Master
Agreement (E204CW)
Revised November 1, 2022
IMPORTANT—READ CAREFULLY
Unless
superseded by a signed license agreement between you and Esri, Esri is willing
to provide Esri Offerings and Services to you only if you accept all terms and
conditions contained in this Agreement as the sole and final agreement of the
parties regarding your acquisition of these Esri Offerings and Services. Please
read the terms and conditions carefully. You may not use the Esri Offerings
until you have agreed to the terms and conditions of the Agreement. If you do
not agree to the terms and conditions as stated, click "I do not accept
the Master Agreement" below; you may then request a refund of applicable
fees paid.
This Master
Agreement ("Agreement") is between you ("Customer")
and Environmental Systems Research Institute, Inc. ("Esri"),
a California corporation with a place of business at 380 New York Street,
Redlands, California 92373-8100 USA.
Attachment A contains definitions of capitalized terms
used throughout this Agreement. Each section of this Agreement may include
additional definitions that are used exclusively within that section.
1.0 GENERAL GRANT OF RIGHTS AND
RESTRICTIONS
1.1 Grant of Rights. In consideration of Customer's payment of all applicable fees and in accordance with this Agreement, Esri
a. Provides Services as set forth in this Agreement;
b. Grants to Customer a nonexclusive, nontransferable right and license or subscription to access and use Esri Offerings as set forth in the Specifications and applicable Ordering Documents; and
c. Authorizes Customer to copy and make derivative works of the Documentation for Customer's own internal use in conjunction with Customer's authorized use of Esri Offerings. Customer will include the following copyright attribution notice acknowledging the proprietary rights of Esri and its licensors in any derivative work:
"Portions of this document include intellectual property of Esri and its licensors and are used under license. Copyright © [Customer will insert the actual copyright date(s) from the source materials.] Esri and its licensors. All rights reserved."
The grants of
rights in this section (i) continue for the duration of the subscription
or applicable Term or perpetually if no Term is applicable or identified in the
Ordering Documents and (ii) are subject to additional rights and
restrictions in this Agreement including Attachment B.
1.2 Consultant or Contractor Access. Customer may authorize its consultants or
contractors to (i) host Esri Offerings for Customer's benefit and
(ii) use Esri Offerings exclusively for Customer's benefit. Customer will
be solely responsible for its consultants' and contractors' compliance with
this Agreement and will ensure that each consultant or contractor discontinues
use of Esri Offerings upon completion of work for Customer. Access to or use of
Esri Offerings by consultants or contractors that is not exclusively for
Customer's benefit is prohibited.
1.3 Reservation of Rights. All Esri Offerings are the copyrighted
works of Esri or its licensors; all rights not specifically granted in this
Agreement are reserved.
1.4 Customer
Content. Esri does not acquire any rights in Customer Content under this
Agreement other than as needed to provide Esri Offerings and Services to
Customer.
2.0 SOFTWARE AND ONLINE SERVICES
2.1 Definitions. The following definitions supplement the definitions provided in Attachment A:
a. "Anonymous Users" means all who have public access (i.e., without having to provide a Named User Credential) to any part of Customer Content or Customer's Value-Added Applications.
b. "App Login Credential(s)" means a system-generated application login and associated password, provided when registering a Value-Added Application with Online Services, which when embedded in a Value-Added Application allows the Value-Added Application to access and use Online Services.
c. "Commercial App Deployment License" means a license to distribute Value-Added Applications to third parties for a fee.
d. "Concurrent Use License" means a license to install and use Software on computer(s) on a network, provided that the number of simultaneous users may not exceed the number of licenses acquired. A Concurrent Use License includes the right to run passive failover instances of Concurrent Use License management software in a separate operating system environment for temporary failover support.
e. "Deployment License" means a license to incorporate ArcGIS Runtime components in Value-Added Applications and distribute Value-Added Applications to Customer's end users.
f. "Deployment Server License" means a license to use Software under a Server License for all uses permitted in this Agreement and as described in the Documentation.
g. "Development Server License" means a license to use Software under a Server License only to build and test Value-Added Applications as described in the Documentation.
h. "Development Use" means the right to install and use Products to build and test Value-Added Applications as described in the Documentation.
i. "Dual Use License" means the right to install Software on a desktop computer and use it simultaneously with either a personal digital assistant (PDA) or handheld mobile device as long as the Software is only used by a single individual at any time.
j. "Failover License" means a license to install Software on redundant systems for failover operations, but the redundantly installed Software may be operational only during the period the primary site is nonoperational. Except for system maintenance and updating of databases, the redundant Software installation(s) will remain dormant while the primary site (or any other redundant site) is operational.
k. "Named User(s)" is Customer's employee, agent, consultant, or contractor to whom Customer has assigned a unique, secure login credential (identity) enabling access to a Product that requires such identity in order to access identity-managed capabilities within a Product for Customer's exclusive benefit. For educational use, Named Users may include registered students.
l. "Named User Credential(s)" means an individual person's login and associated password enabling that person to access and use Products.
m. "Named User License" means the right for a single Named User to use a specific Esri Offering.
n. "Online Services Subscription" means a limited-term subscription conveying the right for one or more Named Users to access and use Online Services.
o. "Redistribution License" means a license to reproduce and distribute Software provided that
1. Customer reproduces and distributes the
Software in its entirety;
2. A license agreement that protects the
Software to the same extent as this Agreement accompanies each copy of the Software,
and the recipient agrees to the terms and conditions of the license agreement;
3. Customer reproduces all copyright and
trademark attributions and notices; and
4. Customer does not charge a fee to others for
the use of the Software.
p. "Server License" means a license to install and use Software on any computer being used as a server. Server Licenses may be subject to a limited number of server cores or distributed deployment on multiple servers as described in the Ordering Documents or Documentation. If the Software description includes failover use rights, each Server License includes a Failover License.
q. "Sharing Tools" means publishing capabilities included with Customer's authorized use of Online Services or ArcGIS Enterprise that allow Customer to make Customer Content and Value-Added Applications available to third parties or Anonymous Users.
s. "Staging Server License" means a license to use Software under a Server License to build and test Value-Added Applications and map caches; conduct user acceptance, performance, and load testing of other third-party software; stage new commercial data updates; and conduct training activities as described in the Documentation. Customer may use Value-Added Applications and map caches with Development and Deployment Server Licenses.
2.3 Software Terms of Use.
a. Customer may
1. Install, access, or store Software and Data
on electronic storage device(s);
2. Make archival copies and routine computer
backups;
3. Install and use a newer version of Software
concurrently with the version to be replaced during a reasonable transition
period not to exceed 6 months, provided that the deployment of either
version does not exceed Customer's licensed quantity; thereafter, Customer will
not use more Software in the aggregate than Customer's total licensed quantity.
This concurrent use right does not apply to Software licensed for Development
Use;
4. Move Software in the licensed configuration
to a replacement computer;
5. Distribute Software and any associated
Authorization Codes required for use of a Deployment License to third parties;
and
b. Customer may customize Software using any macro or scripting language, APIs, or source or object code libraries but only to the extent that such customization is described in the Documentation.
c. Customer may use all fonts provided with Software for any authorized use of the Software. Customer may also use Esri fonts separately to print any output created by the Software. Any use restrictions for third-party fonts included with the Software are set forth in the font file itself.
d. Esri publishes
Product-specific Software terms of use at https://www.esri.com/legal/scope-of-use.
2.4 Online Services Terms of Use.
a. Online Services Descriptions. Esri publishes Online Services Subscription-specific terms of use at https://www.esri.com/legal/scope-of-use. Use of Online Services is also subject to the Cloud Services terms found in Attachment B.
b. Modifications of Online Services. Esri may change Online Services and associated APIs at any time, subject to 30 days' notice of material changes and 90 days' notice for deprecations. If any modification, discontinuation, or deprecation of Online Services causes a material, adverse impact to Customer's operations, Esri may, at its discretion, attempt to repair, correct, or provide a workaround for Online Services. If a viable solution is not commercially reasonable, Customer may cancel its subscription to Online Services, and when applicable, Esri will issue a prorated refund.
c. Sharing
Customer Content. Sharing Customer Content using Sharing Tools enables
third parties to use, store, cache, copy, reproduce, (re)distribute, and
(re)transmit Customer Content through Online Services. Esri is not responsible
for any loss, deletion, modification, or disclosure of Customer Content
resulting from use or misuse of Sharing Tools. Customer's use of Sharing Tools
is at Customer's sole risk.
2.5 Named User Licenses. Except as expressly set forth in this Agreement, the following terms apply to Software and Online Services for which Customer acquires Named User Licenses.
a. Named
Users.
1. Named User login credentials are for
designated users only and may not be shared with other individuals.
2. Customer may reassign a Named User License to
another user if the former user no longer requires access to the Software or
Online Services.
3. Customer may not add third parties as Named
Users, other than third parties included within the definition of Named Users.
b. Anonymous Users. Anonymous Users may only access Software or Online Services through Value-Added Applications that provide access to services or Content, that has been published for shared access through the use of Sharing Tools.
2.6 Value-Added Applications.
1. Customer is responsible for the development,
operation, and technical support of Customer Content and Value-Added
Applications.
2. Customer may not embed a Named User
Credential into Value-Added Applications. Value-Added Applications that enable
access to Customer Content that is not publicly shared through the use of
Sharing Tools must require individual users to log in to the application(s)
with their unique Named User login credentials.
3. Customer may embed an App Login Credential
into Value-Added Applications that provide access by Anonymous Users to
services or Content, that has been published for shared access by Anonymous
Users through the use of Sharing Tools.
4. Customer
may not embed an App Login Credential into Value-Added Applications that
enables access to Customer Content that is not publicly shared through the use
of Sharing Tools. Value-Added Applications that enable access to Customer
Content that is not publicly shared through the use of Sharing Tools must
require individual users to log in to the application(s) with their unique
Named User login credentials.
5. Customer may not provide a third party, other
than third parties included within the definition of Named Users, with access
to Software or Online Services, other than through Customer's Value-Added
Application(s).
6. Customer may transfer Value-Added
Applications to any third party for use in conjunction with the third party's
own Software license or Online Services Subscription.
2.7 Limited-Use Programs.
a. Trial, Evaluation, and Beta Programs. Products acquired under a trial, evaluation, or Beta program are licensed for evaluation and testing purposes only and not for commercial use. Any such use is at Customer's own risk, and the Products do not qualify for Maintenance. If Customer does not convert to a purchased license or subscription prior to the expiration of the trial, evaluation, or Beta license, Customer may lose any Customer Content and customizations made during the license term. If Customer does not wish to purchase a license or subscription, Customer should export such Customer Content before the license expires.
b. Educational Programs. Customer agrees to use Products provided under an educational program solely for educational purposes during the educational use Term. Customer shall not use Products for any Administrative Use unless Customer has acquired an Administrative Use license. "Administrative Use" means administrative activities that are not directly related to instruction or education, such as asset mapping, facilities management, demographic analysis, routing, campus safety, and accessibility analysis. Customer shall not use Products for revenue-generating or for-profit purposes.
c. Grant Programs. Customer may use Products provided under a grant program for noncommercial purposes only. Except for cost recovery of using and operating the Products, Customer shall not use Products for revenue-generating or for-profit purposes.
d. Other Esri Limited-Use Programs. If Customer acquires Products under any limited-use program not listed above, Customer's use of the Products may be subject to the terms set forth in the applicable launching page or enrollment form or as described on Esri's website in addition to the nonconflicting terms of this Agreement.
3.0 DATA
3.1
Definitions. The following
definitions supplement the definitions provided in Attachment A:
a. "Business Listing Data" means any dataset that includes a list of businesses and may include other associated business attributes.
b. "Esri Content Package(s)" means a digital file containing Online Services basemap Data extracted from the Online Services.
c. "Street Data" means Data that includes or depicts information about roads, streets, and related features.
3.2 Permitted Uses.
a. Unless otherwise authorized in writing, Customer may only use Data with the Products for which Esri has provided the Data.
b. Subject to the restrictions set forth in this Agreement and provided that Customer affixes an attribution statement to the Data representations acknowledging Esri or its applicable licensor(s) as the source of the portion(s) of the Data used for the Data representation, Customer may:
1. Create representations of Data in hard-copy or static, electronic format (e.g., PDF, GIF, JPEG, HTML); in ArcGIS Web Maps; or in Esri Story Maps apps for the purposes of visualizing Data (including basic interactions such as panning, zooming, and identifying map features with simple pop-ups); and
2. Use and include such representations of Data in presentation packages, marketing studies, or other reports or documents containing map images or data summaries derived from the use of Esri Products to third parties.
c. Customer may take Online Services basemaps offline through Esri Content Packages and subsequently deliver (transfer) them to any device for use with licensed ArcGIS Runtime applications and ArcGIS Desktop. Customer may not otherwise scrape, download, or store Data.
d. Customer may make any internal use of geocoded results that are obtained and stored in compliance with this Agreement. Customer may not redistribute geocoded results except to (i) use and/or display on a map in connection with Customer's public, non-revenue generating website(s), (ii) permit access to third-parties for the purposes of Customer's business, or (iii) deliver to third parties, on a noncommercial/non-revenue generating basis, static results, static output or static base map renderings.
3.3 Use Restrictions.
a. Customer may not act directly or authorize its customers to cobrand Data, use Data in any unauthorized service or product, or offer Data through or on behalf of any third party.
b. Customer may not use or allow third parties to use Data, for the purpose of compiling, enhancing, verifying, supplementing, adding to, or deleting from compilation of information that is sold, rented, published, furnished, or in any manner provided to a third party.
c. Business Listing Data. Unless authorized in writing, Customer may not use Business Listing Data for any direct marketing purposes, resale publication, or distribution to any third party as part of any mailing list, directory, classified advertising, or other compilation of information.
d. Street Data. Customer may use Street Data for mapping, geocoding, routing, and transportation network analysis purposes. Unless otherwise authorized in writing, Customer may not use Street Data for
1. Real-time navigational guidance, including
alerting a user about upcoming maneuvers, such as warning of an upcoming turn
or calculating an alternate route if a turn is missed;
2. Synchronized multivehicle routing; or
3. Synchronized route optimization.
e. Business Analyst Data. Customer may cache Data provided with ArcGIS Business Analyst Mobile App on a mobile device for use in conjunction with its use of ArcGIS Business Analyst Server. Customer may not otherwise cache or download such Data.
f. Partial Dataset Licenses: If Customer orders a subset of a dataset (e.g., a country, region, state, or local portion of a global database), Customer may use only the licensed subset, not any other portion of the full dataset.
g. Michael Bauer Research International Boundaries Data ("MBR Data"). Customer's right to use data downloaded to Customer's premises (e.g., MBR Data stored in ArcGIS Enterprise, ArcGIS Desktop) terminates 2 years after download.
3.4 Supplemental Terms and Conditions for Data. Certain Data licensors require Esri to flow down additional attribution requirements and terms of use to Customer. These terms supplement and amend the terms of this Agreement and are available at www.esri.com/legal/third-party-data.
4.0 MAINTENANCE
4.1 US Customers. Esri will provide Maintenance for Software and Online Services in accordance with the Esri Maintenance and Support Program and this Agreement if Customer is in the United States.
4.2 Customers outside the United States. Customer may obtain maintenance services from their local Esri authorized distributor under the authorized distributor's own standard support policy and in accordance with the Esri Product Life Cycle Support Policy.
5.1 US Customers. Esri may provide Esri Managed Cloud Services,
Training, or Professional Services including Advantage Program to US Customers
under an applicable Ordering Document. Unless Customer has signed an agreement
with Esri establishing terms and conditions for such Services, Esri's
performance is subject to the Services terms and conditions incorporated by
reference and found at https://www.esri.com/content/dam/esrisites/en-us/media/legal/services/ma-services.pdf. A printed copy of these terms and conditions will
be provided upon request.
5.2 Customers outside the United States. Customers outside of the United States may obtain Services from their local
authorized distributor.
ATTACHMENT
A
GLOSSARY
OF TERMS
The following
glossary of terms applies to all Esri Offerings and Services that Esri may
provide to its customers. Certain Esri Offerings or Services may not be within
the scope of this Agreement. Please disregard any terms that are not applicable
to Esri Offerings or Services offered under this Agreement.
"Affiliate" means any entity that directly or
indirectly (i) Controls; (ii) is Controlled by; or (iii) is
under common Control with a party, where "Control" means having more
than 50 percent of the voting stock or other voting interest in the
Controlled entity.
"API" means application programming interface.
"ArcGIS Website" means www.arcgis.com and any related or successor websites.
"Authorization Code(s)" means any key, authorization number,
enablement code, login credential, activation code, token, user
name and password, or other mechanism required for use of Esri
Offerings.
"Beta" means any alpha, beta, or other prerelease
version of a Product.
"Cloud Services" means Online Services and Esri Managed
Cloud Services.
"Content" means data, images, photographs,
animations, video, audio, text, maps, databases, data models, spreadsheets,
user interfaces, graphics components, icons, software, and other resources used
in connection with Esri Offerings and Services.
"Control" means having more than 50 percent of
the voting stock or other voting interest in the Controlled entity.
"Customer Content" means any Content that Customer provides,
uses, or develops in connection with Customer's use of Esri Offerings or
Services, including Value-Added Applications. Customer Content excludes any
feedback, suggestions, or requests for improvements that Customer provides to
Esri.
"Data" means any commercially available digital
dataset(s) including, but not limited to, geographic vector data, raster data
reports, or associated tabular attributes that Esri bundles with other Esri
Offerings or delivers independently.
"Deliverables" means anything that Esri delivers to
Customer as a result of performance of Professional Services.
"Documentation" means all user reference documentation that
Esri provides with a Deliverable or an Esri Offering.
"Esri Managed Cloud Services" means a Customer-specific
cloud infrastructure, Software, Data, and network platform that Esri hosts,
manages, and makes available to Customer or Customer's end users via the
Internet.
"Esri Offering(s)" means any Product or Documentation. If Esri
provides Training or Professional Services directly to Customer, then Esri
Offerings also include Deliverables and Training Materials. Esri Offerings
exclude Services and Third-Party Content.
"GIS" means geographic information system.
"Maintenance" means a subscription program that Esri
provides and that entitles Customer to Product updates and other benefits such
as access to technical support and self-paced, web-based learning resources.
"Malicious
Code" means software
viruses; worms; time bombs; Trojan horses; or any other computer code, files,
denial of service, or programs designed to interrupt, destroy, or limit the
functionality of any computer software, hardware, or telecommunications
equipment.
"Online Services" means any commercially available,
Internet-based geospatial system that Esri provides, including applications and
associated APIs for storing, managing, publishing, and using maps, data, and
other information. Online Services exclude Data and Content.
"Ordering Document(s)"
means a sales quotation, Maintenance renewal quote, purchase order, proposal,
Task Order, or other document identifying Esri Offerings, updates, or Services
that Customer orders.
"Perpetual License" means a license to use a version of the
Esri Offering for which applicable license fees have been paid, indefinitely,
unless terminated by Esri or Customer as authorized under this Agreement.
"Product(s)" means Software, Data, and Online Services.
"Professional Services" means any development or consulting
services that Esri provides to Customer.
"Sample(s)" means sample code, sample applications,
add-ons, or sample extensions of Products.
"Service(s)" means Maintenance. If Esri provides Esri
Managed Cloud Services, Training, or Professional Services directly to
Customer, then Services also include Esri Managed Cloud Services, Training, and
Professional Services.
"Software" means any proprietary commercial
off-the-shelf software, excluding Data, accessed or
downloaded from an Esri-authorized website or that Esri delivers on any media
in any format including backups, updates, service packs, patches, hot fixes, or
permitted merged copies.
"Specification(s)" means (i) the Documentation for
Software and Online Services, (ii) the scope of work set forth in any Task
Order, or (iii) Esri's published course descriptions for Training.
"Subscription" means a license for use of an Esri Offering
for a limited time period or a right to receive Services for a limited time
period.
"Task Order(s)" means an Ordering Document for Services.
"Term License" means a license for use of an Esri Offering
for a limited time period ("Term").
"Third-Party Content"
means any Content that Customer may obtain from a third-party website or that
persons other than Esri employees, suppliers, or contractors may directly contribute
to Esri's website.
"Training" means (i) Product
training or (ii) related training that Esri provides under this Agreement.
"Training
Materials" means digital or printed Content required to complete Training, which
may include, but is not limited to, workbooks, data, concepts, exercises,
assessments, and exams.
"Value-Added Application(s)" means an application developed by Customer
for use in conjunction with the authorized use of any Software, Data, or Online
Services.
ATTACHMENT
B
GENERAL
TERMS AND CONDITIONS
The following
general terms and conditions apply to all Esri Offerings and Services that Esri
may offer to its customers. Certain Esri Offerings or Services may not be
available under this Agreement. Please disregard any terms that are not
applicable to Esri Offerings or Services offered under this Agreement.
Article B.1—General Use Restrictions
Except as expressly
permitted in this Agreement, Customer will not
a. Sell, rent, lease, sublicense, distribute,
lend, time-share, or assign Services or Esri Offerings;
b. Distribute or provide direct access to
Services or Esri Offerings to third parties, in whole or in part, including,
but not limited to, extensions, components, or DLLs;
c. Distribute Authorization Codes to third
parties;
d. Reverse
engineer, decompile, or disassemble any Product or Deliverable delivered in
compiled form;
e. Make any attempt to circumvent the
technological measure(s) that controls access to or use of Esri Offerings;
f. Store, cache, use, upload, distribute, or
sublicense Content or otherwise use Esri Offerings in violation of Esri's or a
third-party's rights, including intellectual property rights, privacy rights,
nondiscrimination laws, export laws, or any other applicable law or regulation;
g. Remove or obscure any Esri
or its licensors' patent, copyright, trademark, proprietary rights notices, or
legends contained in or affixed to any Esri Offerings, output, metadata file,
or online or hard-copy attribution page of any Data or Documentation;
h. Unbundle or independently use individual or
component parts of Esri Offerings;
i. Incorporate any portion of Esri Offerings
into a product or service for third-party use that competes with the Esri
Offerings;
j. Publish or in any other way communicate the
results of benchmark tests run on Beta Products without the prior written
permission of Esri and its licensors; or
k. Use, incorporate, modify,
distribute, provide access to, or combine any Esri Offerings in a manner that
would subject any Esri Offering to open-source or open-database license terms (e.g. GPL) that require any part of the Esri Offering to be
subject to additional terms, for example
1. Disclosed
in source code form to third parties;
2. Licensed
to third parties for the purpose of making derivative works; or
3. Redistributable
to third parties at no charge; or
l. Generate revenue by providing access to
Software or Online Services through a Value-Added Application.
These restrictions
will not apply to the extent that they conflict with applicable law or
regulation.
Article
B.2—Term and Termination
B.2.1 Customer may terminate this Agreement or any Esri Offerings license or
subscription at any time upon written notice to Esri. Termination without cause
does not entitle Customer to receive any refund of fees paid. Any right to
terminate pending Services engagements for convenience is set forth in the
applicable section in the body of this Agreement. Either party may terminate
this Agreement or any license or subscription for a material breach that is not
cured within 30 days of written notice to the breaching party. Upon any
termination of this Agreement for breach, Esri will stop providing Services.
Any licenses in Esri Offerings that survive termination of this Agreement
continue under the terms of this Agreement.
B.2.2 If Esri terminates this Agreement following Customer's breach, then
Esri may also, at its election, terminate Customer's licenses or subscriptions
to Esri Offerings. If Customer terminates this Agreement for cause or
convenience, then Customer may, at its election, also terminate Customer's
licenses or subscriptions to Esri Offerings.
B.2.3 Upon any termination or expiration of a
license or subscription, Customer will
a. Stop
accessing and using the terminated or expired Esri Offerings;
b. Clear
any client-side data cache derived from the terminated or expired Cloud
Services; and
c. Stop
using and uninstall, remove, and destroy all copies of the terminated or
expired Esri Offerings in Customer's possession or control, including any
modified or merged portions thereof, in any form, and execute and deliver
evidence of such actions to Esri or its authorized distributor.
Esri may stop
performing Services immediately upon written notice to Customer if a bankruptcy
or insolvency proceeding is commenced by or against Customer until the trustee
cures any existing defaults and provides adequate assurance of future
performance under this Agreement. This Agreement terminates upon the insolvency,
liquidation, or dissolution of either party.
Article
b.3—Limited Warranties and Disclaimers
B.3.1 Limited
Warranties. Except as
disclaimed below, Esri warrants to Customer that (i) Products and Training
will substantially comply with the applicable Specifications and
(ii) Services will substantially conform to the professional and technical
standards of the industry. The warranty period for Esri Offerings offered under
a Perpetual License and for Services runs for 90 days from the date of
delivery or from the date of acceptance if this Agreement provides an
acceptance period. The warranty period for Esri Offerings offered under a
subscription or Term License basis runs for the lesser of (i) the duration
of the subscription or term or (ii) 90 days from delivery or
acceptance if this Agreement provides an acceptance period.
B.3.2 Special Disclaimer. Third-Party
Content; Data; Samples; hot fixes; patches; updates; Online Services provided
at no charge; and trial, evaluation, and Beta Products are delivered "as
is" and without warranty of any kind.
B.3.3 General Disclaimer. Except for the
express limited warranties set forth in this Agreement, Esri disclaims all
other warranties or conditions of any kind, whether express or implied,
including, but not limited to, warranties or conditions of merchantability,
fitness for a particular purpose, and noninfringement of intellectual property
rights. Esri is not responsible for any nonconformities with Specifications or
loss, deletion, modification, or disclosure of Customer Content caused by
Customer's modification of any Esri Offering other than as specified in the Documentation.
Esri does not warrant that Esri Offerings, or Customer's operation of the same,
will be uninterrupted, error free, fault tolerant, or fail-safe or that all
nonconformities can or will be corrected. Esri Offerings are not designed,
manufactured, or intended for use in environments or applications that may lead
to death, personal injury, or physical property or environmental damage.
Customer should not follow any navigational route suggestions that appear to be
hazardous, unsafe, or illegal. Any such uses will be at Customer's own risk and
cost.
B.3.4 Disclaimers.
a. Internet Disclaimer. Neither party will be liable for
damages under any theory of law related to the performance or discontinuance of
operation of the Internet or to regulation of the Internet that might restrict
or prohibit the operation of Cloud Services.
b. Third-Party Websites; Third-Party Content.
Esri is not responsible for any third-party website or Third-Party Content that
appears in or is referenced by Esri Offerings or Esri websites, including www.esri.com, developers.arcgis.com, livingatlas.arcgis.com
and www.arcgis.com.
Providing links to third-party websites and resources does not imply an
endorsement, affiliation, or sponsorship of any kind.
B.3.5 Exclusive Remedy. Customer's exclusive remedy and Esri's
entire liability for breach of the limited warranties in this section will be
to replace any defective media and to (i) repair, correct, or provide a
workaround for the applicable Esri Offering or Services or (ii) at Esri's
election, terminate Customer's right to use and refund the fees paid for Esri
Offerings or Services that do not meet Esri's limited warranties.
Article
B.4—Limitation of Liability
B.4.1 Disclaimer of Liability. Neither
Customer, Esri, nor any Esri authorized distributor or third
party licensor will be liable for any indirect, special, incidental, or
consequential damages; lost profits; lost sales; loss of goodwill; costs of
procurement of substitute goods or services; or damages exceeding the
applicable license fees, or current subscription fees, or Services fees paid or
owed to Esri for the Esri Offerings or Services giving rise to the cause of
action.
B.4.2 The limitations and exclusions of liability in the preceding paragraph
do not apply to Customer's infringement, misuse, or misappropriation of Esri's
or Esri's licensors' intellectual property rights, either party's
indemnification obligations, gross negligence, willful misconduct, or
violations of the Export Compliance clause of this Agreement or any applicable
law or regulation.
B.4.3 Applicability of Disclaimers and
Limitations. Esri or its
authorized distributor has set its fees and entered into this Agreement in
reliance on the disclaimers and limitations in this Agreement; the fees reflect
an allocation of risk that is an essential basis of the bargain between the
parties. These limitations will apply
whether or not a party is aware of the possibility of any damage and
notwithstanding any failure of essential purpose of any exclusive, limited
remedy.
B.4.4 The foregoing disclaimers, limitations, and exclusions may be invalid
in some jurisdictions and apply only to the extent permitted by applicable law
or regulation in Customer's jurisdiction. Customer may have additional rights
that may not be waived or disclaimed. Esri does not seek to limit Customer's
warranty or remedies to any extent not permitted by law.
Article
B.5—Indemnifications
B.5.1 Definitions. The following definitions supplement the definitions provided in Attachment A:
a. "Claim" means any claim,
action, or demand by a third party.
b. "Indemnitees" means Customer
and its directors, officers, and employees.
c. "Infringement Claim(s)" means
any Claim alleging that Customer's use of or access to any Esri Offering or
Service infringes a patent, copyright, trademark, or trade secret.
d. "Loss(es)" means expenditure,
damage award, settlement amount, cost, or expense, including awarded attorneys'
fees.
B.5.2 Infringement Indemnity.
a. Esri
will defend, hold all Indemnitees harmless from, and indemnify any Loss arising
out of an Infringement Claim.
B.5.3 General Indemnity. Esri will defend and hold all Indemnitees
harmless from, and indemnify any Loss arising out of, any Claim for bodily
injury, death, or tangible or real property damage brought against any of the
Indemnitees to the extent arising from any negligent act or omission or willful
misconduct by Esri or its directors, officers, employees, or agents performing
Services while on Customer's site.
B.5.4 Conditions for Indemnification. As
conditions for indemnification, but for those defined as Infringement Claims
(see B.5.2 c.), Indemnitee will (i) promptly notify Esri in writing of the
Claim, (ii) provide all available documents describing the Claim,
(iii) give Esri sole control of the defense of any action and negotiation
related to the defense or settlement of any Claim, and (iv) reasonably
cooperate in the defense of the Claim at Esri's request and expense.
B.5.5 This section sets forth the
entire obligation of Esri, its authorized distributor, and its third party licensors regarding any Claim for which Esri
must indemnify Customer.
Article
B.6—Insurance
If Esri is providing Services, Esri will carry, at a minimum, the
following coverage:
a. Comprehensive general liability or commercial general liability
with a minimum coverage of $1,000,000.00 (US dollars) combined single limit per
occurrence for bodily injury, including death, and property damage liability to
include the following:
1. Premises and operations;
2. Blanket contractual liability;
3. Broad form property damage;
4. Independent contractors;
5. Personal injury, with employee exclusion
deleted; and
6. Completed operations.
b. Workers'
compensation insurance, with waiver of subrogation, in an amount that complies
with statutory limits.
ARTICLE
B.7—SECURITY AND COMPLIANCE
B.7.1 Security. Esri publishes its security capabilities at
https://trust.arcgis.com. Customer may give Esri personnel access to Customer systems or to
Customer or third-party personal information, controlled information, or
sensitive data if access is essential for Esri's performance of Services and if
Esri expressly agrees to such access. Esri will use reasonable administrative,
technical, and physical safeguards to protect such data and guard against
unauthorized access. Customer bears responsibility to (i) confirm that
Esri's published security and privacy controls meet all applicable legal
requirements for protection of Customer Content and (ii) upload or share
Customer Content through Cloud Services only when it is legal to do so. Esri is
not responsible to review Customer Content to ensure compliance with applicable
laws and regulations. Customer must contact Esri at securesupport@esri.com for further instruction before providing
any Customer Content that requires security measures other than Esri's
published security capabilities.
B.7.2 Malicious Code. Esri will use commercially reasonable
efforts to ensure that Esri Offerings will not transmit any Malicious Code to
Customer. Esri is not responsible for Malicious Code that Customer introduces
to Esri Offerings or that is introduced through Third-Party Content.
B.7.3 Export
Compliance. Each party will
comply with all applicable export and trade sanctions laws and regulations,
including the US Department of Commerce's Export Administration Regulations
(EAR), the US Department of State's International Traffic in Arms Regulations
(ITAR), the US Department of Treasury, Office of Foreign Assets Control (OFAC)
Regulations, and other applicable export laws. Customer will not export,
reexport, transfer, release, or otherwise dispose of, in whole or in part, or
permit access to or transfer or use of Services or Esri Offerings to any United
States embargoed countries currently including Iran, Syria, North Korea, Cuba,
Crimea region of Ukraine, the Donetsk People's Republic (DNR)
and Luhansk People's Republic (LNR), or denied
entities or persons except in accordance with all then-current applicable US government
export laws and regulations. Customer will not export, reexport, transfer, or
use Services or Esri Offerings for certain missile, nuclear, chemical, or
biological activities or end uses without proper authorization from the US
government. Customer shall immediately notify Esri in writing if any US
government entity or agency denies, suspends, or revokes Customer's export
privileges. Customer will not upload, store, or process in Cloud Services any
Customer Content that (i) has an Export Control Classification Number
(ECCN) other than EAR99 or (ii) is controlled for export from the United
States under ITAR. Customer will notify Esri in advance if Esri's performance
of any Services or provision of any Esri Offerings is related to any defense
article, defense service, or technical data, as defined under the ITAR
Sections 120.31, 120.32, and 120.33, respectively; Esri will not perform
any such Services or provide any such Esri Offerings until Esri obtains any
necessary export license from the US government. Customer will reasonably
assist Esri in applying for and obtaining an export license if needed.
B.7.4 Privacy. Esri will process personal data according
to the terms of the Data Processing Addendum available at https://www.esri.com/en-us/privacy/overview.
ARTICLE B.8—CLOUD SERVICES
B.8.1 Prohibited Uses. Customer shall not provide Customer Content
or otherwise access or use Cloud Services in a manner that
a. Creates
or transmits spam, spoofings, or phishing email or offensive, hate-related or defamatory material; or stalks or makes threats
of physical harm;
b. Stores
or transmits any Malicious Code;
c. Violates
any law or regulation;
d. Infringes
or misappropriates the rights of any third party;
e. Probes,
scans, or tests the vulnerability of Cloud Services or breach any security or
authentication measures used by Cloud Services without
written approval from Esri's Product Security Officer; or
f. Benchmarks the availability, performance, or
functionality of Cloud Services.
B.8.2 Service Interruption. System failures or other events beyond Esri's
reasonable control may interrupt Customer's access to Cloud Services. Esri may
not be able to provide advance notice of such interruptions.
B.8.3 Customer
Content.
a. Customer
grants Esri and its subcontractors a nonexclusive, nontransferable, worldwide
right to host, run, modify, and reproduce Customer Content as needed to provide
Cloud Services to Customer. Esri will not access, use, or disclose Customer
Content without Customer's written permission except as reasonably necessary to
support Customer's use of Cloud Services. Except for the limited rights granted to Esri under this Agreement,
Customer retains all its rights, title, and interest in the Customer Content.
b. If
Customer accesses Cloud Services with an application provided by a third party,
Esri may disclose Customer Content to such third party as necessary to enable
interoperation between the application, Cloud Services, and Customer Content.
c. Esri
may disclose Customer Content if required to do so by law or regulation or by
order of a court or other government body, in which case Esri will reasonably
attempt to limit the scope of disclosure.
d. When Customer's use of Cloud Services ends,
Esri will either
1. Make Customer Content available to Customer
for download for a period of 30 days unless Customer requests a shorter
window of availability or Esri is legally prohibited from doing so; or
2. Download all Customer Content in Esri's
possession to a medium of Customer's choosing and deliver such Customer Content
to Customer.
Esri will have no further obligations to store or return Customer
Content at the conclusion of the Cloud Services.
B.8.4 Removal of Customer Content. Esri may remove or delete Customer Content
if there is reason to believe that uploading Customer Content to or using it
with Cloud Services materially violates this Agreement. If reasonable under
these circumstances, Esri will notify Customer before removing Customer
Content. Esri will respond to any Digital Millennium Copyright Act takedown
notices in accordance with Esri's copyright policy, available at www.esri.com/legal/dmca_policy.
B.8.5 Service Suspension. Esri may suspend access to Cloud Services
(i) if Customer materially breaches this Agreement and fails to timely
cure the breach; (ii) if Esri reasonably believes that Customer's use of
Cloud Services will subject Esri to immediate liability or adversely affect the
integrity, functionality, or usability of the Cloud Services; (iii) for
scheduled maintenance; (iv) to enjoin a threat or attack on Cloud
Services; or (v) if Cloud Services become prohibited by law or regulated
to a degree that continuing to provide them would impose a commercial hardship.
When feasible, Esri will notify Customer of any Cloud Services suspension
beforehand and give Customer reasonable opportunity to take remedial action.
Esri is not
responsible for any damages, liabilities, or losses that may result from any
interruption or suspension of Cloud Services or removal of Customer Content as
described above.
B.8.6 Notice to Esri. Customer will promptly notify Esri if
Customer becomes aware of any unauthorized use of Customer's subscription or
any other breach of security regarding Cloud Services.
Article
B.9—General Provisions
B.9.1 Payment. Customer will pay each correct invoice no
later than 30 days after receipt and will remit payment to the address
stated on the invoice. Customers outside the United States will pay the authorized
distributor's invoices in accordance with the authorized distributor's payment
terms.
B.9.2 Feedback. Esri may freely use any feedback,
suggestions, or requests for Product improvement that Customer provides to
Esri.
B.9.3 Patents. Customer may not seek, and may not permit
any other user to seek, a patent or similar right worldwide that is based on or
incorporates any Products. This express prohibition on patenting will not apply
to Customer's software and technology except to the extent that Products, or
any portion thereof, are part of any claim or preferred embodiment in a patent
application or a similar application.
B.9.4 Restrictions on Solicitation. Neither party will solicit for hire any
employee of the other party who is associated with the performance of Services
during the performance of the Services and for a period of 1 year
thereafter. This does not restrict either party from publicly advertising
positions for hire in newspapers, professional magazines, or Internet postings.
B.9.5 Taxes and Fees; Shipping Charges. Pricing of Esri Offerings and Services that
Esri quotes to Customer is exclusive of any and all applicable taxes or fees
including, but not limited to, sales tax, use tax, or value-added tax (VAT);
customs, duties, or tariffs; shipping and handling charges; and vendor
enrollment fees. Esri will add any fees that it is required to pay to
the total amount of its invoice to Customer. Esri may include estimated taxes
and shipping and handling charges in its quotations but may adjust these fees
on invoicing. For Customers outside
the United States, the authorized distributor may quote taxes or fees in
accordance with its own policies.
B.9.6 Compliance Review. Customer will keep accurate and complete
records and accounts pertaining to its compliance with its obligations under
this Agreement. Esri or its authorized distributor may conduct a compliance
review of these records and accounts with no less than 14 business days'
written notice or may appoint an independent third party to conduct such a
compliance review on its behalf. Customer will promptly correct any
noncompliance identified during the compliance review. Neither Esri nor Esri's authorized
distributor may conduct a compliance review of Customer within 12 months
after the conclusion of any prior compliance review that does not reveal any
material Customer noncompliance.
B.9.7 No Implied Waivers. The failure of either party to enforce any
provision of this Agreement is not a waiver of the provisions or of the right
of such party thereafter to enforce that or any other provision.
B.9.8 Severability. If any provision of this Agreement is held
to be unenforceable for any reason, (i) such provision will be reformed
only to the extent necessary to make the intent of the language enforceable,
and (ii) all other provisions of this Agreement will remain in effect.
B.9.9 Successor and Assigns. Customer will not assign, sublicense, or
transfer Customer's rights or delegate Customer's obligations under this
Agreement without Esri's and its authorized distributor's prior written
consent, and any attempt to do so without consent will be void. This Agreement
will be binding on the respective successors and assigns of the parties to this
Agreement. Notwithstanding, a contractor under contract to the government to
deliver Products may assign this Agreement and Products acquired for delivery to
its government customer upon written notice to Esri, provided the government
customer assents to the terms of this Agreement. Upon mutual agreement, Esri's
Affiliates may provide Services under the terms of this Agreement; in such
cases, the Ordering Documents will identify the Affiliate as the party that
provides the Services. Esri's authorized distributors are not Affiliates of
Esri.
B.9.10 Survival of Terms. The Glossary of Terms and provisions of the
following Articles of these General Terms and Conditions will survive the
expiration or termination of this Agreement: "Limited Warranties and
Disclaimers," "Limitation of Liability," "Indemnifications,"
and "General Provisions."
B.9.11 US Government Customer. The Products are commercial items, developed
at private expense, provided to Customer under this Agreement. If Customer is a
US government entity or US government contractor, Esri licenses or provides
subscriptions to Customer in accordance with this Agreement under FAR
Subparts 12.211/12.212 or DFARS Subpart 227.7202. Esri Data and
Online Services are licensed or subscribed under the same DFARS
Subpart 227.7202 policy as commercial computer software for acquisitions
made under DFARS. Products are subject to restrictions, and this Agreement
strictly governs Customer's use, modification, performance, reproduction,
release, display, or disclosure of Products. Agreement provisions that are
inconsistent with federal law regulation will not apply. A US government
Customer may transfer Software to any of its facilities to which it transfers
the computer(s) on which it has installed such Software. If any court,
arbitrator, or board holds that a US government Customer has greater rights to
any portion of Products under applicable public procurement law, such rights
will extend only to the portions affected. ArcGIS Online has been granted
FedRAMP tailored low authorization but does not meet higher security
requirements including those found in DFARS 252.239-7010.
B.9.12 Governing Law. This Agreement is not subject to the United
Nations Convention on Contracts for the International Sale of Goods.
a. Government Entities. If Customer is a
government entity, the applicable laws of Customer's jurisdiction govern this
Agreement.
b. Nongovernment Entities. US federal law
and the law of the State of California exclusively govern this Agreement,
excluding their respective choice of law principles.
B.9.13 Dispute Resolution. The parties will use the following dispute resolution processes:
a. Equitable Relief. Either party will
have the right to seek an injunction, specific performance, or other equitable
relief in any court of competent jurisdiction without the requirement of
posting a bond or proving injury as a condition for relief.
b. US Government Agencies. This Agreement
is subject to the Contract Disputes Act of 1978, as amended
(41 USC 601–613).
c. Other Government Entities. Esri will
comply with mandatory dispute resolutions under applicable law.
d. Arbitration. Except as noted above, the
parties will submit to binding arbitration to resolve any dispute arising out
of or relating to this Agreement that cannot be settled through negotiation. If
Customer is in the United States or one of its territories or outlying areas,
the Commercial Arbitration Rules of the American Arbitration Association will
govern the arbitration proceedings. If Customer is outside the United States,
the Rules of Arbitration of the International Chamber of Commerce will govern
the proceedings. The parties will select a single arbitrator in accordance with
the applicable arbitration rules. The language of the arbitration will be
English. Arbitration will be at an agreed-upon location. Either party will, at
the request of the other, make available documents or witnesses relevant to the
major aspects of the dispute.
B.9.14 Force Majeure. A party will not be liable for any failure
of or delay in the performance of this Agreement for the period that such
failure or delay is due to causes beyond the party's reasonable control. Such
causes may include, but are not limited to, acts of God, war, strikes, labor
disputes, cyber attacks, laws, regulations,
government orders, or any other force majeure event.
B.9.15 Independent Contractor. Esri is and at all times will be an
independent contractor. Nothing in this Agreement creates an employer/employee,
principal/agent, or joint venture relationship between Esri or its authorized
distributor and Customer. No party has any authority to enter into contracts on
behalf of another party or otherwise act on behalf of another party.
B.9.16
Notice. Customer may send
notices required under this Agreement to Esri at the following address:
Environmental Systems Research Institute,
Inc.
Attn.: Contracts and Legal Department
380 New York Street
Redlands, CA 92373-8100
USA
Tel.:
909-793-2853
Email: LegalNotices@esri.com