Sevan Multi-Site Solutions

TERMS OF USE

IMPORTANT, READ CAREFULLY. BY INSTALLING, DOWNLOADING, COPYING, ACCESING OR USING THE APPLICATION, SOFTWARE, OR SERVICE (COLLECTIVELY, THE "7MSS RESOURCES") YOU AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON, COMPANY, OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR OTHER LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE 7MSS RESOURCES.

These Terms of Use (the "Agreement") are entered into between Sevan Multi-Site Solutions, LLC, a Delaware limited liability company ("7MSS"), and You, and govern Your use of the 7MSS Resources (unless You and 7MSS have entered into a separate written agreement, in which case such written agreement will govern). "You" refers to the individual who is using or accessing the 7MSS Resources, or who has paid for the 7MSS Resources. If an individual has paid for the 7MSS Resources on behalf of another person, company, or other legal entity and is authorized to buy the 7MSS Resources on behalf of another person, company, or other legal entity, then “You” refers to that other person, company, or other legal entity.

1. Definitions. In this Agreement, these capitalized terms have the following meanings:
(a) "7MSS Delivery Systems" means any applications, websites, portals, data feeds, APIs, reports, algorithms, user interfaces, and other online and offline means through which the Services are provided.
(b) "7MSS Data" means all information made available, reported, downloaded or otherwise compiled using the Services, raw or compiled, regardless of form, including without limitation data, images, and reports generated by or for 7MSS or You.
(c) "7MSS Resources" means (i) the 7MSS Delivery Systems, (ii) the 7MSS Data and (iii) 7MSS’s proprietary Software (as defined in section 1(g) below) made available in connection with the foregoing.
(d) "Authorized User" means Your employees and/or consultants who have agreed to maintain the 7MSS Resources in confidence and use them only for Your benefit.
(e) "Client Data" means all electronic data or information submitted by You to 7MSS for the purpose of performing the Services.
(f) "Services" means all services made available by 7MSS, including but not limited to services accessed through applications, websites, and other 7MSS Delivery Systems.
(g) "Software" means all software programs distributed, published or otherwise made available by 7MSS or its affiliates, including but not limited to, Sevan Capture, Sevan Analyze, Sevan Cloud, Sevan Mapview, and Sevan Survey. Software includes the object and source code version of any programs or applications offered by 7MSS, as well as any updates and upgrades, accompanying manual(s) or other written files, electronic or on-line materials or documentation, and any and all copies of such Software and its materials.

2. Grant of License.
(a) License. Subject to the terms and conditions of this Agreement, 7MSS hereby grants to You a perpetual, non-exclusive, non-transferable, non-sublicensable, revocable, limited license to access and use, and to permit Your Authorized Users to access and use, the 7MSS Resources.
(b) Limitations. You may not copy, download, scrape, store, publish, transmit, transfer, distribute, broadcast, circulate, sub-license, bundle with other products, sell or otherwise use any portion of the 7MSS Resources, in any form or by any means, except as expressly permitted by this Agreement.
(c) Reservation of Rights. Except for the limited license and other rights granted here in, all right, title and interest in the 7MSS Resources, in all languages, formats and media throughout the world, whether now known or later devised, including all copyright and other intellectual property rights, are and will continue to be the exclusive property of 7MSS and its licensors, with all rights reserved.
(d) Notification. You shall promptly notify 7MSS of any third-party action, claim, or demand asserted against You related to the Services or the 7MSS Resources.
(e) Modification of Services. 7MSS reserves the right to modify the 7MSS Resources provided that such changes do not materially reduce features and functionality.
(f) No Reverse Engineering. You shall not, and shall not knowingly permit any third party to, reverse engineer, decompile, disassemble, probe, scan, or attempt to discover any source code or underlying ideas or algorithms utilized in the 7MSS Resources.
(g) No Competition. You shall not modify, adapt, tamper with, translate or create derivative works of the 7MSS Resources or the documentation; combine or merge any part of the 7MSS Resources with or into any other software or documentation; or refer to or otherwise use the 7MSS Resources as part of any effort to develop software (including, without limitation, any routine, script, code or program) having functional attributes, visual expressions, or other features similar to those of the 7MSS Resources.
(h) Benchmarking. You shall not, except with 7MSS written permission, publish any performance or benchmark test or analysis relating to the 7MSS Resources.
(i) Client Data. Except for 7MSS employees and subcontractors, all Your Data is owned exclusively by You. Your Data shall be considered Confidential Information of You subject to the terms of this Agreement. 7MSS shall use industry standard methods to maintain the security and integrity of the Your Data. You hereby grant 7MSS a nonexclusive, royalty-free limited license to access and use Your Data: (i) for the purpose of performing the Services (for example, to create reports to be provided to You through the Services); (ii) to monitor and improve the quality of the Services, to provide training regarding, and to promote, the Services;, provided that any such use shall be on an anonymized basis and with appropriate safeguards for Your Confidential Information (defined below); and (iii) as described in 7MSS's Privacy Policy. All Data entered and submitted by employees and/or subcontractors of 7MSS shall be "work for hire" owned by 7MSS and/or the 7MSS client under which the Services are being performed and as defined in the applicable Statement of Work or other written agreement.

3. Access to Services.
(a) Your Access. You will create access credentials for each Authorized User (which may include, for example, username, password and security token) permitting access to the 7MSS Delivery Systems . Each Authorized User must use his or her own access credentials only and must keep them confidential. You are responsible for the Authorized Users’ compliance with this Agreement.
(b) Third Party Access. Access to 7MSS Resources by any individual other than You, Your employee(s), or Your consultant(s) is prohibited.

4. Term and Termination.
(a) Term. This Agreement shall become effective upon accessing, downloading, installing, copying, or using the 7MSS Resources and shall remain in effect until terminated (the "Term").
(b) Termination. You may terminate this Agreement by ceasing to use, deleting, and disposing of the 7MSS Resources and documentation. 7MSS may terminate this Agreement and immediately revoke Your access to the 7MSS Resources if you attempt to circumvent any technical protection measures used in connection with the 7MSS Resources or You otherwise use the 7MSS Resources in violation of the terms of this Agreement.
5. Representations, Warranties and Covenants. Each party hereby represents, warrants and covenants to the other that it has full authority to enter into and perform its obligations under this Agreement and it is not a party to or bound by any agreements, obligations or restrictions inconsistent herewith.
6. Confidentiality
(a) Requirement of Confidentiality. Neither party will at any time (other than as expressly permitted herein), directly or indirectly, use, communicate, or disclose any Confidential Information of the other in any manner whatsoever (except as may be required by subpoena or other court or governmental order and subject to subsection (b) below). As used herein, "Confidential Information" means any information not generally known or available to the trade or industry without restriction, relating to 7MSS or You including but not limited to: trade secrets; information concerning clients and prospects; pricing; proprietary methods of data collection, entry, indexing, encoding, display and reporting; documentation and training materials; and/or any other proprietary information that is disclosed to the receiving party or its affiliates, in any format, whether marked confidential or not. With respect to 7MSS, the 7MSS Resources and all documents, presentations, reports, information, records and media, whether now known or later devised, containing any 7MSS Data, shall constitute Confidential Information, including without limitation Confidential Information contained in materials prepared by You.
(b) Exceptions. Notwithstanding the foregoing, Confidential Information shall not include information that (i) is or becomes generally available to the public through no breach of any obligation by the receiving party; (ii) was available to the receiving party on a non-confidential basis prior to its disclosure to the receiving party by the disclosing party or its representatives; (iii) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or its representatives provided such source is not known by the receiving party to be under any obligation of confidentiality with respect to such information; or (iv) is independently developed by the receiving party without reference to the Confidential Information of the disclosing party.
(c) Challenge Disclosure. In the event that You or 7MSS receive a subpoena or other court or governmental order to disclose any Confidential Information of the other, the receiving party shall provide prompt written notice thereof to the non-receiving party to allow it to seek an appropriate protective order. Failure to provide notice shall be a material breach of this Agreement.
(d) Additional Obligations. Each party shall inform its employees, including Your Authorized Users, of the confidential nature of the other party’s Confidential Information and shall require such employees to take all reasonable steps to preserve the confidentiality of such information, including without limitation taking all actions that the party would take to protect its own confidential information. Upon the termination of this Agreement, You and 7MSS shall each destroy or delete all Confidential Information of the other, and all materials containing same, then in its possession. This obligation to destroy or delete does not extend to automatically-generated computer backup or archival copies generated in the ordinary course of the receiving party’s business, provided that it makes no further use of such copies.
7. Acceptable Use. You may not use the 7MSS Resources in any way that: (1) is fraudulent or violates applicable law, (2) violates the rights of others, (3) infringes on or otherwise misappropriates the intellectual property of others, (4) is harmful to other users, 7MSS, or 7MSS’s reputation, (5) interferes with the system operability or the ability of others to use the 7MSS Resources (6) introduces or promotes obscene or offensive material, or (7) introduces harmful content or technology which may damage or interfere with the 7MSS Resources. You are prohibited from using the 7MSS Resources to violate the security of any device, network, application, or system including monitoring traffic without permission or attempting to gain unauthorized access. You are further prohibited from making or attempting to make any connections with other users, hosts or networks without permission
8. Warranties. 7MSS hereby represents and warrants that the Services will perform substantially in accordance with the specifications set forth in the documentation and that the Services do not infringe on the intellectual property rights of any third party. EXCEPT AS PROVIDED IN THE FOREGOING SENTENCE, THE SERVICES AND THE 7MSS RESOURCES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS, UNINTERRPUTED USE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR WARRANTIES ARISING FROM COURSE OF PERFORMANCE/DEALING, OR USAGE OF TRADE. 7MSS DOES NOT WARRANT AGAINST INTERFERENCE OF YOUR ENJOYMENT OF THE 7MSS RESOURCES, THAT THE 7MSS RESOURCES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE 7MSS RESOURCES WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK OF SATISFACTORY PERFOMRANCE RESIDES WITH YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION ON IMPLIED WARRANTIES OR THE LIMITATIONS ON IMPLIED WARRANTIES ON THE APPILCABLE STATUOTRY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS APPLY ONLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

9. Information Collection And Privacy Policy. 7MSS respects your privacy and recognizes the importance of protecting any information collected about you. 7MSS’s Privacy Policy as amended from time to time is available in our mobile application, on our website at https://prod.sevansolutions.com/Content/privacypolicy.html, and is incorporated herein. By downloading, installing, copying, or accessing the 7MSS Resources you explicitly agree to 7MSS’s Privacy Policy.

10. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT DIRECTLY ATTRIBUTABLE TO 7MSS’S INTENTIONAL MISCONDUCT, ITS AGGREGATE MAXIMUM LIABILITY TO CLIENT UNDER THIS AGREEMENT AND ANY SOW SHALL BE LIMITED TO THE GREATER OF $100.00 OR THE TOTAL FEES PAID BY YOU THAT APPLY TO SERVICES PROVIDED DURING THE PRECEDING SIX (6) MONTHS PURSUANT A SOW UNDER WHICH SUCH LIABILITY AROSE. UNDER NO CIRCUMSTANCES SHALL 7MSS BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, SUCH AS DAMAGES FOR LOST PROFITS, BUSINESS FAILURE OR LOSS, EVEN IF ADVISED OF THE POSSIBILITY OF SAME. THE FOREGOING LIMITATIONS SHALL REMAIN EFFECTIVE EVEN IF CLIENT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE FOREGOING LIMITATIONS, 7MSS'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.

11. Remedies. You acknowledge that any breach of this Agreement would cause irreparable harm to 7MSS. Accordingly, in addition to all other remedies at law or equity, 7MSS shall be entitled to injunctive relief in any court of competent jurisdiction against any such actual or contemplated breach, without the necessity of posting security.

12. Miscellaneous.
(a) Notices. Any notice provided pursuant to this Agreement shall be in writing and shall be mailed by certified mail, return receipt requested or delivered by a recognized courier service with receipt acknowledged. Notices shall be addressed to:

Sevan Multi-Site Solutions, LLC
3025 Highland Parkway, Suite 850
Downers Grove, Illinois 60515
Attention: Legal Department
Any notice shall be deemed given upon the earlier of three (3) days after mailing or receipt.
(b) Assignability. Sevan may assign this Agreement and may delegate any of its obligations under the Agreement. You may not assign the Agreement or any part thereof, nor transfer or sublicense Your rights under the Agreement to any third party.
(c) Dispute Resolution. With respect to any litigation arising from or relating to this Agreement, the parties irrevocably (i) submit to the exclusive jurisdiction of the state and federal courts in Chicago, Illinois; (ii) waive any defense of inconvenient forum; and (iii) WAIVE THE RIGHT TO TRIAL BY JURY. The Agreement will not be construed in favor of or against a party by reason of the extent to which such party participated in the preparation of this Agreement.
(d) Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without reference to its conflict of laws principles.
(e) Force Majeure. Nonperformance by either party shall be excused to the extent that performance is rendered impossible by strike, acts of God, natural disasters, Internet outages, computer viruses, governmental acts or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party.
(f) Severability. If a reviewing court finds any provision of this Agreement to be invalid or unenforceable, the other provisions of this Agreement shall not be affected.
(g) No Third Party Beneficiaries. This Agreement is for the benefit of the parties only and is not for the benefit of, or enforceable by, any third party.
(h) Survival. Sections 2, and 4-12, and any other provisions that by their nature survive, shall survive the termination of the Term.
(i) Entire Agreement; Modifications; Waiver. This Agreement, together with the 7MSS Privacy Policy, sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes any previous written or oral understandings. 7MSS may modify the terms of this Agreement from time to time and at our sole discretion. If You do not agree to the terms, You should discontinue Your use of the 7MSS Resources. Your continued use of the 7MSS Resources signifies Your acceptance of the changes to this Agreement. The failure of either party to enforce any of the provisions of this Agreement in a particular instance shall not constitute a waiver of such provision, nor in any way affect the validity there of, or the right of such party to enforce it in future.
(j) Binding Effect. The rights and obligations created by this Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
(k) Any costs and expenses (including reasonable attorneys’ fees and costs) incurred by the prevailing party in enforcing its rights under this Agreement shall be borne by the non-prevailing party.
(l) Indemnity. You agree to indemnify, defend, and hold harmless 7MSS, its affiliates, contractors, contractors, officers, directors, employees and agents from all damages, losses, and expenses arising directly or indirectly from: (i) Your acts and omissions in using the 7MSS Resources, or (ii) your breach of this Agreement.