WEBSITE TERMS OF USE

PLEASE READ THESE TERMS OF USE CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION IN CLAUSE 11. BY CLICKING “I AGREE” OR ACCESSING OR USING THIS WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS OF USE AND ALL TERMS INCORPORATED BY REFERENCE (TERMS OF USE). IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS OR USE THIS WEBSITE.

These Terms of Use do not alter the terms or conditions of any other agreement you may have with Nearmap or its Subsidiaries or Related Parties or Affiliates for products, services or otherwise and those terms and conditions will take precedence where it conflicts with these terms. If you are using the Website on behalf of an entity, you represent and warrant that you are authorised to accept these Terms of Use on such entity’s behalf, and that such entity will be responsible to Nearmap if you violate these Terms of Use. You may only access the Website if you are (a) over 13 years old and (b) allowed by law to enter into a binding agreement.

Definitions of capitalized words are set out in clause 13 of these Terms of Use.

1.  GENERAL TERMS AND CONDITIONS

1.1 Ownership The Website is owned and operated by Nearmap.

1.2   Accessing the Website You may use the Website, and the information, writing, images and/or other works that you see, hear or otherwise experience on the Website solely for your personal, non-commercial use and/or to learn about Nearmap’s products and services, and solely in compliance with these Terms of Use.

1.3 Availability Pages describing Nearmap's products and services are accessible worldwide but this does not mean these products and services are available in your country.  We may block access to certain products and services (or certain service features or content) in certain countries on the Website.   

2. PROHIBITED USE OF WEBSITE

2.1 Prohibited use of Website You agree that your use of the Website will not violate any law, contract, intellectual property or other third-party right or constitute a tort, and that you are solely responsible for your conduct while using the Website. You further agree not to:

(a) do anything to damage, interfere with, negatively affect, inhibit or disrupt access to or use of the Website or do anything which might impair its functionality;

(b) use the Website in any way to send unsolicited (commercial or otherwise) e-mail or any material for marketing or publicity purposes, or any similar abuse of either;

(c) use the Website to harvest or collect the email addresses or other contact information of other users for the purpose of sending spam or other commercial messages;

(d) publish, post, distribute, disseminate or otherwise transmit, discriminatory, defamatory, hateful, harassing, abusive, threatening, offensive, infringing, obscene, indecent or other unlawful or objectionable or confidential material or information;

(e) make available, upload or distribute by any means any material or files that contain any viruses, bugs, corrupt data, “trojan horses”, “worms” or any other harmful software;

(f) remove any content or information from the Website;

(g) falsify the true ownership of material or information made available via the Website;

(h) obtain or attempt to obtain unauthorised access, through whatever means, to the Website;

(i) develop any third-party applications that interact with the Website without Nearmap’s prior written consent;

(j) use any robot, iframe, spider, crawler, scraper or other automated means or interface not provided by Nearmap to access the Website, including, without limitation, for the purpose of copying, extracting, aggregating, displaying, publishing or distributing any content or data made available via the Website;

(k) use the Website other than in accordance with these Terms of Use;

(l) share content or engage in behaviour that violates anyone’s Intellectual Property Rights;

(m) violate applicable law; or

(n) attempt any of the above acts or engage, encourage or permit another person to do any of the above acts.

3. NO CHARGE PRODUCTS

3.1 Licence Nearmap from time to time may offer certain products to you at no charge, including free accounts and trial use (No Charge Products). Subject to your compliance with these Terms of Use and the law, Nearmap grants to you a limited, non-exclusive, non-transferrable licence to use the No Charge Products subject to any additional terms that Nearmap specifies and only for the period designated by Nearmap (Licence).  You may only use the Licence for the purposes of determining if you wish to purchase a licence for any Nearmap products and services and at all times excludes any copying, reproduction, Commercial Purpose and Unlawful Purpose. Nearmap reserves the rights to terminate your Licence at any time and for any reason in its sole discretion, without liability to you.  You are not permitted to make the No Charge Product available in any medium or manner to any third party.

3.2 Users The Licence is only to be used by you and/or the specific individual(s) whom you have requested Nearmap provision access under the Licence (Authorised Users).

3.3 Acknowledge Nearmap source You and any Authorised Users must not remove or cause to be removed any Nearmap logo, watermark or other Nearmap attribution in any No Charge Products.

3.4 Password/ID Any password/ID issued by Nearmap to you and any Authorised Users are personal and confidential to that individual. If Nearmap suspects that any password/ID is being used by a different user to the individual whom it was issued to, Nearmap may:

(a)       immediately cancel that password/ID; and/or

(b)       immediately cease your access to the No Charge Products.

3.5 Unauthorised User You shall take reasonable steps to prevent unauthorised access to the Licence, including without limitation protecting your passwords and other log-in information.  You shall notify Nearmap immediately of any known or suspected unauthorised use of the Licence or breach of your security and shall use best efforts to stop such breaches.

4. TERMINATION

Termination by Nearmap Nearmap may, in its sole discretion prevent you from accessing the Website for any reason, including without limitation, if Nearmap believes that you have breached these Terms of Use, act in a manner that clearly shows that you do not intend to, or are unable to comply with these Terms of Use.

5. INTELLECTUAL PROPERTY

5.1 Ownership Unless otherwise indicated, the Website, any No Charge Products and all associated Intellectual Property Rights, data, information and software are owned by Nearmap and its licensors, and are protected by copyright, moral rights, trademark and other laws relating to the protection of intellectual property. Nearmap reserves all of its Intellectual Property Rights. Except for the limited Licence granted to you in clause 3.1, no ownership or Intellectual Property Rights in the Website or the No Charge Products will pass to you. 

5.2 Trademarks The Nearmap trademarks and all associated Intellectual Property Rights are owned by Nearmap. Nothing in these Terms of Use confers upon you any rights to use or modify any of Nearmap’s trademarks.

6. THIRD PARTY PROVIDERS

6.1 Third Party Providers Nearmap engages Third Party Providers in order to provide the No Charge Products. You agree to comply with all requirements and restrictions that Third Party Providers may impose on you directly, or indirectly by imposition on Nearmap, in relation to their respective products and/or services, at the time of, or subsequent to, these Terms of Use. You acknowledge that provision of any No Charge Products are subject to, and dependent upon, adequate delivery of products and services by the Third Party Providers. In accordance with clause 6 of these Terms of Use, Nearmap’s liability is reduced to the extent that loss or damage of any kind is caused, or contributed to, by Third Party Providers. For your convenience, Nearmap has set out in this clause 6 links to the terms and conditions of these Third Party Providers with which you are required to comply. You further agree to comply with the respective terms and conditions of Third Party Providers, which currently include the Third Party Providers set out below. Third Party Providers and their terms may change from time to time so you should review them each time you access any No Charge Products.

(a) Google Nearmap engages Google to supply navigation and geolocation data, and related content. You agree to the Google Terms of Service (https://www.google.com/enterprise/earthmaps/legal/us/maps_purc hase_agreement_apac.html) as they apply to you.

(b) Amazon Web Services (AWS) Nearmap engages Amazon Web Service, Inc. to provide services which enables delivery of the No Charge Products. By entering into these Terms of Use, you agree to comply with the AWS Customer Agreement (http://aws.amazon.com/agreement/) as it applies to you. Use of the No Charge Products are also subject to your compliance with the following AWS policies:

(i) Privacy Policy (http://aws.amazon.com/privacy/);

(ii) Acceptable Use Policy (http://aws.amazon.com/aup/);

(iii) Terms of Use (http://aws.amazon.com/terms/);

(iv) Service Terms (http://aws.amazon.com/serviceterms/); and

(v) Trademark Use Guideline (http://aws.amazon.com/trademark-guidelines/).

(c) NASA/NCAS By entering into these Term of Use, you agree to the following NASA/NCAS terms and conditions: (https://www.nearmap.com/legal/Copyright).

7. WARRANTY AND LIABILITY

7.1 DISCLAIMER OF WARRANTIES THE WEBSITE AND THE NO CHARGE PRODUCTS ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW. NEARMAP AND ITS CONTENT PROVIDERS, AGENTS AND AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND COURSE OF DEALING OR PERFORMANCE.

7.2 NO REPRESENTATIONS WHILE NEARMAP USES REASONABLE EFFORTS TO ENSURE THE ACCURACY, CORRECTNESS AND RELIABILITY OF THE NO CHARGE PRODUCTS AND THE WEBSITE, NEARMAP MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, CORRECTNESS OR RELIABILITY OF ANY NO CHARGE PRODUCTS OR CONTENT CONTAINED ON THE WEBSITE. THE NO CHARGE PRODUCTS AND THE WEBSITE ARE SUBJECT TO ERRORS, OMISSIONS, INACCURACIES AND DISTORTIONS AND NEARMAP WILL NOT BE RESPONSIBLE FOR, OR LIABLE FOR ANY CLAIMS MADE BY OR ARISING OUT OF, ANY PERSON OR ENTITY SEEKING TO RELY ON ANY OF THE NO CHARGE PRODUCTS OR THE WEBSITE. NEARMAP SPECIFICALLY DISCLAIMS ANY LIABILITY FOR ANY ACTIONS RESULTING FROM YOUR USE OF ANY NO CHARGE PRODUCTS. YOU MAY ACCESS THE WEBSITE AND/OR ANY NO CHARGE PRODUCTS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE AND ACESS OF THE WEBSITE AND ANY NO CHARGE PRODUCTS.

7.3 NO LIABILITY FOR CLAIMS TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL NEARMAP, ITS CONTENT PROVIDERS, AGENTS OR AFFILIATES BE LIABLE FOR ANY CLAIMS OF ANY KIND ARISING FROM OR CONNECTED WITH THE USE OF THE WEBSITE OR THE NO CHARGE PRODUCTS, OR THE UNAVAILABILITY OF THE SAME, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, AND DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE. YOU ARE RESPONSIBLE FOR THE ENTIRE COST OF ALL SERVICING, REPAIR OR CORRECTION REQUIRED DUE TO YOUR USE OF THIS WEBSITE OR THE NO CHARGE PRODUCTS. THIS EXCLUSION APPLIES, WITHOUT LIMITATION, TO ANY CLAIMS CAUSED BY OR RESULTING FROM RELIANCE BY A USER ON ANY INFORMATION OBTAINED FROM NEARMAP.

7.4 LIMIT OF LIABILITY IN NO EVENT WILL THE AGGREGATE LIABILITY OF NEARMAP, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE WEBSITE AND THE NO CHARGE PRODUCTS SHALL EXCEED USD$100 IF YOU RESIDE IN NORTH AMERICA OR AUD$100 IF YOU RESIDE IN AUSTRALIA OR OUTSIDE OF NORTH AMERICA. 

7.5 THIRD PARTY PROVIDERS YOU ACKNOWLEDGE THAT NEARMAP RELIES ON THE SERVICES OF THIRD PARTY PROVIDERS IN ORDER TO SUPPLY THE NO CHARGE PRODUCTS AND SERVICES. WITHOUT LIMITING ANY OF THE ABOVE, FOR THE AVOIDANCE OF DOUBT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEARMAP WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR COST OF ANY KIND, WHICH IS CAUSED, OR CONTRIBUTED TO, BY A THIRD PARTY SERVICE PROVIDER.

8. INDEMNITY

YOU AGREE TO INDEMNIFY AND HOLD NEARMAP AND ITS DIRECTORS, OFFICER, EMPLOYEES, AGENTS AND SUBCONTRACTORS, HARMLESS FROM AND AGAINST ANY THIRD PARTY CLAIMS, AND MUST PAY ON DEMAND ALL LOSSES, EXPENSES, DAMAGES AND COSTS (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) SUFFERED OR INCURRED BY NEARMAP, WHICH ARISE OUT OF YOUR USE OF THE WEBSITE AND ANY NO CHARGE PRODUCTS.

9. PRIVACY POLICY

Please refer to Nearmap’s Privacy Policy, available at https://us.nearmap.com if you reside in North America and https://au.nearmap.com/legal/privacy if you reside in Australia or outside of North America, for information about how Nearmap collects, uses and discloses information about you.

10. CLASS ACTION WAIVER

WHERE PERMITTED UNDER APPLICABLE LAW, YOU AND NEARMAP AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.  Unless both you and Nearmap agree, no arbitrator or judge may consolidate more than one person's claims or otherwise preside over any form of a representative or class proceeding.

11. ARBITRATION

IF YOU RESIDE IN NORTH AMERICA PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH NEARMAP AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM NEARMAP.

You and Nearmap agree to arbitrate any dispute arising from these Terms of Use or your use of the Website or any No Charge Products, except that you and Nearmap are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.

You and Nearmap agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to Nearmap shall be sent to support@nearmap.com. You and Nearmap further agree: (a) to attempt informal resolution prior to any demand for arbitration; (b) that any arbitration will occur in Salt Lake City, Utah; (c) that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Arbitration Rules of the American Arbitration Association; and (d) that the state or federal courts in Salt Lake City, Utah have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND NEARMAP WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.

12. MISCELLANEOUS

12.1 Waiver Any waiver of any terms of these Terms of Use will be effective only if in writing and signed by Nearmap. Any rights not expressly granted herein are reserved.

12.2 Severability If one or more of the terms of these Terms of Use are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining terms will not be affected.

12.3 Amendments Nearmap reserves the right at any time to amend these Terms of Use and/or to impose new and/or additional terms or conditions on your use of the Website and the No Charge Products. It is your responsibility to check these Terms of Use periodically for changes. By continuing to use the Website and access the No Charge Products after the revisions come into effect, you agree to be bound by the revised terms.

12.4 Entire Agreement These Terms of Use:

(a)   comprises the entire agreement and understanding between the parties on everything connected with the subject matter of these Terms of Use; and

(b)   supersedes any prior agreement or understanding on anything connected with that subject matter.

12.5 Governing Law If you reside in North America, these Terms of Use are governed by and construed in accordance with the laws of the State of Utah applicable to agreements made and to be entirely performed within the State of Utah, without resort to its conflict of law provisions.  If you reside in Australia or outside of North America, these Terms of Use are governed by the laws of New South Wales and you agree to submit to the exclusive jurisdiction of the New South Wales courts in the event of any dispute.

13. DEFINITIONS

In these Terms of Use:

Affiliates means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where "control" means the power to direct the management or affairs of an entity, and "ownership" means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entiy.

Claim means any claim, cost (including legal costs on a solicitor and client basis), damages, debt, expense, tax, liability, loss, obligation, allegation, suit, action, demand, cause of action, proceeding or judgment of any kind however calculated or caused, and whether direct or indirect, consequential, incidental or economic.

Commercial Purpose means to distribute, transfer, sell, sub-license or pass possession of the No Charge Products (in whole or in part) for the purpose of direct commercial benefit or gain by you.

Intellectual Property Rights includes all industrial and intellectual property rights throughout the world including copyright, moral rights, trademarks, patents, rights to protect confidential information and any similar rights.

Nearmap means Nearmap US, Inc. if you reside in North America and Nearmap Australia Pty Ltd if you reside in Australia or outside of North America.

Related Parties has the meaning given in the Corporations Act (2001) Cth.

Subsidiaires has the meaning given in the Corporations Act (2001) Cth.

Third Party Providers means third party providers of products and services to Nearmap.

Unlawful Purpose means any unlawful purpose, including but not limited to stalking, harassing or intimidating any person or engaging in misleading or deceptive conduct.

Website means http://us.nearmap.com and all pages and sub-sites available within that domain if you reside in North America, and http://www.nearmap.com and all pages and sub-sites available within that domain if you reside in Australia or outside of North America. 

You, your or you means the person or entity who or which is acquiring the right to use the Website under these Terms of Use.