Terms & Conditions

2.1. The Software

The Software for which the Customer subscribes is ‘eSpatial' which will be licensed or sub-licensed to the Customer by eSpatial in accordance with the terms of this Agreement.

2.2. Subscribing to the Services

Customer will subscribe to the Services under one or more Order Forms specifying the Services and the terms and conditions applicable to the Customer's subscription to the Services. Order Forms shall be executed manually by the Parties or submitted electronically through eSpatial's online ordering system. In the event of any conflict between this Agreement and an Order Form, the Order Form shall control, except this Agreement shall govern all issues relating to Intellectual Property Rights, warranty, indemnity and liability.

2.3. Free Trial (The use of eSpatial's Free Trial)

• 2.3.1. eSpatial will make Services available to Customer on a trial basis free of charge until the earlier of (a) the seventh day (unless extended by eSpatial) after Customer's acceptance of this Agreement or (b) the Commencement Date of any Services purchased by Customer. Additional trial terms and conditions may appear on the free trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
• 2.3.2. ANY DATA CUSTOMER ENTERS IN THE COURSE OF USING THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER'S FREE TRIAL MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR DOWNLOADS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
• 2.3.3. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN PARTICULAR, SECTION 11 (LIMITATION OF LIABILITY) AND SECTION 12 (WARRANTIES AND DISCLAIMERS), DURING THE 7-DAY FREE TRIAL THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY.

2.4. Services (Paid Accounts)

eSpatial will provide the Services described in the initial Order Form to Customer for the Subscription Period according to the terms of such Order Form and this Agreement. Additional Order Forms may be entered into by the Parties to allow the Customer to subscribe to additional or different features of the Services. Unless designated as replacing a specific subsisting Order Form, a new Order Form will be considered to be in addition to currently existing Order Forms.

The eSpatial System will be continually amended and updated by eSpatial and System Suppliers. The Customer acknowledges and agrees that any part of the eSpatial System including any Software may be amended from time to time during the continuance of this Agreement provided however that where any such changes require eSpatial System downtime or will substantially affect the operability of the Software, eSpatial will endeavour to give the Customer reasonable notice.

4.1. License

Subject to the terms and conditions of this Agreement, eSpatial grants to the Customer and, where agreed, Customer Authorized Users, a non-exclusive, non-sublicensable and non-transferable license to access the eSpatial System to use the Software in accordance with the System Management Regulations.

4.2. Accessing User Accounts

In order to gain access to the eSpatial System, eSpatial will issue User IDs needed to access and use the Services. Customer shall ensure that its personnel will only access and use the Services through the appropriate User IDs issued by eSpatial and that Users will not share User IDs with each other or with third parties. Customer Authorized Users may access and use the Services only as agreed in advance in writing by Customer and eSpatial. eSpatial may rely on any User ID, instruction or information that meets the Services' automated criteria or which is believed by eSpatial to be genuine. eSpatial may assume a person entering a User ID and password is, in fact, the User to whom such User ID relates. eSpatial may assume the latest email addresses and registration information on file with the Services are accurate and current. When programmed to do so, the Services may take prescribed actions in the absence of receiving proper and complete contrary instructions.

4.3. Data Preparation & Configuration

Customer shall ensure that: (a) Customer Data is in the proper format as specified in the Documentation; (b) its Personnel are familiar with the use and operation of the Services; and (c) no software or data likely to have an adverse impact on the Services is introduced to the eSpatial System. Customer shall load the Customer Data and configure the Services and its internal processes as needed to operate the Services in Customer's computing environment.

4.4. User Count Subscription

Users may access and use the Services through User IDs up to the maximum number of Users specified on the Order Form. Customer is responsible for all activity occurring under its User IDs. Customer may request eSpatial to add or remove User IDs as reasonably needed to accommodate changes in Customer workforce. Customer is not entitled to a refund for any unused or unassigned User IDs.

4.5. Reservation of Rights

eSpatial expressly reserves all rights in the eSpatial System and Services not expressly granted to Customer in this Agreement. It is acknowledged that all right, title and interest in the eSpatial System and Services will remain with eSpatial (or System Suppliers, if applicable) and that the Services are licensed on a subscription basis and not "sold" to Customer. Customer is responsible for and expressly reserves all rights in the Customer Data, except the limited right of eSpatial to use the Customer Data in operating the Services for the Customer's benefit. Unless specifically agreed in writing, each Party's exclusive ownership rights extend to any update, adaptation, translation, customisation or derivative work thereof.

4.6. User & Technical Documentation

The Customer can access online Documentation describing the operation of the Services under normal circumstances.

4.7. Public Maps

eSpatial shall be permitted to use all Public Maps for marketing and promotional purposes in any media.

6.1. Use of eSpatial System

The Customer is solely responsible and liable for use of the eSpatial System and Services by its Users including but not limited to proper use of User IDs. The Customer must notify eSpatial immediately if it suspects that there has been any breach of this provision.

6.2. No Shared Access

Shared access (with non-Users) to the Services and eSpatial System is not permitted under this Agreement without eSpatial's prior written consent.

6.3. Permitted Use

The Customer shall use the Services and eSpatial System solely for the purposes of the Customer's principal business as disclosed in full to eSpatial prior to execution of this Agreement and from time to time thereafter in the event of any change or relevant diversification.

6.4. Unauthorized Uses

The Customer shall not otherwise than with the prior written consent of eSpatial use, store, download, sell, reproduce, redistribute or deal with the Software (or attempt to do any of the foregoing) in any manner or for any other purpose than in accordance with this Agreement.

6.5. Unauthorized Materials

The Customer shall not store, distribute or transmit any material through the eSpatial System that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.

6.6. Compliance with Law

The Customer acknowledges that it is aware that use of the eSpatial System and Software, whether by accessing, utilising, storing or otherwise dealing with the same may from time to time be subject to certain statutory or other regulations, conditions and restrictions (including but not limited to data protection, financial services and telecommunications regulations). The Customer undertakes to comply with all such regulations, conditions or restrictions.

6.7. No Redistribution

Other than with the prior written consent of eSpatial, the Customer is expressly prohibited from using or redistributing all or any part of the Software or eSpatial System for the purposes of:

• 6.7.1. Acting, either itself or in conjunction with any other party, as a bureaux service or otherwise prohibited pursuant to Section 7.4.4;
• 6.7.2. Commercial redistribution or reproduction of the same through its own or any third party network, cable or satellite system;
• 6.7.3. Permitting or allowing the Services or eSpatial System to infringe or be infringed or otherwise prejudice the proprietary rights of eSpatial or System Suppliers;
• 6.7.4. Allowing any third party to access the Services or eSpatial System unless expressly so permitted by eSpatial.

6.8. Training

The Customer acknowledges that use of the Services requires Users to have proper training in use of the same. The Customer warrants that it shall be solely liable to ensure the same.

6.9. Export Laws

Customer acknowledges that all of the servers that are used by eSpatial to provide the Services are located in the United States. Customer further acknowledges and agrees that it is solely responsible for complying with all United States export laws. Customer agrees that it will not, and will cause its Users not to, upload, install, provide or otherwise use in connection with the Service any Customer Data or other information that would require authorization for export from the United States.

6.10. Data Protection & GDPR

If eSpatial processes any Personal Data on the Customer's behalf when performing its obligations under this Agreement and EU Data Protection Legislation applies to such processing, the parties record their intention that the Customer shall be the Controller and eSpatial shall be a Processor, and the provisions included at Schedule 2 (Data Terms) shall apply.

7.1. Customer Equipment

The Customer shall be responsible for arranging internet access in order to be able to use the Services and shall ensure that it conforms to all applicable System Management Regulations.

7.2. Disconnection

eSpatial may at any time disconnect or require the Customer to disconnect from accessing and using the eSpatial System or Software if, in the opinion of eSpatial, such is or has been the cause or is likely to be the cause of failures, interruptions, errors or defects in the eSpatial System. In the event that the Customer is so required to disconnect, eSpatial will as soon as possible thereafter, advise the Customer of such changes as must be made to enable the Customer to resume access and use of the eSpatial System and the Software subject (where applicable) to such further charges as eSpatial shall determine.

7.3. No Access to Unlicensed Services

The Customer shall ensure that neither it and its personnel shall not (and shall not attempt to) access or retrieve any part of the eSpatial System that is not part of the Services licensed to the Customer under this Agreement.

7.4. Unauthorized Activities

The Customer and its personnel shall not without eSpatial's express prior written consent, whether for Customer Authorized Users or otherwise:

• 7.4.1. Make or attempt to make any additions, modifications, adjustments or alterations to the Services or eSpatial System;
• 7.4.2. Attempt to rectify or permit any persons other than eSpatial or its agent to rectify any fault or inaccuracy in the Services or eSpatial System;
• 7.4.3. Tamper with the Services or eSpatial System;
• 7.4.4. Link to or communicate in any manner with any third party's time sharing or other system, computer bureau, applications or telecommunication service or any other service, system or information distribution network, whereby the information, material or Services obtained from the eSpatial System can be accessed, used, stored or redistributed.

7.5. Third Party Services

The Customer acknowledges that the Services include the content and services of third parties including without limitation Microsoft Azure Maps and SSI and that the Customer's use of all such third party content and services is subject to the Third Party Terms. By entering into this Agreement and using the Services, the Customer confirms that it understands and accepts all relevant Third Party Terms. If the Customer at any time experiences any difficulty in obtaining a copy of or in linking to or understanding any of the relevant Third Party Terms, the Customer shall contact eSpatial's Help Desk for assistance, the contact details for which are set out in Schedule 1 (Service Level Agreement). The Customer acknowledges that third party content and services may be withdrawn from the Services without notice in the event that eSpatial's arrangements with relevant third parties are terminated.

8.1. Subscription Fees

Unless otherwise expressly stated on an Order Form, Customer will pay a Subscription Fee for a Paid Account annually in advance. Subscription Fees may be varied from time to time by eSpatial giving to the Customer at least 30 days' prior written notice. Such variation shall take effect upon expiry of the notice period unless the Customer elects to terminate this Agreement in accordance with the provisions of Section 15. All Subscription Fees are non-refundable. Should there be a conflict between this Agreement and an Order Form, the terms outlined by the Order Form take precedence.

8.2. Payment

Unless payment has been arranged by credit card or other means accepted by eSpatial, Subscription Fees are invoiced starting on date(s) specified in the Order Form. Invoices are payable on receipt of the invoice. All prices are stated and payable in the currency specified on the Order Form.

8.3. Late Payment

Customer may not withhold or "set off" any amounts due. In the event of late/non-payment of any of the Subscription Fees or any other fees or charges payable under this Agreement, eSpatial reserves the right (without liability) to bar the Customer access to all or any part of the Software and eSpatial System by whatever means it deems appropriate until such time as payment is received in full. eSpatial reserves the right to reserves the right to assess a late fee of one and one-half percent (1 ½%), or the maximum rate allowed under applicable law, whichever is less, on any amounts not paid when due for each month or portion thereof that such payments remain delinquent.

8.4. Certain Taxes

Prices quoted do not include and Customer shall pay, indemnify and hold eSpatial harmless from all U.S., foreign, state, municipal and other governmental excise, sales/use, customs, gross receipts, value-added, GST, personal property or other tax, excise, fee or duty or other charge now in force or enacted in the future (including interest and penalties imposed thereon) on the transaction contemplated in this Agreement, other than taxes based on the net income or profits of eSpatial.

10.1.

The term "Confidential Information" shall mean and include information or material that a Party receiving it ("Receiving Party") knows, or reasonably under the circumstances of disclosure should know, the Party disclosing it ("Disclosing Party") considers to be of a confidential or sensitive trade secret nature, including without limitation: (a) information in relation to the eSpatial System or Software; (b) all other forms and types of confidential or non-public financial, business, scientific, technical, economic, marketing, or engineering or system-related information, including patterns, plans, compilations, programs, devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, codes, or know-how, and information concerning the Disclosing Party's other internal business practices and/or actual or potential customers, whether any of the foregoing is in tangible or intangible form, and whether or how stored, compiled or memorialised physically, electronically, graphically, photographically, or in writing; (c) information which derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (d) information identified by the Disclosing Party as confidential. For the avoidance of doubt, Confidential Information does not include Public Maps as per Section 10.2.

10.2.

To the extent provable by reasonably credible evidence, Confidential Information does not include Public Maps or any information or material: (a) which is or subsequently becomes available to the general public other than through a breach by the Receiving Party; (b) which is already known to the Receiving Party before disclosure by the Disclosing Party; (c) which is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party; or (d) which the Receiving Party rightfully receives from third parties without restriction as to use or disclosure.

10.3.

Each Party will maintain all Confidential Information of the other Party in strict confidence and will not at any time or for any reason disclose any Confidential Information of the other to any third party without the Disclosing Party's prior written consent. Neither Party will use any Confidential Information of the other for any purpose whatsoever except in performing its duties and exercising its rights under this Agreement. Neither Party will disclose any Confidential Information of the other to any of its agents or employees who do not participate directly in the performance of its duties or exercise of its rights under this Agreement, and each Party will advise its employees who are permitted access to any Confidential Information of the other Party, of the restrictions upon disclosure and use set out in this Agreement. Notwithstanding the foregoing, either Party may disclose the Confidential Information of the other if it believes in good faith that any applicable law, rule, or regulation requires the disclosure, provided that it makes a reasonable effort to give the disclosing Party as much advanced notice as may be practicable or permissible under applicable law.

10.4.

Upon termination or expiration of this Agreement, each Party shall return or destroy all Confidential Information obtained from the other Party and copies thereof with the exemption of those copies of such Confidential Information that reside on backup systems that either Party is required by law or regulation to maintain. Either Party may use for any purpose without obligation to the other Party Residuals resulting from work with Confidential Information. The term "Residuals" means information in non-tangible form, which may be recalled by persons who have had access to the Confidential Information.

10.5.

Nothing in this Section shall prohibit or restrict eSpatial's right to provide the same or similar products or services to third parties. The Customer acknowledges and agrees that the restrictions on Confidential Information contained in this Agreement shall not apply to the general knowledge, skills and experience gained by eSpatial or eSpatial employees while engaged by the Customer.

11.1. Exclusion of Indirect Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL eSPATIAL BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR OTHER INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOST PROFITS, LOST BUSINESS, LOST SAVINGS OR LOST DATA ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF eSPATIAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

11.2. Absolute Cap on Liability

THE MAXIMUM, AGGREGATE LIABILITY OF eSPATIAL UPON ANY CLAIMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, HOWSOEVER ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR ANY OF THE PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY eSPATIAL UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE DIRECT DAMAGES ACTUALLY INCURRED BY THE CUSTOMER AND SHALL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER TO eSPATIAL IN THE PRECEDING TWELVE (12) MONTHS UNDER THIS AGREEMENT FOR THE APPLICABLE PRODUCTS AND/OR SERVICES (AND IF NO AMOUNT HAS BEEN PAID OR IS TO BE PAID TO eSPATIAL, THEN THE LIMIT SHALL BE USD$10,000).

11.3. Basis of the Bargain

The Customer acknowledges that eSpatial has set its prices and entered into this Agreement in reliance upon the Limitation of Liability and Warranty Disclaimer set out in this Agreement, and that the same form an essential basis of the bargain between the Parties. The Parties agree that the Limitation of Liability specified in this Agreement will survive and apply even if the Warranty Disclaimer or any limitation of remedies is found to have failed of its essential purpose. Notwithstanding the foregoing, nothing contained in this Agreement shall limit eSpatial's liability for its own wilful misconduct.

12.1. Limited Performance Warranty

eSpatial undertakes to Customers with a Paid Account to use commercially reasonable endeavours to ensure that the Services are accessible using the eSpatial System except during the downtime specified in Section 5 and that if any material errors occur in the Services or eSpatial System, eSpatial will use its commercially reasonable efforts to address such material error after it is notified by Customer, or otherwise becomes aware of such material error.

12.2. Non-Infringement Warranty

eSpatial represents and warrants to Customers with a Paid Account, to its knowledge, that the Services, when properly used as contemplated in this Agreement, will not, as at the Commencement Date, infringe or misappropriate any Intellectual Property Rights enforceable in the United States. Upon being notified of such a claim, eSpatial shall at its option: (a) defend through litigation or obtain through negotiation the right of Customer to continue using the Services; (b) rework the Services so as to make it non-infringing while preserving the original functionality; or (c) replace the Services with functionally equivalent software. If none of the foregoing alternatives provide an adequate remedy or are commercially practicable (as determined in eSpatial's sole discretion), eSpatial may terminate all or any part of this Agreement and reimburse Customer for any amounts pre-paid by Customer pursuant to this Agreement. Customer represents and warrants that it owns or has all requisite rights to use the Customer Data with the Services, and to authorize eSpatial to process Customer Data as contemplated in this Agreement, and that such use will not infringe or misappropriate any Intellectual Property Rights or other rights of third parties.

12.3. Warranty Disclaimer

THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTEES OF ANY KIND BY eSPATIAL. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL PRODUCTS, SERVICES AND OTHER MATERIALS (IF ANY) ARE FURNISHED BY eSPATIAL AND ACCEPTED BY THE CUSTOMER "AS IS". ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY eSPATIAL, INCLUDING WITHOUT LIMITATION ANY IMPLIED OR OTHER WARRANTIES OF OR AGAINST: (1) INTERFERENCE WITH QUIET ENJOYMENT, NON-INFRINGEMENT, WORKMANLIKE EFFORT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, TITLE, COMPATIBILITY, INTEGRATION, NO ENCUMBRANCES, NO LIENS, TITLE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE; (2) THAT ANY PRODUCTS, SERVICES OR OTHER MATERIALS WILL CONFORM TO ANY DEMONSTRATION OR PROMISE BY eSPATIAL; OR (3) THAT MAY ARISE THROUGH ANY COURSE OF DEALING BETWEEN THE PARTIES.

12.4. No Warranty

eSPATIAL DOES NOT WARRANT THAT THE PRODUCTS, SERVICES OR ANY OTHER MATERIALS PROVIDED PURSUANT TO THIS AGREEMENT WILL MEET THE CUSTOMER'S REQUIREMENTS OR THAT THEY OR THEIR ACCESS OR USE WILL BE UNINTERRUPTED, ERROR FREE, OR COMPLETELY SECURE. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 12, THE ENTIRE RISK AS TO THE PRODUCTS, SERVICES AND ANY OTHER MATERIALS PROVIDED BY eSPATIAL PROVIDED IS WITH THE CUSTOMER, INCLUDING FOR QUALITY AND PERFORMANCE AND FOR ACCURACY OR QUALITY OF ANY INFORMATION TRANSMITTED, RECEIVED OR OTHERWISE DELIVERED VIA THE PRODUCTS AND SERVICES.

12.5. Not Fault Tolerant

THE SERVICES ARE NOT FAULT TOLERANT AND ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE. THE CUSTOMER SHALL NOT USE THE SERVICES IN SUCH HAZARDOUS ENVIRONMENTS AND, TO THE EXTENT CUSTOMER DOES USE THE SERVICES IN SUCH ENVIRONMENT, IT EXPRESSLY ASSUMES ALL RISK FOR SUCH.

14.1.

During the term of the Agreement, each Party will maintain, at its own expense, policies of insurance in such amounts and on such terms and conditions as it reasonably determines are necessary with regard it its business, provided that the amounts and other terms of such policies must be at least equivalent to policies appropriate for and typically maintained by other companies of comparable size engaged in similar activities including but not limited to professional indemnity and any other risks which may arise under or in connection with this Agreement.

15.1.

This Agreement shall take effect on the Commencement Date and shall continue for an initial period of twelve (12) months and thereafter for consecutive rolling terms of twelve (12) months each until or unless terminated by either Party giving to the other written notice not less than thirty (30) days prior to the expiration of the then current term, in which case, the Agreement will expire at the end of such term, subject always to prior termination as specified in this Agreement. Should there be a conflict between this Agreement and an Order Form, the terms outlined by the Order Form take precedence.

15.2. Termination

Notwithstanding any other provisions in this Agreement contained, and without prejudice to any other rights such Party serving notice may have, either Party may immediately terminate this Agreement by written notice to the other if any of the following events shall occur:

• 15.2.1. If the other Party commits any breach of the terms or conditions of this Agreement including the terms, conditions and provisions of any Schedule or relevant Order Form and fails to remedy such breach (or in so far as such breach is not capable of remedy to furnish adequate compensation) within thirty (30) days after receiving written notice from the Party requiring it so to do;
• 15.2.2. The Party wishing to terminate reasonably believes that the other Party will be unable to perform its obligations under this Agreement for any reason, including but not limited to, the other Party's bankruptcy, insolvency, or liquidation provided that, the Party wishing to terminate: (a) provides the other Party with notice of its intention to terminate; and (b) does not receive adequate (determined in the discretion of the party seeking to terminate) assurances of the other Party's ability and intention to perform within fifteen (15) calendar days of the issuance of the notice. The right to terminate set out in this Section shall not constitute an exclusive remedy.

15.3. Survival

The provisions of Sections 1, 4.7 and 6-22 shall survive termination of this Agreement.

17.1.

All notices to or by the respective Parties shall be in writing in the English language and shall be deemed to have been duly given when delivered by hand, posted by recorded delivery post (postage prepaid), sent by reputable overnight courier or sent by fax or email to the Party to which such notice is required to be given under this Agreement addressed to the Customer as provided on the Order Form; to eSpatial as provided in the table immediately following Section 23; or to such other address, facsimile number or email address as either Party may subsequently notify to the other in writing. In addition, eSpatial may give notices to the Customer by uploading them to the eSpatial System or to any application that the Customer is using as part of the Services.

17.2.

Notices delivered by hand, sent by facsimile, email, by overnight courier or through the eSpatial System shall be deemed received the first Business Day following such delivery or sending. Notices, which have been posted as above, shall be deemed received on the third Business Day following posting.

The Customer shall not, without the prior written consent of eSpatial, assign, sub-license, delegate or transfer this Agreement or any of its rights under this Agreement to any other person, firm or company. No such assignment shall relieve Customer of its obligations hereunder. eSpatial may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, with or without notice to the Customer.

Failure or neglect by eSpatial to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of eSpatial's rights pursuant to this Agreement nor in any way affect the validity of the whole or any part of this Agreement nor prejudice eSpatial's rights to take subsequent action.

This Agreement supersedes any arrangements, understandings, promises or agreements made or existing between the Parties prior to the signing of this Agreement that constitutes the entire understanding between the Parties hereto. Except as otherwise provided in this Agreement, no addition, amendment or modification of this Agreement shall be effective unless it is in writing and signed by and on behalf of each Party by a director or such other duly authorized officer as the case may be.

Each Party and its representatives are independent contractors in relation to the other Party with respect to all matters arising under this Agreement. Nothing in this Agreement shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties.

This Agreement entered into shall be exclusively governed by and construed in accordance with the governing law (determined in accordance with the table immediately following) without respect to its choice of law provisions, and the state and federal courts located in the relevant jurisdiction (determined in accordance with the table immediately following) shall have exclusive jurisdiction over all disputes arising pursuant to this Agreement or in connection with its subject matter. The Parties irrevocably consent to personal jurisdiction of such courts for such purpose and waive any right to allege lack of personal jurisdiction, improper venue or inconvenient forum in any such action brought in any such court.

IN WITNESS OF WHICH, for adequate consideration and intending to be legally bound, the Parties have caused this Agreement to be executed by their duly authorized representatives.

1. Definitions

• "Unavailable" and "Unavailability" means that the Services are not available to be accessed during a continuous ten minute period.
• "Annual Uptime Percentage" is calculated by subtracting from 100% the percentage of 10 minute periods during the Service Year in which the Services were Unavailable. If you have been using the Services for less than 365 days, your Service Year is still the preceding 365 days but any days prior to your use of the Services will be deemed to have had 100% Availability. Annual Uptime Percentage measurements exclude downtime resulting directly or indirectly from any the SLA Exclusions (defined below). Annual Uptime Percentage measurements exclude scheduled downtime for maintenance, upgrade, or other reasons, in respect of which eSpatial will, where reasonably practicable, notify the Customer at least 24 hours before such down-time.
• "Service Year" is the preceding 365 days from the date of an SLA claim.

2. Availability

2.1. Availability

This Service Level Agreement ("SLA") is a policy governing the use of the Services under the terms of the Master Subscription Agreement between eSpatial ("us", "we", "our") and users of the Services through Paid Accounts only ("you", "your"). This SLA applies separately to each account using the Services. Unless otherwise provided herein, this SLA is subject to the terms of the Master Subscription Agreement and defined terms will have the meaning specified in the Master Subscription Agreement. We reserve the right to change the terms of this SLA in accordance with the Master Subscription Agreement.

2.1.1. Service Commitment

eSpatial will use commercially reasonable efforts to make the Services available with an Annual Uptime Percentage (defined above) of at least 99.9% during the Service Year.

2.1.2. SLA Exclusions

The Service Commitment does not apply to any unavailability, suspension or termination of the Services, or any other the Services performance issues: (i) that result from breach of conditions set out in the Master Subscription Agreement; (ii) caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of the environment on which the Services are hosted; (iii) that result from any actions or inactions of you or any third party; (iv) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control); or (v) arising from our suspension and termination of your right to use the Services in accordance with the Master Subscription Agreement (collectively, the "SLA Exclusions").

2.2. Service Credits

2.2.1. Service Credits

In the event the Services does not meet the Annual Uptime Percentage commitment, you will be eligible to receive a Service Credit as described below.

2.2.2. Definitions For Service Credits

• Any downtime occurring prior to a successful Service Credit claim cannot be used for future claims.
• The "Eligible Credit Period" is a single month, and refers to the monthly billing cycle in which the most recent Unavailable event included in the SLA claim occurred.
• A "Service Credit" is a dollar credit, calculated as set forth below, that we may credit back to an eligible Services account.

2.2.3. Service Commitments and Service Credits

If the Annual Uptime Percentage for a Customer drops below 99.9% for the Service Year, that Customer is eligible to receive a Service Credit equal to 5% of the charges billed to the Customer and paid by the Customer in that Service year (excluding fees for options in addition to the standard per-user fee for the Services) for the Eligible Credit Period.

In calculating Service Credits only charges paid in accordance with all the terms of the Master Subscription Agreement (including payment on time) may be taken into account. In calculating Service Credits only charges paid corresponding to eSpatial's listed prices without discount may be taken into account.

If availability is impacted by factors other than those explicitly listed in this SLA or the Master Subscription Agreement, we may issue a Service Credit considering such factors in our sole discretion.To file a claim, a Customer does not have to wait 365 days from the day they started using the service or 365 days from their last successful claim. A Customer can file a claim any time their Annual Uptime Percentage over the trailing 365 days drops below 99.9%.

We will apply any Service Credits only against future Services payments otherwise due from you; provided that, we may issue the Service Credit to the credit card that you used to pay for the Services for the billing cycle in which the error occurred. Service credits may only be applied against future payments that correspond to eSpatial's listed prices without other discount.

Service Credits shall not entitle you to any refund or other payment from eSpatial.

A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one dollar ($1 USD).

Service Credits may not be transferred or applied to any other account.

Unless otherwise provided in the Master Subscription Agreement, your sole and exclusive remedy for any unavailability or non-performance of the Services or other failure by us to provide the Services is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA or termination of your use of the Services.

2.2.4. Credit Request and Payment Procedures

To receive a Service Credit, you must submit a request by sending an email message to help@espatial.com. To be eligible, the credit request must: (i) include in the subject of the email message the Customer name in which the account is held; (ii) include, in the body of the email, the dates and times of each incident of Unavailability that you claim to have experienced; and (iii) be received by us within thirty (30) Business Days of the last reported incident in the SLA claim. If the Annual Uptime Percentage of such request is confirmed by us and is less than 99.9% for the Service Year, then we will issue the Service Credit to you within one billing cycle following the month in which the request occurred. Your failure to provide the request and other information as required above will disqualify you from receiving a Service Credit.

2.3 Standard Support Service Levels

Below are set out the Service Levels provided for eSpatial's Standard Support for the Services, in accordance with its Support & Maintenance Policies for the Services (the "Support Policies").eSpatial's support team provides a Help Desk for Software Problem Reports ("SPRs"), accessible during Normal Business Hours. Normal Business Hours are as defined in your Master Subscription Agreement. During this time they can be contacted via a dedicated email address, live chat when available or (for severity 1 and 2 problems) support phone numbers.

The Help Desk staff will:

• Receive email SPRs to help@espatial.com, live chat, or by telephone to a support phone number provided by eSpatial to the Customer
• Work to reproduce the reported problem from information provided by the Customer
• Work to diagnose the cause of the problem
• Produce a work-around for the problem, and then – if necessary – an update to the Services to resolve the problem
• Provide email and telephone follow-up to the Customer, to assist with resolution of SPRs and inform them of progress
• Turn-around times for responding to and resolving requests for support will be in line with the Service Levels set out below.

* Target Response Time is defined as the time between receipt of the call and the time that an eSpatial staff member responds to the Customer (generally by email or telephone) about the problem, generally to get additional information or to suggest actions. Due to the wide diversity of problems that can occur, effort to reproduce them, and the methods needed to resolve them, response time IS NOT defined as the time between the receipt of a call and problem resolution.

eSpatial will aim to respond faster than the limits set out above.

Important Notes:

There are requirements and responsibilities on the Customer set out in this document and in the Support Policy: The above Service Levels do not apply to requests for support not meeting these conditions. Target times will only apply from the time of receipt of a report meeting these conditions, and not from any earlier communications not meeting these conditions.

• Standard Support is only provided for the Services as defined in the Master Subscription Agreement, and for which all due Subscription Fees have been paid.
• Support Problem Reports must be made by agreed Customer staff designated as support liaisons (one primary and one backup individual per license set).
• Support Problem Reports must be raised through the designated support channels.
• The Support Policies require that certain information be provided for all Support Problem Reports.
• The Customer must provide eSpatial with sufficient information and assistance to reproduce the problem, and if necessary provide access to the Customer's account, or remote demonstration to see the problem occurring and investigate the problem.
• The Customer must propose a severity when reporting a problem. The severity is to be agreed with eSpatial. The Support Policies provide for escalation if the severity is not agreed.
• Support may not be provided if the Customer does not adhere to the Master Subscription Agreement.
• Support is provided for problems caused by incorrect functioning of the Services, and not for issues with causes outside of the Services, such as the Customer's networks, firewalls, proxy servers, hardware, or other software (even if interfaced to the Services).
• Standard Support does not cover requests that are not problem reports, such as questions on or assistance with configuration of, use of, or development with the Services, or relating to Customer Data.
• Charged services can be provided for investigations or other work not covered under the Support Policies.