Hexagon Geospatial M.App Exchange® Subscription Terms and Conditions

A subscription to the Hexagon Geospatial M.App Exchange[1] (“M.App Exchange”) for the purposes provided herein is governed by these terms and the Hexagon Geospatial Privacy Policy (collectively known as the “Terms”).  By signing below, you agree that you have received, read, and accepted these Terms, and certify that you have the full corporate right and authority to enter into this agreement.  These Terms are a legal agreement between you and Intergraph Corporation, doing business as Hexagon Geospatial (“Hexagon Geospatial”).  If you do not or cannot agree to these Terms, you may not become a M.App Exchange subscriber.  Hexagon Geospatial reserves the right to modify these Terms from time to time and you further agree that any modifications or revisions to these Terms will be enforceable against you as modified.  Hexagon Geospatial will provide you with notification when these Terms are modified and it is your responsibility to review the modified Terms and your responsibility to object to or end your use of M.App Exchange if you do not or cannot agree to any modified Terms.

Purpose

In exchange and consideration for the M.App Exchange Subscription Fee, you are granted the right to submit Smart M.App Application(s) to be hosted for your distribution on the on-line marketplace provided by Hexagon Geospatial referred to as the M.App Exchange.  Any additional benefits for subscribers to the Hexagon Geospatial M.App Exchange may be found at this URL:

http://www.hexagongeospatial.com/legal/MAppExchangeInfo.

The Smart M.App Application(s) that you develop will be reviewed by Hexagon Geospatial for approval and must comply with the requirements as set forth in this Agreement to include the requirements and guidelines documentation provided by Hexagon Geospatial.  Smart M.App Application(s) will be approved or rejected at the sole discretion of Hexagon Geospatial.  Once approved by Hexagon Geospatial, the Smart M.App Application(s) may be available for distribution by you within the M.App Exchange. 

Definitions

“Confidential Information” means information related to the business of Hexagon Geospatial which is not generally known to, or readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; provided that such information shall not include information that: (a) is or becomes available to the public without breach of this Agreement; (b) was previously known by the recipient without obligation of confidentiality; (c) is independently developed by recipient without reliance on information disclosed hereunder; or (d) is approved for release by written authorization of Hexagon Geospatial.  Such information includes, but is not limited to, any nonpublic information regarding the architecture or design of any Hexagon Geospatial product, future product plans and future sales or marketing strategies, any nonpublic lists. 

“Effective Date” means the last date of the signatures below and is the date that this Agreement is binding between the parties.

“Hexagon Geospatial Software” “Hexagon Geospatial Software Products” means any software, in any form, owned by Intergraph Corporation and its divisions, subsidiaries and affiliates used by your Smart M.App Application(s) or sold within the M.App Exchange.

“M.App Exchange Subscription Fee” is the fee paid by you for the use of the M.App Exchange for the right to distribute your Smart M.App Application(s).

“Open Source Software” means software in any form that is licensed by one of the open source software licenses (including, but not limited to GNU General Public License, Creative Commons, etc.) and not this Agreement.

“Sample Data” means any data, in any form, provided to you by Hexagon Geospatial without any warranties whatsoever for your use within your Smart M.App Application(s) for testing purposes only within the HGD Network.  You may not re-sell or re-distribute any Sample Data without written permission from the owner of the Sample Data.  You may not charge anyone for the use of any Sample Data.  Hexagon Geospatial is not responsible for your use of any of the Sample Data and is provided to you for testing and demonstration purposes only.

“Smart M.App Application” means a software program, including integrated and linked assets, bug fixes, updates, upgrades, modifications, and enhancements, developed by you for distribution through M.App Exchange.

“Update” means any modified version, fix, or patch of the Smart M.App Application.

“Upgrade” means each new release of the Smart M.App Application that is a result of an architectural, major, or minor change in the Smart M.App Application.

M.App Exchange Subscription Fee and Taxes

In consideration for the rights to distribute one or more Smart M.App Application(s) on the M.App Exchange, you agree to pay the required M.App Exchange Subscription Fee as set forth in Exhibit A of this Agreement.  Such M.App Exchange Subscription Fee is exclusive of all Federal, state, use or like taxes, tariffs, custom duties, and importing fees (“Taxes”).  All fees are fixed in U.S.  Dollars and are due within 30 days after the Effective Date of this Agreement.  Taxes do not include income or franchise taxes based on the income of Hexagon Geospatial.  Any taxes due for the M.App Exchange Subscription Fees or any other exchange of any payment arising under this agreement are your responsibility. 

Restrictions on Use and Ownership

Nothing contained herein shall convey any rights of ownership, title, or interest to you in M.App Exchange or the Hexagon Geospatial Software.  All other rights or licenses not expressly granted to you by this Agreement are reserved by Hexagon Geospatial.  This Agreement does not grant you any rights to use any trademarks or copyrights of Intergraph Corporation, its divisions, affiliates or subsidiaries, including Hexagon Geospatial without prior written consent to do so. 

Term and Termination

The term of this Agreement shall begin on the Effective Date and extend for 12 months (“Expiration Date”).  Refunds are not provided for early termination of your account.  This Agreement may be renewed at the discretion of Hexagon Geospatial and by written mutual agreement of the parties and payment of any M.App Exchange Subscription Fee.  You understand that your failure to renew this Agreement and pay the M.App Exchange Subscription Fee on or before the renewal date will result in account termination and loss of access to your account and any data or content that may be associated with your account.  Hexagon Geospatial is not responsible for such loss or loss of profits to you under any theory or cause of action for your failure to maintain and renew this Agreement.

Hexagon Geospatial may terminate this Agreement immediately upon written notice if you violate Hexagon Geospatial’s intellectual property rights; or if you fail to perform your obligations or violate any term or condition of this Agreement.  You may, however, be afforded the opportunity to take corrective action to cure any breach within 30 days of the date of the notification of the breaching event described in this paragraph at the sole discretion of Hexagon Geospatial. 

Either party may terminate this Agreement upon the dissolution, liquidation, insolvency, bankruptcy, appointment of a receiver, assignment for the benefit of creditors, change of ownership, or violation of applicable laws of the other Party, including but not limited to export and corruption laws.

Either party may terminate for convenience with 30 days’ notice to the other party. 

Termination of this Agreement shall not release you from the obligation to pay Hexagon Geospatial any amounts due at termination or anytime thereafter, or operate to discharge any liability which has been incurred by Hexagon Geospatial or by you, prior to the effective date of such termination.

Upon termination of your account, your Smart M.App Application may be removed permanently from M.App Exchange and no longer available and not recoverable by Hexagon Geospatial.  It is your responsibility to maintain your own copies and backups of anything you submit to Hexagon Geospatial.  Hexagon Geospatial is not responsible for any loss of code, content, or data that is removed from M.App Exchange as a result of the termination of your account.  You agree to indemnify and hold harmless Hexagon Geospatial for any and all such loss(es) regardless of theory.

Prohibited content

You are prohibited from uploading, publishing, posting or otherwise transmitting to M.App Exchange a Smart M.App Application that contains, publishes, or otherwise uses the following information:

  • Any personally identifying information belonging to another person such as their full name, address, phone number, fax number, email address, chat handle/username, picture.
  • Pornographic, obscene, profane, abusive, offensive, threatening, hateful or otherwise objectionable content.
  • Any content that contains a virus, worm, Trojan horse, or other damaging or destructive component.

It is your responsibility to ensure that nothing you upload, publish, post, or transmit to the M.App Exchange violates any party’s copyright, trademark, patent, or other intellectual property rights. 

Uploading, publishing, posting or otherwise transmitting any prohibited content may be cause for removal of your Smart M.App Application from M.App Exchange at the sole discretion of Hexagon Geospatial.

Warranty, Limitation of Liability, and Indemnity of Hexagon Geospatial

HEXAGON GEOSPATIAL DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.  HEXAGON GEOSPATIAL SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM THE PERFORMANCE OF THIS AGREEMENT.  THE FOREGOING WARRANTY IS HEXAGON GEOSPATIAL’S ENTIRE WARRANTY AND ITS SOLE LIABILITY AND IS IN LIEU OF ALL OTHER WARRANTIES, LIABILITIES, AND REMEDIES. 

HEXAGON GEOSPATIAL SHALL NOT BE LIABLE FOR ANY LOSS SUFFERED BY YOU WHETHER INDIRECT OR CONSEQUENTIAL INCLUDING, BUT NOT LIMITED TO, LOSS OF PRODUCTION, LOSS OR CORRUPTION OF DATA, OR LOSS OF PROFITS OR CONTRACTS.  HEXAGON GEOSPATIAL SHALL NO LIABILITY FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT IT HAS REASON TO KNOW OF THE POSSIBILITY OF SUCH LOSS.  THE TOTAL LIABILITY OF HEXAGON GEOSPATIAL TO YOU IN CONNECTION WITH THIS AGREEMENT WHATSOEVER SHALL BE LIMITED TO THE AMOUNT OF THE M.APP EXCHANGE SUBSCRIPTION FEE PAID BY YOU.

You shall be solely responsible for any and all product warranties, end-user support/assistance, and product support with respect to each of your Smart M.App Application(s).

If Hexagon Geospatial, at its own discretion, believes that any part of the services available within M.App Exchange may infringe or may be alleged to infringe on the intellectual property of a third-party, Hexagon Geospatial may at its sole option and expense: (a) procure for you the right to continue to use the service or (b) replace or modify the service so that it becomes non-infringing while providing substantially equivalent functionality and performance.  If, after commercially reasonable efforts, Hexagon Geospatial cannot perform the above specified remedies, then Hexagon Geospatial shall terminate the affected service(s) and refund amounts paid by you for the portion of the affected service(s) that infringes or is alleged to infringe on the intellectual property rights of a third party.  THE INDEMNITIES ABOVE ARE HEXAGON GEOSPATIAL’S AND YOUR ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.

YOUR INDEMNITY TO HEXAGON GEOSPATIAL

You agree that you will be responsible for the defense of any claim, suit, action or proceeding against Hexagon Geospatial arising from allegations (1) content and Smart M.App Application(s) you submit constitutes infringement of a patent, copyright, trademark or trade secret of any third party, (2) that any representation, statement or warranty made by you, your employees, officers, directors, agents or representatives is false, misleading, untrue or negligent, or (3) that any actions or omissions of you constitute negligence, wantonness or intentional wrongful acts.  You shall defend Hexagon Geospatial at your expense against such suit, action, or proceeding.  You will defend, indemnify, and hold Hexagon Geospatial harmless from any and all costs, expenses, damages, or awards arising or resulting from any such suit, action or proceeding.  In no event may you enter into any settlement or like agreement with a third party that affects the rights of Hexagon Geospatial or binds the same in any way, without the prior written consent of Hexagon Geospatial.  You also agree that you will be responsible for the defense of any claim, suit, action or proceeding arising from allegations that your Smart M.App Application violates the privacy rights of any end-user(s).  You agree to indemnify and hold harmless Hexagon Geospatial for any expenses, costs, damages, or awards arising out of or resulting from any such suit, action or proceeding.   

Disclaimers

The M.App EXCHANGE Service is provided “AS-IS” with no warranty, except as expressly provided herein, neither party or their affiliates, SUBSIDIARIES OR DISTRIBUTORS make any warranty of any type or kind, express, implied or statutory.  You are responsible for backing up your applications, DATA, and content that you submit to M.App exchange.

Confidentiality

You shall not disclose any Confidential Information of Hexagon Geospatial or its licensors to any third parties and you agree to appropriately secure all such Confidential Information.  You acknowledge that damages for improper disclosure of Confidential Information may be irreparable and that Hexagon Geospatial is entitled to seek equitable relief, including injunction and preliminary injunction, in addition to other remedies.

Hexagon Geospatial undertakes to not disclose any of your confidential information which is properly identified by you as confidential.

You acknowledge and agree that Hexagon Geospatial may use information related to data, storage, and CPU use of your Smart M.App Application.  Such information will only be used by Hexagon Geospatial for internal purposes pertaining to system maintenance, scalability, reliability, and improvement of the M.App Exchange in addition to determining Smart M.App Application usage and fees which may be related to any particular Smart M.App Application and will not be disclosed to any unauthorized third-parties.

Trademarks and Intellectual Property

Neither party shall acquire any right of any trademarks, copyrights, patents, trade secrets, commercial symbols, goodwill or other form of the other party’s intellectual or commercial property.  All rights in and to the products available in M.App Exchange and M.App Exchange not expressly granted in this Agreement are reserved by Hexagon Geospatial or their respective owners.  You shall not (or authorize any third party to) do any act or fail to do any act, which would jeopardize, invalidate, or be inconsistent with any copyright, trademark, or other intellectual property rights of Hexagon Geospatial.  You acknowledge and agree that Hexagon Geospatial may independently develop its own application or software program that might be similar in function or form of your Smart M.App Application.  You agree that Hexagon Geospatial may use your Smart M.App Application for marketing purposes at no-cost to Hexagon Geospatial and Hexagon Geospatial will properly attribute you as the owner of the Smart M.App Application during any marketing purposes in which it may use your Smart M.App Application.  Nothing contained herein shall convey any rights of ownership, title, or interest in your Smart M.App Application(s) to Hexagon Geospatial.  Finally, you acknowledge and agree that other third-parties may develop similar applications in function or form to your Smart M.App Application and Hexagon Geospatial is not responsible for any claims, damages, or causes of action related to any allegations by you that a third-party infringes on your intellectual property.  If you believe that another application on M.App Exchange violates your intellectual property, you must notify the contact under the notices section of this Agreement.  Hexagon Geospatial will endeavor to review your notices but undertakes no responsibility to do so.

Distribution of your Smart M.App Application(s)

Appointment of Agent or Commissionaire.  Once your Smart M.App Application has been approved by Hexagon Geospatial, you must appoint Hexagon Geospatial as your legal agent or commissionaire for the distribution of your Smart M.App Application.  You hereby appoint Hexagon Geospatial as your agent or commissionaire, as applicable, for the marketing and delivery of approved Smart M.App Application(s) to end-users Via M.App Exchange.  Hexagon Geospatial is not the distributor for your Smart M.App Application.  You are distributing your Smart M.App Application through M.App Exchange.  Hexagon Geospatial reserves the full and sole discretion and right to remove your Smart M.App Application at any time if Hexagon Geospatial has any reason to believe your Smart M.App Application is in violation of the terms and conditions of this Agreement. 

You grant to Hexagon Geospatial the worldwide, royalty-free right to publicly perform and display and demonstrate your Smart M.App Application at trade shows and industry events, and to advertise and promote your Smart M.App Application in any and all media.

Privacy Policy

If your Smart M.App Application collects or transmits any personal information to you or to a third party, or if otherwise required by law, you must maintain and publish a privacy policy that complies with such laws.  Your privacy policy shall contain the minimum terms as set forth below.  Personal information is that data and information which identifies a person.  Examples of personal information include, but are not limited to, name and address, birth date, phone numbers, location, payment data, and tax ID numbers.  Your privacy policy shall:

  1. Identify to the end-user that your Smart M.App Application collects personal information;
  2. Identify to the end-user how the information that is collected is used or shared; and
  3. Provide information for the end-user on how the information is stored or transmitted and how the end-user may “opt-out” of and access such storage or transmission of their personal information.

Your Smart M.App Application License Agreement.

You will license your Smart M.App Application to end-users with your own license agreement.  Your license must contain the following minimum terms (though not verbatim) (the “Minimum Terms”) and accompany your Smart M.App Application upon submission to Hexagon Geospatial for review.  Hexagon Geospatial may require you to amend your proposed Smart M.App Application license as a condition of hosting your Smart M.App Application on the M.App Exchange.  Material changes to your Smart M.App Application license agreement after the initial review of your Smart M.App Application must be submitted and approved by Hexagon Geospatial.

The Minimum Terms your license agreement must contain terms that properly cover the following issues:

  1. Identifies Hexagon Geospatial as the agent or commissionaire, as applicable, for the marketing and delivery of your Smart M.App Application;
  2. Identifies you as the distributor of your Smart M.App Application;
  3. Identifies you as the source of end-user support and sufficient contact information for support for your end-users and that the end-user acknowledges that Hexagon Geospatial is not responsible for any warranty or support obligations to the end-user;
  4. Properly identifies all third party content in your Smart M.App Application when your license from such third party requires you to do so.  You are responsible for compliance with all the terms and provisions of your license to incorporate third party content in your Smart M.App Application.
  5. Indemnifies Hexagon Geospatial from any and all losses and causes of action related to your Smart M.App Application, including intellectual property infringement;
  6. Disclaim the liability of Hexagon Geospatial for all indirect, special and consequential damages that an end-user may incur related to the use of your Smart M.App Application;
  7. You and the end-user must acknowledge that you are responsible for any claims of the end-user or any third party relating to your Smart M.App Application such as product liability claims, intellectual property infringement claims, failure of your Smart M.App Application to comply with any applicable or regulatory requirement(s) and claims of consumer or product protection.
  8. Your end-user must acknowledge that they are not (i) located in a country that is subject to a U.S.  Government embargo; (ii) that they are not any person or entity listed on any U.S.  governmental denial list, including, but not limited to the United States Department of Commerce Denied Persons, Entities, and Unverified Lists, the United States Department of Treasury Specially Designated Nationals List, and the United States Department of State Debarred List; (iii) using the Smart M.App Application in a use that is related to the design, development, production, or use of missiles, chemical, biological, or nuclear weapons, or other unsafeguarded or sensitive nuclear uses.
  9. In addition to including any third party license terms for third party intellectual property you may have included in your Smart M.App Application, you must also include the following language for third party intellectual property that exists in all Smart M.App Applications: “This Smart M.App Application may include one or more third party software components.  Licensor is licensing to licensee such third party components as are included with this Smart M.App Application according to the license for that component as listed at this website: http://www.hexagongeospatial.com/legal/thirdpartysmartmappnotices.  Note: You may also include these notices directly in your license agreement or in any other way permitted by the licensors of such third party content as long as the presentation of such third party terms are referenced in your license agreement.  

Compliance with regulations and laws

You acknowledge and agree that in your performance of your obligations of this Agreement, you will comply with all applicable laws, regulations and policies relating to the development, manufacturing, marketing, sale and distribution of your Smart M.App Application in the United States, including the FCC and the laws, regulations and policies of any other applicable regulatory bodies in any countries or territories where you use or make your Smart M.App Application available.  You agree that you will not seek any permission or make any determinations which might impose any obligations or limitations on Hexagon Geospatial.  When you submit your Smart M.App Application to Hexagon Geospatial for review and approval for distribution, you represent and warrant that you are in full compliance with any applicable laws, regulations, and policies relating to the development, manufacturing, marketing, sale, and distribution of your Smart M.App Application.  Upon request, you agree to promptly provide Hexagon Geospatial for any documentation to support the marketing of your Smart M.App Application. 

Export certification. 

You hereby certify that all of the Smart M.App Application(s) you submit to Hexagon Geospatial for review and distribution on M.App Exchange are authorized for export from the United States to each of the countries you designate as the distribution territory for your Smart M.App Application.

You certify that either (i) none of your Smart M.App Application(s) contains, uses or supports any data encryption or cryptographic functions; or (ii) to the extent your Smart M.App Application does contain, use or support any data encryption or cryptographic functions, you certify that you have complied with the United States Export Administration Regulations, and are in possession of, and will, upon request, provide Hexagon Geospatial with a copy of your Encryption Registration Number (ERN), or export classification ruling (CCATS) issued by the United States Commerce Department, Bureau of Industry and Securities and copies of appropriate authorizations from other countries that mandate import authorizations for your Licensed Smart M.App Application. 

Smart M.App Application review and submission process.

Your Smart M.App Application must be submitted, reviewed, and approved by Hexagon Geospatial prior to being distributed on M.App Exchange.  Exhibit A provides the information required and the submission process for your Smart M.App Application. 

You agree that when you make material changes to your Smart M.App Application that modifies its intended use, audience, or purpose for your Smart M.App Application as originally submitted, you will submit your Smart M.App Application for review pursuant to the guidelines provided in Exhibit B.  This does not include standard bug fixes or version upgrades that do not affect the use, audience, or purpose of your Smart M.App Application.

Smart M.App Application Pricing.

Hexagon Geospatial will provide you a minimum distribution price (“MDP”) which is the minimum payment Hexagon Geospatial will need to receive from each sale of your Smart M.App Application.  The parties agree to work together to suggest a minimum end-user price that would cover the MDP and provide you with revenue.  You are able to set the end user price for your Smart M.App Application at any price you wish at or above the MDP, but not below the MDP.  Any discount below the MDP for your Smart M.App Application must be approved in advance by Hexagon Geospatial.  Notwithstanding the foregoing and for the avoidance of doubt, the end-user price for your Smart M.App Application is ultimately set by you in a manner consistent with this paragraph. 

End-User Support.

You are responsible for all end-user support of your Smart M.App Application.  Your end user license agreement for your Smart M.App Application should provide sufficient information for an end-user to contact you to resolve support and maintenance issues.  Hexagon Geospatial may, as able, re-direct or forward end-user inquiries regarding your Smart M.App Application to you but is under no obligation to do so and will not respond to end-user requests for support for your Smart M.App Application.

Fees paid to you and Taxes.

Pursuant to the schedule in Exhibit A hereto Hexagon Geospatial will pay to you the percentage of the price paid for your Smart M.App Application for successful sales through the M.App Exchange.  You will submit an invoice to Hexagon Geospatial monthly for payments due for your Smart M.App Application sales.  You agree to provide Hexagon Geospatial the necessary information for payments to you, to include, but not be limited to, a taxpayer identification number request and certification document.  The actual method for payment (e.g., ACH) will be agreed upon by mutual agreement the parties. 

Survival of certain Terms and Severability

These sections of this Agreement will survive termination of this Agreement: Trademark and Intellectual Property, M.App Exchange Subscription Fee, Account and Agreement Termination, Disclaimers, Warranty, Liability and Indemnity of Hexagon Geospatial, your indemnity to Hexagon Geospatial, Our Response to Third Party Requests.  If any court of competent jurisdiction finds any clause of this Agreement to be unenforceable for any reason, that clause of this Agreement shall be enforced to the maximum extent permissible to affect the intent of the parties and the remainder of this Agreement shall continue to be in full force and effect. 

Other obligations

You are responsible for using M.App Exchange in accordance with these Terms including the Privacy Policy.  You are also responsible for using the services in compliance with laws and regulations applicable to your use of M.App Exchange.  You will not attempt or authorize directly or indirectly any person to reverse engineer any of the services within M.App Exchange.

Our Response to Third Party Requests

A “Third Party Request” is a request from a party that is not Hexagon Geospatial, or its affiliates and subsidiaries, or you.  Such Thirds Party Requests may include, but are not limited to, valid search warrants, court orders, or subpoenas.

To the extent that it is commercially reasonable to do so and allowed by law, Hexagon Geospatial will endeavor to promptly notify you of the receipt of a Third Party Request from a third party and comply with your commercially reasonable requests related to your efforts to oppose a Third Party Request in the event the Third Party Request seeks your confidential or proprietary information. 

Assignment; Relationship of the Parties

This Agreement may not be assigned by you.  Any attempted assignment, whether by operation of law, merger, or any other means, without the express prior written consent of Hexagon Geospatial, is null and void.  Any attempted assignment without consent is grounds for termination of this Agreement.

This Agreement will not be construed as creating a partnership, joint venture, fiduciary duty, or any other form of legal association between you and Hexagon Geospatial. 

Notices

Any notices relating to this Agreement shall be in writing to the addresses below:

If to Hexagon Geospatial:

Hexagon Geospatial
Attn: Legal Department, M.App Exchange
305 Intergraph Way
Madison, Alabama 35758

If to you:

                                                                          

                                                                          

                                                                          

                                                                          

                                                                          

Governing Law

This Agreement shall be governed, interpreted, or construed in accordance with the laws of the State of Alabama, United States of America.  Jurisdiction and venue for any dispute arising under this Agreement shall be in the courts located in of Madison, County, Alabama.  The parties waive the application of the United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of goods as to interpretation or enforcement of this Agreement.

Additional Terms and Conditions

Force Majeure.  No party shall be liable for any delay or failure to perform under this Agreement if such delay or failure is due to any contingency beyond its reasonable control including, but not limited to, acts of God, war (whether declared or undeclared), terrorism, acts of hostilities, strikes, labor disruptions, government interference with business operations, explosion, fire, flood or civil disturbance.  The party experiencing any delay or failure as a result of any such contingency shall: (a) provide prompt written notice thereof to the other party; and (b) use reasonable commercial efforts to either remedy the delay or failure or to establish a workaround plan to remedy the delay or failure in a manner which minimizes the disruption to the other party and then promptly proceed to implement and complete such workaround plan.  Notwithstanding the foregoing, this provision shall not apply to any payments due to from one party to another under this Agreement.

Severability.  Whenever possible, each provision of these Terms and each related document shall be interpreted in such a manner as to be effective and valid under applicable law.  However, if any provision of these Terms or any related document shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of these Terms or such related document.

Entire Agreement

This Agreement, together with any Exhibits executed by the parties pursuant to this Agreement, shall constitute the entire agreement between you and Hexagon Geospatial for M.App Exchange and shall supersede all proposals, oral and written, between you and Hexagon Geospatial on this subject.  No other provisions, whether oral or written, between the parties shall be valid or binding unless contained herein.  The headings in this Agreement are intended solely for convenience and shall be given no effect in the interpretation of this Agreement.  This Agreement may only be amended or modified by written agreement executed by both parties. 

Exhibit A

Fee Schedule and revenue share

  1. M.App Exchange Subscription Fees.
    This section identifies to you the schedule of fees to be paid to Hexagon Geospatial in consideration for your ability to use M.App Exchange to distribute your Smart M.App Application(s).
    1. The subscription fee paid by you to Hexagon Geospatial is: $______________ USD to be paid in full within 30 days of the Effective Date of this Agreement.  At the sole discretion of Hexagon Geospatial, your access to M.App Exchange may be suspended or terminated for failure to pay this amount in full within the time provided in this section. 
    2. The revenue share percentage due to you is 70% of the amount paid for your Smart M.App Application by your customer in excess of the MDP, subject to the following conditions:
      1. The purchase price will be subject to reductions based on fraudulent purchases, returns by end-users, charge-backs, and bad debts.  Hexagon Geospatial will provide you will specific information regarding any charge-backs, returns, or fraudulent purchases deducted from the purchase price. 
      2. You will have five (5) business days (“Dispute Period”) from the receipt of such deductions to dispute such information with Hexagon Geospatial.  If you do not dispute such deductions within the Dispute Period, such deductions will be deemed proper and correct for the purposes of this section.
    3. Your M.App Exchange account provides a sales dashboard that you may utilize for your own accounting purposes.
    4. Hexagon Geospatial will collect all amounts as described above from end-users for purchases of your Smart M.App Application(s) for any given calendar month and retain such amounts and pay you no later than 45 days after the end of the given calendar month.
    5. Hexagon Geospatial shall have the right to retain the balance it receives minus the revenue share fees described above and any third party fees as they may apply.
    6. The paying party shall be responsible for and shall pay any sales, use, value-added and similar transaction taxes and customs duties paid or payable, however designated, levied, or based on amounts payable by such party under this Agreement.  Neither party will be responsible for paying any federal, state, local, or other taxes based on the other party’s net income.

Exhibit B

Smart M.App Application Submission and Criteria Guidelines

The information contained in this Exhibit is intended as a guide for you regarding the submission process and Smart M.App Application criteria guidelines of your Smart M.App Application.  Failure by you to follow these guidelines may result in rejection of your Smart M.App Application and therefore not listed on the M.App Exchange for distribution.  Approval and rejection of Smart M.App Application(s) is at the sole discretion of Hexagon Geospatial.  If your Smart M.App Application is rejected, Hexagon Geospatial endeavors to provide information regarding the rejection but is under no obligation to do so.  You may re-submit your Smart M.App Application for review as many times at it may be necessary, but changes must be made to your Smart M.App Application to conform to these submissions and guidelines.  Submitting your Smart M.App Application(s) without making effort to correct errors in the Smart M.App Application or the submission guidelines repeatedly may result in termination of this Agreement by Hexagon Geospatial.

  1. Smart M.App Application submission
    1. The minimum information you must include while submitting your Smart M.App Application for approval includes:
      1. Smart M.App Application Name
      2. Smart M.App Application Description (100 words or less)
      3. Smart M.App Application Version Number
      4. End User License Agreement
      5. Export Control Information as it may be required by Hexagon Geospatial
      6. Privacy policy (if published separately from the End User License Agreement)
      7. Your contact email address
      8. Your contact phone number
      9. The support information and contact information for your Smart M.App Application
      10. Submission Process.
      11. You must review your Smart M.App Application for conformity with the Smart M.App Criteria Guidelines as provided by Hexagon Geospatial.
      12. Complete the Smart M.App Application Submission Form with the minimum information described above.  The Smart M.App Application Submission Form will be provided to you by Hexagon Geospatial when requested.
      13. Establish the initial price for your Smart M.App Application
    2. Hexagon Geospatial will provide to you an online mechanism for checking the status of your application.
    3. Hexagon Geospatial will notify you using the contact email address provided during the submission process of acceptance or rejection of your Smart M.App Application.  Once your Smart M.App Application has been approved, it will be posted to M.App Exchange for distribution within five (5) business days of the acceptance notification described above.


[1] Hexagon Smart M.App® and M.App Exchange® are registered trademarks of Hexagon Geospatial.  Hexagon Geospatial, a division of Hexagon AB, has registered trademarks in many countries throughout the world.  For information about the countries in which the trademarks are registered, please visit http://www.hexagongeospatial.com/legal/trademarks.

About Hexagon Geospatial

Hexagon Geospatial helps you make sense of the dynamically changing world through direct sales, channel partners, and Hexagon businesses.