Last Updated: 10/22/2019

This Terms of Service (the “TOS”) governs the use of the MapItRight © software by a subscribing organization (“Customer”). If Customer registers for a free trial of MapItRight ©, then the applicable provisions of this TOS will also govern that free trial.

Definitions.
The following capitalized terms have the definitions specified as used throughout this TOS, regardless of tense or plurality of such term as used in context in this TOS:

“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Hosted Services.

“Authorized User” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Hosted Services.

“Claimed Content” has the meaning set forth in Section 14 of this TOS.

“Content” means any material that is or may be transmitted electronically, including without limitation text, images, audio or video files or data.

“Customer Data” means, other than Resultant Data, information, data and other Content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services. Customer Data includes, without limitation, information, data, photographs, video files, audio files, feedback, and product and service ideas and designs.

“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.

“Documentation” means any manuals, instructions or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this TOS. Harmful Code does not include any Provider Disabling Device.

“Intellectual Property Rights” means any and all intellectual property rights granted, applied for, acquired, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world, regardless of whether the underlying property is registered or unregistered under said laws.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer.

“Person” means an individual, company, corporation, governmental authority, or other entity, incorporated or otherwise.

“Process” means any action or the performance of any operation or set of operations that the Services are capable of taking or performing on any data, information or other Content.

“Provider” means Custom Software INC.

“Provider Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.

“Provider Materials” means the Service Software, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other Content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other Content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.

“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.

“Resultant Data” means information, data and other Content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or Content. “Resultant Data” includes, without limitation, Computer Aided Design (“CAD”) data, Geographic Information System (“GIS”) data and data regarding network mapping.

“Services” has the meaning set forth in Section 2.1 of this TOS.

“Service Software” means the VETRO FiberMap® software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, to which Provider provides access for use as part of the Services.

“Specifications” has the meaning set forth in Section 2.2 of this TOS.

“Statement of Work” has the meaning set forth in Section 2.1 of this TOS.

“Subcontractor” has the meaning set forth in Section 2.6 of this TOS.

“Third Party Materials” means materials and information, in any form or medium, including any software, documents, data, Content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider.

1. Services

1.1. Services

Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms of this TOS, during the Term, Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users the services identified in a separate Schedule A (“Statement of Work”) and this TOS. Any and all services identified on Schedule A will be referred to collectively as the “Services.” “Authorized User” means each of the Persons authorized to use the Services pursuant to Schedule A. Provider will provide the Services in substantial conformity with the Specifications at all times, except:

1.1.1. downtime due to maintenance, as scheduled by Provider in its sole discretion;

1.1.2. downtime, corruption or degradation due to a Force Majeure Event (as defined in Section 16) or Harmful Code;

1.1.3. any other circumstances beyond Provider’s reasonable control, including Customer’s or any Authorized User’s use of Third Party Materials or use of the Services other than in compliance with the express terms of this TOS and the Specifications; and

1.1.4. any suspension or termination of Customer’s or any Authorized Users’ use of the Services as permitted by this TOS.

11.2. Specifications The Services will be accessible to Authorized Users using any web browser no more than two releases older than the current release.

1.3. Service and System Control Except as otherwise expressly provided in this TOS, as between the parties:

1.3.1. Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the: (i) Provider Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iii) performance of Service maintenance, upgrades, corrections and repairs; and

1.3.2. Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.

1.4. Service Management Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this TOS. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. The parties’ initial service managers are identified in Schedule A.Each party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either party’s service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly appoint a new service manager, with such appointment effective only upon written notice to the other party.

1.5. Changes Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of Provider’s Services to its customers, the competitive strength of or market for Provider’s Services or the Services’ cost efficiency or performance; or (b) to comply with applicable Law. Customer may from time to time provide feedback to Provider regarding the Services or request changes to them or new features, through a feedback mechanism that Provider anticipates introducing in the future. Provider will have no obligation to respond to such feedback or requests or to implement them.

1.6. Subcontractors Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).

1.7. Suspension or Termination of Services Provider may suspend, terminate or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if:
(a) Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Provider to do so; or
(b) Provider believes, in its sole discretion, that:
(i) Customer or any Authorized User has failed to comply with any term of this TOS, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this TOS or in any manner that does not comply with any instruction or requirement of the Specifications;
(ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities, whether or not related to the Services; or
(iii) this TOS expires or is terminated.a

2. Authorization and Customer Restriction
2.1. Authorization
Subject to Customer’s compliance with all other terms and conditions of this TOS, Provider hereby grants Customer and all Authorized Users non-exclusive, non-transferable, worldwide licenses to access and use, during the Term, the Services and such Provider Materials as Provider may make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications.

2.2. Reservation of Rights
Notwithstanding any term in this TOS, but subject to the rights granted in Section 3.1 above, nothing in this TOS grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials or Third Party Materials, whether by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain the property of Provider and the respective rights holders in the Third Party Materials, respectively.

2.3. Authorization Limitations and Restrictions
Customer shall not: 2.3.1. copy, modify, create derivative works of, reverse engineer, decompile or disassemble or otherwise access the source code of the Services or Provider Materials;
2.3.2. bypass or breach any security device or protection used by the Services or Provider Materials;
2.3.3. damage, disrupt, impair, impede or harm in any manner the Services or Provider Systems;
2.3.4. remove, alter or obscure any trademarks, Specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property, or proprietary rights notices, a part of, attached to or related to any Services or Provider Materials;
2.3.5. use the Services or Provider Materials to infringe any Intellectual Property Right or other right of any Person, or to violate any Law;
2.3.6. otherwise use the Services or Provider Materials beyond the scope of the authorization granted under Section 3.1.

3. Customer Obligations
3.1. Customer Cooperation
Customer shall at all times during the Term cooperate with Provider to enable Provider to exercise its rights and perform its obligations in connection with this TOS. Such cooperation includes, without limitation, cooperation with any audit that may be conducted by a third-party supplier of data or other materials incorporated into the Services pursuant to any other legal obligation (by contract or otherwise) of Provider.

3.2. Effect of Customer Failure or Delay
Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this TOS.

4. Data Security
Provider will collect, store and serve data and other content provided by Customer pursuant to Provider’s Privacy Policy.

5. Security
5.1. Provider Systems and Security Obligations
Provider will employ security measures in accordance with Provider’s data privacy policy as amended from time to time located at https://www.vetrofibermap.com/privacy-policy/

5.2. Customer Control and Responsibility
Customer has and will retain sole responsibility for:
(a) all Customer Data;
(b) all information provided by or on behalf of Customer or any Authorized User in connection with the Services;
(c) all Customer Systems;
(d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and
(e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent.

5.3. Access and Security
Customer shall employ safeguards necessary to:
(a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and
(b) control the Content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.

6. Fees; Payment Terms
6.1. Fees
Customer shall pay Provider the fees set forth in Schedule A in accordance with this Section 7.

6.2. Fee Increases
Provider may in its sole discretion opt to increase Fees from time to time by providing written notice to Customer at least 60 calendar days before such increased Fee will take effect, and such notice will cause Schedule A to be deemed amended accordingly.

6.3. Taxes
All Fees and other amounts payable by Customer under this TOS are exclusive of taxes and similar assessments. Customer is responsible for all taxes, duties and charges of any kind imposed by any federal, state or local governmental on any amounts payable by Customer.

6.4. Payment
Customer shall pay all Fees within thirty (30) calendar days after receiving any invoice therefor. Customer shall make all payments hereunder in US dollars by the payment method(s) specified in Schedule A. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Provider may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly.

6.5. If Provider takes any action to secure payment of any Fees due to Provider under this TOS and prevails, Customer shall reimburse Provider for all Losses incurred therefrom.
7. Intellectual Property Rights
7.1. Services and Provider Materials
All right, title and interest in and to the Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain the property of Provider and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Provider Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3. All other rights in and to the Services and Provider Materials (including Third-Party Materials) are expressly reserved by Provider and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

7.2. Customer Data
As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto.

7.3. Consent and License to Use Customer Data
Customer hereby irrevocably grants all rights and permissions in or relating to Customer Data:
(a) to Provider, its Subcontractors and employees as are necessary or useful to perform the Services; and
(b) to Provider as are necessary or useful to enforce this TOS and exercise its rights and perform its hereunder.

8. Term and Termination
8.1. Initial Term
The initial term of this TOS commences as of the Effective Date and, unless terminated earlier pursuant any of the TOS’s express provisions, will continue in effect until six months from such date (the “Initial Term”).

8.2. Renewal
This TOS will automatically renew for additional successive 30-day terms (each, a “Renewal Term”) unless earlier terminated either:
8.2.1. by Provider, (a) upon at least ninety calendar days’ written notice of termination to Customer, without cause; or (b) upon written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than thirty days after Provider’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions).
8.2.2. by Customer upon at least thirty calendar days’ written notice of termination to Provider, with or without cause.
8.2.3. pursuant to any other provision of this TOS.
Collectively, the Initial Term and any Renewal Terms are the “Term.”

8.3. Termination
In addition to any other express termination right set forth elsewhere in this TOS, either party may terminate this TOS, effective on written notice to the other party, if the other party:
8.3.1. materially breaches this TOS, and such breach remains uncured thirty calendar days after such notice;
8.3.2. becomes insolvent or fails to pay its debts as they become due; or
8.3.3. files or has filed against it, a petition for voluntary or involuntary bankruptcy.


9. Effect of Expiration or Termination
Upon any expiration or termination of this TOS, except as expressly provided otherwise in this TOS:

9.1. All rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
9.2. Provider may immediately disable all Customer and Authorized User access to the Hosted Services and Provider Materials without further notice
9.3. Provider shall promptly return to Customer (or at Customer’s written request, destroy) all documents and tangible materials containing, reflecting, incorporating or based on Customer
Data, provided that, for clarity, Provider’s obligations under this Section 10.3 do not apply to any Resultant Data; and
9.4. notwithstanding anything to the contrary in this TOS, Provider may retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course.
10. Representations and Warranties
10.1. Mutual Representations and Warranties
Each party represents and warrants to the other party that: 10.1.1. it is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization;
10.1.2. it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this TOS;
10.1.3. the execution of this TOS by its representative whose signature is set forth at the end of this TOS has been duly authorized by all necessary action of such party, and this TOS will constitute the binding obligation of such party.

10.2. Additional Customer Representations, Warranties and Covenants
Customer represents, warrants and covenants that Customer owns or otherwise has the necessary rights and consents relating to Customer Data so that they will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any other rights of any third party or violate any applicable Law.

10.3. Disclaimer of Warranties
Except for the express warranties set forth in this Section 11, all services and Provider Materials are provided “as is.” To the greatest extent permitted by law, Provider hereby disclaims all warranties, whether express, implied, statutory or other, and Provider specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage or trade practice. Without limiting the foregoing, Provider makes no warranty of any kind that the Services or Provider Materials, or any products or results of the use thereof, will meet Customer’s or any other Person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of Harmful Code or error-free. All Third-Party Materials are provided “as is” and any representation or warranty of or concerning any Third-Party Materials is strictly between Customer and the third-party owner or distributor of the Third-Party Materials.

11. Indemnification
Customer shall indemnify, defend and hold harmless Provider and its Subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee in connection with any claim, suit, action or proceeding by a third party (other than an affiliate of a Provider Indemnitee) that arises out of or relates to any:

11.1. Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this TOS;
11.2. negligence or other act or omission by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this TOS.
12. Limitations of Liability
12.1. Exclusion of Damages
To the greatest extent permitted by law, in no event will Provider or any of its licensors, service providers or suppliers be liable under or in connection with this TOS or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, for any:
(a) loss of production, use, business, revenue or profit or diminution in value;
(b) impairment, inability to use, or loss, interruption or delay of, the Services,
(c) loss, damage, corruption or recovery of data, or breach of data or system security, or
(d) consequential, incidental, indirect, exemplary, special, enhanced or punitive damages, regardless of whether such persons were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

12.2. Cap on Monetary Liability
In no event will the collective aggregate liability of Provider and its licensors, service providers and suppliers in connection with this TOS or its subject matter, under any legal or equitable theory, including breach of contract, tort, strict liability and otherwise, exceed the total fees paid by Customer to Provider in connection with this TOS.

13. Infringements of Copyright under the Digital Millennium Copyright Act
If Customer believes that any information or other Content accessible through the Service infringes on Customer’s intellectual property rights (each, “Claimed Content”), Customer may provide Provider’s designated copyright agent (“Designated Agent”) with the following information (a Notice of Claimed Infringement, or “NOCI”) in accordance with the Digital Millennium Copyright Act, 17 U.S.C. 512 (“DMCA”):

13.1. a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
13.2. identification of the Claimed Content 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 Provider to locate the material;
13.3. Customer’s contact information, including address, telephone number, and an email address;
13.4. a statement of Customer’s good-faith belief that Provider’s use of the Claimed Content is not authorized by the copyright owner, its agent, or the law; and
13.5. a statement made under penalty of perjury that the information in the notification is accurate and that Customer is authorized to act on behalf of the copyright owner.

Provider’s Designated Agent is:

Glenn Wilson
CEO
Custom Software
380 Borden Rd
Rose City
MI. 48654
Fax: 989-685-5447
Email: glenn@customsoft.net


14. Publicity
Provider may publicize the fact that the parties have entered into this TOS, including identifying Customer by name and a general description of the nature of the agreement that does not disclose any confidential information protected by any non-disclosure agreement that the parties may have entered into, without separate prior written consent by Customer. Such publicity may include the issuance of press releases, disclosures on a party’s website or any other marketing efforts.

15. Force Majeure
Except for Customer’s payment obligations, neither party will be liable for any failure to deliver or perform resulting from causes beyond its reasonable control (a “Force Majeure Event”). Either party may terminate this TOS if a Force Majeure Event continues substantially uninterrupted for thirty (30) consecutive calendar days or more.

16. Miscellaneous
16.1. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this TOS shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

16.2. Notices
All notices and other communications under this TOS have binding legal effect only if in writing and addressed to a party via the notice recipients identified in Schedule A. Notices sent in accordance with this Section 17.2 will be deemed effectively given when sent by email, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours.

16.3. Entire Agreement
This TOS, including Schedule A, constitutes the entire agreement of the parties with respect to the subject matter of this TOS and supersedes all other understandings and communications with respect to that subject matter.

16.4. Assignment
Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this TOS, whether voluntarily, involuntarily, by operation of law or otherwise, without Provider’s prior written consent. This TOS is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

16.5. Amendment and Modification; Waiver
No amendment to this TOS is effective unless in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless set forth in writing and signed by the party so waiving.

16.6. Governing Law; Submission to Jurisdiction
This TOS is governed by and construed in accordance with the laws of the State of Maine. Any dispute between the parties arising out of this TOS shall be resolved exclusively by arbitration by an arbitrator agreed upon in writing by the parties in the State of Maine in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon any award rendered by the arbitrator may be entered in any state or federal court having jurisdiction in the State of Maine.
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MapItRight.com is provided by Custom Software INC, 380 Borden Road, Rose City, MI. 48654