17-1107_DIGITAL MAP PRODUCTS_E16_Agenda ReportCity of San Juan Capistrano
Agenda Report
TO: Honorable Mayor and Members of the City Council
FROM: ~njamin Siegel, City Manager
SUBMITTED BY: Steve May, Public Works & Utilities Director 4/UA-
PREPARED BY: Noreen Swiontek, Senior Management Analyst
DATE: November 7, 2017
11/7/2017
E16
SUBJECT: Consideration of an Agreement with Digital Map Products, Inc. for
City GIS GovCiarity Program
RECOMMENDATION:
1. Approve and authorize the City Manager to execute a five-year Agreement with
Digital Map Products Inc. in an annual amount of $34,115 for subscription and data
delivery for the GovCiarity geographic information system program; and
2. Approve an exemption from the City's Purchasing Policy "request for proposals"
process for this procurement as a "sole source" procurement.
DISCUSSION/ANALYSIS:
It is necessary to renew the City's agreement with Digital Map Products Inc., which
provides the City with their proprietary geographic information system (GIS) GovCiarity
program for spatial and geographic map data and infrastructure information for use by
City staff and the public. The annual cost to maintain the program is $34,115, as
outlined in the proposal from Digital Map Products (Attachment 1 ). The proposed
agreement (Attachment 2) is for five years and would lock in the year-one price for the
full term of the agreement. The base price for use of the program has increased 5%
from the previous five-year Agreement. However, staff has reduced the overall annual
cost by $1,750 by eliminating the need for the "TomTom Street Centerline" program.
Digital Map Products has been hosting the City's GIS since 1999 and has developed
extensive community data sets that are not available from any other vendor. The City's
Purchasing Policy provides for an exemption from the "request for proposals" process
when there is only one provider of the required service. It is recommended that the City
Council approve a "sole source" exemption and a five-year agreement with Digital Map
Products for this service.
City Council Agenda Report
November 7, 2017
Page 2 of 2
FISCAL IMPACT:
Funding for GIS software is included in the budget for the current fiscal year. Funding
for the subsequent four years of the agreement will be included in future budget
proposals.
ENVIRONMENTAL IMPACT:
This action is not subject to the California Environmental Quality Act ("CEQA") pursuant
to Section 15060(c)(3) of CEQA Guidelines because the activity is not a project as
defined in Section 15378 of the CEQA Guidelines, California Code of Regulations, Title
14, Chapter 3, and the activity has no potential for resulting in physical change to the
environment, directly or indirectly.
PR IOR C ITY COUNCIL REVI EW :
• On October 2, 2012, the City Council approved a five-year subscription renewal
agreement for City GIS service with Digital Map Products Inc. for an annual cost of
$35,865.
• On August 5, 2008, the City Council approved the first amendment to the Personal
Service Agreement with Digital Map Projects in the amount of $30,000 for an
equestrian trail map application.
• On November 20, 2007, the City Council approved a five-year agreement with
Digital Map Products Inc. for City GIS software services for an annual cost of
$33,532.20 .
• On October 1, 2002, the City Council approved a five-year agreement with Digital
Map Products in the amount of $26,968.48 for the first year and $29,302.88 for each
of the following years.
COMMISSION REVIEW AN D RE COMMENDATIONS :
• This item does not require commission review .
NOTIFICAT ION:
Digital Map Products Inc.
ATTACHMENTS:
Attachment 1: Proposal from Digital Map Products Inc.
Attachment 2: Subscription and Data Delivery Agreement
DIGITAL MAP
PRODUCTS Beyond Mapping
October 18, 2017
Noreen Swiontek
City of San Juan Capistrano
Senior Management Analyst
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Reference: GovCiarlty"' Subscription and Data Delivery
Dear Noreen,
Digital Map
Products
18831 Von Karman Ave, Suite 200
Irvine, Ca. 92612
We are pleased to present to you Digital Map Products, Inc.'s (DMP) 2017 Renewal Agreement for Geographic
Information Systems Services and Data. You are coming off a 5-year contract from 2012 when your previous rate
was locked in. Digital Map Products established updated pricing in 2017 which increases your GovCiarity'M
Enterprise subscription 5% over the previous term. This is the first price increase since 2012. DMP's most valuable
assets are its people that build, deliver, and support our service to you. As is also likely at your agency in recent
years, we have chosen to increase our investment in these assets. An additional contributor to our updated pricing
structure is the cost of data licensed from leaders in their respective data categories and integrated into our
subscription applications. While primarily able to absorb these increases across our rapidly growing client base,
DMP does experience continued increased fees from these firms. Thus, a modest price increase is needed to
maintain and advance the strong product and services to our customers. We are prepared to once again, hold the
new subscription rate for the city of San Juan Capistrano for the term of the new contract. All data licensing fees
will remain unchanged.
DMP is the inventor of the public/private partnership model that facilitates the sharing of county land based
information. DMP's core competency is acquiring and processing these different data sets and providing an easy
to use navigation tool to leverage this content from one location. Digital Map Products is distinct in its ability to
offer embedded mapping technology to the non-technical professional. The City of San Juan Capistrano has been
a client of DMP since 1999. Through GovCiarity .... , CommunityViewrM and Orange County Parcels and Tax Roll Data,
DMP provides a comprehensive and turnkey hosted subscription application solution to the City. The city of San
Juan Capistrano's GovCiarityTM Enterprise subscription includes access to Orange County parcels, property
ownership information, 3" color imagery, and environmental gee-hazards database. GovCiarity is designed so that
all individuals within the city, with no mapping experience or knowledge can achieve the benefits of that
technology with minimal investment of time and money. Govaarity'M works in parallel with the city's minimal
number of existing ArcGIS licenses as the enterprise wide deployment solution for staff to access the city's
data. Along with the base data sets, the city has over 100 layers providing staff with access to city specific
information ranging from zoning and homeowner associations to water and sewer infrastructure to capital
improvement projects and geology. As DMP grows and evolves, GovCiarity users do as well. The DMP Software as
a Service (SaaS) model allows all city employees, agency-wide, the ability to enjoy access to city data including
enhancements, ongoing support, and product training options, all as part of the license agreement.
We appreciate our long-standing partnership with the city. From our products and services to our Customer
Success team -we are thoroughly equipped to continue to exceed your expectations.
Warm regards,
Mary Kane
Digital Map Products, Inc.
Sr. Account Manager, Major Accounts
Attachment 1
Page 1 of 3
DIGITA MAP PRODUCTS Account Manager: Mary Kane
Date: 10/18/2017
Agreement#: SJC-171001GCCVD
18831 Von Karman Avenue Suite 200, Irvine, CA 92612 (949) 333-5111 (OFFICE USE ONLY)
GovCiarity™ I CommunityView™ Order Form
CONTACT INFORMATION BILLING INFORMATION
Agency Name: City of San Juan Capistra no contact Name: City of San Juan Cap istra no, Accounts Payable
Contact Name: Ben Siegel Street Address: (Same)
Position: City Manage r City, State & Zip:
Street Address: 32400 Paseo Adelanto Phone:
City, State & Zip: San Juan Cap istra no, CA 92675 E-mail:
Phone: 949-443-6315 Agreement Term: 10/01/17 thru 09/30/22
E-mail: bsiegel(@san j uancaQistrano .org Billing Start Date: 10/01/17 Term: 5 years
TECHNICAL ACCOUNT LIAISON Billing Frequency: Annual
Contact Name: James Fournier Billing Method: Invoiced (Email)
E-mail: jfo urn i er@lsanjuancaQistrano .org Payment Method: Check
Phone: (949) 487-4314 Payment Terms: Net 30
Population: 36,276 #ofUsers: 200 (Agency-wide)
ORDER DETAIL
GovCiarity™ Enterprise Agency-wide Access Term Annual Total
2017-2018 $26,250
2018-2019 $26,250
2019-2020 $26,250
2020-2021 $26,250
2021-2022 $26,250
Available Content AI/ Items listed below are available in GovCiarity 'M Enterprise Annual Price
CommunityView'"' Included
Full Access to API and Integrations Special Quote Nat Included
Assigned Customer Success Resource Included
Tax Maps Included
Support: live• (888) 322-MAPS (6277) x2 su~~ort@di g ma[!.com Included
On-Site Training (1 time) Included
Training Resources: On-Line I On-Demand hn~s :Llwww .digma[!.coml onlinehel[![govclaritlllindex.html Included
Additional Premium Services & Data Content All Items listed below are available in GovCiarity 'M Enterprise
Orange County Parcels (Maintenance Fee) Countywide Boundary (Annual Update) $3,500 $3,500
Property Attribute Records (Maintenance Fee) Citywide Boundary+ 500' Buffer (Monthly Update) $4,365 $4,365
Tom Tom Multi net Street Centerlines-Citywide Boundary+ 500' Buffer (Annual Update) $3,000 Not Included
Custom Success Plan-GIS Consulting Services Special Quote Not Included
Foreclosure Data $1,500 Nat Included
Demographic Data $1,500 Not Included
Premium Points of Interest (POl) Data $1,500 Not Included
TimeView Satellite Im agery Library $1,500 Nat Included
Premium School Data $1,500 Nat Included
Custom Imagery Upload-Imagery supplied by City Special Quote Not Included
Page 1 of 2
Attachment 1
Page 2 of 3
DIGITAL MAP
PR O D U CT S
Account Manager: Mary Kane
Date: 10/18/2017
Agreement#: SJC-171001GCCVD
18831 Von Karman Avenue Suite 200, Irvine, CA 92612 (949) 333 -5111 (OFFICE USE ONLY)
ANNUAL CONTRACT TOTALS
2017-2018 ANNUAL CONTRACT TOTAL $34,115
2018-2019 ANNUAL CONTRACT TOTAL $34,115
2019-2020 ANNUAL CONTRACT TOTAL $34,115
2020-2021 ANNUAL CONTRACT TOTAL $34,115
2021-2022 ANNUAL CONTRACT TOTAL $34,115
DIGITAL MAP PRODUCTS -ACCOUNT MANAGER DIGITAL MAP PRODUCTS-TECHNICAL CONTACT
Contact: Mary Kane Contact: Karen Figgins
Title: Account Manager, M ajor Accounts Title: Customer Success Manager, local Government
Phone: 949.555.5147 Phone: 949.333.5184
E-mail: mka n e@d igmaQ .com E-mail: kfiggins@digma12 .com
DIGITAL MAP PRODUCTS-BUSINESS INFORMATION
Address: Digital Map Products, Inc. Phone: 949-333-5111
18831 V~n Karman Avenue, Suite 200 Fax: 949-333-5112
Irvine, CA 92612
DUNS: 87971961
NAICS /SIC: 541512
Website: htt12 :LLwww .digma12 .COm Small Bus Cert: 50399
Processing Instructions (INTERNAL USE ONLY): Renew GovCiarity Enterprise account and datasets as indicated above.
The parties agree to the terms contained herein including all exhibits. This Agreement may be executed in counterparts with the same force
and effect as if executed in one complete document.
SIGNATURES
City of San Juan Capistrano, Authorized Signature
Printed Name
Title
Date
Page 2 of 2
Digital Map Products, Inc. Signature
Thomas R. Patterson, Jr.
Printed Name
CFO
Title
Date
Attachment 1
Page 3 of 3
DIGITAL MAP
PRODUCTS
Web Application Subscription
Terms and Conditions
By executing the Agreement, You agree that the
Agreement terms govern Your purchase and use of
Digital Map Products ("DMP") Web Application and
Content. If You are entering into this Agreement on
behalf of a company or other legal entity, You
represent that You have the authority to bind such
entity and its affiliates to these terms, in which case
the terms "You" or "Your'' shall refer to the entity and
its affiliates . If You do not have such authority , or if
You do not agree with these terms and conditions,
You must not accept the Agreement and may not use
the Web Application or Content.
1. DEFINITIONS
"Agreement" means the combination of the Order
Form and these Web Application Subscription Terms
and Conditions . In the event of any conflict between
these Web Application Subscription Terms and
Conditions and the Order Form, these Web
Applications Subscription Terms and Conditions wilt
apply.
"Content" means any content provided through the
Web Application (whether created by Us or Our third-
party licensors), and includes but is not limited to any
information portrayed or rendered in any manner
through the Web Application, including maps , data,
analysis and images of any kind .
"Effective Date" The Agreement is effective as of the
date of the last signature of the parties on both the
Order Form and these Web Application Subscription
Terms and Conditions.
"Order Form" means an ordering document
specifying the specifics of what is being provided
hereunder that is entered into between You and Us,
including any addenda and supplements thereto . By
entering into an Order Form hereunder, an affiliate
agrees to be bound by the terms of this Agreement as
if it were an original party hereto.
"User'' means an individual who is authorized by You
to use the Web Application, for whom You have
ordered the Web Application, and to whom You (or We
at Your request) have supplied a user identification
and password .
"We ," "Us" or "Our'' means Digital Map Products, Inc.
or its affiliates .
"Web Application" means the product You have
requested access to and that has been ordered by
You under this Agreement and has been made
ava ilable by Us , excluding any third-party web sites,
content, or applications that our products and
services link to. Any use of the term Web Application
shall be assumed to include Content.
"You" or "Your" means the company or other legal
entity for which you are accepting this Agreement ,
and Affiliates of that company or entity .
"Your Data" means electronic data and information
submitted by or for You to be incorporated into the
Web Application .
2. WEB APPLICATION, CONTENT, AND USAGE
2.1 Web Application and Content. We will (a)
make the Web Application available to You pursuant
to this Agreement and the Order Form, (b) provide
support for the Web Application to You pursuant to
any such indication on the Order Form. Unless
expressly provided otherwise, the Web Application is
purchased as a subscription, and subject to usage
limits , including, for example, (i) the number of Users
and the geographic coverage areas specified in the
Order Form and (ii) You may not extract more than
30,000 property records per month without a separate
data license . Unless otherwise specified, the Web
Application may not be accessed by more than the
number of Users indicated, a User's password may
not be shared with any other individual, and Users will
not attempt to access information or functionality
outside of the purchased geographic coverage areas .
2.2 Your Responsibilities. You wilt (a) be
responsible for Users' compliance with this
Agreement, (b) be responsible for the accuracy,
quality, and legality of Your Data and the means by
which You acquired Your Data , (c) use commercially
reasonable efforts to prevent unauthorized access to
or use of the Web Application, and notify Us promptly
of any such unauthorized access or use, and (d) use
the Web Application in accordance with any
applicable laws and government regulations .
2.3 Usage Restrictions. You will not (a) make
the Web Application available to, or use the Web
Application for the benefit of, anyone other than You
or Users , (b) sell , resell , license , sublicense,
distribute, rent, or lease any portion of the Web
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Application , (c) use the Web Application to store or
transmit infringing, libelous, or otherwise unlawful or
tortious material, or to store or transmit material in
violation of third-party privacy rights, (d) interfere or
disrupt the integrity or performance of the Web
Application or third-party data , (e) copy the Web
Application or any part, feature, function, or user
interface thereof, (f) copy, extract, or store Content
except as expressly permitted, (g) frame or mirror
any part of the Web Application, other than framing on
Your own intranets or otherwise for Your own internal
business purposes, (h) process, extract, conduct load
testing on, or place undue load on any part of the
Web Application except as expressly permitted, (i)
use the Web Application for marketing or
telemarketing purposes; or U) access the Web
Application in order to build or enhance a competitive
product or service .
2.4 Future Functionality, Updates, and Beta
Services. You agree that Your purchase of use of the
Web Application is not contingent on the delivery of
any future functionality or content, nor dependent on
any oral or written public comments made by Us
regarding future functionality or content. You agree
that We may make changes to the Web Application
over time for any reason, without limitation, and that
We may not continue to provide or support older
versions of the Web Application. We may invite You
to try other Web Applications and options to Web
Applications . Any such additional Web Applications
and options may be subject to additional or separate
terms and fees . In the event that such other Web
Appl ications and options are trials or beta products,
we will have no liability for any harm or damage
arising out of Your use of such.
3. FEES, PAYMENT, AND TERM
3.1 Fees and Payment. You will pay all fees
specified in the Order Form plus any applicable taxes,
levies, duties, or similar governmental assessments
of any nature . Except as otherwise specified herein
or in an Order Form, (a) fees are based on the
purchased use and not actual incremental usage, (b)
payment obligations are non-cancelable and fees paid
are non-refundable, (c) fees shall be made in advance
in accordance with the frequency stated in the Order
Form, (d) quantities or add-ons purchased cannot be
decreased during the relevant subscription term, and
(e) unless otherwise stated in the Order Form,
invoiced charges are due net 30 days from the invoice
date . You are responsible for providing complete and
accurate billing and contact information and notifying
Us of any changes to such information .
3.2 Non-Payment or Failure to Pay. A
charge of 1.5% per month may be assessed on any
outstanding and past due invoices until paid in full.
You will be charged for any cost of collections
including, but not limited to, agent fees, legal fees and
costs, and other associated expenses. If Your
access and use is terminated or suspended due to
nonpayment or non-compliance, You shall
nonetheless still be responsible for any fees as set
forth in this Agreement. If We do not receive from
You payment for the invoiced amount within thirty
(30) days of its due date, We may suspend Your
access and use of the Web Application, until You
bring Your account current.
3.3 Term of Agreement. This Agreement will
continue for the period defined in the Order Form as
the Agreement Term ("Initial Term"). After the Initial
Term , this Agreement shall automatically renew for
additional twelve (12) month periods ("Renewal
Term") unless e ither party provides written notification
to the other party of its intent not to renew at least sixty
(60) days prior to the expiration of the then Initial
Term or Renewal Term . For any Renewal Term , all
fees shall remain the same as the previous Term.
Upon termination, any licenses or rights granted by
Us under this Agreement are immediately revoked.
4. PROPRIETARY RIGHTS, LICENSES, AND
CONFIDENTIALITY
4.1 Reservation of Rights. Subject to the
limited rights expressly granted hereunder, We and
Our licensors reserve all of Our/their rights, titles, and
interests in and to the Web Application, including all
of Our/their related intellectual property rights. You
understand that We may at our sole discretion replace
vendors or suppliers related to Content or Web
Application functionality at any time without notice .
You agree that any works commissioned or
undertaken by Us pursuant to or in supplement to this
Agreement shall be and remain Our property. No
rights are granted to You hereunder other than as
expressly set forth herein.
4.2 Preservation of Notices. You agree to
include, and not to remove or obscure, any copyright,
trademark, patent, or other notices appearing within
our Web Application including any visual or printed
depictions of the same.
4.3 License to Host Your Data. You grant Us
a limited-term license to host, copy, adapt, modify,
transmit, and display Your Data, as necessary for Us
to provide the Web Application to You. You reserve
all title, interest and intellectual property rights to Your
Data .
4.4 License to Collect Data and Use
Feedback. You agree that We may collect and use
information gathered as part of the Web Application to
improve Our technology, products, and internal
processes. You grant Us a worldwide, perpetual,
irrevocable, royalty-free license to use and
incorporate into the Web Application any suggestion,
enhancement request, recommendation, correction, or
other feedback provided by You or Your Users .
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5. CONFIDENTIALITY
5.1 Trade Secrets and Confidential
Information . The Web Application is based on and
includes Our proprietary trade secrets and confidential
information . You will not mod ify , adapt, translate ,
reverse engineer, decompile, attempt unauthorized
access to , or disassemble any portion of the Web
Application . You will treat the Web Application with at
least the same degree of care (and no less than a
reasonable degree of care) as that which You would
treat Your own trade secrets and confidential
information . You will not disclose the terms of this
Agreement or any Order Form to any third party ,
except as is required pursuant to the California Public
Records Act or the Brown Act, provided, however, that
You will provide notice to Us prior to disclosure .
5.2 Confidentiality. We shall hold all data and
other information provided by You to Us in connection
with the performance of this Agreement confidential.
Such data shall not, without Your prior written
consent, be used by Us for any purposes other than
the performance of this Agreement, nor shall such
data be disclosed to any person or entity not
connected with the performance of this Agreement.
Nothing furnished to Us which is otherwise known to
Us or is generally known, or has become known, to
the related industry shall be deemed confidential.
6. REPRESENTATIONS, WARRANTIES,
EXCLUSIVE REMEDIES AND DISCLAIMERS
6.1 Our Warranties. EXCEPT FOR ANY
EXPRESS WARRANTIES PROVIDED HEREIN,
NEITHER PARTY MAKES ANY WARRANTY OF
ANY KIND, WHETHER EXPRESS, IMPLIED , OR
OTHERWISE. WE PROVIDE THE WEB
APPLICATION ON AN "AS IS ," "AS AVAILABLE "
BASIS . WE MAKE NO REPRESENTATION,
WARRANTY, OR COVENANT WHATSOEVER
REGARDING PERFORMANCE , FUNCTIONALITY,
AVAILABILITY, ACCURACY, OR SECURITY OF
THE WEB APPLICATION . WE MAY ALTER ,
REDUCE THE FUNCTIONALITY OR CONTENT OF,
AND/OR TERMINATE THE WEB APPLICATION AT
ANY TIME WITHOUT CAUSE IN OUR SOLE
DISCRETION . NO AGENT OF DMP IS
AUTHORIZED TO ALTER OR EXCEED THE
WARRANTY OBLIGATIONS OF DMP AS SET
FORTH HEREIN .
WE FURTHER REPRESENT AND WARRANT THAT
WE HAVE GOOD AND MARKETABLE TITLE (OR
VALID TRANSFERABLE LICENSES FOR ANY
THIRD-PARTY CONTENT) TO THE WEB
APPLICATION FREE AND CLEAR FROM ALL
LIENS, ENCUMBRANCES, AND CLAIMS OF
INFRINGEMENT OF PATENT, COPYRIGHT, TRADE
SECRET OR OTHER PROPRIETARY RIGHTS OF
THIRD -PARTIES .NEITHER US NOR ANY THIRD-
PARTY PROVIDERS , PARTNERS OR AFFILIATES
WARRANT THAT THE WEB APPLICATION,
SERVERS, OR ANY E-MAIL SENT ARE FREE OF
ERRORS, OMISSIONS, VIRUSES OR OTHER
HARMFUL COMPONENTS. BY ACCEPTING THIS
AGREEMENT, YOU DISCLAIM ALL LIABILITY AND
INDEMNIFICATION OBLIGATIONS OF OURS AND
ANY OF OUR THIRD-PARTY PROVIDERS ,
PARTNERS, OR AFFILIATES EXCEPT AS
EXPRESSLY PROVIDED HEREIN .
6.2 Limitation of Liability Except for damages
arising out of (a) Our intentional misrepresentation,
Our gross negligence or willful misconduct, or (b) Our
indemnification obligations set forth in Section 6 .3,
Our aggregate and maximum liability in connection
with any claim arising out of or relating to this
Agreement shall be limited to a refund of fees paid by
You to Us up to a limit of one year's worth of fees .
Except for the indemnity obligations set forth in
Section 6 .3, neither party shall be liable to the other
party for any special, indirect, incidental, or
consequential damages of any kind (including
attorneys' fees) arising in connection with the Web
Appl ication, or any failure by either party to perform its
obl igations herein .
6.3 Indemnification. We will defend and
indemnify You against a third-party action, suit, or
proceeding against You to the extent such claim is
based upon an allegation that the Web Application or
Content as provided in its original form, except as
updated or revised by Us , under this Agreement
infringes a valid United States patent or copyright or
misappropriates a third party's trade secret. If a third
party alleges that Your Data or your use of the Web
Application in breach of this Agreement infringes or
misappropriates intellectual property rights or violates
law , You will defend and indemnify Us and Our third
party providers, partners, and affi liates against any
such claim, demand, suit, or proceeding, including
any judgments, settlements, and attorney fees.
7. ADDITIONAL PROVISIONS
7.1 Non-Assignability. Neither party may
assign or transfer this Agreement without the prior
written consent of the other party . Any unauthorized
assessment or transfer will be null and void , and
enables termination . This Agreement is binding upon
any authorized successor or assignee .
7.2 Entire Understanding. This Agreement is
the parties' entire agreement relating to its subject, and
supersedes any prior or contemporaneous
agreement. Any amendment must be in writing and
expressly state that it is amending this Agreement.
7.3 Governing Law & Arbitration. This
Agreement is governed by California law, excluding
California's choice of law rules . All disputes relating
to this Agreement will be subject to binding
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arbitration pursuant to the rules of The American
Arbitration Association or the Judicial Arbitration and
Mediations Services, Inc. The exclusive place of the
arbitration shall be Orange County, California.
Judgment on the arbitration award may be entered in
any court having jurisdiction thereof. For the purpose
of entry of judgment on such an award, the parties
consent to personal jurisdiction in the courts of
Orange County, California.
On behalf of Digital Map Products, Inc.:
7.4 Headings Not Controlling. All captions and
headings in this Agreement are for purposes of
convenience only and shall not affect the construction
or interpretation of any of its provisions .
7.5 Severability. If any provision of this
Agreement is held to be illegal, invalid, or
unenforceable, such provision is fully separable, and
the remaining provisions of the Agreement shall
remain in full force and effect.
7.6 Advertisement. We shall not use, in Our
external advertising, marketing programs, or other
promotional efforts, any data, pictures, or other
representation of You unless We receive specific
written authorization in advance from Your City
Manager. We will limit and direct any of Our
advertising on Your premises and shall make
arrangements for such advertising through Your City
Manager. We shall not install any signs or other
displays within or outside of Your premises unless in
each instance the prior written approval of Your City
Manager has been obtained . However, nothing in this
clause shall preclude Us from listing You on Our
routine client list for matters of reference .
7.7 Non-Collusion . We hereby represent and
agree that We have in no way entered into any
contingent fee arrangement with any firm, any of Your
employees, or other person or entity concerning the
obtaining of this Agreement.
Signature
Printed Name & Title
Date
On behalf of
Company Name
Signature
Printed Name & Title
Date
Web Application Subscription Terms and Conditions (updated 0511712017)
61147.02100\30272567 .1
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DIGITAL MAP PRODUCTS
Content Solutions Sublicense
Terms and Conditions
By executing the Agreement, You agree that the
Agreement terms govern Your acquisition and use of
the Licensed Products . If You are entering into this
Agreement on behalf of a company or other legal
entity, You represent that You have the authority to
bind such entity and its affiliates to these terms, in
which case the terms "You" or "Your" shall refer to the
entity and its affiliates. If You do not have such
authority, or if You do not agree with these terms and
conditions, You must not accept the Agreement and
may not accept or use the Licensed Products .
1. DEFINITIONS
"Agreement" means the combination of the Order
Form and these Content Solutions Sublicense Terms
and Conditions . In the event of any conflict between
these Content Solutions Sublicense Terms and
Conditions and the Order Form, these Content
Solutions Sublicense Terms and Conditions will apply.
"Contributed Database" means Databases licensed
by certain Contributors to Us with the right to grant
sublicenses as set forth herein and identified on the
Order Form.
"Contributor'' means a third-party licensor of any
Contributed Database to Us .
"Database" means a compilation of geographic,
cartographic, engineering, architectural, tabular, text,
and/or other data, information, or works, including, but
not limited to, graphic and/or file data in automated or
manual form .
"Derivative Products" or "Derivatives" shall mean
all works created by You which incorporate all or part
of the Licensed Products, including, but not limited to,
any revision , modification, translation, abridgment,
condensation, expansion , collection, compilation or
any other form of, or modification to the Licensed
Products.
"Effective Date" The Agreement is effective as of the
date of the last signature of the parties on both the
Order Form and these Content Solutions Sublicense
Terms and Conditions .
"Intended Use" means the specific works, uses,
purposes, end users, and industries expressly
described on the Order Form . Unless expressly
stated otherwise on the Order Form, the Intended Use
is limited to internal geospatial mapping products,
activities, and applications, and does not include any
form of commercial use, distribution, publishing,
sublicensing, modifying, reformatting, creation of
derivative works , products, or databases, marketing or
telemarking activities, models or algorithms,
application programming interfaces , appraisal, title or
other legal reporting, debt collection, insurance , use of
personally identifiable information, legal services or
products, extracting or otherwise modifying,
processing, or removing data elements .
"Licensed Products" means the products ordered by
You on the Order Form and may include portions of
the Contributed Databases .
"Order Form" means an ordering document
specifying the Services to be provided hereunder that
is entered into between You and Us, including any
addenda and supplements thereto . By entering into an
Order Form hereunder, an Affiliate agrees to be bound
by the terms of this Agreement as if it were an original
party hereto.
"Visual Output" means printouts, plots, displays,
photographic film , printed matter and other visual
representation of data .
"We," "Us" or "Our" means Digital Map Products, Inc.
or its affiliate .
"You" or "Your'' means the company or legal entity,
and any of its affiliates, for which you are accepting
this Agreemen t.
2. GRANT OF LICENSE
We hereby grant , and You hereby accept, subject to
the terms and conditions of this Agreement, a non-
exclusive, non-transferable, and non-assignable right
and sublicense to use the Licensed Products solely
for the Intended Use, from the Effective Date hereof
until this Agreement is terminated or expires in
accordance with its terms . You may produce Visual
Output from the Licensed Products only for the
Intended Use .
Subject to the terms of this Agreement, You may
create and distribute Derivative Products to the extent
that such Derivative Products are part of the
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Intended Use . You shall be able to use such
Derivative Products and all intellectual property rights
attributable or corresponding thereto, royalty-free, in
perpetuity, under the terms of this Agreement, solely
for the Intended Use provided that such use does not
include any attempt to reverse-engineer any aspect of
Licensed Products or to compete with Us or the
Contributors .
Except as expressly permitted herein , You shall have
no right to assign, transfer, or sublicense any aspect
of the Licensed Products other than to Your rightful
successors or assigns by means of a merger or sale
of all or substantially all of Your business .
You shall have no right to resell, redistribute, or
relicense any aspect of the Licensed Products . Any
resale , Redistribute , or relicense rights specifically
require a completed Content Solutions Resale
Sublicense Agreement separate and distinct from this
Agreement.
Your contractors, consultants, and agents that You
engage for the Intended Use may use the Licensed
Products in digital format as long as (a) these third
parties' use is only for the Intended Use, (b) these
third parties do not sell, license, or otherwise distribute
Licensed Products or any portion thereof, (c) these
third parties must destroy any copies of the Licensed
Products or portions thereof immediately upon
termination or completion of their scope of work as
related to the Intended Use, (d) these third parties are
not competitors of Ours or of the Contributors, and (e)
these third parties must abide by the terms of this
Agreemen t.
Without limiting the foregoing, You agree that You
shall in no event use any aspect of the Licensed
Products other than for the Intended Use.
3. OUR RESPONSIBILITIES
3.1 Delivery Formats and Schedules. We
shall make delivery of the Licensed Products to You
pursuant to the formats and schedules designated on
the Order Form . Unless indicated otherwise , We will
only make one (1) data delivery.
4. YOUR RESPONSIBILITIES
4.1 Compliance and Protection from
Unauthorized Access and Use . You will be
responsible for (a) compliance with the terms of this
Agreement by any parties to whom you grant access
to the Licensed Products or Derivative Products , (b)
securing and protecting the Licensed Products and
Derivatives from unauthorized distribution and
access, (c) preventing any use of the Licensed
Products or Derivatives outside of the Intended Use ,
(d) preventing access from any of Our competitors or
those of our Contributors to any portions of the
Licensed Products, Derivatives, or any related
information ; (e) ensuring that no aspect of the
Licensed Products is used in any way that (1) violates
any law, statute, ordinance, or regulation; (2) infringes
a third party's copyright , patent , trademark, trade
secret, or other proprietary rights of publicity or
privacy; or (3) is defamatory , trade libelous, unlawfully
threatening or harassing .
5. FEES, PAYMENT, AND TERM
5.1 Fees and Payment. In consideration of the
license rights granted in Section 2, You shall pay all
fees as set forth in the Order Form, plus all appl icable
taxes, levies, duties, or similar governmental
assessments of any nature . Except as otherwise
specified herein or in an Order Form, (a) fees are
based on Licensed Products purchased and not
contingent upon Your actual usage, (b) payment
obligations are non-cancelable and fees paid are non-
refundable, (c) fees shall be made in advance at the
beginning of each contract year unless specified
otherwise in the Order Form, and (d) You shall be
invoiced in full upon delivery and You will be pay the
invoiced amount to Us in full within fifteen (15) days
from date of invoice .
5.2 Non-Payment or Failure to Pay. A charge
of 1.5% per month may be assessed on any
outstanding and past due invoices until paid in full.
You will be charged for any cost of collections
including, but not limited to, agent fees, legal fees and
costs , and other associated expenses . If Your access
and use is terminated or suspended due to
nonpayment or non-compliance , You shall
nonetheless still be responsible for any fees as set
forth in this Agreement. If We do not receive from
You payment for the invoiced amount within thirty (30)
days of its due date, We may suspend Your access
and use of the Services and Content, until You bring
Your account current.
5.3 Term of Agreement. This Agreement will
continue for the period defined in the Order Form as
the Agreement Term ("Initial Term"). After the Initial
Term, this Agreement shall automatically renew for
additional twelve (12) month periods ("Renewal
Term") unless either party provides written notification
to the other party of its intent not to renew at least
sixty (60) days prior to the expiration of the then Initial
Term or Renewal Term . For any Renewal Term, all
fees shall remain the same as the previous Term .
Upon termination, any licenses or rights granted by Us
under this Agreement are immediately revoked .
6. PROPRIETARY RIGHTS, ADDITIONAL
LICENSE LIMITATIONS, AND CONFIDENTIALITY
6.1 Reservation of Rights. Subject to the
limited rights expressly granted hereunder, We and
Our Contributors reserve all of Our/their rights, titles,
and interests in and to the Licensed Products and
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Contributed Databases, including all of Our/their
related intellectual property rights . You understand
that We may at our sole discretion replace
Contributors at any time without notice. You agree
that any works commissioned or undertaken by Us
pursuant to or in supplement to this Agreement shall
be and remain Our property unless indicated
otherwise. No rights are granted to You hereunder
other than as expressly set forth herein .
6.2 Proprietary Notices. We and our
Contributors claim and reserve all ownership and
rights afforded at law and in equity in all data,
compilations, and materials that constitute the
Licensed Products, including, but not limited to, all
rights under federal copyright law . You agree to
respect and not to knowingly or maliciously remove,
obliterate , or cancel from view any copyright,
trademark, confidentiality , or other proprietary notice,
mark , or legend appearing on the Licensed Product or
on the Visual Output, including, but not limited to, any
such notices displayed to the user during the
operation of the Licensed Products and any such
notices in the documentation, and agree to use
reasonable best efforts to reproduce and include the
same on any copy of the Licensed Product or any
portion thereof distributed to Your consultants , agents
and contractors .
6.3 Confidential Information . Each party
agrees to keep confidential all confidential information
disclosed to it by the other party in accordance
herewith, and to protect the confidentiality thereof, in
the same manner in which it protects the
confidentiality of similar information and data of its own
(at all times exercising at least a reasonable degree of
care in the protection of confidential information).
Confidential information shall not include any
information that is subject to disclosure under the
California Public Records Act or the Brown Act,
provided , however, that You will provide notice to
Us prior to disclosure . You acknowledge that the
unauthorized use, transfer, assignment , sublicensing,
or disclosure of the Licensed Products,
documentation, Derivative Products, or copies of any
portions thereof will (a) substantially diminish the
value to Contributors of their intellectual property , (b)
render Our remedy at law for such unauthorized
use, disclosure, or transfer inadequate, and (c) cause
irreparable injury . If You breach any of Your
obligations with respect to the use or
confidentiality of the Licensed
Products, documentation, Derivative Products , or any
copies of portions thereof, We shall be entitled to
equitable relief to protect Our interests therein,
including, but not limited to, preliminary and
permanent injunctive relief . Upon (presentation of
just cause and) ten (10) days' written notice to You,
We shall, with Your consent and permission, have
reasonable access to inspect and audit Your
procedures and to examine Your computer systems in
order to determine whether such procedures and
computer systems comply with the requirements set
forth in this Agreemen t.
7. REPRESENTATIONS, WARRANTIES,
EXCLUSIVE REMEDIES AND DISCLAIMERS
7.1 Our Warranties. EXCEPT FOR ANY
EXPRESS WARRANTIES PROVIDED HEREIN,
NEITHER PARTY MAKES ANY WARRANTY OF
ANY KIND , WHETHER EXPRESS , IMPLIED, OR
OTHERWISE . WE PROVIDE THE LICENSED
PRODUCTS ON AN "AS IS," "AS AVAILABLE"
BASIS . NEITHER WE NOR OUR CONTRIBUTORS
MAKE ANY REPRESENTATION, WARRANTY , OR
COVENANT WHATSOEVER REGARDING
AVAILABILITY OR ACCURACY OF THE LICENSED
PRODUCTS AND/OR CONTRIBUTED DATABASES .
WE MAY ALTER OR REDUCE THE AVAILAB ILITY
AND QUALITY OF THE LICENSED PRODUCTS AT
ANY TIME WITHOUT CAUSE IN OUR SOLE
DISCRETION . NO AGENT OF DMP IS
AUTHORIZED TO ALTER OR EXCEED THE
WARRANTY OBLIGATIONS OF DMP AS SET
FORTH HEREIN .
WE FURTHER REPRESENT AND WARRANT THAT
WE HAVE GOOD AND MARKETABLE TITLE (OR
VALID TRANSFERABLE LICENSES FOR ANY
THIRD -PARTY CONTENT) TO THE WEB
APPLICATION FREE AND CLEAR FROM ALL
LIENS, ENCUMBRANCES, AND CLAIMS OF
INFRINGEMENT OF PATENT, COPYRIGHT, TRADE
SECRET OR OTHER PROPRIETARY RIGHTS OF
THIRD-PARTIES .
NEITHER US NOR ANY CONTRIBUTORS
WARRANT THAT THE LICENSED PRODUCTS OR
RELATED E-MAILS SENT ARE FREE OF ERRORS,
OMISSIONS, VIRUSES OR OTHER HARMFUL
COMPONENTS . BY ACCEPTING THIS
AGREEMENT, YOU DISCLAIM ALL LIABILITY AND
INDEMNIFICATION OBLIGATIONS EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT.
7.2 Limitation of Liability. Except for
damages aris ing out of (a) Our intentional
misrepresentation, gross negligence or willful
misconduct, or (b) Our indemnification obligations set
forth in Section 7 .3 , Our aggregate and maximum
liability in connect ion with any claim arising out of or
relating to this Agreement shall be limited to a refund
of 12 months of fees paid by You to Us . Except for the
indemnity obligations set forth in Section 7 .3, neither
party shall be liable to the other party for any special ,
indirect, incidental, or consequential damages of any
kind whatsoever (including attorneys ' fees) arising in
connection with the Licensed Products, or any failure
by either party to perform its obligations herein .
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7.3 Indemnification. We will defend and
indemnify You against a third-party action , suit , or
proceeding against You to the extent such claim is
based upon an allegation that the Licensed Product,
as of its delivery date under this Agreement, infringes a
valid United States patent or copyright or
misappropriates a third party 's trade secret. If a
third party alleges that your use of the Licensed
Products in breach of this Agreement infringes or
misappropriates intellectual property rights or violates
law, You will defend and indemnify Us and the
Contributors against any such claim, demand, suit, or
proceeding, including any judgments, settlements,
and attorney fees .
8. .ADDITIONAL PROVISIONS
8 .1 Non-Assignability. Neither party may
assign or transfer this Agreement without the prior
written consent of the other party . Any unauthorized
assessment or transfer will be null and void, and
enables termination . This Agreement is binding upon
any authorized successor or assignee .
8.2 Entire Understanding. This Agreement is
the parties' entire agreement relating to its subject,
and supersedes any prior or contemporaneous
agreement. Any amendment must be in writing and
expressly state that it is amending this Agreement.
8.3 Governing Law & Arbitration. This
Agreement is governed by California law, excluding
California's choice of law rules . All disputes relating
to this Agreement will be subject to binding arbitration
pursuant to the rules of The American Arbitration
Association or the Judicial Arbitration and Mediations
Services, Inc. The exclusive place of the arbitration
shall be Orange County, California . Judgment on the
arbitration award may be entered in any court having
jurisdiction thereof. For the purpose of entry of
judgment on such an award, the parties consent to
personal jurisdiction in the courts of Orange County,
California .
8.4 Headings Not Controlling. All captions and
headings in this Agreement are for purposes of
convenience only and shall not affect the construction
or interpretation of any of its provisions.
8.5 Severability. If any provision of this
Agreement is held to be illegal, invalid, or
unenforceable, such provision is fully separable, and
the remaining provisions of the Agreement shall
remain in full force and effect.
8.6 Advertisement. We shall not use, in our
external advertising, marketing programs, or other
promotional efforts, any data, pictures, or other
representation of You unless We receive specific
written authorization in advance from Your City
Manager. We will limit and direct any of Our
advertising on Your premises and shall make
arrangements for such advertising through Your City
Manager. We shall not install any signs or other
displays within or outside of Your premises unless in
each instance the prior written approval of Your City
Manager has been obtained . However, nothing in this
clause shall preclude Us from listing You on Our
routine client list for matters of reference .
8. 7 Non-Collusion. We hereby represent and
agree that We have in no way entered into any
contingent fee arrangement with any firm, any of Your
employees, or other person or entity concerning the
obtaining of this Agreement.
8.8 Non-Appropriation. This Agreement shall
terminate at such time, if any, that Your governing
body fails to appropriate sufficient sums in the budget
year for which the Agreement applies to pay the
amount due.
On behalf of Digital Map Products, Inc.:
Signature
Printed Name & Title
Date
On behalf of
Company Name
Signature
Printed Name & Title
Date
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