Cesium ion Terms of Service

Cesium ion Terms of Service

Master License Agreement

These terms of service for Cesium ion SaaS (referred to herein as the “Master License Agreement” or “SaaS MLA”) are by and between Cesium GS, Inc., a Delaware corporation headquartered at 400 Market Street, Suite 1100, Philadelphia, PA 19106 (“Cesium”) and You (as defined below) (each a “Party” and collectively the “Parties”).

Unless You have entered into a signed, written agreement with Cesium that provides otherwise:

• YOU AGREE TO BE BOUND BY THESE TERMS BY ACCESSING OR USING THE LICENSED SERVICES. By accessing or using the Licensed Services, You agree that You have read, understand and agree to be bound by this SaaS MLA, as amended from time to time, as well as the Cesium Privacy Policy https://cesium.com/legal/privacy-policy/ and Cesium Cookie Policy https://cesium.com/legal/cookie-policy/, which are hereby incorporated into this SaaS MLA.  If You are accessing or using the Licensed Services on behalf of an organization, such as a company or legal entity, You are agreeing to this SaaS MLA on behalf of that organization and undertaking that You have the authority to bind that organization hereto.  YOUR ACCEPTANCE OF ALL OF THESE TERMS IS A CONDITION TO YOUR RIGHT TO ACCESS OR USE THE LICENSED SERVICES.  THESE TERMS REPRESENT THE ENTIRE SET OF TERMS AND CONDITIONS GOVERNING YOUR USE OF THE LICENSED SERVICES AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS ORAL OR WRITTEN COMMUNICATIONS, PROPOSALS AND PRESENTATIONS WITH RESPECT TO THE LICENSED SERVICES.  If these Terms are translated into a language other than English and there is a conflict of terms between the English and the other language, the English version will control.   
• Cesium may update or amend the terms of this SaaS MLA at any time without notice to You by posting the amended terms. The most current version will always be posted on our website terms pages, and You should check those pages regularly. By continuing to access or use the Licensed Services after revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new SaaS MLA, You must stop using the Licensed Services. The version of the SaaS MLA in effect at the time of Your access or use of the Licensed Services will apply to such use or access.  Further, the Licensed Services may continue to change over time as the Licensed Services evolve. Cesium will control the format, content, delivery and all other aspects of the Licensed Services, and reserves the right at any time to modify the information provided through the Licensed Services, discontinue or terminate the Licensed Services, or any portion of the Licensed Services without providing You any prior notice. 

1.      DEFINITIONS.  Capitalized terms used herein shall have the meanings set forth below in this Section 1 or elsewhere in this SaaS MLA including any Schedules, Appendices or other attachments hereto.

1.1        “Account” means a unique identity (such as username, password and other information) that You establish with Cesium to connect to the Licensed Services, which allows Cesium to authenticate and monitor Your access to and use of the Licensed Services.

1.2        “Account Responsibilities” are the requirements set forth in Appendix C at https://cesium.com/legal/account-responsibilities/.

1.3        “Cesium Data Output” means Cesium Global 3D Content and/or Data Output based in any way on or incorporating Cesium Global 3D Content.

1.4        “Cesium Global 3D Content” means the content defined in Appendix A at https://cesium.com/legal/cesium-global-3d-content-tos/.

1.5        “Cesium ion SaaS” means a cloud-accessible service that Cesium operates and makes generally available for license by customers at ion.cesium.com that provides hosting, tiling and streaming for 3D geospatial datasets, and may include client software that You are required to download to use the Licensed Services.

1.6        “Clip” means output from the Licensed Services representing a subset of certain Cesium Global 3D Content that the clips feature within the Licensed Services enables You to generate.

1.7        “Data Output” means data in 3D Tiles or other formats generated by or otherwise available in or through the Licensed Services.

1.8        "Documentation" means specifications, user manuals, installation instructions and other supporting materials that Cesium provides to You in connection with Your license of the Licensed Services under this SaaS MLA.

1.9        “Fee” has the meaning set forth in Section 4.1 below.

1.10     “Licensed Services” (or “Services”) means Cesium ion SaaS, Cesium Global 3D Content, Additional Content, Data Output; and Documentation.

1.11     “Integrated Promotional Materials” has the meaning set forth in Section 14 below.

1.12     "Open Source Libraries" means open source software libraries incorporated into Licensed Services.

1.13     “Order” means a sales quotation, purchase order or other instrument, if any, agreed in writing between the Parties that identifies the Licensed Services, Plan, Fees and Term applicable under this MLA.

1.14     “Plan” means a pre-set combination of features, functionality, datasets, usage limits and/or performance within the Services that You select in connection with Your Account, or which may be identified in Your Order (if any).

1.15     “Permitted Use” has the meaning set forth in Section 2.2 below.

1.16     “Promotional Materials” has the meaning set forth in Section 14 below.

1.17     “Proprietary Information” means confidential, proprietary and technical information pertaining to Licensed Products and to Cesium’s technology and business practices. 

1.18     “R&D” means internal research, development and testing.

1.19     “Term” has the meaning set forth in Section 11.1 below.

1.20     “Third Party Terms” has the meaning set forth in Section 2.4 below.

1.21     “Usage Data” means such data or information as Cesium may collect relating to Your installation, access or use of Licensed Services, the Services’ features and functionality, and other Cesium services, including but not limited to usage statistics that do not consist of any personally identifiable information, such as volume of use, duration of use, time of use, number of users, features used, and location of users.

1.22     “Value-Added Clip” means a Clip that You incorporate into a larger work where Your contributions to the work adds materially to the nature and value of the work versus the Clip alone.

1.23     “You” means the person who established the Account and, if the person is an individual who established the Account on behalf of an organization, then the organization.  If there is an Order, then “You” means the organization identified in the Order.  In any case, for purposes of Your license under this SaaS MLA, where “You” is an organization, “You” is limited to the organization identified as the user.  For example, and without limitation, if an Order is placed by a person associated with a parent organization but the Order identifies a division, subsidiary or other operating unit of the parent organization as the user, then “You” is limited to such subsidiary/division/operating unit.  If an Order is placed by a government entity and it identifies a particular agency, department or other unit of the government entity, then “You” is limited to such agency/department/unit. 

1.24     “Your Application” means an application that You create and own that integrates the Licensed Services through API connections thereto.

1.25     “Your Data” means data that You own or have obtained from a third party that You upload to the Licensed Services

1.26     “Your Data Output” means Data Output based on Your Data, and not in any way based on or incorporating Cesium Global 3D Content.

2.      GRANT OF LICENSE

2.1   Account and Plan.  To use the Licensed Services, You must sign up for an Account, select a Plan (either at ion.cesium.com or in Your Order (if any)) and pay the Fees applicable to the Plan.  You agree to comply with the Account Responsibilities.

2.2   License for Licensed Services.  Subject to Your payment of the Fees, any usage limits in Your Plan, and the terms and conditions of this SaaS MLA, Cesium grants You a personal, non-exclusive, non-transferable, worldwide, non-sublicensable license solely during the Term to use the Licensed Services available with respect to Your Plan (including uploading Your Content and generating Your Data Output) for the following “Permitted Use”: (a) for R&D Purposes to develop Your Application and to use Your application internally within Your organization; (b) to graphically display Cesium Data Output provided or generated during the Term internally within Your organization and externally to third parties; provided that, for clarity, it is noted that neither You nor any third party may continue to display or otherwise use Cesium Data Output after the Term; (c) to demonstrate Your Application (including Licensed Services integrated therein) to persons within Your organization and to potential customers and other third parties; and (d) use Cesium trademarks in accordance with Section 2.2.3 (Attribution) of this SaaS MLA (which trademark license shall extend beyond the Term of this SaaS MLA with respect to the perpetual license granted to You under Section 2.3 below for Value-Added Clips).  This license is subject to the following limitations and conditions:

2.2.1    Access.  The Licensed Services: (a) must be inaccessible to third parties; and (b)  may not be operated (alone or as part of a Your Application) as, or to perform, a service for or on behalf of any third parties

2.2.2    Offline Use.  Except for Clips to the extent expressly permitted under Section 2.3 below, You may not copy, store, or redistribute any portion of Cesium Data Output in, or for use in, an offline, disconnected, or local computer environment.  However, client-side and proxy-based caching are allowed as long as it is a general caching mechanism for performance that caches other internet traffic as well, and not just Cesium Data Output.

2.2.3    Attribution.  You must give proper acknowledgment of the copyright(s), trademarks and other proprietary notices of Cesium, including at a minimum making the “Cesium ion” logo prominently viewable to users, including on displays of output generated with use of the Licensed Services.  You shall not remove a copyright notice, disclaimer or other form of attribution from any part of the Licensed Services.  Without limiting the foregoing, the “Cesium ion” logo must be prominently displayed on the main application window of Your Application except that, for mobile applications and for immersive media like VR applications, it will be sufficient for You to display the logo on a splash screen, about page or other location where users would reasonably be expected to see it.

2.2.4    Other Limitations and Conditions.  You shall not, nor attempt, nor assist anyone else to: (i) sell, lease, distribute, transfer or otherwise disseminate the Licensed Services (unless and to the extent expressly provided otherwise in this SaaS MLA), (ii) disclose to any third party any source code for the Licensed Services; (iii) decode, reverse assemble, reverse compile or reverse engineer, translate or otherwise reduce to human-perceivable form any portion of the Licensed Services except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, in which case to the extent that You are expressly permitted by law to undertake any of the foregoing activities listed in this subsection, You will not exercise those rights until You have provided Cesium with thirty (30) days prior written notice of Your intent to exercise such rights; (iv) circumvent any controls, if any, that are designed to disable the Licensed Services upon termination of Your Account or license; (v) upload, post, sell or otherwise transmit advertising, sponsorships, or promotions, or any other form of solicitation, or altered, deceptive or false source-identifying information, including “spoofing” or “phishing,” on the Licensed Services; (vi) tamper in any way with the functionality of the Licensed Services or any part thereof, or access any areas of the Licensed Services not included in Your Plan; (vii) probe, scan, or test the vulnerability of any system or network, or breach or otherwise circumvent any security or authentication measures; (viii) put any material into the Licensed Services which contain any viruses, time bombs, Trojan horses, worms, cancelbots or other computer programming routines that may damage, interfere with, intercept or expropriate any system or data; (ix) interfere with or disrupt the Licensed Services or a network connected to the Licensed Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Licensed Services; (x) utilize bots, agents, auction crawlers or other computer based crawling programs in conjunction with Your use of the Licensed Services; (xi) collect information of others without their consent, upload, or post or otherwise transmit any content that is unlawful, or that that You do not have a right to transmit under any law or contractual or fiduciary relationship, or that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; (xii) upload, post or otherwise transmit any data or content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (xiii) unless expressly provided otherwise in this SaaS MLA, use the Licensed Services or any output thereof (except for output that does not contain or reflect any portion of the Licensed Services) in, or to train, artificial intelligence models or applications; or (xiv) engage in any other conduct that restricts or inhibits anyone’s use of the Licensed Services or which, as determined by Cesium, may harm Cesium or users of the Licensed Services or expose them to liability. 

2.2.5    You shall not create Your Applications that compete with Cesium products or services; and

2.2.6         Notification: You shall communicate the above limitations and conditions set forth herein to all of Your employees and contractors accessing or using any Licensed Services. The acts or omissions of any such persons accessing the Licensed Services shall be deemed to be the acts or omissions of You, such that You shall be fully responsible for the performance and fulfillment of all applicable contractual obligations.

2.3   Clips.  Cesium grants You: (a) a non-exclusive, non-transferable, worldwide, non-sublicensable license during the Term use the Licensed Services to generate Clips and use the Clips to create Value-Added Clips; and (b) a perpetual, non-exclusive, non-transferable, worldwide, license to use, reproduce, distribute, display, perform, sell and license such Value-Added Clips for any and all purposes, including, without limitation, distributing such Value-Added Clips to third parties for their unlimited use.  Without limiting any other of Your obligations under this SaaS MLA, You agree to take measures to ensure that Section 2.2.3 (Attribution) and Section 2.4 (Third Party Terms) of this SaaS MLA are complied with for the life of the Clips and Value-Added Clips wherever distributed and used.

2.4   Third Party Terms.  Licensed Services and/or portions thereof are subject to terms, conditions, copyright attribution and other requirements of, or as necessitated by Cesium’s contracts with, respective third parties as set forth in Appendix B at https://cesium.com/legal/third-party-terms/ (“Third Party Terms”).  Cesium has the right to add and amend Third Party Terms as required by its suppliers (also “Third Party Terms”).  You agree to and are responsible for ensuring Your compliance with such Third Party Terms.

2.5   Reservation of Rights.  All rights not specifically granted in this SaaS MLA are reserved. You shall not use the Licensed Products other than as expressly set forth in this SaaS or beyond any expiration or termination of this SaaS MLA.  Upon expiration or termination of this SaaS MLA, You shall return or destroy all remaining copies of all or any portion of the Licensed Products.

2.6   License & Warranty to Cesium.  You hereby grant to Cesium, solely during the Term, a non-exclusive, worldwide, royalty-free, fully paid-up, transferable, sub-licensable license to: (a) use, display, copy, cache, modify, transform, distribute, transmit and store Your Data and Your Data Output, including, without limitation, making Your Data Output available to You for use within the Licensed Services and for downloading in accordance with the license granted to You under this SaaS MLA; and (b) improve the Licensed Services.  You warrant that You have all rights, title and interest necessary in Your Data to grant the foregoing license to Cesium and that Your Data and Cesium’s possession and use thereof shall not infringe any third party intellectual property rights or violate any contracts to which You are a party or any laws or regulations.

3.      DELIVERY & UPDATES

Cesium shall deliver the Licensed Services by permitting You to use Your Account to access them over the cloud.  Cesium may in its sole discretion, and at any time, change features, functionality and performance of,  and Plans and Fees for, and otherwise update, the Licensed Services (collectively “Updates”) upon thirty (30) days’ notice.  However, changes to Plans and Fees will not be effective until the next period for which Fees would be due from You.  To the extent that Cesium generally releases Updates during the Term, You shall have the right to access and use such Updates in accordance with the terms and conditions of this SaaS MLA.  Cesium shall provide remote technical support during normal business hours (U.S. Eastern Time) to help You use the Licensed Services. For such support, You can contact Cesium at support@cesium.com. A response is not guaranteed for users under free Plans.

4.      FEES, REPORTING & AUDIT

4.1   Fees. In connection with signing up for Your Account, You shall pay Cesium the fees specified for the Plan that You select (“Fees”).  If You have entered into an Order with Cesium, it will specify Your Plan and the Fees.  Should You exceed any usage limits in Your Plan, Cesium may invoice, and You shall pay, additional Fees.  You shall make such payments within the period of time specified in the Plan and, if not specified, then within thirty (30) days from the date of invoice from Cesium. Interest shall accrue on past due payments of such invoices at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is less. In the event any payment owed to Cesium is past due, Cesium, at its discretion, may suspend or, after notice of such overdue payment and a thirty (30) day period to cure, terminate Your access and use of Licensed Services and associated services, rights, and licenses provided by Cesium. You shall pay to Cesium all levied taxes that Cesium is required under applicable law to collect from You, including, but not limited to sales, use, occupation, value added, excise, and property taxes (except for taxes based on Cesium’s net income). If You are obligated under an applicable law to withhold or deduct taxes from any payment to Cesium, You shall furnish to Cesium official receipts evidencing Your payment of such taxes. 

4.2   Reporting.  If You have entered into an Order with Cesium, You shall provide Cesium with calendar monthly reports providing such information as needed to properly report the Fees due for such month under such Order, including the bases for the calculation of such Fees and any additional information that Cesium may reasonably require to understand the Fee amounts and the calculation thereof.  Without limiting the foregoing, each report shall, with respect to licenses of Your Application using Licensed Services, identify the number of both End-Users or other clients authorized to use and actually using the Licensed Services. The report shall be due within fifteen (15) days following the last date of the month and in such format as Cesium reasonably requests.

4.3   Audit.  Cesium shall have the right, upon reasonable notice, to audit, or have its appointed designee audit, Your books, records, systems and employees at least once annually during the Term and the annual period following the Term to verify the correctness of Your reports under Section 4.2.  Cesium shall treat the information it obtains from You under the audit as confidential and shall use it solely for the purpose of verifying and ensuring proper payment of Fees under this SaaS MLA.  Should the audit reveal that You under-reported Your usage or Fees, then, without limiting any other of Cesium’s rights or remedies under this SaaS MLA, You agree to reimburse Cesium for its reasonable costs of performing the audit.

5.      INTELLECTUAL PROPERTY AND OWNERSHIP

5.1   Retention of Rights. The Licensed Services and any information about the Licensed Services which You obtain through any means of electronic transmission, contain Proprietary Information of Cesium, its licensors or other suppliers, and are protected under United States copyright laws, other applicable copyright laws, other laws relating to the protection of intellectual property, and international treaty provisions.  Cesium and its suppliers respectively retain ownership of all rights, title and interest in and to the Licensed Services, and all intellectual property rights associated therewith. The Licensed Services are licensed, not sold, and title to each copy of the Licensed Services shall remain with Cesium or its licensors, and shall not pass to You. This SaaS MLA shall not be construed in any manner as transferring any rights of ownership or license to all or any portion of the Licensed Services, except for the license(s) expressly granted under this SaaS MLA.  All rights not expressly granted by Cesium are reserved.

5.2   Source Code. You shall have no right hereunder to receive, review, use or otherwise have access to the source code for the Licensed Services, unless and except to the extent that Cesium normally makes source code for a Licensed Services or portion thereof generally available to customers. 

5.3   Usage Data. You agree and acknowledge that Cesium will from time-to-time collect Usage Data and that all Usage Data shall be owned by Cesium and deemed Cesium Proprietary Information. You agree not to alter or interfere with the collection by Cesium of accurate Usage Data. 

5.4   Proprietary Information.

5.4.1    You understand and agree that Cesium may, in connection with the provision of Licensed Services and services, disclose to You Proprietary Information. You agree to treat all Proprietary Information in accordance with this Section.

5.4.2    You shall maintain the confidentiality of all Proprietary Information. You shall not reproduce or copy Proprietary Information except as permitted in the SaaS MLA or as may be expressly authorized in writing in advance by Cesium. All such copies shall be marked by You as proprietary and confidential information.

5.4.3    You shall only use Proprietary Information in furtherance of the SaaS MLA and may disclose Proprietary Information only to those employees required to have knowledge of same to perform their duties pursuant to the SaaS MLA. You shall not disclose or make Proprietary Information available to any third party at any time.

5.4.4    You shall treat Proprietary Information with the same degree of care as You use to protect Your own confidential information, and in no case less than a reasonable degree of care.

5.4.5    Upon the termination or non-renewal of the SaaS MLA, You shall return to Cesium or destroy all Proprietary Information in Your possession.

5.4.6    You shall have no obligation of confidentiality with respect to any Proprietary Information that (i) has entered the public domain other than through a breach of the SaaS MLA, (ii) has been rightfully obtained by You from a third party with no obligation of confidentiality, or (iii) is previously known by You as demonstrated by clear and convincing evidence.

5.4.7    You shall promptly inform Cesium upon knowledge of any actual or potential unauthorized use or disclosure of the Proprietary Information.

5.4.8    Cesium hereby acknowledges that disclosure by You of the SaaS MLA, or portions thereof, may be subject to Your state statutes, such as open public records or freedom of information acts.  The nondisclosure of the SaaS MLA, or portions thereof, may depend upon official or judicial determinations made pursuant to such statutes when You receive a request from a third party for the disclosure of information designated by Cesium as “confidential information.”  

5.4.9    In such cases, You shall notify Cesium within a reasonable period of the request, and Cesium shall be exclusively responsible for defending Cesium’s position concerning the confidentiality of the requested information. Neither You nor any of Your agencies is or shall be obligated to assist in Cesium’s defense. If any disclosure is subsequently made of such information by You, disclosure shall be made consistent with such official or judicial final determination and only to the extent required under applicable law.

5.5   Information Sharing; Submissions and Comments.  The Licensed Services may include features that allow You to share Your information with others or to make it public. Please consider carefully what information You share or make public keeping in mind that other users may copy, modify or distribute Your information, and that Cesium has no responsibility for such activity.  Neither Cesium nor any of its employees will consider unsolicited ideas, including ideas for new advertising campaigns, new promotions, new products, or technologies, processes, materials, marketing plans, or new product names. The sole purpose of this policy is to avoid potential misunderstandings or disputes in the event that Cesium’s products or marketing strategies might seem similar to ideas or works You submitted. You agree not to send Your unsolicited ideas or any original creative artwork, samples, demos, or other works to Cesium. All materials sent to Cesium despite the foregoing will become Cesium’s property and You agree that all intellectual property rights therein are transferred to Cesium.

6.      DISCLAIMER OF WARRANTY

6.1   THE LICENSED SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LICENSED SERVICES. WITHOUT LIMITING THE FOREOING: CESIUM DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED SERVICES WILL BE FREE FROM VIRUSES OR OPERATE UNINTERRUPTED OR ERROR FREE. CESIUM DOES NOT WARRANT THE USE, RESULTS, QUALITY, SUITABILITY, TRUTH, ACCURACY, COMPLETENESS OR HELPFULNESS OF ANY OF THE LICENSED SERVICES, OR THAT THE LICENSED SERVICES WILL MEET ANY OF YOUR REQUIREMENTS.

6.2   CESIUM PROVIDES NO WARRANTY OF ANY KIND WITH REGARD TO YOUR APPLICATIONS THAT YOU CREATE USING OR THAT OTHERWISE USE OR INTEGRATE THE LICENSED SERVICES.  EXCEPT TO THE EXTENT EXPRESSLY PROVIDED IN SECTION 3 ABOVE, CESIUM IS NOT OBLIGATED TO PROVIDE UPDATES, MAINTENANCE, SUPPORT, DOCUMENTATION OR ANY OTHER SERVICE OR SUPPORT TO YOU OR ANY USER OR THIRD PARTY.

7.      LIMITATION OF LIABILITY

7.1   IN NO EVENT WILL CESIUM OR ITS SUPPLIERS, DISTRIBUTORS, OR DEALERS BE LIABLE TO YOU FOR ANY INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF THE POSSESSION, USE OR INABILITY TO USE THE LICENSED SERVICES, OR A LOSS OF DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF CESIUM OR ANY SUPPLIER, DISTRIBUTOR OR DEALER HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL CESIUM BE LIABLE FOR ANY SIMILAR CLAIM AGAINST YOU BY ANY OTHER PARTY.  WITHOUT LIMITING THE FOREGOING, CESIUM ALSO SHALL NOT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

7.2   CESIUM’S LIABILITY UNDER THIS SAAS MLA, UNDER ANY THEORY OF LIABILITY OR CONTRIBUTION, SHALL NOT EXCEED THE GREATER OF $100 (ONE HUNDRED U.S. DOLLARS) AND THE AMOUNT OF THE FEES PAID BY YOU TO CESIUM UNDER THIS SAAS MLA FOR THE LICENSED SERVICES FOR THE TWELVE (12) MONTHS PRIOR TO THE FIRST INCIDENCE GIVING RISE TO THE LIABLITY.  

7.3   Disclaimer. You acknowledge that the Licensed Services are not fault-tolerant and have not been designed, manufactured or intended for use and will not be used in the development of weapons of mass destruction, as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Licensed Services could lead directly to death, personal injury, or severe physical or environmental damage. You further acknowledge that the Licensed Services are not substitutes for Your professional judgment, and accordingly, neither Cesium nor its licensors or suppliers are responsible for Your use of  the Licensed Services or the results obtained from such use. The Licensed Services are intended only to assist You in Your business and are not meant to be substitutes for Your independent testing and verification of stress, safety, utility or other design parameters. 

8.      INFRINGEMENT INDEMNIFICATION

8.1   Cesium will pay any damages finally awarded against You and defend You from and against any claims, actions, or demands by a third party alleging that a Licensed Service infringes a copyright under the laws of a Berne Convention signatory country provided that: (a) Cesium is provided prompt written notice of such claim; (b) You provide Cesium with documents describing the allegations of infringement; (c) Cesium has the sole control of defense of any action and negotiation related to the defense or settlement of any claim; and (d) You provide all available information and assistance, and reasonably cooperate in the defense of the claim.  The foregoing obligation shall not apply with respect to any claim that arises out of: (i) Cesium’s compliance with Your specifications, (ii) use, operation, combination or integration of the Licensed Services with any software, product, hardware, system or process not supplied by Cesium; (iii) modification or alteration of the Licensed Services by someone other than Cesium; (iv) use of the Licensed Services after modifications have been provided by Cesium for avoiding infringement or after a termination of the license under Section 8.2; or (v) use of the Licensed Services other than in accordance with the terms and conditions of this SaaS MLA.

8.2   After learning of a claim of infringement by the Licensed Services, or any part thereof, Cesium may in its sole discretion and at no cost to You: (i) obtain for You the right to continue using such Licensed Services; (ii) modify the Licensed Services, while maintaining substantially similar functionality, so that they are no longer allegedly infringing; or (iii) if Cesium determines that neither such option is commercially reasonable, then terminate this SaaS MLA and refund to You the amounts actually paid by You to Cesium for the allegedly infringing Licensed Services for the unused portion of the Term(s), and upon such termination You shall cease using and promptly destroy all copies of the Licensed Services in Your possession and certify in writing to Cesium that such action has been taken.

8.3   This Section 8 states Cesium’s sole liability to You, and Your exclusive remedy against Cesium, for intellectual property infringement, and Cesium shall not have any obligation to defend You or provide any other remedy to You in connection with any third party claim other than as expressly set forth in this Section 8.

9.      INDEMNIFICATION

Except to the extent that Cesium is obligated to defend You under Section 8, You agree to indemnify, defend and hold harmless Cesium and its suppliers from any and all claims, damages, liabilities or lawsuits, including attorney’s fees, arising out of or in connection with: (a) Your violation of the terms of this SaaS MLA or Your use or possession of the Licensed Services and/or Your Applications; and (b) Cesium’s possession or use or Your Data and/or Your Data Output under this SaaS MLA.

10.   EXPORT CONTROL REGULATIONS

The Licensed Services are subject to U.S. sanctions and export control laws, regulations, and requirements in addition to sanctions and export control laws, regulations and requirements of other agencies or authorities based outside of the United States (collectively referred to as “Sanctions and Export Controls”). Regardless of any disclosure made by You to Cesium of an ultimate destination of the Licensed Services, You must not export, re-export or transfer, whether directly or indirectly, the Licensed Services, or any portion thereof, or any system containing such Licensed Services or portion thereof to anyone, without first complying strictly and fully with all Sanctions and Export Controls that may be imposed on the Licensed Services and/or the export, re-export or transfer, direct or indirect, of the Licensed Services and transactions related thereto. The entities, end uses and countries subject to restriction by action of the United States Government or any other governmental agency or authority outside of the United States, are subject to change, and it is Your responsibility to comply with the applicable Sanctions and Export Controls, as they may be amended from time to time. You shall indemnify, defend and hold Cesium harmless for any breach of its obligations.

11.   TERM & TERMINATION; SUSPENSION

11.1   Term. Subject to Section 11.2 below, the term of this SaaS MLA shall be for the period during which You have an active Account and for which You have paid Fees (“Term”).

11.2   Termination.  You may cancel Your Account (which shall constitute a termination of this SaaS MLA) or otherwise terminate this SaaS MLA (by providing written notice to Cesium) at any time.  This SaaS MLA and the licenses granted under this SaaS MLA will terminate, with or without notice from Cesium, if You breach any of the terms and conditions of this SaaS MLA, including without limitation, to pay the Fees and any other sums due Cesium pursuant to this SaaS MLA.  Fees for any remaining period of the then-current Term shall remain due and payable and such Fees, as well as any previously paid Fees, shall be non-refundable.  You agree, upon any termination of this SaaS MLA, to cease using and promptly destroy all copies of the Licensed Services in Your possession (except for Your Data Output and Clips in accordance with the terms and conditions of this SaaS MLA) and to certify in writing to Cesium that such action has been taken.  After cancellation or termination of Your account, Cesium will make reasonable attempts to promptly remove Your Data from the Services. However, caching of or references to Your Data and Your Data Output may not be immediately removed.

11.3   Suspension.  Cesium reserves the right, but does not assume any responsibility, to modify or suspend use of a Licensed Services, or any part thereof, if:  (i) Cesium determines in its sole discretion that such suspension is necessary to comply with any applicable law, regulation or order of any governmental authority or with the terms of its agreement(s) with its third party service providers; or (ii) Cesium determines in its sole discretion that the performance, integrity or security of the Licensed Services is being adversely impacted or in danger of being compromised as a result of Your access.

12.   ASSIGNMENT

You may not assign this SaaS MLA or any of Your rights or obligations under this SaaS MLA absent Cesium’s prior written consent, which Cesium may grant or withhold in its sole discretion, and any attempt of such assignment without Cesium’s prior written consent shall be null and void.  

13.   NOTICES

Any notices regarding this SaaS MLA shall be sent to:

Cesium GS, Inc.

Attn: Contracts Department

Address: 400 Market Street, Suite 1100, Philadelphia, PA 19106

Email: sales@cesium.com

With a copy to:

Attn: General Counsel

Bentley Systems, Incorporated

685 Stockton Drive

Exton, PA 19341

14.   PUBLICITY

You and Cesium may refer to and include each other in publicity, advertising, promotional and educational materials (collectively “Promotional Materials”), customer lists, and websites, including placing the other party's logo on its website, as long as it is in reference to the use outlined in this SaaS MLA.  Additionally, Cesium grants You a non-exclusive, non-transferable, worldwide license (a) during the Term of this SaaS MLA to integrate images and videos of Licensed Services into Promotional Materials (“Integrated Promotional Materials”) and (b) to distribute and display Integrated Promotional Materials internally within Your organization and externally to third parties in perpetuity.

15.   U.S. GOVERNMENT END USER RIGHTS

15.1   The Licensed Services are "Commercial Items," as defined in FAR 2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation. Government software and technical data rights in the Products include only those rights customarily provided to the public as defined in this SaaS MLA.

15.2   The use, duplication of or disclosure of the Licensed Services by the U.S. Government is subject to the restrictions set forth in FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense purchases, DFARS 252.227-7015 (Technical Data – Commercial Items) and 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation), as applicable. Accordingly, all U.S. Government End Users acquire the Licensed Services with only those rights set forth herein. The developer and manufacturer is Cesium GS, Inc., located at 400 Market Street, Suite 1100, Philadelphia, PA 19106.  If any portion of the Licensed Services is deemed “non-commercial,” or the following FARs or DFARs are deemed to apply, the Licensed Services are licensed under the terms hereof and under the RESTRICTED RIGHTS set forth in 48 CFR 52.227-19 and DFAR 252.227-7014 (and the government’s use, duplication and disclosure rights are restricted as set forth therein). 

16.   GOVERNING LAW & DISPUTES

16.1   Customers in the United States and its Territories:  If You reside or are based in the United States, this SaaS MLA shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania without reference to the Pennsylvania conflict of laws principles, except that U.S. Federal law shall govern in matters of intellectual property. In the event of any dispute, controversy or claim between the parties arising under this SaaS MLA, the parties shall submit to binding arbitration before a single arbitrator in Philadelphia, Pennsylvania in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The decision of the arbitrator shall be final and binding on the parties, and the judgment upon the award rendered by the arbitrator shall be enforceable in any court of competent jurisdiction. Each party shall bear its own attorney’s fees, costs, and expenses incurred in such arbitration. Notwithstanding the foregoing, Cesium has the right to commence proceedings against You in any court in respect of a failure by You to comply with Your payment obligations under the SaaS MLA without first submitting to binding arbitration.

16.2   All Other Customers: If You reside or are based outside of the United States, any dispute arising out of or relating to this SaaS MLA or the breach thereof that cannot be settled through negotiation shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one (1) arbitrator appointed in accordance with said rules. The language of arbitration will be English. The place of the arbitration shall be at an agreed upon location within the United States. Either party shall, at the request of the other, make available documents or witnesses relevant to the major aspects of the dispute.  Notwithstanding the foregoing, for equitable relief pursuant to Section 16.3, Cesium shall be entitled to bring an action in any appropriate court, which You agree shall include any court with subject matter jurisdiction in Pennsylvania.

16.3   Equitable Relief.  You agree that Cesium would be irreparably damaged if the terms and conditions of this SaaS MLA were not specifically enforced, and therefore You agree that Cesium shall be entitled to seek appropriate equitable remedies including but not limited to injunctive relief with respect to breaches of this SaaS MLA, in addition to such other remedies as Cesium may otherwise have available to it under applicable laws.

16.4   Legal Costs.  In the event that either Party is required to bring an action, suit, or other proceeding for the enforcement of any provision of or under this SaaS MLA, each Party will be responsible for their own costs and expenses, including attorney and professional or expert fees.

17.   OTHER PROVISIONS

17.1   Entire Agreement.  This SaaS MLA (including linked terms and conditions and any other schedules, exhibits, appendices, or other attachments included herewith), but not including any of Your purchasing or other terms and conditions that may have been included with or in connection with this SaaS MLA, is the complete and exclusive statement of the understanding and contract between the Parties and supersedes any and all prior oral or written communications relating to the subject matter hereof.  This SaaS MLA shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded. Any additional or different terms or conditions appearing on a purchase order issued by You in connection with this SaaS MLA, even if Cesium acknowledges such terms and conditions, shall not be binding on the Parties unless both Parties expressly agree in a separate writing as provided under this SaaS MLA. 

17.2   Waivers.  The failure of either Party to insist upon performance of any provision of this SaaS MLA or to exercise any right, remedy or option provided herein shall not be construed or deemed as a waiver of the right to assert any of the same at any time thereafter.  Waiver of a provision shall only be effective if in signed writing by the Party making the waiver, and a waiver of a provision in one instance shall not preclude its enforcement on future occasions.

17.3   Survival.  Sections 2.2.2 (Offline Use), 2.2.4 (Other Limitations and Conditions), 2.3(b) (Value-Added Clips), 2.5 (Reservation of Rights), 4-10, 14(b), the post-termination obligations set forth in Section 11.2, and Sections 16 (Governing Law & Disputes) and 17 (Other Provisions) of this SaaS MLA shall survive any expiration or termination of this SaaS MLA.

17.4   Headings.  The headings used in this SaaS MLA are for convenience only and shall not be used to interpret this SaaS MLA.

17.5   Severability.  Any provision found by a court of law to be illegal, invalid, or unenforceable shall automatically be deemed conformed to the minimum requirements of law and it, with all other provisions, shall be given full force and effect. Such findings of illegality, invalidity, and/or unenforceability of one or more of the provisions herein shall not affect the remaining provisions. 

17.6   Force Majeure. Cesium shall not be liable for failure to fulfill the terms of the SaaS MLA due to fire, strike, war, pandemic, acts or restraints of governments or public authorities, acts of God, labor disturbances, terrorist acts, riots or civil commotion, or other causes which are unavoidable and beyond its reasonable control. 

17.7   Dual Language. Copies of the SaaS MLA or parts of it may be provided in languages other than English. To the extent of any inconsistency between the terms of the SaaS MLA in English and any translation, the English version shall prevail and be binding upon the Parties. In the event a state/jurisdiction requires local language to prevail, this Section will not apply to the extent required to comply with applicable laws. 

17.8   Take Down; Digital Millennium Copyright Act Compliance.  Cesium reserves the right, but does not assume any responsibility, to remove any material posted to the Licensed Services which Cesium, in its sole discretion, deems inconsistent with Your commitments hereunder, including any material that Cesium has been notified, or has reason to believe, constitutes a copyright infringement, and to terminate any user’s access to all or part of the Licensed Services. However, Cesium can neither review all material before it is posted to the Licensed Services nor ensure prompt removal of objectionable material after it has been posted. Accordingly, Cesium assumes no liability for any action or inaction regarding transmissions, communications or content provided by third parties.  In compliance with Title 17, USC § 512, the Digital Millennium Copyright Act (DMCA), Cesium will promptly remove from the Licensed Services all material that appear to constitute infringement of a third party’s copyrights, as long as Cesium receives a properly drafted notice. A copy of the DMCA Takedown Notice requirements, the procedure, and an electronic form is published at the Cesium ion website: dmca.docx.