- ORBIT GEOSPATIAL TECHNOLOGIES NV (“Orbit GT“) is the producer of Orbit software and hardware products and full owner of Orbit technology. Orbit GT offers SDKs, APIs and documentation to third parties to enable development upon Orbit’s core technology; and
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
1. NATURE OF THE AGREEMENT
Developer wishes to use Orbit GT’s 3D Mapping Viewer software development kit (the “SDK”) to develop an independent add-on, an integration, a plugin or other solution integrating or interacting with any third party Products as defined hereunder (each a “Development Work”), for which the SDK is considered valuable for Developer or Developer’s customer.
This Agreement describes the rights and obligations of Orbit GT and Developer (each individually a “Party” and together the “Parties”) in relation to the SDK and Development Works.
This Agreement does not constitute either Party the agent of the other, or create a joint venture or similar relationship between the Parties, and neither Party will have the power to obligate the other in any manner whatsoever. Developer acknowledges and agrees that its relationship with Orbit GT is that of an independent contractor, and neither Party will act in a manner that expresses or implies a relationship other than that of an independent contractor. Orbit GT and Developer acknowledge and agree that: (a) Developer is permitted to promote and sell products and services of companies other than Orbit GT; (b) Developer is not required to promote Orbit GT products or services exclusively; and (c) Developer’s decision to devote all or some of its business efforts to the products or services of any particular company is solely at the discretion of Developer.
2. SDK AND DEPLOYMENT
2.1. About Products and Prices
A. Orbit GT Products
Orbit GT may at its sole discretion maintain, update, modify or discontinue any of the software products and solutions listed in Appendix 1 hereto, and the associated services, maintenance, support, training, consultancy or other services that are provided by Orbit GT (each individually a “Product”) and/or any associated SDK or API, at any time, without any compensation for Developer or for the End User or License Holder (as defined in section 2.3 hereunder). For the avoidance of doubt, SDKs and APIs are not considered a Product for the purposes of this Agreement, nor are the Independent Solutions as defined in sub-section E (Similar Features and Products) hereunder.
In case of discontinuation, Orbit GT shall inform Developer 6 months in advance or will where relevant advise Developer in writing of the requirement to migrate to a new Product, SDK or API, in order as appropriate to allow Developer to look for alternatives.
The usage of the SDK is free, both in a development environment and in a production environment. Developer is not authorized to charge the License Holder or End User(s) for the SDK, without prejudice to any fees due in relation to the relevant Product(s). Developer may charge the License Holder or End User(s) for Developer Works as pleased. Support from Orbit GT regarding usage of the SDK and development is subject to Orbit GT’s Service Tickets, as defined hereunder.
C. Orbit GT Trademarks
“Orbit GT Trademarks” means all names, product names, marks, logos, designs, trade dress and other brand designations registered or used by Orbit GT in connection with its products and services (including but not limited to the Products). In performing its obligations hereunder, Developer may refer to the Products by the associated Orbit GT Trademarks, provided that such reference is not misleading and complies with any guidelines issued by Orbit GT. Developer is granted no right, title or license to, or interest in, any Orbit GT Trademarks, save for the foregoing right of use. Developer acknowledges and agrees that any use of the Orbit GT Trademarks by Developer will inure to the sole benefit of Orbit GT. If Developer acquires any rights in any Orbit GT Trademarks by operation of law or otherwise, it will immediately, at no cost or expense to Orbit GT, cede these rights to Orbit GT along with all associated goodwill.
As between Orbit GT and Developer, all right, title and interest in and to the Products and associated Orbit GT promotional materials and documentation (together “Orbit GT Works”), including without limitation all copyrights, database rights, patent rights, trademark and service mark rights, trade secret rights and other intellectual property rights, are and will remain the property of Orbit GT, without prejudice to any third parties’ rights in third-party components of the Products. Orbit GT Works may be used by Developer only as expressly permitted hereunder. Developer shall not remove, alter or otherwise modify any copyright, trademark or other notices of proprietary interest contained in any Orbit GT Work.
Developer recognizes the ownership by Orbit GT of the intellectual property of all Orbit GT technology, know-how, products, user interface techniques, documentation and related items made available for resale through this Agreement. Orbit GT declares to fully own this intellectual property, with exception for third parties tools that might be a component in the Orbit GT portfolio in which case Orbit GT acts as representing the third party’s rights.
Developer undertakes not to knowingly infringe upon or otherwise undermine Orbit GT’s rights in the Orbit GT Works, or the rights of third parties in third-party components of the Products. Developer shall indemnify and hold Orbit GT harmless against any action or claim from any third party for infringement by Orbit GT of third-party rights as a result of the Developer’s integration of the SDK into, or use of the SDK for, any Development Work.
E. Similar Features and Products
Developer acknowledges that Orbit GT evaluates, designs, develops and acquires software and other products, and that products independently developed, evaluated, designed, or acquired by Orbit GT may contain ideas and concepts similar to those that may be developed by Developer.
Nothing in this Agreement shall prevent Orbit GT from licensing, acquiring or independently developing and marketing, directly or indirectly through third parties, products or solutions (“Independent Solutions”) that are similar to and competitive with software developed by or on behalf of Developer. Nothing in this Agreement shall be construed as granting Developer any rights in any such Independent Solutions so developed or acquired by Orbit GT, or any rights to the revenues or any portion thereof derived by Orbit GT from the use, sale, lease, license or other disposal of any such Independent Solutions.
F. Documentation Language
Orbit GT shall not be required to provide any Product documentation, including information regarding Product sales, as well as regarding the use of Orbit GT Products, in any language other than English. In the event of provision of any other language version, Orbit GT makes no guarantees regarding the accuracy of such other version.
2.2. Promoting Developer Works
A. Demonstrator Licenses
Developer shall have the right to use Orbit GT’s Developer Testbed (simulating an On-Premises Publisher) or Developer’s own account on Orbit GT’s cloud-based online application “3D Mapping Cloud” to develop and showcase Developer Works.
B. Marketing Materials
C. Using Orbit GT brand identifiers
Any marketing material will make proper use of the Orbit GT brand identifiers. Logos and other brand graphics, slogans etc. may not be altered and must be used in accordance to official Orbit GT specifications, including the use of ® and ™ symbols where applicable. Additional marketing materials may be produced using the design and trade dress form Orbit GT in the event of prior written approval by Orbit GT and subject to submission to Orbit GT for copywriting review.
D. Product Knowledge
Developer shall acquire and maintain proper knowledge of the represented Products, follow the development guidelines as made available on the Developer Zone (as defined hereunder), and if required get the according training from Orbit GT to build Developer Works of a level of quality meeting that of the Products.
E. Orbit GT direct sales
Orbit GT remains entitled to sell the Products directly to any party, even to Developer’s License Holders and End Users, whether via online sales, marketing promotions, fairs, global deals or any other channel, without any indemnity or remuneration being owed to Developer in that respect.
F. Not a Reseller
Developer acknowledges that nothing in this Agreement may be construed as appointing Developer as reseller of the Products, except for the Developer Works as defined hereunder, solely to the extent necessary to sell or license the Developer Works.
2.3. About the End User
A. Licenses for End Users and License Holders
Developer acknowledges that (i) the customer(s) (a) on whose behalf Developer creates any Developer Works and/or (b) to whom Developer sells or licenses (the use of) any Developer Works (each a “License Holder”), as well as (ii) their respective end-users of the Developer Works (each an “End User”), may only use any Product integrated within or interacting with the Developer Works subject to acceptance of the applicable (parts of the) Orbit GT “End-User License Agreement” (or “EULA”), which includes:
- The Orbit GT “General Sales Conditions”, which are the conditions to which any and all sales of Orbit GT products are bound unless specifically stated otherwise in this Agreement.
- The Orbit GT “MLA” or Master License Agreement, which is the software license-to-use agreement that covers all software Products.
- The Orbit GT “MSA” or Master Service Agreement, which is an agreement covering the Maintenance, Technical Support and Bespoke Services that can be chosen by the License Holder with the purchase of a Product:
- “Maintenance” means the Product upgrades, patches and related services that are optional or included in a Product order, as described in the MSA.
- “Technical Support” describes those actions by Orbit GT personnel that are in relation with the Products and relate to the installation, basic use, specification and other operational aspects of the Products. Technical Support is intended for the Developer, License Holder and End User to assist solving technical issues with the Products, either in pre-sales or in post-sales.
- “Bespoke Services” covers all other actions of Orbit GT personnel, in relation to the Products, that are carried out for a License Holder and are not covered as sales support or Technical Support.
Orbit GT may alter the terms of the General Sales Conditions, MLA and MSA at any time.
B. Technical Support, Maintenance, Upgrades and Training in relation to Developer Works
Developer will be solely responsible for providing support, both technical and operational, to License Holders and End Users in relation to the Developer Works, unless Developer requests that Orbit GT provide such Technical Support (at Developer’s expense). Developer will be responsible for End User training and, if required, for initial system setup, installations of upgrades or other software maintenance tasks in relation to Developer Works.
C. Developer Rights to End User
Developer will inform Orbit GT with proper contact details of the License Holder and its End Users and a SPOC (Single Point of Contact) of the License Holder. This SPOC will be granted access to Orbit GT’s restricted website area to maintain the License Holder’s Product licenses.
3.1. Orbit GT 3D Mapping Viewer SDK Listing
The dotNet API allows Developer to embed Orbit GT’s 3D Mapping Viewer SDK in a dotNet desktop application.
Documentation of either API, as well as information on other SDKs and APIs, code examples, update information and more, can be found on the restricted area of Orbit GT’s website, known as the “Developer Zone”, to which access is granted as a result of the conclusion of this Agreement.
3.2. Developer Tasks
A. Product Knowledge
Developer shall build and maintain proper knowledge of the Products and Orbit GT portfolio. Orbit GT shall be entitled to test such knowledge at any time, with a minimum of 24 hours’ notice. Failure to build and maintain such knowledge will be deemed to be a material breach of this Agreement.
Developer shall provide support to the License Holder and End User, in relation to the installation, basic use, specification and other operational aspects of the Developer Works. Developer shall be entitled to charge the License Holder for such technical support at its sole discretion. Backup Technical Support from Orbit GT is available via Service Tickets, as defined hereunder.
Developer shall engage in keeping Developer Works up to date with the latest versions of the Orbit GT 3D Mapping Viewer SDK and supply these updates of Developer Works to its End Users in the swiftest way possible. Updates may be required for security reasons or alike.
3.3. Orbit GT Services for Developer
A. Developer Support
Developer shall be entitled to develop based on the online documentation for free.
Any requests for support, bespoke services or training made by Developer to Orbit GT in relation to the SDK, API and coding of the Developer Works (“Developer Support”) will be remunerated in accordance with Orbit GT’s applicable rate card or, where applicable, through Service Tickets. “Service Tickets” are the units by which Developer Support is paid for. Each Service Ticket has a price and serves as payment for the chosen service, and Service Tickets can only be purchased upfront.
Developer Support may include, without limitation:
- Training from Orbit GT to enable Developer to properly advertise, demo, sell and support the Products;
- Ad Hoc technical support to Developer;
- Pre- and Post-sales support (subject to separate invoicing of travel, stay and taxes, in addition to the Service Tickets).
B. Access to Developer Zone and tools
Access by any person to the Developer Zone is subject to acceptance by such person of the terms in this Agreement. The Developer undertakes to safeguard all individual login credentials and not to share them with any person.
Upon explicit request to Orbit GT, the Developer may be granted access to the translation database in order to localize the targeted implementation of the Developer Works and the Orbit GT 3D Mapping Viewer User Interface.
4. LIABILITY AND OTHER OBLIGATIONS
4.1. Warranty and Liability
Orbit GT warrants that the SDK will perform substantially in accordance with the relevant documentation made available through the Developer Zone. Other than as provided in this Agreement, the SDK is provided “as is” and Orbit GT makes no representations or warranties, express or implied, of any kind whatsoever with respect thereto (including, without limitation, satisfactory quality, fitness for a particular purpose, custom or usage in trade). Orbit GT further makes no representations or warranties regarding, without limitation, the security, integrity, efficiency or capabilities of the SDK.
Orbit GT shall have no liability or responsibility whatsoever in relation to any damage or loss not solely attributable to Orbit GT or to a breach of the above warranty. Orbit GT shall in particular have no liability for any damage or loss attributable to the code or functionality of the Developer Work itself.
B. Storage media
In the event where any storage media delivered by Orbit GT to Developer containing the SDK presents any defect in materials and workmanship at the time of delivery, Developer’s sole remedy shall be to request a replacement copy of such storage media within a commercially reasonable time after notice from Developer to that effect.
There is no exclusivity implied in this Agreement.
For the purposes of this Agreement:
“Discloser” means, with respect to any given Confidential Information (as defined hereunder), the Party (either Orbit GT or Developer) which discloses such Confidential Information to Recipient pursuant to this Agreement.
“Recipient” means, with respect to any given Confidential Information (as defined hereunder), the Party (either Orbit GT or Developer) which receives such Confidential Information from Discloser pursuant to this Agreement
“Confidential Information” means any and all information, technical or commercial data or know-how, in whatever form, media or format, that relates to the business, services, or products of the Discloser (including without limitation, any research, products, services, developments, inventions, processes, techniques, designs, distribution, engineering, marketing, merchandising, sales information, and/or information regarding business models, sales models, market approach or strategy, marketing initiatives or prospects) and that is disclosed by the Discloser to the Recipient in the framework or course of the negotiation and performance of this Agreement.
For the avoidance of doubt, Confidential Information of Orbit GT as Discloser shall include (but not be limited to): (a) the code, functionality and data of any software Products, and the contents of any other Products; (b) any notes, extracts, analyses or materials prepared by Orbit GT which are copies of or derivative works of Confidential Information or from which Confidential Information can be inferred or otherwise understood.
Notwithstanding the above, information that the Recipient can document as being in any of the following situations will not be deemed to be Confidential Information: (a) information in the public domain at the time of disclosure or enters the public domain through no fault of Recipient after the time of disclosure; (b) information already in the possession of Recipient at the time of disclosure free of any obligation of confidentiality as evidenced by its written record; (c) information rightfully communicated to Recipient by a third party free of any obligation of confidentiality; (d) information independently developed by Recipient without reference to any of the Confidential Information disclosed by Discloser
For as long as the Confidential Information is not placed in the public domain individually by the Party to which it belongs or collectively by the Parties that it concerns, and at least for a period of five (5) years, Recipient shall ensure and maintain the confidentiality of all Confidential Information.
More specifically, Recipient shall not disclose any Confidential Information to any third party, nor permit any third party to examine, use or derive any benefit from the Confidential Information, except to the extent that such disclosure is necessary for performance of Recipient’s obligations under this Agreement and subject to the condition that such third party agrees to be bound by confidentiality obligations of equal scope as those contained in this Section 4.3 for all Confidential Information thus disclosed.
Recipient may nevertheless disclose Confidential Information that is required to be disclosed by legal process or upon demand of any governmental agency, provided that Recipient gives Discloser reasonable notice prior to such disclosure, as soon as practicable, that Recipient provides reasonable cooperation and assistance in opposing such order or requirement if requested by Discloser, and that, to the extent Discloser elects to oppose such order or requirement, Recipient does not make the disclosure until after Discloser has exhausted all reasonable legal remedies to maintain such Confidential Information in confidence.
4.4. Entire Agreement
- Appendix 1 List of software Products
- Appendix 2 End User License Agreement
- Appendix 1 (as may be amended from time to time) will prevail over the other provisions of this Agreement
This Agreement constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes and terminates all other prior commitments, arrangements or understandings, both oral and written, between the Parties with respect thereto. If an NDA pre-exists this Agreement, it will remain in effect for those items not covered in this Agreement.
This Agreement may not be amended or modified except by written acceptance of all alterations signed by both Parties.
None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either Party, their agents or employees, but may be waived only by an instrument in writing signed by an officer of the waiving Party. No waiver of any provision of this Agreement on one occasion shall constitute a waiver of any other provision or of the same provision on another occasion.
4.5. Term and Termination
A. Term and Termination
This Agreement is valid for a period of 2 years as from the acceptance thereof by the Developer (the “Initial Term”). It shall be automatically extended for further one-year terms (each a “Renewal Term”) unless either Party gives written notice to the other Party at least 60 days before the expiration of the then current (Initial or Renewal) Term of the Party’s intent not to renew the Agreement.
Orbit GT shall be entitled to terminate this Agreement, without the prior intervention of a judge, without prior notice and without any indemnity being due by Orbit GT, in the event of any substantial change in practice or ownership of Developer. Developer shall promptly inform Orbit GT of any such circumstance, at the latest upon such circumstances becoming made public by Developer or any third party.
Notwithstanding the above, and without prejudice to any other rights or remedies that either Party may have, either Party may terminate this Agreement at any time with immediate effect, without (other) notice, without the prior intervention of a court and without indemnity, by any written means of communication (including but not limited to registered letter, fax or e-mail) with acknowledgement of receipt:
- in the event of material breach by the other Party of its obligations under this Agreement, where (if the breach is curable) the other Party fails to cure such breach within ten (10) days of receiving written notice to that effect; or
- to the extent permitted by law, if any bankruptcy, insolvency or comparable proceedings have been initiated or applied for under any applicable law or regulation against the other Party, or a trustee is appointed for the management of part or all of the business of the other Party.
Orbit GT may undertake to review Appendix 1 to this Agreement whenever Orbit GT releases new software products to be included in the definition of Products under this Agreement. The discontinuing of or any modification to any software Products shall be permitted in accordance with section 2.1.A of this Agreement.
C. Effect of Termination
Upon termination of this Agreement for any reason whatsoever:
- Developer shall cease all advertising, marketing and resale (i) of the Developer Works and (ii) of any Development Work for as long as such Development Work integrates or interacts with any Product;
- Termination of this Agreement will not affect either Party’s rights or obligations with respect to Developer Works distributed by Developer prior to the effective date of the termination, nor any MLAs signed by License Holders prior to the effective date of termination;
- Developer shall immediately provide Orbit GT with a machine readable and structured copy of all contacts, contracts and all relevant sales information in relation to the representation and sale of Developer Works realized within the scope of this Agreement, provided that such information does not harm the legitimate commercial and confidentiality interests of Developer;
- Developer shall remove and destroy all information (including Confidential Information of Orbit GT as Discloser), documentation, demo software, etc., concerning the subject-matter of this Agreement.
D. No Liability for Termination
Neither Party will be liable for any indemnity or for any damages arising out of the termination of this Agreement in accordance with this Section 4.5. Developer acknowledges and agrees that Orbit GT is not responsible for Developer’s dependence on revenues hereunder, and Developer agrees to release, hold harmless and indemnify Orbit GT from any and all claims and liabilities relating to Developer’s revenues, financial forecasts or economic value that may result from any termination by Orbit GT of this Agreement for any reason whatsoever as permitted hereunder.
Expiration or termination of this Agreement will not relieve either Party from its obligations arising hereunder prior to such expiration or termination. Rights and obligations which by their nature should survive (e.g. confidentiality, …) will remain in effect after termination or expiration of this Agreement.
If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
4.6. Applicable Law and Jurisdiction
This Agreement and the rights and obligations of the Parties hereunder shall be exclusively governed by and construed and enforced in accordance with Belgian Law, with the exclusion of provisions on the conflict of laws. All causes of action between the Parties arising from or in relation to this Agreement shall be brought exclusively before the Belgian courts. Only the Dutch-speaking commercial courts of Brussels, Belgium will have exclusive jurisdiction over any disputes relating to this Agreement, with the explicit exclusion of any other court.
The following Orbit GT software products shall be deemed to be Products for the purposes of this Agreement:
- Orbit GT 3S Mapping Viewer SDK
- Orbit 3D Mapping Cloud
- Orbit 3D Mapping On-Premise Publisher
End User License Agreement (EULA), containing Master License Agreement, Master Service Agreement, and General Sales Conditions.