MindSight Studios Inc. (MSSI) End User License Agreement for PlaceMaker
[Last revision: Nov 10, 2020]
By purchasing, downloading, installing, reinstalling or using the PlaceMaker Extension or Add-in, including any updates (the “Software”), you agree to the terms and conditions of this End User License Agreement (“EULA”). By agreeing to this EULA, you represent that you are capable of entering into a legally binding agreement. If you are a business entity, you also represent that you are duly authorized to do business in the country or countries where you operate and that your employees, officers, representatives, and other agents accessing the Software are duly authorized to access the Software and to legally bind you to this EULA. In this EULA, “Services” means any related PlaceMaker products, software, services and web sites.
1. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a) THE QUALITY OF THE IMPORTED THIRD-PARTY CONTENT MAY BE PREVIEWED FREE OF CHARGE BY VISITING THE WEBSITE OF THE THIRD-PARTY DATA SUPPLIER OR BY EXAMINING THE DATA PREVIEW WITHIN THE SOFTWARE IF APPLICABLE. MSSI MAKES NO WARRANTY THAT THE QUALITY OR ACCURACY OF THE IMPORTED DATA WILL MEET YOUR REQUIREMENTS.
b) YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MSSI EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
c) MSSI MAKES NO WARRANTY (i) THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (ii) THAT THE SOFTWARE WILL BE ERROR-FREE OR BUG-FREE, (iii) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SOFTWARE, (iv) THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, (v) REGARDING THE RESULTS OR OUTPUT OF THE SOFTWARE, OR (vi) THAT THE SOFTWARE WILL INTERACT WITH SOFTWARE PRODUCTS OTHER THAN THOSE (IF ANY) SPECIFIED IN THE SYSTEM REQUIREMENTS ACCOMPANYING THE SOFTWARE.
d) ANY CONTENT OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED OR ACCESSED THROUGH THE USE OF THE SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY USE OF SUCH CONTENT OR MATERIAL AND ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD, ACCESS OR USE OF ANY SUCH CONTENT OR MATERIAL. MSSI AND ITS SUPPLIERS DO NOT WARRANT THAT ANY CONTENT WILL BE ACCURATE OR COMPLETE OR MEET YOUR REQUIREMENTS
e) NONE OF THE SOFTWARE IS INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER SUCH ACTIVITIES IN WHICH CASE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
f) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MSSI OR ANY THIRD PARTY OR THROUGH THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS EULA.
2. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MSSI SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MSSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SOFTWARE OR ACCESS THIRD PARTY CONTENT; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (iv) ANY OTHER MATTER RELATING TO THE SOFTWARE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER DAMAGES ARISE FROM BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION. TO THE EXTENT THAT APPLICABLE LAW DOES NOT PROHIBIT SUCH EXCLUSIONS AND LIMITATIONS, IN NO EVENT WILL MSSI's TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT YOU PAID MSSI FOR THE SOFTWARE AND / OR DATA CREDITS.
3. USE OF THE PRODUCTS; CONTENT IN THE PRODUCTS
Subject to the terms and conditions of this EULA, MindSight Studios Inc. and/or its affiliates (“MSSI”) gives you a limited, worldwide, non-transferable, non-assignable and non-exclusive license to download, install, reinstall and use the executable version of the Software for your internal use only.
3.1.1 Restrictions (Commercial License)
You may not, and you may not permit anyone else to:
(a) Use the Software on more computers or devices at a time than the number of licenses purchased, or use or host the Software in a virtual server environment. An additional license must be purchased for each computer or device that may use the software simultaneously. Installation and use of the Software on both personal desktop and personal laptop computers are permitted under a single license as long as they are not used simultaneously.
(b) copy, modify, adapt, translate, create a derivative work of the Software or use it for any public display or performance, except as expressly authorized in this EULA;
(c) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the Software, unless this is expressly permitted or required by law (and then only with reasonable advance notice to MSSI), or unless you have been specifically told that you may do so by MSSI, in writing;
(d) assign (or grant a sublicense of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software;
(e) use the Software in any manner that could damage, disable, overburden, or impair the Services (e.g., you may not use the Software in an automated manner), nor may you use Software in any manner that could interfere with any other party's use and enjoyment of the Services;
(f) distribute, sell, sublicense, rent, lease, or use the Software (or any portion thereof) for time sharing, hosting, service provider, or like purposes;
(g) remove, obscure or alter any product identification, proprietary, copyright, trademark or other notices contained in the Software or accessed in conjunction with or through the Software; or
(h) take any action to circumvent or defeat the security or content usage rules provided (including the data credits enforcement per section 3.2.b), deployed or enforced by any functionality (including without limitation digital rights management functionality) contained in the Software.
i) take any action to circumvent the License restrictions or modify the Subscription Period duration.
The remaining subscription period will be identified by the Software's License Information feature (accessible from the Software's menu). You acknowledge and agree that the subscription period begins when the subscription license is ordered and processed by the MSSI license server and not when the license is activated by the user. Therefore, it is technically possible for the license to expire without ever being used.
You also acknowledge and agree that discrepancies between the timezone of the license server and the timezone of the user may result in a subscription period that is shorter or longer than the advertised period by up to 24 hours.
3.2. MindSight Studios Inc. and Third Party Content
The Software may allow you to access and view certain content owned by MSSI or its licensors (“Content”). By using the Software, you do not receive any ownership rights, and MSSI and/or its licensors retain all ownership rights, in such content. You may not use, access or allow others to use or access such content in any manner not permitted under this EULA or the EULA that applies to the third party content, unless you have been specifically permitted to do so by MSSI or by the owner of the content in a separate agreement.
The Software imports data from various third parties such as OpenStreetMap (OSM) and other third parties and is ONLY intended to be an intermediary application importing current and existing third-party data sets and imagery.
a) MSSI is not responsible or liable for the quality, quantity and availability of content and data imported and available through third parties and imported by the Software. The data available at the time of import is the data provided by the third party. Access to third party data may be temporarily disabled, replaced with another third-party content provider, or completely discontinued without notice by either the third party or MSSI. MSSI is not responsible or liable for maintaining access to third party data.
b) MSSI enforces a virtual currency credit system to limit the data that can be downloaded by users of the Software through the import services. The number of credits required to import the various third-party data is subject to change without notice. Credits are non-transferable, non-refundable, and may only be redeemed for PlaceMaker third party data. You agree that MSSI is not responsible to reimburse customers for the value of unused credits purchased in the event that the Software or Services is no longer available.
c) Google Street View availability: MSSI at any time can suspend access and remove Google Street View tools from the Software without notice. MSSI is not responsible or liable for maintaining access to Google Street View imagery.
d) By viewing, downloading, or importing third party data with PlaceMaker you agree with the third party EULAs and terms of use which are found at: suplacemaker.com/attribution/
4.ARBITRATION
Waiver of Jury Trial; Arbitration. To the extent permitted by law, the parties waive any and all rights to a jury trial with respect to any dispute arising out of or relating to this Agreement. All disputes involving the interpretation, construction, application or alleged breach of this Agreement shall be submitted to final and binding arbitration in Denver, Colorado. The arbitrator shall be selected and the arbitration shall be conducted pursuant to the then most recent Rules of the American Arbitration Association. The decision of the arbitrator shall be final and binding, and any court of competent jurisdiction may enter judgment upon the award. All fees and expenses of the arbitrator shall be paid by the purchaser of the software (Client). The arbitrator shall have jurisdiction and authority to interpret and apply the provisions of this Agreement and relevant federal, state and local laws, rules and regulations insofar as necessary to the determination of the dispute and to remedy any breaches of the Agreement and/or violations of applicable laws, but shall not have jurisdiction or authority to alter in any way the provisions of this Agreement. The arbitrator shall have the authority to award attorneys' fees and costs to the prevailing party but shall not have the authority to award the fees and expenses of the arbitrator to the prevailing party. The parties hereby agree that this arbitration provision shall be in lieu of any requirement that either party exhausts such party's administrative remedies under federal, state, or local law.
5. PRIVACY POLICY
Our privacy policy can be found at: mindsightstudios.com/privacy.
6. PROPRIETARY RIGHTS
The Software is licensed, not sold. You acknowledge and agree that (a) the Software contains proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) MSSI, it’s business partners, and its suppliers own all right, title and interest in and to the Software and any software provided through or in conjunction with the Software, including without limitation all Intellectual Property Rights therein."Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
7. EXPORT RESTRICTIONS
The Software may be subject to export controls or restrictions by the United States or other countries or territories. You agree to (i) comply with the requirements of the U.S. Department of Commerce (DOC) Export Administration Regulations (EAR) (see https://www.bis.doc.gov) and all applicable international, national, state, regional and local laws, and regulations, including without limitation any applicable import and use restrictions, (ii) not export, or re-export, directly or indirectly, the Software to any country outlined in the EAR, nor to any person or entity on the DOC Denied Persons, Entities and Unverified Lists, the U.S. Department of State's Debarred List, or on the U.S. Department of Treasury's lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists, (iii) not export, or re-export the Software to any military entity not approved under the EAR, or to any other entity for any military purpose, and (iv) not license, sell, provide or distribute the Software for use in connection with chemical, biological, or nuclear weapons or missiles capable of delivering such weapons.
8. COMPLIANCE WITH LAWS
You agree to comply with all federal, provincial, state and local laws and regulations regarding the download, installation and/or use of the Software.
9. TERMINATION
You may terminate this EULA at any time by manually deleting the Software from your computer or uninstalling the Software. Your rights automatically and immediately terminate without notice from MSSI if you fail to comply with any provision of this EULA. In such event, you must immediately delete or uninstall the Software.
10. SURVIVAL
The provisions of Sections 5 (Proprietary Rights), 6 (Export Restrictions), 9 (Survival), 10 (Indemnity), 1 (Disclaimer of Warranties), 2 (Limitation of Liability), 11 (Exclusions and Limitations), and 12 (Miscellaneous Provisions) shall survive any termination or expiration of this EULA.
11. INDEMNITY
You agree to hold harmless and indemnify MSSI and its subsidiaries, affiliates, officers, agents, and employees from and against any claim, suit or action arising from or in any way related to your use of the Software or your violation of this EULA, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, MSSI will provide you with written notice of such claim, suit or action.
12. EXCLUSIONS AND LIMITATIONS
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND MSSI's LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13.. MISCELLANEOUS PROVISIONS
13.1 Entire Agreement. This EULA constitutes the entire agreement between you and MSSI relating to the Software and governs your use of the Software, superseding any prior or contemporaneous agreements between you and MSSI regarding the Software. The official language of this EULA is English.
13.2 Choice of Law and Forum. If you obtained this Software in the United States of America, this Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. In such case the jurisdiction and venue for actions related to the subject matter hereof are the State of California and United States federal courts located in Santa Clara County, California, and both parties hereby submit to the personal jurisdiction of such courts.
If you obtained this Software outside the USA, this Agreement is governed by the laws of Canada, excluding its rules governing conflicts of laws and without regard to the United Nations Convention on the International Sale of Goods.
13.3 Waiver and Severability of Terms. The failure of MSSI to exercise or enforce any right or provision of this EULA shall not constitute a waiver of such right or provision. If any provision of this EULA is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this EULA shall remain in full force and effect.
13.4 Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Software or this EULA must be filed within one (1) year after such claim or cause of action arose or be forever barred.