Welcome to MapCop.com. In this document, when we use the term "MapCop" or "we" or "us" or "our" it is a reference to MapCop, LLC, a New York Limited Liability Company. We are the exclusive owners of certain software ("Software") (accessible through an online portal) that monitors minimum advertised pricing across the internet to provide customers with data analytics, predictive insights and business intelligence based upon the customer’s input of information (the "Service").
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BECAUSE THEY CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND MAPCOP AND GOVERN YOUR USE OF THE WEBSITE THAT LINKS TO THESE TERMS OF SERVICE. BY CLICKING THE "I ACCEPT" BUTTON ON OUR WEBSITE OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDER FORM THAT INCORPORATES, AND IS INCORPORATED IN, THIS AGREEMENT (THE "ORDER FORM"), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. 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 TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, "YOU" AND "YOUR" AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY.A. Rights Granted
Upon our acceptance of your order and for the duration of the Term, as defined in the Order Form, you have the non-exclusive, non-assignable, royalty free, worldwide limited right to use the Service solely for your internal business operations and subject to the terms and conditions of this agreement. You may allow those individuals authorized by you or on your behalf ("Authorized Users") to use the Service for this purpose and you are responsible for your Authorized Users’ compliance with this agreement. We will provide you and your Authorized Users with login and access credentials to use the Service (the "Access Credentials").
You acknowledge that we have no delivery obligation and will not ship copies of our Software to you as part of the Service. You agree that you do not acquire under this agreement any license to use our Software, but only a right to the Service which the Software performs. Upon the end of this agreement, your right to access the Service shall terminate.B. Trial Use of the Services
If specified in the Order Form, you may order the Services on a trial basis, subject to the terms and conditions of this agreement. The Service acquired for trial purposes is provided "as is" and we do not offer any warranties for such Service.C. Fees and Taxes
You agree to pay for the Service as set forth in the Order Form. All fees due under this agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that we must pay based on the Service you ordered, except for taxes based on our income. Fees for the Service listed in an Order Form are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice if the method of payment is not by credit card.
You agree that you have not relied on the future availability of any Service, programs or updates in entering into the payment obligations in the Order Form; however, the preceding does not relieve us of our obligation to deliver the Service that you have ordered per the terms of this agreement.D. Ownership
The MapCop website and its original content, features and functionality, including, without limitation, the Software and the Service, are owned by us and are protected by copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. We retain all ownership and intellectual property rights therein. You retain all ownership and intellectual property rights in and to all data in the form provided by you that resides in your Service environment. Subject to the terms of this agreement, you hereby unconditionally and irrevocably grant to us, with respect to any data produced by you or your Authorized Users in connection with the use of the Service, a non-exclusive, royalty-free, worldwide irrevocable and perpetual license to (a) collect, store, transmit, modify and create derivative works of your data, in each case solely to the extent necessary to provide the Service, (b) use and incorporate into the Service any suggestions, enhancement requests, recommendations and/or other feedback provided by you, including your Authorized Users, relating to the operation of the Service, the Software and/or your Confidential Information (as hereinafter defined), and (c) thereafter use, display, distribute, copy and otherwise exploit the same in the Service in our sole discretion.E. Warranties, Disclaimers and Exclusive Remedies
MapCop will use commercially reasonable efforts to provide the Service in a manner consistent with prevailing industry standards and in a manner that minimizes errors and interruptions in the Service. If the Service provided to you for any given month during the Term was not performed as warranted, you must provide written notice to us no later than five business days after the last day of that particular month or within such other period stated in the Order Form.
WE DO NOT GUARANTEE THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT WE WILL CORRECT ALL SERVICE ERRORS. YOU ACKNOWLEDGE THAT WE DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
FOR ANY BREACH OF THE ABOVE WARRANTIES, WE WILL REMIT A SERVICE FEE CREDIT TO YOU CALCULATED AT TEN PERCENT (10%) OF NET MONTHLY FEE FOR THE SERVICE FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICE OWED TO US, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND OUR SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT.
WE AND OUR STOCKHOLDERS, MEMBERS, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AGENTS, LICENSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS AND SUPPLIERS (COLLECTIVELY, "AFFILIATES"), DISCLAIM ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING THE SOFTWARE, SERVICE, OR DATA DERIVED THEREFROM, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY AND NON-INFRINGEMENT. WE DO NOT WARRANT OR GUARANTEE THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, NON-INFRINGEMENT OR INTELLECTUAL PROPERTY RIGHTS, OR QUALITY OF ANY CONTENT OR DATA ACCESSED THROUGH AND/OR PRODUCED FROM THE SOFTWARE OR SERVICE, REGARDLESS OF WHO ORIGINATES SUCH CONTENT.
ALTHOUGH MAPCOP TAKES REASONABLE PRECAUTIONS DESIGNED TO PROTECT THE CONFIDENTIALITY AND PRIVACY OF INFORMATION WE COLLECT FROM YOU, WE CANNOT ABSOLUTELY GUARANTEE THE CONFIDENTIALITY AND PRIVACY OF YOUR INFORMATION. ACCORDINGLY, WE SHALL HAVE NO RESPONSIBILITY IF, DESPITE OUR REASONABLE EFFORTS TO PROTECT THE CONFIDENTIALITY AND PRIVACY OF YOUR INFORMATION, AN UNAUTHORIZED INDIVIDUAL ACCESSES YOUR INFORMATION. NOR SHALL WE HAVE ANY RESPONSIBILITY IF AN INDIVIDUAL AUTHORIZED TO ACCESS YOUR INFORMATION (OTHER THAN AN EMPLOYEE OR AGENT OF MAPCOP) USES OR DISCLOSES THE INFORMATION IN AN UNAUTHORIZED MANNER.
WE CANNOT AND DO NOT GUARANTEE THE SECURITY OF THE SOFTWARE AND THE SERVICE. YOU SOLELY SHALL BE RESPONSIBLE FOR (1) YOUR OWN DATA AND MATERIALS, (2) ALL INFORMATION, INSTRUCTIONS AND MATERIALS PROVIDED BY YOU OR ANY AUTHORIZED USER IN CONNECTION WITH THE SERVICE, AND (3) THE SECURITY OF ALL ACCESS CREDENTIALS TO, AMONG OTHER THINGS, PROTECT AGAINST ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE.F. Limitation of Liability
NEITHER MAPCOP NOR ITS AFFILIATES SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS. THE MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO MAPCOP FOR THE SERVICES UNDER THE ORDER FORM THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST US SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THIS AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.G. Choice of Law; Arbitration
This agreement will be governed by and construed in accordance with the laws of the State of New York, which are intended to supersede any choice of laws rules, which might require the application of the laws of another jurisdiction. The parties will resolve any dispute arising out or relating to this agreement in the following manner: To initiate a dispute resolution, one party must deliver to the other a written dispute notice with a brief description of the disputed issues. Then, during the thirty (30) day period immediately following the date that the other party receives the dispute resolution notice, the parties will meet and negotiate to resolve the dispute(s) at issue. Any and all disputes that the parties are unable to resolve during any such thirty (30) calendar day period shall be decided by binding, final arbitration in New York, New York in accordance with the commercial arbitration rules of the American Arbitration Association ("AAA") before a single neutral arbitrator having at least ten (10) years’ experience with respect to license and/or software as a services agreements. The arbitrator shall be agreed upon by the parties, but if the parties are unable to agree on an arbitrator, the arbitrator shall be appointed by AAA. The arbitrator shall be selected within five (5) business days following the initiation of the arbitration proceeding by either party and the arbitrator shall make a final ruling within ninety (90) calendar days after the date of his or her appointment. The arbitrator’s decision shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the New York State Supreme Court, which may be made ex parte, for confirmation and enforcement of the decision. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitrator’s decision.H. Indemnification
You agree to defend, indemnify and hold harmless MapCop and its Affiliates, and their respective successors and assigns, from and against any and all losses, costs, liabilities, obligations, damages, deficiencies, expenses, actions, suits, proceedings, demands, assessments and/or judgments, including attorney’s fees (collectively, "Losses"), that are caused by, or result or arise from, any breach of these Terms of Service by you or the use of the Software or Service by you or your Authorized Users or any other person using the Software or Service under your password regardless of whether you gave such person permission to do so.
If a third party makes a claim against either you or us (the "Recipient", which term may refer to you or us depending upon which party received any information, design, specification, instruction, software, service, data or material ("Material")) that the Material furnished by either you or us (the "Provider", which term may refer to you or us depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend, indemnify and hold harmless the Recipient, and its successors and assigns, against all Losses in connection with such infringement or any settlement agreed to by the Provider, if the Recipient does the following:
- notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
- gives the Provider sole control of the defense and any settlement negotiations; and
- gives the Provider the information, authority and assistance the Provider needs to defend against or settle the claim.
If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the Provider for such Material. If we are the Provider of the Material and such return materially affects our ability to meet our obligations under this agreement, then we may, at our option and upon 30 days prior written notice, terminate this agreement. Notwithstanding the foregoing, the Provider will not indemnify the Recipient (a) if the Recipient alters the Material or uses it outside the scope of the use identified in the Provider’s user documentation or service policies, or (b) if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient, or (c) to the extent that an infringement claim is based upon (i) any Material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the Service (e.g. a third party Web page accessed via a hyperlink). We will not indemnify you (x) to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by us or, (y) for infringement caused by your actions against any third party if the Service delivered to you and used in accordance with the terms of this agreement would not otherwise infringe any third party intellectual property rights, or (z) for any infringement claim that is based on: (i) a patent that you were made aware of prior to the effective date of this agreement (pursuant to a claim, demand or notice); or (ii) your actions prior to the effective date of the agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
If a third party makes a claim against us based upon any Material furnished by you to such third party in connection with your utilization of the Software and Service, whether or not the functionality, in the form of a template or otherwise, to provide such Material is provided by the Software and Service, you agree to defend, indemnify and hold harmless MapCop and its Affiliates, and their respective successors and assigns, from and against any and all Losses that are caused by, or result or arise from, the furnishing of such Material.I. Term; Termination
Service provided under this agreement shall be provided for the period defined in the Order Form unless earlier terminated in accordance with this agreement. The term of the Service and any renewals are collectively defined as the "services term". At the end of the services term, all rights to access the Software to use the Service shall end.
You may terminate this agreement at any time and for any or no reason by providing us with written notice. In the event of such termination:
- All rights and authorizations granted by us to you hereunder shall terminate;
- You immediately shall cease all use of and not be entitled to access the Software or Service;
- We may disable your access and that of your Authorized Users to the Software and Service; and
- All Fees that would have become payable had this agreement remained in effect until the expiration of the services term will become due and payable immediately.
If you breach a material term of this agreement and fail to correct the breach within 10 days of written specification of the breach, then we may terminate this agreement. If we terminate this agreement as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for the Service ordered under this agreement plus related taxes and expenses. We may agree in our discretion to extend the 10 days period for so long as you continue reasonable efforts to cure the breach. You agree that if you are in default under this agreement, you may not use the Service.
In addition, we immediately may suspend your password, account, and access to or use of the Service (a) if you fail to pay us as required under this agreement and do not cure within the 10 days cure period, or (b) if you violate any provision within sections A, D, or M of this agreement. We may terminate the Service if any of the foregoing is not cured within 10 days after our initial notice thereof. Any suspension by us of the Service under this paragraph shall not excuse you from your obligation to make payment(s) under this agreement for the services term.
At your request, and for a period of up to 60 days after the termination of this agreement, we may permit you to access the Service solely to the extent necessary for you to retrieve a file of your data then in the Service environment. You agree and acknowledge that we have no obligation to retain your data and that your data may be irretrievably deleted after 60 days following the termination of this agreement.
Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, arbitration, indemnity, payment and others which by their nature are intended to survive.J. Confidentiality
By virtue of this agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). We each agree to disclose only information that is required for the performance of obligations under this agreement. Confidential Information shall be limited to the terms and pricing under the agreement, your data residing in the Service environment, and all information clearly identified as confidential at the time of disclosure.
A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
We each agree to hold each other’s Confidential Information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose Confidential Information only to those Affiliates who are required to protect it against unauthorized disclosure in a manner no less protective than under this agreement. We will protect the confidentiality of your data residing in the Service environment in accordance with our own internal security practices. Nothing shall prevent either party from disclosing the terms or pricing under this agreement in any legal proceeding arising from or in connection with this agreement or from disclosing the Confidential Information to a governmental entity as required by law.K. Force Majeure
You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data.M. Restrictions on use of the Services
You agree not to use or permit use of the Service, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, "junk mail", "spam" or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to us under this agreement, we reserve the right to remove or disable access to any material that violates the foregoing restrictions. We shall have no liability to you in the event that we take such action. You agree to defend and indemnify us against any claim arising out of a violation of your obligations under this section.N. Service Tools
We may use tools, scripts, software and utilities (collectively, the "tools") to monitor and administer the Service and to help resolve your Service requests. The tools will not collect, report or store any of your data residing in the Service environment, except as necessary to troubleshoot Service requests or other problems in the Service. Data collected by the tools (excluding production data) also may be used to assist in managing our product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any tape backup at any time following termination of the agreement.
If we provide you with access to or use of any tools in connection with the Service, your right to use such tools is governed by the license terms that we specify for such tools; however, if we do not specify license terms for such tools, you shall have a non-transferable, non-exclusive, limited right to use such tools solely to facilitate your administration and monitoring of your Service environment, subject to the terms of this agreement. Any such tools are provided by us on an "as is" basis and we do not provide technical support or offer any warranties for such tools. Your right to use such tools will terminate upon the earlier of our notice (which may be through posting on mapcop.com/support
or such other URL designated by us), the end of the service term, or the date that the license to use such tools ends under the license terms specified for such tools.O. Third Party Web Sites, Content, Products and Services
The Service may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. We are not responsible for any third party Web sites or third party content provided on or through the Service and you bear all risks associated with the access and use of such Web sites and third party content, products and services.P. General Contractual Provisions
If any provision of these Terms of Service shall be declared by a court to be invalid, illegal, or unenforceable, such provision shall be deemed severable from these Terms of Service and the other provisions shall remain in full force and effect. The failure of MapCop to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
MapCop may, in its sole discretion, change, modify, add or remove any portion of these Terms of Service at any time and without prior notice, and any changes will become effective and binding upon you after being posted to our Website unless we advise you otherwise.