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Evaluation Agreement

(1) MAPSCAPE LIMITED

(2) ELVALUATORS BUSINESS or ORGANISATIONAL NAME as entered by the Evaluator on the 14-day evaluation online order form.

14-Day EVALUATION AGREEMENT

THIS AGREEMENT is made on the Developer’s receipt of the 14-day evaluation online order form.

BETWEEN:

(1)       Mapscape Limited a company incorporated in England and Wales whose registered number is 12636138 and whose registered office is at 27 Old Gloucester Street, London, England, WC1N 3AX (“the Developer”) and

(2)      The Evaluator a UK-based Business or Organisation (“the Evaluator”) whose details are entered on the 14-day evaluation online order form.

WHEREAS:

(1)       The Developer is creating a new software product known as Mapscape™ incorporating ESRI technology (“the Software”) and has completed initial testing to a point where evaluation of the Software is now required.

(2)       The Evaluator has agreed to evaluate the Software for the Developer, subject to the terms and conditions of this Agreement including the ESRI Flow Down Terms.

IT IS AGREED as follows:

  1. Definitions and Interpretation
    • In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
Evaluation Period means the 14-day period for which the Software will be tested by the Evaluator as set out in Clause 5 of this Agreement;
Commencement Date means the date upon which the Evaluator is sent an email / online communication by the Developer containing the Mapscape™ login details;
Confidential Information means any information relating to the Software and includes all documentation, reports, and data produced by the Software;
Employee means any employee of the Evaluator unless specifically stated otherwise;
ESRI means the Developer’s technology partner, ESRI ArcGIS Online, which is a cloud-based software allowing users to create and share interactive web maps;
ESRI Flow Down Terms means the terms and conditions relating to the use of the ESRI technology which are appended at Appendix 1;
Licence means the licence granted by the Developer to the Evaluator as set out in Clause 3 of this Agreement;
On Site means at the location of the site being surveyed by the Evaluator;
Output Data means any data or other output produced by the front end of the Software; and
Premises means the Evaluator’s business premises located at [insert address].
  • Unless the context otherwise requires, each reference in this Agreement to:
    • “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
    • a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
    • “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
    • a Schedule is a schedule to this Agreement;
    • a Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule; and
    • a “Party” or the “Parties” refer to the parties to this Agreement.
  • The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
  • Words imparting the singular number shall include the plural and vice versa.
  • References to any gender shall include the other gender.
  1. Nature of the Agreement
    • The Developer requires the evaluation of the Software in a business environment by users that would normally use such a product in the course of their business.
    • The Evaluator has agreed to the evaluation of the Software at their Premises and On Site by Employees that would normally use such a product in the course of their employment.
    • The Evaluator shall assign Employees with the appropriate skills, qualifications and experience to test and evaluate the functionality, content and quality of the Software and shall put in place suitable measures for the collection of evaluation data from those Employees.
    •  
  2. Licence and Use of Software
    • The Developer grants to the Evaluator a non-exclusive licence to use the Software subject to the terms and conditions of this Agreement including the ESRI Flow Down Terms and as described herein.
    • Current known issues with the Software are listed at Schedule 1.
    • The Evaluator shall use the Software for evaluation purposes. If the Evaluator (including the Employees) uses the software commercially either as a system or in part it must advise its insurers and client/s of such use, and shall hold harmless the Developer in respect of any loss or liability arising The Evaluator is also referred specifically to sub-Clause 3.2 above and Clause 4 below.
    • The Evaluator shall not, without the prior written consent of the Developer, use the Software in any location except the Premises and On Site.
    • The Evaluator shall not make any copies of the software or installation media without the prior written consent of the Developer.
    • The Licence shall not be deemed to extend to any other software, programs or materials of the Developer other than the Software unless specifically agreed to in writing by the Developer.
    • The Evaluator acknowledges that it is licensed to use the Software only in accordance with the terms and conditions of this Agreement including the ESRI Flow Down Terms and not further or otherwise.
    • The Evaluator shall not at any time do or permit any act which may affect the Developer’s rights, title or interest in the Software.
    • The Evaluator acknowledges and agrees that all intellectual property rights in the Software vest in the Developer as owner and/or licensee and that the intellectual property in any improvements/modifications/additions that may be made as a consequence of the evaluation under this Agreement shall vest solely in the Developer and the Evaluator shall have no rights whatsoever thereto. The Evaluator hereby assigns (or shall procure the assignment) of all intellectual property rights in the feedback with full title guarantee (including by way of present assignment of future intellectual property rights) to the Developer at the time such feedback is first provided to the Developer.
  3. Disclaimer of Warranties and Liability
    • The Software is currently in development and is released solely for the purposes of evaluation. The Evaluator acknowledges that the Software is not a finished product and as such may contain defects.  The Software is provided “as is”.
    • The Developer makes no representation or warranty that the Software is suitable for use in a business environment or that it will produce accurate data which will be usable in the course of the Evaluator’s business.
    • The Evaluator acknowledges that data collected must be regularly backed up.
    • The Evaluator acknowledges that its use of the Software is at its own risk.
    • The Developer shall not be liable for any direct, indirect, consequential or incidental loss or damage of any kind resulting from or relating to the Software or its use, nor in respect of any use by the Evaluator of the CAD facility described at Schedule 2.
    • Nothing in this Agreement shall exclude the Developer’s liability for death or personal injury arising out of the Developer’s negligence.
  4. Evaluation Period
    • The Evaluation shall commence on the Commencement Date and continue for a period of 14 days or until terminated in accordance with Clause 9.
    • The Evaluation Period may extend beyond the period set out in sub-Clause 5.1 as the Parties shall mutually agree.
    • At the end of the Evaluation Period the Evaluators permissions to access and use the Software shall automatically cease to function.
    • At the end of the Evaluation Period the Evaluator may retain any and all Output Data produced by the Software.
  1. Software Updates
    • The Software may be updated from time to time during the Beta Test Period. In the event of any significant updates, the Developer will contact the Evaluator to discuss and provide information with regard to any new features, improvements and /or changes in functionality.
  2. Reports and Feedback
    • Throughout the Evaluation Period the Evaluator shall obtain input from all Employees and any other personnel assigned to evaluation the Software and shall use such input to compile feedback to the Developer on the performance of the Software. Such feedback shall be given to the Developer verbally by way of telephone conversation and in writing via email at regular intervals as reasonably requested by the Developer but at a minimum frequency of once every week.
    • Feedback should provide details of the Software’s performance including details of any errors, anomalies, omissions, shortcomings or similar faults. General feedback including comments and observations (both positive and negative) should also be included in reports.
    • Please note the provision of sub-Clause 3.9 with regard to the intellectual property rights in feedback and any consequential improvements/modifications/additions made by the Developer to the Software.
    • Where error reports or other diagnostic files are produced by the Software the Evaluator should ensure that such reports and files are sent to the Developer.
    • If the Software submits such reports and files automatically the Evaluator should ensure that all computers on which the Software is tested are connected to the internet. Please note: there is a limitation for use of the Software in areas where there is no Internet. Error reports can however be collected from the Software and/or from the Desktop as screenshots and emailed direct to the Developer.
    • If such reports and files are not sent automatically, the Evaluator shall take appropriate steps to ensure that they are manually sent to the Developer.
    • The Evaluator is encouraged to contact the Developer with any technical support and operational questions during business hours Mon – Fri 9.00am – 6.00pm Excluding Bank Holidays. The Developer will endeavour to respond to any queries as soon as reasonably possible and may suggest a Zoom/Teams call with a screen share session to investigate the issue in more detail.
    • In terms of support, the Developer may on occasion need to contact its technical team, who will assess the issue and reply back. This may involve waiting time depending on the nature of the issue in question.
    • There is no charge for any technical support relative to the Software.
    • There may be occasions where the issue is a limitation of the Software in its current form or the device operating system including the Evaluator’s individual settings or 3rd party software. In such circumstances the Developer will attempt to diagnose such issues and suggest solutions but does not undertake so to do.
  3. Confidentiality and Non-Disclosure
    • The Evaluator undertakes that, except as provided by sub-Clause 8.2 or as authorised in writing by Developer, it shall, at all times during the Evaluation Period and for a period of 5 years after its conclusion:
      • keep confidential all Confidential Information;
      • not disclose any Confidential Information to any other party;
      • not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of this Agreement;
      • not make any copies of, record in any way or part with possession of any Confidential Information; and
      • ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by the Evaluator, would be a breach of the provisions of sub-Clauses 8.1.1 to 8.1.4 above.
    • The Evaluator may:
      • disclose Confidential Information to:
        • any governmental or other authority or regulatory body; or
        • any of its employees or officers, including the Employees;
  1. to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case subject to the Evaluator first informing the person in question that the Confidential Information is confidential and obtaining an undertaking from the person in question, as nearly as practicable in the terms of this Clause, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
    • use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of the Evaluator, provided that in doing so the Evaluator does not disclose any part of that Confidential Information which is not public knowledge.
  • The provisions of this Clause 8 shall continue in force in accordance with their terms, notwithstanding the termination or expiry of this Agreement for any reason.
  1. Termination
    • The Developer shall be entitled to terminate this Agreement prior to the end of the Beta Evaluation Period in the event that the Evaluator:
      • has committed a material breach of this Agreement, unless such breach is capable of remedy, in which case the right to terminate immediately will be exercisable if the Evaluator has failed to remedy the breach within 2 days after a written notice to do so; or
      • goes into bankruptcy or liquidation either voluntary or compulsory (save for the purposes of bona fide corporate reconstruction or amalgamation) or if a receiver is appointed in respect of the whole or any part of its assets.
    • Any and all obligations of the Parties which either expressly or by their nature continue beyond the termination, cancellation or expiration of this Agreement shall survive termination under this Clause 9.
    • The provisions of sub-Clauses 5.4 and 5.5 shall apply in the event of termination under this Clause 9.
  2. Notices
    • All notices under this Agreement shall be in writing.
    • Notices shall be deemed to have been duly given:
      • when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
      • when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
      • on the second business day following mailing, if mailed by national ordinary mail, postage prepaid; or
      • on the fifth business day following mailing, if mailed by airmail, postage prepaid.
  1. in each case addressed to the most recent address, e-mail address, notified to the other Party.
  2. Relationship of Parties

Nothing in this Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between the Developer and the Evaluator.

  1. Assignment

The Evaluator may not assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement.

  1. Severance

The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement.  The remainder of this Agreement shall be valid and enforceable.

  1. Entire Agreement
    • This Agreement embodies and sets forth the entire agreement and understanding between the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement. Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement, save for any representation made fraudulently.
    • Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both of the Parties.
  1. Personal Data

The Developer will deal with any personal data which it processes and/or controls in consequence of this Agreement as set out in its privacy policy available at: www.mapscape.co.uk/privacy.

  1. Law and Jurisdiction
    • This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
    • Any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.

SCHEDULE 1

INSERT LIST OF KNOWN DEFECTS & WEAKNESSES

Please refer to www.mapscape.co.uk/frequently-asked-questions/ – where under the top section titled: Getting Started > Limitations, the Developer has listed the known areas of defects and weaknesses.

We are continually working on the product to improve its functionality and user experience. We welcome your product feedback, as we are keen to hear and understand your view.

SCHEDULE 2

INFORMATION RE: TREE SURVEY DATA

  • Importing and exporting CAD (DWG) drawings is not included in the 14-day Evaluation.
  • Mapscape works with the free ESRI ArcGIS for AutoCAD plugin which can be seen at: www.esri.com/en-us/arcgis/products/arcgis-for-autocad – we do not provide any technical support for this plugin.
  • During the 14-day evaluation period, we will supply you with a limited amount of data storage space. If you reach 75% of your data allocation, we will email you to advise you to have reached 75% of your evaluation allowance. If you reach 100% no further data will be able to be added.
  • We recommend that you delete photographs and any other large file-size formats such as videos as soon as possible.
  • You have the option to import (Add data) 3rd party geospatial data as the software allows, such as Ordnance Survey Mastermap data in respect of Ordnance Survey copyright and their OS partner organisation 3rd party terms.
  • Any imported data will be automatically deleted at the end of the 14-day evaluation period.

SCHEDULE 3

14-Day Evaluation Period

Introduction:

  • The purpose of this 14-day Evaluation period is for the Evaluator to use the software for the decision to purchase a subscription.
  • There is no computer code to evaluate. It is purely the user experience of using the software
  • We reserve the right to refuse any business or organisational details that in the sole description of Mapscape are considered Spam.
  • Upon receipt and approval of this agreement, to get you up and running, we will contact you to arrange a convenient date and time for a Video call to guide you through the login process, provide a helicopter walkthrough and answer any operational questions you might have.
  • During the 14-day Evaluation period, we encourage you to contact us on: 01244 630808 at any time Mon-Fri 9.00am – 6.00pm (excluding Bank holidays) period with any questions you might have.

List of known issues:

  • Software features and processes that are in development and/or are known to need additional work or identified as having defects or weaknesses are listed above in SCHEDULE 1.
  • This list may not be complete and includes discovery and ongoing solutions improvements.

End of 14-day Evaluation Teams meeting:

  • Toward the end of the 14-day Evaluation, we will contact you to ask for your feedback, which is important to us in the development of the product.
  • The Evaluator agrees to provide the Developer with their user experience feedback.
  • The intellectual property rights of any additions, modifications, or improvements which we make to the Software because of suggestions made to us during the 14-day Evaluation agreement including in feedback and in meetings vest in Mapscape in accordance with Clause 3.9.

Evaluator Feedback:

There is no charge for the 14-day Evaluation period and any technical support provided.

The Developer would however ask and would greatly appreciate if during or following the 14-day Evaluation the Evaluator would:

  • Post on social media including Facebook and LinkedIn, your experience using Mapscape and tag in David Winlo (Mapscape. You can use screenshots of Mapscape, although not Videos with the written permission of Mapscape.

Provide a Testimonial and Receive a £50.00 Gift

  • If within 30 days following the Evaluation period, Mapscape receives a Testimonial that we host on the website, the Evaluator will be provided with a £50.00 gift as a BACS money transfer. Only one £50.00 gift is available per business or organisation. Please visit: www.mapscape.co.uk/testimonial-request/
  • Upon receipt and approval of the testimonial for web hosting, we will contact you to arrange payment. This offer is at the sole discretion and approval of Mapscape.
  • The Evaluator during and following the Evaluation period of up to 30 days, agrees to receive occasional emails and phone calls from the Developer to receive the Evaluation feedback and where accepted to arrange the above £50.00 gift offer, or, to be instructed that the offer is not required.

Updated: 03 March 2024

APPENDIX 1

ESRI FLOW DOWN CONDITIONS

  1. Disclaim, to the extent permitted by applicable law, Esri, its licensors and Distributor’s liability for any damages or loss of any kind, whether direct, special, indirect, incidental, or consequential, arising from the use of the Hosted Solutions including, but not limited to, liability for use of Hosted Solutions in high-risk activities or liability related to any Data supplied by Esri for Distributor.
  2. Require Solution Delivery End User at the time of termination of the Esri Partner Network Agreement or this Attachment A or use of Hosted Solutions to (i) cease access and use  of the terminated Authorized Sublicense Material in Hosted Solutions, and (ii) clear anyclient-side data cache derived from the terminated Authorized Sublicense Material in Hosted Solutions.
  3. Require all Solution Delivery End Users to comply fully with all relevant export laws and regulations of the United States, including, but not limited to, the Export Administration Regulations (EAR), including prohibited end users and end uses as referenced in Part 44 and Supplement No. 4 to Part 44 of the EAR

(https://www.bis.doc.gov/index.php/documents/regulations-docs/2343-part-744-control-policy-end-user-and-end-use-based-2/file and

https://www.bis.doc.gov/index.php/documents/regulations-docs/2347-744-supp-4-6/file);

International Traffic in Arms Regulations (ITAR); and the United States Department of Treasury, Office of Foreign Assets Control (OFAC) regulations, and to ensure that Esri products, or any direct product thereof, are not                exported, reexported, transferred, diverted, used, or accessed, directly or indirectly, in violation of any United States export laws and regulations. When applicable, Partner and any Solution Delivery End Users will provide            Esri with information about Partner and Solution Delivery End Users’ export and distribution activities as may be required for Esri to meet its obligations under the United States export control laws and regulations.

  1. Prohibit the removal or obscuring of any patent, copyright, trademark, proprietary rights notices, or legends contained in or affixed to any Authorized Sublicense Material, output, metadata file, or online or hard-copy attribution page of any Data with respect to Authorized Sublicense Material.
  2. Disclaim all terms in the Esri Click-Through Master Agreement (E204CW) included with Authorized Sublicense Material. Esri and its licensors do not warrant that Data and Authorized Sublicense Material will meet the Solution Delivery End User’s needs or expectations; that the use of Data, Authorized Sublicense Materials, and Hosted Solutions will be uninterrupted; or that all nonconformities can or will be corrected. Esri and its licensors are not inviting reliance on Data in Authorized Sublicense Materials, and Solution Delivery End User should always verify actual Data in Authorized Sublicense Materials. Any warranty offered by Partner for the Partner Hosted Solutions shall only apply between Partner and its Solution Delivery End Users. Esri does not offer any warranties or indemnities to Solution Delivery End User for the Authorized Sublicense Material.
  3. Prohibit Solution Delivery End Users from using Authorized Sublicense Material for any revenue-generating activities. Authorized Sublicense Material in Hosted Solution is for the internal use of Solution Delivery End Users only.
  4. Prohibit Solution Delivery End Users from using Authorized Sublicense Material independently from Hosted Solution or in any other product or service.
  5. Prohibit Solution Delivery End User from storing, caching, using, uploading, distributing, or sublicensing content or otherwise using Authorized Sublicense Material in violation of Esri’s or a third-party’s rights, including intellectual property rights, privacy rights, non-discrimination laws, export laws, or any other applicable law or regulation.
  6. Prohibit sharing of Named User login credentials. These are for designated Solution Delivery End Users only and may not be shared with other individuals. A license may be reassigned to another Solution Delivery End User if the former user no longer requires access to the Hosted Solution.

DATED: 13th Aug 2023