LOCUS License Agreement

1. DEFINITIONS

“Product” refers to the specific LOCUS Product identified on the Cover Page; the data, analyses and reports made available to Licensee; LOCUS Outputs; and any associated documentation, enhancements, and training materials.

“Outputs” means work products produced for Licensee that incorporate or make use of these data, analyses, and reports.

“Embedded Data” means data and/or other proprietary underlying data provided by LOCUS or by third parties that is used in the creation of the Product, including but not limited to the underlying raw Location Based Services Data.

“Partner Product” means any licensed product or any part thereof owned by a third party which LOCUS is licensed to resell under the terms of a non-perpetual license.

“Third Party Provider” means any third party that supplies LOCUS with Embedded Data and/or Partner Products.

“Licensee-Provided Data” means data provided by Licensee that is used by LOCUS to enhance the quality of the Product, including but not limited to any local data such as population or equity information.

“Designated Users” means Licensee staff and, if applicable, third parties other than Licensee identified on the Cover Page or who have been granted limited rights pursuant to a Third Party Use License to use the Product for the Permitted Use.

“Third Party Designated User License” means an agreement that a third party Designated User must sign whereby that third party Designated User agrees to the License terms in order to receive access to the Product. Third Party Designated User License is not required for Licensee’s own staff.

“Permitted Use” means the specific project(s), contract(s), and/or other general purposes for which Licensee is permitted to use the Product.

“Licensee Region and Features” is a general description of the area covered by the Product data and other data attributes, features, functionalities, formatting, and other relevant details.

“Confidential Information” means any non-public information that is marked or identified as confidential (or under the circumstances of the disclosure or the nature of the information, it would reasonably be understood to be confidential or proprietary), including but not limited to all business, financial, and product information along with any process, software, system, data, technique, design, program, formula, work in process; whether in written or electronic form, of a proprietary nature that is learned by or disclosed to Licensee in the course of the work undertaken by LOCUS or the Permitted Use by Licensee.

2. GRANT OF LICENSE

Upon execution of this Agreement by the Licensee, LOCUS grants the Licensee the right to make use, and have Designated Users make use, of the Product for the Permitted Use in the Licensee Region, as indicated on the Cover Page.

Subject to LOCUS’ timely receipt of the applicable License Fee, this License is valid starting on the License Effective Date and continuing for the duration of the License Term.

Any failure or delay in the exercise of LOCUS’ right of termination for any default shall not prejudice LOCUS’ right of termination for such default or any other default. Under all circumstances, except as expressly conferred to Licensee, LOCUS reserves all rights in and to the Product.

3. TERMINATION

This License terminates automatically in the following situations:
1. if the Licensee fails to pay the License Fee according to the Payment Terms and such failure is not cured within thirty (30) days after written notice of such failure,
2. if the Licensee fails to comply with the terms of this License and such failure is not cured within thirty (30) days after written notice of such failure, or
3. if the use of the Product or Embedded Data becomes prohibited by applicable law or the procurement and/or use of the Product or Embedded Data becomes impractical or unfeasible for legal or regulatory reasons.
  
  In the event of termination under this Paragraph 3.A, Licensee shall immediately cease use of the Product and destroy and/or return all copies of the Product to LOCUS.
Licensee may terminate this License at any time by providing LOCUS with written notice to that effect. Licensee agrees that, in the event of termination by Licensee:
1. License fees paid by Licensee are not refundable, and
2. Paragraphs 4, 5, 6, 7, and 8 of this License, as well as any other obligations assumed by each party hereunder which are intended to survive termination of this License, shall survive the expiration or earlier termination of this License.

In the event of termination under this Paragraph 3.B or other expiration of the License, Licensee retains the right to make use of data (except Embedded Data), analyses, reports, and other tangible residuals of the Product for the Permitted Use in perpetuity subject to the terms of this License Agreement.

4. OTHER TERMS

Licensee at all times retains ownership of Licensee-Provided Data.

Licensee shall have no access nor rights to Embedded Data.

Licensee’s ability to share the Product with third parties, including but not limited to partner agencies, affiliates, contractors and consultants, is conditioned on the following: (a) such third parties are identified as Designated Users on the Cover Page; (b) payment of an additional license fee associated with additional Designated Users; and (c) Licensee obtaining the third parties’ written agreement to abide by all terms and conditions of this License Agreement. Licensee shall be responsible for any claims and liability arising out of or related to a Designated User’s use of the Product.

Notwithstanding the foregoing, Licensee may share analyses and reports with third parties without requiring a Third Party Designated User License.

Licensee shall not:

Reverse engineer nor disassemble the Product
Reproduce, publish, nor otherwise distribute the Product (except as specifically permitted herein)
Sell, distribute, grant, sublicense, nor lease any right, title or interest in the Product
Assign or transfer the Product, this License nor any other rights granted under this License, nor delegate its duties under this License
Modify the Product, nor create derivative nor modified works using the Product. Notwithstanding the foregoing, Licensee may make modifications to project deliverables based on the Product, so long as such modifications are used for internal purposes and not to create alternative or competing products.

Licensee agrees that it will take appropriate action by instruction, agreement or otherwise with its employees, consultants, and contractors to satisfy its obligations under this License.

Licensee grants LOCUS the right to audit Licensee’s use of the Product, at reasonable times, in order to ensure Licensee’s compliance with the terms and conditions herein.

5. THIRD PARTY PROVIDER TERMS

The Product may include data which LOCUS licenses from third parties (and which may include Embedded Data and/or Partner Products). Such Third Party Providers require LOCUS to obtain Licensee’s agreement to applicable terms and conditions. Licensee shall comply with all requirements and restrictions which such Third Party Providers may require LOCUS to impose on Licensee and/or Designated Users (and as may be updated and amended from time to time). All applicable Third Party Provider Terms are available upon request. These Third Party Provider terms are hereby incorporated by reference into and form part of this Agreement and contain important terms and conditions that affect Licensee’s rights and obligations. LOCUS accepts no responsibility or liability for the services of such Third Party Providers. By executing this Agreement, you are also signifying your agreement to the applicable Third Party Provider terms. These Third Party Provider terms may be updated from time to time and Licensee agrees to accept, and hereby accepts, any such changes to the third party provider terms referenced herein. It shall be Licensee’s responsibility to check, review and comply with any updated or amended terms that would apply to the Products licensed under this Agreement.

6. TRADE SECRET AND CONFIDENTIALITY

Licensee acknowledges and agrees that the Product embeds proprietary methods and other concepts, designs, specifications, reports, data, software, information systems processes, methods, formulas and techniques developed and owned by LOCUS and other third parties. Licensee acknowledges and agrees that these methods and other components are trade secrets of LOCUS and other third parties; and that all ownership rights, patents, and copyrights thereto lie with LOCUS and the respective third parties.

Licensee agrees to protect LOCUS’ trade secrets and other Confidential Information with the same degree of care exercised to protect its own Confidential Information, but no less than reasonable care, and to prevent the unauthorized, negligent, or inadvertent disclosure or publication to any person outside of LOCUS or Licensee.

7. WARRANTIES

LOCUS WARRANTS THAT DURING THE TERM OF THE LICENSE, THE PRODUCT SHALL MEET THE REQUIREMENTS OF THIS LICENSE AND THE SCOPE OF WORK AGREED TO IN WRITING BY LOCUS AND LICENSEE. FURTHER, SERVICES AND LABOR PROVIDED BY LOCUS SHALL BE PERFORMED ON TIME, AND IN A WORKMANLIKE MANNER, CONSISTENT WITH THE LEVEL OF CARE AND SKILL EXERCISED BY OTHER PROVIDERS OF SIMILAR LABOR AND SERVICES UNDER SIMILAR CIRCUMSTANCES AT THE TIME THE LABOR AND SERVICES ARE PROVIDED.

EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE LICENSED PRODUCTS ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS BASIS.” LOCUS GRANTS NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, IN RESPECT TO THE PRODUCT. LOCUS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE.

8. LIMITATION OF LIABILITY AND INDEMNITY

LOCUS’ TOTAL AGGREGATE LIMIT OF LIABILITY HEREUNDER (WHETHER CONTRACT, STATUTORY, IN TORT OR OTHERWISE) FOR DAMAGES ON ANY ONE OR MORE OR ALL CLAIMS (REGARDLESS OF THE NUMBER OF DIFFERENT OR OTHER CLAIMS, CLAIMANTS, OR OCCURRENCES) SHALL NOT EXCEED THE TOTAL FEES PAID DURING THE CURRENT YEAR OF THE LICENSE TERM.
NEITHER LOCUS NOR ITS SUPPLIERS SHALL BE LIABLE TO LICENSEE OR ANY OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING LOST PROFITS OR COSTS OF COVER, LOSS OF USE OR BUSINESS INTERRUPTION OR THE LIKE, REGARDLESS OF WHETHER LOCUS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UNLESS PROHIBITED BY APPLICABLE LAW, LICENSEE SHALL INDEMNIFY AND HOLD HARMLESS LOCUS AND ITS AFFILIATES, SUCCESSORS OR ASSIGNS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (EACH AN “INDEMNIFIED PARTY”), FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITIES, COSTS, LOSSES AND EXPENSES (INCLUDING REASONABLE LEGAL COSTS AND ATTORNEY’S FEES) ARISING FROM OR RELATED TO ANY CLAIM, DEMAND, COMPLAINT OR ACTION BY A THIRD PARTY ARISING OUT OF OR INCIDENT TO LICENSEE’S NEGLIGENT OR WRONGFUL ACTIONS OR FAILURE TO ACT UNDER OR RELATED TO THIS AGREEMENT INCLUDING LICENSEE’S MISUSE OF THE PRODUCT, BREACH OF CONTRACT, OR BREACH OF THIRD PARTY PROVIDER TERMS.
UNLESS PROHIBITED BY APPLICABLE LAW, LOCUS SHALL INDEMNIFY AND HOLD HARMLESS LICENSEE AND ITS RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS AND REPRESENTATIVES (EACH AN “INDEMNIFIED PARTY”), FROM AND AGAINST ANY AND ALL DAMAGES, LIABILITIES, COSTS, LOSSES AND EXPENSES (INCLUDING REASONABLE LEGAL COSTS AND ATTORNEY’S FEES) ARISING FROM OR RELATED TO ANY CLAIM, DEMAND, COMPLAINT OR ACTION BY A THIRD PARTY ARISING OUT OF OR INCIDENT TO ANY CLAIM THAT ALLEGES THE USE (AS PERMITTED BY THIS AGREEMENT) OF THE PRODUCT INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS (“IP CLAIMS”), PROVIDED THAT LICENSEE (A) PROVIDES IMMEDIATE WRITTEN NOTICE TO LOCUS OF ANY SUCH IP CLAIM; (B) DOES NOT MAKE ANY ADMISSION OR ADVERSE STATEMENT OF LIABILITY, AGREEMENT, OR SETTLEMENT IN RELATION TO THE IP CLAIM WITHOUT PRIOR WRITTEN CONSENT OF LOCUS; AND (C) GRANTS LOCUS THE SOLE RIGHT TO CONTROL THE DEFENSE AND/OR SETTLEMENT THEREOF AND PROVIDES REASONABLE ASSISTANCE TO SUCH DEFENSE.
LOCUS SHALL NOT HAVE ANY LIABILITY OR INDEMNITY OBLIGATIONS FOR CLAIMS UNDER THE FOREGOING PARAGRAPH TO THE EXTENT SUCH CLAIMS ARE BASED ON (A) USE OF THE PRODUCT IN VIOLATION OF THE TERMS OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION USE OUTSIDE THE SCOPE OF THE LICENSE; (B) MODIFICATION OF THE PRODUCT OR ANY PORTION THEREOF BY LOCUS PROVIDED THAT THE PRODUCT IN UNMODIFIED FORM IS NOT THE CAUSE OF SUCH CLAIM; (C) USE OF THE PRODUCT IN COMBINATION WITH OTHER SOFTWARE OR DATA, PROVIDED THAT THE PRODUCT BY ITSELF IS NOT THE CAUSE OF THE CLAIM.
1. SECURE FOR LICENSEE THE RIGHT TO CONTINUE USING SAID PRODUCT FREE AND CLEAR;IF PRODUCT IS CLAIMED OR ALLEGED TO BE INFRINGING ON THIRD-PARTY RIGHTS, AND SUCH CLAIM OR ALLEGATION IS NOT THE RESULT OF LICENSEE’S VIOLATION OF THE TERMS OF THIS AGREEMENT, LOCUS, AT ITS OWN EXPENSE AND DISCRETION, SHALL PROMPTLY TAKE ONE OF THE FOLLOWING ACTIONS:
2. REPLACE SAID PRODUCT WITH A NON-INFRINGING PRODUCT;
3. MODIFY SAID PRODUCT TO CURE THE INFRINGEMENT SO THAT IT BECOMES NON-INFRINGING; OR
4. REMOVE SAID PRODUCT, AND REFUND TO LICENSEE THE SUM PAID THEREFOR.
LOCUS SHALL HAVE NO LIABILITY TO LICENSEE IF THE USE OF THE PRODUCT OR EMBEDDED DATA BECOMES PROHIBITED BY APPLICABLE LAW OR THE PROCUREMENT AND/OR USE OF THE PRODUCT OR EMBEDDED DATA BECOMES IMPRACTICAL OR UNFEASIBLE FOR LEGAL OR REGULATORY REASONS. IN SUCH EVENT, LOCUS SHALL HAVE NO FURTHER OBLIGATION TO PROVIDE OR SUPPORT THE PRODUCT, AND LICENSEE SHALL HAVE NO FURTHER PAYMENT OBLIGATIONS. FOR PAYMENTS MADE IN ADVANCE BY LICENSEE TO LOCUS, LOCUS SHALL PROVIDE A REFUND TO LICENSEE IN PROPORTION TO THE REMAINING DURATION OF THE LICENSE TERM THAT THE PRODUCT IS UNAVAILABLE TO LICENSEE.

9. RISK

Licensee holds LOCUS (and its successors, assigns, and agents) free and harmless from and against any claims and liability arising by virtue of the acts or omissions of Licensee, Designated User, or any party authorized by Licensee with regard to its use, operation, or control of the Product.

Licensee shall be responsible for the acts or omissions of its Designated Users in the same manner as Licensee is responsible for its own acts or omissions.

10. FEDERAL ACQUISITION

This provision applies to all acquisitions of the Product by or for the Federal government. By its use of the Product, the Licensee hereby agrees that the foregoing qualify as Limited Rights Data and/or Restricted computer software within the meaning of FAR Part 52. The terms and conditions of this Agreement shall pertain to the government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.

11. NOTICE

Any notice or consent required under this Agreement shall be delivered in writing to Licensee or LOCUS at the address indicated on the Cover Page. Any notice or consent required to be given in accordance with this License shall be in writing and shall be deemed sufficiently served if sent by email with confirmation of receipt, or by US Mail or overnight delivery with proof of receipt. Any notice sent by US Mail will be deemed to have been given five (5) days after the date on which it was mailed.

12. COMPLETE AGREEMENT

This Agreement represents the entire and integrated agreement between the parties and supersedes all prior negotiations, proposals, communications, understandings, representations, or agreements, either written or oral, express or implied. The terms of this Agreement shall take precedence over any conflicting or inconsistent terms in any other purchase order, task order, or any other Agreement between the parties. Any modification or amendment of this License must be in writing and signed by the parties. All amendments or modifications of this Agreement shall be binding upon the parties despite any lack of consideration so long as the same shall be in writing and executed by the parties hereto.

If any of the provisions of this Agreement are invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted.

13. GOVERNING LAW

The law of the state in which Licensee is organized shall govern Licensee’s execution and funding of its obligations under and pursuant to this Agreement. In all other respects, the validity, enforceability, and interpretation of this Agreement shall be governed and construed as indicated on the Cover Page. Application of the Uniform Commercial Code and the United Nations Convention of Contracts for the international sale of goods are expressly excluded.