Australia - Maintenance Terms and Conditions for Software
This document (Terms and Conditions) and the Quote to which these Terms and Conditions are attached (collectively, the Terms and Conditions and Quote hereinafter referred to as the (Agreement) sets forth the terms and conditions for maintenance of software by Intergraph Corporation Pty Limited trading as Hexagon Geospatial for Customer (Hexagon).
1. DEFINITIONS AND INTERPRETATION
1.1 Affiliate means any entity or person controlled by or under common control of Hexagon. For the purposes of this clause, the term "control" means ownership, directly or indirectly, of equity securities entitling the owner to exercise in the aggregate equal to or more than twenty-five percent (25%) of the voting power of the entity in question. For the avoidance of doubt, any Affiliate of Hexagon is as well deemed an Affiliate of any other Affiliate of Hexagon; also, Hexagon is an Affiliate of any of its Affiliates.”
1.2 Agreement means (1) the binding contract incorporating these Terms and Conditions as well as the Quote submitted to Customer under Section 2 and/or, if applicable, (2) the binding contract incorporating a Quote submitted to Customer under Section 3.2 and/or Section 12.1 as well as the maintenance service contract terms and conditions referenced therein.
1.3 Coverage Period means the period of performance set forth in the Quote.
1.4 Covered Products means the software products listed on the Quote for which Services are to be provided to Customer by Hexagon Geospatial. Covered Products shall also include additional copies of the software (i) where the original software is already covered by the Agreement and (ii) for which additional licenses are purchased or otherwise obtained by Customer during the Coverage Period. Covered Products may include Software Products, as well as Third Party Software.
1.5 Customer means the entity or person purchasing Services.
1.6 Intergraph Corporation means the company incorporated under the laws of Delaware, United States, with its office at 305 Intergraph Way, Madison, Alabama 35758, United States.
1.7 Quote means a quotation for Services submitted to Customer by Hexagon Geospatial or an authorized Hexagon Geospatial partner, along with a product quotation at time of purchase of the product to be maintained, according to Section 2, or a quotation for Services submitted to Customer by Hexagon Geospatial, according to, Section 3.2 and/or Section 12.1.
1.8 Services means the maintenance support services for Covered Products that are further described in this Agreement.
1.9 Software Product includes Hexagon’s or its Affiliates' computer software and all of the contents of the files, disk(s), CD-ROM(s) or other media with which the software is provided, including any templates, data, printed materials, and “online” or electronic documentation, all copies of the foregoing, and any Updates of the Software Product. Software Products are subject to all of the terms and conditions of the End-User License Agreement (EULA) provided with the Software Product.
1.10 Third Party Software means computer software or other technology in which any person or entity, other than Hexagon or Affiliate, has any right, title or interest, including any restrictions or obligations (such as obligations to obtain consents or approvals and restrictions that may be eliminated only by obtaining such consents or approvals) applicable to the computer software or technology, but does not include software embedded in the Software Products by license from third parties. The use of Third-Party Software is subject to all of the terms and conditions of the third party’s software license agreement (“SLA”) provided with the Third-Party Software.
1.11 Update(s) means any Upgrade, modified version, fix, patch and/or update of Covered Products. The use of Updates is subject to all of the terms and conditions of the EULA or SLA provided with Customer’s then-current version of the Covered Products.
1.12 Upgrade(s) means each new release of Covered Products. Upgrades require a full installation and may be provided with a separate EULA or SLA. Any EULA or SLA delivered with the Upgrade will supersede any EULA or SLA associated with prior releases of the Covered Products.
2. AUTHORISATION OF SERVICES
By either (a) returning a signed Quote; (b) submitting a signed purchase order referencing a Quote; (c) paying any charges as set forth on a Quote; or (d) accepting delivery of Services, Customer hereby authorises Hexagon Geospatial to provide the Services for Covered Products during the Coverage Period in accordance with the Agreement. The Services will be provided by Hexagon Geospatial in accordance with the Scope of Coverage as set forth in Section 5. Hexagon Geospatial reserves the right to provide Services through a third-party provider. The Agreement shall only become binding and effective upon the written acceptance by Hexagon Geospatial of the signed Quote or purchase order referencing the Quote or the first delivery of the Services set forth in the Quote, whichever is earlier.
3.1 Term. This Agreement shall begin, retroactively (if applicable) on the first day of the month of the applicable Coverage Period, and shall expire at the end of the Coverage Period unless terminated earlier as provided in Section 18, or renewed by mutual agreement of the parties in accordance with Section 3.2. The Coverage Period shall be for whole months only.
3.2 Renewal. Approximately ninety (90) days prior to the expiration date of any Coverage Period, Hexagon Geospatial will submit to Customer a renewal Quote that includes pricing for the upcoming Coverage Period. Section 2 shall apply mutatis mutandis to the formation of the Agreement based on the renewal Quote as well as the maintenance service contract terms and conditions referenced therein or made available to Customer together with the renewal Quote. If the Agreement is not entered into based on the renewal Quote as well as the maintenance service contract terms and conditions referenced therein by the expiration date of the preceding Coverage Period, Hexagon Geospatial, after the preceding Coverage Period has expired, shall be entitled to discontinue Services for the affected Covered Products, including access to system support or knowledge base, and/or end the ability of Customer to log or check support requests.
4. REINSTATEMENT OF MAINTENANCE SUPPORT COVERAGE
4.1 Lapse in Software Maintenance Coverage. To reinstate Services after any termination or suspension thereof, Customer must pay a reinstatement fee. The Coverage Period for any reinstated Services (the “Renewal Coverage Period”) shall begin on the first day after the expiration or termination of the last paid-in-full Coverage Period and extend until the next purchase anniversary date of the lapsed Covered Products. The reinstatement fee will equal twenty-five percent (25%) of the past due maintenance charges (rounded up to whole months only) for the Renewal Coverage Period, and shall be in addition to the total maintenance charges due for the Renewal Coverage Period, all calculated at the current then-maintenance list price. Upon request of Customer, Hexagon Geospatial will provide a Quote for the Renewal Coverage Period, which shall include the reinstatement fee and is applicable only for reinstatement made in the then-current month.
4.2 Failure to Obtain Maintenance Coverage. In the event Services were not purchased at the time that the Covered Product was originally purchased, in order to obtain Services, Customer must pay one hundred twenty-five percent (125%) of all maintenance payments from the date the original Covered Product was purchased up to the date the Services are actually purchased, plus one hundred percent (100%) of the maintenance payments for the remaining Coverage Period that expires upon the anniversary date of the original Covered Product purchase, all calculated at the then-current maintenance list price. The Coverage Period for such Covered Products will begin on the first day of the month in which the Covered Products were originally purchased.
5. SCOPE OF COVERAGE FOR SOFTWARE PRODUCTS
Services described in this Section apply to Software Products only. Services for Third Party Software are set forth in Section 10.
Hexagon offers two levels of Services for Software Products included in the Covered Products: Standard Support and Premium Support. Under both levels of Services, Hexagon shall provide reasonable commercial efforts to aid in the diagnosis and correction of defects in and provide general advice as to the use of the Software Products included in the Covered Products. The level of Services will be set forth on the Quote and will include the following:
5.1. Standard Support: Standard Support will include and be limited to the following:
5.1.1 Help Desk Support. Out-of-the-box functionality support via the Help Desk (telephone or eService via Hexagon Geospatial’s Customer Support Web Site where available at http://esupport.intergraph.com). Phone support for all priority levels of software errors is available on Monday through Friday from 8AM – 5PM at Customer’s local time, excluding Hexagon Geospatial-observed holidays. Local variances in support hours will be posted on the Customer Support Web Site or applicable local support website, or can be determined by contacting Customer’s local Hexagon Geospatial office.
5.1.2 Updates. Access to all available Updates of Software Products. Hexagon Geospatial will notify Customer when Updates are made available for any Software Products for which Services have been purchased, by way of posting notices of such to the “Support Notices and Announcements” section on the Customer Support Web Site or applicable local support website or via direct notification by Hexagon Geospatial. If applicable, Customer may also register on the Customer Support Web Site or applicable local support website to automatically receive email notifications when a new release of a Software Product is made available by Hexagon Geospatial. Updates are shipped to Customer upon Customer request. Hexagon Geospatial is not obligated to produce any Updates.
5.1.3 Knowledge Base. Twenty-four-hour-per-day/seven-day-per-week access to problem Knowledge Base, an on-line self-help tool.
5.2 Premium Support: Premium Support will include all of the features available under Standard Support. Additionally, when the software error is considered to be critical (meaning production is down), then phone support is also available after-hours and on Hexagon Geospatial-observed holidays.
5.3 Hexagon Geospatial may not provide both levels of support for all Software Products in all countries. Customer may choose any level of Service offered, however all Software Products included in the Covered Products under the Agreement must have the same level of Service when such Services are available.
5.4 Services are only available for the then-current version and the one version prior to the then-current version of a particular Software Product. Services are limited to the specific Software Products listed on the Quote and functioning on the appropriate Hexagon Geospatial- supported operating system.
6. MINIMUM SYSTEM REQUIREMENTS; CUSTOMER’S OBLIGATIONS
Performance of Services by Hexagon Geospatial is specifically conditioned upon the following minimum system requirements and fulfilment by Customer of the following obligations (collectively, minimum system requirements and customer obligations hereinafter referred to as “Customer Obligations”):
6.1 Customer hardware and operating system software must meet the minimum system requirements specified by Hexagon Geospatial and made available to Customer upon request.
6.2 Customer’s system must have input and output devices that enable the use of Hexagon Geospatial’s diagnostic programs and supplemental tests. The specifications of such devices shall be made available to Customer by Hexagon Geospatial upon request.
6.3 Customer will be responsible for any required adjustments or updates to its hardware and/or operating system software required to accommodate Updates of Covered Products.
6.4 Customer will ensure availability of its own system technical support personnel so that Hexagon Geospatial can fulfil its Service obligations.
6.5 When reporting problems to Hexagon Geospatial’s Help Desk, Customer will provide a complete problem description, along with all necessary documents and information required by Hexagon Geospatial to diagnose and resolve the problem. Customer will provide all necessary access to all required systems as well as to the Covered Products, and any other reasonable assistance needed.
6.6 Customer will carry out any reasonable instructions on troubleshooting or circumvention of the problem provided by Hexagon Geospatial through the Authorised Contact (as defined below in Section 8.1) immediately and in conformity with these instructions, and will install any necessary patches, defect corrections or new versions from Hexagon Geospatial.
6.7 Customer is solely responsible for assuring the compatibility of non-Hexagon Geospatial products with products provided by Hexagon Geospatial.
6.8 Customer is solely responsible for ensuring its systems, software, and data are adequately backed up. Hexagon Geospatial will not be liable for lost data.
In addition, Customer shall provide for any other requirements reasonably specified by Hexagon and related to the rendition of the Services to be met.
If Customer fails to fulfill its Customer Obligations, Hexagon is entitled to bill Hexagon’s time and effort made necessary by Customer’s failure at Hexagon Geospatial’s then-current hourly rates.
7. EXCLUDED SOFTWARE SERVICES
Services for the following are outside the scope of this Agreement and may be available under separate agreement at an additional charge (collectively “Excluded Services”):
7.1. Installation of any Covered Product, Update, or interface software;
7.2. Network configuration;
7.3. Configuration or customisation of Covered Products to customer requirements;
7.4. System-level tuning and optimisation and system administration support;
7.5. Programming or software development;
7.7. Services required because the Authorised Contact is not available or is not trained in accordance with Section 8;
7.8. On-site Services;
7.9. Services outside of the regular business hours associated with the appropriate level of Services
7.10 Services required due to modifications of Covered Products by Customer or persons not authorised by Hexagon Geospatial. In the case of Hexagon Geospatial software modules which assist in the creation and use of Customer software, the performance of Services under the Agreement is restricted to unmodified components of these Covered Products;
7.11 Services required due to use other than in the ordinary manner intended for the Covered Products, or use in a manner that contravenes terms hereunder, or Customer’s disregard of the installation and operating instructions according to the documentation provided with the Covered Products;
7.12 Services required due to failure of software or hardware not supplied by Hexagon Geospatial and not covered in the Agreement;
7.13 Services required due to Customer’s use of hardware or software that does not meet Hexagon Geospatial specifications or failure of Customer to maintain or perform industry standard maintenance on Customer’s hardware or software;
7.14 Services required due to software or portions thereof that were incorrectly installed or configured, or use in an environment inconsistent with the support environment specified by Hexagon Geospatial, or use with peripherals, operational equipment or accessories not conforming to Hexagon Geospatial’s specifications;
7.15 Services required due to cases of force majeure, especially lightning strikes, fire or flood or other events or conditions for which Hexagon Geospatial cannot be held responsible;
7.16 Services required due to customer’s failure to fulfil the Customer Obligations set forth in Section 6;
7.17 Services required due to faulty or incomplete Customer data.
When ordered by Customer, Excluded Services or other software maintenance support services that are outside the scope of this Agreement will be billed by Hexagon Geospatial according to the stated hourly rates and material prices in effect at the time such service is performed.
8. SYSTEM SUPPORT TECHNICIAN
8.1. Customer will appoint a minimum of two and a maximum of three contact people who are each authorized to make use of the Services (“Authorised Contacts”).
8.2 Customer must make sure that the Authorised Contacts have adequate expertise and experience to make possible a targeted and professionally accurate description of malfunctions and make it possible for Hexagon Geospatial to handle them efficiently. Authorised Contacts must have successfully completed Hexagon Geospatial product training or complete it at the next available scheduled opportunity, for those products for which formal training is available. Customer will bear the cost of this training. Customer is obligated to select only those personnel for this task who are suitable for it by means of training and function, and who have knowledge of Customer’s operating system, network, and hardware and software systems. Customer agrees to promptly notify Hexagon Geospatial of any replacement of an Authorised Contact.
9. REMOTE ACCESS
When necessary, Customer will permit Hexagon Geospatial to electronically access Customer’s system remotely in order for Hexagon support personnel (Customer Support) to effectively troubleshoot critical or complex problems and to expedite resolution of such issues. The Authorised Contacts should be available to assist Hexagon Geospatial Customer Support as needed during this entire process. Hexagon Geospatial Customer Support will only access the Customer’s system with the knowledge and consent of Customer.
10. THIRD PARTY SOFTWARE
Support and Updates of Third-Party Software shall be provided in the fashion and to the extent or duration that Hexagon Geospatial is authorised to provide such by the third party manufacturer of the Third-Party Software, and such Third-Party Software Services may be subject to additional terms and conditions of the third party manufacturer of the Third Party Software.
Services and Updates for any third-party software that are not listed on the Quote must be obtained from the third party owner of the products or their designated representative.
11. REQUIRED COVERAGE
11.1 Multiple or Interdependent Licenses. Customer may not decline maintenance for individual licenses of a Covered Product for which Customer has multiple copies under Service at one site or for Covered Products that are being used interdependently at a single site, except in accordance with the relinquishment process described in Section 12.2.
11.2 Prerequisite Licenses. All prerequisite Hexagon Geospatial software licenses that are necessary to operate the Covered Products for which Customer desires Services under the Agreement must also be included as Covered Products and listed on the Quote.
12. ADDITIONS AND REMOVALS OF COVERED PRODUCTS
12.1. Additions of Covered Products to Maintenance.
12.1.1 Additional Software Products from Hexagon Geospatial. In the event Customer purchases additional licenses of Software Products from Hexagon Geospatial during the Term of this Agreement, Hexagon Geospatial will provide Customer with a written extension Quote that reflects the additional licenses, the effective date of Service with respect to the copies of the Software Product that the additional licenses pertain to (the “Additional Products”), and charges for the additional licenses and Services pursuant to this Agreement.
12.1.2 Additional Software Products from a third party. In the event Customer obtains additional licenses of Software Products from an authorised reseller or by any other means during the Term of this Agreement, Customer agrees to promptly notify Hexagon Geospatial in writing about the newly acquired Software Products, and upon receipt of such notice, Hexagon Geospatial will provide Customer with a written extension Quote that reflects the additional licenses, the effective date of Services with respect to the Additional Products and the additional charges that would be due in return for these Services pursuant to the Agreement.
12.1.3 Section 2 shall apply mutatis mutandis to the formation of the Agreement based on the extension Quote submitted to Customer under Section 12.1.1 or Section
12.1.2 as well as the maintenance service contract terms and conditions referenced therein or made available to Customer together with the extension Quote. If the Agreement is not entered into based on the extension Quote as well as the maintenance service contract terms and conditions referenced therein by the effective date of Service as shown on the extension Quote, then Hexagon Geospatial shall not be obliged to provide Services for the Additional Products. Subsequently, in the event that an Agreement for Services for the Additional Products is entered into based on the extension Quote submitted by Hexagon Geospatial as well as the maintenance service contract terms and conditions referenced therein or made available to Customer together with the extension Quote, the terms and conditions in Section 4.2 regarding reinstatement of Services will apply to the additional licenses of Software Products. If, however, the additional Software Products are multiple, interdependent, or prerequisite licenses as described in Section 11 above, Services may not be declined, and Services and the appropriate monthly charges will begin on the effective date as shown on the extension Quote.
12.1.4 Additional Software Products via Software Transfer Policy. Customer shall purchase Services on all additional licenses of Software Products for a site obtained via software license transfer. Any such software license transfers shall be in accordance with the then-current Hexagon Geospatial Software Transfer Policy and the EULA or other applicable Software License Agreement delivered with the Software Product.
Removal of Covered Products from Maintenance. Either Party may provide written notice to the other Party at least sixty (60) days prior to the end of any Coverage Period of its intent to remove any individual Covered Products from the Agreement for the Coverage Period. Neither Party may remove Covered Products except upon Agreement renewal. Customer may not remove from the Agreement individual software licenses of a Covered Product for which Customer has multiple copies under Service at one site or for Covered Products that are being used interdependently at a single site, unless Customer has first certified to Hexagon Geospatial on a “Software Relinquishment Agreement” that the copies of the Covered Product for which Customer desires to cease Services (the “Relinquished Licenses”) for the renewal Coverage Period have been uninstalled and removed from its system(s). Should Customer desire to reinstate Services for the Relinquished Licenses at a later date, Customer must re-purchase the licenses at the then current list price.
13.1 Terms of Payment. Charges for Services are due and payable annually and in advance. For Customers desiring to pay quarterly and in advance instead of annually and in advance, Customer must request a revised Quote which shall include a convenience fee increase of fifteen percent (15%) of the total annual charges, which convenience fee Customer agrees to pay. The convenience fee shall be prorated and charged to the four quarterly invoices. All charges are due net thirty (30) days from the date of invoice or prior to the beginning of the applicable Coverage Period, whichever is earlier. Charges for Covered Products added during a Coverage Period shall be prorated to the remaining months of the Coverage Period, in whole month increments only, and such charges shall be due and payable in full upon receipt of invoice.
13.2 Past Due Accounts. HEXAGON GEOSPATIAL RESERVES THE RIGHT TO REFUSE SERVICE TO ANY CUSTOMER WHOSE ACCOUNT IS PAST DUE. At the discretion of Hexagon Geospatial, Customers who have not paid any charges when due (i) under this Agreement, (ii) under any other agreement between the Parties, or (iii) under any agreement between Hexagon Geospatial and Customer’s parent and/or subsidiary at least fifty percent (50%) owned by Customer, may not be rendered Services until all past due charges are paid in full. Additionally, Hexagon Geospatial shall charge and Customer agrees to pay interest at the rate of two percent (2%) per month or the maximum amount allowed by law, whichever is less, for all amounts not received when due. The start of the Coverage Period shall not be postponed due to delayed payment of any charges. If Hexagon Geospatial is required to use a collection agency or attorney to collect money owed by Customer, Customer agrees to pay the reasonable costs of collection. These collection costs include, but are not limited to, any collection agency’s fees, reasonable attorneys’ fees and court costs.
13.3 Customer’s Responsibilities Concerning Invoice Questions. Subject to applicable law, if Customer intends to dispute a charge or request a credit, Customer must contact Hexagon Geospatial within ten (10) days of the date on the invoice. Customer waives any right to dispute a charge or receive a credit for a charge or Services that Customer does not report within such period.
14. CUSTOMER WARRANTIES
14.1 Except for Covered Products or individual software licenses which have been removed from the Agreement in accordance with Section 12.2, Customer warrants that for all Covered Products supported under the Agreement, all copies of a Covered Product for which Customer has multiple copies in the possession of the Customer and located at the site referenced on the Quote, and all prerequisite Hexagon Geospatial software licenses necessary to operate such Covered Products are listed on the Quote. If any like Covered Products or prerequisite software licenses are not listed on the Quote, Customer agrees to notify Hexagon Geospatial so that Hexagon Geospatial may issue a revised Quote to the Customer.
14.2 Customer warrants that Services provided herein shall be utilised only for the quantity of Covered Products licenses listed on the Quote.
14.3 Customer shall, and Customer shall cause each of Customer’s employees and representatives to, comply with each and every term and condition of the EULA and/or SLA applicable to the Covered Products supported under the Agreement.
15. INTELLECTUAL PROPERTY
15.1 Software License. Any Upgrades furnished hereunder shall remain the property of Hexagon, Affiliates or applicable third parties, and are licensed in accordance with the then-current Hexagon Geospatial EULA, EULA of Intergraph’s Affiliates or third party SLA, which shall supersede any EULA or SLA associated with prior releases of the Software Products or Third-Party Software. Upon Customer’s request, Hexagon Geospatial agrees to execute Hexagon Geospatial’s EULA or SLA, as applicable, for Covered Products provided without an included EULA or SLA.
15.2 Confidential Information. Hexagon Geospatial and Customer each acknowledge that they may be furnished with, receive, or otherwise have access to information of or concerning the other Party which such party considers to be confidential, proprietary, a trade secret or otherwise restricted. As used in this Agreement “Confidential Information” shall mean all information, which may include third party information, in any form, furnished or made available directly or indirectly by one Party to the other that is marked confidential, restricted, proprietary, or with a similar designation. The terms and conditions, and existence, of this Agreement shall be deemed Confidential Information. Confidential Information also shall include, whether or not designated “Confidential Information” (i) all specifications, designs, documents, correspondence, software, documentation, data and other materials and work products produced by either Hexagon Geospatial or its subcontractors, and (ii) with respect to either Party, all information concerning the operations, financial affairs and businesses of that Party, and relations with its employees and service providers.
Each Party's Confidential Information shall remain the property of that Party or relevant third party except as expressly provided otherwise by the other provisions of this Agreement. Customer and Hexagon Geospatial shall each use at least the same degree of care, but in any event no less than a reasonable degree of care, to prevent disclosing to third parties the Confidential Information of the other as it employs to avoid unauthorised disclosure, publication or dissemination of its own information of a similar nature.
The Parties shall take reasonable steps to ensure that their respective employees comply with these confidentiality provisions. This Section shall not apply to any particular information which either Party can demonstrate (i) was, at the time of disclosure to it, generally publicly available;
(ii) after disclosure to it, is published or otherwise becomes generally publicly available through no fault of the receiving Party; (iii) was in the possession of the receiving Party at the time of disclosure to it without restriction on disclosure; (iv) was received after disclosure to it from a third party who had a lawful right to disclose such information to it without any obligation to restrict its further use or disclosure; or (v) was independently developed by the receiving party without reference to Confidential Information of the disclosing Party. In addition, a Party shall not be considered to have breached its obligations by disclosing Confidential Information of the other party as required to satisfy any legal requirement of a competent government body provided that, immediately upon receiving any such request and to the extent that it may legally do so, such Party advises the other Party promptly and prior to making such disclosure in order that the other Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.
16. LIMITED WARRANTIES; WARRANTY DISCLAIMERS
16.1. Limited Warranties.
16.1.1. Hexagon Services Warranty. Hexagon warrants for a period of thirty (30) days from the date of Services that the Services provided pursuant to this Agreement, in the form of a defect correction and/or maintenance services, will be performed with reasonable skill and care in accordance with the requirements set forth herein, provided the Covered Products for which the Services are provided are used under normal conditions and in strict accordance with the terms and conditions herein. Customer agrees to promptly notify Hexagon of any unauthorized use, repair, or modification, or misuse, as well as suspected defects in any Services provided pursuant to this Agreement. Nothing in this clause excludes, restricts or modifies any condition, warranty, guarantee, right or remedy that would be illegal for Hexagon Geospatial to so exclude, restrict or modify.
16.1.2 Hexagon Geospatial Software Warranty. Hexagon Geospatial warrants for a period of thirty (30) days from the date of shipment of any Software Product that, under normal use, software delivery media shall be free from defect in material or workmanship. Additional warranties for Software Products may be provided in the applicable Hexagon Geospatial Terms and Conditions for Sale or other agreement between the Parties governing the delivery of Software Products. Nothing in this clause excludes, restricts or modifies any condition, warranty, guarantee, right or remedy that would be illegal for Hexagon Geospatial to so exclude, restrict or modify.
16.1.3 Pass-Through Third Party Warranties. Third-Party Software is only warranted pursuant to a pass-through warranty to Customer from the applicable Third-Party Software manufacturer and only to the extent warranted by the applicable Third-Party Software manufacturer.
16.1.4 EXCLUSION OF OTHER WARRANTIES. THE ABOVE EXPRESS LIMITED WARRANTIES, ANY MANDATORY CONSUMER GUARANTEES AND ANY MANDATORY IMPLIED TERMS ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND REPRESENT THE FULL AND TOTAL OBLIGATION AND/OR LIABILITY OF HEXAGON GEOSPATIAL. THE LIMITED WARRANTIES PROVIDE CUSTOMER WITH SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. IF A GREATER WARRANTY IS MANDATED PURSUANT TO THE LAW HELD APPLICABLE TO THIS AGREEMENT, THEN HEXAGON GEOSPATIAL WARRANTS THE SERVICES OR COVERED PRODUCTS TO THE MINIMUM EXTENT REQUIRED BY SAID LAW.
16.2 Remedies. In the event a warranted Service, Covered Product, or Update provided pursuant to this Agreement does not substantially comply with the limited warranties set forth in the Agreement, or does not comply with a mandatory consumer guarantee or a mandatory implied term, Hexagon Geospatial’s entire liability and Customer’s exclusive remedy shall be, in Hexagon Geospatial’s sole and absolute discretion, either (i) providing of a re-supplied, replacement or repaired Service, Covered Product, or Update which conforms substantially with the limited warranty or conforms with the mandatory guarantee or mandatory term; or (ii) a refund of the purchase price of the particular Service, Covered Product, or Update for the period of time that the warranted Service, Covered Product, or Update did not substantially conform to the limited warranties set forth in this Agreement.
Hexagon Geospatial is acting on behalf of its suppliers for the sole purpose of disclaiming, excluding and/or limiting obligations and liability as provided in this Agreement, but in no other respects and for no other purpose
17. WARRANTY DISCLAIMERS
ANY EXPRESS WARRANTIES HEREUNDER ARE VOID IF FAILURE OF A WARRANTED ITEM RESULTS DIRECTLY, OR INDIRECTLY, FROM AN UNAUTHORISED MODIFICATION OF A WARRANTED ITEM; AN UNAUTHORISED ATTEMPT TO REPAIR A WARRANTED ITEM; OR MISUSE OF A WARRANTED ITEM, INCLUDING WITHOUT LIMITATION, USE OF WARRANTED ITEM UNDER ABNORMAL OPERATING CONDITIONS OR WITHOUT ROUTINELY MAINTAINING A WARRANTED ITEM. CUSTOMER SHALL PROMPTLY NOTIFY HEXAGON GEOSPATIAL OF ANY SUSPECTED DEFECTS IN COVERED PRODUCTS DELIVERY MEDIA. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND UNLESS OTHERWISE REQUIRED BY A MANDATORY CONSUMER GUARANTEE OR A MANDATORY IMPLIED TERM, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEXAGON GEOSPATIAL AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES, COVERED PRODUCTS, AND UPDATES PROVIDED PURSUANT TO THIS AGREEMENT. HEXAGON GEOSPATIAL DOES NOT WARRANT THAT ANY SERVICES, COVERED PRODUCTS, AND UPDATES PROVIDED PURSUANT TO THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS, AND UNDER NO CIRCUMSTANCES DOES HEXAGON GEOSPATIAL WARRANT THAT ANY SERVICES, COVERED PRODUCTS, AND UPDATES WILL OPERATE UNINTERRUPTED OR ERROR FREE. IF ANY PART OF THIS DISCLAIMER OF EXPRESS OR IMPLIED WARRANTIES IS RULED INVALID, THEN HEXAGON GEOSPATIAL DISCLAIMS EXPRESS OR IMPLIED WARRANTIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.
18. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HEXAGON GEOSPATIAL OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OR FOR DAMAGES FOR LOSS OF USE OR PRODUCTION, LOSS OF REVENUE OR PROFIT, LOSS OF DATA, LOSS OF BUSINESS INFORMATION, BUSINESS INTERRUPTION, CLAIMS OF THIRD PARTIES OR ANY OTHER PECUNIARY LOSS ARISING OUT OF THIS AGREEMENT, EVEN IF
HEXAGON GEOSPATIAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HEXAGON GEOSPATIAL’S ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO HEXAGON GEOSPATIAL DURING THE PAST TWELVE MONTHS UNDER THIS AGREEMENT AS OF THE DATE THE EVENT GIVING RISE TO THE CLAIM OCCURS. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, NO CLAIM, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN TWO (2) YEARS FOLLOWING THE INITIAL EVENT GIVING RISE TO THE CAUSE OF ACTION. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. IF ANY PART OF THIS SECTION IS HELD INVALID, THEN HEXAGON GEOSPATIAL LIMITS ITS LIABILITY TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.
This Agreement may only be terminated prior to its expiration in the following ways:
19.1 Either Party becomes insolvent, petitions for reorganization under Australia’s Corporations Act 2001 (Cth) or any equivalent replacement legislation or is adjudicated as bankrupt, or a receiver or judicial manager is appointed for the other Party’s business;
19.2 Customer fails to pay Hexagon Geospatial any amount when due (i) under this Agreement; or (ii) under any other agreement between the Parties;
19.3 Customer’s license to the Covered Products for which Customer has purchased Services is terminated.
20.1 Non-Solicitation of Employees. Customer agrees that it will not, without the prior written consent of Hexagon Geospatial, solicit or hire any Hexagon Geospatial employee, or induce such employee to leave Hexagon Geospatial’s employment, directly or indirectly, during the term of this Agreement and for a period of twelve (12) months after the Agreement expires or is terminated. Customer agrees that a breach of this provision would cause actual and substantial damages to Hexagon Geospatial such that it would be very difficult to calculate actual damages. Accordingly, any such breach will entitle Hexagon Geospatial to recover liquidated damages from Customer in the amount equal to one (1) year of the affected employee’s annual salary plus benefits for each such breach, as well as expenses, costs, and reasonable attorneys’ fees incurred by Hexagon Geospatial in seeking enforcement of this Agreement. Customer agrees that the foregoing amount is intended to be, and in fact is, a reasonable estimate of the actual damages that would be incurred by Hexagon Geospatial if Customer were to breach this provision, and that this amount is not intended to be, and in fact is not, a penalty. In addition, Hexagon Geospatial shall be entitled to equitable or injunctive relief to prevent further breaches. For purposes of this Section, the term “employee” means employees of Hexagon Geospatial and/or any Hexagon Geospatial subsidiary and/or any of Hexagon Geospatial’s subcontractors who directly support Customer.
20.2 United States Government Restricted Rights. If a Covered Product (including any Updates, documentation or technical data related to such Covered Products) is licensed, purchased, subscribed to or obtained, directly or indirectly, by or on behalf of a unit or agency of the United States Government, then this Section also applies.
20.2.1 For civilian agencies: The Covered Product was developed at private expense and is “restricted computer software” submitted with restricted rights in accordance with the Federal Acquisition Regulations (“FAR”) 52.227-19 (a) through (d) (Commercial Computer Software – Restricted Rights).
20.2.2 For units of the Department of Defense (“DoD”): The Covered Product was developed at private expense and is “commercial computer software” submitted with restricted rights in accordance with the Defense Federal Acquisition Regulations (“DFARS”) DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation).
20.2.3 Notice: The Covered Product is “commercial computer software” as defined in DFARS 252.227-7014 (Rights in Non-commercial Computer Software) and FAR
12.212 (Computer Software), which includes “technical data” as defined in DFARS 252.227-7015 (Technical Data) and FAR 12.211 (Technical Data). All use, modification, reproduction, release, performance, display or disclosure of this “commercial computer software” shall be in strict accordance with the manufacturer’s standard commercial license, which is attached to and incorporated into the governing Government contract. Hexagon Geospatial and any applicable Third-Party Software manufacturers are the manufacturers. This Covered Product is unpublished and all rights are reserved under the Copyright Laws of the United States.
20.3 Export Restrictions. All Software Products and all Third Party Software (including any Updates, documentation or technical data related to such software products) licensed, purchased, subscribed to or obtained, directly or indirectly, from Hexagon Geospatial Corporation, its subsidiaries or distributors (collectively, “Export Controlled Products”) are subject to the export control laws and regulations of the United States. Diversion contrary to United States law is prohibited. The Export Controlled Products, and the direct product thereof, shall not be exported or re-exported, directly or indirectly (including via remote access), under the following circumstances:
20.3.1 to Cuba, Iran, North Korea, Sudan, or Syria, or any national of these countries;
20.3.2 to any person or entity listed on any United States government denial list, including but not limited to, the United States Department of Commerce Denied Persons, Entities, and Unverified Lists (https://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern), the U.S. Department of Treasury Specially Designated Nationals List (), and the U.S. Department of State Debarred List (https://www.pmddtc.state.gov/ddtc_public?id=ddtc_kb_article_page&sys_id=c22d1833dbb8d300d0a370131f9619f0);
20.3.3 to any entity if Customer knows, or has reason to know, the end use of the Export Controlled Product is related to the design, development, production, or use of missiles, chemical, biological, or nuclear weapons, or other unsafeguarded or sensitive nuclear uses;
20.3.4 to any entity if Customer knows, or has reason to know, that an illegal reshipment will take place.
Any questions regarding export or re-export of an Export Controlled Product should be addressed to Hexagon Geospatial Corporation’s Export Compliance Department, 305 Intergraph Way, Madison, Alabama, United States 35758
or at email@example.com.
Unless otherwise stated, all maintenance charges are exclusive of Taxes. Customer shall be liable for, and shall indemnify and hold Hexagon Geospatial harmless from and against, any and all Taxes. Taxes shall expressly exclude any federal, state, municipal, or other governmental income taxes, franchise taxes, business license fees and other like taxes measured by Hexagon Geospatial’s income, capital and/or assets. The total invoice amount for maintenance charges is subject to increase by the amount of any Taxes which Hexagon Geospatial is required to withhold, collect, or pay so that Hexagon Geospatial receives the full amount of the maintenance charges set forth on Hexagon Geospatial’s invoices. Any certificate to exempt the Agreement from tax liability or other documentary evidence of statutory exemption shall be obtained by Customer at Customer’s expense. In this clause, Taxes means any federal, provincial, state, municipal, or other governmental, withholding, excise, sales, use, value added or other taxes, tariffs, custom duties and importing fees, but do not include GST (“Taxes”).
All consideration provided under this Agreement is exclusive of GST, unless it is expressed to be GST-inclusive. Where a Party (“Supplier”) makes a supply under or in connection with this Agreement that is a taxable supply to another Party (“Recipient”), the Recipient must pay to the Supplier an additional amount equal to the GST payable on the supply (unless the consideration for that taxable supply is expressed to include GST). The additional amount must be paid by the Recipient at the later of the following (i) the date when any consideration for the taxable supply is first paid or provided; and (ii) the date when the Supplier issues a tax invoice to the Recipient. If, under or in connection with this Agreement, a Supplier has an adjustment event for a supply under the GST law which varies the amount of GST payable by the Supplier, the Supplier will adjust the amount payable by the Recipient to take account of the varied GST amount. Terms used in this clause that are not otherwise defined in this Agreement have the meanings given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
22.1 Third Party Providers. Hexagon Geospatial reserves the right to provide Services through a third-party provider.
22.2 Entire Agreement. The Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof. Subject to any condition, warranty, guarantee, right or remedy under a that would be illegal for Hexagon Geospatial to exclude, restrict or modify by reason of the following sentence, this Agreement supersedes any and all prior discussions and/or representations, whether written or oral, relating to the subject matter of the Agreement and no reference to prior dealings may be used to in any way modify the expressed understandings of the Agreement. Hexagon Geospatial does not accept any contradictory or additional terms and conditions, even by accepting a purchase order referencing different terms and conditions. The Agreement may be amended only by a written instrument signed by authorised representatives of both Parties, and cannot be amended by subsequent purchase order or writing received from Customer without the express written consent of Hexagon Geospatial. Any reproduction of the Agreement made by reliable means (for example, photocopy or facsimile) will be deemed an original.
22.3 Order of Precedence. In the event of a conflict between the documents that form the Agreement, the order of precedence will be as follows: (i) any addenda executed by Hexagon Geospatial and Customer, with the latest addendum taking precedence over any earlier addenda; (ii) the Quote; and (iii) these Terms and Conditions.
22.4 Severability. Whenever possible, each provision of the Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of the Agreement 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 the Agreement.
22.5 Headings. The various headings in these Terms and Conditions are inserted for convenience only and shall not affect the meaning or interpretation of these Terms and Conditions or any section or provision of these Terms and Conditions.
22.6 No Waiver. Any failure by either Party to enforce performance of the Agreement shall not constitute a waiver of, or affect said Party’s right to avail itself of, such remedies as it may have for any subsequent breach of the terms of the Agreement. Any waiver shall be effective only if made in writing and signed by the Party making the waiver.
22.7 Notices. Any notice or other communication (“Notice”) required or permitted under the Agreement shall be in writing and either delivered personally or sent by overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested. A Notice delivered personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A Notice sent by overnight delivery or express mail shall be deemed given twenty-four (24) hours after having been posted. A Notice that is sent by certified mail or registered mail shall be deemed given forty-eight (48) hours after it is mailed. If any time period in this Agreement commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given. Hexagon Geospatial’s address for Notices is Hexagon Geospatial, Level 4/32 Walker St, North Sydney New South Wales 2060, Attn: Legal Department.
22.8 Assignment. Neither Party shall have the right to assign any of its rights nor delegate any of its obligations under this Agreement without the prior written consent of the other Party, except that Hexagon Geospatial may assign any of its rights and obligations under this Agreement, without Customer’s approval, to (i) an entity which acquires all or substantially all of the assets of Hexagon Geospatial or the Hexagon Geospatial division providing a product or service under this Agreement; (ii) an entity which acquires all or substantially all of the Software Products or product line assets subject to this Agreement; or (iii) any subsidiary, Affiliate or successor in a merger or acquisition of Hexagon Geospatial. Any attempt by Customer to sublicense, assign or transfer any of Customer’s rights or obligations under this Agreement, except as expressly provided in this Agreement, is void.
22.9 Force Majeure. Except for payment obligations under the Agreement, neither Party shall be liable for any failure to perform or observe any of its obligations under this Agreement for as long as and to the extent that such performance is prevented or hindered by any circumstances beyond its reasonable control. By way of example, and not limitation, such causes may include acts of God or public enemies; labour disputes; acts of local, state, or national governments or public agencies; utility or communications failure; fire; flood; epidemics; riots; or strikes. The time for performance of any right or obligation delayed by such events will be postponed for a period equal to the delay. If, however, a Party is subject to a force majeure that endures for more than sixty (60) days, the other Party has a right to terminate the Agreement upon providing thirty (30) days prior written notice to the Party subject to the force majeure.
22.10Governing Law. This Agreement shall for all purposes be construed and enforced under and in accordance with the laws of the State of Victoria, Australia. The parties agree that any legal action or proceeding relating to this Agreement shall be instituted in the courts of Victoria, Australia. The parties agree to submit to the jurisdiction of and agree that venue is proper in these courts in any such legal action or proceedings.
22.11 Injunctive Relief; Cumulative Remedies. Customer acknowledges and agrees that a breach of the Agreement by Customer could cause irreparable harm to Hexagon Geospatial for which monetary damages may be difficult to ascertain or may be an inadequate remedy. Customer agrees that Hexagon Geospatial will have the right, in addition to its other rights and remedies, to seek and obtain injunctive relief for any breach of the Agreement by Customer, and Customer expressly waives any objection that Hexagon Geospatial has or may have an adequate remedy at law with respect to any such breach. The rights and remedies set forth in this Agreement are cumulative and concurrent and may be pursued separately, successively or together.
22.12 Legal Fees and Costs. In the event of any legal proceeding arising out of or relating to this Agreement, the prevailing party in such action shall be entitled to an award of its reasonable legal’ fees and costs for all such legal proceedings, including for trial and all levels of appeal.
22.13 Governing Language. The controlling language of this Agreement is English. If Customer has received a translation into another language, it has been provided for Customer’s convenience only and the English language version shall prevail in the event of any inconsistency between the different language versions.
22.14 Survival. The provisions of the Agreement which require or contemplate performance after the expiration or termination of the Agreement shall be enforceable notwithstanding said expiration or termination.