THIS MASTER SUBSCRIPTION AGREEMENT ("AGREEMENT") GOVERNS ANY PURCHASE AND ONGOING USE OF THE SERVICES (INCLUDING PAID AND FREE TRIAL).
ON COMPLETION OF THE FREE TRIAL, YOUR SUBSCRIPTION WILL AUTOMATICALLY CEASE. IN ORDER TO MAINTAIN FULL FUNCTIONALITY, PLEASE CONTACT YOUR ESPATIAL REPRESENTATIVE PRIOR TO THE END OF THE FREE TRIAL TO SET UP A PAID ACCOUNT.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR FOR SERVICES OR SOFTWARE, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THIS AGREEMENT IS ENTERED INTO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE PERSON ACCEPTING REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. UNLESS SUCH AUTHORITY EXISTS AND THESE TERMS AND CONDITIONS ARE AGREED, YOU MUST NOT ACCEPT THIS AGREEMENT AND NEITHER YOU NOR SUCH ENTITY WILL BE PERMITTED TO USE THE SERVICES.
In this Agreement the following expressions shall, unless the context otherwise requires, have the following meanings:
- 1.1.1. "Business Day", any day which is not a Saturday, Sunday or a public/bank holiday in the time zone and territory where eSpatial is located as set out in this Agreement;
- 1.1.2. "Commencement Date", the date so specified on the Order Form or the date when the eSpatial System is first accessed by the Customer, whichever is earlier;
- 1.1.3. "Controller" has the meaning given in Article 4(7) of the GDPR and, for the purposes of this Agreement, shall mean the Customer;
- 1.1.4. "Customer", the company or other legal entity requiring the Services as identified on the Order Form and, where the context permits, shall include Customer Authorized Users; and "Customer Authorized Users", means Customer's own customers as may be agreed in a Schedule to this Agreement or separately in writing by Customer and eSpatial;
- 1.1.5. "Customer Data", any data that Customer or its agent loads or enters into the eSpatial System (including data loaded or entered by eSpatial at the Customer's request) or otherwise processed as part of the Services and all results from processing such data, including compilations and derivative works of such, and including Shared Maps and Public Maps;
- 1.1.6. "Documentation", the documentation relating to the Software and provided to the Customer through the eSpatial System;
- 1.1.7. "EU Data Protection Legislation" means, the EU Data Protection Directive 95/46/EC, and on its coming into force, the General Data Protection Regulation (EU) 2016/679 ("GDPR"), and where the context so requires, equivalent or replacement legislation of any applicable jurisdiction, delegated legislation of other national data protection legislation;
- 1.1.8. "eSpatial", the relevant eSpatial entity identified in the table immediately following Section 23; and "eSpatial System", includes hardware, software, firmware and communications facilities used in the provision of the Services;
- 1.1.9. "Intellectual Property Rights", all intellectual property rights including patents, utility models, inventions, trade marks, trade names, design rights, copyright and related rights, domain names, moral rights and database rights, (whether or not any of these is registered and including any application for registration of any such rights), know-how, confidential information and trade secrets for the full term of such rights and including any extension to or renewal of the terms of such rights and all rights or forms of protection of a similar nature or having similar effect to any of these which may exist anywhere in the world;
- 1.1.10. "Normal Business Hours", the hours between 09.00 – 17.30 on Business Days;
- 1.1.11. "Order Form", the order form for Customer's initial subscription to the Services and any future order forms that may be executed manually by the Parties or submitted electronically through eSpatial's online ordering system and accepted by eSpatial;
- 1.1.12. "Paid Account", a paid subscription to use the Services as eSpatial may make available from time to time as further described in the Documentation;
- 1.1.13. "Personal Data" has the meaning given in Article 4(1) of the GDPR and, for the purposes of this Agreement, shall include any and all Personal Data that is supplied and made available by the Customer to eSpatial under this Agreement and/or which eSpatial processes on behalf of the Customer and shall include the Personal Data described in Schedule 2 of this Agreement;
- 1.1.14. "Public Map", a Map Shared Publicly;
- 1.1.15. "processing" has the meaning given to it in Article 4(2) of the GDPR (the terms "process" and "processed" in this Agreement shall have a corresponding meaning);
- 1.1.16. "Processor" has the meaning given in Article 4(8) of the GDPR and, for the purposes of this Agreement, shall mean eSpatial;
- 1.1.17. "Services", means the online, web-based applications and platform provided by eSpatial via espatial.com and/or other designated websites that are part of the eSpatial System as described in the Documentation, that are ordered by the Customer as part of a free trial, or a Paid Account under an Order Form, including associated offline components;
- 1.1.18. "Shared Maps", means maps created by the Customer using the Software and shared "publicly" or "within team" by the Customer through "sharing" functionality within the eSpatial System;
- 1.1.19. "Software", the software and Documentation specified in the Order Form and accessed at espatial.com, or such other URL as eSpatial may specify;
- 1.1.20. "Subscription Fee", the annual fee payable in advance by the Customer to eSpatial for a Paid Account as set out on an applicable Order Form as may be adjusted from time to time in accordance with this Agreement; and "Subscription Period", the period during which Customer may use particular features of the Services;
- 1.1.21. "Support Service", the support service for Paid Accounts described in Section 5.3 and Schedule 1 (Service Level Agreement);
- 1.1.22. "System Management Regulations", regulations introduced by eSpatial from time to time for the better management of the Services and which may include regulations to ensure that: (a) the network through which the Services are provided is not overloaded and that the security and integrity of the network is maintained and regulations which arise from the need to comply with regulations of any data centre facility engaged by eSpatial in connection with the Services; and (b) regulations to ensure that any database or other applications which form part of the Services are used to the best effect and within their capacities;
- 1.1.23. "System Suppliers", all persons other than eSpatial who own Intellectual Property Rights in the Software or who have license rights in the Software or any part or parts of it and which license rights are superior to the rights of eSpatial;
- 1.1.24. "Third Party Terms", the terms, conditions and legal notices applicable to third party content and services provided as part of the Services including the Microsoft Azure Maps Terms of Service and the SSI Software and Data End User License Agreement.
- 1.1.25. "User", Customer personnel and, where applicable, Customer Authorized Users who are authorized to use the Service under a Schedule to this Agreement or authorized separately in writing by eSpatial; and "User ID", a unique login identification and/or password issued to a User under this Agreement.
In this Agreement (except where the context otherwise requires): (a) any reference to "persons" includes individuals, firms, partnerships, companies, corporations, associations, organisations, foundations and trusts (in each case whether or not having separate legal personality); (b) any reference to a "Party" shall mean eSpatial or the Customer as the case may be and any such reference to "Parties" shall (as the case may be and the context so requires) mean both of them; (c) any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; (d) the Schedules form part of the Agreement and shall have effect as if set out in full in the body of this Agreement. Any references to this Agreement include the Schedules; (e) any reference to time shall be local time at the location of eSpatial as set out in this Agreement and (f) any reference to a law, statute or statutory provision is a reference to it as amended, extended, re-enacted or superseded from time to time and shall include all subordinate legislation made from time to time under that law, statute or statutory provision.
2. The software
2.1. The Software
The Software for which the Customer subscribes is ‘eSpatial' which will be licensed or sub-licensed to the Customer by eSpatial in accordance with the terms of this Agreement.
2.2. Subscribing to the Services
Customer will subscribe to the Services under one or more Order Forms specifying the Services and the terms and conditions applicable to the Customer's subscription to the Services. Order Forms shall be executed manually by the Parties or submitted electronically through eSpatial's online ordering system. In the event of any conflict between this Agreement and an Order Form, the Order Form shall control, except this Agreement shall govern all issues relating to Intellectual Property Rights, warranty, indemnity and liability.
2.3. Free Trial (The use of eSpatial's Free Trial)
- 2.3.1. eSpatial will make Services available to Customer on a trial basis free of charge until the earlier of (a) the seventh day (unless extended by eSpatial) after Customer's acceptance of this Agreement or (b) the Commencement Date of any Services purchased by Customer. Additional trial terms and conditions may appear on the free trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
- 2.3.2. ANY DATA CUSTOMER ENTERS IN THE COURSE OF USING THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER'S FREE TRIAL MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR DOWNLOADS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
- 2.3.3. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN PARTICULAR, SECTION 11 (LIMITATION OF LIABILITY) AND SECTION 12 (WARRANTIES AND DISCLAIMERS), DURING THE 7-DAY FREE TRIAL THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY.
2.4. Services (Paid Accounts)
eSpatial will provide the Services described in the initial Order Form to Customer for the Subscription Period according to the terms of such Order Form and this Agreement. Additional Order Forms may be entered into by the Parties to allow the Customer to subscribe to additional or different features of the Services. Unless designated as replacing a specific subsisting Order Form, a new Order Form will be considered to be in addition to currently existing Order Forms.
3. eSpatial system
The eSpatial System will be continually amended and updated by eSpatial and System Suppliers. The Customer acknowledges and agrees that any part of the eSpatial System including any Software may be amended from time to time during the continuance of this Agreement provided however that where any such changes require eSpatial System downtime or will substantially affect the operability of the Software, eSpatial will endeavour to give the Customer reasonable notice.
4. Permitted use
Subject to the terms and conditions of this Agreement, eSpatial grants to the Customer and, where agreed, Customer Authorized Users, a non-exclusive, non-sublicensable and non-transferable license to access the eSpatial System to use the Software in accordance with the System Management Regulations.
4.2. Accessing User Accounts
In order to gain access to the eSpatial System, eSpatial will issue User IDs needed to access and use the Services. Customer shall ensure that its personnel will only access and use the Services through the appropriate User IDs issued by eSpatial and that Users will not share User IDs with each other or with third parties. Customer Authorized Users may access and use the Services only as agreed in advance in writing by Customer and eSpatial. eSpatial may rely on any User ID, instruction or information that meets the Services' automated criteria or which is believed by eSpatial to be genuine. eSpatial may assume a person entering a User ID and password is, in fact, the User to whom such User ID relates. eSpatial may assume the latest email addresses and registration information on file with the Services are accurate and current. When programmed to do so, the Services may take prescribed actions in the absence of receiving proper and complete contrary instructions.
4.3. Data Preparation & Configuration
Customer shall ensure that: (a) Customer Data is in the proper format as specified in the Documentation; (b) its Personnel are familiar with the use and operation of the Services; and (c) no software or data likely to have an adverse impact on the Services is introduced to the eSpatial System. Customer shall load the Customer Data and configure the Services and its internal processes as needed to operate the Services in Customer's computing environment.
4.4. User Count Subscription
Users may access and use the Services through User IDs up to the maximum number of Users specified on the Order Form. Customer is responsible for all activity occurring under its User IDs. Customer may request eSpatial to add or remove User IDs as reasonably needed to accommodate changes in Customer workforce. Customer is not entitled to a refund for any unused or unassigned User IDs.
4.5. Reservation of Rights
eSpatial expressly reserves all rights in the eSpatial System and Services not expressly granted to Customer in this Agreement. It is acknowledged that all right, title and interest in the eSpatial System and Services will remain with eSpatial (or System Suppliers, if applicable) and that the Services are licensed on a subscription basis and not "sold" to Customer. Customer is responsible for and expressly reserves all rights in the Customer Data, except the limited right of eSpatial to use the Customer Data in operating the Services for the Customer's benefit. Unless specifically agreed in writing, each Party's exclusive ownership rights extend to any update, adaptation, translation, customisation or derivative work thereof.
4.6. User & Technical Documentation
The Customer can access online Documentation describing the operation of the Services under normal circumstances.
4.7. Public Maps
eSpatial shall be permitted to use all Public Maps for marketing and promotional purposes in any media.
5. Standard services
eSpatial shall use commercially reasonable endeavours to ensure that the eSpatial System will (subject to other terms of this Agreement) be available to Customers with a Paid Account as set out in Schedule 1 (Service Level Agreement).
5.2. Security and Confidentiality
- 5.2.1. eSpatial shall use commercially reasonable endeavours to ensure that the Customer Data maintained on the eSpatial System will be kept confidential unless required by law or an appropriate authorized authority. eSpatial shall also use commercial reasonable endeavours to ensure that the security of the Customer Data is maintained taking into account: (i) the state of the art; (ii) the costs of implementation; (iii) the nature, scope, context and purposes of the processing; and (iv) the inherent risk of the processing activities in relation to the Customer Data.
- 5.2.2. All servers used by eSpatial for provision of the Services are operated behind firewalls that are intended to provide protection from illegal access (hacking).
- 5.2.3. eSpatial has in place disaster recovery processes that incorporates regular backups of the eSpatial System and will use commercially reasonable endeavours to provide a facility for Customer to download Customer Data for individual account back up or disaster recovery purposes.
- 5.2.4. The Customer acknowledges and accepts that eSpatial is not under an obligation to provide disaster recovery for individual accounts and that this shall be the sole responsibility of Customer.
- 5.3.1. Standard eSpatial System support to Customers with Paid Accounts will be available during Normal Business Hours as described in Schedule 1 (Service Level Agreement).
- 5.3.2. eSpatial shall not be obligated to provide Support Services if: (a) the reported error was caused by changes in Customer adjustable features; (b) the error results from operator error, errors in Customer Data or use of software not supplied by eSpatial or use that is not in accordance with the Documentation; or (c) the Customer has failed to pay any required fee or is otherwise in default of this Agreement. To the extent, if any, that the Software is third party software (including operating systems or third party data or applications), it is acknowledged that eSpatial's performance may be impacted by the level of support provided by such third parties. Support Services do not include preparation of Customer Data, configuration or customisation of Software.
- 5.3.3. The Customer may contract for additional support at an additional charge on terms as shall be agreed in writing between the Parties and noted in the Order Form.
6. Conditions of use
6.1. Use of eSpatial System
The Customer is solely responsible and liable for use of the eSpatial System and Services by its Users including but not limited to proper use of User IDs. The Customer must notify eSpatial immediately if it suspects that there has been any breach of this provision.
6.2. No Shared Access
Shared access (with non-Users) to the Services and eSpatial System is not permitted under this Agreement without eSpatial's prior written consent.
6.3. Permitted Use
The Customer shall use the Services and eSpatial System solely for the purposes of the Customer's principal business as disclosed in full to eSpatial prior to execution of this Agreement and from time to time thereafter in the event of any change or relevant diversification.
6.4. Unauthorized Uses
The Customer shall not otherwise than with the prior written consent of eSpatial use, store, download, sell, reproduce, redistribute or deal with the Software (or attempt to do any of the foregoing) in any manner or for any other purpose than in accordance with this Agreement.
6.5. Unauthorized Materials
The Customer shall not store, distribute or transmit any material through the eSpatial System that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.
6.6. Compliance with Law
The Customer acknowledges that it is aware that use of the eSpatial System and Software, whether by accessing, utilising, storing or otherwise dealing with the same may from time to time be subject to certain statutory or other regulations, conditions and restrictions (including but not limited to data protection, financial services and telecommunications regulations). The Customer undertakes to comply with all such regulations, conditions or restrictions.
6.7. No Redistribution
Other than with the prior written consent of eSpatial, the Customer is expressly prohibited from using or redistributing all or any part of the Software or eSpatial System for the purposes of:
- 6.7.1. Acting, either itself or in conjunction with any other party, as a bureaux service or otherwise prohibited pursuant to Section 7.4.4;
- 6.7.2. Commercial redistribution or reproduction of the same through its own or any third party network, cable or satellite system;
- 6.7.3. Permitting or allowing the Services or eSpatial System to infringe or be infringed or otherwise prejudice the proprietary rights of eSpatial or System Suppliers;
- 6.7.4. Allowing any third party to access the Services or eSpatial System unless expressly so permitted by eSpatial.
The Customer acknowledges that use of the Services requires Users to have proper training in use of the same. The Customer warrants that it shall be solely liable to ensure the same.
6.9. Export Laws
Customer acknowledges that all of the servers that are used by eSpatial to provide the Services are located in the United States. Customer further acknowledges and agrees that it is solely responsible for complying with all United States export laws. Customer agrees that it will not, and will cause its Users not to, upload, install, provide or otherwise use in connection with the Service any Customer Data or other information that would require authorization for export from the United States.
6.10. Data Protection & GDPR
If eSpatial processes any Personal Data on the Customer's behalf when performing its obligations under this Agreement and EU Data Protection Legislation applies to such processing, the parties record their intention that the Customer shall be the Controller and eSpatial shall be a Processor, and the provisions included at Schedule 2 (Data Terms) shall apply.
7. Customer access to eSpatial system
7.1. Customer Equipment
The Customer shall be responsible for arranging internet access in order to be able to use the Services and shall ensure that it conforms to all applicable System Management Regulations.
eSpatial may at any time disconnect or require the Customer to disconnect from accessing and using the eSpatial System or Software if, in the opinion of eSpatial, such is or has been the cause or is likely to be the cause of failures, interruptions, errors or defects in the eSpatial System. In the event that the Customer is so required to disconnect, eSpatial will as soon as possible thereafter, advise the Customer of such changes as must be made to enable the Customer to resume access and use of the eSpatial System and the Software subject (where applicable) to such further charges as eSpatial shall determine.
7.3. No Access to Unlicensed Services
The Customer shall ensure that neither it and its personnel shall not (and shall not attempt to) access or retrieve any part of the eSpatial System that is not part of the Services licensed to the Customer under this Agreement.
7.4. Unauthorized Activities
The Customer and its personnel shall not without eSpatial's express prior written consent, whether for Customer Authorized Users or otherwise:
- 7.4.1. Make or attempt to make any additions, modifications, adjustments or alterations to the Services or eSpatial System;
- 7.4.2. Attempt to rectify or permit any persons other than eSpatial or its agent to rectify any fault or inaccuracy in the Services or eSpatial System;
- 7.4.3. Tamper with the Services or eSpatial System;
- 7.4.4. Link to or communicate in any manner with any third party's time sharing or other system, computer bureau, applications or telecommunication service or any other service, system or information distribution network, whereby the information, material or Services obtained from the eSpatial System can be accessed, used, stored or redistributed.
7.5. Third Party Services
The Customer acknowledges that the Services include the content and services of third parties including without limitation Microsoft Azure Maps and SSI and that the Customer's use of all such third party content and services is subject to the Third Party Terms. By entering into this Agreement and using the Services, the Customer confirms that it understands and accepts all relevant Third Party Terms. If the Customer at any time experiences any difficulty in obtaining a copy of or in linking to or understanding any of the relevant Third Party Terms, the Customer shall contact eSpatial's Help Desk for assistance, the contact details for which are set out in Schedule 1 (Service Level Agreement). The Customer acknowledges that third party content and services may be withdrawn from the Services without notice in the event that eSpatial's arrangements with relevant third parties are terminated.
8. Fees and charges
8.1. Subscription Fees
Unless otherwise expressly stated on an Order Form, Customer will pay a Subscription Fee for a Paid Account annually in advance. Subscription Fees may be varied from time to time by eSpatial giving to the Customer at least 30 days' prior written notice. Such variation shall take effect upon expiry of the notice period unless the Customer elects to terminate this Agreement in accordance with the provisions of Section 15. All Subscription Fees are non-refundable. Should there be a conflict between this Agreement and an Order Form, the terms outlined by the Order Form take precedence.
Unless payment has been arranged by credit card or other means accepted by eSpatial, Subscription Fees are invoiced starting on date(s) specified in the Order Form. Invoices are payable on receipt of the invoice. All prices are stated and payable in the currency specified on the Order Form.
8.3. Late Payment
Customer may not withhold or "set off" any amounts due. In the event of late/non-payment of any of the Subscription Fees or any other fees or charges payable under this Agreement, eSpatial reserves the right (without liability) to bar the Customer access to all or any part of the Software and eSpatial System by whatever means it deems appropriate until such time as payment is received in full. eSpatial reserves the right to reserves the right to assess a late fee of one and one-half percent (1 ½%), or the maximum rate allowed under applicable law, whichever is less, on any amounts not paid when due for each month or portion thereof that such payments remain delinquent.
8.4. Certain Taxes
Prices quoted do not include and Customer shall pay, indemnify and hold eSpatial harmless from all U.S., foreign, state, municipal and other governmental excise, sales/use, customs, gross receipts, value-added, GST, personal property or other tax, excise, fee or duty or other charge now in force or enacted in the future (including interest and penalties imposed thereon) on the transaction contemplated in this Agreement, other than taxes based on the net income or profits of eSpatial.
9. Intellectual property rights
9.1. eSpatial Intellectual Property Rights
The Customer acknowledges that any and all of the Intellectual Property Rights subsisting in or used in connection with the Software and the eSpatial System including the manner in which it is comprised, compiled, presented or appears ("look and feel") and all information, documentation and manuals relating to such are (unless another owner is specified in or on those items, such party being referred to in this Section as the "Owner") the property of eSpatial or the Owner.
9.2. Customer Intellectual Property Rights
eSpatial acknowledges that any and all Intellectual Property rights in Customer Data are vested in the Customer and eSpatial shall not, without Customer's prior written consent, use such Customer Data for any purpose other than for providing the Services anticipated under this Agreement.
9.3. Use of Trade Marks
The Customer shall not during or after the expiry or termination of this Agreement, without the prior written consent of eSpatial or the Owner as the case may be or to the extent only permitted by applicable law, abuse or permit the abuse of such Intellectual Property Rights.
9.4. Infringement of eSpatial System
The Customer undertakes not to reproduce, adapt, translate, arrange or make available to any third party, either directly or indirectly, any part of the eSpatial System or its contents of which the Software forms a part (including any electronic materials necessary for its operation) except to the extent that and for so long as the Customer is expressly permitted to do so in accordance with this Agreement, or as permitted by any mandatory provisions of law, and undertakes to take all necessary steps to prevent access to the eSpatial System by any person except those of its Users or, if applicable, Customer Authorized Users who have access for the purposes permitted by this Agreement.
9.5. Unauthorized Extraction and Reutilisation
The Customer shall not, other than as expressly permitted in this Agreement, extract or reutilise the contents of the eSpatial System (or any part) for any commercial purpose including but not limited to trading, building commercial hosting systems, reselling or redistributing the Software.
9.6. Remedies of eSpatial
The Customer acknowledges that civil and criminal penalties may be incurred in the event of any infringement of the Intellectual Property Rights in relation to the eSpatial System or Software, and that any such infringement by the Customer may result in incalculable damage and/or loss to eSpatial and/or the Owner, and accordingly agrees that, in addition to any other right or remedy of eSpatial or the Owner, eSpatial or the Owner shall be entitled to immediate injunctive relief to restrain any actual or apprehended infringement. The Customer undertakes to indemnify eSpatial and/or the Owner in full, against all loss, damage, costs and expenses (including loss of profit) that may be incurred by eSpatial and/or the Owner by reason of any such infringement by the Customer.
The term "Confidential Information" shall mean and include information or material that a Party receiving it ("Receiving Party") knows, or reasonably under the circumstances of disclosure should know, the Party disclosing it ("Disclosing Party") considers to be of a confidential or sensitive trade secret nature, including without limitation: (a) information in relation to the eSpatial System or Software; (b) all other forms and types of confidential or non-public financial, business, scientific, technical, economic, marketing, or engineering or system-related information, including patterns, plans, compilations, programs, devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, codes, or know-how, and information concerning the Disclosing Party's other internal business practices and/or actual or potential customers, whether any of the foregoing is in tangible or intangible form, and whether or how stored, compiled or memorialised physically, electronically, graphically, photographically, or in writing; (c) information which derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (d) information identified by the Disclosing Party as confidential. For the avoidance of doubt, Confidential Information does not include Public Maps as per Section 10.2.
To the extent provable by reasonably credible evidence, Confidential Information does not include Public Maps or any information or material: (a) which is or subsequently becomes available to the general public other than through a breach by the Receiving Party; (b) which is already known to the Receiving Party before disclosure by the Disclosing Party; (c) which is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party; or (d) which the Receiving Party rightfully receives from third parties without restriction as to use or disclosure.
Each Party will maintain all Confidential Information of the other Party in strict confidence and will not at any time or for any reason disclose any Confidential Information of the other to any third party without the Disclosing Party's prior written consent. Neither Party will use any Confidential Information of the other for any purpose whatsoever except in performing its duties and exercising its rights under this Agreement. Neither Party will disclose any Confidential Information of the other to any of its agents or employees who do not participate directly in the performance of its duties or exercise of its rights under this Agreement, and each Party will advise its employees who are permitted access to any Confidential Information of the other Party, of the restrictions upon disclosure and use set out in this Agreement. Notwithstanding the foregoing, either Party may disclose the Confidential Information of the other if it believes in good faith that any applicable law, rule, or regulation requires the disclosure, provided that it makes a reasonable effort to give the disclosing Party as much advanced notice as may be practicable or permissible under applicable law.
Upon termination or expiration of this Agreement, each Party shall return or destroy all Confidential Information obtained from the other Party and copies thereof with the exemption of those copies of such Confidential Information that reside on backup systems that either Party is required by law or regulation to maintain. Either Party may use for any purpose without obligation to the other Party Residuals resulting from work with Confidential Information. The term "Residuals" means information in non-tangible form, which may be recalled by persons who have had access to the Confidential Information.
Nothing in this Section shall prohibit or restrict eSpatial's right to provide the same or similar products or services to third parties. The Customer acknowledges and agrees that the restrictions on Confidential Information contained in this Agreement shall not apply to the general knowledge, skills and experience gained by eSpatial or eSpatial employees while engaged by the Customer.
11. Limitation of liability
11.1. Exclusion of Indirect Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL eSPATIAL BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOST PROFITS, LOST BUSINESS, LOST SAVINGS OR LOST DATA ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF eSPATIAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
11.2. Absolute Cap on Liability
THE MAXIMUM, AGGREGATE LIABILITY OF eSPATIAL UPON ANY CLAIMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, HOWSOEVER ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR ANY OF THE PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY eSPATIAL UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE DIRECT DAMAGES ACTUALLY INCURRED BY THE CUSTOMER AND SHALL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER TO eSPATIAL IN THE PRECEDING TWELVE (12) MONTHS UNDER THIS AGREEMENT FOR THE APPLICABLE PRODUCTS AND/OR SERVICES (AND IF NO AMOUNT HAS BEEN PAID OR IS TO BE PAID TO eSPATIAL, THEN THE LIMIT SHALL BE USD$10,000).
11.3. Basis of the Bargain
The Customer acknowledges that eSpatial has set its prices and entered into this Agreement in reliance upon the Limitation of Liability and Warranty Disclaimer set out in this Agreement, and that the same form an essential basis of the bargain between the Parties. The Parties agree that the Limitation of Liability specified in this Agreement will survive and apply even if the Warranty Disclaimer or any limitation of remedies is found to have failed of its essential purpose. Notwithstanding the foregoing, nothing contained in this Agreement shall limit eSpatial's liability for its own wilful misconduct.
12. Warranties and disclaimers
12.1. Limited Performance Warranty
eSpatial undertakes to Customers with a Paid Account to use commercially reasonable endeavours to ensure that the Services are accessible using the eSpatial System except during the downtime specified in Section 5 and that if any material errors occur in the Services or eSpatial System, eSpatial will use its commercially reasonable efforts to address such material error after it is notified by Customer, or otherwise becomes aware of such material error.
12.2. Non-Infringement Warranty
eSpatial represents and warrants to Customers with a Paid Account, to its knowledge, that the Services, when properly used as contemplated in this Agreement, will not, as at the Commencement Date, infringe or misappropriate any Intellectual Property Rights enforceable in the United States. Upon being notified of such a claim, eSpatial shall at its option: (a) defend through litigation or obtain through negotiation the right of Customer to continue using the Services; (b) rework the Services so as to make it non-infringing while preserving the original functionality; or (c) replace the Services with functionally equivalent software. If none of the foregoing alternatives provide an adequate remedy or are commercially practicable (as determined in eSpatial's sole discretion), eSpatial may terminate all or any part of this Agreement and reimburse Customer for any amounts pre-paid by Customer pursuant to this Agreement. Customer represents and warrants that it owns or has all requisite rights to use the Customer Data with the Services, and to authorize eSpatial to process Customer Data as contemplated in this Agreement, and that such use will not infringe or misappropriate any Intellectual Property Rights or other rights of third parties.
12.3. Warranty Disclaimer
THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND BY eSPATIAL. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL PRODUCTS, SERVICES AND OTHER MATERIALS (IF ANY) ARE FURNISHED BY eSPATIAL AND ACCEPTED BY THE CUSTOMER "AS IS". ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY eSPATIAL, INCLUDING WITHOUT LIMITATION ANY IMPLIED OR OTHER WARRANTIES OF OR AGAINST: (1) INTERFERENCE WITH QUIET ENJOYMENT, NON-INFRINGEMENT, WORKMANLIKE EFFORT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, TITLE, COMPATIBILITY, INTEGRATION, NO ENCUMBRANCES, NO LIENS, TITLE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE; (2) THAT ANY PRODUCTS, SERVICES OR OTHER MATERIALS WILL CONFORM TO ANY DEMONSTRATION OR PROMISE BY eSPATIAL; OR (3) THAT MAY ARISE THROUGH ANY COURSE OF DEALING BETWEEN THE PARTIES.
12.4. No Warranty
eSPATIAL DOES NOT WARRANT THAT THE PRODUCTS, SERVICES OR ANY OTHER MATERIALS PROVIDED PURSUANT TO THIS AGREEMENT WILL MEET THE CUSTOMER'S REQUIREMENTS OR THAT THEY OR THEIR ACCESS OR USE WILL BE UNINTERRUPTED, ERROR FREE, OR COMPLETELY SECURE. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 12, THE ENTIRE RISK AS TO THE PRODUCTS, SERVICES AND ANY OTHER MATERIALS PROVIDED BY eSPATIAL PROVIDED IS WITH THE CUSTOMER, INCLUDING FOR QUALITY AND PERFORMANCE AND FOR ACCURACY OR QUALITY OF ANY INFORMATION TRANSMITTED, RECEIVED OR OTHERWISE DELIVERED VIA THE PRODUCTS AND SERVICES.
12.5. Not Fault Tolerant
THE SERVICES ARE NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE. THE CUSTOMER SHALL NOT USE THE SERVICES IN SUCH HAZARDOUS ENVIRONMENTS AND, TO THE EXTENT CUSTOMER DOES USE THE SERVICES IN SUCH ENVIRONMENT, IT EXPRESSLY ASSUMES ALL RISK FOR SUCH.
The Customer undertakes fully and effectively to indemnify and keep indemnified at all times eSpatial against all actions, proceedings, costs, claims, demands, liabilities and expenses whatsoever (including legal and other fees and disbursements) sustained, incurred or paid by eSpatial directly or indirectly in respect of (a) any breach by the Customer of any of the provisions of this Agreement or any Schedule or relevant Order Form or any applicable law or (b) any claim by any third party that the Customer Data infringes or misappropriates any Intellectual Property Rights or other rights of third parties or (c) any breach by the Customer of the Third Party Terms.
During the term of the Agreement, each Party will maintain, at its own expense, policies of insurance in such amounts and on such terms and conditions as it reasonably determines are necessary with regard it its business, provided that the amounts and other terms of such policies must be at least equivalent to policies appropriate for and typically maintained by other companies of comparable size engaged in similar activities including but not limited to professional indemnity and any other risks which may arise under or in connection with this Agreement.
15. Term and termination
This Agreement shall take effect on the Commencement Date and shall continue for an initial period of twelve (12) months and thereafter for consecutive rolling terms of twelve (12) months each until or unless terminated by either Party giving to the other written notice not less than thirty (30) days prior to the expiration of the then current term, in which case, the Agreement will expire at the end of such term, subject always to prior termination as specified in this Agreement. Should there be a conflict between this Agreement and an Order Form, the terms outlined by the Order Form take precedence.
Notwithstanding any other provisions in this Agreement contained, and without prejudice to any other rights such Party serving notice may have, either Party may immediately terminate this Agreement by written notice to the other if any of the following events shall occur:
- 15.2.1. If the other Party commits any breach of the terms or conditions of this Agreement including the terms, conditions and provisions of any Schedule or relevant Order Form and fails to remedy such breach (or in so far as such breach is not capable of remedy to furnish adequate compensation) within thirty (30) days after receiving written notice from the Party requiring it so to do;
- 15.2.2. The Party wishing to terminate reasonably believes that the other Party will be unable to perform its obligations under this Agreement for any reason, including but not limited to, the other Party's bankruptcy, insolvency, or liquidation provided that, the Party wishing to terminate: (a) provides the other Party with notice of its intention to terminate; and (b) does not receive adequate (determined in the discretion of the party seeking to terminate) assurances of the other Party's ability and intention to perform within fifteen (15) calendar days of the issuance of the notice. The right to terminate set out in this Section shall not constitute an exclusive remedy.
The provisions of Sections 1, 4.7 and 6-22 shall survive termination of this Agreement.
16. Force majeure
Neither Party shall be liable to the other in any way whatsoever for failure, interruption, delay or any other matters of the nature whatsoever arising out of acts of war (declared or undeclared), terrorism, rebellion, civil commotion, strikes, lock outs and industrial disputes; fire, explosion, earthquake, acts of God, flood, drought or bad weather; the failure of or interruption to the eSpatial System, the Services or problems associated with transmission or access by/to the eSpatial System; the unavailability of upgrade material, information or services for or to update the eSpatial System or Services; or the requisitioning or other act or order by any government department, council or other constituted body.
All notices to or by the respective Parties shall be in writing in the English language and shall be deemed to have been duly given when delivered by hand, posted by recorded delivery post (postage prepaid), sent by reputable overnight courier or sent by fax or email to the Party to which such notice is required to be given under this Agreement addressed to the Customer as provided on the Order Form; to eSpatial as provided in the table immediately following Section 23; or to such other address, facsimile number or email address as either Party may subsequently notify to the other in writing. In addition, eSpatial may give notices to the Customer by uploading them to the eSpatial System or to any application that the Customer is using as part of the Services.
Notices delivered by hand, sent by facsimile, email, by overnight courier or through the eSpatial System shall be deemed received the first Business Day following such delivery or sending. Notices, which have been posted as above, shall be deemed received on the third Business Day following posting.
The Customer shall not, without the prior written consent of eSpatial, assign, sub-license, delegate or transfer this Agreement or any of its rights under this Agreement to any other person, firm or company. No such assignment shall relieve Customer of its obligations hereunder. eSpatial may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, with or without notice to the Customer.
Failure or neglect by eSpatial to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of eSpatial's rights pursuant to this Agreement nor in any way affect the validity of the whole or any part of this Agreement nor prejudice eSpatial's rights to take subsequent action.
20. Entire agreement and amendments
This Agreement supersedes any arrangements, understandings, promises or agreements made or existing between the Parties prior to the signing of this Agreement that constitutes the entire understanding between the Parties hereto. Except as otherwise provided in this Agreement, no addition, amendment or modification of this Agreement shall be effective unless it is in writing and signed by and on behalf of each Party by a director or such other duly authorized officer as the case may be.
In the event that any or any part of the terms, conditions or provisions contained in this Agreement or any Schedule or Order Form attached or adopted as relative hereto shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
22. Independent contractor status
Each Party and its representatives are independent contractors in relation to the other Party with respect to all matters arising under this Agreement. Nothing in this Agreement shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties.
23. Law and jurisdiction
This Agreement entered into shall be exclusively governed by and construed in accordance with the governing law (determined in accordance with the table immediately following) without respect to its choice of law provisions, and the state and federal courts located in the relevant jurisdiction (determined in accordance with the table immediately following) shall have exclusive jurisdiction over all disputes arising pursuant to this Agreement or in connection with its subject matter. The Parties irrevocably consent to personal jurisdiction of such courts for such purpose and waive any right to allege lack of personal jurisdiction, improper venue or inconvenient forum in any such action brought in any such court.
If the Customer location on the Order Form is in:
The Customer is contracting with:
Notices should be addressed to:
The governing law is:
The courts having exclusive jurisdiction are:
A Country in North, South or Central America or the Caribbean
eSpatial Inc, 2201 Cooperative Way, Suite 600, Herndon, VA, USA – 20171
Chief Executive Officer - email@example.com
Virginia and controlling United States federal law
A Country in Europe, the UK, Asia, the Pacific region, the Middle East or Africa
eSpatial Solutions Ltd. EMEA, Second Floor, Chamber Buildings, North Street, Swords, Co. Dublin, Ireland
Chief Executive Officer - firstname.lastname@example.org
IN WITNESS OF WHICH, for adequate consideration and intending to be legally bound, the Parties have caused this Agreement to be executed by their duly authorized representatives.
Schedule 1: Service level agreement
- "Unavailable" and "Unavailability" means that the Services are not available to be accessed during a continuous ten minute period.
- "Annual Uptime Percentage" is calculated by subtracting from 100% the percentage of 10 minute periods during the Service Year in which the Services were Unavailable. If you have been using the Services for less than 365 days, your Service Year is still the preceding 365 days but any days prior to your use of the Services will be deemed to have had 100% Availability. Annual Uptime Percentage measurements exclude downtime resulting directly or indirectly from any the SLA Exclusions (defined below). Annual Uptime Percentage measurements exclude scheduled downtime for maintenance, upgrade, or other reasons, in respect of which eSpatial will, where reasonably practicable, notify the Customer at least 24 hours before such down-time.
- "Service Year" is the preceding 365 days from the date of an SLA claim.
This Service Level Agreement ("SLA") is a policy governing the use of the Services under the terms of the Master Subscription Agreement between eSpatial ("us", "we", "our") and users of the Services through Paid Accounts only ("you", "your"). This SLA applies separately to each account using the Services. Unless otherwise provided herein, this SLA is subject to the terms of the Master Subscription Agreement and defined terms will have the meaning specified in the Master Subscription Agreement. We reserve the right to change the terms of this SLA in accordance with the Master Subscription Agreement.
2.1.1. Service Commitment
eSpatial will use commercially reasonable efforts to make the Services available with an Annual Uptime Percentage (defined above) of at least 99.9% during the Service Year.
2.1.2. SLA Exclusions
The Service Commitment does not apply to any unavailability, suspension or termination of the Services, or any other the Services performance issues: (i) that result from breach of conditions set out in the Master Subscription Agreement; (ii) caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of the environment on which the Services are hosted; (iii) that result from any actions or inactions of you or any third party; (iv) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control); or (v) arising from our suspension and termination of your right to use the Services in accordance with the Master Subscription Agreement (collectively, the "SLA Exclusions").
2.2. Service Credits
2.2.1. Service Credits
In the event the Services does not meet the Annual Uptime Percentage commitment, you will be eligible to receive a Service Credit as described below.
2.2.2. Definitions For Service Credits
- Any downtime occurring prior to a successful Service Credit claim cannot be used for future claims.
- The "Eligible Credit Period" is a single month, and refers to the monthly billing cycle in which the most recent Unavailable event included in the SLA claim occurred.
- A "Service Credit" is a dollar credit, calculated as set forth below, that we may credit back to an eligible Services account.
2.2.3. Service Commitments and Service Credits
If the Annual Uptime Percentage for a Customer drops below 99.9% for the Service Year, that Customer is eligible to receive a Service Credit equal to 5% of the charges billed to the Customer and paid by the Customer in that Service year (excluding fees for options in addition to the standard per-user fee for the Services) for the Eligible Credit Period.
In calculating Service Credits only charges paid in accordance with all the terms of the Master Subscription Agreement (including payment on time) may be taken into account. In calculating Service Credits only charges paid corresponding to eSpatial's listed prices without discount may be taken into account.
If availability is impacted by factors other than those explicitly listed in this SLA or the Master Subscription Agreement, we may issue a Service Credit considering such factors in our sole discretion.To file a claim, a Customer does not have to wait 365 days from the day they started using the service or 365 days from their last successful claim. A Customer can file a claim any time their Annual Uptime Percentage over the trailing 365 days drops below 99.9%.
We will apply any Service Credits only against future Services payments otherwise due from you; provided that, we may issue the Service Credit to the credit card that you used to pay for the Services for the billing cycle in which the error occurred. Service credits may only be applied against future payments that correspond to eSpatial's listed prices without other discount.
Service Credits shall not entitle you to any refund or other payment from eSpatial.
A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one dollar ($1 USD).
Service Credits may not be transferred or applied to any other account.
Unless otherwise provided in the Master Subscription Agreement, your sole and exclusive remedy for any unavailability or non-performance of the Services or other failure by us to provide the Services is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA or termination of your use of the Services.
2.2.4. Credit Request and Payment Procedures
To receive a Service Credit, you must submit a request by sending an email message to email@example.com. To be eligible, the credit request must: (i) include in the subject of the email message the Customer name in which the account is held; (ii) include, in the body of the email, the dates and times of each incident of Unavailability that you claim to have experienced; and (iii) be received by us within thirty (30) Business Days of the last reported incident in the SLA claim. If the Annual Uptime Percentage of such request is confirmed by us and is less than 99.9% for the Service Year, then we will issue the Service Credit to you within one billing cycle following the month in which the request occurred. Your failure to provide the request and other information as required above will disqualify you from receiving a Service Credit.
2.3 Standard Support Service Levels
Below are set out the Service Levels provided for eSpatial's Standard Support for the Services, in accordance with its Support & Maintenance Policies for the Services (the "Support Policies").eSpatial's support team provides a Help Desk for Software Problem Reports ("SPRs"), accessible during Normal Business Hours. Normal Business Hours are as defined in your Master Subscription Agreement. During this time they can be contacted via a dedicated email address, live chat when available or (for severity 1 and 2 problems) support phone numbers.
The Help Desk staff will:
- Receive email SPRs to firstname.lastname@example.org, live chat, or by telephone to a support phone number provided by eSpatial to the Customer
- Work to reproduce the reported problem from information provided by the Customer
- Work to diagnose the cause of the problem
- Produce a work-around for the problem, and then – if necessary – an update to the Services to resolve the problem
- Provide email and telephone follow-up to the Customer, to assist with resolution of SPRs and inform them of progress
- Turn-around times for responding to and resolving requests for support will be in line with the Service Levels set out below.
Target Response Time
The problem causes complete loss of Service – Work cannot reasonably continue. (A defect that prevents or may prevent a business critical activity of the Customer).
Immediate response on receipt of a report by telephone. (email reports will be treated as severity 2).
Work on resolving the issue will start within 2 Normal Business Hours. eSpatial will aim to provide a workaround as soon as possible (ideally within 6 Normal Business Hours), and then later produce an update to the Services resolving the underlying cause.
The problem causes a severe loss of Service. No acceptable workaround is available; however, operation can continue in a restricted fashion. (A defect that causes or may cause complete loss of live service of a key business area of the Customer).
Initial response to telephone call within 4 Normal Business Hours (8 Normal Business Hours to email).
Work on resolving the issue will start within 4 Normal Business Hours (8 if notified by email). eSpatial will aim to provide a workaround as soon as possible (ideally within 2 Business Days), and then later produce an update to the Services resolving the underlying cause.
The problem causes major loss of Service. The impact is an inconvenience, which may require a workaround to restore functionality. (A defect that has major business impact that can only be tolerated for a period).
Initial response within 2 Business Days.
A resolution to the problem will be provided if feasible in the next scheduled update to the Services (Where the next scheduled update is not more than 10 business days after diagnosis of the problem, the resolution may instead be provided in the following scheduled update).
The problem causes no loss of service. The result is a minor error, incorrect behaviour, or a documentation error that does not impede the operation of a system. (Non-critical informational or cosmetic issue).
Initial response within 5 Business Days.
A resolution to the problem will be provided in a future scheduled update to the Services.
* Target Response Time is defined as the time between receipt of the call and the time that an eSpatial staff member responds to the Customer (generally by email or telephone) about the problem, generally to get additional information or to suggest actions. Due to the wide diversity of problems that can occur, effort to reproduce them, and the methods needed to resolve them, response time IS NOT defined as the time between the receipt of a call and problem resolution.
eSpatial will aim to respond faster than the limits set out above.
There are requirements and responsibilities on the Customer set out in this document and in the Support Policy: The above Service Levels do not apply to requests for support not meeting these conditions. Target times will only apply from the time of receipt of a report meeting these conditions, and not from any earlier communications not meeting these conditions.
- Standard Support is only provided for the Services as defined in the Master Subscription Agreement, and for which all due Subscription Fees have been paid.
- Support Problem Reports must be made by agreed Customer staff designated as support liaisons (one primary and one backup individual per license set).
- Support Problem Reports must be raised through the designated support channels.
- The Support Policies require that certain information be provided for all Support Problem Reports.
- The Customer must provide eSpatial with sufficient information and assistance to reproduce the problem, and if necessary provide access to the Customer's account, or remote demonstration to see the problem occurring and investigate the problem.
- The Customer must propose a severity when reporting a problem. The severity is to be agreed with eSpatial. The Support Policies provide for escalation if the severity is not agreed.
- Support may not be provided if the Customer does not adhere to the Master Subscription Agreement.
- Support is provided for problems caused by incorrect functioning of the Services, and not for issues with causes outside of the Services, such as the Customer's networks, firewalls, proxy servers, hardware, or other software (even if interfaced to the Services).
- Standard Support does not cover requests that are not problem reports, such as questions on or assistance with configuration of, use of, or development with the Services, or relating to Customer Data.
- Charged services can be provided for investigations or other work not covered under the Support Policies.
Schedule 2: Data terms
The terms "Controller," "EU Data Protection Legislation," "Personal Data" and "Processor" shall all have the meaning as defined in the Master Subscription Agreement.
- "Data Subjects" has the meaning given to it in Article 4(1) of the GDPR and, for the purposes of the Master Subscription Agreement, shall include the categories of Data Subjects described in this Schedule 2;.
- "Security, Technical and Organisational Measures", shall mean those measures aimed at protecting Personal Data against accidental or unlawful destruction or accidental or unauthorised loss, alteration, unauthorised disclosure or access, in particular where Processing involves the transmission of data over a network, and against all other unlawful forms of Processing.
- "Supervisory Authority", has the meaning given to it in Article 4(21) of the GDPR.
2. GDPR Terms
As per clause 6.10 of the Master Subscription Agreement, if eSpatial processes any Personal Data on the Customer's behalf when performing its obligations under the Master Subscription Agreement and EU Data Protection Legislation applies to such processing, the parties record their intention that the Customer shall be the Controller and eSpatial shall be a Processor, and the provisions below shall apply:
- 2.1.1.The Customer agrees that it will comply with its obligations as a Controller under the EU Data Protection Legislation and the terms of the Master Subscription Agreement;
- 2.1.2.the Customer, as the Controller, is solely responsible for establishing the lawful basis for the processing of Personal Data by eSpatial under the EU Data Protection Legislation and the terms of the Master Subscription Agreement (and shall inform eSpatial on request of those lawful bases) and will ensure that it has all necessary notices in place to enable lawful transfer of the Personal Data to eSpatial for the purposes of the Master Subscription Agreement;
- 2.1.3.The Customer acknowledges and agrees that the Personal Data may be transferred or stored outside the country where the Customer is located (including, but not limited to, the USA) in order to carry out the Services and eSpatial's other obligations under the Master Subscription Agreement;
- 2.1.4.To the extent that eSpatial processes Personal Data under EU Data Protection Legislation controlled by the Customer and pursuant to the Master Subscription Agreement, eSpatial shall:
- 2.1.5.Process the Personal Data only in accordance with the terms of the Master Subscription Agreement and any lawful instructions reasonably given by the Customer from time to time;
- 2.1.6.Process the Personal Data in compliance with the obligations of Processors under the EU Data Protection Legislation and only on the documented instructions of the Customer (unless eSpatial is required to process the Personal Data under applicable European Union or Irish national law in which case eSpatial shall notify the Customer of that legal requirement before such transfer or access occurs or is permitted, unless that law prohibits such notification on important grounds of public interest);
- 2.1.7.Ensure that all personnel authorized to process the Personal Data have committed themselves to confidentiality obligations in respect of the Personal Data;
- 2.1.8. Implement and maintain Security, Technical and Organizational measures to ensure the security of the Personal Data taking into account: (i) the state of the art; (ii) the costs of implementation; (iii) the nature, scope, context and purposes of the processing; and (iv) the inherent risk of the processing activities to Data Subjects;
- 2.1.9. Comply with the requirements regarding security of processing set out in the EU Data Protection Legislation and Section 188.8.131.52;
- 2.1.10. Refer all Data Subject requests it receives to the Customer (to the extent that such requests relate to Personal Data);
- 2.1.11. Provide such reasonable assistance to the Customer as the Customer reasonably requires (at the Customer's sole expense) to ensure compliance with the Customer's obligations under the EU Data Protection Legislation with respect to:
- the security of processing;
- the carrying out of data protection impact assessments;
- prior consultation with the Supervisory Authority regarding high risk processing; and
- notifications to the Supervisory Authority and/or communications to Data Subjects by the Customer in response to any breach of Personal Data;
- 2.1.12. Notify the Customer without undue delay if any Personal Data are lost, disclosed without authorisation or stolen, are destroyed or become damaged, corrupted or unusable;
- 2.1.13. Upon termination of this Master Subscription Agreement, delete or return Personal Data and copies thereof to Customer [within 30 days from termination of the Master Subscription Agreement] unless required by European Union or Irish national law to retain Personal Data, including obligations to maintain Confidential Information that may reside on back-up systems that eSpatial is required by law or regulation to maintain; and
- 2.1.14. Make available to the Customer such information as is reasonably necessary to demonstrate eSpatial's compliance with the obligations of Processors under the EU Data Protection Legislation, and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for that purpose.
eSpatial shall not engage any sub-contractor ("Sub-Processor") for carrying out any processing in respect of Personal Data without the Customer's general written authorisation (such authorisation not to be unreasonably withheld, conditioned or delayed). A list of all Sub-Processors is included in this Schedule 2 and eSpatial will give the Customer the opportunity to object to any changes concerning the addition or replacement of other Sub-Processors.
Where the engagement of a Sub-Processor is authorised, eSpatial shall engage such a Sub-Processor under a written agreement containing materially the same obligations as set out under the Master Subscription Agreement.
3. Data Processing Details
Details of Data Subjects:
- eSpatial Customers
Types of Personal Data:
- Data Subject Name
- Data Subject Location
- Data Subject Address
- Data Subject e-mail address
- Data Subject phone number
- Data Subject IP address
- Data Subject maps information
- Data Subject event tracking in the eSpatial application
List of Sub-Processors:
- Amazon Web Services – https://aws.amazon.com/
- Azure Maps - https://azure.microsoft.com/en-us/services/azure-maps/
- Google Ads – https://ads.google.com/home/
- Google Analytics – https://www.google.com/analytics/#?modal_active=none
- GraphHopper - https://www.graphhopper.com/
- HubSpot – https://www.hubspot.com/
- Inspectlet – https://www.inspectlet.com/
- Salesforce – https://www.salesforce.com/eu/?ir=1