End User Licence Agreement

1. DEFINITIONS

1.1 “Authorised User(s)” means employees of End User and those End User contractors who are required to access the Product solely for the purpose of assisting End User’s to use Product for its internal business purposes only. End User will be fully liable and responsible for the acts and omissions of its Authorised Users.

1.2 “Derived Data” means image files, un-editable documents, plots, incident analysis, density plots, risk analysis and other statistics, maps, and related outputs produced by End User and derived from the Resultant Data, and not comprising substantially the same information as provided by the Resultant Data; Derived Data do not include any electronic format from which the information contained in the Resultant Data can be extracted.

1.3 “Documentation” means any user guides or manuals provided by SkyWatch to End User for use with the Product, if any.

1.4 “End User” means the end user of the Products and Services of SkyWatch Space Applications Inc. (“SkyWatch”)

1.5 “Original Data Provider” means the owner and originating source for each Resultant Data.

1.6 “Product(s)” means all information (including, without limitation, data, data feeds and databases) provided by SkyWatch to End User in accordance with the Licenced Product description specified above. Products also include any web tools or software that can be used by End User when accessing Products via the Internet and SkyWatch website.

1.7 “Resultant Data” means data that has been made accessible by the Product.

1.8 “User Licence” applicable to the Products, means End User has access to the Product limited to the number of Authorised Users specified.

2. OWNERSHIP

This Licence is an End User Licence and NOT an agreement of Sale. All rights and uses of Resultant Data not expressly granted by this Licence are reserved by SkyWatch.

3. LICENCE/AUTHORIZED USE/INTELLECTUAL PROPERTY RIGHTS

3.1 SkyWatch grants to End User under this Licence the type of licence (Agency, Government-Wide, or User Licence), for the Product, as set forth herein and for the term set forth Certain Products are not eligible for Government-Wide Licences or Agency Licences. Any Licence granted hereunder is a limited, restricted, non-exclusive, non-transferable, revocable licence allowing End User, for the term specified herein, to use the Product for End User’s internal business use only, and to create Derived Data provided that SkyWatch is identified as the source of the relevant data and the Derived Data contain the following copyright notice conspicuously displayed: “Includes material © [year] SkyWatch Space Applications Inc. All Rights Reserved.” Any derived product solely based on the Product or a portion of information contained therein may be used for End User’s internal use only.

3.2 End User may not copy, distribute, republish, transfer, sell, licence, lease, give, permanently retain, decompile, reverse engineer, disseminate, publish, assign (whether directly or indirectly, by operation of law or otherwise), transmit, scan, publish on a network, or otherwise reproduce, disclose or make available to others or create derivative works from (except the creation of Derived Data as permitted herein) the Product or any portion thereof, except as specifically authorised herein. Where the Product will allow for the download of the Resultant Data, an Authorised User may only download such an amount of data which is within the licence grant. In no event shall an Authorised User download all or substantially all Resultant Data. If SkyWatch, at its sole discretion, believes that the amount of Resultant Data an Authorised User downloads is not consistent with licence grant, notwithstanding its other rights under this Licence, SkyWatch is entitled, at its sole option, to charge additional fees for the excessive usage, move the End User to a more appropriate licence and suspend and in the most extreme cases terminate access to the Product. Wherever reasonably possible SkyWatch will endeavour to give End User written notice before taking any such action and allow a reasonable period to enable End User to modify its usage.

3.3 The Product is protected by Canadian copyright laws and international treaty provisions. SkyWatch and Original Data Providers as the case may be, shall own and retain all right, title and interest in and to the Product, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. End User’s possession or use of the Product does not transfer to End User any title to the intellectual property in the Product, and End User will not acquire any rights to the Product except as expressly set forth in this Licence. End User shall not remove any copyright, trademark or other proprietary notices of SkyWatch or any third party contained on or in Products or other materials delivered to End User, and End User shall reproduce all such notices on all copies permitted to be made by End User under this Licence. End User will take any and all actions that may reasonably be required by SkyWatch to protect the proprietary rights as owned by SkyWatch or third party providers.

3.4 SkyWatch may use all suggestions, feedback, improvements, report formats or the like that End User provides to SkyWatch directly or through or otherwise makes with respect to Products without any obligation.

3.5 In the event the Products licensed hereunder are provided along with any web tool or software in order to access the Products (“Software”), End User undertakes and agrees to use the Software only for purpose of accessing the Products and subject to the restrictions as set forth herein. End User may not transfer, sub-licence, re-licence or commercially exploit the Software or use such Software for third party transactions, commercial time-sharing, rental or service bureau use or publicly perform or publicly display the Software. End User must take all reasonable steps to ensure that no unauthorised persons shall have access to the Software. End User must not reverse engineer, disassemble, decompile, create derivative works or otherwise alter or modify the Software. Unless otherwise agreed, End User shall not be entitled to any technical support in relation to the Software.

4. CONFIDENTIALITY

4.1 Where either Party (“Discloser”) provides the other (“Recipient”) with Confidential Information, directly, or through Authorised Reseller, it shall be held in strict confidence and shall not be disclosed or used for any purpose other than as specifically authorised by either Party or as expressly provided in this Licence without the prior written consent of the other. The Parties shall exercise the same degree of care they use to protect their own confidential or proprietary information but no less than a reasonable degree of care.

4.2 For the purpose of this section, “Confidential Information” means: (a) information related to Products, Documentations, SkyWatch methodologies; (b) any Discloser business or technical information, including, without limitation, any information relating to Discloser’s products, services, prices, marketing plans, business process management, analytics technologies, business opportunities, End Users, or personnel; (c) any other information of Discloser that is specifically designated as confidential or proprietary; or (d) any information that by its nature, Recipient knows or should know is confidential or proprietary. Confidential Information shall not include information: (i) which is or becomes public knowledge other than by a breach of this clause, (ii) that is required to be disclosed by any applicable law or by any recognised stock exchange, (iii) obtained from a third party without breach of an obligation of confidentiality and (iv) information which can be shown to have been independently developed by the Parties by means other than through its access to the confidential information or material.

5. WARRANTIES AND DISCLAIMERS

5.1 The Product is provided "AS IS." It is acknowledged and understood that neither SkyWatch nor any SkyWatch Affiliate has made, nor shall be deemed to have made, any representations or warranties whatsoever with respect to the use, content, completeness, availability or accuracy of the Product supplied under this Licence. To the maximum extent permitted by applicable law, SkyWatch disclaims all warranties, either express or implied, including but not limited to: (a) implied warranties and conditions of merchantability, fitness for a particular purpose, and non-infringement with respect to the Product and the Documentation; and (b) warranties as to the availability or performance of the Internet and related networks used for the provision and receipt of the Product. End User assumes responsibility for selecting the Product to achieve End User’s intended results, and for the installation of, use of, and results obtained from the Product. Without limiting the foregoing provisions, SkyWatch makes no warranty that the Product will be error-free or free from interruptions or other failures or that the Product will meet End User’s requirements. SkyWatch does not assume responsibility for the accuracy of the Resultant Data; and (c) warranties against the Resultant Data or any Derived Data as a result.

6. INDEMNIFICATION

6.1 SkyWatch will indemnify, defend and hold harmless End User from and against any third party claims alleging that Products furnished under and used in accordance with the terms and conditions of this Licence infringe a Canada, United States, or United Kingdom patent issued as of the Effective Date (“Infringement Claim”). SkyWatch will not so indemnify, defend and hold harmless End User to the extent any Infringement Claim would not have arisen but for: (i) any modification of the Product not specifically authorised in writing by SkyWatch; (ii) the incorporation of any feature or information provided by or requested by End User into the Product; (iii) the combination of Product with any third party software, equipment or information not specified in the Documentation; (iv) the use of a version of the Product other than the then-current version, if the infringement would have been avoided by use of the then-current version and SkyWatch informed End User of same; (v) End User’s misuse of the Product or failure to protect SkyWatch Confidential Information as required herein. In the event Products are held or are believed by SkyWatch to infringe, SkyWatch may choose, at its sole option and expense, (a) to modify the Products so that they are non-infringing; (b) to replace the Products with non-infringing Products that are functionally equivalent; (c) to obtain a licence for End User to continue to use the Products as provided hereunder; or if none of (a), (b), or (c) is commercially reasonable, then (d) to terminate this Licence for the infringing Products and refund Fees paid, prorated from the date of the Infringement Claim. This section 6.1 states the entire liability of SkyWatch and End User’s sole and exclusive remedy for any infringement of third party proprietary rights of any kind.

6.2 End User will indemnify and hold SkyWatch harmless from and against any loss or damage suffered by SkyWatch as a result of End User’s breach of the licence grants and restrictions herein.

6.3 Each Party will indemnify, defend and hold the other Party harmless from any claim, demands, liabilities, suits or expenses of any kind for personal injury or damage to tangible property to the extent arising from its negligence or wilful misconduct on the other Party’s premises.

6.4 Indemnification Procedure. The indemnification obligations of each Party under this Section 6 are contingent upon the indemnified Party providing to the Party who has the indemnification obligation: (a) prompt written notice of the alleged claim; (b) sole control of the defence or settlement of the alleged claim; and (c) reasonable cooperation and assistance, at the request and expense of Party to indemnify, in the defence or settlement of the alleged claim. If the indemnified Party chooses to be represented by counsel, it shall be at the indemnified Party’s sole cost and expense.

7. TERMINATION

This Licence and your right to use the Products will automatically terminate if you fail to comply with any provisions of this Licence. With thirty (30) days of notification of termination you agree, if applicable, to return the Products to SkyWatch and certify in writing that all know copies of the Products, including backup and archival copies have been destroyed. All provisions relating to proprietary rights and transfer prohibitions shall survive the termination of this licence.

8. U.S. GOVERNMENT USE (AS APPLICABLE)

This section applies to any Products, End User licences hereunder to use on behalf of a unit or agency of the U.S. Government, its agencies or instrumentalities (U.S. Government”) or where End User obtains such licences directly or indirectly on behalf of a unit or agency of the U.S. Government. The Products provided hereunder: (a) were developed at private expense and are in all respects the proprietary information of SkyWatch; (b) are a trade secret of SkyWatch for all purposes of the Freedom of Information Act; (c) are commercial items and thus, pursuant to Section 12.212 of the Federal Acquisition Regulations (FAR) and DFAR Supplement Section 227.7202, Government’s use, duplication or disclosure of the Products is subject to the restrictions set forth by SkyWatch. Any Product used by, for, or on behalf of the U.S. Government is provided with LIMITED RIGHTS as set forth herein. Any software or tools embedded in Product(s) used by or on behalf of the U.S. Government is provided with RESTRICTED RIGHTS set forth in herein. Use, duplication, or disclosure of data or software by the U.S. Government is subject to restrictions as set forth in the Rights in Technical Data and Computer Software clause at FARS 12.211 and 12.212(a) and/or Commercial Computer Software at DFARS 227.7202-1(a) or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is SkyWatch.

9. EXPORT CONTROL

The Products provided by SkyWatch under this Licence may contain technical data (e.g., encryption technology) the export, re-export, transfer or sale of which is controlled by export control laws of Canada, the United States, and the applicable jurisdiction of End User. SkyWatch will export the Products as per this Licence consistent with applicable law and End User agrees that diversion of the Products contrary to applicable law is prohibited. End User acknowledges that other nations’ laws may apply to the Products. In particular, several jurisdictions have controls that may apply to Products containing encryption technology. End User must comply with all applicable laws that may impose registration, reporting, licensing, or other requirements on the Products.

10. AUDIT

Upon reasonable notice by SkyWatch to End User and not more than once annually (unless prior violations have been discovered), SkyWatch may audit relevant records at End User’s location during normal business hours to enable SkyWatch to ensure End User’s compliance with this Licence.

11. SECURITY MEASURES

11.1 SkyWatch may impose whatever security measures it reasonably deems appropriate to ensure compliance with this Licence, including covert and overt copy-detection and licence awareness technology and encoding of requestor/user information in printed and electronic formats. Any attempt to circumvent such access restrictions or SkyWatch security measures will be considered a material breach of this Licence.

11.2 For certain Products, SkyWatch will issue to End User a password to access the Product, which End User acknowledges is only for End User’s and its Authorised Users use and may not be shared with anyone other than Authorised Users. End User is solely responsible for all use, authorised or unauthorised, of Product (including use by Authorised Users). End User must notify SkyWatch immediately of any unauthorised use of Product(s) and/or passwords.

12. RESULTANT DATA LICENCE

In accordance with the terms and conditions set forth in this Licence, End User must also accept the licence agreements dictated by each Original Data Provider for each Resultant Data set:

(a) AQUA - AIRS: (i) All data are released to the public, regardless of the state of their validation. (ii) More details can be found in the ‘AIRS/AMSU/HSB Version 6 Data Disclaimer’ document: https://disc.gsfc.nasa.gov/AIRS/documentation/v6_docs/v6releasedocs-1/V6_Data_Disclaimer.pdf.

(b) AURA - TES: (i) The data obtained from the Atmospheric Science Data Center (ASDC) are free of charge for use in research, publications, and commercial applications. (ii) More details can be found in the ‘Citing ASDC Data’ page: https://eosweb.larc.nasa.gov/citing-asdc-data.

(c) GOSAT - ACOS: (i) The GOSAT data will be distributed on the “non-discriminatory” basis as provided for in the Principles Relating to Remote Sensing of the Earth from Space issued by the United Nations. (ii) More details can be found GOSAT Data Policy: https://data2.gosat.nies.go.jp/doc/GOSAT_Data_PolicyB_en.pdf.

(d) Landsat: (i) There are no restrictions on the use of data received from the U.S. Geological Survey's Earth Resources Observation and Science (EROS) Center or NASA's Land Processes Distributed Active Archive Center (LP DAAC), unless expressly identified prior to or at the time of receipt. (ii) More information on licensing and Landsat data citation is available from USGS: https://data2.gosat.nies.go.jp/doc/GOSAT_Data_PolicyB_en.pdf.

(e) OCO-2: (i) Distribution of data from the Goddard Earth Sciences Data and Information Services Center (GES DISC) is funded by NASA's Science Mission Directorate (SMD). (ii) More details can be found in the NASA Earth Science Data and Information Policy: http://science.nasa.gov/earth-science/earth-science-data/data-information-policy/.

(f) Terra - MOPITT: (i) The data obtained from the Atmospheric Science Data Center (ASDC) are free of charge for use in research, publications, and commercial applications. (ii) More details can be found in the ‘Citing ASDC Data’ page: https://eosweb.larc.nasa.gov/citing-asdc-data.

(g) Sentinel-2: (i) Access to Sentinel data is free, full and open for the broad Regional, National, European and International user community. (ii) View Terms and Conditions: https://scihub.copernicus.eu/twiki/do/view/SciHubWebPortal/TermsConditions.

13. MISCELLANEOUS

13.1 The Parties may not modify, alter or amend this Licence except by written instrument duly executed by authorised representatives of both Parties.

13.2 No failure or delay by either Party to exercise any right hereunder at any time operates as a waiver of such right at any future time.

13.3 End User may assign this Licence to any third party (whether directly or indirectly, by operation of law or otherwise) only with the prior written consent of SkyWatch, which consent will not be unreasonably conditioned, withheld or delayed. Any requested assignment (i) to a direct competitor of SkyWatch; (ii) that would interfere with performance of obligations under this Licence; or (iii) that changes the scope of the usage and the intent contemplated by the Parties under this Licence, is deemed unreasonable. Any assignment or transfer in violation of the above is void.

13.4 This Licence is binding on the Parties, their successors and assigns. SkyWatch at its sole discretion reserves the right to subcontract any or all of its obligations under this Licence to subcontractors of its choosing. 13.5 This Licence will be construed under the laws of the Province of Ontario and the laws of Canada applicable therein, and each Party hereby submits to the exclusive jurisdiction of Ontario Courts. The Parties hereby disclaim the application of the 1980 U.N. Convention on Contracts for the International Sale of Goods. The English language version of this Licence will be controlling in the interpretation or application of the terms of this Licence.

13.5 If any provision of this Licence is found invalid or unenforceable by an arbitrator or a court of competent jurisdiction, the remaining portions will remain in full force and effect.

13.6 All notices required under this Licence must be in writing and delivered by commercially established courier service, facsimile with written confirmation of success, personal courier or via certified mail, return receipt requested, to the addresses specified on the first page of this Licence or at such other address as the Parties will designate in writing from time to time. Notices are deemed delivered when received by any of the above means.

13.7 SkyWatch and End User agree that SkyWatch may publicise the fact that End User is a user of the Products in a mutually agreed upon initial press release. Thereafter, SkyWatch will use End User name only in a list of other SkyWatch End Users. Any additional publicity concerning End User will require End User’s prior written consent. Any additional publicity concerning SkyWatch by End User will require SkyWatch’s prior written consent.

13.8 The terms and conditions of this Licence will survive the expiration or other termination to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the Party in whose favour they operate.

13.9 No term of this Licence is intended to confer a benefit on or to be enforceable by, any person who is not a Party to this Licence.

13.10 Each person executing this Licence on behalf of any entity hereby represents and warrants that he or she is duly authorised and has full authority to execute and deliver this Licence.


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