End User License Agreement

1.       SERVICES AND LICENSE

1.1    Subject to the terms of this Agreement, Ratio.City, a division of Esri Canada Limited (“Company”) will use commercially reasonable efforts to provide online data management and analysis tools (“Services”) to authorized users of Company's Services (each, a “User”) in accordance with the Service Level Terms attached hereto as Exhibit A.  Company shall determine whether any particular user will be authorized as a User.

1.2    Users are granted a non-transferable, non-shareable license to use the Services in accordance with the terms of this document. The nature and extent of the Services provided to the User by this license is subject to the commercial terms that User (or their employer) has entered into with the Company. By using the Services you agree to be bound by these terms.

2.     RESTRICTIONS AND RESPONSIBILITIES

2.1   User will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, application program interface (API), documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing, sublicensing, or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. User will not aid, assist or permit any third party to do anything that is not permitted to a User in this End User License Agreement.

2.2   User represents, covenants, and warrants that User will use the Services only in compliance with all applicable laws and regulations and in accordance with any other agreement between User and Company or User’s employer and Company. User hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from User’s use of Services. Although Company has no obligation to monitor User’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.3   User shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  User shall also be responsible for maintaining the security of the Equipment, User account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Software, Services, User account and/or the Equipment with or without User’s knowledge or consent.

3.     PRIVACY AND PERSONALLY IDENTIFIABLE INFORMATION

3.1   Company will collect Personally Identifiable Information from Users (the User’s “PII”) for the purposes of providing the Service and providing support to Users. Ratio.City will limit such collection to the minimum amount required to provide Services and Support. Support channels will include, but not be limited to, communication via email, physical mail, telephone calls, and channels built into the Service itself. Support may be technical or commercial in nature and may be initiated by either the User or by Ratio.City Inc.

3.2   Company will not give, trade, sell or otherwise distribute User PII to third parties, except as necessary to enable provision of the Service, and related support, to the User or as required by law.

3.3   Users may elect to opt out of non-essential communication such as promotional materials by using an “unsubscribe” function that is part of every commercial electronic message that Company sends. Company will decide in its reasonable discretion what communication is considered essential for the delivery of Service to Users.

3.4   Company makes use of Google’s reCAPTCHA service to minimize fraudulent activity. The use of this service may result in the placement and accessing of “cookies” on your device and the collection of information by Google about your use of our Services. For more information, please visit Google’s documentation on How Google Uses Information from Sites or Apps that Use their Services.

4.     CONFIDENTIALITY; PROPRIETARY RIGHTS

4.1   Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business and assets (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service.  The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can demonstrate (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. 

4.2   User shall own all right, title and interest in and to all non-public data provided by User to be hosted by Company as part of the provision of the Services (“User Data”). Company shall not (i) access, use or store any User Data, except as required to perform the Services; or (ii) transfer any User Data to any third party or permit any third party to use or access any User Data, in either case without the explicit consent of User. Company shall return to User or destroy all User Data then in its possession upon the expiration or termination of this Agreement.

4.3   Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, and (b) all intellectual property rights related to any of the foregoing.

4.4   Notwithstanding anything to the contrary in this agreement or any other agreement between Company and User or User’s employer, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning User Data and data derived therefrom), and Company will be free (during and after the term hereof) to use such information and data (solely in aggregate or other de-identified form) to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings.

5.     WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPLIANCE WITH DESCRIPTION, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

6.     LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN COMPANY AND USER OR USER’S EMPLOYER, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY USER OR USER’S EMPLOYER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.     CHANGES

Company reserves the right to make changes to the terms of this agreement. Users will be notified of any such changes and will be required to agree to such changes to continue using the Services.

8.     FOR ACADEMIC PROGRAM USERS ONLY

Ratio.City's Academic Licenses may only be used for educational purposes by current students and faculty. Commercial use, by either students or faculty, is strictly prohibited and will result in termination of system access for the user and/or institution.

9.     APPLICABLE LAW AND VENUE

The laws applicable to this End User License Agreement are the same as the laws applicable to the agreement, if any, between Company and User or User’s employer. If there is no such other agreement, then, if the User resides outside Canada, the laws applicable to this End User License Agreement shall be the procedural and substantive laws of the State of New York and the applicable federal laws of the United States and the federal and state courts of New York shall have exclusive jurisdiction to determine any dispute between the parties, if or, if the User resides in Canada then the laws of the Province of Ontario and the applicable federal laws of Canada shall apply to this agreement and the courts of the Province of Ontario shall have exclusive jurisdiction to determine any dispute between the parties.

EXHIBIT A

SERVICE LEVEL TERMS

The Services shall be available for access by User 99.5% of the time, measured monthly (calculated on the basis of a 24-hour day multiplied by the actual number of days in such month, which, for clarity, represents a total of 50 minutes of downtime per week), excluding scheduled maintenance and force majeure. Any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. User's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be to terminate this agreement on a no-fault basis, provided, however, that where availability falls below 95% in any month (a “Shortfall Month”), User may instead elect to continue using the Services and receive a credit equal to half the monthly fee for each such Shortfall Month.

Downtime shall begin to accrue as soon as User notifies Company that downtime is taking place, and continues until the availability of the Services is restored.  In order to receive downtime credit, User must notify Company in writing within 24 hours from the beginning of downtime, and failure to provide such notice will forfeit the right to receive downtime credit.  Such credits may not be redeemed for cash.  Company will only apply a credit to payment for the month in which the incident occurred.  Company’s blocking of data communications or other aspects of the Service in accordance with its policies or applicable laws shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.