Terms of Service for Users of Populus Products
Updated as of August 17, 2021
Reviewed December 5, 2023
Populus offers Terminal Services on both a trial and paid basis.
These Terms of Service For Users of Terminal Services (“Terms of Service”) together with our Privacy Policy, and any applicable Order Form (“Order”) issued hereunder, (collectively, the “Agreement”), is between Populus Technologies, Inc., a Delaware corporation, with a place of business at 177 Post Street, Suite 200, San Francisco, CA 94108, and you (and, if applicable, the company you represent, collectively referred to in this document as “Customer”). If you are accepting this Agreement on behalf of a government entity, a company, or other entity, you represent and warrant that: (a) you have full legal authority to bind that agency, company, or entity to this Agreement; (b) you have read and understand this Agreement; and (c) you and your agency, company, or entity agree to this Agreement. You acknowledge that this Agreement is legally binding and shall have the same legal validity and enforceability as a manually executed contract, to the fullest extent permitted by applicable law.
Populus and Customer may each be referred to individually herein as a “Party” and collectively as the “Parties”. By accessing and using Terminal Services, Customer accepts this Agreement, which becomes effective on the date set forth on an applicable Order Form or the date the Customer first accesses or uses the Terminal Services, whichever is earlier. In the event of any conflict between the terms of these Terms of Service and API Access License, the Terms of Service will prevail. In the event of any conflict between the terms of these Terms of Service and any Order Form, the terms of the applicable Order Form will prevail. Populus and Customer agree as follows:
1) Definitions:
a) “Authorized Users.” means any employee of Customer, or any such other individual, who has a reasonable need to access or use the data in Terminal Services in connection with Customer’s Authorized Purpose, and who has been authorized by a mutually agreed upon written Order by the Parties, to access and use the Terminal Services pursuant to the terms and conditions of this Agreement.
b) “Customer Content” means any content, data, and information provided to Populus by Customer for use with the Terminal Services, including, without limitation, any Mobility Data, if applicable. Customer Content does not include Published Content unless such content is Published in Terminal Services.
c) “External Materials” shall mean external communications, including but not limited to its products, services, presentations, publications, posters, abstracts, APIs, or other materials intended for external audiences
d) “Laws” mean all applicable federal, state, or local laws, regulations and orders
e) “Mobility Provider” means an operator of a transportation or rideshare service or platform that provides or facilitates transportation by train, bus, car, bicycle, scooter or any other mode of transportation and is required to provide transportation related data and information to User or its Authorized Users by contract, permit or other applicable ordinance, regulation or law.
f) “Mobility Data” means any data or other information made available to Populus by a Mobility Provider at the direction, or for the specific benefit, of the User in providing Terminal Services.
g) “Order Form” means a written order form entered into between Populus and Customer that sets forth any commercial or other terms applicable to Customer’s use of Terminal Services.
h) “Personal Information” shall mean any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household
i) “Populus Data” means (i) data developed by Populus and derived from sources including but not limited to Customer Content and (ii) and any other datasets that Populus may make available in connection with Terminal Services.
j) “Privacy Laws” means any statute, legislation, regulation, or ruling of any entity with relevant jurisdiction, including government, regulatory authorities, agencies, or commissions, with respect to individual privacy and/or access to Personal Information, and with respect to the collection, use or disclosure of Personal Information
k) “Published Content” shall mean any Customer Content Published in Terminal Services by Customer.
l) “Published” shall mean any content, data, and information, including Customer Content, that has been prepared and issued for external use by Customer or its Authorized Users through the “Publish” function within Terminal Services.
m) “Term” shall mean the period during which Customer is authorized to use or access the Terminal Services pursuant to the terms set forth in this Agreement and any applicable Order Form, unless earlier terminated as set forth in Section 7.
n) “Terminal Services” means any or all portions of the Populus platform, and the data contained therein including Populus Data, made available to the Customer through the online, web-based software-as-a-service application.
o) “Trial Period” means a period of time specified to you by Populus in its sole discretion, during which your use of Terminal Services is free of charge, subject to any additional terms and conditions that may be specified to you by Populus in its sole discretion.
p) “Trial User” means a user of Terminal Services during a Trial Period.
2) License to Terminal Services and the Populus Data
a) License. Subject to the terms and conditions of this Agreement, Populus hereby grants to Customer, during the Term of this Agreement, a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Terminal Services solely for Customer’s internal business purposes, and any external purposes expressly permitted hereunder (the “Authorized Purpose”). This does not include any right to directly access the software, databases, algorithms or data which powers the Terminal Services, nor any right to obtain a copy of the source code or architecture thereof. Customer’s access and use of the Terminal Services shall be restricted to only its Authorized Users and shall comply with the terms and conditions set forth below.
b) Authorized Users. If Customer wishes to add additional Authorized Users, Customer may make a written request to Populus. Upon Populus’ approval and the execution of a new written Order by the Parties, Populus shall make the Terminal Services available to the additional Authorized Users . Any non-employee Authorized Users of Customer must be identified and approved by Populus prior to receiving access to the Terminal Services. Customer is responsible for ensuring Authorized Users comply with the terms of this Agreement and all applicable laws. Any use of Terminal Services by Customer or any Authorized User in violation of the above shall be a breach of this Agreement by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Terminal Services, and notify Populus promptly of any such unauthorized access or use known to Customer. Customer acknowledges and agrees that any use of Terminal Services in violation of this paragraph may cause Populus irreparable harm, and that Populus may be entitled to seek equitable remedies, including without limitation, a temporary restraining order or injunction, to prevent the continuation of any such violation. Any such remedies shall be supplemental to any other remedies available to Populus at law or in equity.
c) Limitations on Use of Products
i.The following are limitations on Customer use of Terminal Services. Customer will not, directly or indirectly:
ii. rent, lease, distribute, sublicense, or loan the Terminal Services to any third party or permit any third party to access and/or use the Terminal Services;
iii. reverse engineer, disassemble, decompile, reverse compile, or create any derivative work from any part of the Terminal Services, except as expressly permitted herein;
iv. use any of the Terminal Services in order to develop any product or service competitive with Populus’ services and offerings;
v. store, publish, reproduce, copy, or excerpt any data contained in the Terminal Services in Customer’s External Materials, without Populus’ prior, written approval. Any External Materials approved by Populus shall be conspicuously marked with the following proprietary notice, “Source: Populus Technologies, Inc.”;
vi. unless otherwise agreed, use the Terminal Services, in whole or in part, in the operation of a service bureau or on an application or software as a service provider basis to support anyone or to provide data aggregation or similar services;
vii. unless otherwise agreed, incorporate any part of the Terminal Services into any product or service of Customer, or any other product or service, except as provided for in the API License or provided for in the Order form; or
viii. otherwise use the Terminal Services in any manner prohibited by the Agreement.
3) Licenses to Customer Content and Published Content; Feedback
a) Customer Content License.
i. Subject to the terms and conditions of this Agreement, and where applicable, Customer hereby grants to Populus during the Term of this Agreement, a non-transferable (except as provided herein), non-exclusive, fully paid-up, royalty-free license to access, use, modify, directly or through third parties, and create derivative works of Customer Content for the purpose of providing the Terminal Services and other third party products and services that integrate with the Terminal Services. Customer represents and warrants that it has and will retain all necessary rights to provide that license to Populus.
ii. Customer Rights and Warranties. Nothing contained herein shall be construed as Populus limiting Customer’s use of Customer Content at Customer’s discretion, subject to compliance with applicable law and the rights, if any, of any third party. Without limiting Customer’s ownership and use of Customer Content, by sharing or submitting Customer Content to Populus, Customer hereby represents and warrants to Populus that Customer owns Customer Content or has obtained from third parties all rights necessary to use and transfer Customer Content, including Mobility Data, to Populus in accordance with the terms of this Agreement without infringing on the rights of any such third party.
iii. Sharing of Customer Content. On or as soon as reasonably practicable, Customer shall provide Populus with access to the Customer Content needed to provide Terminal Services, including Mobility Data, in a format mutually agreed upon by the Parties. Populus shall only grant access to those employees, contractors or consultants of Populus with reasonable need to access Customer Content, use commercially reasonable efforts to prevent unauthorized access or use of the Customer Content, and notify Customer promptly of any such unauthorized access or use known to Populus.
iv. Limitations on Use of Mobility Data. Without limiting the terms of Section 3(a), Populus will not, directly or indirectly:
(1) rent, lease, distribute, sublicense, or loan the Mobility Data to any third party;
(2) reverse engineer, disassemble, decompile, reverse compile, or create any derivative work from any part of the Mobility Data, except as expressly permitted herein;
(3) otherwise use the Mobility Data in any manner prohibited by the Agreement.
(4) Populus agrees to use the Mobility Data only in accordance with all applicable federal, state, or local laws, regulations and orders.
b) Published Content; Published Content Rights. By Publishing Customer Content to Terminal Services, Customer Content becomes Published Content and is subject to the terms governing Published Content (“Published Content Rights”). Customer warrants that Published Content is intended for external use and is subject to the following terms:
i) Published Content License. Customer hereby grants Populus a nonexclusive, sublicensable, perpetual, irrevocable, worldwide, fully paid-up, royalty-free license to access, use, transfer, copy, reproduce, distribute, publicly perform, publicly display, digitally perform, modify, directly or through third parties, create derivative works of and otherwise commercially exploit Published Content, in whole or in part, for any lawful purposes and in any media formats.
ii) Warranties. Customer hereby represents and warrants that Published Content, which may be made publicly available through Populus APIs, is accurate, current, and complete and represents and warrants that Customer has all necessary rights to submit and publicly display such Published Content. If Published Content becomes invalid or inaccurate, Customer will make commercially reasonable efforts to address discrepancies in the Published Content in a timely manner.
iii) Attribution. Populus will provide attribution to Customer for Published Content consistent with its attribution to similarly-situated licensors, subject to form factor or technical limitations (including space-constricted displays).
c) Feedback. During the course of Customer and its Authorized Users’ use of Terminal Services pursuant to this Agreement, Customer and its Authorized Users may provide certain suggestions, enhancement requests, recommendations, corrections or other feedback or information to Populus about Terminal Services (collectively, “Feedback”). You hereby grant to Populus and its Affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, assignable and royalty-free license to modify, copy, distribute and incorporate into the Products (without requirement of attribution or payment to you of any kind) any such Feedback.
4) Limited Use of Customer’s Trademark.
a) Except with respect to Trial Users, Customer hereby grants to Populus during the Term a non-exclusive, non-transferable, non-sublicenseable license to use of Customer’s name and logo or logos (the “Licensed Marks”) on Populus’s marketing materials and to reference Customer as a Populus customer therein. Customer reserves all rights not expressly granted to Populus under this Agreement.
b) Populus acknowledges that:
i) Customer is the owner of the Licensed Marks and all goodwill related thereto, and
ii) all use of the Licensed Marks under this Agreement and any goodwill accruing from such use will inure solely to the benefit of the Customer.
iii) If Populus acquires any rights in the Licensed Marks, by operation of law or otherwise, Populus hereby irrevocably assigns such rights to Customer without further action by any of the Parties. Populus agrees not to dispute or challenge Customer’s rights in and to the Licensed Marks or the validity of the Licensed Marks. Populus agrees that it shall not, during the Term or thereafter, directly or indirectly:
1) take, omit to take, or permit any action which will or may dilute the Licensed Marks or tarnish or bring into disrepute the reputation of or goodwill associated with the Licensed Marks or with the Customer, or which will or may invalidate or jeopardize any registration of the Licensed Marks; or
2) apply for, or obtain, or assist anyone in applying for or obtaining any registration of the Licensed Marks, or any trademark, service mark, trade name, or other indicia confusingly similar to the Licensed Marks.
5) Ownership. Except as expressly set forth in this Agreement, Populus, and its licensors, retains all right, title and interest in and to the Terminal Services, and all intellectual property rights therein. Nothing in this Agreement shall be construed as granting to Customer or any Authorized User any rights in or to the Terminal Services, except for the limited access and use rights set forth herein. Populus reserves all rights not expressly granted to Customer under this Agreement. In the event Customer acquires any ownership rights, title or interest in or to the Terminal Services, Customer shall and hereby does assign to Populus, Customer’s entire right, title and interest to the Terminal Services, including all intellectual property rights therein.
6) Fees and Payment. Customer agrees to pay Populus any fees as mutually agreed upon in each written Order by the Parties (“License Fees”). All payments must be made in U.S. dollars. All payment obligations are non-cancelable, and all amounts paid are non-refundable. The License Fees exclude all applicable Sales Tax (defined below). If any Terminal Services data, or payments for any Terminal Services data, under this Agreement are subject to Sales Tax in any jurisdiction and Customer has not remitted the applicable Sales Tax to Populus, Customer will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority and Customer will indemnify Populus for any liability or expense Populus may incur in connection with such Sales Taxes. Upon Populus’ request, Customer will provide Populus with official receipts issued by the appropriate taxing authority, or other such evidence that Customer has paid all applicable taxes. “Sales Tax” means any sales or use tax, and any other tax measured by sales proceeds that Populus is permitted to pass to Customer that is the functional equivalent of a sales tax, where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
7) Term and Termination
a) Term. The term of this Agreement shall be, for paid users only, the term set forth in the Order Form and for Trial Users, the Trial Period (collectively, the “Term”).
b) Termination for Breach. For paid users, in the event that the other Party materially breaches the Agreement and, within thirty (30) days after receiving written notice thereof, has failed to cure such material breach or to commence diligent efforts, that are reasonably acceptable to the Party, to cure such breach, either Party may terminate this Agreement immediately upon written notice to the other party
c) Effect of Termination. Upon expiration or termination, Customer (including all its Authorized Users) shall promptly discontinue use of the Terminal Services. Populus shall immediately stop all work related to the applicable Order and Customer shall pay Populus the applicable fees for any services actually completed in accordance with this Agreement and the applicable Order, together with all actual, non-mitigatable expenses reasonably incurred by Populus in accordance with Section 6 (Fees and Payment).
d) In the event of expiration or any termination of this Agreement, the following Sections shall survive: 2(c); 5; 6 (for unpaid fees due); 7(b)-(d); 8; 9; 10; and 11.
8) Confidential Information
a) Confidential Information. Either Party may disclose Confidential Information to the other Party during the Term of this Agreement. “Confidential Information” means all information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) which is in tangible form and labeled “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. The following information will be considered Confidential Information whether or not marked or identified as such: (i) the Terminal Services and any data contained therein; (ii) the Mobility Data, including any raw or processed data; (iii) the terms of this Agreement including all Orders and pricing thereto; and (iv) the Disclosing Party’s strategic roadmaps, product plans, product designs and architecture, technology and technical information, security processes, security audit reviews, business and marketing plans, and business processes.
b) Exceptions. Confidential Information will not include information that as shown by the Receiving Party’s records was: (i) already known to Receiving Party at the time of disclosure by the Disclosing Party; (ii) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of the Receiving Party has become, generally available to the public; or (iv) was independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.
c) Protection of Confidential Information. The Receiving Party will use no less than a reasonable standard of care to safeguard the Confidential Information received from the Disclosing Party. The Receiving Party will only use the Confidential Information of the Disclosing Party: (i) to exercise its rights and perform its obligations under this Agreement; or (ii) as otherwise required by law. Nothing in this Agreement shall prohibit Receiving Party from disclosing Confidential Information of Disclosing Party if legally required to do so by judicial or governmental order or in a judicial or governmental proceeding (“Required Disclosure”); provided that Receiving Party shall (i) give Disclosing Party prompt notice of such Required Disclosure prior to disclosure; (ii) give Disclosing Party at least ten (10) days to contest the Required Disclosure prior to disclosure of the Confidential Information; (iii) cooperate with Disclosing Party in the event that it elects to contest such disclosure or seek a protective order with respect thereto, and/or (iv) in any event only disclose the exact Confidential Information, or portion thereof, specifically requested by the Required Disclosure.
d) Populus warrants and represents that, Populus is complying and will fully comply with, all applicable Privacy Laws throughout the Term. Customer warrants and represents that Customer is in compliance, and will fully comply, with all applicable Privacy Laws and will take all reasonable steps within Customer’s power to ensure that Customer’s Authorized Users comply with all applicable Privacy Laws.
e) Upon termination or expiration of this Agreement, Receiving Party shall, at its sole discretion, either promptly return to the Disclosing Party all Confidential Information or destroy all tangible items comprising, bearing or containing any Confidential Information and provide a written certification of such destruction; provided, however, that the Recipient may retain one copy if required to do so by Applicable Law or documented, internal retention policies.
9) Warranties; Disclaimer. Each party represents and warrants that it is a validly organized business entity under the laws of the state of its incorporation, and that it is in good standing in all jurisdictions where it conducts business. In addition, Populus represents and warrants that it has the right to grant Customer a license to the Terminal Services; provided, however, that Customer’s sole remedy with respect to breach of the foregoing warranty are the remedies provided in Section 7(b) of this Agreement. THE TERMINAL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. POPULUS DOES NOT WARRANT THAT THE TERMINAL SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE TERMINAL SERVICES WILL BE ACCURATE OR COMPLETE. POPULUS HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF.
10) Limitation of Liability
a) IN NO EVENT WILL POPULUS BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING ANY LOSS OF USE, DATA, PROFITS, OR GOODWILL, ARISING FROM OR RELATING TO THIS AGREEMENT, THE TERMINAL SERVICES, ANY OTHER DATA OR PRODUCT, SERVICE OR CONTENT PROVIDED HEREUNDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF POPULUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. POPULUS WILL NOT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
b) THE TOTAL CUMULATIVE LIABILITY OF POPULUS ARISING FROM OR RELATING TO THIS AGREEMENT, THE TERMINAL SERVICES, ANY OTHER DATA OR PRODUCT, SERVICE OR CONTENT PROVIDED HEREUNDER WILL NOT EXCEED THE AMOUNT OF FEES PAID TO POPULUS BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE FIRST CLAIM AT ISSUE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. CUSTOMER ACKNOWLEDGES THAT THE FEES SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT POPULUS WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. CUSTOMER AGREES THAT POPULUS’ SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT.
11) General
a) Governing Law; Venue. This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding arising from this Agreement must be brought in the state or federal courts located in San Francisco County, California. Each Party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
b) Assignment. Neither Party may assign, delegate, or otherwise transfer (by operation of law or otherwise) this Agreement or any of its rights or obligations to a third party without the other Party’s written consent, except that Populus may assign or transfer this Agreement without such consent as a consequence of a merger, acquisition, consolidation, reorganization, or sale of substantially all of its assets or of the business to which this Agreement pertains. Any assignment or transfer in violation of the foregoing will be null and void. Subject to all of the terms and conditions hereof, this Agreement inures to the benefit of and is binding upon the Parties hereto and their successors and assigns
c) Miscellaneous. Except as otherwise expressly specified in this Agreement, the rights and remedies provided to each Party in this Agreement are cumulative and in addition to any other rights and remedies available to such Party at law or in equity. Customer acknowledges and agrees that any actual or threatened breach by it of any confidentiality obligations or license restrictions will constitute irreparable harm for which monetary damages would be an inadequate remedy, and that in such event Populus shall be entitled to obtain immediate injunctive relief to protect its rights under this Agreement. Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Populus, or any products utilizing such data, in violation of the United States export laws or regulations. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Where Populus requires that Customer provide an e-mail address, Customer is responsible for providing Populus with its most current e-mail address. In the event that the last e-mail address Customer provided to Populus is not valid, or for any reason is not capable of delivering to Customer any notices required/ permitted by this Agreement, Populus’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Customer may give notice to Populus at the following address: 177 Post Street, Suite 200, San Francisco, CA 94108. Such notice shall be deemed given when received by Populus by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address. This Agreement and any exhibits, attachments, and schedules attached hereto constitute the final, complete, and exclusive agreement between the Parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communication, whether written or oral. In the event of any conflict or inconsistency between the terms of this Agreement and the terms of any exhibit, attachments, or schedules hereto, the terms of this Agreement will govern unless the exhibit, attachment, or schedule expressly refers to the provision of this Agreement over which it will prevail. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
12) Modifications to these Product Terms.
a) Populus may change, add to or delete these Terms of Service or any portion thereof from time to time in its sole discretion (collectively, “Modifications”). If Populus makes material Modifications, Populus will notify you by revising the date at the top of these Terms of Service, and in some cases, may provide additional notice either by emailing the email address associated with Customer’s account or by posting a notice in the Terminal Services web portal. If Customer does not agree to the modified Terms of ServiceI, Customer should discontinue use of the Terminal Services. Customer's continued use of the Terminal Services constitutes Customer's acceptance of the Modifications.
b) For paid users of the Terminal Services only, if a Modification materially and adversely impacts Customer’s ability to use the Terminal Services and no agreement on modified Terms can be reached between the Parties after negotiations in good faith, and if Customer elects to terminate its use of the Terminal Services as a result of such Modification in accordance with Section 7 hereof (Term, Termination), Populus will refund you the prorated portion of fees prepaid to Populus for access to the Products during any period following the effective date of such termination, if any.
Previous Versions
Terms Dated December 15, 2020 (no longer valid as of August 17, 2020)
Terms Dated September 16, 2019 (no longer valid as of December 15, 2020)