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ONTARIO GEOSPATIAL DATA EXCHANGE DATA LICENCE AGREEMENT

1.0 DEFINITIONS

In this Agreement, the following terms shall have the meanings set out below: "Data" means the unrestricted, non-confidential, Ontario-related, original data, databases and data layers in any fixed digital form which contain references to physical locations referenced to the earth's surface, including without limitation, as applicable, Metadata, corrections, improvements, updates and other changes and software and documentation made available by Licensor under this Agreement but excluding Restricted Data, as described in Schedule 1 attached to and forming part of this Agreement;

"Derivative Product" means any data product or service in any fixed digital form or otherwise which includes or is created by the use, modification or manipulation of any of the Data that, ifcreated or produced without authorization, would infringe the copyright of the owner of the Data;

"Effective Date" means the date Licensee requested Licensor or its agent OMNR to provide under the Agreement the Data described in Schedule 1 of the Agreement;

"Exchange" or "OGDE" means the Ontario Geospatial Data Exchange established in 2002 to promote and facilitate the sharing and distribution of Data and forming part of the Ontario Land Information Infrastructure for which OMNR is responsible; it is comprised of members (e.g. Government Ministries, Departments and Agencies and not for profit corporations with a public interest mandate eligible to join the Exchange which have executed the OGDE Membership Application Form and whose membership is current and in good standing) which agree to share Data among themselves using this Agreement, as amended by OMNR from time to time;

"Intellectual Property Rights" means all intellectual property rights recognized by law, including but not limited to intellectual property rights protected through legislation such as copyrights and patents;

"Metadata" means information which describes the collection or creation of associated Data (e.g. date, purpose, methods used, access or use constraints and ownership) and maintenance (e.g. frequency) of such Data, such information being used for discovering Data and determining the suitability of a data product or service;

"OMNR" means the Ontario Ministry of Natural Resources;

"Ontario Land Information Infrastructure" and "Central Distribution Facility" or "CDF" mean the central repository for geospatial land-related information for Ontario created, owned and managed by OMNR whose mandate is to coordinate the collection, mapping and integration of such information and includes for the purpose of this Agreement the storage, management and distribution of Data supplied by Exchange members; and

"Restricted Data" means any original data, databases and data layers in any fixed digital form which contain references to physical locations referenced to the earth's surface which are identified in writing by Licensor as personal, confidential or sensitive in accordance with legislation, regulations, directives or policies applicable to Licensor.

2.0 Licences; Delivery of Data

2.1 Licensor hereby grants and Licensee hereby accepts subject to the terms and conditions of this Agreement a non-exclusive, paid up, royalty free, non-transferable, perpetual licence under Intellectual Property Rights in the Data:

1. to access, use, reproduce, store, retrieve, transmit, modify, improve and further develop any of the Data, in whole or in part, in any form and by any means and create and produce Derivative Products for any purpose consistent with Licensee carrying out any of its legal obligations pertaining to the geographic area within its mandate as well as to sublicense within the scope of the licence any of its agents and contractors (which, in the case where Licensee is a post-secondary educational institution or school board, will be deemed to include non-employee instructors and students registered at Licensee who wish to access any of the Data) to do any or all of the above provided such agents and contractors that Licensee wishes to sublicence hereunder agree in writing with Licensee prior to being provided access by Licensee to any of the Data to comply with the terms and conditions of this Agreement as applicable to their activities for Licensee under the sublicence; and
2. to make available and supply to third parties (other than Licensee's agents and contractors covered under subparagraph (a) above) any or all Licensee's Derivative Products created or produced under this Agreement but only in the form of paper maps or in a digital format that emulates paper maps or through a display over the Internet for any purpose consistent with Licensee carrying out any of its legal obligations pertaining to the geographic area within its mandate for free or priced primarily on a cost recovery basis only subject to the following restrictions:
   1. any Derivative Products displayed over the Internet cannot in any circumstance allow any Data licensed hereunder and included in or used by such Derivative Products to be downloaded over the Internet; and
   2. should any Derivative Products be made available or supplied in a digital format that emulates paper maps, such format cannot allow any such Derivative Products to be reverse engineered, decompiled or otherwise transformed to allow any Data licensed hereunder and included in or used by such Derivative Products to be recreated.

2.2 Licensee shall not make available or supply directly or indirectly any of the Data obtained by it under this Agreement to any other Exchange member or third party unless previously authorized in writing by Licensor.

2.3 Licensee shall include the following notice on all reproductions of the Data made by or for Licensee and any proprietary or other notices contained in or displayed by the Data as received under this Agreement and Licensee agrees not to remove or destroy any such notices:

"© (insert Licensor's name), (insert year of Data creation or publication). All rights reserved."

Licensee shall also include the proprietary notices, if any, set out in Schedule 1 on all Derivative Products created or produced by or for Licensee under this Agreement to advise of Licensor's Intellectual Property Rights in any Data included in or used, modified or manipulated to create such Derivative Products.

2.4 Licensor agrees to deliver one copy of the Data described in Schedule 1 following the Effective Date of the Agreement to Licensee's designated representative referred to in Section 6.1 below. Unless Licensee notifies Licensor of a delivery problem in writing within thirty (30) days of delivery of the Data, Licensee will be deemed to have received the Data as requested.

3.0 INTELLECTUAL PROPERTY RIGHTS

3.1 Licensee acknowledges and agrees that all rights, title and interest in and to the Data, including any associated copyrights and other Intellectual Property Rights, shall at all times remain the exclusive property of Licensor and its licensors, as applicable. Licensee shall take reasonable precautions to preserve the Intellectual Property Rights of Licensor and its licensors, as applicable, in the Data licensed to Licensee hereunder.

Any Intellectual Property Rights which may result from any modification, improvement or development of the Data or creation of any Derivative Products by or for Licensee separate from such Data received pursuant to this Agreement shall be the exclusive property of Licensee.

Licensor in licensing the Data pursuant to this Agreement represents and warrants that it:

1. is the exclusive owner of all rights, title and interest in such Data and has full authority to grant the licences described above subject to the terms and conditions of this Agreement, that it has obtained assurances with respect to such Data that any rights of integrity or any other moral rights associated therewith have been waived and no Restricted Data is being licensed under this Agreement; or
2. has all necessary rights in such Data required to grant the licences described above subject to the terms and conditions of this Agreement, that it has obtained assurances with respect to such Data that any rights of integrity or any other moral rights associated therewith have been waived and no Restricted Data is being licensed under this Agreement.

Where OMNR is Licensor acting as agent for another OGDE member, its principal (to be identified by OMNR at the time), OMNR represents and warrants that it is entering into the Agreement as agent for that disclosed principal, has actual authority to enter into and perform the Agreement on behalf of and bind its principal and provides the representations and warranties in this Section 3.2 a) or b) on behalf of its principal.

4.0 DISCLAIMER; INDEMNITIES AND INSURANCE

4.1 LICENSOR:

1. makes no representation, condition or warranty of any kind with respect to the accuracy, usefulness, completeness or currency of the Data hereby licensed, the Data being made available on an "as is, with all defects" basis; and
2. disclaims any express or implied condition or warranty of merchantability or fitness for a particular purpose of such Data.

Licensor cautions Licensee that content and features may be added to or withdrawn from the Data without prior notice to Licensee and that there may be delays in access to or delivery of the Data under this Agreement.

4.2 Licensor is providing the Data at Licensee's request. Licensee, as a condition of being granted the licences under this Agreement relating to such Data, acknowledges the above disclaimer and agrees to accept such Data as delivered under this Agreement on an "as is, with all defects" basis without maintenance, support, debugging or improvement obligations of Licensor and without representations, conditions or warranties of any kind, including as to the merchantability, fitness for a particular purpose, accuracy, usefulness, completeness or currency of such Data except for those set out in Section 3.2 above. Except for the representation and warranty provided by Licensor in Section 3.2 above, the entire risk as to the access, possession, use, performance and distribution of the Data is hereby assumed by Licensee.

4.3 In no event shall Licensor or any of its directors, officers, appointees, employees, agents or contractors be liable to any party for any direct, indirect, special, incidental or consequential damages of any nature or kind whatsoever, including without limitation loss of revenue or profits or other economic loss, arising out of the delivery of the Data by or for Licensor or possession or use of the Data by Licensee or its sublicensees or the exercise of their rights and licences hereunder or in any way relating to the Agreement even if Licensor has been advised of the possibility of such damages, except to the extent that Licensor has breached its warranty in Section 3.2 above in which case Licensor shall only be liable for direct damages caused by such breach.

4.4 Licensee shall indemnify and hold harmless Licensor and its directors, officers, appointees, employees, agents and contractors from all claims, demands, suits, actions and causes of action whatsoever alleging loss, costs, expenses, damages or injuries (including injuries resulting in death) by whomsoever made, incurred, brought, prosecuted or sustained arising out of the access, possession or use by Licensee or its sublicensees of such Data or the exercise of their rights and licences hereunder except to the extent any such claim, demand, suit, action or cause of action results from a breach by Licensor of its warranty under Section 3.2 above. This indemnity shall not affect or prejudice Licensor in exercising any other rights available to it under the Agreement, at law or in equity. This provision, however, will not apply to Licensee if Licensee was eligible for membership in OGDE and accepted by OMNR as a member under any of Sections 1.2 a) -- d) of the OGDE Membership Terms and Conditions.

4.5

1. Only when Licensor is a Ministry of the Ontario Government or a Classified Agency subject to the Ontario Management Board of Cabinet's Agency Establishment & Accountability Directive, as may be amended or replaced from time to time, Licensee agrees to put in effect and maintain for the term of the Agreement at its own cost with insurers having a secure A.M. Best rating of B + or greater, or the equivalent, all the necessary and appropriate insurance that a prudent person in the business of Licensee would maintain including, but not limited to, the following:
1. commercial general liability insurance on an occurrence basis for third party bodily injury, personal injury and property damage, to an inclusive limit of not less than two million dollars ($2,000,000) Cdn. per occurrence, two million dollars ($2,000,000) Cdn. products and completed operations aggregate; the policy is to include the following:
   • Licensor and all others indemnified under Section 4.4 above as additional insureds with respect to liability arising out of the access, possession or use by Licensee or its sublicensees of the Data or the exercise of their rights and licences under the Agreement
   • contractual liability coverage
   • cross-liability clause
   • 30 day written notice of cancellation, termination or material change
   • tenants legal liability coverage (if applicable and with applicable sub-limits)
   • non-owned automobile coverage with blanket contractual coverage for
   hired automobiles; and
2. errors and omissions liability insurance, insuring liability for errors and omissions in the exercise by Licensee or its sublicensees of their rights and licences under the Agreement or their performance or failure to perform any of Licensee's obligations under, or otherwise in connection with the Agreement in an amount not less than two million dollars ($2,000,000) Cdn. per claim and in the annual aggregate.
2. Licensee shall provide Licensor with proof of the insurance required by Section 4.5 a) in the form of valid certificates of insurance that reference this Agreement and confirm the required coverage as soon as possible after the Effective Date and renewal replacements on or before the expiry of any such insurance. Upon the request of Licensor, a copy of each insurance policy shall be made available to it.
3. Sections 4.5 a) and b), however, will not apply to Licensee if Licensee was eligible for membership in OGDE and accepted by OMNR as a member under any of Sections 1.2 a) - d) of the OGDE Membership Terms and Conditions.

4.6 The limitations, exclusions, disclaimers, indemnity and insurance set out in Sections 4.1 -- 4.5 above apply regardless of the nature of any claim, demand, suit, action or cause of action referred to in Section 4.4 above, including but not limited to breach of contract, negligence, strict liability or tort, and shall survive any fundamental breach.

5.0 TERM AND TERMINATION

5.1 This Agreement shall commence on the Effective Date and continue in effect until terminated pursuant to Section 5.2 or 5.3 below.

5.2 This Agreement may be terminated by:

1. either party immediately upon written notice to the other party if the other party commits or permits a breach of any of its obligations under this Agreement and fails to remedy such breach within thirty (30) days of receipt of written notice from the party not in breach demanding such breach be remedied; and
2. Licensee for its convenience at any time upon thirty (30) days written notice to Licensor.

5.3 Should Licensor's membership in the OGDE be terminated, such termination will not affect this Agreement which will continue in effect. However, should Licensee's membership in OGDE be terminated, this Agreement will automatically terminate at the same time.

5.4 Upon termination of the Agreement Licensee's rights under this Agreement shall immediately cease.

5.5 Within thirty (30) days after the effective date of termination of the Agreement, Licensee shall make reasonable efforts to delete from its records at its expense all Data, including updates and corrections, provided by Licensor under the Agreement and shall delete and over-write all copies, including back-ups, of such Data in its possession or under its control and inform Licensor in writing when these activities have been completed.

6.0 NOTICES

6.1 All notices and communications required to be given pursuant to this Agreement by a party shall be in writing and given in the manner prescribed below to the other party's OGDE Agreement Contact.

Notice shall be given by:

1. personal delivery, effective at the time of delivery;
2. fax, effective at the time of receipt by the sending party of confirmation of its successful transmission to the receiving party;
3. email, effective at the time the email enters the receiving party's email inbox; or
4. registered mail, effective on the fifth day following the deposit of a properly addressed notice in the mail, provided however, in the event of an actual or threatened disruption of postal service, notice shall not be given by registered mail.

6.2 The contact information for the designated representatives referred to above will be based on the then current list of OGDE members maintained by OMNR.

7.0 RELATIONSHIP BETWEEN THE PARTIES

Nothing in this Agreement creates the relationship of principal and agent or employer or employee between the parties. The parties expressly disclaim any intention to create a partnership, joint venture or joint enterprise by virtue of this Agreement and acknowledge and agree that nothing contained in this Agreement nor any act of either party shall constitute or be deemed to constitute the parties as partners or joint venturers in any way or for any purpose.

Neither party has the authority to act for or to assume any obligation or responsibility on behalf of the other party under this Agreement. Licensee shall not indicate, suggest or imply that it represents or acts as an agent for Licensor.

8.0 WAIVER

A waiver of any failure to comply with any term or condition of the Agreement shall be in writing and signed by the party providing the waiver. Any waiver must refer to a specific failure to comply and shall not waive any subsequent failure to comply.

The failure of a party to insist in one or more instances upon the performance by the other party of any of the terms or conditions of this Agreement shall not be construed as a waiver of the right of the first party to require future performance of any such terms or conditions and the obligations of the other party with respect to such future performance shall continue in full force and effect.

9.0 ENTIRE AGREEMENT

9.1 This Agreement, including its Schedule, constitutes the entire agreement between the parties relating to its subject matter and supersedes all proposals, negotiations, representations, warranties, conditions and agreements, collateral or otherwise, oral or written, relating to this subject matter made prior to the execution of this Agreement.

9.2 In the event of any conflict or inconsistency between the provisions of the main body of the Agreement and those of Schedule 1, the provisions of the main body of the Agreement will prevail.

In the event of any conflict or inconsistency between the provisions of the Agreement and the parties' respective OGDE membership application accepted by OMNR, the provisions of this Agreement will prevail.

10.0 GOVERNING LAW; ASSIGNMENT

10.1 This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario.

10.2 The terms and conditions of this Agreement shall be binding upon and enure to the benefit of the parties and their successors and assigns except that Licensee shall not assign this Agreement or any licences or rights granted hereunder, in whole or in part, without the prior written consent of Licensor.

11.0 SURVIVING PROVISIONS

11.1 Sections 3.1, 4.3, 4.4, 4.6, 5.5, 9.2, 10.1, 10.2 and 11.1 of the Agreement shall survive its termination and continue to bind the parties.

Terms of Use

1. Introduction

   1. The "Service" means, collectively, all aspects of the Abacus / NESSTAR and associated services and websites.
   2. The term "Content" means the data, text, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features, software, scripts, and any other electronic materials you may view on or access through the Service.

2. Your Acceptance of this Agreement

   1. By clicking you agree to the terms and conditions of this Agreement, which supplement the policies, rules and requirements of your institution.
   2. If you do not agree to these Terms of Use you must not log in, access, browse or otherwise use the Service. If you have questions or concerns, please contact abacus-support@lists.ubc.ca.

3. Use of the Service and Content

   Use of the Service and Your Content. You may access and use the Content uploaded on the Service strictly in compliance with the copyright terms identified on or associated with such Content.

4. General Conditions of Use

   1. Without limiting the foregoing and the prohibited uses set out in Policy #104, Acceptable Use and Security of UBC Electronic Information and Systems, which is hereby incorporated by reference, the following is not permitted:
      1. using any automated system, including without limitation, "robots," "spiders," or "offline readers," to harvest or scrape information from the Service or any part(s) thereof, or to send more request messages in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or
      2. in any way intentionally placing undue burden on the technical systems or networks connected to the Service.
   2. UBC may suspend your account, or access to the Service, if it learns or is credibly notified (as determined by UBC) that your conduct is in violation of these Terms of Use.

5. Liability and Indemnity

   1. The Service and the Content is provided to you AS IS. You understand that UBC does not endorse any Content submitted to the Service by any user, or any opinion, recommendation, or advice expressed therein, and UBC expressly disclaims any and all liability in connection with Content, including without limitation all direct, indirect, special, incidental or consequential damage or any other damages whatsoever and howsoever caused, arising out of or in connection with the use of the Service or any Content, or in reliance on the Service or the Content.
   2. In addition, the Service may contain links to third party websites. UBC has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites.
   3. You agree to indemnify and hold harmless UBC, its Board of Governors, agents, contractors, licensors, and licensees against any all claims arising from or in any way relating to your use of the Service.

6. Trademarks

   Certain words, phrases, names, designs or logos used on the Site may constitute trademarks, service marks or trade names of the UBC or other entities. The display of any such marks or names on the Site does not imply that UBC or other entities have granted a license or authorization of any kind to use such marks or names. You may not use any of UBC's trademarks, service marks or trade names without UBC's prior written permission.

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