Distributor License Agreement – Platform
DISTRIBUTOR LICENSE AGREEMENT – PLATFORM
Version 2024-01-08
The terms of this Distributor License Agreement (the “License Terms”) apply to your use of the Ecopia Products if you have purchased the Ecopia Products through the Ecopia Platform for redistribution to a third party (the “End User”) or to create a Distributor Product for distribution to the End User. These License Terms are entered into by Ecopia Tech Corporation, whose principal place of business is Suite 440, 101 College St, Ontario, Canada, M5G 1L7 (“Ecopia”), and you (the “Distributor”). If you are entering to these License Terms on behalf of a company, government agency, or other legal entity, then you represent and warrant that you have the authority to bind that entity to these License terms, and the term “Distributor” in these License Terms refers to that entity.
The End User’s use of the Ecopia Products is subject to the applicable End User License Agreement (the “EULA”). The End User enters into the EULA with Ecopia upon receipt of the Ecopia Products.
Your use of the Ecopia Platform is subject to the applicable Terms of Use.
1. GRANT OF LICENSE. Conditional upon Distributor’s compliance with these License Terms, Ecopia grants to Distributor a temporary, non-exclusive, non-transferable, limited license, to allow an unlimited number of its Authorized Users to:
(a) store, access, reproduce, and use the Ecopia Products to create a Distributor Product; and
(b) redistribute the Ecopia Products, or the Distributor Product, if any, to the End User.
2. AUTHORIZED USERS. Distributor shall ensure that each of its Authorized Users comply with these License Terms, and Distributor will be liable for all acts and omissions of its Authorized Users. A breach of these License Terms by an Authorized User is deemed to be a breach by the Distributor. “Authorized User” means an employee or Contractor that is authorized by Distributor to use the Ecopia Products on behalf of the Distributor for the purposes of redistributing the Ecopia Products or the Distributor Product to the End User; and “Contractor” means an individual contracted by Distributor, to provide services on behalf of or for the benefit of Distributor for the purposes of redistributing the Ecopia Products or the Distributor Product to the End User.
3. DISTRIBUTION.
3.1 APPOINTMENT. Ecopia hereby appoints Distributor to act as a Certified Distributor for the sole purpose of distributing the Ecopia Products, or the Distributor Product, if any, to the End User.
3.2 TERM. The Term of the license granted herein for the Ecopia Products terminates upon delivery of the Ecopia Products, or Distributor Product, if any, to the End User, unless earlier terminated pursuant to Article 11 of these License Terms.
3.3 DISTRIBUTOR OBLIGATIONS AND RESTRICTIONS. Distributor may not access or use the Ecopia Products except for the purpose of distributing the Ecopia Products to the End User or for creating and distributing the Distributor Product, if any, to the End User. Distributor shall not, and shall not permit any third party, except the End User, to access or use the Ecopia Products or Distributor Product. After distributing the Ecopia Products, or the Distributor Product, if any, to the End User, Distributor shall permanently delete any copies of the Ecopia Products, or any portions or derivatives of the Ecopia Products in its possession or control (with the exception of data that Distributor is required to retain to ensure compliance with any applicable record retention requirements of End User, any application bona fide insurance or audit obligations, or applicable law (which may only be retained for such purposes)), and upon Ecopia’s request, Distributor shall certify to Ecopia in writing that it has done the same. Distributor shall not: (i) make any false or misleading representations with respect to the Ecopia Products or Ecopia; (ii) engage in deceptive business practices; or (iii) conduct its business in a manner that would damage the reputation of Ecopia.
3.4 END USER LICENSE AGREEMENT. Distributor shall ensure, prior to distributing the Ecopia Products, or the Distributor Product, if any, to the End User, that the End User is made aware of the EULA and agrees to be bound by the EULA or other licensing terms provided by Distributor that at least as restrictive as the EULA. To the extent that Distributor provides the End User with a Distributor Product, the End User’s use of the Ecopia Products or Derivatives contained in the Distributor Product is also subject to the EULA. Distributor shall notify Ecopia in writing of any breach or suspected breach of the EULA, or any other unauthorized use of the Ecopia Products or the Distributor Product, and take prompt, commercially reasonable steps to assist Ecopia in the enforcement of the EULA. If Distributor fails to reasonably fulfill these obligations, Distributor will be liable, and agrees to indemnify Ecopia, for any losses or liabilities suffered by Ecopia as a result of Distributor’s or End User’s unauthorized use or disclosure of the Ecopia Products or derivatives thereof.
4. LICENSE RESTRICTIONS. Distributor acknowledges and agrees that the Ecopia Products are the property of Ecopia and its licensors, as applicable, and contain valuable assets and proprietary information of Ecopia and its licensors, as applicable. Accordingly, Distributor shall not, and shall not permit its Authorized Users or any third party, to use or access the Ecopia Products or Derivatives except as expressly permitted in Article 1 of these License Terms. Furthermore, without limiting the generality of the foregoing, Distributor shall not, and shall not permit any Authorized User or any third party to:
(a) use or access the Ecopia Products or Derivatives for Distributor’s Internal Use;
(b) use or access the Ecopia Products or Derivatives for Commercial Purposes, other than for distribution to the End User;
(c) store, post or process the Ecopia Products or Derivatives other than in a system that is made not accessible by the public through the use of sufficient information security measures;
(d) use or access the Ecopia Products or Derivatives for the purpose of developing, training, testing, or validating machine learning or artificial intelligence technologies that may be used to recreate data similar to the Ecopia Products;
(e) remove, bypass or circumvent any electronic or other forms of protection included on or with the Ecopia Products;
(f) use or modify the Ecopia Products and Derivatives in any manner that infringes upon the Intellectual Property Rights of another entity or individual, or that violates any applicable laws;
(g) reverse engineer, disassemble, decompile, adapt or otherwise attempt to derive the algorithms, source code, databases or data structures upon which the Ecopia Products are based.
(h) use or access the Ecopia Products or Derivatives for the purpose of recreating similar data; or
(i) update the Ecopia Products.
5. INTELLECTUAL PROPERTY
5.1 OWNERSHIP.
(a) Ecopia Product: All right, title and interest, including all Intellectual Property Rights, in and to: (i) the Ecopia Products; (ii) all corrections, enhancements, or other modifications to the Ecopia Products made by Ecopia or any third party at Ecopia’s direction (regardless of whether such corrections, enhancements, or other modifications may incorporate or include Feedback provided to Ecopia by Licensee); and (iii) all technologies and Miscellaneous IP used or advanced in the creation of the Ecopia Products, are the sole and exclusive property of Ecopia or its licensors, as applicable. Ecopia may use the Ecopia Products for its internal research and development purposes. All rights not expressly granted to End User in these License Terms are reserved by Ecopia.
(b) Distributor Materials: To the extent that Distributor creates a Distributor Product by combining the Ecopia Products with any data, materials, or information of Distributor, Distributor shall only use such Distributor Product in accordance with these License Terms, notwithstanding Distributor’s ownership of any such data, materials, or information.
5.2 ATTRIBUTION. Distributor shall not delete, alter, cover, obscure, or distort any copyright, trademark or other proprietary rights notice placed by Ecopia on or in the Ecopia Products or Derivatives and shall ensure that all notices are reproduced on all copies. Distributor shall ensure that the following attribution is clearly visible on all copies of Ecopia Products and Derivatives: Ecopia Vector Maps © [YEAR] Ecopia Tech Corporation, and any appropriate attribution to an imagery provider, if instructed to do so.
5.3 FEEDBACK. If the Distributor provides Ecopia with any feedback, comments, suggestions, reports of defects, suggestions for modifications, or other similar information to Ecopia about or in connection with the Ecopia Products or any Ecopia’s products or services (“Feedback”), then Ecopia will have to right to use or otherwise exploit the Feedback for any purpose, without compensation to the Distributor and without any restriction or obligation to the Distributor on the account of Intellectual Property Rights or otherwise, during the Term and after the termination of these License Terms.
6. PUBLICITY
6.1 PUBLICATIONS BY ECOPIA. Distributor hereby permits Ecopia to (a) publicly identify Distributor as a customer of Ecopia and the type of the Ecopia Products provided to the End User; (b) use Distributor’s name, logos and trademarks in connection with Ecopia’s promotional activities; and (c) use the Ecopia Products in demonstrations of Ecopia technology.
6.2 PUBLICATIONS BY LICENSEE. In any public announcement, marketing material, visualization, or demonstration made by Distributor, in which Distributor disseminates any information to any third parties regarding End User’s use of the Ecopia Products, or in which the Ecopia Products are presented, whether in whole or in part, Distributor shall reference Ecopia as the creator of the Ecopia Products. In the case of a Distributor Product, Distributor shall reference Ecopia as the provider of the source data of the Distributor Product.
7. COMPLIANCE WITH LICENSE TERMS
7.1 CERTIFICATION. Upon Ecopia’s written request, and not more than once per calendar year, Distributor shall certify its compliance with these License Terms. If Distributor is unable to provide this certification, Distributor shall work in good faith with Ecopia to acquire the proper licenses and remit the appropriate fees as remedy for any non-compliance. In addition, Ecopia reserves the right to terminate these License Terms for non-compliance in accordance with Article 11 of these License Terms.
7.2 AUDIT. Ecopia, or its authorized representative, will have the right to perform an audit to verify Distributor’s compliance with these License Terms. Distributor shall grant Ecopia auditors access to the business locations, books and records, employees, and Contractors relevant to Distributor’s use of the Ecopia Product. The audit will: (a) require a minimum of 30 days prior written notice; (b) be conducted no more than once per calendar year; (c) be limited to a three year audit period, unless it is discovered that Distributor has been non-compliant with these License Terms, in which case the audit period can be expanded at Ecopia’s discretion; (d) be conducted during reasonable business hours; and (e) be subject to reasonable confidentiality requirements.
7.3 AUDIT FINDINGS. If an audit results in a finding of non-compliance, Ecopia may, at its discretion: (a) invoice any additional license fees due based on the standard Ecopia fees in place at the time of the original license grant; (b) assess interest charges from the time of the original fee payment due date at the lower rate of: (i) 1.5% per month; or (ii) the highest rate permissible under applicable law; (c) recover the cost of the audit if additional fees exceed 5% of the fees actually paid during the audited period; and (d) terminate these License Terms and the Ecopia licenses in accordance with Article 11 of these License Terms. Distributor must pay all invoices issued pursuant to this Section 7.3 within 30 days following the date of invoice.
8. INDEMNIFICATION BY DISTRIBUTOR. Distributor shall defend, indemnify and hold harmless Ecopia, its Affiliates, and its licensors, from and against any claims, damages, liabilities, costs and expenses (including reasonable legal fees) arising out or in relating to Distributor use of the Ecopia Products, including but not limited to a violation by the Distributor of Sections 13.6, 13.7, or 13.9 of these License Terms.
9. LIMITED WARRANTY AND DISCLAIMER
9.1 LIMITED WARRANTY. Ecopia warrants to Distributor only that the Ecopia Products, as delivered by Ecopia, will (a) be of the area of interest set forth in the applicable Order Form; and (b) comply in all material respects with the applicable Product Specification, if applicable. Ecopia’s sole obligation and Distributor’s exclusive remedy for a breach of this warranty is for Ecopia, at Ecopia’s option and expense, to either: (i) repair the non-conforming Ecopia Products; (ii) replace the non-conforming Ecopia Products; or (iii) provide to Distributor a pro-rata refund based on the percentage of non-conforming features within the Ecopia Products in relation to all the features within the Ecopia Products, as reasonably determined by Ecopia, in which case these non-conforming features must be deleted and destroyed by Distributor and will not be accessible or usable by Distributor. Any claim under this warranty must be made no later than 30 days after the initial delivery of the Ecopia Products. This limited warranty is void if any non-conformity has resulted from any accident, abuse, misuse, misapplication or modification of or to the Ecopia Products by anyone other than Ecopia or any breach by Distributor of these License Terms.
9.2 DISCLAIMER. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 9.1, THE ECOPIA PRODUCTS ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATION, CONTENT OR RESULTS, OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. NEITHER ECOPIA NOR ITS LICENSORS WARRANT THAT THE ECOPIA PRODUCTS WILL BE ACCURATE, CURRENT OR COMPLETE, THAT THE ECOPIA PRODUCTS WILL MEET END USER’S NEEDS OR EXPECTATIONS, OR THAT THE OPERATION OF THE ECOPIA PRODUCTS WILL BE ERROR FREE OR UNINTERRUPTED. FURTHER, SPATIAL AND TEMPORAL ACCURACY IS NOT GUARANTEED.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL ECOPIA OR ITS LICENSORS, OR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, FOR EXAMPLE, ANY INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, LOSS OF REVENUES OR PROFITS (WHETHER CHARACTERIZED AS DIRECT OR INDIRECT LOSS), LOSS OF GOODWILL OR REPUTATION, LOSSES DUE TO INTERRUPTION OR DELAY, LOSSES DUE TO LOSS OF DATA OR BREACH OF SYSTEM SECURITY, OR COSTS OF REPLACEMENT GOODS OR SERVICES, WHETHER OR NOT SUCH LOSSES WERE FORESEEABLE AND WHETHER OR NOT THE POSSIBILITY OF SUCH LOSSES HAS BEEN DISCLOSED TO ECOPIA IN ADVANCE, AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THESE LICENSE TERMS OR ANY REMEDY PROVIDED UNDER THESE LICENSE TERMS. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF ECOPIA AND ITS LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE ECOPIA PRODUCTS EXCEED THE FEES ACTUALLY PAID BY END USER FOR THE ECOPIA PRODUCTS IN THE TWELVE MONTHS PRECEDING THE DATE OF THE EVENT THAT IS THE BASIS FOR THE FIRST CLAIM. THE LIMITATIONS SET FORTH IN THIS ARTICLE 10 APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER CONTRACT, TORT AND STATUTORY CLAIMS.
11. TERMINATION AND EFFECT OF TERMINATION
11.1 TERMINATION. Any breach by Distributor of the provisions of these License Terms automatically terminates these License Terms with immediate effect. Furthermore, and in addition to those termination rights set forth in Article 7 above, Ecopia may terminate these License Terms upon written notice to Distributor if Ecopia has reason to believe Distributor has materially breached these License Terms or the Order Form. Distributor may terminate these License Terms at any time by permanently deleting or destroying all copies of the Ecopia Products and any Derivatives (for avoidance of doubt, this requires decoupling and deletion of the Ecopia Products embedded in any Derivatives or any Distributor Product; for example, if Distributor has used the Ecopia Products to improve or modify any other geospatial data, decoupling would require the reversion of any such improvement or modification), and certifying to Ecopia in writing that all copies of the Ecopia Products and any Derivatives have been deleted or destroyed; however, Distributor is still responsible for paying all license fees in full.
11.2 EFFECT OF TERMINATION. Upon termination of these License Terms, all rights granted to Distributor under these License Terms will immediately cease and Distributor shall, and shall cause all Authorized Users to, (a) cease all use of the Ecopia Products and any Derivatives; and (b) permanently delete or destroy all copies the Ecopia Products and any Derivatives (for avoidance of doubt, this requires decoupling and deletion of the Ecopia Products embedded in any Derivatives or any Distributor Product; for example, if Distributor has used the Ecopia Products to improve or modify any other geospatial data, decoupling would require the reversion of any such improvement or modification). No later than 10 days following termination of these License Terms, Distributor shall certify to Ecopia in writing that all copies of the Ecopia Products and any Derivatives have been deleted or destroyed. The termination of these License Terms does not relieve either party of any obligations that have accrued on or before the effective date of the termination.
11.3 SURVIVAL. The duties and obligations of the parties under Articles 3 (Distribution), 4 (License Restrictions), 5 (Intellectual Property), 7 (Compliance), 8 (Indemnity), 10 (Limitation of Liability), 12 (Confidentiality), and 13 (General Terms) and Sections 11.2 (Effect of Termination) and 11.3 (Survival), of these License Terms will survive termination of these License Terms.
12. CONFIDENTIALITY
12.1 CONFIDENTIALITY. Each party (the “Receiving Party”) shall maintain in confidence all Confidential Information of the other party (the “Disclosing Party”). The Receiving Party shall not, and shall ensure that its employees, agents, contractors, and Authorized Users do not, disclose any of Disclosing Party’s Confidential Information to any third party or use any Confidential Information for any purpose except as contemplated by these License Terms and the applicable Order Form. “Confidential Information” means any non-public information disclosed by Disclosing Party to Receiving Party that has been designated or identified by the Disclosing Party as confidential at the time of disclosure, was disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, or is of a nature that a reasonable person would understand the confidentiality of such information. Examples of Confidential Information include commercial information, technical information or data, processes, procedures, product pricing, and license terms. The Ecopia Products and the Product Specifications are deemed to be Confidential Information belonging to Ecopia. In maintaining the confidentiality of Confidential Information of the Disclosing Party, the Receiving Party shall exercise the same degree of care that it exercises with its own confidential information of similar nature, and in no event less than a reasonable degree of care. The Receiving Party shall ensure access to Confidential Information of the Disclosing Party is restricted to those of Receiving Party’s employees, agents, contractors, and professional advisers (such as lawyers or accountants), that have a bona fide need to access such Confidential Information and who are bound by confidentiality obligations no less restrictive than those provided in this Article 12.
12.2 DURATION. The obligations of confidentiality set forth in this Article 12 will remain for (a) a period of five years following any termination of these License Terms for any Confidential Information not designated as a trade secret by the Disclosing Party, and (b) perpetually, notwithstanding the termination of this Agreement, with respect to any information designated as a trade secret by the Disclosing Party.
12.3 EXCEPTIONS. The obligation of confidentiality contained in these License Terms will not apply to any disclosed information: (a) that at the time of disclosure was in the public domain or that has since entered the public domain, other than as a result of actions or omissions of the Receiving Party or anyone who received the information from the Receiving Party; (b) that was rightfully known to the Receiving Party prior to the its disclosure by the Receiving Party; (c) that was independently developed by the Receiving Party without any use of or reference to the disclosed information; or (d) that was received by the Receiving Party on an unrestricted basis from a source not under a duty of confidentiality to the Disclosing Party. If Receiving Party is compelled by order or regulation of a government authority or court of competent jurisdiction to disclose any Confidential Information, the Receiving Party shall not make any disclosure without first notifying the Disclosing Party and allowing the Disclosing Party a reasonable opportunity to seek injunctive relief from, or a protective order with respect to, the obligation to make such disclosure.
12.4 UNAUTHORIZED DISCLOSURE. Receiving Party acknowledges that the Confidential Information of the Disclosing Party constitutes proprietary and confidential information valuable to the Disclosing Party, and that the unauthorized use, disclosure, or loss of such Confidential Information will cause irreparable injury to the other party. Receiving Party shall notify the Disclosing Party promptly upon discovery of any unauthorized use or disclosure of Confidential Information, and shall cooperate with the Disclosing Party to help regain possession of such Confidential Information and to prevent its further unauthorized use or disclosure. Receiving Party acknowledges that monetary damages will not be a sufficient remedy for unauthorized use or disclosure of Confidential Information of the Disclosing Party and that the Disclosing Party will be entitled, without waiving other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. Disclosing Party will also be entitled to recover reasonable legal fees for any action arising out of or relating to a disclosure of Confidential Information of Disclosing Party by the Receiving Party.
12.5 RETURN OF INFORMATION. Upon termination of these License Terms, or at any time upon request, whichever is earlier, Receiving Party shall promptly return to Disclosing Party, or permanently delete or destroy, all copies of Disclosing Party’s Confidential Information in Receiving Party’s possession or control.
13. GENERAL TERMS
13.1 ENTIRE AGREEMENT. These License Terms and the applicable Order Form (if applicable) and the applicable Platform Terms of Use (if applicable) constitute the entire agreement between the parties with respect to use of the Ecopia Products contemplated herein and supersede all previous and contemporaneous agreements, understandings and arrangements, whether oral or written.
13.2 ASSIGNMENT. Distributor may not transfer or assign any of its rights or delegate any of its obligations under these License Terms, in whole or in part, and including any transfers by operation of law, without the prior written consent of Ecopia. Any attempted assignment or transfer in violation of this Section 13.2 will be null and void. Assignment will not relieve the assignor of any obligations that accrue under this Agreement prior to any such assignment.
13.3 AMENDMENT. These License Terms may be amended or supplemented only by a writing that refers to these License Terms and that is signed by both parties.
13.4 WAIVER. The failure or delay by a party to require performance of any provision of these License Terms does not constitute a waiver. All waivers must be in writing and signed by the party granting the waiver. The waiver by a party of any of its rights or remedies in a particular instance will not be construed as a waiver of the same or a different right or remedy in a subsequent instance.
13.5 SEVERABILITY. If any provision of these License Terms is invalid, illegal or unenforceable, that provision will be deemed to be restated so that it is enforceable to the maximum extent permissible under law and is consistent with the original intent and economic terms of the invalid provision.
13.6 COMPLIANCE WITH LAWS. Distributor is responsible for its own compliance with laws, regulations and other legal requirements applicable to the conduct of its business and these License Terms, and agrees to comply with all these laws, regulations and other legal requirements including, without limitation, the Foreign Corrupt Practices Act of the United States of America and the Convention on Combating Bribery of Foreign Government Officials.
13.7 INTERNATIONAL TRADE COMPLIANCE. The Ecopia Products may be subject to the customs and export control laws and regulations of the United States, Canada, and any country in which the Ecopia Products are manufactured, received or used, including the US Export Administration Regulations and the US International Traffic in Arms Regulations. Distributor shall comply with these laws, regulations and rules in the performance of its obligations under these License Terms. Further, Distributor shall not provide Ecopia Products to blocked, prohibited or restricted individuals and entities as required by the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”), including, without limitation, the Denied Persons List, Unverified List and Entity List. Distributor shall not knowingly do business with criminal organizations, terrorist organizations or other people or groups, either directly or indirectly, that are likely to use the Ecopia Products for purposes that are illegal or adverse to the interests of the United States Government, Canadian Government, or Ecopia generally. Distributor shall provide Ecopia with the assurances and official documents that Ecopia may request periodically to verify Distributor’s compliance with these License Terms.
13.8 GOVERNING LAW AND DISPUTE RESOLUTION. All matters arising out of or relating to these License Terms and the applicable Order Form (if applicable) will be governed by and construed under the laws of the Province of Ontario and applicable Canadian federal law, without regard to any conflict of laws rules. Each party hereby irrevocably submits to the exclusive jurisdiction of the provincial and federal courts situated in Ontario, and any proceedings must be commenced in the provincial courts or federal courts located in Toronto, Ontario, Canada. However, each party may at any time to seek a temporary or permanent injunction or other equitable remedy or relief in any court having subject matter jurisdiction anywhere in the world. The party or parties prevailing in any proceeding will be entitled to recover reasonable legal fees and other costs and expenses incurred, in addition to any other relief to which it may be entitled. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these License Terms.
13.9 NOTICES. All notices of termination or breach must be in writing in English and addressed to the other party’s legal department at the mailing address indicated above, in the applicable Order Form, or posted on the Ecopia Platform. Notice is treated as given upon receipt, as verified by written or automated receipt or electronic log, as applicable.
13.10 CONTROLLING LANGUAGE. These License Terms are drafted in the English language only. English will be the controlling language in all respects, and all versions of these License Terms in any other language are for accommodation only and will not be binding on the parties.
13.11 INTERPRETATION. As used in these License Terms, and unless the context otherwise requires: (a) words expressed in the singular shall include the plural and vice versa; (b) the word “or” between two or more alternatives does not imply mutual exclusivity; and (c) the words “include”, “including”,“includes”, and “included”, when used, are deemed to be followed by the words “without limitation”. Unless expressly defined otherwise, the word “day” or “days” shall mean calendar days.
14. DEFINITIONS
“Affiliate” means any legal entity controlling, controlled by or under common control with a party, where “control” means (a) the ownership of at least 50% of the equity or beneficial interest of the entity; (b) the right to vote for or appoint a majority of the board of directors or other governing body of the entity; or (c) the power to direct or cause the direction of the management and policies of such party by any means.
“Certified Distributor” means a distributor or reseller authorized by Ecopia to re-distribute or resell licenses to use the Ecopia Products or a Distributor Product.
“Commercial Purpose” means any purpose related to (a) distributing, transferring, assigning, sublicensing, renting, selling, conveying, publishing, leasing, loaning, or otherwise making available the Ecopia Products or Derivatives to any third party, or (b) using the Ecopia Products or Derivatives for the needs of any third party. Use of the Ecopia Products or Derivatives for Commercial Purposes includes: (i) posting the Ecopia Products or Derivatives in a downloadable format on a website that is accessible by a third party; (ii) using the Ecopia Products or Derivatives in marketing or promotional materials or services; (iii) using the Ecopia Products or Derivatives in any materials or services for sale, or for which fees or charges are paid or received; and (iv) using the Ecopia Products or Derivatives in any books, news publications, or articles.
“Copyright” means any copyrights, works of authorship and copyrightable works, including software, data and databases, website and other content, and documentation, and applications, registrations, and renewals in connection therewith.
“Order Form” means the order form generated on the Ecopia Platform that describes the applicable Ecopia Products or Distributor Product to be licensed to the End User.
“Derivative” means any modification, transformation, or adaptation of or to the Ecopia Products, including, for example, reformatting of the Ecopia Product into a different format or media from which it is delivered to Distributor, any extraction of data, any analysis, insights, or information gained from the Ecopia Products. A Derivative also includes a modification or correction made to the Ecopia Products with reference to the same vintage of imagery used by Ecopia to generate the Ecopia Products, but does not include an update to the Ecopia Products with reference to a newer vintage of imagery (which is prohibited without the explicit permission of Ecopia under Article 4 of these License Terms).
“Distributor Product” means a product created by the Distributor for the End User by combining the Ecopia Products, or Derivative, with other data, materials, or information of the Distributor.
“Ecopia Platform” means the online web portal made available by Ecopia for the purchase and delivery of the Ecopia Products along with any incidental companion service such as an application programming interface (API).
“End User” means the end user of the Ecopia Products or the Distributor Product as indicated on the applicable Order Form.
“Intellectual Property Rights” means any and all rights with respect to any Patents, Trademarks, Copyrights, or Miscellaneous IP, throughout the world.
“Internal Use” means the Distributor’s internal business purposes (exclusive of those restrictions set forth in Article 4 of these License Terms) and not for other proposes such as Commercial Purposes.
“Miscellaneous IP” means any trade secrets or know-how, information, or technology of any kind, including personal information and related data, processes, procedures, research and development, ideas, concepts, inventions (whether patentable or unpatentable), formulas, algorithms, compositions, production processes and techniques, technical data, designs, drawings, specifications, research records and records of inventions.
“Patent” means any patents, patent applications, including provisional applications, reissuances, continuations, continuations-in-part, divisionals, revisions, extensions, re-examinations, rights of priority, and all similar or equivalent rights or forms of protection in any part of the world.
“Ecopia Products” means those products licensed by Ecopia to Distributor (and End User) as set forth in the applicable Order Form.
“Product Specification” means with respect to each Ecopia Product, the technical specification made available by Ecopia on the Ecopia Platform.
“Term” means that period of time that Distributor is entitled to use the Ecopia Products as set forth in Article 3 of these License Terms.
“Trademark" means any trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world.