Standard Terms and Conditions
- Definitions
“Agreement” means the Standard Terms and Conditions and the Client Order Form.
“Client” means the client whose name appears on the Client Order Form.
“Client Order Form” means the order form to subscribe to the Service.
“EDR” means Environmental Data Resources, Inc., and its successors and assigns.
“Service” means the Service(s) described on the Client Order Form.
“Standard Terms and Conditions” means these terms and conditions.
2. Use of Services
2.1 No Modification or Alterations. Client will not, without the prior written consent of EDR, modify any the reports included in the Services in any way.
2.2 Use of the Services. Client acknowledges that any reports included in the Services are proprietary to EDR, contain copyrighted material and valuable trade secrets of EDR. All rights of EDR as to the Services are reserved. Client covenants that it shall use the Services solely for internal business purposes and it shall preserve and protect the reports included in the Services from unauthorized use and/or disclosure, as Client normally treats its own information of like character. Except as specifically permitted herein, Client shall not copy, sell, transfer, rent, lease, license, assign, publish, distribute, disseminate, place on any Internet site, allow access to or convey any portion any report included in the Services. Client shall not use the Services to compete with any products or services offered by EDR. Without limiting the foregoing, Client shall not use the Services to create a database of environmental information for itself or for any third party. Client will comply with all applicable copyright laws and EDR’s Copyright Policy (a copy of which is attached hereto as Attachment B and is incorporated herein by reference), as either or both may be amended from time to time, with respect to the reports included in the Services and any portions thereof. If at any time Client learns of or suspects any unauthorized copying of the reports included in the Services or infringement of the EDR mark by third parties, Client shall promptly notify EDR. EDR will take all actions that it deems necessary, in its sole discretion, to protect its rights in the reports (and any portion thereof) and the EDR mark. Client will cooperate with EDR, at EDR’s expense and reasonable request, in taking such actions. Any proceeds from such actions shall be solely for the account of EDR.
2.3 Copying Reports. Client may make up to three (3) copies of any reports included in the Services for backup and archival purposes. Client further agrees to the terms set forth on Appendix A hereto and made a part hereof. For the purposes of this Agreement and Appendix A, “copies” means hard copies and/or electronic copies.
3. Representations, Limitations and Obligations
3.1 Representations and Disclaimer of Warranties. The reports included in the Services contain certain information pertaining solely to the exterior of the target properties, which information was obtained for a variety of public and other sources reasonably available to EDR. EDR does not assure, warrant, guarantee or assume any liability for the correctness, comprehensiveness, timeliness or completeness of any of such information. It cannot be concluded from any report included in the Services that coverage information for the target and surrounding properties does not exist from other sources. Each report included in the Services is provided on an “AS IS” basis. NO WARRANTY EXPRESSED OR IMPLIED, IS MADE WHATSOEVER IN CONNECTION WITH ANY REPORT INCLUDED IN THE SERVICES. EDR SPECIFICALLY DISCLAIMS THE MAKING OF ANY SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. Client accepts all reports included in the Services “AS IS”. Any analyses, opinions, estimates, rating or risk codes provided in any report included in the Services are provided for illustrative purposes only, and are not intended to provide, nor should they be interpreted as providing any facts regarding, or prediction or forecast of, any environmental risk for any property. Only a Phase I Environmental Site Assessment performed by an environmental professional can provide information regarding the environmental risk for any property. No report included in the Services is a replacement for an inspection by an environmental professional. No report included in the Services provides information pertaining to the interior of the target property such as, but not limited to: mold, asbestos, lead, radon or other issues. Additionally, the information provided in any report included in the Services is not to be construed as legal advice.
The “Professional Opinion Summary” and the “Professional Opinion Details” described in the reports included in the Services are solely those of the party named in the reports and do not necessarily represent the views of EDR. Such opinions are not endorsed or guaranteed by EDR. Such party is not affiliated with EDR and EDR shall have no liability to Client or any other third party which relies upon the opinions of such party expressed in such reports.
3.2 Limitations of Damages. ALL RISK IS ASSUMED BY THE USER OF THE REPORTS INCLUDED IN THE SERVICES. IN NO EVENT SHALL EDR BE LIABLE TO ANYONE, WHETHER ARISING OUT OF ERRORS OR OMISSIONS, NEGLIGENCE, ACCIDENT OR ANY OTHER CAUSE, FOR ANY LOSS OF DAMAGE, INCLUDING, WITHOUT LIMITATION, SPECIAL INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES.
In no event shall EDR's liability in connection with or arising from any report included in the Services exceed the amount paid to EDR for such report.
3.3 Obligations of Client. Client shall be barred from bringing any claim against EDR based upon or arising in any way out of this Agreement or any of the Services or any report, after one (1) year from the date on which the cause of action arose regardless of the nature of the claim or form of action, whether in contract, tort (including negligence) or otherwise.
3.4 Preparation of the Services. The Services shall be performed by EDR in a good and workmanlike manner.
3.5 Purchase Order. The provisions and terms of any purchase order or other instrument issued by Client shall be of no effect and the acceptance of any such order or instrument by EDR shall not in any way extend, supplement, supersede, terminate or alter the terms of this Agreement.
4. Term and Termination
4.1 The term of this Agreement is set forth on the Client Order Form.
4.2 Termination For Cause. Either party may terminate this Agreement immediately upon giving written notice of termination to the other party upon the occurrence of any of the following events:
a) Client fails to pay any monies due to EDR hereunder within 60 days of the due date of such payment;
b) Client assigns this Agreement or any of its rights or obligations hereunder, including, but not limited to, a transfer of a majority of the stock or assets of Client without the prior written consent of EDR, which shall not be unreasonably withheld;
c) either party commits a material breach of the Agreement, and the non-breaching party gives notice of such breach, and said breach is not promptly cured to the reasonable satisfaction of the non-breaching party within 30 days after written notice thereof; or
d) (i) the institution of proceedings by the other party under bankruptcy or insolvency laws, for corporate reorganization, receivership or dissolution, or similar proceedings; (ii) the pendency for more than 90 days of proceedings against the other party under bankruptcy or insolvency laws, for corporate reorganization, receivership or dissolution, or similar proceedings; (iii) the other party making a general assignment for the benefit of creditors; or (iv) the other party becoming insolvent.
4.3 No Prejudice. Termination will be without prejudice to any other remedy otherwise available to the terminating party at law or in equity.
4.4 Continuing Obligations. Notwithstanding the foregoing, the following operative provisions of this Agreement shall survive any termination of this Agreement: Articles 1, 2 (including Appendix A), and 7 and Sections 3.1, 3.2, 3.3, 3.5, 4.3, 4.4, 5.1 and 6.2.
5. Support and Maintenance
5.1 Updates to Services. The Services are sold for a one-time use only, no updates will be provided.
6. Fees
6.1 Fees. Fees are listed on the Client Order Form.
6.2 Payment of Fees. All fees under this Agreement are payable net 30 days. Any amounts outstanding 30 days from their due date are subject to a 1.5% per month late fee charge.
7. Miscellaneous
7.1 Independent Contractor; Assignment. No joint venture, partnership or similar relationship is created by this Agreement. The parties hereto are merely independent contractors with no authority to bind the other party. This Agreement may not be assigned by Client without the prior written consent of EDR. This Agreement shall be binding upon the successors and permitted assigns of the parties.
7.2 Sales and Use Taxes. Client shall be solely responsible for any sales and use taxes which may be levied as a result of this Agreement.
7.3 Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of Connecticut without regard to its conflict of law. The parties expressly agree to submit all disputes concerning this Agreement to the exclusive personal jurisdiction and venue of the federal and state courts sitting in New Haven County, Connecticut. Without limiting any other remedies, EDR may obtain injunctive relief to enforce any provision of this Agreement.
7.4 Legal Fees. In the event suit is brought to enforce any provision of this Agreement, the prevailing party shall be entitled to recover reasonable costs including collection agent fees and attorney's fees.
7.5 Severability. If any provision of this Agreement, or any portion thereof, is declared invalid, this Agreement shall terminate.
7.6 Entire Agreement. This Agreement (together with the attachments and the appendices hereto) constitutes the entire Agreement between EDR and Client and supersedes all previous Agreements, purchase orders and understandings concerning the subject matter hereof. The following order of preference shall be applied to the Agreement between Client and EDR in the event of a conflict between terms: 1. Client Order Form; 2. Standard Terms and Conditions. This Agreement may not be altered, amended or modified except by a written amendment signed by representatives of EDR and Client authorized to modify this Agreement.
7.7 No Disclosure. Client agrees that this Agreement is intended to be kept confidential to the marketplace at large. Therefore, Client shall not disclose this Agreement, any portion hereof, or any of the terms hereof (including without limitation the information contained in the Client Order Form) to any third party.
7.8 Notices. All notices and communications required or permitted under this Agreement shall be in writing and shall be sent by registered or certified mail, postage prepaid, return receipt requested to (i) in the case to EDR, it’s principal place of business, and (ii) in the case of Client, to the address on the Client Order Form.
7.9 No Waiver. The failure of EDR to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
7.10 Headings and Article References for Convenience Only. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. All references in this Agreement to Articles, Sections, Attachments and Appendices shall, unless otherwise provided, refer to Articles and Sections of this Agreement, and Attachments and Appendices attached hereto.
APPENDIX A
1. Client understands that the reports included in the Services (the “Reports”) contain certain products owned by or licensed by Tele Atlas North America, Inc. (“TANA”) and licensed to EDR pursuant to an agreement between EDR and TANA (the “TANA Agreement”). Such products include the Dynamap®/2000 (commencing with the most current version, nationwide coverage, ArcInfo™ format, tiled by county, with semi-annual Updates) and are referred to herein as the “Licensed Products”.
2. Without limiting the provisions of Section 2.1 of the Standard Terms and Conditions, Client agrees not to modify or remove any copyright notice, trademark notice or restrictive legend included in any Report.
3. TANA has warranted to EDR in the TANA Agreement that TANA (i) is the owner of the Licensed Products or has adequate rights to grant to EDR a license to use the Licensed Products and (ii) grants EDR the license to use the Licensed Products free of all claims (including claims of infringement), liens, encumbrances and other restrictions that would materially interfere with the use of such Licensed Products. EXCEPT AS EXPRESSLY PROVIDED IN THE IMMEDIATELY PRECEDING SENTENCE, THE LICENSED PRODUCTS ARE PROVIDED TO EDR ON AN “AS IS” AND “WITH ALL FAULTS BASIS” AND, EXCEPT AS EXPRESSLY PROVIDED IN THE IMMEDIATELY PRECEDING SENTENCE, TANA AND ITS SUPPLIERS EXPRESSLY DISCLAIM 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.
4. EXCEPT WITH RESPECT TO A BREACH OF THE WARRANTIES CONTAINED IN THE FIRST SENTENCE OF PARAGRAPH 3 ABOVE, IN NO EVENT WILL THE TOTAL LIABILITY OF TANA OR ITS SUPPLIERS TO EDR ARISING OUT OF THE TANA AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE TO TANA IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. EXCEPT WITH RESPECT TO A BREACH OF THE WARRANTIES CONTAINED IN THE FIRST SENTENCE OF PARAGRAPH 3 ABOVE, TANA AND ITS SUPPLIERS ARE NOT LIABLE TO EDR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES ARISING OUT OF THE TANA AGREEMENT, INCLUDING LOST PROFITS OR COSTS OF COVER, LOSS OF USE OR BUSINESS INTERRUPTION OR THE LIKE, REGARDLESS OF WHETHER EDR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. Nothing herein is intended to make Client, any End User (defined in Paragraph 8 below) or any other party a third party beneficiary of the TANA Agreement or of any other agreement between TANA and EDR, including those matters described in Paragraphs 3 and 4 above.
6. Client acknowledges, and shall require that any End User acknowledge, that the use of the Licensed Products with a non-TANA map may result in increased variance between the location displayed on the map and ground truth location.
7. Client acknowledges and agrees that the Licensed Products are the confidential information of TANA. The foregoing in no way limits the ability of EDR to provide the Reports to Client or for Client to provide the Reports to End Users, subject to the limitations herein.
8. Client may not deliver or otherwise make available to any third person any Report or any copy of such Report unless such third party agrees to only use such Report solely for its internal purposes and not for resale (such permitted third parties are referred to herein as “End Users”).
9. In the event Client distributes or makes available any Report to one or more End User(s), during the term of this Agreement, and for one month thereafter, Client shall inform EDR, when placing an order, of the maximum number of End User(s) to whom Client will distribute or make available any Report. In the event Client distributes or makes available any Report to more than such maximum number of End User(s), Client must inform EDR on at least a monthly basis.
10. The following shall apply in the event Client or any End User is a government entity (in the event the End User is a government entity, Client must include the following in its agreement with such End User) ---
U.S. GOVERNMENT RIGHTS. If Client or any End User is an agency, department, or other entity of the United States Government, or funded in whole or in part by the United States Government, then use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and accompanying documentation, is restricted in accordance with the LIMITED or RESTRICTED rights as described in DFARS 252.227-7014(a)(1) (JUN 1995) (DOD commercial computer software definition), DFARS 227.7202-1 (DOD policy on commercial computer software), FAR 52.227-19 (JUN 1987) (commercial computer software clause for civilian agencies), DFARS 252.227-7015 (NOV 1995) (DOD technical data – commercial items clause); FAR 52.227-14 Alternates I, II, and III (JUN 1987) (civilian agency technical data and noncommercial computer software clause); and/or FAR 12.211 and FAR 12.212 (commercial item acquisitions), as applicable. In case of conflict between any of the FAR and DFARS provisions listed herein, the construction that provides greater limitations on the Government’s rights shall control. Contractor/manufacturer is Tele Atlas North America, Inc., 11 Lafayette Street, Lebanon, NH 03766-1445. Phone: 603.643. 0330. The Licensed Products are ©1984-200_ by Tele Atlas North America, Inc. ALL RIGHTS RESERVED. For purpose of any public disclosure provision under any federal, state or local law, it is agreed that the Licensed Products are a trade secret and a proprietary commercial product and not subject to disclosure.
11. The following shall apply in the event Client or any End User is an agency, department, or other entity of any State government, the United States Government or any other public entity or funded in whole or in part by the United States Government (in the event the End User is any of the foregoing, Client must include the following in its agreement with such End User) ---
Client and End User hereby agrees to protect the Licensed Products from public disclosure and to consider the Licensed Products exempt from any statute, law, regulation, or code, including any Sunshine Act, Public Records Act, Freedom of Information Act, or equivalent, which permits public access and/or reproduction or use of the Licensed Products. In the event that such exemption is challenged under any such laws, this Agreement shall be considered breached and any and all right to retain any copies or to use of the Licensed Products or Reports shall be terminated and considered immediately null and void. Any copies of the Licensed Products or Reports held by Client or End User shall immediately be destroyed. If any court of competent jurisdiction considers this clause void and unenforceable, in whole or in part, for any reason, this Agreement shall be considered terminated and null and void, in its entirety, and any and all copies of the Licensed Products or Reports shall immediately be destroyed.
12. Client and EDR each acknowledge and agree that TANA shall be an intended third party beneficiary of the provisions contained in this Appendix A.
ENVIRONMENTAL DATA RESOURCES, INC COPYRIGHT POLICY – Attachment B
Environmental Data Resources, Inc. (“EDR”) regards any infringement of its copyrights as a very serious matter and intends to avail itself of all legal remedies against those who are infringing its copyrights.
Under federal copyright law, unauthorized reproduction, distribution and/or sale of copyrighted EDR reports is an infringement of EDR’s rights as the owner of such copyrights, 17 U.S.C. §§ 106, 501 (a). Copies of EDR Reports or portions thereof may only be made with the permission of EDR.
Federal copyright law provides various remedies to protect against infringement of copyrights. EDR may obtain a temporary and/or permanent injunction to prevent or restrain infringement of its copyrights, 17 U.S.C. § 502 (a), and be granted an order impounding all copies of materials that violate EDR copyrights, 17 U.S.C. § 503 (a). In addition, EDR may recover all actual damages it has suffered as a result of any infringement as well as any profits that are attributable to the infringement that are not taken into account in computing the actual damages, 17 U.S.C. § 504 (b). In lieu of actual damages, EDR may recover statutory damages in an amount up to $30,000 per infringing copy, and where the violation is willful, the statutory damages may be increased to $150,000 per infringing copy, 17 U.S.C. § 504(c) (1)-(2). Furthermore, a federal court may require an infringing party to pay EDR’s full costs and reasonable attorney’s fees in connection with an infringement suit filed by EDR, 17 U.S.C. § 505. Liability for copyright infringement is joint and several, and individuals, such as officers and directors of a company, can be personally liable as contributory infringes. Violation of federal copyright law may also constitute a criminal offense, 17 U.S.C. § 506.
Applying the law summarized above to EDR’s copyrights in its Reports, except as set forth above, without the written permission of EDR, it is a violation of copyright law:
• to make a photocopy or any other reproduction in any medium of a copyrighted EDR Report or any portion thereof; or
• to feature a photocopy or any other reproduction in any medium of a copyrighted EDR Report in any published work, in any medium. There will be no exceptions to this policy. EDR is extremely concerned about its copyrights in its Reports and will be very vigilant in protecting those rights. However, EDR understands our end users’ need to make copies of EDR Reports for their own internal use. In that regard, all end users are hereby granted a limited usage license to make up to three photocopies of any EDR Report for their own internal use. If, on special occasions, an end user needs more copies, they may simply contact an account executive at EDR to obtain the required authorization or order additional copies of the relevant EDR Reports. Fees associated with the grant of such authorizations shall be determined by EDR on a case-by-case basis, based on the number of copies for which authorization is requested and the purpose for which they are requested. Fees for additional copies of EDR Reports will be charged at EDR’s standard rates in effect from time to time.
Inquiries should be addressed to: CFO, Environmental Data Resources, Inc., 440 Wheelers Farms Road, Milford, CT 06461, Tel. (203) 783-8150.