Please read these terms of service (“terms”, “terms of service”) carefully before using Smart Site Plan website (the “service”) operated by RAUCH, inc (“us”, ‘we”, “our”).
1. Specifications of Smart Site Plan™ Service
Smart Site Plan™ (“SSP”) is a cloud-based data integration service, accessed through the Smart Site Plan™ web portal. SSP provides digital access to the best available information, at a given time and place, including but not limited to; the physical location of proposed, under-construction, and as-built infrastructure, land improvements, and site development. SSP can also be used to manage existing infrastructure to record field notes, repairs, service disruptions, etc., at the Licensee location. Licensor’s services are based upon the best available information made available to Licensor by Licensee, professionals engaged by Licensee, and generally available public sources, through the means and media of an Internet Service Provider (“ISP”) arranged for Licensee.
Licensee is solely responsible for all Licensee computer and data interfaces for connection to the SSP web portal. Licensor shall be held harmless from any defects in transmission of data between the SSP web portal and Licensee locations. Licensor’s sole role in dealing with Licensee’s service disruptions and repair dispatch between Licensee and its employees and contractors is limited to Licensor’s entry of such communications into SSP as and when received from Licensee.
SSP information may be used as a reference for professional project design, surveying, engineering, or construction services. Licensor is not responsible for the accuracy of the data included in SSP.
Licensor, in its provision of SSP service, is not providing professional design, surveying, engineering, or construction advice guaranteed to be correct, complete, or up-to-date. SSP is a repository of the best information made available by the Licensee and its professionals or as available on public websites operated by governmental agencies. Licensee acknowledges that it is entitled to rely solely upon the advice of professional design, surveying, engineering, or construction providers in making any decisions based upon information provided through SSP. Professional design, surveying, engineering, and construction advice, and administrative services are available through RAUCH inc. under separate professional services agreements.
2. License grant and Limitations
Grant of License. Licensor hereby grants, and Licensee hereby accepts, a non-transferable, non-exclusive, worldwide, and royalty-free license or licenses to use SSP, subject to the conditions and for the period specified in this Agreement. A license is granted for a single site, with additional licenses required for each additional site location.
Licensor’s Marks. Licensee shall reproduce and include Licensor’s copyright notice, patent notice, trademark, service mark, other proprietary markings, and/or confidential legends on any reproduction of data obtained from SSP.
Licensee’s Responsibilities. Licensee is exclusively responsible for the supervision, management, and control of its use of SSP, including, but not limited to:
Assuring proper configuration of equipment or devices, including ISP and other Internet services necessary for access to the SSP web portal; Establishing adequate operating methods for its use of the License(s) granted hereunder.
License Period. The license(s) granted in this Agreement shall remain in force for the minimum term of one month from the date of the executed License Agreement unless terminated prior to that time as provided herein. Upon expiration of the term specified herein, Licensee shall have the option to renew the license for an additional minimum term. The License shall automatically renew for successive minimum terms unless Licensee gives Licensor notice of its intention not to renew the License within thirty (30) days prior to the expiration of a term. Licensor has the right to deactivate subscription auto-renewal preferences when deemed appropriate to prevent unexpected charges to the Licensee.
3. Ownership Rights to the SSP Web Portal
Licensee acknowledges and agrees that the SSP program and its web portal are the confidential and proprietary property of Licensor, and except to the extent expressly authorized in this Agreement, Licensee receives no rights to and will not sell, assign, lease, market, transfer, encumber or otherwise suffer to exist any lien or security interest on, nor allow any third person, firm, company, or other entity to copy, reproduce or disclose Smart Site Plan™, whether in whole, in part, or in any manner whatsoever.
4. Payment Terms for Smart Site Service
Payment Upon Execution. Licensee shall pay Licensor a license fee, due at the start of the licensing term.
Payment of Taxes. Licensee shall pay all taxes that may be assessed on the Software or its use, including personal property taxes, sales, use taxes, and excise taxes.
Renewal License Fee. Licensee shall pay Licensor a renewal license fee, due at the start of the renewal licensing term.
License Fee Increases. Licensor has the right to increase the License fee provided for hereunder within thirty (30) days of the scheduled renewal date. The increased License fee shall become effective on the date specified in the notice of the increase unless Licensee terminates this Agreement, within thirty (30) days’ notice to Licensor on or before the date on which the increased fee would otherwise go into effect
5. Warranty, Indemnification and Limitation of Liability
Warranty. Licensor warrants to Licensee that SSP, in unmodified form and when used as authorized by this Agreement, will perform materially in accordance with the Service Specification during the term of this Agreement. If during the term of this Agreement, Licensee demonstrates to Licensor that SSP does not perform materially in accordance with its Service Specification (“Defect”), then Licensor, within fifteen (15) days of receiving written notice of such a Defect, shall respond to Licensee with either: A statement that Licensor has in good faith and using reasonable efforts not yet been able to duplicate the alleged Defect, or; A plan indicating whether Licensor intends, at its option and expense, to use commercially reasonable efforts to correct the Defect.
WARRANTY DISCLAIMER. THE PROVISIONS OF THIS SECTION (6) STATE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO THE LICENSEE, AND THE LICENSOR’S SOLE AND EXCLUSIVE LIABILITY, FOR ANY PERFORMANCE OR NONPERFORMANCE OF THE SSP SERVICE. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
Indemnification by Licensor. Except as otherwise provided, Licensor, at its own expense, will defend, indemnify, and hold Licensee harmless from any claim made or threatened or any suit or proceeding brought against Licensee insofar as it is based on an allegation that the Smart Site Plan™ service furnished to Licensee under this Agreement infringes any copyright or patent in existence on the date the Software was initially provided to Licensee, but only if Licensee does all of the following:
Notifies Licensor of that action in writing within a reasonable period of time (such that Licensor suffers no prejudice to its rights); Gives Licensor the right to control and direct the defense and settlement of that action; Makes no compromise, settlement, or admission of liability; and Provides reasonable assistance and cooperates in the defense of that action at Licensor’s expense. Subject to the limitations set forth in this Section (6), Licensor shall pay any resulting damages, costs and expenses finally awarded to a third party, including but not limited to reasonable legal fees. Licensor will have no responsibility for the settlement of any claim, suit, or proceeding made by Licensee without Licensor’s prior written approval. If any underlying software or program used in the SSP service is held to be infringed and its use is enjoined, Licensor, at its expense, will do one of the following: Procure for Licensee the right to continue using the infringing or potentially infringing software or program; Replace the infringing or potentially infringing software or program with the non-infringing software program, or Modify the infringing or potentially infringing software or program so that it becomes non-infringing. If none of the foregoing remedies are commercially feasible, then Licensor will return to Licensee any license fees paid for that Software, and upon such a return, any licenses granted to Licensee for that Software shall terminate immediately. This Section (6.c) sets forth the entire obligation of Licensor, and Licensee’s exclusive remedy, for the actual or alleged infringement by any Software of any patent, copyright, trade secret, or other intellectual property rights of any person or entity.
Indemnification by Licensee. Licensee shall defend, indemnify, and hold Licensor harmless, under the same terms and conditions and to the same extent as Licensor’s indemnification obligation pursuant to Section (6.c), from and against any and all claims asserted by a third party against Licensor to the extent such a claim is based or alleges the infringement of that third party’s intellectual property rights by modification(s) of Smart Site Plan™ made by Licensee, or derivative works made by Licensee.
Limitation of Liability. In no event will either party be liable to each other or to any third party for any consequential, indirect, incidental or special damages, even if the party to be charged has been advised of the possibility of such damages. In no event will licensor’s total liability under any or all provisions of this agreement for all causes of action on a cumulative basis exceed the payments actually made to licensor under this agreement for SSP services or support resulting in liability or obligations on licensor’s part.
Grounds for Automatic Termination. The license granted by this Agreement shall be terminated automatically and without further notice upon the occurrence of any of the following:
Expiration of the term specified in this Agreement, or of any optional renewal term in the absence of a subsequent renewal in accordance with the terms of this Agreement. The licensee agrees to give feedback in order to terminate this agreement. Disclosure of the Software to a third party, whether directly by Licensee or indirectly and whether inadvertently or otherwise. Refusal by Licensee to pay any periodic license fee or any increase in that fee provided for in this Agreement. Cessation of business by Licensee or any successor or assign to whom the Software has been legitimately transferred. Commission by Licensee of an event of default as defined herein.
Events of Default. Licensee shall have committed an event of default, and this Agreement and the license granted hereunder shall terminate if any of the following occur:
Licensee attempts to use, copy, license, or convey the Software in any manner contrary to the terms of this Agreement or in derogation of Licensor’s proprietary rights in the Software. Licensee fails or neglects to perform or observe any of its existing or future obligations under this Agreement, including, without limitation, the timely payment of any sums due Licensor within thirty (30) days after notice that the payment is delinquent. Licensee makes an assignment of Licensee’s business for the benefit of creditors. A petition in bankruptcy is filed by or against Licensee. A receiver, trustee in bankruptcy, or similar officer is appointed to take charge of all or part of the Licensee’s property. The licensee is adjudicated bankrupt.
Effect of Termination. Licensee acknowledges that immediately upon the operation of this Section (7), whether or not it receives notice of termination, Licensor shall immediately remove Licensee’s access to SSP. Licensee further agrees that in the event of termination through its default, all fees or charges due for the remaining term of this Agreement shall immediately become due and payable. Upon termination of the license granted hereunder, Licensor’s obligations under this Agreement shall cease.
7. General Terms and Conditions
Notices. Unless otherwise provided in this Agreement, any notice required or permitted by this Agreement to be given to Licensor shall be deemed to have been duly given if in writing and delivered personally or mailed by first-class, registered, or certified mail, postage prepaid and addressed to RAUCH inc., 106 N. Harrison Street, Easton, MD 21601. Licensor shall deliver notices to Licensee’s address provided at the execution of the service contract. Licensor may also elect to receive notices electronically to the email address shown at the end of this Agreement.
Assignment of Contract. Licensee shall not assign or otherwise transfer its rights under this Agreement, including the license granted hereunder, or the Software obtained pursuant to this Agreement or this Agreement or its rights hereunder without the prior written consent of Licensor. Any attempt to make such an assignment without Licensor’s consent shall be void.
Amendments. Licensor and Licensee agree that this Agreement can be modified only by a written agreement duly executed by persons authorized to execute agreements on their behalf.
Nonwaiver. Licensor and Licensee agree that no failure to exercise and no delay in exercising any right, power, or privilege hereunder on the part of either party shall operate as a waiver of any right, power, or privilege. Licensor and Licensee further agree that no single or partial exercise of any right, power, or privilege hereunder shall preclude its further exercise.
Attorneys’ Fees. If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire Agreement.
Severability. If any part of this Agreement is adjudged by any court of competent jurisdiction to be invalid, that judgment shall not affect or nullify the remainder of this Agreement, and the effect shall be confined to the part immediately involved in the controversy adjudged.
Governing Law. This Agreement shall be deemed to have been made in and shall be construed pursuant to, the laws of the State of Maryland.
Free Memberships, Offers, and Trials. Licensor may offer free memberships, offers, promotions, and trial memberships at its sole discretion. If access to the Services or Software is provided to you for free or for trial purposes, such access is governed by these Terms. At any time prior to or during the free or trial period, Licensor may, in its sole discretion, terminate the free or trial access without prior notice and without any liability to you, to the extent permitted under applicable law, for any reason, including to prevent abuse of the free or trial access. After the free or trial access period expires, you may only continue using the Services or Software by enrolling in a paid subscription, if available, or as otherwise permitted by Licensor. During the free or trial period, no express or implied warranties shall apply to the Services and Software, all Services and Software are provided “as-is” with all defects, and no technical or other support is included.
Promotional Offers. Other special programs and promotional offers may be made by SSP, its agents or third-party partners from time to time at SSP’s discretion. Such offers will also be subject to the terms and conditions specified in the promotional offer. Unless the user has opted out of receiving marketing communications, SSP may communicate with users about marketing via mail, email, and other channels, including special promotions, offers and more. SSP may also use these channels to communicate changes and more at SSP’s discretion. Please note that even if you opt out of receiving marketing or promotional communications, SSP may continue to send you non-marketing or non-promotional emails, such as those about your account or our ongoing business relations.
No Modifications, Reverse Engineering. Except as expressly permitted in the Terms, you may not (A) modify, port, adapt, or translate any portion of the Services or Software; or (B) reverse engineer (including but not limited to monitoring or tracking the inputs and outputs flowing through a system or an application in order to recreate that system), decompile, disassemble, or otherwise attempt to discover, within any Service or Software, the source code, data representations or underlying algorithms, processes, methods, and any other portion of such Service or Software. If the laws of your jurisdiction give you the right to decompile the Services or Software to obtain information necessary to render the licensed portions of the Services or Software interoperable with other software, you must first request such information from us. We may, in our discretion, either provide such information to you or impose reasonable conditions, including a reasonable fee, on your decompilation of the Services or Software to ensure that our and our suppliers’ proprietary rights in the Services and Software are protected.
Entire Agreement. Licensee acknowledges and agrees that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and that it supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.