The Virginia Department of Transportation (VDOT) has established a Data Portal System, known as SmarterRoads, (hereafter referred to as “SmarterRoads”) to provide transportation operations, road condition and other related data from the VDOT transportation system (hereafter referred to as “VDOT Data”) to the User.

The VDOT Data includes, but is not limited to, data relating to interstate highways and other non-interstate roadways and disseminates transportation operations and traffic data including data displayed on Dynamic Message Signs (DMS). The VDOT Data may also include non-transportation data that may be relevant to VDOT’s or the Commonwealth of Virginia’s goals or purposes.

VDOT also may provide the User access to transportation data or other data originating from, and owned by, a third-party source and which VDOT is authorized to make available on SmarterRoads.

VDOT has established a contract with an independent contractor (“SmarterRoads Manager”) to exclusively operate and maintain SmarterRoads and to serve as a point of contact for all Users of VDOT or Third Party data services through SmarterRoads.

User requests access to SmarterRoads in order to provide or retrieve VDOT Data and Third Party Data (as each are further defined herein) that VDOT has authorized the SmarterRoads Manager to collect and distribute.

In consideration of the terms and conditions contained herein, the User agrees as follows:

Definitions:

For purposes of this Agreement, the following terms shall have the meanings as set forth hereunder:

“End User” or “User” means any entity which requests or receives information and data via SmarterRoads. “User” also includes any Third-Party which uploads or otherwise makes available Third Party Data via SmarterRoads.

“VDOT Data” means all information made available by VDOT at its sole discretion via SmarterRoads and that the SmarterRoads Manager has been authorized to distribute and disseminate to entities such as User, and includes multi-modal transportation data, traffic data such as travel speeds, crashes and other traffic incident information, lane closures, construction zones, events, weather-related hazards, congestion, and any other information relating to or affecting roadway travel, and other information and data that is relevant to VDOT’s or the Commonwealth of Virginia’s goals and purposes, and any derivative thereof.

Conditions of Access and Use

User access to VDOT Transportation Data, via SmarterRoads, is subject to the terms and conditions contained herein.

The VDOT Data and Third Party Data available to the User via SmarterRoads may be used for operations and/or research related to the fields of traffic, traffic incident management, transportation, public safety, state or municipal administration, emergency management, intelligent transportation systems, connected and autonomous vehicles, and other related matters within the purview of User’s official functions.

User will be provided a unique identification and password that will allow User access to SmarterRoads. User may not allow anyone other than User to access SmarterRoads using such identification and password, except for authorized employees and agents of User. User is responsible for all use by any person accessing SmarterRoads via User’s unique identification and password.

VDOT reserves the right to restrict data quantities or download speeds available to any individual User due to excessive or improper use of SmarterRoads, including but not limited to cumulative excessive load beyond normal operating capacity of SmarterRoads, by such individual User.

User agrees not to use, disseminate, market, or promote any product using VDOT Data, or Third Party Data that the User obtained from SmarterRoads, which may be considered by VDOT, in VDOT’s sole discretion, to be offensive, vulgar, immoral, or illegal. User agrees that it will not use VDOT Data, or Third Party Data that the User obtained from SmarterRoads, in furtherance of the commission of any crime or illegal act, nor will User willingly or knowingly allow third-parties to use VDOT Data, or Third Party Data that the User obtained from SmarterRoads, in an offensive, vulgar, immoral, or illegal manner or in the furtherance of any crime.

User and VDOT shall in no event be deemed to be in a relationship of principal/agent, employer/employee, partners or joint ventures. User and the SmarterRoads Manager shall in no event be deemed to be in a relationship of principal/agent, employer/employee, partners or joint ventures. User may not make any public representation that User has a relationship with either VDOT or the SmarterRoads Manager that is contrary to this paragraph.

Rights

Notwithstanding anything in this Agreement to the contrary, VDOT reserves the right to suspend access to any data feeds without prior notice, if VDOT determines that continued availability or dissemination of the data feed is inappropriate or is no longer consistent with VDOT’s or the Commonwealth of Virginia’s goals or purposes. Notwithstanding anything in this Agreement to the contrary, VDOT reserves the right to disable a User’s ability to provide Third Party Data at any time and to quarantine or remove such data from SmarterRoads without prior notice, if VDOT determines that continued availability or dissemination of the data feed is inappropriate, harmful, or is no longer consistent with VDOT’s or the Commonwealth of Virginia’s goals or purposes.

VDOT retains exclusive ownership of all VDOT Data provided under this Agreement. Nothing in this Agreement grants User any rights to own or to claim exclusive access to or exclusive use of any VDOT Data. Any Third Party which has provided Third Party Data that is available via Smarter Roads retains exclusive ownership of all such Third Party Data to the extent it claimed such right prior to the provision of such data. Nothing in this Agreement grants User any rights to own or to claim exclusive access to or exclusive use of any Third Party Data.

Nothing in this Agreement grants User any rights to use any copyrighted or trademarked information, logo, or name, unless explicitly agreed to by the respective owner of the copyright or trademark in writing. User agrees that any and all goodwill arising out of the use of VDOT trademarks shall inure to the benefit of and belong to VDOT. User agrees that any and all goodwill arising out of the use of Third Party trademarks shall inure to the benefit of and belong to said Third Party, unless said Third Party otherwise agrees in writing.

This Agreement does not grant any exclusive rights to the User. VDOT may enter into similar agreements with other entities. User may not prohibit others from using any VDOT Data or Third Party Data due to User’s use of or modification of such data in the development, marketing, promotion or distribution of User’s products, software or services.

Nothing in this Agreement will impair VDOT’s or the SmarterRoads Manager’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any other products, software or technologies that User may develop, produce, market, or distribute. In the absence of a separate written agreement to the contrary, VDOT will not owe any compensation or damages of any kind to User due to VDOT’s independently created products that perform the same or similar functions as, or otherwise compete with, any other products, software, or technologies that User may develop, produce, market, or distribute, subject to any applicable patents or copyrights.

The User is prohibited from entering into agreements that preclude any other party from entering into an agreement with VDOT or inducing any other party to enter into such agreements.

Nothing in this Agreement with User modifies or negates any other data sharing or data use agreement that VDOT may have with any other user or entity.

Third Party Data

Any User providing or desiring to provide Third Party Data shall coordinate with the SmarterRoads Manager to provide such data in an appropriate format. Any User providing or desiring to provide Third Party Data shall be responsible for any costs incurred by the SmarterRoads Manager by making the Third Party Data available on SmarterRoads, prior to such data being made available.

Any User providing or desiring to provide Third Party Data hereby warrants that such User owns or has the right to disseminate that data and that such data does not infringe on any other User’s intellectual property rights. Any User providing or desiring to provide Third Party Data hereby warrants that such data complies with all federal and applicable state laws concerning the dissemination of data.

The provision of Third Party Data to SmarterRoads does not create a legal partnership or agency relationship between the User and either VDOT or the SmarterRoads Manager, and any User providing or desiring to provide Third Party Data is prohibited from representing such a relationship. The User agrees not to exploit SmarterRoads in any unauthorized way, including, but not limited to, by trespass, overburdening network capacity, or using the ability to provide data to SmarterRoads for any purpose other than those expressly authorized by this Agreement.

Use of SmarterRoads, VDOT Data or Third Party Data, or the ability to provide Third Party Data to other Users via SmarterRoads, to violate, tamper with, or circumvent the security of any computer network, software, passwords, encryption codes, technological protection measures, or to otherwise engage in any kind of illegal activity, or to enable others to do so, is expressly prohibited.

The SmarterRoads Manager may provide technical support to any User providing or desiring to provide Third Party Data to the extent necessary to enable the provision of such data via SmarterRoads. USER AGREES THAT SUCH TECHNICAL SUPPORT SERVICES MAY BE DISCONTINUED WITHOUT PRIOR NOTICE. USER ALSO AGREES THAT NEITHER VDOT NOR THE SMARTERROADS MANAGER SHALL BE LIABLE TO THE USER OR ANY THIRD PARTY FOR ANY DAMAGES ARISING FROM THE PROVISION OF TECHNICAL SUPPORT PURSUANT TO THIS AGREEMENT.

USER AGREES THAT ALL THIRD PARTY DATA MADE AVAILABLE BY THE USER VIA SMARTERROADS AND ALL INFORMATION, SOFTWARE OR DATA PROVIDED TO VDOT OR THE SMARTERROADS MANAGER WHEN REQUESTING OR RECEIVING TECHNICAL SUPPORT IS NOT CONFIDENTIAL TO THE USER OR TO ANY OTHER THIRD PARTY. USER AGREES THAT ANY STATEMENT, NOTICE, OR LABEL PROVIDED TO VDOT OR THE SMARTERROADS MANAGER TO THE CONTRARY SHALL HAVE NO EFFECT.

Liability

USER SHALL AT ALL TIMES, TO THE EXTENT PERMITTED OR PROVIDED BY LAW, BEAR RESPONSIBILITY FOR ANY AND ALL CLAIMS, ACTIONS, LIABILITIES, LOSSES, DAMAGES, COSTS AND DISBURSEMENTS, INCLUDING BUT NOT LIMITED TO LEGAL FEES, ARISING OUT OF OR RELATING TO ANY BREACH OR ALLEGED BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT OF THE USER HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY CLAIMS BY THIRD PARTIES RELATING TO OR ARISING OUT OF USER’S PROVISION, DISPLAY OR DISSEMINATION OF VDOT DATA OR THIRD PARTY DATA AND INFORMATION. THIS INCLUDES, BUT IS NOT LIMITED TO, ALL IMAGES OR DATA OFFERED PURSUANT TO THIS AGREEMENT. THIS PROVISION SHALL SURVIVE THE EXPIRATION OR THE TERMINATION OF THIS AGREEMENT.

IN NO EVENT SHALL VDOT, THE SMARTERROADS MANAGER AND/OR ANY SUPPLIERS BE LIABLE FOR ANY DAMAGES, CLAIM OR LOSS INCURRED BY THE USER, (INCLUDING, WITHOUT LIMITATION, COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOST PROFITS, LOST SALES OR BUSINESS, OR LOSS OF GOODWILL) RESULTING FROM LOSS OF OR INABILITY TO USE SMARTERROADS OR DUE TO USER’S RELIANCE ON VDOT DATA OR THIRD PARTY DATA, IRRESPECTIVE OF WHETHER VDOT AND ITS SUPPLIERS HAVE BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES, CLAIM, OR LOSS. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY OTHER CAUSES OF ACTION.

USER AGREES TO INDEMNIFY AND HOLD HARMLESS VDOT AND THE SMARTERROADS MANAGER FOR ANY AND ALL DAMAGES CAUSED BY ANY PERSON ACCESSING SMARTERROADS VIA USER’S UNIQUE IDENTIFICATION AND PASSWORD OR ARISING IN WHOLE OR IN PART FROM USE BY SUCH A PERSON.

“AS IS” Use, No Warranties

VDOT and the SmarterRoads Manager make no warranties of any kind with respect to SmarterRoads and VDOT Data, including, but not limited to, any warranty of merchantability, non-infringement, fitness for a particular purpose, suitability for an intended purpose, or absence of harmful content.

VDOT and the SmarterRoads Manager make no warranties or representations of any kind with respect to Third Party Data available via SmarterRoads, including, but not limited to, any warranty of merchantability, non-infringement, fitness for a particular purpose, suitability for an intended purpose, or absence of harmful content. VDOT and the SmarterRoads Manager do not evaluate, inspect, validate or provide substantive approval for any Third Party Data.

VDOT, THE SMARTERROADS MANAGER, AND THEIR EMPLOYEES, AFFILLIATES, AGENTS, AND OFFICERS DO NOT PROMISE, WARRANT, OR REPRESENT THAT ANY DATA OR INFORMATION USER OBTAINS FROM SMARTERROADS IS OR WILL BE ACCURATE, RELIABLE, TIMELY, SECURE, ERROR-FREE, OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE TIMELY CORRECTED.

THE VDOT DATA AND THIRD PARTY DATA IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, AND IS SUBJECT TO CHANGE OR MODIFICATION WITHOUT NOTICE. VDOT AND THE SMARTERROADS MANAGER CANNOT ENSURE THAT ANY DATA ACCESSED FROM SMARTERROADS IS FREE FROM CORRUPTION, VIRUSES, OR OTHER MALWARE. USER ASSUMES ALL RISK RESULTING FROM ACCESSING OR USING THE VDOT DATA, THIRD PARTY DATA, AND SMARTERROADS.

Assignment of Agreement

The consent to use provided by VDOT in this Agreement is non-transferrable. The User may not assign, transfer, convey, or otherwise dispose of the Agreement or any part thereof without the prior written consent of VDOT. User agrees that the SmarterRoads Manager may assign, or may be required by VDOT to assign, this Agreement to VDOT or to another VDOT contractor, User hereby acknowledges and accepts any such assignment, and any access or use after such assignment is contingent on User’s acknowledgement and acceptance of such assignmen

Compliance with Laws and Regulations

User at all times shall observe and comply with all federal, state, and local laws, regulations, ordinances, orders, and decrees applicable to these services and SmarterRoads and User’s access to and use of VDOT Data or Third Party Data via SmarterRoads. User shall, to the extent permitted by applicable law, bear responsibility for any and all claims of liability, actions, liabilities, losses, damages, costs and disbursements, including but not limited to legal fees, arising from or based on User’s violation of any such law, regulation, ordinance, order or decree, whether by User or anyone associated with User, arising out of or relating to User’s access or use of SmarterRoads and VDOT Data or Third Party Data pursuant to this Agreement.

THIS AGREEMENT AND ANY DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF SMARTERROADS, VDOT DATA AND THIRD PARTY DATA SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE COMMONWEALTH OF VIRGINIA. ANY ACTION BY USER ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE FILED IN THE CIRCUIT COURT FOR THE CITY OF RICHMOND, VIRGINIA. AS TO ANY ACTION BY VDOT OR THE SMARTERROADS MANAGER, USER AGREES TO SUBMIT TO AND WAIVE ANY OBJECTIONS TO PERSONAL JURISDICTION OF AND VENUE IN ANY CIRCUIT COURT OF THE COMMONWEALTH OF VIRGINIA OR IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA.

Term of Agreement

This Agreement shall remain in effect from the date first accepted and acknowledged by User until terminated. This Agreement shall expire automatically if the service is permanently discontinued.

Termination

VDOT and User recognize the value and importance of clear, accurate and consistent public communications regarding the transactions contemplated by this Agreement. Accordingly, the User agrees that VDOT may review the timing and content of any public announcement regarding the User’s use of VDOT Data as described in this Agreement, and may terminate this Agreement and prepare its own public announcement if VDOT determines it appropriate to do so.

Communications

VDOT and User recognize the value and importance of clear, accurate and consistent public communications regarding the transactions contemplated by this Agreement. Accordingly, the User agrees that VDOT may review the timing and content of any public announcement regarding the User’s use of VDOT Data as described in this Agreement, and may terminate this Agreement and prepare its own public announcement if VDOT determines it appropriate to do so.

Modification of Agreement/Miscellaneous Terms

TThis Agreement constitutes the entire agreement between VDOT and User and supersedes all other agreements regarding the subject matter herein between VDOT and User.

This Agreement may be modified by VDOT at any time. User’s access to or use of SmarterRoads and VDOT Data or Third Party Data via SmarterRoads represents User’s consent to the then-current version of this Agreement.

To the extent User is afforded status as a sovereign entity or is afforded sovereign immunity under Virginia law, nothing in this agreement shall constitute or be deemed to constitute a waiver of said sovereign status or immunity. Nothing in this agreement shall constitute a waiver of VDOT’s sovereign immunity or VDOT’s right to assert any defense or claim available to VDOT under Virginia law.

If any provision of the Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.