Digital Watersheds & Solution Tools: Powering Your Knowledge of the Environment
1
1.0 Definitions
“Licensor” refers to TerrainWorks Inc. (TW) or its designed agents.
“Licensee” refers to anyone holding a current TW Software and Data Access with Maintenance Agreement.
“Agreement” is the Access and Maintenance Agreement as described herein.
"Software", “Analysis Tools”, “NetMap”, “NetMapTools” “ TerrainWorks Tools” and “Tools”. These terms refer to all or any portion of TW’s open source or proprietary software programs accessed or downloaded from TW’s website or accessed through a TW sanctioned entity. Software and Data are available by annual subscription.
“Digital Landscapes”, “Databases” and “Watershed Databases”. These terms mean the digital terrain model with parameters that work with TW’s analysis tools and within ESRI ArcMap (as Add-ins), in on-line browsers, and in other formats as implemented or sanctioned by TW. Agreements specify the number and geographic location of Databases that are accessed by individual agreements.
“Error” refers to any failure of the Software and or significant defects in the Databases or Digital Landscapes.
“Maintenance” refers to TW’s service of providing program fixes for tools, data repairs, tool updates and new tools. Tool updates also refer to matching ESRI ArcMap version updates at a schedule determined by TW.
“Releases” refers to new versions of the Software and Databases that may include error corrections, modifications, updates and new data and tools.
Software and Data Access with Maintenance Agreement Identification Number is the ID and tracking number created by TW allowing registration and tracking of TW’s Software and Data Maintenance Agreements.
2.0 Extent of Software and Database Access with Maintenance Services
2.1 The extent of this Software and Data Access with Maintenance Agreement is only those that are expressly contained within this Agreement.
2.2 During the term of the Agreement, TW will provide access to all Software and to specified Databases. The Agreement term is generally in one year increments. Maintenance subscriptions are renewable (see 6.0).
2.3 Accessing Software and Database Maintenance Services is conducted through TW’s website or other TW sanctioned instrument. A Licensee determines whether new tool or database releases are available (new relative to the version number the Licensee has in possession). If new versions of tools or databases are available, the user checks if the errors have been corrected. If new versions of tools or databases are not available, or if they do not address the error, then an email message is sent to TW Support for error resolution. There is no specified scheduling or new tools or new databases; development of new tools and databases, and repairs to existing tools, are determined solely by TW.
3.0 Limitations on Extent of Software and Database Access and Maintenance
3.1 TW will provide unrestricted access to individual Databases and Tools as specified in this Agreement to all Licensees.
3.2 TW will endeavor to make Error repairs to both Software and Databases on a timely basis and to provide Tool and Database updates to all Licensees as they become available. TW has no obligation to fix Errors in either the Software or Databases within a specified time period because of the nature of its Software operating within a multi-agency and multi-vendor environment.
3.3 Customer rights are indicated under this Licensing Agreement. TW has sole and exclusive rights, title and interest, and other rights as indicated herein (but note open source license of NetMap programs).
3.4 Maintenance services expressly does not cover (1) repairs, service or replacement related to any third party software, whether or not such software interacts with TW’s Software and Databases and (2) modifications to hardware or changes to existing hardware configurations.
4.0 Software Releases
4.1 Maintenance Releases. TW may provide periodic Maintenance Releases of Software that contain Error repairs. Maintenance Releases will be denoted by a change in the digits to the right of the second decimal point, such as for example, 3.0.0 to 3.0.1.
4.2 Minor Releases. TW may provide periodic Minor Releases of Software that may contain tool updates and new tools. Minor Maintenance Release may also include Error repairs. Such Releases will be denoted by a change in the digits to the right of the first decimal point, such as for example, 3.0 to 3.1.
4.3 Major Releases. TW may provide periodic Major Releases of Software that are necessary for Software structural changes to match host commercial software, such as ESRI ArcMap version updates or other software and programming language updates. Major Releases may also contain Error repairs, tool updates and new tools. Such Releases will be denoted by a change in the digits to the left of the first decimal point, such as for example, 3.0 to 4.0.
5.0 Database Releases
5.1 Maintenance Database Releases. TW may provide periodic Maintenance Releases of Databases that contain Error repairs. Maintenance Releases will be denoted by a change in the digits to the right of the first decimal point, such as for example, 2.0 to 2.1.
5.2 Other Major Database Releases. TW may provide periodic Releases of Databases that may contain new data, such as updated digital elevation models or other digital data. Such Releases will be denoted by a change in the digits to the left of the first decimal point, such as for example, 2.0 to 3.0.
6.0 Terms and Fee
6.1 The initial term of the Software and Data Access with Maintenance Agreement will begin on receipt of order (renewal date) and will continue for twelve (12) to thirteen (13) consecutive months at the fee(s) noted at the time of purchase. Licensee may continue the service for annual maintenance at the current price. Annual Maintenance fees may change without notice, although current Licensees may not be charged an increased fee during an annual period of the Software and Data Access and Maintenance Agreement.
If Licensee extends the Software and Data Access with Maintenance Agreement, the Licensee must issue a payment in advance of the renewal date at the quoted price. If Licensee wishes to reinstate a lapsed maintenance agreement, Licensee agrees to follow licensing agreement outlined in www.terrainworks.com (subscription purchase). Licensee agrees to pay TW invoices within thirty (30) days of receipt. To reinstate lapsed maintenance, maintenance fees from the date maintenance lapsed, in addition to the current fees, must be paid. Maintenance fees are nonrefundable.
If TW fails to fulfill its obligations under this Agreement, Licensee's sole and exclusive remedy is the right to terminate this Agreement immediately for the affected Software and Databases.
7.0 Termination
7.1 TerrainWorks (NetMap) Software and Data Access with Maintenance Agreement is generally obtained on an annual basis; shorter or longer terms may be negotiated between the Licensee and TW.
7.2 The Software and Data Access with Maintenance Agreement may be terminated at any time by the Licensee or Licensor. Refunds of annual Maintenance fees are at the discretion of TW.
7.3 TW is not liable to Licensee for any costs of procurement of substitute products or services, lost sales or business expenditures, lower or lost profits, investments and any other commitments related to any business service, loss of any goodwill or for any incidental or consequential damages arising out of or related to this Maintenance Agreement or arising out of the use of TW’s Databases or Analysis Tools.
8.0 Warranty Disclaimer, Limitation of Liability and Transfer
8.1 Transfer of TerrainWorks (NetMap) analysis tools (add-ins in ArcMap) and the full digital landscapes (e.g., watershed datasets) to other, non-licensed individuals is not allowed without written permission of Licensor. Written permission is not required to transfer data and analyses created by TW in any form (shapefiles, JPEGs, spreadsheets etc.), which data and analyses can be freely disseminated. Other than as provided expressly herein, you may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized use of the Software. You must reproduce all copyright notices in the original Software on all copies or adaptations thereof.
8.2 TerrainWorks (NetMap) is Copyright 2007 (registered). The programs and source code are protected by copyright laws and international treaty provisions. By this License, Licensor grants you a non-exclusive right and license to use the executable version of the Software, where “use” in this Agreement means storing, loading, installing or executing the Software. All right, title and interest in and to the Software is retained by Licensor. Re-sale, re-licensing, or other distribution of the Software, either as it exists on a distribution disc or on a computer, or any modification of the Software is prohibited. Any assignment, lease, loan, rental, or transfer the Software to a third party without written permission of the Licensor also is prohibited.
8.3 The Software is provided “as is”, without warranty of any kind, expressed or implied, including but not limited to the warranties of merchantability, fitness for a particular purpose, and non-infringement, which warranties are hereby expressly disclaimed. In no event shall the Licensor, its officers, directors, employees and third-party suppliers, the authors, copyright holders, creators, distributors or disseminators be liable for any demand, claim, cause of action or suit for damages or other liability, including but not limited to for or in connection with consequential damages, business interruption, loss of profits, loss of business information, personal injury, wrongful death, property damage, etc., whether in an action in contract, tort, product liability or otherwise, arising from, out of or in connection with the Software or the download, use or operation or results thereof or otherwise related to the Software, even if Licensor has been made aware of the possibility of such damages. The user and any and all third parties, for themselves and their assigns, executors and heirs, in exchange for access to, use and or results of the Software, hereby waive and release any and all demands, claims, causes of action and suits of any kind, including but not limited to consequential damages, in connection with or related to the Software, its download, use, operation and or results, and agree to hold harmless and to indemnify the Licensor, authors, creators, developers, suppliers, distributors and disseminators of the Software and or results thereof of and from any and all suits, causes of action, claims and demands of any kind in connection with or related to the Software or the results thereof, including but not limited to for or in connection with consequential damages. In any event, the liability of Licensor, authors, creators, developers, suppliers, distributors and disseminators of the Software and or results thereof for damages shall not exceed the license fee, if any, paid by you directly to Licensor for use of the Software or its results. Your exclusive remedy shall be, at Licensor’s option, the repair or replacement of the Software or refund of part or all of the license fee, if any, paid by you for the Software.
Any similarity between the Software and any other software is purely unintentional and coincidental.
8.4 Licensor shall not be responsible for and does not guarantee the performance, accuracy or compatibility of the software of any and all data. Licensor is not responsible for any damage to user’s computer or hard disk that results from downloading, use or operation of the Software.
8.5 Licensor assumes no responsibility or liability for the accuracy of any and all data and any information, misinformation, or use of information with regards to the Software or the base parameter layers thereof.
8.6 This is a legal and binding agreement between you (the user) (Licensee) and Licensor regarding the Software. Please read it carefully. By use of the Software or the results thereof, you agree to be bound by all the terms and conditions of this License. If you do not agree to be bound by all the terms and conditions of this License, you are not authorized to access or to use TerrainWorks software or the results thereof, and must return the Software to Licensor.
8.7 You may not reverse engineer, reverse compile, decrypt or disassemble the Software. You may not remove, alter or destroy any copyright, proprietary or confidential notices placed on the Software or the documentation associated therewith. By this License, you are obtaining no rights to the Software except those expressly granted this License: Except to the extent expressly licensed herein, all rights are reserved to Licensor and its suppliers. By downloading, using or otherwise benefiting from the Software, you agree to all the terms and conditions of this License. Licensor may terminate this license immediately for any failure to comply with any of the terms set forth in this License. Upon termination, you must immediately destroy the Software, together with all copies, adaptations and merged portions thereof in any form. Obligations to pay accrued charges or fees shall survive the termination of this Agreement.
