Thank you for your interest in Mappy, Inc. (“Mappy,” “us” or “our”). Mappy is a geospatial platform connecting venue operators with their guests. Mappy developer tools for mobile apps are designed to enhance the guest experience by providing the ability to find friends, family, and amenities on custom, interactive 2D/3D maps.The underlying data analytics platform provides information on guest movement patterns and visualization tools to inform data-driven decisions for venues.
Our offerings include (i) mapping services, which may include the custom development of map packages and access to map packages (“Operational Maps”); (ii) developer tools, including the Mappy API and Mappy SDK, or web maps on a software-as-a-service basis (“Developer Tools”); and (iii) access on a software-as-a-service basis to analytics mapping services and information products (“User Analytics Offerings”) and related software and services (the foregoing described in (i), (ii), and (iii) are collectively, the “Services”). To sign-up for or purchase a subscription to any Service hereunder, a customer must execute or electronically enter into an order with Mappy that references these Master Subscription Terms and Conditions (“T&Cs”) (any such order form that is accepted by Mappy is hereafter referred to as an “Order”). As part of the ordering process, you must identify the applicable entity that is designated as the customer(“Customer”). Each Order will also identify the features and functionality of the Services to be provided to Customer pursuant to such Order and may also identify usage caps or limitations. Mappy will not be required, by virtue of this Agreement (defined below) or otherwise, to provide to Customer any other Service features or functionality which are not expressly covered by such Order. All Orders will be governed by these T&Cs, and the T&Cs, together with any applicable Order, are hereafter referred to as this (“Agreement”).
THIS AGREEMENT SETS FORTH THE LEGALLY BINDING CONTRACT BETWEEN MAPPY AND CUSTOMER THAT GOVERNS USE OF THE SERVICES. BY CLICKING “I ACCEPT,”OR EXECUTING AN ORDER, YOU REPRESENT AND WARRANT THAT YOU: (1) WISH TO USE THE SERVICES ON BEHALF OF, OR WITHIN YOUR CAPACITY AS, A REPRESENTATIVE, AGENT, OR EMPLOYEE OF THE ENTITY THAT IS DESIGNATED AS THE CUSTOMER AT THE TIME OF SIGN UP OR IN SUCH ORDER, AND (2) HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER. BY CHECKING “I ACCEPT” OR EXECUTING OR SUBMITTING AN ORDER, CUSTOMER IS ACCEPTING AND AGREEING TO BE BOUND BY OF ALL OF THE PROVISIONS OF THIS AGREEMENT.
This Agreement is subject to occasional revision, and Mappy reserves the right to modify fees for accessing or using the Services in the future. See Section 13.3 of this Agreement for further information about changes to this Agreement.
1. Definitions. For purposes of this Agreement, the following terms have the meanings set forth below.
1.1. “Aggregated Data” data and information related to Customer’s use of the Services that is used by Mappy in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.2. “Authorized Users” means Customer’s employee or contractor personnel authorized by Customer to access and use the Services solely on behalf of Customer and for Customer’s internal business purposes.
1.3. “Customer Application” has the meaning set forth in Section 5.1.
1.4. “Customer Data” means, other than Aggregated Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
1.5. “Developer Tools” has the meaning set forth in the preamble, and includes any updates or modifications thereto made available by Mappy to Customer from time to time in its sole discretion.
1.6. “Documentation” means Mappy’s published user instructions, manuals, online help files, or other materials that are provided by Mappy in connection with the Services, and includes any updates or modifications thereto made available by Mappy to Customer from time to time in its sole discretion.
1.7. “End User” means the individual end users of any Customer Application.
1.8. “Mappy API” means any application programming interfaces made available to Customer by Mappy for the purposes of enabling Customer to send data to or receive data from the Services.
1.9. “Mappy App” means any and all of Mappy’s customer-facing mobile application(s), and includes any updates or modifications thereto made available by Mappy from time to time in its sole discretion.
1.10. “Mappy SDK” means the software development kit for Authorized Users.
1.11. “Mappy Technology” means collectively, the Services, Mappy API, Mappy App, Mappy SDK, Operational Maps, User Analytics Offerings, Documentation, and any other services to be provided pursuant to the Agreement.
1.12. “Maps” means the map(s) of the Venue developed individually by Mappy or jointly with a Customer.
1.13. “Marks” has the meaning set forth in Section 13.1.
1.14. “Operational Maps” has the meaning set forth in the preamble, and includes any updates or modifications thereto made available by Mappy to Customer from time to time in its sole discretion.
1.15. “Order” has the meaning set forth in the preamble.
1.16. “Personal Information” means “personal data,” “personal information,” “personally identifiable information” or such similar term under applicable Privacy & Data Security Laws.
1.17. “Privacy & Data Security Laws” means the privacy, data protection and data security laws and regulations applicable to the processing of Personal Information.
1.18. “Term” has the meaning set forth in Section 9.1.
1.19. “User Analytics Offerings” has the meaning set forth in the preamble, and includes any updates or modifications thereto made available by Mappy to Customer from time to time in its sole discretion.
1.20. “Venue” means the physical venue or other property or properties designated on an Order.
2. Ownership.
2.1. Mappy Technology. Customer acknowledges that all right, title, and interest, including all intellectual property rights, in and to the Mappy Technology and any Maps shall be and will remain the exclusive property of Mappy, and Customer hereby irrevocably assigns to Mappy all right, title and interest Customer may have or acquire in Mappy Technology or Maps.
3. Mappy Application. Customer acknowledges and agrees that Mappy has developed the Mappy App, and may in the future develop additional Mappy Apps. Customer acknowledges and agrees that use of any Mappy App is subject to Mappy’s terms of use and privacy policy applicable thereto, as may be updated by Mappy from time to time in its sole discretion.
4. Operational Maps.
4.1. Access Right and License. Subject to Customer’s ongoing compliance with the terms of the Agreement, Mappy hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, internal right during the Term to access and use, and allow Authorized Users to access and use, the Operational Maps solely for Customer’s internal business purposes subject to any limitations set forth in the Order. To the extent Operational Maps includes custom development of map packages, Mappy grants Customer a non-exclusive, non-transferable, non-sublicensable, internal use only license, during the Term to display, distribute, and modify such custom map packages in accordance with the applicable Order.
4.2. Requirements. Customer is responsible for maintaining the secrecy of any non-public links and authentication information that provide access to the Operational Maps to Authorized Users. Customer will, and will ensure that each Authorized User, will use reasonable efforts to prevent any unauthorized access or use of the Operational Maps and immediately notify Mappy in writing of any unauthorized access or use. If there is unauthorized access or use by anyone who obtained access to the Operational Maps directly or indirectly through Customer or its Authorized Users, Customer will, and will ensure that each Authorized User will, take all steps reasonably necessary to terminate the unauthorized access or use. Customer will, and will ensure that each Authorized User will, cooperate and assist with any actions taken by Mappy to prevent or terminate unauthorized use of the Operational Maps and remediate any issues resulting from, or related to, such unauthorized access or use.
4.3. Restrictions. Customer shall not, directly or indirectly, and shall not authorize any third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, algorithms, or associated know-how of the Operational Maps ; (ii) write or develop any program based upon the Operational Maps or any portion of any of the foregoing, or otherwise use the Operational Maps in any manner for the purpose of developing, distributing or making available products or services that compete with the Operational Maps ; (iii) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Operational Maps or any rights to any of the foregoing; (iv) permit the Operational Maps to be accessed or used by any persons other than Authorized Users accessing or using the Operational Maps in accordance with the Agreement; (v) alter or remove any trademarks or proprietary notices contained in or on the Operational Maps; or (vi) circumvent or otherwise interfere with any authentication or security measures of the Operational Maps or otherwise interfere with or disrupt the integrity or performance of the foregoing or except as expressly permitted hereunder. Customer represents and warrants that it and all Authorized Users will, at all times during the Term, comply with all applicable laws in connection with its use of the Operational Maps. Customer acknowledges that Mappy may, but is under no obligation to, monitor Customer’s use of the Operational Maps. Mappy may suspend Customer’s, or an Authorized User’s access to the Operational Maps for any period during which Customer or an Authorized User is, or Mappy has a reasonable basis for alleging Customer or an Authorized User is, in noncompliance with the foregoing.
5. Developer Tools.
5.1. License. If Customer’s Order includes a license to the Developer Tools, then subject to Customer’s ongoing compliance with the terms of the Agreement and any limitations set forth in the Order, Mappy hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, internal use only license, during the Term to: (i) use the Mappy SDK for the purpose of integrating the Mappy API and Maps into Customer’s mobile application(s) and web based platforms (“Customer Applications”), in each case as identified in the Order; (ii) call the Mappy API in accordance with Documentation; and (iii) make only those copies of the Mappy SDK and Documentation as reasonably necessary to exercise Customer’s rights under the foregoing (i) and (ii).
5.2. Requirements. Customer is responsible for maintaining the secrecy of any non-public links and authentication information that provide access to the Developer Tools to Authorized Users. Customer will, and will ensure that each Authorized User, will use reasonable efforts to prevent any unauthorized access or use of the Developer Tools and immediately notify Mappy in writing of any unauthorized access or use. If there is unauthorized access or use by anyone who obtained access to the Developer Tools directly or indirectly through Customer or its Authorized Users, Customer will, and will ensure that each Authorized User will, take all steps reasonably necessary to terminate the unauthorized access or use. Customer will, and will ensure that each Authorized User will, cooperate and assist with any actions taken by Mappy to prevent or terminate unauthorized use of the Developer Tools and remediate any issues resulting from, or related to, such unauthorized access or use.
5.3. Restrictions. Customer acknowledges and agrees that as between the parties, Mappy and its licensors own all right, title, and interest, including all copyrights and other intellectual property rights, in and to the Developer Tools. Mappy reserves all rights not expressly granted by this Agreement. Customer is entitled to use the Developer Tools (i) solely in accordance with the terms of this Agreement, and (ii) unless expressly stated otherwise in a written agreement signed by Mappy, solely for Customer’s internal business use. Customer shall not decompile, disassemble, reverse engineer, reverse assemble, analyze or otherwise examine, prepare derivative works of, modify, or attempt to derive source code from the Developer Tools except to the extent permitted by applicable law.
6. User Analytics Offerings.
6.1. Access Right and License. If Customer’s Order includes licenses to the User Analytics Offerings, then subject to Customer’s ongoing compliance with the terms of the Agreement and any limitations set forth in the Order, Mappy hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, internal use only license during the Term to access the User Analytics Offerings via web-based platforms (e.g., data analytics operations dashboards) for the number of licenses specified in the Order.
6.2. Requirements. Customer is responsible for maintaining the secrecy of any non-public links or authentication information that provide access to the User Analytics Offerings to Authorized Users. Customer will, and will ensure that each Authorized User, will use reasonable efforts to prevent any unauthorized access or use of the User Analytics Offerings and immediately notify Mappy in writing of any unauthorized access or use. If there is unauthorized access or use by anyone who obtained access to the User Analytics Offerings directly or indirectly through Customer or its Authorized Users, Customer will, and will ensure that each Authorized User will, take all steps reasonably necessary to terminate the unauthorized access or use. Customer will, and will ensure that each Authorized User will, cooperate and assist with any actions taken by Mappy to prevent or terminate unauthorized use of the User Analytics Offerings and remediate any issues resulting from, or related to, such unauthorized access or use.
6.3. Restrictions. Customer acknowledges and agrees that as between the parties, Mappy and its licensors own all right, title, and interest, including all copyrights and other intellectual property rights, in and to the User Analytics Offerings. Mappy reserves all rights not expressly granted by this Agreement. Customer is entitled to use the User Analytics Offerings (i) solely in accordance with the terms of this Agreement, and (ii) unless expressly stated otherwise in a written agreement signed by Mappy, solely for Customer’s internal business use. Customer shall not decompile, disassemble, reverse engineer, reverse assemble, analyze or otherwise examine, prepare derivative works of, modify, or attempt to derive source code from the User Analytics Offerings except to the extent permitted by applicable law.
7. Customer Data and Aggregated Data.
7.1. Ownership; License. Notwithstanding anything to the contrary in this Agreement, Mappy may monitor Customer’s use of the Services and collect and compile Aggregated Data. As between Mappy and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Mappy. Customer acknowledges that Mappy may compile Aggregated Data based on Customer Data input into the Services. Customer agrees that Mappy may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law. Mappy acknowledges that, as between Mappy and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Mappy a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data (including in the Mappy App) and perform all acts with respect to the Customer Data as may be necessary for Mappy to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Data.
7.2. Personal Information. The parties acknowledge that in performing its obligations, Mappy may obtain or have access to, or otherwise store, process, receive or transmit certain Personal Information. All Personal Information collected via the Mappy App will be subject to Mappy’s privacy policy, as may be updated by Mappy from time to time, and Customer agrees to comply with the terms thereof. With respect to Personal Information transmitted by or through Customer to Mappy, including via the Mappy API, Customer acknowledges that Mappy and Customer will be separate and independent data controllers, businesses or equivalent terms under applicable Privacy & Data Security Laws for such Personal Information. Customer is responsible for providing to End Users all necessary notices and for obtaining appropriate consents and waivers from such End Users, to enable lawful processing of Personal Information received from End Users for any applicable purpose, in accordance with applicable Privacy & Data Security Laws. Each party agrees to respond to valid and verified requests made by End Users who are consumers to exercise their rights where required by Privacy & Data Security Laws. A party shall provide to the other party with such assistance as may be reasonably necessary and technically feasible to assist the requesting party in fulfilling its obligations to respond to such requests from End Users. Customer agrees that (i) at all times during the Term of this Agreement, it will comply with all applicable Privacy & Data Security Laws, and (ii) that Personal Information of End Users will not be utilized by Customer, its contractors or agents other than as permitted by Customer’s published privacy policy or terms of service, each as amended from time to time.
8. Fees; Payment.
8.1. Fees. Customer agrees to pay to Mappy any fees for each Service that Customer purchases or uses (including any overages based on consumption or usage) in accordance with the pricing and payment terms presented to Customer in the Order, unless otherwise agreed upon in writing between Customer and Mappy or updated in accordance with this Section. For Orders that automatically renew, the billing cycle (typically monthly or annually) will be indicated in the applicable Order, and in such case, the applicable subscription fees for any subsequent billing cycle will be charged at Mappy’s then-current published list price, until the subscription terminates in accordance with this Agreement. Customer will be billed for all amounts due under this Agreement using the billing method designated by Customer in the Order or any other Customer-provided payment method on file in accordance with the terms set forth in the Order. Customer must provide current, complete, and accurate information for Customer’s billing account and promptly update all information to keep Customer’s billing account current, complete, and accurate. Fees paid by Customer are non-refundable, except as provided in this Agreement or when required by law. Customer must terminate any automatically renewing Order(s) before renewal in accordance with this Agreement in order to avoid billing of the recurring fees to Customer. Customer acknowledges that all Orders that include auto-renewal have a recurring payment feature and Customer accepts responsibility for all recurring charges prior to termination. If there are no valid payment methods on file for Customer, Mappy may send Customer invoices for the balance of any amounts due.
8.2. Taxes. Prices do not include, and Customer must pay or reimburse Mappy for, all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Mappy’s net income). If Mappy has a legal obligation to pay or collect sales tax for which Customer is responsible, Mappy will calculate the sales tax based upon the billing information it has about Customer and charge Customer that amount (which, if Customer’s billing information is incomplete or inaccurate, may be the highest prevailing rate then in effect), unless Customer timely provides Mappy with a valid tax exemption certificate acceptable to the appropriate taxing authority.
8.3. Late Payments. Mappy may charge Customer interest on overdue fees at the rate of 1.5% per month (or the highest rate permitted by law, if less) on the amount overdue.
9. Term; Termination
9.1. Term. This Agreement will start on the effective date of Customer’s first Order and, unless terminated earlier in accordance with this Agreement, will continue until all Orders hereunder have expired or been terminated for ninety (90) days. Additionally, in the event that all Orders have expired or terminated, then either party may terminate this Agreement upon written notice to the other party. The duration of Customer’s initial subscription term for each Order will be as set forth in such Order (“Initial Subscription Term”), and, if indicated in the Order, may automatically renew on a monthly or annual basis (as applicable, a “Renewal Subscription Term”) until terminated or cancelled by Customer or Mappy as set forth below. The Initial Subscription Term of an Order, together with any applicable Renewal Subscription Term(s) for such Order, are collectively, (the “Term”).
9.2. Termination of Recurring Subscriptions. Unless otherwise set forth in an Order, either party may cancel any automatically renewing subscription(s) under this Agreement by providing the other party with at least thirty (30) days’ notice of its intent to terminate prior to the end of the then-current Term. Customer should send notices of termination to info@bemappy.io. If Customer cancels or Mappy terminates a subscription as set forth above, then Customer will continue to have access to the Services until completion of Customer’s then-current Term, provided that Customer has timely paid all applicable fees and remains in compliance with the terms of this Agreement.
9.3. Termination for Cause. Mappy may terminate this Agreement and/or any applicable Order, in whole or in part, by written notice if Customer fails to pay within ten (10) days after notice of nonpayment any amounts owed to Mappy. Mappy may further suspend or restrict Customer’s access to the Services if Mappy reasonably believes Customer is in breach of this Agreement. Customer may terminate this Agreement and all Orders if Mappy is in material breach of this Agreement, which is not cured within 30 days after written notice of such breach. Either party may terminate this Agreement and all Orders if the other party files for or is adjudicated bankrupt or suffers any other analogous event.
9.4. Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) all outstanding Orders and access to Mappy Technology will automatically terminate; and (ii) all outstanding payment obligations of Customer become due and payable immediately. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1, 2.1, 4.2, 5.3, 7.1, 8.1, 9.4, 10, 11, 12, and 13.
9.5. Delinquent Accounts; Suspension. Mappy reserves the right to suspend, terminate, or downgrade the Services to a free service tier, in its sole discretion, if any amount under an Order is due but unpaid until such time as all amounts due under this Agreement are paid in full. In addition to the amount due for the Service, Customer will be charged with fees or charges that are incidental to any chargebacks or collection of any such unpaid amounts including collection fees. Additionally, Mappy reserves the right to suspend Customer and/or its Authorized Users’ access to the Service or any portion thereof at any time: (i) in the event that Mappy suspects in good faith that Customer or any of its Authorized Users is using the Service in violation of this Agreement, or (ii) if Mappy otherwise believes such action is reasonable to comply with any applicable law, regulation or court order.
10. Indemnification. Customer shall indemnify and hold Mappy and its affiliates, officers, employees, partners, suppliers, licensors and agents (each, a “Mappy Party”) harmless, from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (i) Customer’s or its Authorized Users use of the Services or Developer Tools in violation of this Agreement; (ii) Customer’s violation of applicable laws or regulations or the rights of another party; and (iii) Customer’s failure to comply with Section 7.1. Mappy reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Mappy in asserting any available defenses. This provision does not require Customer to indemnify any of Mappy Parties for any unconscionable commercial practice by such Mappy Party or for such Mappy Party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Mappy’s website or any Service provided hereunder.
11. Disclaimers. THE SERVICE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND THE MAPPY PARTIES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. THE MAPPY PARTIES MAKE NO WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR THAT THE SERVICE OR THE RESULTS OBTAINED FROM USING THE SERVICE WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. THE SERVICE MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE MAPPY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICE OR THE RESULTS OR METADATA DERIVED FROM USING THE SERVICE, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MAPPY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF CUSTOMER’S FIRST USE OF THE SERVICE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE MAPPY PARTIES ARE NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD THE MAPPY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH CUSTOMER. THE MAPPY PARTIES MAKE NO WARRANTY THAT ANY GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET CUSTOMER’S REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. MAPPY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICE.
12. LIMITATION ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY MAPPY PARTY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA OR REVENUE, DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR CUSTOMER’S USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF SUCH MAPPY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE IS AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S DEVICES OR COMPUTER SYSTEMS, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE MAPPY PARTIES WILL NOT BE LIABLE TO CUSTOMER FOR MORE THAN THE TOTAL AMOUNT PAID TO MAPPY BY CUSTOMER DURING THE TWELVE MONTHS PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MAPPY AND CUSTOMER.
THE FOREGOING LIMITATIONS ON LIABILITY AND CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A MAPPY PARTY FOR (I) DEATH OR PERSONAL INJURY SOLELY TO THE EXTENT CAUSED BY A MAPPY PARTY’S GROSS NEGLIGENCE; OR FOR (II) ANY INJURY CAUSED BY A MAPPY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
13. Miscellaneous
13.1. Publicity. Mappy may, with Customer’s prior approval, display and use Customer’s name and Customer’s logos, trade names, trademarks and service marks (“Marks”) in its customer list (including on Mappy’s website, social media and in sales and marketing materials) and in the same manner in which it uses the names and Marks of its other customers. Mappy shall use Customer’s Marks in accordance with Customer’s applicable branding guidelines.
13.2. Esri. Mappy is a Partner in Esri’s Partner Network. Customer agrees that by using Mappy Services they may be considered as a Solution Delivery End User by Esri, and that they will abide by the Mappy-Esri Flow-Down Terms and Conditions found at [URL], the terms of which are hereby incorporated by reference.
13.3. Changes. This Agreement is subject to occasional revision. If Mappy makes any substantial changes, Mappy may require Customer to accept the changes, notify Customer by sending an e-mail to the contact information provided to us (if any) in an Order, and/or by prominently posting notice of the changes on the Service. Customer is responsible for providing Mappy with Customer’s most current contact information. Any changes to this Agreement will be effective upon the earliest of when Customer provides its acceptance of the changes, thirty (30) calendar days following our dispatch of an e-mail notice to Customer (if applicable), and thirty (30) calendar days following our posting of notice of the changes on the Service. The changes will be effective immediately for new users of the Service. Continued use of our Service following notice of such changes shall indicate Customer’s acknowledgement and acceptance of such changes and agreement to be bound by the terms and conditions of such changes.
13.4. Notice. Where Mappy requires that Customer provide an e-mail address, Customer is responsible for providing Mappy with its most current e-mail address. In the event that the last e-mail address provided to Mappy is not valid, or for any reason is not capable of delivering any notices required/permitted by the Agreement, Mappy’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Customer may give notice to Mappy at the following address: 4348 Waialae Ave. #532, Honolulu, HI 96816. Such notice shall be deemed given when received by Mappy by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
13.5. International Users. The Service is controlled and offered by Mappy from its facilities in the United States of America. Mappy makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
13.6. Government Users. The Service is commercial computer software and commercial computer software documentation. If Customer is a U.S. Government agency, this Agreement constitutes the entire agreement between the parties and is binding on government users in accordance with the policy stated at Federal Acquisition Regulation (FAR) 48 CFR 12.212 (for non-defense agencies) or Defense FAR Supplement (DFARS) 48 CFR 227.7202 (for defense agencies).
13.7. Export. The Service may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Mappy, or any products utilizing such data, in violation of the United States export laws or regulations.
13.8. Consumer Complaints. Mappy is located at the address in Section 13.12. If Customer is a California resident, complaints may be reported to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
13.9. Electronic Communications. The communications between Customer and Mappy use electronic means. For contractual purposes, Customer: (a) consents to receive communications from Mappy in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Mappy provides electronically satisfy any legal requirement that such communications would satisfy if it were provided in a hardcopy writing. The foregoing does not affect Customer’s non-waivable rights.
13.10. Monitoring and Enforcement. Mappy reserves the right to: (i) remove or refuse to post any Maps for any or no reason in our sole discretion; (ii) take any action with respect to any Maps that we deem necessary or appropriate in our sole discretion, including if we believe that such Maps violate this Agreement, infringe any intellectual property right or other right of any person or entity, threaten the personal safety of users of the Service or the public, or could create liability for the Mappy; (iii) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Service; and/or (iv) terminate or suspend Customer’s access to all or part of the Service all for any or no reason, including without limitation, any violation of this Agreement.
13.11. Entire Agreement. This Agreement constitutes the entire agreement between Customer and Mappy regarding the use of the Service. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement shall be governed in all respects by California law, excluding any conflict of laws principles that would require the application of the laws of another jurisdiction. Customer and Mappy hereby submit to the exclusive personal jurisdiction and venue of the state and federal courts in the District of Northern California. Customer’s relationship to Mappy is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and Customer’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by Customer without Mappy’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Mappy may freely assign this Agreement. The terms and conditions set forth in this Agreement shall be binding upon assignees.
13.12. Contact Information.
Mappy, Inc.
4348 Waialae Ave. #532
Honolulu, HI 96816
