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HomeMy WebLinkAboutIT18-471 - Original - Pictometry International Corp - EagleView Pictometry Software - 12/18/2018 ENT Records Manag ement Document CONTRACT COVER SHEET This is to be completed by the Contract Manager prior to submission to the City Clerk's Office. All portions are to be completed. If you have questions, please contact the City Clerk's Office at 253-856-5725. Vendor Name: Pictornetry International Corp Vendor Number (JDE): 1932874 Contract Number (City Clerk): Category: License Agreement Sub-Category (if applicable): Choose an item. Project Name: EaglleView Pictornetry (Connect & ESRI Build) - PW/Public Works Contract Execution Date: 12/18/18 Termination Date: 12/17/19 Contract Manager: Somen Palit Department: IT Contract Amount: $4,609 Budgeted: Z Grant? Part of NEW Budget: ❑ Local: ❑ State: -Li Federal- [__7 Related to a New Position: Basis for Selection of Contractor? Bid: !— RFP: El Small works Roster: 17 Quotes: Z Approval Authority: Z Director 0 Mayor ❑ City Council Other Details: -Initial Procurement EAGLEVIEW® NOT AN INVOICE PICTOMETRY INTERNATIONAL CORP. SOFTWARE LICENSE AGREEMENT PLEASE READ THIS SOFTWARE LICENSE AGREEMENT("LICENSE")CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE.BY USING THE SOFTWARE,YOU AGREE TO THE TERMS OF THIS LICENSE.IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE,DO NOT DOWNLOAD,INSTALL OR USE THE SOFTWARE. 1.GENERAL.The software("Pictometry Software")and any written materials that accompany the software("Documentation")in any media or form are licensed,not sold,to you by Pictometry International Corp.("Pictometry")for use only under the terms of this License. Pictometry reserves all rights not expressly granted to you in this License. 2.LICENSE.Subject to the terms and conditions of this License,you are granted a limited,non-transferable,terminable, non-sublicenseable,non-exclusive license to install and use the Pictometry Software and the Documentation(collectively,the "Proprietary Materials")solely for internal use.Use of the functionality provided by the Pictometry Software other than for your internal use is prohibited,except with the prior written approval of Pictometry.You may make one copy of the Pictometry Software in machine-readable form for backup purposes only;provided that the backup copy must include all copyright and other proprietary notices contained in the original.You will not and will not enable others to decompile,reverse engineer,disassemble,attempt to derive the source code of,decrypt,modify,create derivative works of.or tamper with or disable any security or monitoring features within the Pictometry Software.Any attempt to do so is a violation of the rights of Pictometry and its licensors. 3.TITLE.The Proprietary Materials are confidential information of,trade secrets of,and are proprietary to Pictometry.Title to the Proprietary Materials is and will remain in Pictometry and its licensors.All applicable rights to patents,copyrights.trademarks,trade secrets,and other intellectual property rights in the Proprietary Materials are and will remain in Pictometry and its licensors.You will not assert any right.title or interest in the Proprietary Materials provided to you under this License,except for the express license granted to you hereunder.You will not remove any copyright or other proprietary notice or legend contained on or included in any Proprietary Materials and you will reproduce all such information on all copies made hereunder.You will keep the Proprietary Materials free of all claims,liens and encumbrances. 4.DISCLAIMERS OF WARRANTY.USE OF THE PICTOMETRY SOFTWARE IS AT YOUR SOLE RISK.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,THE PICTOMETRY SOFTWARE IS PROVIDED"AS IS",WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND,AND PICTOMETRY HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE PICTOMETRY SOFTWARE,WHETHER EXPRESS,IMPLIED OR STATUTORY,INCLUDING,BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.PICTOMETRY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN OR PROVIDED BY THE PICTOMETRY SOFTWARE WILL MEET YOUR REQUIREMENTS,THAT THE OPERATION OF THE PICTOMETRY SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE,OR THAT DEFECTS IN THE PROPRIETARY MATERIALS WILL BE CORRECTED. 5.LIMITATION OF LIABILITY.IN NO EVENT WILL PICTOMETRY BE LIABLE FOR ANY INCIDENTAL.SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER,INCLUDING.WITHOUT LIMITATION,DAMAGES FOR LOSS OF PROFITS,LOSS OF DATA,BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PICTOMETRY SOFTWARE,HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY(CONTRACT,TORT OR OTHERWISE),EVEN IF PICTOMETRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.IN NO EVENT WILL PICTOMETRYS TOTAL LIABILITY TO YOU FOR ALL DAMAGES(OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY)CAUSED BY,ARISING OUT OF OR IN ANY WAY RELATED TO THE PICTOMETRY SOFTWARE EXCEED THE AMOUNT OF FIFTY DOLLARS($50.00).THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 6.TERMINATION.This License will terminate automatically without notice from Pictometry if you fail to comply with any term of this License.Upon the termination of this License,you will cease all use of the Pictometry Software and destroy all copies,full or partial.of the Proprietary Materials. 7.MISCELLANEOUS PROVISIONS. A.Restricted Rights.Pictometry Software acquired with United States Government funds or intended for use within or for any United States federal agency is provided with"Restricted Rights"as defined in DFARS 252.227-7013.Rights in Technical Data and Computer Software and FAR 52.227-14,Rights in Data-General,including Alternate III,as applicable.Pictometry must be notified in advance of any license grants to United States federal governmental entities.The Pictometry Software is developed for general use in a variety of applications and is not developed or intended for use in any inherently dangerous applications or applications that could lead to property damage,personal injury or death.If you use the Pictometry Software in such applications,then you will be responsible for taking all appropriate fail-safe,backup,redundancy,and other measures to ensure the safe use of the Pictometry Software in such applications, including but not limited to,in any nuclear,aviation,mass transit,public safety or medical applications. B.Foreign Trade Restrictions.The parties acknowledge that certain information,software technology,accompanying documentation and technical information may be subject to United States export control laws.You will not directly or indirectly export or re-export the Pictometry Software in violation of the Export Administration Regulations of the U.S.Department of Commerce. C.Governing Law.This License will be governed by and interpreted in accordance with the laws of the State of New York,excluding its conflict of laws principles. D.Assignment.You may not assign this License without Pictometry's prior written consent.Any assignment in violation of this License will be null,void and of no force and effect.For all purposes under this License,any merger,consolidation,spin-off,acquisition or change-in-control will be deemed an assignment. E.Partial Invalidity;Survival.If any provision of this License is held invalid or unenforceable by competent authority,that provision will be construed so as to be limited or reduced to be enforceable to the maximum extent compatible with the law as it will then appear. The total invalidity or unenforceability of any particular provision of this License will not affect its other provisions and this License will be construed in all respects as if the invalid or unenforceable provision were omitted.The provisions of this License that by their nature would survive its termination will survive indefinitely. F.Force Majeure.Neither party will be liable for any costs or damages due to nonperformance under this License arising out of any cause not within the reasonable control of such party and without its fault or negligence.Neither party will be liable for any delay or failure in the performance of its obligations under this License that directly results from any failure of the other party to perform its obligations as set forth in this License. G.Waiver.No waiver of a breach of any term of this License will be effective unless in writing and duly executed by the waiving party. No such waiver will constitute a waiver of any subsequent breach of the same or any other term of this License.No failure on the part of a party to exercise,and no delay in exercising any of its rights hereunder will operate as a waiver thereof,nor will any single or partial exercise by a party of any right preclude any other or future exercise thereof or the exercise of any other right.No course of dealing between the parties will be deemed effective to modify,amend or discharge any part of this License or the rights or obligations of any party hereunder. H.Entire Agreement;Construction.This License contains the entire understanding of the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous understandings regarding that subject matter.No amendment to or modification of this License will be binding unless in writing and signed by Pictometry.There are no representations,warranties,or obligations of any party not expressly contained herein.The headings in this License are for convenience only.'They do not constitute a portion of this License and will not be used in any construction of it. JEND OF PICTOMETRY INTERNATIONAL CORP.SOFTWARE:LICENSE AGREEMENTI I PICTOMETRY ONLINE SERVICES GENERAL TERMS AND CONDITIONS These Pictometry Online Services General Terms and Conditions(the"General Terms and Conditions").in combination with the corresponding Pictometry order form(or electronic order submission or payment page used in lieu of an order forth),if any(the"Order Form").collectively constitute the license agreement(the"License Agreement")that governs your use of the Pictometry online services (the"Online Services"),the images available in the Online Services,and all associated metadata and data layers included in,provided with,or derived from those images(the"Licensed Content")provided by Pictometry International Corp.and its affiliated companies (collectively,"Pictometry").The terms"you"and"your"in uppercase or lowercase shall mean the individual,entity(e.g.,corporation. limited liability company.partnership,sole proprietor,etc.)or government agency entering into the License Agreement. 1.GRANT OF RIGHTS; RESTRICTIONS ON USE;OWNERSHIP 1.1 You are granted a nonexclusive,nontransferable,limited right to access and use the Online Services and the Licensed Content obtained or derived from the Online Services solely for your internal business purposes and not for resale or redistribution.The rights granted to you include,subject to the restrictions set forth below and on the Order Form,the right to copy limited portions of the Licensed Content onto your computer to facilitate preparation of hardcopies and work product records,and the right to make hardcopies of the Licensed Content,provided that the Licensed Content and the permitted copies thereof may not be sold,leased,loaned,distributed,or copied for use by anyone other than you. 1.2 You may not make the Online Services available to any other party. 1.3 You may not copy the Licensed Content or portions thereof onto any computer or storage device or media for the purpose of creating or maintaining one or more databases of that content for use in substitution for subsequent access to the content through the Online Services. 1.4 You may not distribute or otherwise make available any Licensed Content to Google or its affiliates,either directly or indirectly. 1.5 You may not exploit the goodwill of Pictometry,including its trademarks,service marks,or logos,without the express written consent of Pictometry. 1.6 You may not remove.alter or obscure copyright notices or other notices contained in the Licensed Content. 1.7 You may not offer any part of the Online Services or the Licensed Content for commercial resale or commercial redistribution in any medium. 1.8 You may not use the Online Services or the Licensed Content to compete with any businesses of Pictometry. 1.9 You may not use information included in the Online Services or the Licensed Content to determine an individual consumers eligibility for(a)credit or insurance for personal,family,or household purposes;(b)employment;or(c)a government license or benefit. The term"consumer"is defined in the United States Fair Credit Reporting Act at 15 USC section 1681. 1.10 You may not access the Online Services via mechanical,programmatic,robotic,scripted or any other automated means.Unless otherwise agreed by Pictometry in writing,use of the Online Services is permitted only via manually conducted,discrete,human-initiated individual search and retrieval activities. 1.11 All right,title,and interest(including all copyrights,trademarks and other intellectual property rights)in the Online Services and the Licensed Content in all media belong to Pictometry or its third party suppliers.Neither you nor any users of the Online Services or the Licensed Content acquire any proprietary interest in the Online Services,the Licensed Content.or any copies thereof,except the limited use rights granted herein. 2.ACCESS TO SERVICES 2.1 Only you,your employees,and temporary or contract employees dedicated to performing work exclusively for you(each,an"Eligible User"and collectively,the"Eligible Users")are eligible to access and use the Online Services and the Licensed Content pursuant to the License Agreement.Each Eligible User to be provided access to the Online Service shall be assigned a unique login/password ("Pictometry Credential")for purposes of accessing the Online Services.You agree that each Pictometry Credential shall only be used by the Eligible User to whom it was originally assigned and that Pictometry Credentials may not be shared with,or used by.any other person,including other Eligible Users.You will promptly deactivate an Eligible User's Pictometry Credential in the event the Eligible User no longer meets the eligibility requirements or you otherwise wish to terminate the Eligible Users access to the Online Services. You are responsible for all use of the Online Services accessed with Pictometry Credentials issued to your Eligible Users,including associated charges,whether by Eligible Users or others.You will use reasonable commercial efforts to prevent unauthorized use of Pictometry Credentials assigned to your Eligible Users and will promptly deactivate any Pictometry Credentials you suspect are lost. stolen,compromised,or misused. 2.2 The Online Services,the Licensed Content,and features and functionality within the Online Services may be enhanced,added to, withdrawn,or otherwise changed by Pictometry without notice. 2.3 You are aware and understand that any user data collected or stored by the Online Services may be accessed by US law enforcement agencies under the US PATRIOT Act.You hereby release,and agree to hold Pictometry-harmless from.all claims against Pictometry i with respect to such access. 3.DISCLAIMERS 3.1 The Online Services and the Licensed Content are provided for visualization purposes only,are not authoritative or definitive,and do not constitute professional engineering or surveying services. 3.2 The Online Services and the Licensed Content are not to be relied upon to precisely locate or determine property boundaries and should not be used in lieu of a professional survey where the accuracy of measurements,distance,height,angle,area and volume,may have significant consequences. 3.3 All measurements and repports generated by the Online Services or from the Licensed Content are based upon second order visualization and measurement data that do not provide authoritative or definitive measurement results suitable for professional engineering or surveying purposes. 3.4 Contour information obtained from the Online Services or contained in the Licensed Content is generated from undersampled elevation data,is provided for informational purposes only,and is not suitable for use as the basis for hydrographic computations, estimations or analyses. 3.5 While the Online Services and the licensed Content may be considered useful supplements for life critical applications,they are not designed or maintained to support such applications and Pictometry and its third party suppliers of the Online Services and the Licensed Content hereby disclaim all liability for damages claims and expenses arising from such use. 3.6 Your reliance on the Online Services and the Licensed Content should only be undertaken after an independent review of their accuracy,completeness,efficacy,timeliness and adequacy for your intended purpose. 3.7 Pictometry and each third party supplier of any portion of the Online Services or the Licensed Content assume no responsibility for any consequences resulting from the use of the Online Services or the Licensed Content. 3.8 Pictometry and each third party,supplier of any portion of the Online Services or the Licensed Content hereby disclaim all liability for damages,claims and expenses arising from or in any way related to the accuracy or availability of the Online Services and the Licensed Content. 3.9 By accepting these General Terms and Conditions or by using the Online Services or the Licensed Content,you waive any and all rights you may have against Pictometry,each third party supplier of any portion of the Online Services or the Licensed Content,and each of their directors,officers,members and employees,arising out of use of or reliance upon the Online Services or the Licensed Content. 4.LIMITED WARRANTY 4.1 Pictometry represents and warrants that it has the right and authority to make the Online Services and the Licensed Content available to you and your Eligible Users as authorized expressly by this License Agreement. 4.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 4.1.THE ONLINE SERVICES AND LICENSED CONTENT ARE PROVIDED ON AN"AS iS","AS AVAILABLE"BASIS AND PICTOMETRY AND EACH THIRD PARTY SUPPLIER OF LICENSED CONTENT EXPRESSLY DISCLAIM ALL OTHER WARRANTIES.INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 5.LIMITATION OF LIABILITY 5.1 No Covered Party(as defined below)shall be liable for any loss,injury,claim,liability,or damage of any kind resulting in any way from(a)any errors in or omissions from the Online Services or the Licensed Content,(b)the unavailability or interruption of the Online Services or any features thereof or the Licensed Content,(c)your or an Eligible User's use of the Online Services or the Licensed Content, (d)the loss or corruption of any data or equipment in connection with the Online Services or the Licensed Content,(e)the content, accuracy,or completeness of the Licensed Content,all regardless of whether you received assistance in the use of the Online Service from a Covered Parry,(f)any delay or failure in performance beyond the reasonable control of a Covered Party,or(g)any content retrieved from the Internet even if retrieved or linked to from within the Online Services. 5.2"Covered Party"means(a)Pictometry and any officer,director,employee,subcontractor,agent,successor,or assign of Pictometry; and(b)each third party supplier of any Licensed Content,third party alliance entity,their affiliates,and any officer,director,employee, subcontractor,agent,successor,or assign of any third party supplier of any Licensed Content or third party alliance entity and their affiliates. 5.3 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW,UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF THE COVERED PARTIES iN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE ONLINE SERVICES OR THE LICENSED CONTENT OR THiS LICENSE AGREEMENT EXCEED THE LESSER OF YOUR ACTUAL DIRECT DAMAGES OR THE AMOUNT YOU PAID FOR THE ONLINE SERVICES iN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE.YOUR RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST ANY COVERED PARTY. 5.4 TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW,NEITHER YOU NOR THE COVERED PARTIES WILL BE LIABLE FOR ANY SPECIAL,INDIRECT,INCIDENTAL,OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING,WITHOUT LIMITATION,ATTORNEYS'FEES)IN ANY WAY DUE TO,RESULTING FROM,OR ARISING IN CONNECTION WITH THE ONLINE SERVICES,THE LICENSED CONTENT,OR THE FAILURE OF ANY COVERED PARTY TO PERFORM ITS OBLIGATIONS.THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO A PARTY'S INDEMNITY OBLIGATIONS OR YOUR(AND YOUR ELIGIBLE USERS')INFRINGEMENT OF INTELLECTUAL PROPERTY OR MISAPPROPRIATION OF PROPRIETARY DATA BELONGING TO PICTOMETRY OR ITS THIRD PARTY SUPPLIERS. 5.5 Notwithstanding anything to the contrary in this Section 5: (a)If there is a breach of the warranty in Section 4.1 above,then Pictometry,at its option and expense,shall either defend or settle any action and hold you harmless against proceedings or damages of any kind or description based on a third party's claim of patent, trademark,service mark,copyright or trade secret infringement related to use of the Online Services or the Licensed Content,asserted against you by such third party provided:(i)all use of the Online Services and the Licensed Content was in accordance with this License Agreement;(ii)the claim,cause of action or infringement was not caused by you modifying or combining the Online Services or the Licensed Content with or into other products,applications,images or data not approved by Pictometry;(iii)you give Pictometry prompt notice of such claim.and(iv)you give Pictometry the right to control and direct the investigation,defense and settlement of such claim. You,at Pictometry's expense,shall reasonably cooperate with Pictometry in connection with the foregoing. (b)In addition to Section 5.5(a),if the Online Services,the operation thereof or the Licensed Content become,or in the opinion of Pictometry are likely to become,the subject of a claim of infringement,Pictometry may,at its option and expense,either:(i)procure for you the right to continue using the Online Services or the Licensed Content,(ii)replace or modify the Online Services or the Licensed Content so that they become non-infringing;or(iii)terminate the License Agreement on notice to you and grant you a pro-rata refund or credit(whichever is applicable)for any pre-paid fees or fixed charges. (c)The provisions of Sections 5.5(a)and(b)shall constitute your sole and exclusive remedy for the respective matters specified therein. 6.MISCELLANEOUS 6.1 The terms and conditions of this License Agreement may be changed from time to time immediately upon notice to you. If any changes are made to this License Agreement,such changes will:(a)only be applied prospectively;and(b)not be specifically directed against you or your Eligible Users but will apply to all similarly situated Pictometry customers using the Online Services.You may terminate this License Agreement upon written notice to Pictometry if any change to the terms and conditions of this License Agreement is unacceptable to you. For termination to be effective under this Section 6.1,written notice of termination must be provided to Pictometry within 90 days of the effective date of the change.Continued use of the Online Services following the effective date of any change constitutes acceptance of the change,but does not affect the foregoing termination right.Except as provided above,this License Agreement may not be supplemented,modified or otherwise revised unless signed by duly authorized representatives of both parties. Furthermore,this License Agreement may not be supplemented,modified or otherwise revised by email exchange,even if the email contains a printed name or signature line bearing signature-like font.The foregoing does not prohibit the execution of electronic contracts bearing electronic signatures of authorized representatives of both parties,provided such signatures include digital certifications or are otherwise authenticated. 6.2 In the event of a breach of this License Agreement by you,any Eligible User or someone using the Pictometry Credential of an Eligible User,Pictometry may temporarily suspend or discontinue providing access to the Online Services to any or all Eligible Users without notice and Pictometry may pursue any other legal remedies available to it. 6.3 All notices and other communications hereunder shall be in writing or displayed electronically in the Online Services by Pictometry. Notices shall be deemed to have been properly given on the date deposited in the mail,if mailed;on the date first made available,if displayed in the Online Services;or on the date received,if delivered in any other manner.Legal notices to Pictometry•should be sent to Pictometry,Attn:General Counsel,25 Methodist Hill Drive,Rochester,New York 14623. 6.4 The failure of you.Pictometry,or any third party supplier of the Online Services or any Licensed Content to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. 6.5 Neither you nor any Eligible User may assign or otherwise transfer your rights or delegate your duties under this License Agreement without the prior written consent of Pictometry.Any attempt by you or any Eligible User to assign,transfer or delegate your rights or obligations under this License Agreement without Pictometry's consent shall be void,and shall also void the limited license granted to you by this License Agreement.This License Agreement and any amendment thereto shall be binding on,and will inure to the benefit of the parties and their respective successors and permitted assigns. 6.6 This License Agreement shall be governed by and interpreted in accordance with the laws of the State of New York,excluding its conflicts of law principles.Unless you are a government entity,in the event that any legal proceedings are commenced with respect to any matter arising under this License Agreement,the parties specifically consent and agree that the courts of the State of New York or,in the alternative,the Federal Courts located in the State of New York shall have exclusive jurisdiction over each of the parties and over the subject matter of any such proceedings,and that the venue of any such action shall be in Monroe County.New York or the U.S.District Court for the Western District of New York,as applicable. 6.7 This License Agreement will be enforced to the fullest extent permitted by applicable law.If any provision of this License Agreement is held to be invalid or unenforceable to any extent,then(a)such provision will be interpreted,construed and reformed to the extent reasonably required to render it valid,enforceable and consistent with its original intent and(b)such invalidity or unenforceability will not affect any other provision of this License Agreement. 6.8 Where applicable,each affiliated company of Pictometry and each third party supplier of the Online Services or any Licensed Content has the right to assert and enforce the provisions of this License Agreement directly on its own behalf as a third party beneficiary. 6.9 In the event of a breach of your obligations under this License Agreement or your payment obligations with respect to access to the Online Services or the Licensed Content,you agree to pay all of Pictometry's costs of enforcement and collection,including court costs and reasonable attorneys'fees. 6.10 This License Agreement constitutes the entire agreement of the parties with respect to its subject matter and replaces and supersedes any prior written or verbal communications,representations,proposals or quotations relating to that subject matter, (END OF PICTONIETRY ONLINE SERVICES GENERAL TER.14S AND CONDITIONS)