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LICENSE AGREEMENT
AND TERMS OF USE

This License Agreement and Terms of Use (the “Terms of Use”) is made and entered into between AerialSphere, LLC (“AerialSphere”) and the entity or person agreeing to these terms (“End User”).

This Agreement is effective as of the date End User clicks to accept the Agreement, or enters into an End User/Reseller Agreement if purchasing through a Reseller (the “Effective Date”). If you are accepting on behalf of End User, you represent and warrant that: (i) you have full legal authority to bind End User to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of End User, to this Agreement. If you do not have the legal authority to bind End User, please do not click to accept. This Agreement governs End User’s access to and use of the Services.

  1. Provision of the Services.

    1. Use of the Services in End User Applications. AerialSphere will provide the Services to End User in accordance with this Agreement and/or applicable SLA.
    2. Platform; API Keys. End User will administer the Services through the AerialSphere Platform. To access the Services, End User must create an Account (See Section 3), identify defined projects (each a “Project”) and use its API key(s) in accordance with the Documentation.
    3. Accounts. End User must have an Account. End User is responsible for: (a) the information it provides in connection with the Account; (b) maintaining the confidentiality and security of the Account and associated passwords; and (c) any use of its Account.
    4. End User Domains and Applications. End User must list each authorized domain and application that uses the Services in the AerialSphere Platform. End User is responsible for ensuring that only authorized domains and applications use the Services.
    5. New Features and Services. AerialSphere may: (a) make new features or functionality available through the Services and (b) add new services to the Services definition upon notice to End User and/or through amendment of the Terms of Use. End User’s use of new features or functionality may be contingent on End User’s agreement to additional terms applicable to the new feature or functionality.
    6. Modifications.
      1. To the Services. AerialSphere may make changes to the Services at any time, which may include adding, updating, or discontinuing any Services or portion or feature(s) of the Services. AerialSphere will notify End User of any material change to the Services.
      2. To the Agreement. AerialSphere may make changes to this Agreement, including pricing (and any linked documents). Unless otherwise noted by AerialSphere, material changes to the Agreement will become effective 30 days after notice is given, except if the changes apply to new functionality in which case they will be effective immediately. AerialSphere will provide at least 90 days’ advance notice for materially adverse changes to any SLA by: (a) sending an email to the email identified by End User in the Account; or (b) posting a notice in the AerialSphere Platform. If End User does not agree to the revised Agreement, End User should stop using the Services. AerialSphere will post any modification to this Agreement to the Terms of Use URL.

  1. Payment

    1. Free Services. Certain Services are provided to End User without charge (“Free Services”). Free Services will be accessible on the AerialSphere Platform without the payment of a Subscription Fee. AerialSphere reserves the right, at any time upon written notice to End User, to require the payment of Subscription Fees or Additional Fees with respect to Services that were previously classified as Free Services.
    2. Subscription Services. Certain Services (“Subscription Services”) are provided to End User in exchange for a subscription fee (each a “Subscription Fee”) on a tier basis. The Subscription Fee you will pay is based upon the tier of Services that you selected. Subscription Fees accrued during a Fee Accrual Period will be billed automatically by AerialSphere on a regular basis (at intervals determined by AerialSphere). End User will pay all Subscription Fees in United States Dollars (“USD”). AerialSphere will charge (and End User will pay) all Subscription Fees immediately and automatically at the end of the Fee Accrual Period by credit card, debit card, ACH, EFT, or other similar automatic payment system or mechanism utilized by AerialSphere. End User’s obligation to pay Subscription Fees is non-cancellable. AerialSphere’s measurement of End User’s use of the Subscription Services is final.
    3. Additional Services. Certain Services (“Additional Services”) may be provided to End User in exchange for an additional fee (each an “Additional Fee”). Additional Fees will be billed electronically when Additional Services are performed or on a Fee Accrual Period basis at the same time and in the same manner as Subscription Fees. End User will pay all Additional Fees in USD. AerialSphere will charge (and End User will pay) all Additional Fees by credit card, debit card, ACH, EFT, or other similar automatic payment system or mechanism utilized by AerialSphere. Once an Additional Service is performed or provided, Additional Fees are not refundable except as approved by AerialSphere.
    4. Taxes. End User is responsible for any Taxes and End User will pay AerialSphere for the Services without any reduction for Taxes. If AerialSphere is obligated to collect or pay Taxes, the Taxes will be invoiced to End User, unless End User provides AerialSphere with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. In some states sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. If End User is required by law to withhold any Taxes from its payments to AerialSphere, End User must provide AerialSphere with an official tax receipt or other appropriate documentation to support such withholding. If the Services are subject to local VAT and End User is required to make a withholding of local VAT from amounts payable to AerialSphere, the value of Services calculated in accordance with the above procedure will be increased (grossed up) by End User for the respective amount of local VAT and the grossed up amount will be regarded as a VAT inclusive price. Local VAT amount withheld from the VAT-inclusive price will be remitted to the applicable local tax entity by End User and End User will ensure that AerialSphere will receive payment for its services for the net amount as would otherwise be due (the VAT inclusive price less the local VAT withheld and remitted to applicable tax authority). If required under applicable law, End User will provide AerialSphere with applicable tax identification information that AerialSphere may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. End User will be liable to pay (or reimburse AerialSphere for) any Taxes, interest, penalties or fines arising out of any violation of such regulations by End User.
    5. Fee Disputes & Refunds. End User waives all claims relating to Fees unless claimed within 60 days after charged (this does not affect any End User rights with its credit card issuer). Refunds (if any) are at the discretion of AerialSphere and will only be in the form of credit for the Services. Nothing in this Agreement obligates AerialSphere to extend credit to any party.
    6. Delinquent Payments; Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. End User will be responsible for all reasonable expenses (including attorneys’ fees) incurred by AerialSphere in collecting such delinquent amounts. If End User is late on payment for Services, AerialSphere may suspend the Services or terminate the Agreement for breach under Section 2 (Termination for Breach).

  2. License

    1. License GrantSubject to this Agreement’s terms, during the Term, AerialSphere grants to End User a non-exclusive, non-transferable, non-sublicensable, license to use the Services in End User Application(s), which may be: (a) fee-based or non-fee-based; (b) public/external or private/internal; (c) business-to-business; or (d) business-to-consumer subject to certain conditions specified below.
    2. License Requirements and Restrictions. In this Section 2, the phrase “End User will not” means “End User will not, and will not permit a third party to”. Unless AerialSphere specifically agrees in writing, End User will not:
      1. copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code (except to the extent such restriction is expressly prohibited by applicable law) provided to or made available to End User;
      2. sublicense, transfer, or distribute any of the Services;
      3. sell, resell, or otherwise make the Services available as a commercial offering to a third party except as expressly permitted by this Agreement; or
      4. access or use the Services: (i) in a manner intended to avoid incurring Fees; (ii) for activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (iii) on behalf of or for the benefit of any entity or person who is legally prohibited from using the Services; or (iv) to transmit, store, or process Protected Health Information (as defined in and subject to HIPAA).
    3. Terms of Service and Privacy Policy. The End User Application’s terms of service will: (a) notify users that the End User Application includes AerialSphere maps features and content (“Maps Content”); and (b) state that use of Maps Content is subject to the then-current versions of the these Terms of Use (i) https://www.aerialsphere.com/terms-of-use/; and (ii) AerialSphere Privacy Policy at https://www.aerialsphere.com/privacy-policy/. If End User Application allows users to include the Maps Content in Downstream Products, then End User will contractually require that all Downstream Products’ terms of service satisfy the same notice and flow-down requirements that apply to End User Application under this Section 3. If users of End User Applications (and Downstream Products, if any) fail to comply with applicable terms of this Agreement or Privacy Policy, End User will take appropriate enforcement action, including suspending or terminating those users’ use of Maps Content in End User Application or Downstream Products.
    4. Attribution. End User will display all attribution that (i) AerialSphere provides through the Services (including branding, logos, and copyright and trademark notices); or (ii) is specified in this Agreement. End User will not modify, obscure, or delete such attribution.
    5. Review of End User Applications. At AerialSphere’s request, End User will submit End User Application(s), Downstream Products, and Project(s) to AerialSphere, in a manner and form requested by AerialSphere, for review to ensure compliance with the Agreement.
    6. Restrictions Against Misusing the Services.
      1. No Scraping. End User will not extract, export, or otherwise scrape Maps Content for use outside the Services.
      2. End User will not: (i) pre-fetch, index, store, reshare, or rehost Maps Content outside the Services; or (ii) bulk download Maps Content.
      3. No Caching. End User will not cache Maps Content.
      4. No Re-Creating AerialSphere Products or Features. End User will not use the Services to create a product or service with features that recreate the features the Maps Content. End User’s product or service must contain substantial, independent value, and features beyond the Maps Content. For example, End User will not: (i) re-distribute the Maps Content as if they were End User’s products or services; or (ii) create a substitute of the Maps Content or its features.
      5. No Use with Non-AerialSphere Maps. End User will not use the Maps Content in a End User Application that contains a non-AerialSphere map.
      6. No Circumventing Fees. End User will not circumvent the applicable Fees. For example, End User will not create multiple Accounts to avoid incurring Fees, prevent AerialSphere from accurately calculating End User’s Subscription Service usage levels, or abuse any free Services.
    7. Benchmarking. End User may not publicly disclose directly or through a third party the results of any comparative or compatibility testing, benchmarking, or evaluation of the Services or Maps Content (each, a “Test”), unless the Test is pre-approved by AerialSphere in writing. End User will share all data and results of any Test with AerialSphere.

  3. End User Obligations.

    1. Compliance. End User will: (a) use the Services in compliance with the Agreement; and (b) use commercially reasonable efforts to prevent, promptly notify AerialSphere of, and terminate any unauthorized use of or access to its Account(s) or the Services.
    2. Documentation. AerialSphere may provide Documentation for End User’s use of the Services. The Documentation may specify restrictions (e.g. attribution or HTML restrictions) on how the Services may be used and End User will comply with any such restrictions specified.
    3. Copyright Policy. If you are a copyright owner or an agent thereof, and believe that any content on the AerialSphere Platform infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing us with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
      1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the AerialSphere Platform are covered by a single notification, a representative list of such works;
      2. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
      3. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address;
      4. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
      5. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Please email your notification to info@aerialsphere.com

    1. Data Use, Protection, and Privacy.
      1. Data Use and Retention. To provide the Services through End User Application(s), AerialSphere must receive and collect data from End Users, including search terms, IP addresses, and latitude/longitude coordinates. End User acknowledges and agrees that AerialSphere and its Affiliates may use and retain this data to provide and improve AerialSphere products and services, subject to the AerialSphere Privacy Policy at https://www.aerialsphere.com/privacy-policy/
      2. End User Requirements.
        1. End User Privacy. End User’s use of the Services in End User Application will comply with applicable privacy laws, including laws regarding Services that store and access cookies on End Users’ devices.
        2. End User Personal Data. Through the normal functioning of the Services, End Users provide personally identifiable information and personal data directly to AerialSphere, subject to the AerialSphere Privacy Policy at https://www.aerialsphere.com/privacy-policy/. However, End User acknowledges and agrees that End User will not provide these categories of data to AerialSphere.

  1. Suspension

    1. For License Restrictions Violations. AerialSphere may suspend the Services without prior notice if End User breaches Sections 2 (License Requirements and Restrictions), 5.2 (Use Violations) and 5.3 (Compliance with Law or Governmental Order). Any Suspension under those Sections will be to the minimum extent and for the shortest duration required to: (a) prevent or terminate the offending use, (b) comply with applicable law or governmental order.
    2. Use Violations. If AerialSphere becomes aware that End User’s or any End User’s use of the Services violates this Agreement, AerialSphere will give End User notice of such violation by requesting that End User correct the violation. If End User fails to correct such violation within 24 hours, AerialSphere may suspend all or part of End User’s use of the Services.
    3. Compliance with Law or Governmental Order. AerialSphere may immediately suspend End User’s use of the Services if (a) there is an Emergency Security Issue or (b) AerialSphere is required to suspend such use immediately to comply with applicable law. At End User’s request, unless prohibited by applicable law, AerialSphere will notify End User of the basis for the Suspension as soon as is reasonably possible.
    4. For Alleged Third-Party Intellectual Property Rights Infringement. If an End User Application is alleged to infringe a third party’s Intellectual Property Rights, AerialSphere may require End User to suspend distributing or selling the End User Application upon ten (10) days’ written notice until such allegation is fully resolved. In any event, this Section 4 does not reduce End User’s obligations under Section 14 (Indemnification).

    1. Intellectual Property Rights; Feedback.

      1. Intellectual Property Rights. Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, End User owns all Intellectual Property Rights in End User Application, and AerialSphere owns all Intellectual Property Rights in the Services and Software.
      2. End User Feedback. If End User provides AerialSphere Feedback about the Services, AerialSphere may use that information without obligation to End User, and End User irrevocably assigns to AerialSphere all right, title, and interest in that Feedback.

    1. Technical Support Services.

      End User is responsible for technical support of its End User Applications and Projects.

    1. Reduction of Services Policy.

      AerialSphere will notify End User before making material discontinuance(s) to the Services, unless AerialSphere reasonably determines that: (a) AerialSphere cannot do so by law or by contract (including if there is a change in applicable law or contract) or (b) continuing to provide the Services could create a (i) security risk or (ii) substantial economic or technical burden.

    1. Confidential Information.

      1. Obligations. Except as required by Section 2. the recipient will use the other party’s Confidential Information only to exercise its rights and fulfill its obligations under the Agreement. The recipient will use reasonable care to protect against disclosure of the other party’s Confidential Information to parties other than the recipient’s employees, Affiliates, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations.
      2. Required Disclosure. The recipient may disclose the other party’s Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (a) promptly notify the other party of such disclosure before disclosing; and (b) comply with the other party’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, the subsections above will not apply if the recipient determines that complying with (a) and (b) could: (i) result in a violation of Legal Process; (ii) obstruct a governmental investigation; and/or (iii) lead to death or serious physical harm to an individual. As between the parties, End User is responsible for responding to all third party requests concerning its use use of the Services.

    1. Term and Termination.

      1. Agreement Term. The “Term” of this Agreement will begin on the Effective Date and continue until the Agreement is terminated under this Section.
      2. Termination for Breach. Either party may terminate this Agreement for breach if: (a) the other party is in material breach of the Agreement and fails to cure that breach within 10 days after receipt of written notice; or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. In addition, AerialSphere may terminate any, all, or any portion of the Services or Projects, if End User meets any of the conditions in subsections (a) or (b).
      3. Termination for Inactivity. AerialSphere reserves the right to terminate provision of Service(s) to a Project on 30 days’ advance notice if, for more than 90 days, such Project (a) has not made any requests to the Services from any End User Applications; or (b) such Project has not incurred any Fees for such Service(s).
      4. Termination for Convenience. End User may stop using the Services at any time. Subject to satisfaction of any financial commitments made by End User pursuant to this Agreement, End User may terminate this Agreement for its convenience at any time on prior written notice and upon termination, must cease use of the applicable Services. AerialSphere may terminate this Agreement for its convenience at any time without liability to End User.
      5. Effects of Termination.
        1. If the Agreement is terminated: (a) the rights granted by one party to the other will immediately cease; (b) all unpaid Fees owed by End User to AerialSphere are immediately due; and (c) End User will delete the Software and any Maps Content on or before the termination effective date.
        2. The following will survive expiration or termination of the Agreement: Section 2(Payment), Section 2 (License Requirements and Restrictions), Section 4.4 (Data Use, Protection, and Privacy), Section 6 (Intellectual Property; Feedback), Section 9 (Confidential Information), Section 10.5 (Effects of Termination), Section 13 (Disclaimer), Section 14 (Indemnification), Section 15 (Limitation of Liability), Section 16(Miscellaneous), and Section 17 (Definitions).

    1. Publicity

      End User may state publicly that it is a partner of AerialSphere. Any use of the Brand Features in connection with its use of the Services must be consistent with AerialSphere’s Brand and Marketing Guidelines. AerialSphere may include End User’s name, logo and Brand Features in a list of AerialSphere partners, online or in promotional materials. AerialSphere may also verbally reference End User as a customer of the Services. Neither party needs approval if it is repeating a public statement that is substantially similar to a previously-approved public statement. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features. A party may revoke the other party’s right to use the Brand Features under this Section with written notice to the other party and a reasonable period to stop the use.

    1. Representations and Warranties.

      Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with Export Control Laws and Anti-Bribery Laws applicable to its provision, receipt, or use, of the Services, as applicable.

    1. Disclaimer

      EXCEPT AS EXPRESSLY PROVIDED FOR IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AERIALSPHERE: (A) DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED USE OF THE SERVICES OR SOFTWARE; (B) MAKES NO REPRESENTATION ABOUT CONTENT OR INFORMATION ACCESSIBLE THROUGH THE SERVICES; AND (C) WILL ONLY BE REQUIRED TO PROVIDE THE REMEDIES EXPRESSLY STATED IN AN SLA, IF APPLICABLE, FOR FAILURE TO PROVIDE THE SERVICES. AERIALSPHERE MAPS CORE SERVICES ARE PROVIDED FOR PLANNING PURPOSES ONLY. INFORMATION FROM THE AERIALSPHERE MAPS CORE SERVICES MAY DIFFER FROM ACTUAL CONDITIONS, AND MAY NOT BE SUITABLE FOR THE PARTNER APPLICATION. PARTNER MUST EXERCISE INDEPENDENT JUDGMENT WHEN USING THE SERVICES TO ENSURE THAT THE PARTNER APPLICATION IS SAFE FOR END USERS AND OTHER THIRD PARTIES.

    1. Indemnification

      1. By End User. Unless prohibited by applicable law, End User will defend AerialSphere and its Affiliates and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from (a) any End User Indemnified Materials or (b) End User’s or an End User’s use of the Services in violation of the AUP or in violation of the Agreement.
      2. By AerialSphere. AerialSphere will defend End User and its Affiliates participating under the Agreement (“End User Indemnified Parties”), and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that End User Indemnified Parties’ use of AerialSphere Indemnified Materials infringes the third party’s Intellectual Property Rights.
      3. Exclusions. This Section 14 will not apply to the extent the underlying allegation arises from (a) the indemnified party’s breach of the Agreement or (b) a combination of the indemnifying party’s technology or Brand Features with materials not provided by the indemnifying party, unless the combination is required by the Agreement.
      4. Conditions. Sections 1 and 14.2 will apply only to the extent:
        1. The indemnified party has promptly notified the indemnifying party in writing of any Allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the indemnifying party to resolve the Allegation(s) and Third-Party Legal Proceeding. If breach of this Section 4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 14.1 or 14.2 (as applicable) will be reduced in proportion to the prejudice.
        2. The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
      5. Remedies.
        1. If AerialSphere reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then AerialSphere may, at its sole option and expense: (i) procure the right for End User to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative;
        2. If AerialSphere does not believe the remedies in Section 4(a) are commercially reasonable, then AerialSphere may suspend or terminate End User’s use of the impacted Services.
      6. Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 14 states the parties’ sole and exclusive remedy under this Agreement for any third party’s Intellectual Property Rights Allegations and Third-Party Legal Proceedings covered by this Section 14(Indemnification).

    1. Limitation of Liability.

      1. Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES WILL NOT BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR PROFITS (WHETHER DIRECT OR INDIRECT), SAVINGS, GOODWILL, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY OR LICENSOR, AS APPLICABLE, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
      2. Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES MAY NOT BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY PARTNER TO AERIALSPHERE UNDER THIS AGREEMENT DURING THE TWELVE MONTHS BEFORE THE EVENT GIVING RISE TO LIABILITY.
      3. Exceptions to Limitations. These limitations of liability do not apply to violations of a party’s Intellectual Property Rights by the other party or End User’s payment obligations.

    1. Miscellaneous

      1. Notices. All notices must be in writing and addressed to the other party’s legal department and primary point of contact. The email address for notices being sent to AerialSphere’s Legal Department is notice@aerialsphere.com . Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
      2. Assignment.
        1. Except as set forth in Section 2(b), neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
        2. Change of Control. If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within 30 days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and 30 days after it receives that written notice.
      3. Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, pandemics, epidemics, terrorism, riots, or war.
      4. Subcontracting. AerialSphere may subcontract obligations under the Agreement but will remain liable to End User for any subcontracted obligations.
      5. No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
      6. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
      7. Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
      8. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
      9. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
      10. Governing Law. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY ARIZONA LAW, EXCLUDING THAT STATE’S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF MARICOPA COUNTY, ARIZONA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
      11. Amendments. Except as stated in Section 6(b) (Modifications; To the Agreement), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
      12. Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly stated in this Agreement. The terms located at any URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, AerialSphere may provide an updated URL in place of any URL in this Agreement.
      13. Reseller Orders. This Section applies if End User orders the Services from a Reseller under an End User/Reseller Agreement.
        1. Orders. If End User orders Services from Reseller, then: (a) fees for the Services will be set between End User and Reseller, and any payments will be made directly to Reseller under the End User/Reseller Agreement; and (b) Section 2 of this Agreement (Payment) will not apply to the Services.
        2. Conflicting Terms. If End User orders Services from a Reseller and any documents conflict, then the documents will control in the following order: (i) these Terms of Use (as modified from time to time), (ii) the agreement between Reseller and End User.
        3. Reseller as Administrator. At End User’s discretion, Reseller may access End User’s Projects, Accounts, or the Services on behalf of End User. As between AerialSphere and End User, End User is solely responsible for: (i) any access by Reseller to End User’s Account(s), Project(s), or the Services; and (ii) defining in the End User/Reseller Agreement any rights or obligations as between Reseller and End User with respect to the Accounts, Projects, or Services.
        4. Reseller Verification of End User Application(s). Before providing the Services, Reseller may also verify that End User owns or controls End User Applications. If Reseller determines that End User does not own or control End User Applications, then AerialSphere will have no obligation to provide the Services to End User.

    1. Definitions

      1. “Account” means End User’s AerialSphere Account.
      2. “AerialSphere Platform” means the online console(s) and/or tool(s) provided by AerialSphere to End User for administering the Services.
      3. “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
      4. “Allegation” means an unaffiliated third party’s allegation.
      5. “Anti-Bribery Laws” means all applicable commercial and public anti-bribery laws, (for example, the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010), which prohibit corrupt offers of anything of value, either directly or indirectly, to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. “Government officials” include any government employee; candidate for public office; and employee of government-owned or government-controlled companies, public international organizations, and political parties.
      6. “API Key” means a unique identifier that is used to authenticate requests associated with Projects for usage and billing purposes.
      7. “Brand and Marketing Guidelines” means https://www.aerialsphere.com/wp-content/uploads/AerialSphere-LogoGuidelines_web_20210302.pdf
      8. “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party.
      9. “Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.
      10. “Control” means control of greater than 50% of the voting rights or equity interests of a party.
      11. “Documentation” means the AerialSphere documentation (as may be updated) in the form generally made available by AerialSphere for use with the Services.
      12. “Downstream Product” means a product or service licensed or otherwise made available by End User to one or more third parties including but not limited to End User’s parents, subsidiaries, Affiliates, successors, assigns, customers, clients, employees, and contractors.
      13. “Emergency Security Issue” means either: (a) use of the Services in violation of this Agreement or the Privacy Policy, which could disrupt: (i) the Services; (ii) other End Users’ use of the Services; or (iii) the servers used to provide the Services; or (b) unauthorized third party access to the Services.
      14. “End User” means an individual or entity that End User permits to use the Services or End User Application(s).
      15. “End User Application” means any web page or application (including all source code and features) owned or controlled by End User, or that End User is authorized to use.
      16. “End User Indemnified Materials” means End User Application and End User Brand Features.
      17. “End User/Reseller Agreement” means, if applicable, a separate, independent agreement between End User and Reseller regarding the Services.
      18. “Export Control Laws” means all applicable export and re-export control laws and regulations, including any applicable munitions- or defense-related regulations (for example, the International Traffic in Arms Regulations maintained by the U.S. Department of State).
      19. “Fee Accrual Period” means a calendar month or another period specified by AerialSphere in the AerialSphere Platform.
      20. “Feedback” means feedback or suggestions about the Services provided by End User to AerialSphere.
      21. “Fees” means the product of the amount of Services used or ordered by End User multiplied by the Prices, plus any applicable Taxes.
      22. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 as it may be amended, and any regulations issued under it.
      23. “including” means “including but not limited to”.
      24. “Indemnified Liabilities” means any (a) settlement amounts approved by the indemnifying party; and (b) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.
      25. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
      26. “Legal Process” means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
      27. “Maps Content” means any content provided through the Services (whether created by AerialSphere or third-party licensors), including map and terrain data, imagery, traffic data, and places data (including business listings).
      28. “Personal Data” has the meaning provided in the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016.
      29. “Reseller” means, if applicable, the authorized unaffiliated third-party reseller that sells or supplies the Services to End User.
      30. “Services” means the AerialSphere Platform, Brand Features, Maps Content, and Software.
      31. “SLA” or “Service Level Agreement” means each of a current service level agreement
      32. “Software” means the Services, the AerialSphere Platform, downloadable tools, software development kits, or other computer software provided by AerialSphere or a Reseller to End Users as part of the Services, including updates.
      33. “Taxes” means any duties, customs fees, or taxes (other than AerialSphere’s income tax) associated with the purchase of the Services, including any related penalties or interest.
      34. “Technical Support Services” means the technical support service provided by AerialSphere to End User under the then- Technical Support Services Guidelines.
      35. “Term” has the meaning stated in Section 10 of this Agreement.
      36. “Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).