Terms of Service
Last Updated: September 8, 2016
These Boundless Terms of Service (these “Terms”) apply to downloadable software, various web services and software as a service (SaaS) APIs that allow you to develop cloud-based applications, integrate your applications with Boundless SaaS applications, or build applications that integrate with Boundless SaaS applications (each, a “Service”). Sometimes there may be specific terms that apply to a particular Boundless web services API. These are set out in Special Service Terms.
By clicking the “I Agree” button (or other button or mechanism designed to acknowledge agreement), or by accessing or using the Service, you (A) indicate that you have read these Terms, understand them, and agree to be legally bound by them on behalf of the entity for which you work or on whose behalf you are acting (for example, as an employee) (“Company”) or, if there is no Company, on behalf of yourself as an individual; and (B) you represent and warrant that you have the right, power and authority to act on behalf of and bind your Company (if any) and yourself. If you or your Company (collectively, “you”) do not agree to all of these Terms or you do not have the right, power, and authority to legally bind your Company (if any) and yourself, then (A) DO NOT click “I Agree” (or other button or mechanism designed to acknowledge agreement) and (B) DO NOT access or use the Service.
- Definitions. Certain capitalized terms used in these Terms are defined in Section 17 (Definitions) or elsewhere in these Terms.
- Scope of Terms and Modification.
2.1 Your use of the Service is subject to these Terms and Additional Terms. You agree to comply with (a) these Terms, (b) any Special Service Terms that apply to the specific Service you are accessing or using, (c) the Pricing Schedule, (d) Boundless’s policies relating to Copyright Information and Trademarks, Boundless’s Privacy Statement, Boundless’s Acceptable Use Policy Documentation, and all other guidelines, rules, policies, and terms and conditions applicable to the Service (including applicable third-party terms) that may be posted by or on behalf of Boundless on the Site or otherwise communicated by or on behalf of Boundless to you from time to time (collectively, including any Special Service Terms and the Pricing Schedule, the “Additional Terms”). All Additional Terms, including those referenced through a hyperlink in these Terms, as they may be amended from time to time by Boundless, are hereby incorporated into these Terms by reference.
2.2 Other Boundless Offerings are subject to separate terms and conditions. If you use the Service with any other Boundless Offerings, these Terms will also include any terms and conditions that apply to such other Boundless Offerings.
2.3 These Terms may change. Boundless may modify these Terms at any time. Boundless will provide notice of those modifications in a manner deemed reasonable by Boundless (including posting on the Site or via e-mail to your registered e-mail address). Boundless may also make modifications to any Additional Terms in accordance with the terms of such documents. If any modification has any adverse effect on you or is otherwise unacceptable to you in any respect, you must immediately cease accessing and using the Services and terminate these Terms in accordance with Section 12.4. If you continue to access or use any Service following any notice of modification to these Terms, you will be deemed to have accepted the modified Terms. You can determine when these Terms were last modified by referring to the “LAST UPDATED” legend at the top of these Terms.
2.4 These Terms govern if there is a conflict. If there is any conflict between these Terms and any Additional Terms, with respect to any Service, the following order of precedence will govern: the applicable Special Service Terms, these Terms, the Pricing Schedule, and any other Additional Terms.
- Service Generally.
3.1 Boundless will provide the Service to you and your Authorized Users. Subject to, and conditioned on your compliance with, these Terms, during the Service Term Boundless will provide the Service and you may access and use the Service. You may permit the Service to be accessed and used by your Authorized Users, provided such access and use is solely for your internal business purposes and is in the form made accessible or provided by Boundless. You agree to be responsible for compliance with these Terms by Your Authorized Users and any other persons who may have access to the Service through you (whether or not such access is authorized by you or by Boundless). All references to your access and/or use of the Service in these Terms include access and/or use of the Service by your Authorized Users. Boundless will make the Service available to you and your Authorized Users consistent with the manner in which Boundless makes the Service generally available to users of the Service at your selected payment tier.
3.2 You will need to set up an Boundless account. Boundless may require you to create or log into one or more accounts to use the Service. For certain Services or features of a Service, Boundless may require you to obtain and use alphanumeric or cryptographic keys or access tokens that are uniquely associated with your Boundless accounts or your Application (“Keys”). You must obtain and use such Keys in accordance with these Terms. You agree that you will not share (or permit anyone else to share) any user ID, passwords or Keys with anyone who is not an Authorized User, will not allow any third party (other than Authorized Users) to use or access your accounts, and will not do anything else that might jeopardize the security of your accounts. IF YOU MAKE YOUR KEYS AVAILABLE TO ANY END USER OR OTHER PARTY (INCLUDING AUTHORIZED USERS), YOU DO SO AT YOUR OWN RISK.
3.3 Boundless may change, limit, or discontinue the Services. Boundless reserves the right to change or discontinue any Service for any or no reason, and Boundless bears no responsibility or liability for such change or discontinuation. Boundless is not required to deliver notice of changes to, or discontinuation of, any Service. You agree that it is your responsibility to ensure, at your own cost, that your access to and use of the Service is compatible with Boundless’s then-current requirements.
3.4 Boundless can monitor and enforce the Terms. Boundless may monitor your usage of the Service to verify compliance with these Terms. You will provide Boundless with any information or materials that Boundless reasonably requests to verify your compliance with these Terms. Boundless may take enforcement actions against you if Boundless determines in its sole judgment that you, your Authorized Users, your Application, or End Users (a) violate these Terms, (b) have inappropriately accessed, used, or disclosed Boundless Content or (c) have or may otherwise threaten or damage the reputation of any Boundless Party.
3.5 Services may be provided by Boundless’s Subsidiaries and Affiliates. Boundless has subsidiaries, affiliated legal entities, and subcontractors around the world. Sometimes, these companies will be providing the Service to you on behalf of Boundless itself. You acknowledge and agree that these Boundless subsidiaries, affiliates, and subcontractors will be entitled to provide the Service to you.
4.1 Your Content is yours. Your use of some Services may require or permit Boundless to collect or store Your Content (including the Content of End Users). Boundless personnel will not access Your Content except (a) as part of providing, maintaining, securing or modifying Services, (b) at your request or with your consent as part of addressing or preventing a service, support or technical issue, or (c) in connection with legal obligations or proceedings in accordance with Section 14.1 below. You retain ownership of and responsibility for Your Content and responsibility for your conduct while using the Services. Boundless does not own Your Content. You agree that Your Content and your conduct in using the Services will comply with all applicable laws, rules and regulations, and the Acceptable Use Policy Documentation. By creating, submitting, uploading or otherwise making Your Content available to Boundless and/or others, you acknowledge and agree that: (x) you will evaluate and bear all risks associated with Your Content; and (y) under no circumstances will Boundless Parties be liable in any way for Your Content as you upload or submit it, including any errors or omissions. You are encouraged to practice effective content retention practices, to maintain copies on your own computer or local network, to use the latest encryption and other security technology to protect Your Content and to back up and protect the security and confidentiality of Your Content, as applicable to the Service.
4.2 Availability of Third Party Materials. In order to use certain Services, Third Party Materials may be made available to you, directly or indirectly, through the Service. In some cases, such Third Party Materials may appear to be a feature or function within, or an extension of, the Services. Accessing such Third Party Materials may cause your Computer, without additional notice, to communicate with a third-party website. Such connectivity or access to third party websites or Third Party Materials is governed by the terms found on such sites or otherwise associated with the Third-Party Materials, and access to and use of Third Party Materials and other products and services from Boundless may require your agreement to separate terms or payment of additional fees. You agree that any viewing, use or access of Third Party Materials by you or your Authorized Users is at your sole risk. Under no circumstances will Boundless Parties be liable for any loss or damage caused by your viewing, use or reliance on Third Party Materials. Any dealings between you and any third party in connection with such Third Party Materials, including, without limitation, such third party’s privacy policies, use of personal information, delivery of and payment for goods and services, and any other terms associated with such dealings, are solely between you and such third party. Boundless may at any time, for any reason, modify or discontinue the availability of any Third Party Materials.
4.3 Deleting Your Content. If you delete Your Content from the Service, you understand it may persist in backup copies. Boundless has the right (but not the obligation) to delete inactive sites or accounts or purge related content, without further notice. Boundless Parties will have no responsibility or liability for deletion or failure to store Your Content or for any failure to delete Your Content.
- Licenses from Boundless to You.
5.1 Boundless grants you rights to use and access the Service. Subject to, and conditioned on your compliance with, these Terms, Boundless hereby grants to you, under Boundless’s intellectual property rights in and to the Service in the form made available to you by Boundless, a limited, non-transferable, non-assignable, non-sublicensable, and non-exclusive license during the Service Term to access and use the Service solely to the extent necessary to develop, test, integrate, operate and support your Application. While these Terms restrict you from sublicensing the Service separately from your Application, you may permit End Users to use and access the Service as a feature or component of your Application, provided you are in compliance with these Terms.
5.2 Boundless grants you rights to use Boundless Content made available for use with the Service. Subject to, and conditioned on your compliance with, these Terms, Boundless hereby grants to you, under Boundless’s intellectual property rights in and to the Boundless Content that Boundless makes available to you through the Service for use in your Application, a limited, non-transferable, non-assignable, non-sublicensable, and non-exclusive license during the Service Term to reproduce, publicly perform, publicly display, prepare derivative works of and distribute portions of such Boundless Content solely within your Application.
5.3 Boundless grants you rights to use the API Sample Code to develop your Application. If Boundless makes API Sample Code available, you may use API Sample Code subject to, and conditioned on your compliance with, the license terms provided with or accompanying such code (e.g., the MIT License). If no license terms are provided or specified, then subject to, and conditioned on your compliance with, these Terms, Boundless hereby grants to you, under Boundless’s intellectual property rights in and to the API Sample Code in the form made available to you by Boundless through the Service or the Site, a limited, non-transferable, non-assignable, non-sublicensable, and non-exclusive license during the Service Term to (a) reproduce, modify and make derivative works of the API Sample Code for the sole purpose of developing an Application and (b) distribute the API Sample Code to your End Users solely as embedded in your Application for the purposes of complementing and enhancing the Boundless Content, except to the extent prohibited by the licenses or other terms for the API Sample Code or any related software development tools, utilities or kits.
5.4 Boundless grants you rights to use Boundless’s Brand Features to promote your Application. Subject to, and conditioned on your compliance with, these Terms, including Boundless’s then-current Guidelines for Use (relating to Boundless trademarks and designations), Boundless hereby grants to you, under Boundless’s intellectual property rights in and to Boundless Brand Features that Boundless may make available to you through certain Services, a limited, non-transferable, non-assignable, non-sublicensable, and non-exclusive license during the Service Term to use such Boundless Brand Features solely for your marketing or promotional materials for your Application.
- Licenses from You to Boundless.
6.1 You grant Boundless rights to Your Content to enable Boundless to provide the Service. By submitting, uploading, or displaying Your Content in or through the Service, you hereby grant to Boundless, for the sole purpose of enabling Boundless to provide you with the Service in accordance with these Terms, a worldwide, royalty-free, non-transferrable, and non-exclusive license to access, use, reproduce, adapt, modify, publicly perform, publicly display, prepare derivative works of and distribute Your Content through the Service.
6.2 You grant Boundless rights to your Feedback. If you provide Boundless with Feedback, then such Feedback may be utilized by Boundless without any limitation or obligation to you. You should not include any Confidential Information in any Feedback.
6.3 You have authority to grant licenses. You represent and warrant to Boundless that you have all the rights, power and authority necessary to grant the above licenses and rights.
- Compliance with Laws; End User Agreement; Covenants; Restrictions.
7.1 Your compliance with Laws. You will comply with all applicable Laws with respect to your access to and use of the Service.
7.3 There are restrictions applicable to the Services. Except as explicitly permitted in these Terms, the Special Service Terms or the Pricing Schedule, you must not (nor permit anyone else to): (a) license, sublicense, sell, resell, transfer, assign, rent, loan, lease, distribute or otherwise commercially exploit or make available to any third party the Service, the Boundless Content, or any rights granted in these Terms in any way, or use the Service as a service bureau; (b) copy, modify, translate, adapt, arrange, make derivative works of or publicly display the Service or any Boundless Content or any part thereof; (c) access or use the Service or the Boundless Content for the purpose of (i) building or providing a competitive product or service, as determined by Boundless in its sole discretion, (ii) building or providing a product using similar ideas, features, functions or graphics of the Service or the Boundless Content, or (iii) copying any ideas, features, functions or graphics of the Service or the Boundless Content; (d) decompile, disassemble or otherwise reverse engineer the Service or the Boundless Content, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the Service or the Boundless Content; (e) take any action that Boundless determines imposes an unreasonably or disproportionately large burden on Boundless’s (or its designated third parties’) infrastructure, including the Service; (f) attempt to (i) remove, defeat or circumvent any license manager technology or copy protection device provided with the Service or the Boundless Content, or (ii) bypass or delete any functionality or technical limitations of the Service or the Boundless Content that prevent or inhibit the unauthorized copying or use of the Service or the Boundless Content; and (g) otherwise access or use the Service or the Boundless Content. The Pricing Schedule may contain additional restrictions or limits.
7.4 Your use will inure to Boundless’s benefit; no challenges. All use by you of the Boundless Brand Features will inure to the benefit of Boundless. To the maximum extent permitted by applicable Law, at any time during or after the term of these Terms you will not: (a) challenge, contest or oppose, nor assist others to challenge, contest or oppose, Boundless’s ownership of and rights in the Boundless Brand Features or their registrations; (b) use or register, or attempt to register, any Boundless Brand Features (including domain names incorporating elements of the Boundless Brand Features) or any trademarks, service marks, trade names, domain names or other indicators that are confusingly similar to the Boundless Brand Features in any way (including sound, appearance and spelling); or (c) misappropriate the Boundless Brand Features for your or any third party’s use.
7.5 Boundless may review your marketing materials that include Boundless Brand Features. If requested by Boundless, you will promptly provide for Boundless’s review copies of all marketing and promotional materials that use the Boundless Brand Features or that relate to the Application. If Boundless, in its sole discretion, determines that your use of the Boundless Brand Features is not in compliance with these Terms, you will promptly change or stop using the materials as directed by Boundless.
- Proprietary Materials.
8.1 Boundless and its licensors own the Service and other Boundless Materials. As between you and Boundless, Boundless and its licensors own all right, title, and interest (including patents, copyrights, trademarks, trade secrets, and other intellectual property rights) in and to the Service and other Boundless Materials. All rights not expressly granted to you under these Terms are reserved by Boundless and/or its licensors, and you acknowledge and agree that you do not have (and will not assert) any licenses or other rights (implied or otherwise) except as expressly set forth in these Terms.
8.2 You own Your Content and your Application. As between you and Boundless (and without limiting anything contained in Section 4.1 above), you retain all right, title and interest in and to Your Content and your Application, except for Boundless Materials that may be incorporated in, used by, or practiced by Your Content or your Application. Except for such Boundless Materials, Boundless claims no ownership over Your Content or your Application, and you retain the copyright and any other rights you already hold in Your Content. You, and not Boundless, are responsible for Your Content and your Application and any other materials that you, your Authorized Users, or End Users upload, post, email, or otherwise transmit in using the Service and your Application. You acknowledge and agree (and represent and warrant) that: (a) you have and will have the requisite rights to submit, develop, and use Your Content and your Application in connection with the Service; (b) Your Content and your Application do not and will not infringe or misappropriate any intellectual property or proprietary right of any third party or violate any applicable Laws; and (c) Your Content and your Application are not subject to any restrictions on disclosure, transfer, download, export or re-export under any applicable Law. You acknowledge and agree that provision of the Service necessarily involves technical access, processing and transmission of Your Content and collection of Metrics related to use of the Service.
9.1 Fees may apply to your access to or use of the Service. Boundless may permit you to access or use certain Services or functionality free of charge. However, Boundless reserves the right to impose fees on any access to or use of Service or other Boundless Materials at any time and in Boundless’s sole discretion, upon prior notice to you. With respect to any Services requiring a fee, you agree to pay the fees and any other amounts (collectively, “Fees”) for the Service as set forth on the Pricing Schedule. In the event you exceed any applicable quotas or other limits on the usage of the Service as set forth in the Pricing Schedule, Boundless may, in its discretion, suspend, terminate, or revoke your or an Application’s access to or use of any of the Services or Boundless Content (including by revoking or suspending any Key), or other Boundless Materials. If you (including your End Users) exceed any applicable quotas or other limits on the usage of any paid Service as set forth in the Pricing Schedule, Boundless has the right to charge you the applicable Fees for such excess usage in accordance with the then-current rates or plans published on the Site.
9.2 Boundless may change the Fees. The Pricing Schedule and Fees are subject to change. Any such change will be effective upon notice (including posting on the Site) of the modified pricing by Boundless.
9.3 Payment information; No rights of set-off. All payments under these Terms will be made in U.S. dollars to Boundless’s account specified in the Pricing Schedule or to such other account as Boundless may designate from time to time by giving notice to you. All Fees and other charges to be paid by you under these Terms will be paid without set-off or reduction for any amounts owed or allegedly owed by Boundless to you.
(a) General. All payments will be made free and clear without deduction for any and all present and future taxes imposed by any taxing authority. In the event that you are prohibited by law from making such payments unless you deduct or withhold taxes therefrom and remit such taxes to the local taxing jurisdiction, then you will duly withhold and remit such taxes and will pay to Boundless the remaining net amount after taxes have been withheld. You will promptly furnish Boundless with a copy of an official tax receipt or other appropriate evidence of any taxes imposed on payments made under this Agreement, including taxes on any additional amounts paid.
(b) Taxes to be collected by Boundless. In cases other than taxes referred to in the previous paragraph, including but not limited to sales and use taxes, stamp taxes, value added taxes, property taxes and other taxes and duties imposed by any taxing authority on or with respect to this Agreement, the cost of such taxes or duties will be borne by you. Any such taxes to be collected by Boundless will appear as a separate item on your invoice, unless, for sales within the US, Boundless receives a valid tax exemption certificate from you prior to delivery.
(c) Customs and Import Requirements. You will be solely responsible, as required by law, for compliance with all associated costs and procedures, including customs and import requirements, and for paying all customs duties, import value added taxes, and other governmental fees and taxes that apply to the importation into your country of such licenses, subscriptions and services, any accompanying documentation, as well as any loading, downloading, transportation and mobilization costs.
(d) Income Taxes, Capital Taxes, Taxes on Gross Receipts. Each party is responsible for its own taxes imposed upon net income, capital or gross receipts.
- Your Applications.
10.1 You are responsible for developing your Application. You acknowledge and agree that you will be solely responsible for all development, distribution and use of any Applications, including all related costs, expenses, losses and liabilities.
10.2 You are responsible for administering your Application and providing support. You acknowledge and agree that, as between you and Boundless, you are solely responsible for all aspects of each Application (including any service or functionality offered through each Application). You are solely responsible for establishing your own rules for access to your Application by End Users and other third parties and administering your Application (including establishing pricing for Your End Users’ access to or use of your Application). You acknowledge and agree that (a) Boundless will not provide or be required to provide any technical or other support services to you (including your Authorized Users) or any End User and (b) Boundless is not responsible for monitoring or policing any dispute related to your Application or its use or the use of the Service or any Content that may arise between or among you, your Authorized Users, any End User, or any other third party.
10.3 You will implement security measures and not include harmful code. You will ensure that each Application contains protections that are adequate to keep secure and prevent the interception of any data transmitted to and from such Application or the Service. You will not attempt to circumvent any security measures or technical limitations of the Service. You will immediately notify Boundless of any security deficiencies (including any actual or suspected theft, loss or misuse of data or actual or suspected vulnerabilities that may result in a theft, loss or misuse of data) that you discover or suspect in connection with an Application, the Service or any related Content. You will not include (or permit to be included), in or in connection with an Application, any spyware, malware, virus, worm, Trojan horse or other malicious or harmful code, or any software not expressly and knowingly authorized by each applicable End User prior to being downloaded or installed.
10.5 You will comply with Laws relating to your Application. You will comply with all applicable Laws related to each Application, including the development, marketing, sale, distribution and use of the Application. Upon Boundless’s request, you will promptly provide to Boundless copies of any regulatory approvals or other approvals relating to any Application. You will not seek any regulatory permissions or make any determinations that may result in Boundless Parties or the Service (or any part thereof) being deemed regulated or that may impose any obligations or limitations on Boundless Parties.
10.6 Boundless is not restricted from competing. Boundless reserves the right to develop and market any technology, products or services or pursue business opportunities that compete with or are similar to any of your products or Applications.
- Privacy Protection.
11.1 The Boundless Privacy Statement applies to your use of the Services. You acknowledge and agree that, by using the Service, you consent to the collection, use, processing, and storage of your Personal Information as described in Boundless’s then-current Privacy Statement, including cross-border transfers as described in the Privacy Statement.
11.2 Compliance with privacy laws is important and you are responsible for certain permissions. You acknowledge and agree that you are responsible for compliance with all applicable privacy and data protection Laws related to the Personal Information of any persons who may use your Application or who may have access to or use of the Service through you (including your Authorized Users and End Users), including any applicable requirements related to notice, consent, transfer (including cross-border transfer), disclosure, and use of Personal Information in connection with the Service, including as described in the Privacy Statement. Without limiting the foregoing, you will ensure that you have obtained consents, to the extent necessary, to provide Personal Information to be collected, stored, used and otherwise processed by, or transferred to, Boundless and its affiliates and its and their contractors (including service providers), and that any individual who accesses or uses the Service has been made aware of and agrees to the Privacy Statement.
11.3 You will not store or permit others to store Sensitive Personal Information. You acknowledge and agree that Boundless may use third-party service providers in connection with the Services, including without limitation, the use of cloud computing service providers which may transmit, maintain and store Your Content and data using third-party computers and equipment in locations around the globe. You acknowledge and agree that any data storage functionality associated with the Service is not intended for the storage of Sensitive Personal Information. You will not (and will not permit anyone else to) upload or otherwise submit any Sensitive Personal Information in connection with the Service. You also acknowledge and agree that Boundless Parties will have no responsibility or liability with respect to any such Sensitive Personal Information that is processed, transmitted, disclosed, or stored in connection with the Service.
- Term and Termination. These Terms will become effective on the Effective Date. The term of these Terms (the “Service Term”) will extend from the Effective Date until the first to occur of: (a) the date or end of the term of the applicable Service and subscription level for which you have paid (for a paid Service), as set forth in the Pricing Schedule, (b) the discontinuation of the Service by Boundless, or (c) the date these Terms are terminated in accordance with this Section 12.
12.1 Termination and other remedies for breach. Boundless and you each have the right to terminate these Terms if the other party is in breach of the Terms and fails to cure such breach within ten (10) business days after written notice of the breach. In addition, if you fail to make a payment to Boundless (or a distributor or reseller authorized directly or indirectly by Boundless) or otherwise fail to comply with the provisions of these Terms or Additional Terms relating to any such Service, Boundless may, as an alternative to termination, (a) downgrade or modify your existing subscription, payment or service plan (including downgrading you to a non-commercial Free Services plan), (b) suspend the Service and your access to the Service, and/or (c) suspend other Boundless obligations or your rights under these Terms.
12.2 Other termination rights. Boundless may also terminate these Terms if you become subject to bankruptcy proceedings, become insolvent, or make an arrangement with your creditors. Boundless may terminate or modify these Terms if the continued provision of the Services to you or your End Users is prohibited by applicable Law or as otherwise required by applicable Law. These Terms will terminate automatically without further notice or action by Boundless if you go into liquidation.
12.3 Effect of Termination; Survival. Upon any termination of these Terms for any reason, you, your Applications, your Authorized Users, and End Users must immediately (a) cease accessing or using the Service, the Boundless Content, API, API Information, API Sample Code, Boundless Brand Features, Confidential Information, and other Boundless Materials, (b) destroy all copies of the foregoing that you may be in your (including your Authorized Users’) possession, custody or control, and (c) remove all API Sample Code and API Information (including any code that is based on or uses the API Information or implements the API for the Service) from all of your software and other materials (including any Application). Except for termination by Boundless in accordance with Section 12.1 above (Termination for Breach), Boundless will refund any Fees paid by you applicable to the period after the effective date of termination. The following provisions of these Terms will survive expiration or earlier termination and continue to apply indefinitely: Sections 1, 3.5, 4, 6.2-6.3, 7.3-7.6, 8-11, 12.4-12.5, and 13-17.
12.4 When Your Content may be deleted; Content must be retrieved within 30 days for paid Services. It is your responsibility to retain copies of Your Content. Boundless is not responsible for storing any of Your Content created, submitted, uploaded or made available to Boundless in connection with use of any Service, and may delete any such Content, and all backups thereof, at any time without notice. Boundless Parties will not be liable for any loss or damage which may be incurred by you or any third parties as a result of the deletion of any of Your Content in connection with the use of any Service. Upon termination of any Service for any reason, Boundless will have the right to immediately deactivate your account(s) and suspend access to Your Content and, following the Content Retrieval Period, may delete, without notice, Your Content, if any, and all backups thereof, and Boundless Parties will not be liable for any loss or damage which may be incurred by you or any third parties as a result of such deletion. Within thirty (30) days after the end of the term of your subscription, or earlier termination of these Terms (“Content Retrieval Period”), and provided you have paid all amounts due in connection with the Service, Boundless will grant you limited access to the Service for the sole purpose of allowing you to retrieve your available content.
- Disclaimer of Warranties; Limitation of Liabilities.
13.1 Warranty Disclaimer. THE BOUNDLESS MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BOUNDLESS PARTIES MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND TO ANY PARTY, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, WITH RESPECT TO THE BOUNDLESS MATERIALS, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. YOUR USE OF THE BOUNDLESS MATERIALS IS AT YOUR OWN DISCRETION AND RISK. BOUNDLESS PARTIES DO NOT WARRANT THAT ANY USE OF OR ACCESS TO THE BOUNDLESS MATERIALS WILL BE ERROR-FREE, COMPLETE, SECURE OR THE CONTENT WILL NOT BE OTHERWISE LOST OR DAMAGED OR MEET YOUR REQUIREMENTS OR EXPECTATIONS; THAT OPERATION OR AVAILABILITY WILL BE UNINTERRUPTED; OR THAT ERRORS OR FAILURES WILL BE CORRECTED OR REMEDIED. BOUNDLESS PARTIES DO NOT WARRANT THAT THE BOUNDLESS MATERIALS WILL PERFORM IN ANY PARTICULAR MANNER. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR (AND BOUNDLESS PARTIES ASSUME NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND FOR) (1) THE DECISIONS THAT YOU MAY MAKE REGARDING THE BOUNDLESS MATERIALS; (2) USE OF THE BOUNDLESS MATERIALS INCLUDING ANY CONTENT, DATA, INFORMATION, OR OTHER MATERIAL ACCESSED BY YOU OR YOUR END USERS IN CONNECTION WITH THE SERVICE INCLUDING, WITHOUT LIMITATION, IMPACT TO YOUR COMPUTER SYSTEM OR LOSS OF DATA; OR (3) ANY EFFECTS ON YOUR BUSINESS THAT MAY RESULT FROM SUCH USE. BOUNDLESS PARTIES MAKE NO WARRANTIES TO ANY THIRD PARTY. BOUNDLESS O NOT REPRESENT OR WARRANT THAT THE SERVICE IS OR WILL BE APPROPRIATE OR AVAILABLE FOR USE IN ANY PARTICULAR GEOGRAPHIC AREA, JURISDICTION OR LANGUAGE. THIS SECTION WILL BE ENFORCEABLE TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. NO INFORMATION OR ADVICE (WHETHER WRITTEN, ORAL OR OTHERWISE) PROVIDED BY BOUNDLESS PARTIES OR THEIR REPRESENTATIVES WILL CREATE ANY WARRANTY OR IN ANY WAY AFFECT THE DISCLAIMERS OF WARRANTIES OR LIMITATIONS OF LIABILITY EXPRESSLY PROVIDED IN THESE TERMS.
13.2 Functionality Limitations. THE SERVICES OFFERED BY BOUNDLESS ARE NOT A SUBSTITUTE FOR YOUR OWN JUDGMENT (INCLUDING PROFESSIONAL JUDGMENT) OR INDEPENDENT TESTING, DESIGN, ESTIMATION OR ANALYSIS, AS APPLICABLE. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE SERVICES, THE SERVICES HAVE NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH THEY MAY BE USED AND MAY NOT ACHIEVE THE RESULTS YOU DESIRE. WITHOUT LIMITATION OF SECTION 4 (CONTENT) OR 13 (DISCLAIMERS), BOUNDLESS PARTIES WILL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR ANY RESULTS OR OUTPUT OBTAINED OR OTHERWISE VIEWED THROUGH THE SERVICES OR ANY MATERIALS DEVELOPED BY YOU IN CONNECTION WITH THE SERVICES. YOU ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT AND CONTROL OF USE OF THE SERVICES AND YOUR APPLICATIONS. THIS RESPONSIBILITY INCLUDES THE DETERMINATION OF APPROPRIATE USES FOR THE SERVICES AND THE SELECTION OF THE SERVICES AND OTHER PROGRAMS TO ACHIEVE YOUR INTENDED RESULTS. YOU ARE ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY, ACCURACY AND COMPLETENESS OF SERVICE RESULTS, OUTPUT OR MATERIALS DEVELOPED BY YOU IN CONNECTION WITH THE SERVICES (IF ANY), INCLUDING ALL ITEMS VIEWED OR DESIGNED USING ANY SERVICE. THERE ARE NO SERVICE LEVEL AGREEMENTS MADE IN CONNECTION WITH THE SERVICES.
13.3 Limitations of Liability. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) IN NO EVENT WILL ANY BOUNDLESS PARTY BE LIABLE UNDER THESE TERMS FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGES OF ANY KIND WHATSOEVER (HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE), OR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR OTHER COVER, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, NOR WILL THE BOUNDLESS PARTIES BE LIABLE FOR ANY DAMAGES WHATSOEVER RESULTING FROM A FORCE MAJEURE EVENT OR AN ACT OF A THIRD PARTY OR THROUGH NO FAULT ON ITS BEHALF; AND (B) THE TOTAL CUMULATIVE LIABILITY OF YOU, AND THE TOTAL CUMULATIVE COLLECTIVE LIABILITY OF THE BOUNDLESS PARTIES, FOR ALL COSTS, LOSSES OR DAMAGES FROM ALL CLAIMS, ACTIONS OR SUITS, HOWEVER CAUSED, ARISING FROM OR RELATING TO THESE TERMS OR THE SUBJECT MATTER HEREOF WILL NOT EXCEED THE GREATER OF (i) ALL AMOUNTS PAID OR DUE FROM YOU FOR THE SERVICE GIVING RISE TO THE CLAIM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM (NO MATTER WHEN PAYMENTS WERE ACTUALLY MADE), OR (ii) TEN THOUSAND DOLLARS ($10,000). You agree that you are solely responsible for (and that Boundless has no responsibility to you or to any third party for) any acts and omissions of (including any failure to comply with these Terms by) your Authorized Users or your End Users and for the consequences of any such acts and omissions (including any loss or damage that Boundless may suffer).
13.4 Basis of the Bargain. You and Boundless acknowledge and agree that the warranty disclaimers, limitations of liability, and indemnities in these Terms are a fundamental basis of the bargain between you and Boundless, and are a material part of the consideration received by Boundless for the provision of the Service and rights granted under these Terms, and Boundless would not have entered into these Terms, or provided the Service or rights, in the absence of such warranty disclaimers, limitations of liability and indemnities.
- Confidential Information.
14.1 Confidentiality obligations apply to information disclosed in connection with the Service. You or Boundless (as the “Disclosing Party”) may disclose Confidential Information to the other party (the “Receiving Party”) in connection with the Service. The Receiving Party will not (and will not permit anyone else to) (a) use any Confidential Information of the Disclosing Party except as necessary for performance of the Receiving Party’s obligations and exercise of the Receiving Party’s rights under these Terms or (b) disclose any Confidential Information of the Disclosing Party to anyone other than the Receiving Party’s employees, contractors, service providers and agents who need to know such Confidential Information for such purposes, and who are subject to confidentiality obligations with the Receiving Party containing protections no less stringent than those in these Terms. To safeguard the Confidential Information, the Receiving Party will exercise the same degree of care it employs to prevent the unauthorized use and disclosure of its own confidential information, but in no event less than reasonable care. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted). You agree that Boundless may access and disclose Your Content to comply with any legal obligations or governmental or regulatory body request (including subpoenas or court orders), as part of a legal proceeding involving Boundless Parties or at your request. You will not disclose these Terms to any third party without the prior written consent of Boundless, except pursuant to a valid and enforceable order of a court or government agency.
14.2 Injunctive Relief is available to Boundless. You acknowledge and agree that your breach or threatened breach of this Section 14 may cause Boundless irreparable harm and significant injury, the amount of which may be difficult to estimate and ascertain, thus making inadequate any remedy at law or in damages. Therefore, you agree that Boundless is entitled to injunctive relief from any court of competent jurisdiction to enjoin any threatened or actual breach of these Terms and any other relief that such court deems appropriate, in addition to any other remedy or remedies available at law or in equity.
- Indemnification. You will, at your sole expense and to the fullest extent permitted by Law, indemnify and hold harmless (and, at Boundless’s request, defend) the Boundless Parties against any and all losses, liabilities, expenses (including reasonable attorneys’ fees) suffered or incurred by the Boundless Parties by reason of any Claim arising out of or relating to (a) your Application or Your Content, including any assertion that your Application or Your Content or the use of either or both (i) infringes any copyright, trademark, or other intellectual property of any individual or entity, (ii) misappropriates any individual or entity’s trade secret, (iii) violates the privacy or publicity rights or any individual or entity or fails to comply with the privacy or data protection Laws, (iv) contains any libelous, defamatory, disparaging, pornographic, or obscene materials, (v) infringes or violates any other rights of any individual or entity, or (vi) caused death or bodily injury or damage to the real or tangible property of any third party; (b) any breach of, or failure by you (including your Authorized Users) or your End Users, to comply with these Terms; (c) access to or use of the Service by you (including your Authorized Users), your End Users, or anyone who accesses the Service through you (whether or not such access is authorized by you or by Boundless); or (d) any breach by you of any representations, warranties, covenants, or other provisions in these Terms. Whether or not Boundless asks you to defend a Claim, you will not agree to any settlement without the prior written consent of Boundless. If Boundless asks you to defend a Claim, Boundless will have the right to participate in the defense of the Claim with counsel of its own choosing. Notwithstanding the foregoing, you will have no obligation to indemnify and hold harmless the Boundless Parties against any losses or liabilities suffered or incurred by the Boundless Parties by reason of any determination by a court of competent jurisdiction that (i) the Service as provided by Boundless infringes a copyright or patent or misappropriates a trade secret of any third party or (ii) the name of the Service infringes a trademark of a third party.
- General Legal Terms.
16.1 Governing Law and Jurisdiction. These Terms will be governed by and construed in accordance with the Laws of the State of New York (and, to the extent controlling, the federal Laws of the United States), which will govern without reference to the conflicts-of-laws rules thereof. The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act will not apply to (and are excluded from the Laws governing) these Terms. In addition, you agree that any Claim arising under or relating to these Terms will be brought exclusively in (and the parties will be subject to the exclusive jurisdiction of) the state courts sitting in New York County, New York or the federal courts in the Southern District of New York to resolve any disputes arising under this Agreement and waive any objections to the propriety or convenience of venue in such courts.
16.2 Export control laws apply. You acknowledge and agree that your access to and use of the Service is subject to compliance with the Export Control Laws. You will be solely responsible for complying with the Export Control Laws and monitoring any modifications to them. You represent and warrant that: (a) you are not a citizen of, or located within, a nation or other geographic area that is subject to U.S. trade sanctions or other significant trade restrictions (including Cuba, Iran, Sudan, Syria, North Korea, and the Crimea region); (b) you are not identified on any U.S. government restricted party lists (including the U.S. Treasury Department’s Sectoral Sanctions List, List of Specially Designated Nationals and Other Blocked Persons, the U.S. Department of Commerce’s Denied Party List, Entity List and Unverified List and the U.S. Department of State’s proliferation-related lists); (c) you will not, unless otherwise authorized under the Export Control Laws, use the Service or any Content in any restricted end use, including design, analysis, simulation, estimation, testing, or other activities related to nuclear, chemical/biological weapons, rocket systems or unmanned air vehicles applications, and (d) no part of Your Content is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control Laws. You agree that you will not use the Service to disclose, transfer, download, export or re-export, directly or indirectly, Your Content, third party content or any other content or material to any country, entity or other party which is ineligible to receive such items under the Export Control Laws or under other Laws to which you may be subject.
16.3 What to do about claims of copyright infringement. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to Boundless’s Copyright Agent by email at email@example.com. INQUIRIES FAILING TO FOLLOW THIS PROCEDURE WILL NOT RECEIVE A RESPONSE.
16.4 General. The parties’ relationship to each other under these Terms is strictly that of independent contractors and nothing in these Terms will in any way constitute or be construed as evidence of intent to establish any association, partnership, joint venture or other relationship. Each party will be responsible for covering its costs and expenses in performing its duties and exercising its rights under these Terms, unless expressly provided otherwise in these Terms. If for any reason a court of competent jurisdiction finds any provision of these Terms, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of these Terms and the remainder of these Terms will continue in full force and effect. The section headings used in these Terms are for convenience only and will not be given any substantive effect. When used in these Terms, “include” or “including” will be deemed to mean “include but are not limited to” or “including but not limited to.” Unless the context or construction otherwise requires, all words applied in the plural will be deemed to have been used in the singular, and vice versa. The English language version of these Terms is legally binding in case of any inconsistencies between the English version and any translations. A party may only waive its rights under these Terms by a written document executed by both parties. Any failure to enforce any provision of these Terms will not constitute a waiver thereof or of any other provision hereof. You may not assign or transfer (by operation of law or otherwise) any of your rights or obligations under these Terms without Boundless’s prior written consent. Boundless may freely assign or transfer any of its rights or obligations under these Terms. Any unauthorized assignment or transfer will be null and void. If you access the Service in Canada, you agree to the following: the parties hereto confirm that it is their wish that these Terms, as well as other documents relating hereto, including notices, have been and will be written in the English language only.
16.5 Notices. Notices in connection with these Terms by either party will be in writing and will be sent by electronic mail to contact@Boundless.com, postal service, or a delivery service (such as UPS, FedEx or DHL), except that you may not provide notice to Boundless of an Boundless breach by electronic mail. Notices from you to Boundless will be effective when received by Boundless at Boundless Spatial, Inc., 222 Broadway, 19th Floor, New York, NY 10038, USA, Attention: General Counsel. Notices from Boundless to you may be sent by postal service, a delivery service or email. Notices from Boundless to you will be effective: (a) in the case of notices by email, one (1) day after sending to the email address provided to Boundless; or (b) in the case of notices by mail or delivery service, five (5) days after sending by regular post or delivery service to the address provided to Boundless. You must ensure that your email address is current and that you do not filter out any such messages. You consent to service of process being effected on you by registered mail sent to your last address known by Boundless, if so permitted by applicable Law.
16.6 Electronic Communications. When Boundless sends e-mails to you, Boundless is communicating with you electronically. For contractual purposes, you consent to receive communications electronically from Boundless and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
16.7 Force Majeure. Neither party will be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, strikes, lockouts or other labor disturbances, civil unrest, failure, unavailability or delay of suppliers or licensors, riots, terrorism or terrorist acts, war, failure or interruption of the Internet or third party Internet connection(s) or infrastructure, power failures, acts of civil and military authorities, severe weather, and changes in applicable Law or other circumstances that would make the provision of any Services illegal or economically unfeasible. Such party will give the other party prompt written notice (when possible) of the failure to perform and use its reasonable efforts to limit the resulting delay in its performance.
16.8 Entire Agreement. These Terms (including the Additional Terms) contain the entire agreement between you and Boundless with respect to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Boundless with respect to the Service. These Terms may be amended only as expressly set forth in these Terms (including, with respect to the Additional Terms, as set forth in such Additional Terms).
17.1 “Acceptable Use Policy Documentation” means Boundless’s Acceptable Use Policy Documentation, as currently located at http://boundlessgeo.com/legal, or any successor or supplemental web page of Boundless, as they may be modified from time to time in Boundless’s sole discretion.
17.2 “Additional Terms” has the meaning set forth in Section 2.1.
17.3 “API” means an applications programming interface for a service or software program (e.g., the requirements for accessing or directing the functions of the service or software program), including a software development kit or SDK.
17.4 “API Information” means the API information provided by Boundless to you or other users of the Service that specifies the requirements for interfacing to (e.g., accessing or directing the functions of) the Service or software included in or used to provide the Service.
17.5 “API Sample Code” means code that demonstrates how to use the API and is expressly designated by Boundless as eligible to be used for the purposes of developing an Application.
17.6 “Application” means a software application or website that uses the Service to obtain and display Boundless Content in conjunction with Your Content. To constitute an Application, the software application or website must add significant functionality to the Service and not merely serve as a basis for using the functionality of the Service.
17.7 “Authorized Users” means your individual employees, consultants, contractors, and agents who access and use the Service on your behalf.
17.8 “Boundless” means Boundless Spatial, Inc.
17.9 “Boundless Content” means any Content made available by or for Boundless for use with the Service.
17.10 “Boundless Materials” means the Service, Boundless Content, other Boundless Offerings, Site, Boundless Brand Features, APIs, API Information, Boundless Confidential Information, and any other content, data or materials provided or used in connection with, or generated by, the Service, together with any related intellectual property rights.
17.11 “Boundless Offerings” means the Service and all other products and services of Boundless and its affiliates.
17.12 “Boundless Parties” means Boundless and its affiliates; its and their licensors and other suppliers; and the respective officers, directors, employees and other agents of Boundless and its affiliates and such licensors and other suppliers.
17.13 “Brand Features” means, with respect to Boundless or you, the trade names, trademarks and service marks (including logos), domain names, and other distinctive brand features of Boundless and its affiliates or you, respectively. Boundless Brand Features also includes the distinctive brand features of certain third parties.
17.14 “Claim” means any legal claim, suit or proceeding.
17.15 “Company” has the meaning set forth in the preamble.
17.16 “Confidential Information” means all confidential information disclosed by a Disclosing Party to a Receiving Party, whether orally or in writing, that is designated as confidential. Your Confidential Information will include Your Content; Boundless Confidential Information will include any information, data and materials of Boundless (a) designated by Boundless as confidential or proprietary (whether in writing or otherwise); (b) related to Boundless’s business or operations; or (c) received by you by virtue of your relationship with Boundless, including customer information, product plans, product designs, product costs, product prices, product names, finances, marketing plans, business opportunities, personnel, research, development, customer data, or know-how. Confidential Information in any event includes API Information and API Sample Code. Confidential Information does not include information that: (a) is or becomes generally known to the public without breach of any obligation owned to the Disclosing Party; (b) was known by the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owned to the Disclosing Party; (c) is rightfully received by the Receiving Party from a third party without restriction on use or disclosure; (d) is developed by you independently without use of the Confidential Information; (e) Metrics; or (f) Feedback.
17.17 “Content” means any files, designs, models, data sets, project information, materials, documents, computer programs (including any modules, components, functions and features of a computer program), media, audio, images, videos, names, email addresses, comments, notes, links and other content, data and information.
17.18 “Content Retrieval Period” has the meaning set forth in Section 12.5.
17.19 “Disclosing Party” has the meaning set forth in Section 14.1.
17.20 “End User” means your customers and/or other users who will be using your Application.
17.21 “Effective Date” means the date you first agree to these Terms by selecting the box indicating that you have read and agree to these Terms, or if earlier, the date you first access or use the Service.
17.22 “Export Control Laws” means United States and other applicable countries’ export control and trade sanctions Laws, including the regulations promulgated by the U.S. Department of Commerce and the U.S. Department of the Treasury.
17.23 “Feedback” means any suggestions, proposals, ideas, contributions, or other information provided by you (whether or not or through your Authorized Users) to Boundless regarding the Service, the Boundless Content, or other Boundless Offerings (whether existing, planned or otherwise).
17.24 “Fees” has the meaning set forth in Section 9.1.
17.25 “Forum” means any discussion group, chat area, bulletin board, news group, gallery, wiki/help area or social network or public area of the Service.
17.26 “Keys” has the meaning set forth in Section 3.2.
17.27 “Laws” or “Law” means any declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule, law, or other requirement of or by any governmental authority.
17.28 “Metrics” means information about you and your use of the Service, other Boundless Offerings, or other Boundless Materials (which may include storage space used, features of the Service used, metadata, index and similar information about the content stored, processed or accessed using the Service and similar information. Metrics also includes information about you and your End Users that you provide in connection with your use of the Service (or other Boundless Offerings), including Personal Information (the collection, storage and use of which will be subject to the Privacy Statement).
17.29 “Personal Information” has the meaning set forth in the Privacy Statement.
17.30 “Pricing Schedule” means the then-current “Pricing Schedule” for the Service as currently located at http://connect.boundlessgeo.com, or as otherwise agreed upon between you and Boundless if you have negotiated for special fees to apply to the Services.
17.31 “Privacy Statement” means Boundless’s Privacy Statement, as currently located at http://www.Boundlessgeo.com/privacy-policy, or any successor or supplemental web page of Boundless, as they may be modified from time to time in Boundless’s sole discretion.
17.32 “Receiving Party” has the meaning set forth in Section 14.1.
17.3 3 “Sensitive Personal Information” means social security numbers, credit or debit card numbers, financial account numbers, driver’s license numbers, medical information, health insurance information, sensitive data about personal characteristics such as race, religion, or sexual orientation, or other personal data that may pose a risk of harm to the individual if improperly disclosed.
17.34 “Service” has the meaning set forth in the preamble.
17.35 “Service Term” has the meaning set forth in Section 12.
17.36 “Site” means the Boundless website or portal which provides access to the Service and related information. “Site” also includes any other related website or portal designated by Boundless from time to time.
17.37 “Special Service Terms” as outlined in Exhibit B.
17.38 “Terms” means these Boundless Web Services API Terms of Service.
17.39 “Third Party Materials” means any Content made available to you by any third party through or in connection with a Service or any Site.
17.40 you” and “your” have the meanings set forth in the preamble.
17.41 “Your Content” means any Content that you provide in your Application or to the Service, whether created by you, your End User or other third parties, except that Your Content does not include Boundless Content or other Boundless Materials.
End User Terms
Last Updated: September 7, 2016
If you or your Authorized Users develop an Application, you must comply with the terms and conditions set forth on this Exhibit A.
(a) You will enter into a legally binding agreement with your End Users for your Application that explicitly states that, by accessing or using your Application, your End Users are: (i) agreeing to be bound by the Boundless Acceptable Use Policy Documentation and (ii) solely responsible for any content and data that the End User inputs in connection with the End User’s access to or use of your Application. Your agreement will display to your End Users the link to such Acceptable Use Policy Documentation (currently located at http://boundlessgeo.com/legal), and you will require that each End User expressly agree to such Acceptable Use Policy Documentation.
(b) You will explicitly state in your Application’s agreement with End Users that: (i) to the maximum extent permitted by Law, Boundless provides the Services and Boundless Content “as is” with all faults, and disclaims all warranties and conditions, whether express, implied, statutory or otherwise, including any implied warranties or conditions of merchantability, fitness for a particular purpose, lack of viruses, accuracy or completeness of responses or results, lack of negligence, title, quiet enjoyment, quiet possession, correspondence to description or non-infringement, with regard to the Services and Boundless Content, and Boundless does not warrant that the operation of the Services or Boundless Content will be uninterrupted or error free; (ii) the entire risk as to the quality of or arising out of access to or use of the Services and Boundless Content remains with you, as creator of the Application, and the End User, as user of your Application; and (iii) your End Users retain copyright and any other rights they already hold in their own content and data that they use in relation to your Application, and they are responsible for all content and data (or other material, if any) that they upload, post, email or otherwise transmit in using your Application. Further, your agreement must explicitly state that by submitting, posting or displaying their content and/or data through your Application, your End Users grant Boundless and its affiliates and its and their contractors (including third parties that provide services to or on behalf of Boundless and its affiliates) a perpetual, irrevocable, worldwide, royalty-free and non-exclusive to reproduce, adapt and modify, perform and display (publicly or otherwise), transmit and distribute such content and/or data for the purpose of enabling Boundless and its affiliates to provide you with the Service in accordance with these Terms.
(c) You will protect the privacy rights of your End Users as follows:
Special Service Terms
Last Updated: September 7, 2016
Your access to and use of this Service is governed by these Special Service Terms and the Terms of Service (“Terms of Service”), which Terms of Service incorporate these Special Service Terms by this reference (collectively, “these Terms” herein).
- MEMBERSHIPS AND SUBSCRIPTIONS
- Subscription Plans.
- We offer one or more subscription plan(s) (each, a “Subscription Plan”) for free of charge or for a fee (e.g., “Premium Subscription”). The Subscription Plans and fees, if any, are described on the Service, and may be revised from time to time by us.
- In addition to these Special Service Terms, if you intend to join a paid Subscription Plan you may be subject to additional terms and conditions, which are incorporated herein by this reference (each a “Paid Subscription Plan”).
- Your Subscription Plan access to the Service is conditioned on your agreement and adherence to these Terms and, if applicable, to your fully paid membership and/or other fees (if any). Your Subscription Plan will be for the time period agreed to by you and us, and will automatically renew for indefinite successive renewal terms for the same period of time, unless terminated by you or us in accordance with these Terms. If you have a Subscription Plan, you may terminate such membership at any time for any reason (see “How to Contact Us” below). However, all Paid Subscription Plan fees, when paid, are non-refundable, except as set forth in these Terms.
- We may terminate, modify, revalue, or otherwise change the Site and/or any Subscription Plan features, functionality, element, fees and/or Entitlement in our sole discretion without advance notice or liability. If you are a subscriber of one of our Paid Subscription Plans and we make any such termination, modification, revaluation or other change that materially and adversely diminishes the value of your Subscription Plan in a way you don’t accept, then you can terminate your Paid Subscription Plan and we will provide you with either of the following at our sole discretion and determined as we deem reasonable (and the provision of same will be your sole and exclusive remedy for such changes): (i) a pro rata refund of your previously paid but unused Subscription Plan fee(s); or (ii) an online credit for future redemption of comparable value corresponding to the value of the diminished features.
- You agree to pay for any Paid Subscription Plan on time via your account through a third party payment gateway such as PayPal, payment processor such as Mac App Store, or a payment service provider such as Chargify (each a “Payment Processor”), and you authorize the Payment Processor to charge your credit card, debit card or other designated account in advance of Paid Subscription Plan activation or renewal, for the fee(s) specified by us for your Paid Subscription Plan, regardless of whether or not you actually access or use the Service. Payment terms are subject to the terms of sale and other terms and conditions of the Payment Processor or Boundless as applicable. You agree to pay all costs incurred by us and the Payment Processor with respect to collection of any past due amount, including legal and collection fees and costs.
- Unless otherwise specified by the Payment Processor, all fees are quoted and payable in United States Dollars. You are also responsible for paying all taxes applicable to your Paid Subscription Plan.
- You can only dispute any charge within ninety (90) days after such charge is made to your account. Otherwise, except as required by applicable law, any and all such complaints are waived by you.
- OWNERSHIP RIGHTS
- Your Content. As between you and us, you are the owner of Your Content. “Your Content” expressly excludes all of Our Materials (defined below).
- Our Materials. Expressly excluding Your Content and any Third Party Materials, any and all materials issued and authorized by us and used in connection with the Service including, but not limited to, Content listed as “Licensed Under Boundless Free Content License,” models, textures, images, image files, photos, motion files, collections, packages, materials, scripts, shapes, custom UI skins, tutorials, frequently asked questions, words, music, films, images and software (collectively, “Our Materials”) is the copyrighted work or other intellectual property of Boundless, its subsidiaries, affiliates, licensors and/or suppliers. Nothing in these Terms should be construed to give you or anyone else any right, title or interest in any of Our Materials and, except as expressly set forth herein, any and all rights and licenses not expressly granted to you by these Terms are hereby expressly reserved by us. You and we do not intend to merge any of Our Materials and Your Content into inseparable or interdependent parts of a unitary whole, and no joint works are to be created or shall be deemed to have been created hereunder.
III. HOW YOU CAN CONTACT US
If have any questions regarding the Service or you want to contact us, please direct your communications as follows:
- MEMBERSHIP, ACCOUNT, ORDER, CUSTOMER SERVICE: For questions or issues about your account, order or membership, please contact us by e-mail at firstname.lastname@example.org
- COPYRIGHT INFRINGEMENT: For claims of copyright infringement, please contact email@example.com in accordance with Section 16.3 of the Terms of Service.
- TECHNICAL QUESTIONS AND ALL OTHER INQUIRIES: For technical questions and all other inquiries, please visit firstname.lastname@example.org
End User License Agreement
The accompanying executable code version of OpenGeo Suite and related documentation (the “Product“) is made available to you under the terms of the OpenGeo Suite End-User Software License Agreement (the “Agreement”).
IMPORTANT — READ CAREFULLY BEFORE INSTALLING OR USING THIS PRODUCT (DEFINED BELOW): THIS IS A LEGAL AGREEMENT BETWEEN YOU AND BOUNDLESS SPATIAL, INC (“BOUNDLESS”) COVERING YOUR USE OF THE PRODUCT THAT YOU HAVE ACQUIRED. YOU ACKNOWLEDGE UPON INSTALLATION OF THIS PRODUCT THAT YOU HAVE REVIEWED AND AGREED TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS DOCUMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE PRODUCT. IF YOU HAVE ALREADY INSTALLED THIS PRODUCT AND DO NOT AGREE TO THESE TERMS AND CONDITIONS, PLEASE UNINSTALL THE PRODUCT AND IMMEDIATELY DISCONTINUE ITS USE. YOU AGREE THAT YOUR USE OF THE PRODUCT ACKNOWLEDGES THAT YOU HAVE READ THIS LICENSE, UNDERSTAND IT, AND AGREE TO COMPLY WITH ITS TERMS AND CONDITIONS.
DURING THE OPENGEO SUITE INSTALLATION PROCESS, AND AT LATER TIMES, YOU MAY BE GIVEN THE OPTION OF INSTALLING ADDITIONAL COMPONENTS FROM BOUNDLESS OR THIRD-PARTY SOFTWARE PROVIDERS. THE INSTALLATION AND USE OF THOSE COMPONENTS MAY BE GOVERNED BY ADDITIONAL LICENSE AGREEMENTS.
A SOURCE CODE VERSION OF OPENGEO SUITE THAT YOU MAY USE, MODIFY AND DISTRIBUTE IS AVAILABLE TO YOU FREE-OF-CHARGE AT BOUNDLESSGEO.COM UNDER CERTAIN OPEN SOURCE SOFTWARE LICENSES.
- License Grant. Subject to Section 3, Boundless Spatial, Inc. (“Boundless”) grants you a limited, non-exclusive, nontransferable, nonsublicensable, revocable, license to Use the executable code version of OpenGeo Suite (the “Product”). For purposes of this Agreement, “Use” shall mean accessing, installing, downloading, copying or otherwise benefiting from the functionality of the Product and any documentation. This Agreement will also govern any software upgrades provided by Boundless that replace and/or supplement the original Product, unless such upgrades are accompanied by a separate license, in which case the terms of that license will govern.
- Termination. If you breach this Agreement your right to Use the Product will terminate immediately and without notice, but all provisions of this Agreement except for the License Grant set forth in Paragraph 1 above will survive termination and continue in effect. Upon termination, you must destroy all copies of the Product, except as otherwise permitted under Section 3
- Proprietary Rights.
(a) OpenGeo Suite (consisting of Composer, GeoServer, GeoWebCache, PostGIS, QGIS Plugin, and OpenLayers software) is available in source code form under the terms of various open source licenses (collectively, the “Open Source Licenses“) at http://www.boundlessgeo.com/legal. Nothing in this Agreement will be construed to limit any rights granted under the Open Source Licenses and the terms of those Open Source Licenses take precedence over any conflicting terms herein with respect to OpenGeo Suite.
(b) OpenGeo Suite may contain additional software from Boundless or third parties. Use of OpenGeo Suite is subject to those license agreements. Copies of those license agreements can be found at http://www.boundlessgeo.com/legal. By installing and using OpenGeo Suite, you agree to be bound by the terms of those license agreements.
(c) Subject to the foregoing, Boundless, for itself and on behalf of any third party licensors, hereby reserves all intellectual property rights in the Product, except for the rights expressly granted in this Agreement.
(d) You may not remove or alter any trademark, logo, copyright or other proprietary notice in or on the Product. This license does not grant you any right to use the trademarks, service marks or logos of Boundless or any third party licensors.
- DISCLAIMER OF WARRANTY. YOU UNDERSTAND AND AGREE THAT BOUNDLESS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PRODUCT, WHICH IS PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BOUNDLESS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY, COMPLETENESS, SECURITY, COMPATABILITY, RELIABILITY, OR OTHERWISE, WITH RESPECT TO THE PRODUCT AND ANY SOFTWARE TO WHICH IT IS LINKED, AND THE USE OR THE RESULTS OF THE USE OF ANY CONTENT OBTAINED THROUGH THE PRODUCT. BOUNDLESS DOES NOT WARRANT THAT THE PRODUCT OR ANY CONTENT WILL BE ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PRODUCT IS FREE OF VIRUSES, WORMS OR OTHER POTENTIALLY DAMAGING COMPUTER PROGRAMS OR FILES. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO YOUR USE OF THE PRODUCT IS ASSUMED SOLELY BY YOU. MOREOVER, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
- LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BOUNDLESS OR ITS DISTRIBUTORS, DIRECTORS, LICENSORS, CONTRIBUTORS AND AGENTS (COLLECTIVELY, THE “BOUNDLESS PARTIES”) BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, OR LOST PROFITS, COST OF COVER, LOSS OF DATA, DISCLOSURE OF DATA, INTERRUPTION OF BUSINESS, RESULTING FROM THIS AGREEMENT, THE PRODUCT, ACTIONS REGARDING YOUR CONTENT, OR ACTIONS REGARDING THIRD PARTIES, REGARDLESS OF THE THEORY OF LIABILITY, INCLUDING EXPRESS CONTRACT, IMPLIED CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR MISREPRESENTATION, AND WHETHER OR NOT BOUNDLESS OR AN BOUNDLESS PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BOUNDLESS’S AND THE BOUNDLESS PARTIES’ TOTAL LIABILITY TO YOU WILL BE LIMITED TO THE AMOUNTS YOU HAVE PAID BOUNDLESS FOR THE PRODUCT.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, THE LIABILITY OF BOUNDLESS AND THE BOUNDLESS PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
- Indemnification. You agree to defend, indemnify, and hold harmless Boundless and the Boundless Parties from and against any and all claims, damages, losses, liabilities, expenses, and costs (including reasonable attorneys’ fees and court costs), relating to or resulting from any violation of this Agreement by You. You agree to use your best efforts to cooperate with Boundless and/or the Boundless Parties in connection with any such claim. Notwithstanding the foregoing, Boundless and the Boundless Parties reserve the right, at their own expense, to employ separate counsel and/or assume the exclusive defense and control of any matter otherwise subject to indemnification by You.
- Export Controls. This Agreement is subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the Product and its use.
- U.S. Government End-Users. The Product is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 and 48 C.F.R. 227.7202. Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b)(2) and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Product with only those rights as set forth herein.
- Open Source Undertaking. Notwithstanding Section 6, if a third party makes a claim against You that Your use of the Product as provided in this Agreement infringes its intellectual property rights, Boundless, at its sole cost and expense, will defend You against the claim and indemnify you from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by Boundless up to the amounts you have paid Boundless for the Product, if you (i) notify Boundless promptly in writing, not later than 30 days after you receive notice of the claim (or sooner if required by applicable law); (ii) give Boundless sole control of the defense and any settlement negotiations; and (iii) give Boundless the information, authority, and assistance it needs to defend against or settle the claim.
If Boundless believes or it is determined that the Product may have violated a third party’s intellectual property rights, Boundless may choose to either modify the Product to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Boundless may end the license for, and require return of, the Product and refund any fees you may have paid for it.
Boundless will not indemnify you if you alter the Product or use it outside the scope of use identified in the Product’s user documentation or if you use a version of the Product which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Product. Boundless will not indemnify you to the extent that an infringement claim is based upon any material not furnished by Boundless. Boundless will not indemnify you to the extent that an infringement claim is based upon the combination of the Product with any products or services not provided by Boundless. Boundless will not indemnify you for infringement caused by your actions against any third party if the Product as delivered to you and used in accordance with the terms of this Agreement would not otherwise infringe any third party intellectual property rights. This section provides your exclusive remedy for any infringement claims or damages.
(a) This Agreement constitutes the entire agreement between Boundless and you concerning the subject matter hereof, and it may only be modified by a written amendment signed by an authorized executive of Boundless.
(b) Except to the extent applicable law, if any, provides otherwise, this Agreement will be governed by the laws of the State of New York, U.S.A., excluding its conflict of law provisions.
(c) Any claim or dispute between You and Boundless that arises in whole or in part from the Product shall be finally resolved through an arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, in which any claimant party must participate in its individual capacity, rather than as a plaintiff or class member in a class or representative proceeding. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The arbitration will be conducted in the English language in New York, New York, in accordance with the United States Arbitration Act, but any party to such an arbitration may elect to participate by telephone. Any action to resolve a dispute arising out of or related to this Agreement must be commenced within one year after the date of the event giving rise to the claim and will be subject to limited discovery. Otherwise, such causes of actions are permanently barred.
(d) This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
(e) If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect.
(f) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
(g) Except as required by law, the controlling language of this Agreement is English.
(h) You may not assign your rights under this Agreement to any party without the express written consent of Boundless; Boundless may assign its rights under this Agreement without condition.
(i) You agree that you shall only use the Product in a manner that complies with all applicable laws in the jurisdictions in which you use the Product.
(j) This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
Boundless Suite Support
This Maintenance Agreement (the “Agreement”) is entered into between Customer, whose name and address is given in the Order Form (“Customer”) and Boundless Spatial Inc. dba Boundless (“Boundless”), a Delaware corporation, having an address at 222 Broadway, 19th Floor, New York, NY 10038.
This Agreement details the support that Boundless will provide to Customer.
- Maintenance Terms
Boundless will provide Customer the following support (the “Support”) for the Boundless Suite Software listed in the Order Form (the “Supported Software”). The licenses governing use of the Software are listed in Section VI.
Boundless will provide Support to Customer through telephone and/or email for Services contained above in “Included Services”.
A.1. Telephone and Email support
Telephone and email support consists of Boundless’s advice, information and instructions given at the request of Customer for the issues listed below:
The following issues are eligible for Telephone or Email Support by Boundless:
- the basic installation, deployment, use, operation, and upgrading of the Supported Software;
- forthcoming new releases of Supported Software;
- the diagnosis of faults in Supported Software and instructions as to the rectification of such faults;
- Bug-fixing as specified in B.4. of this Agreement; and
- Open Source best practice advice, as specified in A.4.
A.2. Authorized Individuals
Customer may designate the number of Authorized Individuals given in the Order Form who may request Support from Boundless. Customer shall provide the names, titles, and contact information for each of the Authorized Individuals as given in the Order Form within two (2) weeks after the execution of this Agreement. Boundless is not obligated to reply to or act on Support Requests submitted by non-authorized individuals.
A.3. Response time for requests for Support
During the Contact Hours given in the Order Form, Boundless shall use its reasonable endeavors to respond to Customer according to the Maximum Response Time defined within the Included Services.
A.4. Open Source Best Practice Advice
Boundless will provide unlimited advice on engagement with open source communities. This includes submission of patches and improvements to the code base, donation of code to relevant open source projects, and strategy for starting new open source projects. Boundless will suggest a best course of action for Customer depending on their priorities and resources, if open source engagement is desired. Customer is also always free to not attempt any community engagement; however this shall in no way limit Boundless’s right to engage with open source communities. Requests for Open Source Best Practice Advice will be addressed with reasonable efforts by Boundless and are not subject to the Service Levels.
- Technical Support Terms
The terms of this Maintenance Agreement shall apply only to Supported Software, 3rd Party software, configurations, and formats as identified under Supported Software and Configurations defined within the Included Services.
B.2. Support for 3rd Party Software and Configurations
Boundless will provide support for interoperability between the Supported Software and the identified 3rd party software and configurations, including Supported Databases, Supported Java Web Containers, Supported Operating Systems, and Raster Formats. Boundless will not provide support for the Customer’s own installation, deployment, use, operation, and upgrading of 3rd party software packages or software not identified as Supported Software.
- If a Supported 3rd Party Software or Configuration identified in the Included Services does not specify a version number (e.g., “Ubuntu 12.04”), then Customer should assume that Boundless will only support versions fully supported under the 3rd party’s commonly published support matrices. Boundless will not support 3rd party software and configurations either no longer supported by their original provider or only supported under Extended Support agreements.
B.3. Production Environments
- Boundless will assist Customer with the back porting of small, stability-focused Bug fixes to support a Customer Production deployment running a version of the Supported Software that is not the latest release from Boundless. This will usually be delivered as a custom build and private repository. This does not include the back porting of new features, which requires an upgrade.
- Boundless will assist Customer with upgrades to new versions of the Supported Software, including assistance with resolving issues via telephone or web-based support. Any bugs encountered during the upgrade are handled according to the Service Levels.
- Boundless will provide advice on hardware, software, and configuration best practices for running the Supported Software in production environments, through web-based and telephone support.
Bugs reported by Customer shall receive priority by Boundless according to the Service Levels and as follows:
- Bug-fixes for Supported Software will not be provided for any releases designated “alpha,” “beta,” or “rc”, or releases in sandboxes.
- Bug-fixes are limited to the Supported Software & Configurations. Requests for Support of other software and configurations may be requested under Professional Services hours.
‘Bug-fixes’ is defined as Remedial or Corrective Maintenance that applies to reproducible errors so Supported Software is brought into substantial conformance with advertised functionality. It does not include ‘Adaptive Maintenance’ or ‘Perfective Maintenance’ with the exception of production support as described below.
To further specify, per the IEEE Standard for Software Engineering-Software Maintenance, ISO/IEC 14764 distinction between Corrective Maintenance, Adaptive Maintenance, and Perfective Maintenance is described as:
- Corrective Maintenance: Reactive modification of a software product performed after delivery to correct discovered problems.
- Adaptive Maintenance: Modification of a software product performed after delivery to keep a software product usable in a changed or changing environment.
iii. Perfective Maintenance: Modification of a software product after delivery to improve performance or maintainability.
B.5. No Support when Boundless not at fault
Support shall not include the diagnosis and rectification of any fault resulting from:
- the improper use operation or neglect of Supported Software or the equipment upon which it is run;
- the modification of Supported Software or its merger (in whole or in part) with any other software except as explicitly and affirmatively communicated in writing by an authorized Boundless representative;
- the failure by the Customer to implement recommendations in respect of, or solutions to, faults previously advised by Boundless;
- any use of Supported Software for a purpose for which it was not designed;
- rectification of lost or corrupted data arising for any reason other than Boundless’s own negligence;
- loss or damage caused directly or indirectly by operator error or omission;
- loss, damage or faults caused directly or indirectly by any alteration, upgrade or new release of any software operating in conjunction or closely with Supported Software; and
- a fault in the equipment or in any other software operating in conjunction with or closely with Supported Software.
B.6. Functionality & Acceptance
Upon completion of any Support, Boundless shall provide a complete copy of any code or software developed as necessary to provide Support to Customer. At Customer’s request, Boundless will demonstrate to Customer the functionality of the Support. Customer shall be responsible for any additional review and testing of the Support. If Customer, in its sole discretion, determines any submitted Support does not perform the functional requirements specified, Customer shall give written notice to Boundless within ten (10) working days after Boundless’s submission of the Support, specifying the deficiencies in reasonable detail.
- Additional Services
- Included Training Sessions
Boundless will provide Customer with Training as described in the Included Services. A training credit means an 3 hour formal training period, exclusive of appropriate breaks. Training-related travel costs are not included but travel credit can be included as described within the Included Services.
Boundless will provide the training session within a reasonable time after execution of this document subject to Boundless availability and a mutually agreed-upon schedule.
- Online GeoServer I Course & Certification Exam Credits
As part of this Agreement Boundless will provide an pre-defined allotment of online GeoServer I course and certification exam credits as quantified in the Included Services, to be used within the Term of this Agreement. Any consumption of the allotted online course and certification exam credits must be done within the timeline of the contract.
- Professional Service Hours
C.1. Services and Statement of Work
As part of this Agreement Boundless will provide an pre-defined allotment of Professional Services hours as quantified in the Included Services, to be used within the Term of this Agreement. Any consumption of the allotted Professional Services hours must be done under a documented work plan to be mutually agreed upon between Boundless and Customer.
All copyrights, patents, trade secrets, or other intellectual property rights associated with any works of authorship, ideas, concepts, techniques, or inventions developed or created by Boundless during the course of performing the Services (collectively, the “Work Product”) shall belong exclusively to Boundless. Boundless automatically retains without any requirement of further consideration, all right, title, or interest Boundless may have in such Work Product, including any copyrights or other intellectual property rights pertaining thereto. Upon request of Boundless the Customer shall take such further actions, including execution and delivery of instruments of conveyance, as may be appropriate to give full and proper effect to such assignment. Notwithstanding the above, any Work Products created using Open Source Software will be made available pursuant to the terms of the applicable Open Source license.
Boundless shall grant Customer a non-exclusive, non-transferable right to use the Work Product for internal use only, subject to the terms of this Agreement.
C.4. Customer Responsibilities
Customer agrees to make available to Boundless, upon reasonable notice, all personnel, computer programs, data and documentation required by Boundless to complete the Services.
C.5. Boundless Responsibilities
Boundless will ensure that its employees and agents will, whenever on Customer’s premises, obey all reasonable safety and security instructions issued by Customer.
C.6. Customer Indemnity
Customer shall indemnify and hold harmless Boundless and related parties, including employees, directors and agents, from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Boundless as a result of any claim, judgment, or adjudication against Boundless related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Customer to the Boundless (the “Customer Content”), (b) a claim that Boundless’ use of the Customer Content infringes the Intellectual Property rights of a third party and (c) any injury incurred by a Boundless employee while on Customer’s premises, provided that such employee has complied with the Customer’s safety and security instructions.
III. Term, Termination, and Assignment
- Term and Termination
This Agreement shall commence on the Start Date as given in the Order Form and shall continue until the End Date as given on the Order Form (“Initial Term”). At the end of the Initial Term this Agreement may be renewed for an additional term of twelve (12) months (“Renewal Term”) by mutual agreement of the parties and for such valuable consideration as agreed to and executed by both parties in a writing called the Renewal Term Agreement, not less than fourteen (14) days prior to the expiration of the Initial Term or subsequent Renewal Terms. During each Renewal Term, all terms and conditions as set forth herein, except as otherwise provided in the Renewal Agreement, shall remain in full force and effect.
If the parties do not agree to a Renewal Agreement, then parties’ obligations to each other as set forth herein cease in their entirety at the end of the Initial Term, or at the end of any Renewal Term. Sections IV, V, VI, and VII survive the end of the Initial Term and any Renewal Term and remain permanently in effect.
Customer may not assign any or all of its rights or obligations under this Agreement without Boundless’s prior written consent. Boundless may assign any or all of its rights or obligations hereunder only following thirty (30) days written notice to Customer.
To begin the Initial Term, Customer will pay Boundless the Price as given in the Order Form for the Support described herein. Customer has the option to purchase Additional Support hours.
Customer shall not reimburse Boundless for any expenses or costs not otherwise outlined above that may be incurred by Boundless unless prior approval is obtained by Boundless from Customer.
All confidential Customer materials and information learned or gathered by Boundless in connection with the Support are confidential. Such confidential materials and information may not be used by Boundless in any way or divulged to any third party without the written permission of Customer, except in the course of fulfilling this Agreement. All employees, subcontractors, consultants, or agents of Boundless are also bound to these confidentiality terms. The parties agree that they each may disclose the terms, conditions, and existence of this Agreement to whomever it determines in good faith has a legitimate need to know this information.
- NO LIABILITY FOR HARDWARE OR SOFTWARE PROBLEMS
Unless included in this Agreement or otherwise agreed between the parties Boundless is NOT liable for problems with the performance of server hardware or software not provided by Boundless and necessary for the hosting of the Supported Software such as Linux, Tomcat, PostgreSQL/PostGIS, Oracle, or other database software.
- NO LIABILITY FOR WEBSERVER HOSTING
Unless included in this Agreement or otherwise agreed between the parties Boundless is NOT liable for problems with the performance of server hardware or software not provided by Boundless and necessary for the hosting of the Supported Software such as Linux, Tomcat, PostgreSQL/PostGIS, Oracle, or other database software.
- DISCLAIMER OF WARRANTIES and LIMITATION OF LIABILITY
DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE SET FORTH HEREIN, THE SOFTWARE, SUPPORT AND SERVICES FURNISHED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS EXPRESS, IMPLIED OR STATUTORY; INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES CREATED BY A COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. BOUNDLESS DOES NOT WARRANT THAT THE SOFTWARE, SUPPORT OR SERVICES WILL MEET CUSTOMER’S NEEDS. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR SOFTWARE, SUPPORT OR THE SERVICES.
- LIMITATION OF LIABILITY. IF CUSTOMER SHOULD BECOME ENTITLED TO CLAIM DAMAGES FROM BOUNDLESS (INCLUDING FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS) BOUNDLESS WILL LIABLE ONLY FOR THE AMOUNT OF CUSTOMER’S ACTUAL DIRECT DAMAGES, NOT TO EXCEED (IN THE AGGREGATE FOR ALL CLAIMS) THE FEES PAID TO BOUNDLESS FOR THE SOFTWARE, SUPPORT OR SERVICES GIVING RISE TO SUCH LIABILITY THAT ARE THE SUBJECT OF THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL BOUNDLESS OR ITS AFFILIATES BE LIABLE FOR ANY OF THE FOLLOWING: LOST PROFITS, LOST REVENUE, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Open Source Assurance
If a third party makes a claim against Customer that Customer’s use of the Software as provided in and pursuant to this Agreement infringes its intellectual property rights, Customer shall notify Boundless promptly in writing, not later than 30 days after Customer receives notice of the claim (or sooner if required by applicable law).
If Boundless believes or it is determined that the Software may have violated a third party’s intellectual property rights, Boundless may choose to either modify the Software to be non-infringing or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Boundless may end the license for, and require return of, the Software and refund any fees Customer may have paid under this Agreement. Boundless’ obligations hereunder shall not apply if Customer alters the Software or uses it outside the scope of this Agreement. Boundless’ obligations hereunder will not apply (i) to the extent that an infringement claim is based upon any material not furnished by Boundless or (ii) to the extent that an infringement claim is based upon the combination of the Software with any products or services not approved by Boundless. This section provides Customer’s exclusive remedy for any infringement claims or damages.
VII. Ownership and copyright
In accepting this Agreement, Customer agrees to abide by the terms of Supported Software End User License Agreement.
Boundless will inform and assist Customer upon request concerning the terms of the user rights and of any other terms and conditions and restrictions with which the customer must comply in using open source code.
Supported Software is a software package that includes other existing open source packages. The following software used in this agreement will make use of existing open source software packages: GeoServer (under GPL v.2), GeoWebCache (under GPL v.2), PostGIS (under GPL v.2), Boundless Suite , including the Styler, GeoEditor, GeoNode (under GPL v.2), GeoGig (under EDL v1.0, and GXP components (under GPL v.2), GeoExt (under BSD License), and OpenLayers (under BSD license). As such, in developing the Support, any minor feature modifications, enhancements to existing features, and Bug patches will be delivered to the open source GeoServer (under GPL v.2), GeoWebCache (under GPL v.2), PostGIS (under GPL v.2), Boundless Suite (under GPL v.2), GeoExt (under BSD license), GeoNode (under GPL v.2), GeoGig (under EDL v1.0), and OpenLayers (under BSD license). Any software that makes use of and/or modifies other existing software shall be governed by the copyright and ownership terms of that software.
For all other Supported Software prepared by and owned by Boundless which may be dependent on GeoServer/GeoWebCache/OpenLayers/PostGIS/GeoExt/Boundless Suite/GeoNode/Geogig or other software, but is independent from existing features, self-contained in its functionality, and not governed by other ownership terms, Boundless shall be deemed the author and/or owner of such work and shall retain all common law, statutory and other reserved rights, including copyright and patent.
Boundless and/or its agents shall be deemed the author and/or owner of all other designs, concepts, graphics, logos, processes, features, ideas, and other creative work, developed by Boundless in the process of fulfilling this Agreement that do not infringe on Customer’s trademarked designs, logos, and look and feel.
This Agreement shall have no effect on any intellectual property rights, equipment, software, documents, materials, or other items owned by Customer before entering this Agreement.
Any intellectual property rights, equipment, software, documents, materials or other items supplied by Customer to Boundless for performance of its duties under this Agreement shall remain the property of Customer and shall not in any case be transferred to Boundless or any third party, and Boundless, promptly at its own expense and upon request by Customer or upon the expiration or termination of this Agreement, shall return the same to Customer.
- Waiver, choice of law, and venue
The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent nonperformance of any such term or condition by the other party. All transactions shall be governed by the laws of the State of New York, excluding conflict of law rules. Venue of any dispute shall be vested solely in New York County in the State of New York in the United States of America.
- No third party benefit
The provisions stated above are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- Force majeure
Either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to: acts of God or of the public enemy; U.S. or foreign governmental actions; strikes; fire; flood; epidemic; terrorism; and freight embargoes, provided that the party uses reasonable efforts to notify the other party of the circumstances causing the delay and resumes performance as soon as possible.
- Merger and integration
This Agreement represents the full and final understanding between Boundless and Customer. This agreement can only be modified in writing.
Where it is not in conflict with Section IV, Boundless reserves the right to use Customer’s name, logo, and general details about the engagement for sales and marketing purposes.
Effective Date: January 1, 2016
Boundless Spatial, Inc. and its affiliates/subsidiaries (“Boundless”) values the privacy of those who visit our websites and register for our software and services online. We think it is important for you to understand when and why we collect personally identifiable information and how we may use it. This Privacy Statement describes Boundless data collection and use policies. Please read the entire Privacy Statement before providing any personally identifiable information to us.
Boundless collects personally identifiable information, such as your name, address, telephone number, or e-mail address, only if you provide this information to us voluntarily. The voluntary information we collect is used to complete transactions; ensure appropriate legal use of licensed Boundless software; provide notification to licensees about updates to Boundless’s and our affiliates’ software, data, and services; and help provide technical and product support to our users. Where appropriate, Boundless may pass this data to a Boundless affiliate or vendor whose software, data, and services are used to meet your needs or process transactions. Our affiliates and vendors are also committed to protecting personally identifiable information as described in their privacy statements/policies.
Boundless may also use your name, address, and e-mail to send you marketing materials, and newsletters unless you notify us that you do not want to receive these materials. Occasionally, Boundless uses the services of bonded mailing houses that are authorized to use your personally identifiable data only for the benefit of Boundless and its affiliates.
Boundless assumes no responsibility for the privacy practices of third parties’ websites and suggests you review the privacy statements/policies on such websites before sharing your personally identifiable data.
Boundless websites and software installation may require registration to gain access to special services, authorization codes, license keys, or other features. This information will be used to provide support and deliver specialized services.
Boundless may also collect personally identifiable information you provide when you order and register software, data, or services; enter contests; order newsletters; register for training or conferences; or make requests that require a direct response to you.
Boundless’s website uses third-party web analytics services that collect and aggregate web surfing data. These services may record your mouse clicks, mouse movements, scrolling activity, and any text you type in the website. The services do not collect personally identifiable information that you do not voluntarily enter in Boundless’s website and do not track your browsing habits across websites that do not use the services.
Web Beacons/Click-Stream Data
A web beacon is an electronic file that signals when a webpage, advertisement, video, other content, an email, or a newsletters has been viewed. Boundless uses web beacons in conjunction with cookies to collect click-stream data that helps us better understand how visitors move from page to page within websites. As with cookies, our web beacons do not gather personally identifiable (PI) information about you.
If you submit personal information, Boundless may contact you or send you marketing information about software or services. If you do not wish to receive this information, you may notify us by sending an e-mail to email@example.com as indicated below. Keep in mind, however, that you may not receive valuable information as a result of your election to be removed from mailing lists.
Other than as described in this Privacy Statement, Boundless will not disclose or authorize others to disclose your personally identifiable information unless required to do so by law or in the good faith belief that such action is necessary to (1) conform to legal requirements or prevent fraud or imminent harm, (2) protect and defend the rights or property of Boundless, or (3) as part of a transfer of assets to a successor in interest.
Except as stated, Boundless does not rent, sell, or otherwise share personally identifiable information.
Boundless will permit you to access information about you in our database by contacting firstname.lastname@example.org. If you believe any of the information is incorrect or needs updating, please advise us. We will correct our records upon verification of the requested change. If you no longer wish to receive e-mail or postal notifications about software, services, or special promotions, please let us know by sending an e-mail to us at email@example.com and specifying that you do not want to receive these notifications. Please provide us with your exact name and address as well as a description of the publication or mail piece you received. We will use reasonable efforts to refrain from including you when sending marketing materials to Boundless clients by noting your election in our database.
Boundless will take reasonable and prudent precautions to ensure that your personally identifiable data is protected against unauthorized access, use, or disclosure.
If you believe for any reason that Boundless has not followed these principles, please contact us at firstname.lastname@example.org and Boundless will act promptly to investigate, correct as appropriate, and advise you of the correction. Please identify the issue as a Privacy Statement concern in your communication to Boundless.
SOCIAL MEDIA, PUBLIC FORUMS AND LINKS TO OTHER WEBSITES
Boundless may provide social media features that enable you to share information with your social networks and interact with Boundless on various social media websites. Your use of these features may result in the collection or sharing of information about you, depending on the feature. We encourage you to review the privacy policies and settings on the social media websites with which you interact to make sure you understand the information that may be collected, used, and shared by those websites.
Our websites may make chat rooms, forums, blogs, message boards, and/or news groups available to its users. Remember that your comments and posts become publicly available, and we urge you to exercise discretion when submitting such content.
Our websites may contain links to other websites. Boundless does not control and is not responsible for the information collected by websites that can be reached through links from our websites. If you have questions about the data collection procedures of linked websites, please contact the organizations that operate those websites directly.
CHILDREN’S ONLINE PRIVACY
Boundless’s products and services are not directed to children and Boundless does not knowingly collect online personal information from children under the age of 13. If you are a parent or guardian of a minor under the age of 13 and believe that he or she has disclosed personal information to us, please contact us via email@example.com or via “Contact Us” at boundlessgeo.com.
DATA TRANSFERS AND SAFE HARBOR FRAMEWORK
Boundless is a global organization, with legal entities, business processes, and technical systems that operate across borders. Boundless may transfer your personal information to other Boundless entities in the United States and elsewhere. The United States and other countries may not have the same data protection laws as the country from which you initially provided the information. By accessing Boundless websites, registering for an account or service, or otherwise providing Boundless with your personal information, you consent to this transfer of your personal information. When transferring your personal information internationally, Boundless will protect your personal information as provided in this Privacy Statement.
If you are located in the European Economic Area (“EEA”) or Switzerland, we comply with applicable legal requirements providing adequate protection for the transfer of personal information to countries outside of the EEA or Switzerland. Boundless has self-certified its adherence to the Safe Harbor privacy framework as set forth by the United States Department of Commerce, the European Commission and Switzerland regarding the collection, storage, use, transfer and other processing of personal information from the EEA or Switzerland to the United States. Click here to review our Safe Harbor Privacy Notice (www.boundlessgeo.com/safe-harbor). You can learn more about the Safe Harbor framework by visiting the United States Department of Commerce Safe Harbor website.
We may change this Privacy Statement from time to time. If and/or when Boundless makes changes to this Privacy Statement, the updated version will be posted on this page. We encourage you to visit this page periodically.
SAFE HARBOR PRIVACY NOTICE
Last Updated: January 1st, 2016
This Safe Harbor Privacy Notice (the “Safe Harbor Notice”) complements Boundless’s (www.boundlessgeo.com/privacy_policy) (the “Privacy Statement”). In case of inconsistency, this Safe Harbor Notice prevails over the Privacy Statement for the processing of personal information covered by the Privacy Statement that is transferred from the European Economic Area (“EEA”) or Switzerland to the United States. Capitalized terms not defined herein are used as defined in the Privacy Statement.
Boundless Spatial, Inc. and its subsidiaries in the United States (“Boundless U.S.”) are committed to respect and protect the personal information Boundless companies collectsthrough the boundlessgeo.com website, and other websites which we operate. Accordingly, Boundless Spatial, Inc. has certified that it abides by the principles set forth by the United States Department of Commerce regarding the collection, storage, use, and transfer of personal information transferred from the EEA or Switzerland to the United States (the “Safe Harbor Principles”).
This Safe Harbor Notice describes how Boundless U.S. implements the Safe Harbor Principles.
SAFE HARBOR PRINCIPLES
Boundless U.S.’s practices regarding the collection, storage, use, and transfer of personal information comply with the Safe Harbor Principles of notice, choice, onward transfer, security, access, data integrity, and enforcement and dispute resolution.
- Notice Boundless U.S.’s Privacy Statement (www.boundlessgeo.com/privacy_policy) describes the types of personal information that Boundless collects, the purposes for which it collects such personal information, the types of third parties to which it discloses such personal information, the rights and choices of individuals, and how to contact Boundless with any inquiries or complaints.
- Choice In the event personal information is (i) to be used for a new purpose incompatible with the purposes for which the personal information was originally collected or subsequently authorized, or (ii) transferred to a third party exercising independent control over the personal information, individuals are given, where practical and appropriate, an opportunity to object to have their personal information so used or transferred.
- Onward Transfer of personal information Boundless U.S. may transfer personal information as described in the Privacy Statement (www.boundlessgeo.com/privacy_policy). Boundless U.S. will only transfer personal information to a service provider exercising independent control over the personal information that: (1) is subject to laws based on the European Union Data Protection Directive 95/46 or Swiss Federal Data Protection Law, (2) subscribes to the Safe Harbor Principles; or (3) contractually agrees to provide at least the same level of protection for personal information as is required by the relevant Safe Harbor Principles.
Except as described in the Privacy Statement, Boundless U.S. will only transfer personal information to a non-service provider exercising independent control over the personal information when individuals have been provided notice and have given their consent, and, where required, that third party has entered into a written agreement with Boundless U.S. Where Boundless U.S. has knowledge that a non-service provider third party is using or sharing personal information in a way that is contrary to these Safe Harbor Principles, Boundless U.S. will take reasonable steps to prevent or stop such processing.
Boundless U.S. may share personal information as required by law or legal process, such as responding to a duly authorized information request of a police or governmental authority, to enforce or protect the rights of Boundless, when such disclosure is necessary or appropriate to prevent physical harm or financial loss as permitted by applicable law, or in connection with an investigation of suspected or actual illegal activity.
Boundless U.S. may also share personal information in the context of a business transaction involving part or all of Boundless, such as a merger, acquisition, consolidation, or divestiture. Such a transaction may involve the disclosure of personal information to prospective or actual purchasers, or the receipt of it from sellers. It is Boundless U.S.’s practice to seek appropriate protection for information in these types of transactions. Following such a business transaction, you may contact the entity to which we transferred your personal information with any inquiries concerning the use of that information.
- Security Boundless U.S. takes reasonable precautions to help protect personal information from loss, misuse and unauthorized access, disclosure, alteration and destruction.
- Access Where appropriate, individuals have reasonable access to their personal information and may request corrections, deletions, or additions, except where the burden or expense of providing access would be disproportionate to the risks to the individual’s privacy or where the rights of persons other than the individual would be violated.
- Data Integrity Boundless takes reasonable steps to limit the collection and usage of personal information to that which is relevant for the intended purposes for which it was collected, and to ensure that such personal information is reliable, accurate, complete and current. An individual may contact Boundless U.S. as indicated below or in the Privacy Statement (www.boundlessgeo.com/privacy_policy) to request that their personal information be updated or corrected.
- Enforcement and Dispute Resolution Boundless U.S. has established procedures to periodically verify implementation of and compliance with the Safe Harbor Principles. Boundless U.S. conducts an annual self-assessment of its practices regarding personal information intended to verify that the assertions Boundless U.S. makes about its practices are true and that such practices have been implemented as represented.
In case of disputes, individuals are able to seek resolution of their questions or complaints regarding collection, storage, use, transfer, and other processing of their personal information in accordance with the Safe Harbor Principles. If an individual feels that Boundless U.S. is not abiding by this Safe Harbor Privacy Notice or is not in compliance with the Safe Harbor Principles, he or she should first contact Boundless U.S. at the contact information provided below. Boundless U.S. has agreed to cooperate with the U.S. and European Data Protection Authorities for the purpose of handling any unresolved complaints regarding personal information.
Amendment This Safe Harbor Notice may be amended consistent with the requirements of the United States Department of Commerce’s Safe Harbor Framework. When we update this Safe Harbor Privacy Notice, we will also revise the “Last Updated” date at the top of this document.
Questions If you have any questions concerning the Safe Harbor Privacy Notice or any of our privacy practices you can contact:
Boundless Spatial, Inc.
Corporate Legal Group
1875 Connecticut Ave NW
Washington, DC 20009