These GENERAL TERMS AND CONDITIONS may be modified at any time; the applicable version is the one available on the WEBSITE at the time the order is placed

1. DEFINITIONS

1.1. Client

shall mean the legal entity which has access to SPOT Ortho Online SERVICE. When the CLIENT is a government entity (civil agency, public department, ministry…), it shall be deemed to be only such part of the government entity as located at the address indicated in the registration form.

1.2. Client Account

shall mean the CLIENT account from which the CLIENT is authorised to use SPOT Ortho Online SERVICE, by using its personal key and password.

1.3. GENERAL TERMS AND CONDITIONS

shall mean the present general terms and conditions for the SPOT Ortho Online SERVICES.

1.4. Orthorectified Source File

shall mean any SOURCE FILE orthorectified by Spot Image under a SERVICE.

1.5. Product

shall mean all or part of a SCENE orthorectified by Spot Image.

1.6. Scene

shall mean any SPOT® satellite image referenced at Spot Image and available on the WEBSITE.

1.7. Service

shall mean any service provided by Spot Image and consisting in the orthorectification of a SOURCE FILE.

1.8. Source File

shall mean any file of the CLIENT which contains any SPOT or Formosat-2 satellite image, uploaded by the CLIENT to Spot Image’s WEBSITE and which shall be orthorectified. Each SOURCE FILE shall include a raster file and a metadata file.

1.9. SPOT Ortho Online Service

shall mean any service offered by SPOT IMAGE on the WEBSITE enabling the CLIENT to order online PRODUCTS and/or SERVICES.

1.10. Website

shall mean Spot Image’s website from which the CLIENT may access SPOT Ortho Online SERVICE and available on http://spotortho.spotimage.com.

2. GENERAL

All the supply of SPOT Ortho Online SERVICES shall be governed by these GENERAL TERMS AND CONDITIONS. Any clause or condition stating otherwise which appears in any document addressed by the CLIENT to Spot Image shall be ineffective against Spot Image.

3. SPOT Ortho Online SERVICE ACCESS CONDITIONS

3.1.

The access to any SPOT Ortho Online SERVICE is subject to the prior registration of the CLIENT. Unless otherwise agreed by Spot Image, any registration request concerning SPOT Ortho Online SERVICES shall be accompanied with a registration form duly filled, available on the WEBSITE or provided by Spot Image. Upon examination of the registration request, Spot Image shall confirm to the CLIENT its acceptance or refusal of the registration. The acceptance of the registration of the CLIENT shall result in the creation of a CLIENT ACCOUNT from which the CLIENT may order SPOT Ortho Online SERVICES. The CLIENT warrants that any information given to Spot Image for the registration to SPOT Ortho Online SERVICES is accurate and that it shall inform Spot Image immediately upon modification of such information.

3.2.

These GENERAL TERMS AND CONDITIONS are deemed to be irrevocably accepted by the CLIENT upon registration to SPOT Ortho Online SERVICES.

3.3.

Upon creation of the CLIENT ACCOUNT, Spot Image will provide the CLIENT with its personal key and password. The CLIENT shall modify its password immediately upon its first access to SPOT Ortho Online SERVICES.

3.4.

The CLIENT is responsible for any use of SPOT Ortho Online SERVICES from its CLIENT ACCOUNT. Spot Image will record any operation made from the CLIENT ACCOUNT, which shall constitute evidence of the ordering. Spot Image reserves the right to suspend the access of the CLIENT to SPOT Ortho Online SERVICES if Spot Image consider that the CLIENT ACCOUNT may be used by a third party.

4. TERM – Termination – Suspension

4.1. Term

The registration and the CLIENT ACCOUNT shall be valid until it is terminated by either party.

4.2. Termination

Spot Image may terminate for convenience the registration of the CLIENT and the CLIENT ACCOUNT at any time, without prior notice and without having to pay any indemnity or damages of any kind. The CLIENT may terminate its registration, without indemnity, with a fifteen (15) days prior notice.

In the event of termination of the registration, the order already received and confirmed by Spot Image shall continue to be performed, without prejudice to Spot Image’s right to terminate any order according to article 14 - CANCELLATION.

4.3. Suspension

Spot image may suspend immediately the access to the CLIENT ACCOUNT and/or the performance of any order if the CLIENT fails to comply with any provision of theses GENERAL TERMS AND CONDITIONS.

5. ONLINE ORDERS

Notwithstanding any clause to the contrary, the GENERAL TERMS AND CONDITIONS apply to any order placed by a CLIENT on the WEBSITE. By clicking the “Confirm your order” button, the CLIENT validates its order. Spot Image reserves the right to accept or refuse any order, at its sole discretion.

In any case, Spot Image shall be bound by no order unless it has been expressly confirmed by email by Spot Image. For the sake of clarification, automatic acknowledgements of receipt received by the CLIENT shall not be considered as a confirmation of the order by Spot Image.

5.1. Product Orders

The CLIENT may order online a PRODUCT, by selecting on the WEBSITE the corresponding SCENE. Upon validation of the order by the CLIENT, the latter shall receive an automatic acknowledgement of receipt detailing the order conditions. Then Spot Image shall, in reasonable time, send to the CLIENT a confirmation order by email.

The CLIENT acknowledges and warrants that it has read and fully accepted the “CONDITIONS APPLICABLES TO THE SUPPLY OF PRODUCTS”, as detailed below, which apply to any online order of PRODUCT.

5.2. Service Orders

Any online order of SERVICE shall be accompanied with a SOURCE FILE uploaded by the CLIENT on the WEBSITE. Upon validation of the order by the CLIENT, the latter shall receive an automatic acknowledgment of receipt detailing the order conditions. Spot Image will perform a feasibility study of the order, and then send to the CLIENT an email confirming the order, or inform the CLIENT that its order has been rejected.

The CLIENT acknowledges and warrants that it has read and fully accepted the “CONDITIONS APPLICABLES TO THE SUPPLY OF SERVICES”, as detailed below, which apply to any online order of SERVICE.

6. DELIVERY – TRANSFER OF RISKS

6.1. Terms of Delivery

The delivery times indicated on the WEBSITE are given for information only and are not binding. Any overrun of the term of delivery does not authorize the CLIENT to refuse the total or partial delivery of the PRODUCTS and/or the ORTHORECTIFIED SOURCE FILES, nor to claim any indemnity whatsoever. Should Spot Image, for any reason, find itself through its doing unable to deliver the PRODUCTS and/or ORTHORECTIFIED SOURCE FILES ordered, the CLIENT shall be entitled only to a refund of the price, without any indemnity of any nature whatsoever.

6.2. Delivery Conditions

All PRODUCTS and/or ORTHORECTIFIED SOURCE FILES are delivered online through FTP server. An electronic message shall be sent automatically to the CLIENT to inform him about the availability of the PRODUCTS and/or ORTHORECTIFIED SOURCE FILES. Unless otherwise indicated, the CLIENT shall then have a deadline of ten (10) days, starting from the said electronic message, to download the PRODUCTS and/or the ORTHORECTIFIED SOURCE FILES ordered. Should the CLIENT not download the ordered PRODUCTS and/or ORTHORECTIFIED SOURCE FILES within the time allowed, the CLIENT may, within six (6) months from the date of the initial availability, request Spot Image to place the PRODUCTS and/or the ORTHORECTIFIED SOURCE FILES available back on the delivery server for an additional ten (10) days period, for an additional payment of two hundred (200) Euros for management costs.

6.3. Transfer of Risks

The risks pertaining to the PRODUCTS and/or ORTHORECTIFIED SOURCE FILES sent shall be transferred to the CLIENT as from the placing of the PRODUCT and/or ORTHORECTIFIED SOURCE FILE on the delivery server.

7. PRICES

Prices are displayed in the WEBSITE in Euro, exclusive of taxes, “Ex-Works” (Incoterms C.C.I. 2000), and are without prejudice to specific pricing conditions agreed between Spot Image and the CLIENT. Prices may be modified by Spot Image at any time.

In all cases, the customs charges and taxes shall be borne exclusively by the CLIENT.

8. PAYMENTS

For each order confirmed, Spot Image shall send an invoice to the CLIENT.

All Spot Image invoices are payable without discounts or reductions. Unless otherwise stated, the payment must be made by transfer at the latest thirty (30) days after the PRODUCTS and/or the ORTHORECTIFIED SOURCE FILES are made available. The sums shall be credited to the Spot Image account appearing on the order confirmation and/or the invoice. All overdue sums, totally or partially, shall carry, after formal notice to pay addressed in writing to the CLIENT, interest at a rate of 1.5%, (one and a half percent) per month, from the due date until the actual date of payment. Without prejudice to any other action, Spot Image reserves the right to apply one or more of the following provisions:

• to suspend the current orders until complete payment of the price;
• to refuse all future orders;
• to suspend the licence of use and/or the right to make added value on the PRODUCTS and/or ORTHORECTIFIED SOURCE FILES;
• to claim and obtain the refund of all the costs incurred as the result of the contentious recovery of the sums due, including the legal fees;
• to bring a legal action in order to defend the interests of Spot Image.

In any case, payments may not be suspended, nor form the subject of any compensation, without prior written consent by Spot Image.

By express agreement, any term not respected or renewed by the CLIENT shall cause ipso facto the cancellation of payment deadlines which may have been granted upon confirmation of the order. Spot Image shall then be able to claim immediate payment of all outstanding invoices. Concerning the non-delivered quantities, Spot Image shall be able to either claim payment before collection, or cancel the balance of the order, without prejudice to any other damages.

9. REPSONSIBILITY – LIABILITY - GUARANTEE

9.1.

The CLIENT declares that it has knowledge in the area of satellite imagery and that it is fit to define the characteristic of its needs and of the suitability of the PRODUCTS and/or SERVICES to their satisfaction, as Spot Image shall provide as regards the PRODUCTS and/or SERVICES no advice or recommendation whatsoever in this respect. Consequently, it shall be for the CLIENT to decide on the use of the PRODUCTS and/or SERVICES marketed by Spot Image, and Spot Image shall under no circumstances be held responsible as regards the suitability of these PRODUCTS and/SERVICES concerning any use whatsoever.

9.2.

Spot Image shall endeavour to satisfy the CLIENT's request by delivering PRODUCTS and/or SERVICES which comply with its order. However, these PRODUCTS and/or SERVICES being complex, Spot Image can under no circumstances neither guarantee them against any hidden defect or fault nor warrant that any non conformity will or might be corrected. Spot Image's guarantee shall be limited either to the replacement of the PRODUCT or SERVICE carrying an apparent bad workmanship defect if they are available, or to the refund of the PRODUCT and/or SERVICE, with the exclusion of any indemnity or damages. Any claim concerning the apparent defects, quality, quantity and/or non-conformity of the PRODUCT and/or SERIVCE must, to be admissible, be well-founded and duly formulated in a recorded delivery letter at the latest seven (7) days after the receipt of the PRODUCTS and/or ORTHORECTIFIED SOURCE FILES by the CLIENT. This deadline can under no circumstances exceed one (1) month as from the initial date of availability of the PRODUCT and/or ORTHORECTIFIED SOURCE FILE. No return of the PRODUCTS and/or ORTHORECTIFIED SOURCE FILE shall be accepted without prior written consent by Spot Image.

9.3.

In addition to the apparent defects insufficiently indicated upon receipt of the PRODUCT or ORTHORECTIFIED SOURCE FILE concerned, shall also be excluded the defects or deterioration caused by an external accident (erroneous assembly or loading, faulty maintenance, abnormal use...) or by a modification of the PRODUCT and/or ORTHORECTIFIED SOURCE FILE which has not been planned nor specified by Spot Image.

9.4.

Under no circumstances can Spot Image , nor anybody having contributed to development and/or production and/or delivery of the SPOT Ortho Online SERVICES be held responsible, on the basis of responsibility for product defects, for the damages caused to the CLIENT's goods which are useful for his profession. The CLIENT shall not be able to bring an action against Spot Image on this ground.

9.5.

In no event shall Spot Image, nor anybody having contributed to development and/or production and/or delivery of the PRODUCT and/or SERVICE and/or SPOT Ortho Online SERVICE, be liable for any claim, damage or loss incurred by the CLIENT or a third party, including without limitation indirect, compensatory, consequential, incidental, special, incorporeal or exemplary damages arising out of the use of or inability to use the PRODUCT and/or SERVICE and/or SPOT Ortho Online SERVICE, and shall not be subject to legal action on this ground.

9.6.

In any case, the financial cumulative liability of Spot Image and of anybody having contributed to development and/or production and/or delivery of the SPOT Ortho Online SERVICES is limited to the price paid by the CLIENT to Spot Image for such SPOT Ortho Online SERVICES.

10. NON-EXCLUSIVITY

No CLIENT shall be able to claim an exclusive right of use on any PRODUCT and/or SERVICE.

11. CONFIDENTIALITY

The CLIENT commits itself, for a period of five (5) years, to consider confidential all information, of any nature whatsoever, which it may have obtained as a result of or on the occasion of the use of Spot Ortho Online SERVICES or the supply of the PRODUCT or ORTHORECTIFIED SOURCE FILE. The CLIENT guarantees Spot Image that his personnel and sub-contractor shall respect and maintain the confidentiality of the said information. The non-respect of this confidentiality clauses shall lead to the immediate termination of the contractual relationship, which the CLIENT shall be exclusively responsible for.

12. TRADEMARKS

The CLIENT hereby acknowledges that the trademarks registered by Spot Image are the property of the latter. The supply to the CLIENT by Spot Image confers on the CLIENT no right to use the SPOT®, Spot Image® and SPOTView® trademarks and logographs, without prejudice to Article 1 of the CONDITIONS APPLICABLES TO THE SUPPLY OF PRODUCTS.

13. FORCE MAJEURE

Spot Image cannot be considered to be failing to meet its contractual obligations if these failures are due to the occurrence of a Force Majeure. Force Majeure designates all the occurrences which are beyond the reasonable control of Spot Image, of any nature whatsoever, and in particular all breakdowns of a SPOT satellite in activity and/or of another satellite of which Spot Image distributes the PRODUCTS and/or of the SPOT system, natural catastrophes, bad weather, fires, collective work disputes, strikes, sabotage, embargoes, interruptions or delays in the transport or means of communication, war, acts or regulations issued by the French government, by public, civil or military authorities (including delays in the obtainment of authorizations or licences of any sort), by the U.N., which may occur as from the date of the order and would prevent its total or partial execution.

14. CANCELLATION

Should all or part of the price not be paid on the due date, or should the CLIENT not comply with any provision of the GENERAL TERMS AND CONDITIONS or specific conditions, Spot Image reserves the right to cancel immediately the supply and all other supplies being carried out, by sending of a letter expressing the intention of Spot Image to use this clause. The advance payments paid on the price of the orders cancelled shall be retained by Spot Image without prejudice to any other dues, costs, interests or damages that the CLIENT may be ordered to pay.

15. JURISDICTION AND LAW APPLICABLE

All controversies between the parties shall be settled under the arbitration of the Commercial Court of Toulouse.

The law applicable shall be French law.

16. FINAL PROVISION

Should Spot Image not take advantage, at any moment, of any one of the provision of the GENERAL TERMS AND CONDITIONS, this cannot be interpreted as constituting a renunciation or relinquishment, by Spot Image, of any one of its rights, nor shall it affect the validity of all or part of the GENERAL TERMS AND CONDITIONS, nor shall it constitute an obstacle to any future action by Spot Image.

The CLIENT shall not transfer part or all of its rights and obligations under the GENERAL TERMS AND CONDITIONS without Spot Image’s prior written consent.

"DERIVATIVE WORKS": means any derivative product or information developed by the CLIENT from the PRODUCT, which does not contain any imagery data from the PRODUCT and is irreversible and uncoupled from the source imagery data of the PRODUCT. Notwithstanding the foregoing, by express exception, any Digital Elevation Model or Digital Terrain Model (in any form whatsoever, i.e. database for instance) derived from a PRODUCT shall never be considered as DERIVATIVE WORKS.

"VAP": means any product developed by the CLIENT, which contains imagery data from the PRODUCT, and resulting in a significant modification of the PRODUCT, through technical manipulations and/or addition of other data. Notwithstanding the foregoing, by express exception, any Digital Elevation Model or Digital Terrain Model derived from a PRODUCT shall always be considered as a VAP.

1 - LICENCE

1.1. Permitted Uses

The CLIENT is hereby granted by Spot Image a limited, non-exclusive, non transferable, licence, hereinafter the “End-User Licence Agreement”):

• (a) to install the PRODUCT on as many individual computers as needed in its premises, including internal computer network (with the express exclusion of the internet, except as provided under paragraph (g) below) for the Permitted Uses under paragraphs (b) to (i) below;
• (b) to make a maximum of ten (10) copies for (I) installation of the PRODUCT as per paragraph (a) above and (II) archiving and back-up purposes;
• (c) to use the PRODUCT for its own internal needs;
• (d) to alter or modify the PRODUCT to produce VAPs and/or DERIVATIVE WORKS;
• (e) to use any VAP for its own internal needs;
• (f) to make available the PRODUCT and/or any VAP to contractors and consultants, only for use on behalf of the CLIENT, subject to such contractors and consultants agreeing in writing, in advance, (I) to be bound by the same limitations on use as applicable to the CLIENT, and (II) to return the PRODUCT and VAP to CLIENT, and to keep no copy thereof, upon completion of the contracting or consulting engagement;
• (g) to post one extract, maximum size 1024 x 1024 pixels, of any PRODUCT or VAP on an internet site, in an internet-compatible image format (without associated metadata), with the following credit conspicuously displayed: “includes material © CNES _____(year of production), Distribution Spot Image S.A., France, all rights reserved” written in full. The posting of such an extract shall be used for CLIENT activity promotion purposes only (and only if such activity and/or promotion do not relate to the provision of online mapping and location-based services), and may in no event allow downloading of the extract posted, nor be used to distribute, sell, assign, dispose of, lease, sublicence or transfer such extract.
  Prior to any posting, the CLIENT shall inform Spot Image, specifying the URL address used by CLIENT: sales@spotimage.com;
• (h) to print any extract, maximum size 1024 x 1024 pixels, of a PRODUCT or a VAP, and to distribute such print for promotion purposes only. Such print shall include the following credit conspicuously displayed: “includes material © CNES _____(year of production), Distribution Spot Image S.A., France, all rights reserved” written in full;
• (i) to freely use and distribute DERIVATIVE WORKS. Notwithstanding the foregoing, the CLIENT shall not be entitled to sell, distribute, assign, dispose of, lease, sublicence or transfer, directly or indirectly, any DERIVATIVE WORKS to any third party established, incorporated or located in the territory of Canada. Before any sale, distribution, assignment, lease or transfer of any DERIVATIVE WORKS, the CLIENT shall obtain from his customer the written commitment to comply with this restriction, and shall obtain from him that it be passed on to any and all users of the DERIVATIVE WORKS.

All rights not expressly granted by Spot Image under the present Article 1.1 are hereby retained by Spot Image.

1.2. Prohibited Uses

The CLIENT recognizes and agrees that the PRODUCT is and shall remain the property of Spot Image, and contains proprietary information of Spot Image and thus is provided to the CLIENT on a confidential basis.

The CLIENT shall not, and shall cause any contractor or consultant engaged as per the provisions of Article 1.1(f) not to, do any of the following:

• do anything not expressly authorized under Article 1.1; and
• alter or remove any copyright notice or proprietary legend contained in or on the PRODUCTS.

2 – INTELLECTUAL PROPERTY RIGHTS

2.1.

The satellite imagery data contained in the PRODUCT are the property of Centre National d’Etudes Spatiales (CNES), France.

2.2.

The PRODUCT is protected by French and international copyright laws.

2.3.

In addition, the PRODUCT and the satellite imagery data contained therein are protected by articles L 341-1 to 343-4 of the French Code of Intellectual Property Law as amended by the statute of 1 July 1998, relative to database copyright and to similar statutes in European countries that have incorporated EU Directive n° 96/9 of 11 March 1996 on database copyright into their laws.

3 – MISCELLANEOUS

3.1.

This End-User Licence Agreement shall run for an unlimited term. Spot Image may, in addition to all other remedies to which it may be entitled under this End-User Licence Agreement, the GENERAL TERMS AND CONDITIONS or at law, terminate immediately this End-User Licence Agreement by notice in writing if the CLIENT breaches any provision of this End-User Licence Agreement. The CLIENT shall have no claim to any kind of refund in this case. Upon termination, the END-USER shall return to Spot Image the PRODUCTS and VAPs.

3.2.

This End-User Licence Agreement is governed by the laws of France. All disputes shall be referred to the courts of Toulouse, France.

1. INTELLECTUAL PROPERTY

1.1. Client’s Intellectual Property

The CLIENT represents and warrants that it has all intellectual property rights on the SOURCE FILES necessary to use them in the framework of the SERVICE.

Spot Image is hereby granted by the CLIENT a limited, non exclusive and non transferable licence to use the SOURCE FILE for the provision of the SERVICE.

The CLIENT shall indemnify, defend and hold harmless Spot Image, from and against any and all liability, expense (including defense costs and legal fees), and claims for damage of any nature whatsoever arising from or connected with any actual or alleged infringement of any intellectual property rights on the SOURCE FILE.

1.2. Spot Image’s Intellectual Property

The Reference3D products used for the provision of the SERVICES are the joint property of Spot Image and IGN France.

The satellite image data constituting the Reference3D products are the property of Centre National d’Etude Spatiales (CNES).

The CLIENT has no right on such Referenced3D and data and commits to respect such intellectual property rights.

2. LIABILITY - WARRANTY

2.1.

SOURCE FILES downloaded on the WEBSITE shall comply with technical specification of Spot Image and be compatible with the SERVICE. Without prejudice of the provisions of article 9 Responsibility-Liability-Guarantee of the GENERAL TERMS AND CONDITIONS, Spot Image shall not be liable for any damage resulting from a non performance or bad performance of its obligations, if such non performance or bad performance results in the incompatibility or non compliance with specifications of the SOURCE FILES.

2.2.

Prior any transfer of a SOURCE FILE to Spot Image, the CLIENT shall keep a copy of such SOURCE FILE for backup purposes. Spot Image shall in no event be liable for damage resulting from the loss or destruction of the SOURCE FILE transferred by the CLIENT.