days following the date of invoice.
- INDEMNIFICATION BY CUSTOMER. Customer will defend, indemnify and hold European Space Imaging / DigitalGlobe, its Affiliates, its suppliers and Certified Reseller harmless from and against any claims that may arise against European Space Imaging / DigitalGlobe, its Affiliates, its suppliers or Certified Reseller out of Customer’s use of the Product, including, without limitation, a violation by Customer of Section 13.6, 13.7 or 13.8 of these License Terms.
- LIMITED WARRANTY AND DISCLAIMER.
10.1 LIMITED WARRANTY. European Space Imaging / DigitalGlobe warrants to Customer only that the Product, as delivered by European Space Imaging / DigitalGlobe, will (a) be of the area of interest set forth in the applicable Customer Agreement; and (b) comply in all material respects with the applicable Product Specification. European Space Imaging / DigitalGlobe’s sole obligation and Customer’s exclusive remedy for a breach of this warranty is for European Space Imaging / DigitalGlobe, at its option and expense, to: (i) repair or replace the non-conforming Product; or (ii) terminate the applicable license and refund all fees paid by Customer for the non-compliant Product. Any claim under this warranty must be made within thirty (30) days following the initial delivery of the Product. This limited warranty is void if any non-conformity has resulted from any accident, abuse, misuse, misapplication or modification of or to the Product by anyone other than European Space Imaging / DigitalGlobe or any breach by Customer of these License Terms.
10.2 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION 10.1, THE PRODUCT IS 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. NEITHER EUROPEAN SPACE IMAGING / DIGITALGLOBE NOR ITS SUPPLIERS WARRANT THAT THE PRODUCT WILL BE ACCURATE, CURRENT OR COMPLETE, THAT THE PRODUCT WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS OR THAT THE OPERATION OF THE PRODUCT WILL BE ERROR FREE OR UNINTERRUPTED. FURTHER, SPATIAL, SPECTRAL AND TEMPORAL ACCURACY IS NOT GUARANTEED.
- LIMITATION OF LIABILITY. IN NO EVENT WILL EUROPEAN SPACE IMAGING / 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 THESE LICENSE TERMS OR ANY LIMITED REMEDY HEREUNDER. IN NO EVENT WILL THE TOTAL LIABILITY OF EUROPEAN SPACE IMAGING / DIGITALGLOBE, ITS AFFILIATES AND ITS SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT(S) EXCEED THE FEES PAID BY CUSTOMER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM. 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.
1 BY EUROPEAN SPACE IMAGING / DIGITALGLOBE. In addition to those termination rights set forth in Section 10, European Space Imaging / DigitalGlobe may terminate these License Terms and associated license rights upon written notice to Customer if Customer (a) breaches Section 1, 2, 3, 5, 6, 8, 9, 13.6, 13.7, or 13.8 of these License Terms; (b) breaches any provision of these License Terms applicable to an MDA RADARSAT-2 Product; or (c) materially breaches any other provision of these License Terms or the Customer Agreement and fails to cure the breach within thirty (30) days after receiving written notice to do so.
2 BY CUSTOMER. Customer may terminate these License Terms and associated license rights at any time by (a) permanently deleting the Product and Derivatives (excluding Data Derivatives, which are owned by Customer) from all devices and systems and destroying any copies on disk; and (b) certifying to European Space Imaging / DigitalGlobe in writing that all copies of the Product and Derivatives (excluding Data Derivatives, which are owned by Customer) have been deleted or destroyed; however, Customer is still responsible for paying all license fees in full.
3 EFFECT OF TERMINATION. Upon termination or expiration of these License Terms, all rights to use the Product granted to Customer under these License Terms will immediately cease and Customer will (and will cause all Authorized Users to) (a) stop all use of the Product and Derivatives (excluding Data Derivatives) and (b) permanently delete the Product and Derivatives (excluding Data Derivatives) from all devices and systems and destroy any copies on disk. Within ten (10) days following termination or expiration, Customer will certify to European Space Imaging / DigitalGlobe in writing that all copies of the Product and Derivatives (excluding Data Derivatives) licensed under these License Terms have been deleted or destroyed. The expiration or termination of these License Terms does not relieve either party of any obligations that have accrued on or before the effective date of the termination or expiration.
4 SURVIVAL. The duties and obligations of the parties under Sections 2.3 (Data Derivatives), 5 (Use Restrictions), 6 (Ownership), 7 (Attribution), 8 (Compliance), 9 (Indemnity), 11 (Limitation of Liability), 12.3 (Effect of Termination), 12.4 (Survival), and 13 (General Terms) of these License Terms will survive expiration or termination of these License Terms.
- GENERAL TERMS.
13.1 ENTIRE AGREEMENT. These License Terms, together with the Customer Agreement, constitute the entire agreement between the parties with respect to use of the Product and supersede all previous and contemporaneous agreements, understandings and arrangements, whether oral or written.
13.2 ASSIGNMENT. Customer may not transfer or assign any of its rights or delegate any of its obligations under these License Terms, in whole or in part and including any transfers by operation of law, without the prior written consent of European Space Imaging / DigitalGlobe. Any attempted assignment or transfer in violation of this Section will be null and void. These License Terms will be binding on and inure to the benefit of the parties and their respective permitted successors and assigns.
13.3 AMENDMENT. These License Terms may be amended or supplemented only by a writing that refers to these License Terms and that is signed by both parties.
13.4 WAIVER. The failure or delay by a party to require performance of any provision of these License Terms 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.
13.5 SEVERABILITY. If any provision of these License Terms 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.
13.6 COMPLIANCE WITH LAWS. Customer is responsible for its own compliance with laws, regulations and other legal requirements applicable to the conduct of its business, use of the Product and these License Terms, 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.
13.7 INTERNATIONAL TRADE COMPLIANCE. The Product is subject to the customs and export control laws and regulations of the United States, Canada, and any country in which the Product is 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 these License Terms. Further, Customer will not provide the Product 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 Product for purposes that are illegal or adverse to the interests of the United States Government, Canadian Government or European Space Imaging / DigitalGlobe generally. Customer will provide European Space Imaging / DigitalGlobe with the assurances and official documents that European Space Imaging / DigitalGlobe may request periodically to verify Customer’s compliance with these License Terms.
13.9 GOVERNING LAW AND DISPUTE RESOLUTION. All matters arising out of or relating to these License Terms will be governed by and construed under the laws and using the method of dispute resolution indicated below, based upon where Customer is domiciled: