End User License Agreement (EULA)

FORM OF END USER LICENSE AGREEMENT

PART A - NOTICE TO ALL USERS

This license agreement (“License Agreement”) pertains to the use of certain Symbility (as defined below) Software (as defined below) and systems and only provides a right, on the terms and conditions set out in this License Agreement, for a single user to access and use the Software. In this License Agreement, "use" or "using" means to access, install, download, copy or otherwise benefit from using, the functionality of the Software.

BY ENTERING INTO THIS LICENSE AGREEMENT YOU ARE AGREEING, ON YOUR OWN BEHALF AND ON BEHALF OF ANY LEGAL ENTITY THAT YOU REPRESENT, TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. TO THAT END, IN THIS LICENSE AGREEMENT, THE TERM “you” AND “your” AND ALL SIMILAR WORDS REFER TO THE USER OF THE SOFTWARE AND THIS LICENSE AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED.

THIS IS AN IMPORTANT LEGAL AGREEMENT. BY CONTINUING WITH THIS REGISTRATION AND CLICKING THE "I AGREE" BUTTON BELOW OR BY YOUR FIRST USE OR ACTIVATION OF ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT IN THEIR ENTIRETY AND YOU ARE AGREEING TO BE LEGALLY BOUND BY THIS LICENSE AGREEMENT.

IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, YOU MAY NOT USE THE SOFTWARE AND MUST IMMEDIATELY CEASE ANY SUCH USE.

PLEASE READ THIS LICENSE AGREEMENT CAREFULLY.

For the purposes of this License Agreement, (a) “Licensee Data” means the data and information submitted or stored by you in respect of the Services, the Software and the Symbility Systems (as defined below) and shall constitute your confidential information, and (b) “Services” means any services provided to you by Symbility in connection with the utilization of the Software and Symbility Systems. Where the word “include”, “includes” or “including” is used, it means “include”, “includes” or “including”, in each case, “without limitation”.

PART B – TERMS AND CONDITIONS

1. Symbility Entity and Governing Law.
   1. If the Software is obtained by you, or on your behalf, when you, or the person who obtains the Software on your behalf, are in Canada or if you are an employee of a company that is a party to a Master Agreement and Symbility Solutions Inc. is a party to such Master Agreement, then
      1. all references to “Symbility” in this License Agreement shall refer to “Symbility Solutions Inc.” and this License Agreement will be an agreement between you and Symbility Solutions Inc.; and
      2. this License Agreement will be governed by and construed in accordance with the substantive laws in force in the Province of Ontario and the courts of Ontario shall have non-exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
   2. If the Software is obtained by you, or on your behalf, when you, or the person who obtains the Software on your behalf, are in the United States or if you are an employee of a company that is a party to a Master Agreement and Symbility Solutions Corp. is a party to such Master Agreement, then
      1. all references to “Symbility” in this License Agreement shall refer to “Symbility Solutions Corp.” and this License Agreement will be an agreement between you and Symbility Solutions Corp.; and
      2. this License Agreement will be governed by and construed in accordance with the substantive laws in force in the state of Delaware and the courts of Delaware shall have non-exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
2. License Agreement Terms. This License Agreement is a legal agreement between you and Symbility. You are accessing and/or activating software and associated materials, content, and documentation (including any MSB Data (as defined below) included therein or delivered therewith) that have been created by, or on behalf of Symbility, its affiliates, or its licensors (collectively the “Software”) which is made available to you by, or on behalf of, Symbility and/or which will be used by you on the Symbility website at www.symbilitysolutions.com (the “Website”). The Website is hosted on Symbility, or third party, computer systems (together with the Website, the “Symbility Systems”). By clicking on the “I Agree” button below or using the Software, as applicable, you are acknowledging that you have read and understood this License Agreement, and agree to be bound by its terms and conditions.
3. Grant of License to Use the Software.
   1. Subject to the terms and conditions hereof, Symbility hereby grants to you, for the term of this License Agreement, a non-exclusive, non-transferable, non-sublicensable license to use the Software in the Territory, as such Software is delivered to you, solely as an end user, and solely for the purpose of generating replacement cost or actual cash value estimates in connection with damage appraisal for residential and commercial properties using the Software. The Software and any MSB Data included therein or delivered therewith shall not be used for underwriting or inspection purposes. “MSB Data” means data licensed by Marshall & Swift/Boeckh, LLC (“MSB”) to Symbility, for incorporation into the Software, including to the following data: (i) U.S. partial loss estimating data set (insurance), (ii) Canadian partial loss estimating data (insurance), and (iii) personal property contents data sets for the U.S. and Canada, regardless of the manner in which the data was collected.
   2. Use of some third party materials included in the Software or Symbility Systems may be subject to other terms and conditions typically found in a separate license agreement or “Read Me” file located near such materials.
   3. For the purposes of this License Agreement, “Territory” means the country where, as applicable, (a) the Software obtained by you, or on your behalf, or (b) your regular place of business as an employee of a company that is a party to a Master Agreement is.
4. Ownership of Software and Symbility Systems.
   1. The Software contains and/or embodies copyrighted material, trade secrets, inventions and/or other proprietary material and intellectual property of Symbility, its affiliates and/or its licensors. You acknowledge that the Software was developed, coordinated, arranged, compiled, prepared and maintained by Symbility or its licensors through the application of methods and standards of judgment used and developed through the expenditure of considerable work, time and money, and constitutes valuable property and trade secrets of Symbility and its licensors. You shall not disclose or provide the Software to any other entity or use the Software or permit the Software to be used for any purpose other than the purpose expressly authorized in Section 3 of this License Agreement. You further agree to protect the copyright and all other proprietary rights of Symbility and its licensors in the Software both during and after the term of this Agreement by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use and unauthorized disclosure of the Software as you use to protect your own confidential and/or proprietary information or data. All title, intellectual property rights and ownership rights in the Software and the Symbility Systems (including any upgrades) remain with Symbility, its affiliates and its licensors, as applicable.
   2. Except as expressly provided by this License Agreement, no licenses or rights (including rights to maintenance or updates) are granted, expressly, or by implication, or estoppel or otherwise to you, and Symbility reserves all rights with respect to the Software and the Symbility Systems not expressly granted in this License Agreement.
   3. Symbility does not sell any rights in the Software, but rather grants to you the right to use the Software in accordance with the terms and conditions hereof.
   4. The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
5. Ownership of MSB Data. For greater certainty, MSB shall own all right, title and interest in and to the MSB Data, and will further own all right, title and interest in and to any modifications made to the MSB Data by you, including all copyright, patent, trademark and trade secret rights.
6. Confidential Information. You will keep the Software and all other confidential information provided to you by Symbility during the term of this License Agreement (collectively, “Confidential Information”) strictly confidential and only use such Confidential Information solely for the purposes outlined in and permitted under this License Agreement. You further agree to protect all Confidential Information during the term of this License Agreement by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use and unauthorized disclosure of the Confidential Information as you use to protect your own confidential and/or proprietary information or data.
7. Activation and Privacy Information. By registering to use this Software, you consent to the collection and processing of information that you are requested to provide during the registration process. All of this information is collected by Symbility and handled pursuant to the terms of its Privacy Policy, a copy of which is located at https://www.symbilitysolutions.com/privacy-policy/ on the Symbility website (www.symbilitysolutions.com) under the hyperlink labeled “Privacy Policy”. You hereby grant to Symbility the right to use the Licensee Data to provide other clients and customers comparative data on the use of the Software, provided that such Licensee Data is used in a form which in no way discloses any personal or identifiable information on any individual, and provided further that the you have the right at any time, on written notice to Symbility, to withdraw such consent to so use the Licensee Data in respect of any such Licensee Data not provided to Symbility prior to such notice.

   You grant to Symbility the right to provide the Licensee Data:

   1. and to reproduce, adapt, modify, translate and distribute Licensee Data to third party Symbility service providers for the sole purpose of enabling Symbility to provide and improve the Software and the Symbility Systems; and
   2. provided that such Licensee Data is provided in a form which in no way discloses (i) any personal information or (ii) information on an individual that may identify such individual or you, to MSB for the sole purpose of improving the MSB Data.

8. To the extent you are a member of a franchisee, carrier or contractor network, you hereby further grant to Symbility the right to provide the Licensee Data to the applicable third party franchisor, carrier or contractor unless you withdraw such consent upon written notice to Symbility.

   You represent and warrant to Symbility that you have all right, title and interest in the Licensee Data as required to exercise your rights under this License Agreement and that you have all right, title and interest in the Licensee Data as required to permit Symbility to provide the Software, Services and the Symbility Systems under this License Agreement in relation to the Licensee Data.

   Notwithstanding any other provision of this License Agreement, upon termination or expiration of this License Agreement, Symbility may retain Licensee Data in a form which in no way discloses any personal information for the for the sole purpose of enabling Symbility to provide and improve the Services.

9. Restrictions.
   1. Except as expressly permitted in this License Agreement in order to carry out the license granted in Section 3, you shall not sell, transfer, license or sublicense, distribute, replicate, reproduce, perform or display the Software or the license granted herein. In no event shall you reverse engineer, disassemble, reverse compile or otherwise reduce to human readable form or seek to create or derive the source code from the object code of the Software, emulate the functionality, modify or create derivative versions of the Software, in whole or in part, in each case without the express prior written consent of Symbility, and its licensors, as applicable. In addition to all prohibitions contained elsewhere in this License Agreement, you shall not:
      1. use the Software or any portion thereof to create any tool or software product that can be used to create software applications of any nature whatsoever or use the Software or the Symbility Systems in any unlawful manner whatsoever;
      2. rent, lease, loan, export, assign, or otherwise provide access to the Software or the Symbility Systems in whole or in part, on a temporary or permanent basis, or otherwise allow any party other than you to access the Software;
      3. use the Software or any other Symbility intellectual property, or the Symbility Systems except as expressly authorized in this License Agreement;
      4. combine the Software with any other works, including any software governed by an open source license;
      5. remove, alter, cover, obfuscate, and/or otherwise deface any proprietary notices in or on the Software or the Symbility Systems; and
      6. you shall take all reasonable precautions to prevent third parties from using, accessing or copying the Software or the Symbility Systems, as applicable, including (A) maintaining the Software in a secure location and manner and restricting access to the Software to you, as an end-user, in accordance with Section 3, and (B) implement industry standard measures and use commercially reasonable efforts to prevent unauthorized access to the Software by any person, including by implementing industry standard measures for data security.
   2. You further agree that you shall not tamper with the Software or the Symbility Systems or undertake any activity intended to bypass, modify, defeat or otherwise circumvent (or having the effect of facilitating, or assisting the bypassing, defeating or circumventing of) proper and/or secure access or operation of the Software or the Symbility Systems and/or any processes or mechanisms operatively linked to the Software or the Symbility Systems.
   3. In addition to all prohibitions contained elsewhere in this License Agreement, you further agree that you shall not, without the prior written consent of MSB:
      1. reproduce, copy, sell, market, transmit, report, or otherwise make available to or allow any third party to access any MSB Data in whole or in part in any form or medium, including by creating a product based on or using the MSB Data, or
      2. create any database or other collection, subset or aggregation of all or any portion of the MSB Data contained in or collected by the Software or otherwise modify, reverse engineer or create derivative works of the MSB Data.
   4. If you receive MSB Data in an unencrypted or unsecured manner, including in a Microsoft Excel spreadsheet, upon delivery of any new MSB Data set, you agree to delete all other MSB Data sets within one business day of such delivery and agree to certify such deletion to MSB in writing.
   5. You agree that you shall exercise commercially reasonable care and diligence not to pass any computer virus, worm, bug or other computer infection to Symbility. You further agree to adopt and implement commercially reasonable preventative procedures to comply with your obligations under Section 3 of this License Agreement.
   6. You acknowledge and agree that all Data is for informational purposes only. It is your responsibility to ensure that the estimates produced by each Transaction include pricing that is consistent with components, including actual materials, equipment, and labor pricing. “Data” means any applicable pricing information in an organized format for the specific limited purpose of estimating fixed residential and/or commercial structural remodel and repair costs and, as applicable, contents estimating. “Transaction” means information relating to a distinct claim, job file, loss referral and/or record input into the Software, as identified by a unique identifier within the Software, which is enhanced, processed or manipulated using the Software, which processing may include attaching a diagram, general items box, photo, document and/or form, to generate a costs estimate.
10. Protection of Personal Information.
    1. You agree to afford any and all Personal Information (where “Personal Information” means any and all information that relates to or identifies an individual or can be used to identify an individual) reasonable industry standard security with regard to transfer and storage, to protect against any threats or hazards to the security or integrity of such information, to protect against unauthorized access to or use of such information and to protect against accidental loss or destruction of, or damage to such information.
    2. You further agree that any transfer of Personal Information will comply with all applicable data protection laws and regulations and that you will obtain all consents necessary to process or store such information in accordance with applicable law.
11. Infringement. If you learn that a third party is infringing, potentially infringing or misappropriating any of Symbility or its licensors’ intellectual property rights relating to the Software (including the MSB Data) or Symbility Systems you agree to promptly notify Symbility.
12. Abuses. You agree to use the Software or the Symbility Systems for lawful purposes only and you represent and warrant that you will not use (or allow use of) the Software or the Symbility Systems in any manner: (a) that is prohibited by any law or regulation or Symbility policy; (b) that will disrupt third parties’ use or enjoyment of the Software or Symbility Systems, including if its use results in automated, constant and repeated requests for data other than as permitted under this License Agreement (e.g. denial of service attack), and has a negative effect on Symbility or its systems or network (including abnormal usage that overloads servers on the Symbility network or causes portions of the Symbility network to be blocked; (c) that uses the Software, Symbility Systems or Services to create, transmit, distribute or store material that violates trademark, copyright, trade secret or other intellectual property laws; violates the privacy, publicity or other personal rights of others; violates export control or data protection laws; impairs the privacy of communications; may be threatening, abusive or hateful; or constitutes or encourages conduct that would constitute a fraud or criminal offence or gives rise to civil liability; or (d) that attempts to penetrate Symbility security (which action will also be reported to appropriate law enforcement agencies) (collectively, “Abuses”). If you in any way make, facilitate, aid or encourage any Abuse, Symbility may in its sole discretion, immediately terminate the license to the Software, your access to the Symbility Systems, the Services and/or this License Agreement with no refunds offered or due to you. Symbility also reserves the right, in its sole discretion, to suspend or terminate the license to the Software and, your access to the Symbility Systems upon notice to you for any Abuse. Failure to promptly correct such an Abuse within 48 hours notice of receipt of notice from Symbility may result in termination of this License Agreement and, your access to the Symbility Systems. Indirect or attempted violations of this Section shall also be considered violation of this Section 11.
13. Audit. You agree to permit Symbility or a representative of Symbility to examine the facilities and systems where the MSB Data is maintained to the extent required to verify your compliance with this Agreement, provided that each such examination will (a) be at Symbility’s sole expense, (b) be during your normal business hours, and (c) you and Symbility will cooperate so as to minimize any disruption or interference with your operations.
14. Client Services.
    1. Symbility will make available its telephone technical support Monday to Friday 8:00 a.m. – 8:00 p.m. ET and Saturday and Sunday 9:00 a.m. – 6:00 p.m. ET, excluding statutory holidays applicable to Symbility's operations. These services, terms of service and service hours are subject to change without notice.
    2. Symbility reserves the right to do any of the following, at any time, with or without notice: (a) to modify, suspend or terminate operation of or access to the Software, Services or Symbility Systems, or any component thereof, for any reason; (b) to modify or change the Software, the Services or the Symbility Systems, or any component of either of same, and any applicable policies or terms; and (c) to interrupt the operation of the Software, or any component thereof, as necessary to perform routine or non-routine maintenance, error correction, or other changes.
15. Termination.
    1. This License Agreement and your license to use the Software commence upon the earlier of (a) your acceptance of this License Agreement by clicking on the “I Agree” button below, or (b) your first use of the Software, as applicable, and will continue until you fail to be in compliance with the terms and conditions of this License Agreement, or this License Agreement is terminated. Symbility may at its sole discretion immediately terminate your license to use the Software and/or your access to the Symbility Systems with or without notice to you. Upon the termination of this License Agreement, you shall immediately cease using the Software and the Symbility Systems, and shall permanently destroy and/or delete all copies of Confidential Information, including the Software any and all MSB Data.
    2. Section 4 “Ownership of the Software and Symbility Systems,” Section 5 “Ownership of MSB Data” and Section 16 “Disclaimer of Warranties and Limitation of Liability” of this License Agreement shall continue in force after any termination or expiration of this License Agreement or any amended, subsequent or replacement agreement.
16. Amendments. Symbility may from time to time, with reasonable notice to you, amend, modify, or supplement this License Agreement. Please check the Website regularly for revisions to this License Agreement.
17. Disclaimer of Warranties, Limitation of Liability and Indemnity.
    1. For greater certainty, the below disclaimer applies to, among other matters and with respect to the Software, any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use of, whether for breach of contract, tort, negligence or any other cause of action.
    2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) SYMBILITY, ITS SUBSIDIARIES, AFFILIATES, PARTNERS, EMPLOYEES, DIRECTORS, CONTRACTORS AND ITS LICENSORS (SUCH PERSONS, THE “PROVIDERS”) DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE AND THE SYMBILITY SYSTEMS AND THE MSB DATA, (B) THE PROVIDERS DO NOT PROMISE THAT THE SOFTWARE OR THE SYMBILITY SYSTEMS OR THE MSB DATA, WILL BE ERROR-FREE OR THEIR USE UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF THE SOFTWARE OR THE SYMBILITY SYSTEMS OR THE MSB DATA WILL PROVIDE SPECIFIC RESULTS, AND (C) THE SOFTWARE AND THE SYMBILITY SYSTEMS AND THE MSB DATA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE AND THE SYMBILITY SYSTEMS REMAINS WITH YOU. THE PROVIDERS CANNOT ENSURE THAT THE SOFTWARE OR THE SYMBILITY SYSTEMS, OR ANY FILES OR OTHER DATA ASSOCIATED OR INCLUDED WITH THE SOFTWARE OR THE SYMBILITY SYSTEMS OR THE MSB DATA WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. IN NO EVENT SHALL THE PROVIDERS BE LIABLE FOR ANY LOSS OR DAMAGE HEREUNDER, INCLUDING ANY INACCURACY OF DATA, LOSS OF PROFITS OR BUSINESS INFORMATION, BUSINESS INTERRUPTION, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE SYMBILITY SYSTEMS OR THE MSB DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE PROVIDERS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF THE SYMBILITY PER CLAIM FEES ACTUALLY PAID BY YOU (OR ON YOUR BEHALF PURSUANT TO A MASTER AGREEMENT) AS THE USER OF THE SOFTWARE DURING THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
    3. THE PROVIDERS DO NOT GUARANTEE OR WARRANTY THE ACCURACY AND COMPLETENESS OF ANY DATA, INCLUDING MSB DATA. THE PROVIDERS DO NOT INDEPENDENTLY VERIFY THE COMPLETENESS, ACCURACY OR AUTHENTICITY OF THE PUBLIC INFORMATION OR THIRD PARTY INFORMATION CONTAINED IN ANY DATA, INCLUDING THE MSB DATA. THE INFORMATION REPORTED TO THE PROVIDERS AND ANY DATA, INCLUDING THE MSB DATA, MAY BE SUBJECT TO TRANSCRIPTION OR TRANSMISSION ERRORS. SUCH DATA IS SUPPLIED TO YOU ON AN “AS IS” BASIS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE LIMITATIONS OF THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM.
    4. In no event will Symbility be liable for any use or misuse of any of your or any third party hardware operating systems, or equipment, monitoring or management of the servers on which the Software resides or the installation, where applicable, of the Software, or any of your data (or that of any third party) or any unauthorized use or misuse of the Software. It is your responsibility to protect the foregoing hardware, operating system, equipment, and your data (and that of third parties).
    5. You agree to indemnify, defend and hold Symbility, its affiliates and customers, and their respective directors, officers, shareholders, employees, agents and representatives, successors and permitted assigns, harmless from and against any and all claims, suits, actions, proceedings, damages, costs, liabilities, losses, fines, penalties, and expenses (including reasonable legal fees) (collectively, “Losses”) resulting from:
    6. 
       
       1. allegations that the Licensee Data or your products or services or their use infringe or misappropriate any intellectual property rights of a third party;
       2. allegations that the Licensee Data or your the products or services contain defamatory, libelous, slanderous, obscene or pornographic materials, or violate a third party’s rights of privacy or publicity;
       3. allegations arising from a claim by you relating to the provision of the Services;
       4. any claim made by a third party with respect to, arising from, or alleged to result from, arise out of, or in connection with any breach of any representation, warranty or covenant or obligation set forth in this License Agreement by you the Customer; or
       5. your acts or omissions that are negligent, grossly negligent, reckless, or wilful.
18. Fees. You agree you pay all applicable fees and charges to Symbility as required.

PART C - SYMBILITY ADDITIONAL TERMS FOR USE OF SKYMEASURE REPORTS, IF APPLICABLE

You (referred to herein as “User” or “you”) have registered an online account with SkyMeasure (“SkyMeasure”, “we” or “us”) through Symbility to purchase certain SkyMeasure property reports from Symbility which incorporate proprietary data of SkyMeasure and data which SkyMeasure has licensed from one or more third persons, and such other products as SkyMeasure, through Symbility, may make available for purchase through Symbility’s websites (“Sites”) from time to time (“SkyMeasure Reports” or “Reports”). Your transactions with Symbility for use of SkyMeasure Reports are governed by SkyMeasure’s Privacy Policy, and the following terms and conditions of Symbility’s Terms for Use of SkyMeasure Report (“Terms of Use”). Symbility’s agreement to transact with you is expressly subject to your agreement to all of the terms contained herein, without modification. In the event of any conflict or inconsistency between the subject matter of these Terms of Use and the SkyMeasure Privacy Policy, the following priority shall apply for purposes of which terms govern and control:

1. Terms of Use, then
2. SkyMeasure Privacy Policy

We reserve the right to change these Terms of Use at any time, effective immediately upon posting on our Sites. If you violate these Terms of Use, we may terminate your use of the Sites, bar you from future use of the Sites or take appropriate legal action against you.

Warranty for Roof Measurement Reports

For roof measurement Reports (“Roof Measurement Reports”), Symbility will provide a total roof area calculation in the applicable SkyMeasure Report that is no more than 5% different than the actual field measurement of the roof area, as calculated by a qualified contractor. Symbility will refund fees for Roof Measurement Reports with total roof area calculation that does not meet this standard and to which Symbility is notified of such condition within 30 calendar days of delivery. Symbility reserves the right to physically confirm the field measurement before or after such credit is issued.

EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS SECTION, ALL REPORTS, AND ALL CONTENT THEREIN, IS PROVIDED “AS IS” AND THE PARTIES DISCLAIM ALL OTHER WARRANTIES AND REMEDIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THAT THE CONTENT WILL BE ERROR-FREE OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

Guidelines for Using Roof Measurement Reports

To help ensure satisfaction, we recommend the following guidelines when ordering and using a Roof Measurement Report:

1. Verify the correct property location when entering your report by “clicking” and “dragging” the pin directly over the correct structure on the verification map.
2. Once you have received the Report please take it to the job site during your inspection process to verify that the structure or area that was measured matches the property location. Perform a quick walk around the property with the Report in hand to verify that all details of the roof are included in the Report.
3. Once you have completed steps (a) and (b) we recommend that you verify the longest Eave or Ridge measurement and the pitch of the entire structure (in most cases this can be done from the ground).
4. In the case of a multiple building project, such as an apartment or condominium complex, please repeat the guidelines above (a), (b) and (c) for each structure as needed.

License Grant

Content License / Sublicense. Symbility grants to User a non sublicenseable, non-transferable, non-exclusive sublicense to use the Content, in each case as described in “Permitted Uses” below and subject to the “Restrictions” and “Minimum Terms” below. All rights and uses of the Content not expressly granted in this Section are reserved to Symbility or the Content Owner, as the case may be.

Permitted Uses. User may, at its discretion, use the Content to: (i) make a commercially reasonable number of hardcopies and softcopies of the Content for internal use or audit purposes only; and (ii) distribute the Content (with copyright markings) within the User’s environment. For the avoidance of doubt, User acknowledges and agrees that the scope of the license and sublicense in this Section, notwithstanding any contrary term herein, is provided on a single-use, single customer basis only and does not allow User to resell, relicense or redistribute Content in whole or part to any third party, with the exception of the Extracts that can be distributed to its Authorized Users. User shall be responsible for advising all Authorized Users of the requirements of this Section and guaranteeing their compliance with the terms hereof.

Restrictions. Unless Symbility specifically agrees in writing, the license and sublicense granted in “Content License / Sublicense” does not include the right to: (i) distribute or display the Content to the general public; (ii) incorporate or embed the Content into a service or solution (other than SkyMeasure Reports as described above) to be used for anything other than for use for internal business purposes; (iii) remove any attribution in the Content; (iv) sublicense, sell, rent or lease the Imagery or otherwise transfer the Imagery to a third-party; (v) use any Content for High Risk Activities; and/or (vi) use, copy, display, modify, create derivative works based on, merger or transfer copies of the Content except as expressly provided in this Agreement.

Limited Trademark License. Symbility grants to User a non-sublicenseable, non-transferable, non-exclusive sublicense to use the name “SkyMeasure” and any approved logo for SkyMeasure’s property reports business for User’s use only for marketing and general customer facing purposes. All uses of such name and logos must be specifically pre-approved in writing by Symbility. All rights and uses of such name and logos not expressly granted by these Terms of Use are reserved to Symbility.

Reservation of Intellectual Property Rights. Except as expressly set forth herein, these Terms of Use do not grant User any rights, implied or otherwise, to Symbility’s or any third person’s Intellectual Property Rights. Nothing in this Agreement constitutes a waiver of the rights of any Content Owner under U.S. copyright law or any other federal or state law pertaining to the Content and User shall not remove any such Content Owner’s copyright notice on any such Content. You agree that you will not, directly or indirectly, reverse engineer, decompile or reproduce any Confidential Information or Intellectual Property of the Content Owner(s), including but not limited to their respective software, data, confidential information, and trade secrets.

Defined Terms. The following definitions shall apply for purposes of this Section:

“SkyMeasure Content” means all data, information and other content included in any SkyMeasure Report other than the Third Party Content.

“Authorized User” means any person authorized to use or access SkyMeasure Reports (including any Content therein) as set forth above in “Permitted Uses”.

“Content” means SkyMeasure Content or Third Party Content, as the case may be.

“Content Owner” means the owner of the applicable Content, i.e. SkyMeasure or the Third Party Content Owner, as the case may be.

“High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control or life support systems, where the failure of the Content could lead to death, personal injury, or environmental damage.

“Imagery” has the meaning set forth in the definition of Third Party Content.

“Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.

“Main Reseller Agreement” means the Value-Added Reseller Agreement dated January 10, 2014, pursuant to which SkyMeasure has been appointed as an independent, non-exclusive, authorized company to distribute and sublicense Third Party Content to specified sublicensees.

“Third Party Content” means (i) aerial imagery and any other data obtained by SkyMeasure under the Main Reseller Agreement (“Imagery”) and (ii) any other proprietary content of any other third Person(s), which is used by SkyMeasure to prepare SkyMeasure Reports.

“Third Party Content Owner” means (a) Google, Inc., a Delaware corporation with offices at 1600 Amphitheatre Parkway, Mountain View, CA 94043, who is the owner of the Third Party Content licensed to SkyMeasure under the Main Reseller Agreement and (b) any other third Person(s) which owns Third Party Content.

“Third Party Content Agreements” means any license, reseller, user or other agreement, including, without limitation, the Main Reseller Agreement, under which SkyMeasure licenses or otherwise has use rights with respect to any Third Party Content included in any SkyMeasure Report deliverable hereunder.

Confidentiality

You acknowledge that in connection with your transacting with SkyMeasure that you may gain access to confidential information of SkyMeasure. You agree that you will maintain strict confidentiality of SkyMeasure confidential information, and you will not (i) use SkyMeasure confidential information other than in connection with performing your obligations and exercise your rights as outlined in these Terms of Use (the “Permitted Use”) or (ii) disclose SkyMeasure confidential information without our specific prior written consent; provided you may disclose our confidential information only to your employees and agents who: (a) have a “need to know” such information in connection with the Permitted Use; (b) have been apprised of the requirements of these Terms of Use; and (c) are themselves bound by restrictions at least as restrictive as those set forth herein. You agree to be responsible for your employees’ and agents’ compliance with these Terms of Use. As used herein, SkyMeasure “confidential information” means information that is marked or designated as “confidential” or “proprietary” or the like, or which would normally be considered confidential under the circumstances, including, without limitation, SkyMeasure’s or any of its affiliated entities’ business strategy, plans, current and future product and service offerings, customer lists, vendor lists, financial information, personnel information, and organizational information.

Termination

We may terminate your account with Symbility for SkyMeasure Reports and authorization to use our Sites, including the ability to continue ordering any Reports, at any time and for any reason. Termination will not affect your right to continue using Reports previously purchased and paid for in full in accordance with these Terms of Use, or your obligation to pay for Reports ordered at the time of termination which have not been already paid for. Following termination or at any time upon our written instruction, you agree to (i) return to Symbility all SkyMeasure documents and tangible materials (and any copies) containing any SkyMeasure confidential information, (ii) permanently erase all SkyMeasure confidential information from your computer systems and (iii) certify in writing to Symbility that you have complied with these requirements.

The provisions set forth in the following Sections of these Terms of Use, and any other right or obligation set forth herein that, by its nature, should survive termination of your account, will survive termination of your account indefinitely (or for such shorter period as may be allowed under applicable law) : “Warranty for Roof Measurement Reports” (which shall only survive per Report for the applicable 30-day warranty period described above); “Confidentiality”; “Limitation of SkyMeasure Liability”; “Publicity”; and “Governing Law and Jurisdiction/Venue for Disputes”.

Limitation on Symbility and Third Party Content Owner Liability

SYMBILITY AND/OR THE CONTENT OWNER(S) SHALL NOT BE LIABLE UNDER OR IN CONNECTION WITH TRANSACTIONS CONDUCTED WITH YOU UNDER THESE TERMS OF USE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION, LOSSES OF BUSINESS, REVENUE OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY CONTRARY TERM HEREIN, USER AGREES THAT SYMBILITY AND OR THE CONTENT OWNER(S) SHALL NOT BE HELD LIABLE FOR ANY AMOUNT IN EXCESS OF THE AGGREGATE SUM OF ALL PAYMENTS MADE BY USER TO SYMBILITY DURING THE 12 MONTH PERIOD ENDING ON THE DATE ANY SUCH LIABILITY ARISES.

Force Majeure

Symbility will not be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, unusually severe weather conditions and Internet disturbance) that is beyond its commercially reasonable control.

Publicity

You agree not to issue or release any announcement, statement, press release or other publicity or marketing materials relating to these Terms of Use or any transactions with SkyMeasure without the specific prior written consent of an authorized representative of Symbility.

Relationship of the Parties

Nothing in these Terms of Use or the course of transacting between you, Symbility and SkyMeasure shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between you and SkyMeasure, and neither of you or SkyMeasure shall have authority to contract for or bind the other in any manner whatsoever.

Severability

If any term or provision of these Terms of Use is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms of Use or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify these Terms of Use so as to effect the original intent herein as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby can be consummated as originally contemplated to the greatest extent possible.

Governing Law and Jurisdiction/Venue for Disputes

These Terms of Use and all transactions hereunder shall be governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Wisconsin. Any legal suit, action or proceeding arising out of these Terms of Use or any transactions hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Wisconsin in each case located in the city of Milwaukee, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

Any rights not expressly granted herein are reserved.

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