Australia - Terms and Conditions for Sale of Software Product(s)
This Agreement (“Agreement”) constitutes the Terms and Conditions of Sale of Hexagon Geospatial Product(s) to Buyer.
1. Definitions. As used in this Agreement:
Agreement means these Terms and Conditions and each agreement entered into thereunder;
Buyer means the entity or person purchasing all or part of the Software and Maintenance stated in Hexagon’s quotation;
Hexagon means Intergraph Corporation Pty Ltd trading as Hexagon Geospatial (Hexagon);
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;
Product(s) means the Hexagon Software licenses and/or Third-Party Software licenses listed in Hexagon’s quotation;
Quotation means the document that sets out the products purchased by the Buyer and prices and includes the terms and conditions set out in this Agreement;
Software means (i) any binary software program, (ii) any upgrades or updates, and (iii) any related user manuals or other documentation included with the Products or listed separately in Hexagon’s quotation; and
Third Party means any other division of the Intergraph Corporation or any company other than Intergraph Corporation, Hexagon or Buyer.
The terms and conditions of this Agreement shall be deemed to be an integral part of all acceptances by Hexagon and shall supersede any conflicting provisions of any purchase order or other communication of the Buyer. Software is furnished to Buyer under the terms of Hexagon’s “End User License Agreement” which may be separately executed or may be included with the Software Product. Some third-party software provided under this Agreement may be furnished under the terms of the relevant third party’s “Software License Agreement” which may be separately executed or may be included with the Software Product. Buyer agrees to execute Hexagon’s End User License Agreement or relevant third party’s Software License Agreement, as applicable, for the Software Products that are furnished without an included End User License Agreement.
Hexagon reserves the right to change design, price and other terms without notice to Buyer and until acceptance of order by Hexagon.
All Prices contained on a Hexagon quotation are exclusive of, and Buyer shall be liable for and shall indemnify and hold Hexagon harmless from and against each and every country’s federal, state, or other governmental, withholding, excise, sales, use, value added, GST, or other taxes, tariffs, custom duties and importing fees (“Taxes”). Taxes shall expressly exclude any (i) federal, (ii) state, or (iii) other governmental income taxes, franchise taxes and other like taxes measured by Hexagon’s net income. Taxes shall expressly include any related interest and/or penalty. Total invoice amount for any charges pursuant to an accepted quotation are subject to increase by the amount of any Taxes which Hexagon is required to pay and/or which Buyer is required to withhold, collect or pay regarding the transactions pursuant to the Agreement, so that Hexagon receives the full amount of the charges invoiced. Any certificate to exempt any charges from any liability for Taxes or other documentary evidence of statutory exemption shall be obtained by Buyer at Buyer’s expense and provided to Hexagon.
5. Delivery and Installation.
5.1 Shipping Delivery Point – Where delivery of Software Products has been ordered, Hexagon will deliver Software Products to locations in Australia on a F.C.A. basis. Software Product installation services are available at an extra charge.
5.2 Partial Delivery - Hexagon may make partial shipments to Buyer and invoice accordingly, and Buyer shall be obligated to pay for such partial shipments when invoiced.
5.3 Delivery Dates - Shipments of any Products purchased hereunder are subject to Hexagon’s availability schedule. Hexagon will make every reasonable effort to meet delivery dates quoted or acknowledged. However, Hexagon will not be liable for any failure to meet such dates. For Software Products to be delivered via electronic download, the date of delivery shall be the date at which a License Authentication Code is sent to Buyer.
5.4 Installation – Unless installation services by Hexagon have been purchased by Buyer, Buyer is responsible for installation of Software Product(s).
Buyer shall be deemed to have accepted the Products covered by this Agreement upon the earlier of: (a) delivery to Buyer, if installation by Hexagon is not included in the purchase price; (b) certification by Hexagon that the Product is installed and meet Hexagon’s specifications, if installation by Hexagon is included in the purchase price; (c) utilization of the Product by Buyer for any useful work.
7. General Terms of Payment - Subject to credit approval.
Unless otherwise agreed upon in writing, payment for all Product(s) purchased by the Buyer from Hexagon shall be made within the time specified below. Unless stated otherwise in the quotation to Buyer, Payments shall be made in Australian currency and all exchanges,
interest, banking, and bank collection charges and other related charges shall be the obligation of the Buyer; any special financing or other arrangements to meet currency or import restrictions are the responsibility of the Buyer. Title to the Software shall always
remain with Hexagon or in the case of Third Party Software with the owner of such Software. Payments shall be made in accordance with the invoice issued to Buyer by Hexagon. Hexagon’s payment terms are net thirty (30) calendar days from the date of invoice and the Buyer shall be invoiced either in accordance with the quotation for Software or once the Buyer has provided their consent to buy the Software and Products.
Hexagon shall charge and the Buyer 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 30 days after the date of invoice.
No payments may be withheld by the Buyer for any reason nor may any counterclaim by the Buyer be set off against any payment due Hexagon, without prior written consent of Hexagon. Buyer will be responsible for all costs and expenses incurred in the collection of any outstanding amounts, including reasonable collection agency or attorney’s fee.
8. Limited Warranties
8.1. Software - Except for any reference data or solution ware contained in the Software Product, Hexagon warrants for a period of thirty (30) calendar days after the date of delivery (i.e., via physical shipment or electronic download) that the Software Product shall perform substantially in accordance with the documentation supplied with the particular Software Product. Reference data and solution ware are provided “as is” and without any warranties whatsoever.
8.2. Software Media – If a Software Media pack is purchased, Hexagon warrants for a period of thirty (30) calendar days from the date of delivery, or the date of installation if installation by Hexagon is included in the purchase price, that Software Product(s) delivery media shall be free from defect in material or workmanship. Hexagon does not warrant that the software Product(s) will meet buyer’s requirements, and under no circumstances does Hexagon warrant that the software Product(s) will operate uninterrupted or error free.
8.3. Remedies - Upon written notification of any failure of Product to conform to Hexagon’s express warranties, Hexagon shall be given reasonable opportunity to investigate all claims and no Product shall be returned to Hexagon until after written approval by Hexagon and receipt of written shipping instructions from Hexagon have been provided. For any breach of the above warranties, Buyer’s exclusive remedy and Hexagon’s entire liability shall be either to replace or repair any defective Product, to refund the purchase price upon return of the defective Product, or to grant a reasonable allowance on account of such defects
8.4. Effectiveness - The effectiveness of the warranties contained herein shall with respect to any particular defect be conditional upon Buyer’s substantiation that the Product and its components have been stored, maintained, and operated in accordance with such reasonable instructions as are given by Hexagon to Buyer and with standard industry practice. Subject to the foregoing, the warranties contained in this Section shall remain in effect from the date of delivery (i.e., via physical shipment or electronic download) until thirty (30) days thereafter, unless the purchase price includes installation, in which case the period begins on the date Hexagon certifies to Buyer that the Product is installed and is operating in conformance with Hexagon specifications. If Buyer schedules or delays installation by Hexagon more than thirty (30) days after delivery, the warranty period shall begin on the thirty-first (31st) day from date of shipment.
8.5. DISCLAIMER - except as provided above, Hexagon disclaims (to the extent permitted by law) all warranties, including the implied warranties of merchantability and fitness for particular use. If under the law ruled applicable to this agreement any part of the above disclaimer of expressed or implied warranties is invalid, then Hexagon disclaims express or implied warranties to the maximum extent allowed by said law.
8.6. Supplemental statements setting forth warranty terms different from the above are available for some Product types, and are incorporated herein if applicable. The terms of such supplemental statements supersede the terms hereof only to the extent they are inconsistent herewith.
9. Security Terms
Buyer hereby grants and Hexagon reserves a purchase money security interest in each Product purchased hereunder, and in any proceeds thereof, for the full amount of the Agreement price. Buyer agrees that Hexagon may sign on Buyer’s behalf any document required to perfect such security interest. Payment in full of the purchase price of any Product purchased hereunder shall release the security interest on that Product.
10. Software License.
All commercial, off-the-shelf software and third-party developed software furnished by Hexagon hereunder shall remain the property of Hexagon, or the respective Third Party. Product(s) are furnished to Buyer under the terms of Hexagon’s applicable “End User License Agreement” which may be separately executed or may be included with the Product(s). Buyer agrees to execute Hexagon’s End User License Agreement, as applicable, for the software packages that are furnished without an included End User License Agreement.
Buyer understands that Intergraph Corporation and Hexagon possesses information and data that was developed, created or discovered by Intergraph Corporation and Hexagon, or which has become known to, or has been conveyed to Intergraph Corporation and Hexagon which has commercial value in Intergraph Corporation and Hexagon’s day-to- day business. Intergraph Corporation and Hexagon considers such information and/or data to be proprietary and confidential. Such information and/or data includes, but is not limited to, trade secrets, copyrights, inventions (whether patentable or not), concepts, ideas, methods, techniques, formulae, algorithms, logic designs, screen displays, schematics, source and object code computer programs all of which shall hereinafter be singularly or collectively referred to as Intergraph Corporation’s Intellectual Property.
All commercial, off-the-shelf software and third-party developed software furnished by Hexagon hereunder shall remain the property of Intergraph Corporation or Hexagon, or the respective third party, and is subject to Intergraph Corporation’s, Hexagon or relevant third party’s software license agreement(s).
12. Patent, Trademark, Copyright Infringement
In the event of any proceeding (suit, claim, or action) against Buyer arising from allegations that the Product(s), or services, or part thereof, furnished by Hexagon infringes a U.S. patent, copyright, trade secret, trademark, intellectual property right, or other proprietary right of any Third Party, Hexagon will, if such proceeding does not result from modifications to the Product(s) made by Buyer or Buyer’s use of any Product(s) in combination with other products not furnished by Hexagon, defend Buyer’s right, or interest in the Product(s), at Hexagon’s expense. Hexagon shall make such defense by counsel of its own choosing and Buyer shall reasonably cooperate with said counsel. Hexagon shall have sole control of said defense and any settlement of any claim.
In the event any proceeding is found to be based on modifications, enhancements or additions made by Buyer or any person or entity, or Buyer’s use of the Product(s), in combination with other products not furnished by Hexagon, Buyer agrees to defend Hexagon’s right, title or interest in the Product(s), at Buyer’s expense, to reimburse Hexagon for any defense expenses inclusive of reasonable attorneys’ fees expended by Hexagon in defense of said claim, and pay any judgment rendered against Hexagon, provided Hexagon promptly notifies Buyer in writing of the proceeding. Buyer shall make such defense by counsel of its own choosing and Hexagon shall reasonably cooperate with said counsel. Buyer, in such circumstances shall have sole control of the defense.
In the event any Product(s) furnished hereunder are, in Hexagon’s opinion, likely to or do become the subject of a claim of infringement of any duly issued patent or copyright or of any trade secrets or other intellectual property rights or other proprietary rights of a Third Party, Hexagon may at its option and expense, procure for Buyer the right to continue using the Product(s), or modify the Product(s) to make them non-infringing but functionally the same, or replace the Product(s) with (a) non-infringing equivalent(s), or refund the purchase price to the Buyer.
If purchased, annual Maintenance (including first year and all subsequent years) is provided under Hexagon Geospatial’s Maintenance Terms and Conditions for Software in effect at the time the services are provided. Annual Maintenance is effective upon the date of delivery (i.e., via physical shipment or electronic download) unless otherwise stated in your order.
Neither Hexagon nor Buyer shall assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party, provided that such consent shall not be unreasonably withheld, except that Hexagon may assign its rights and obligations under this Agreement without the approval of Buyer to an entity which acquires all or substantially all of the assets of Intergraph Corporation or Hexagon or to any subsidiary, affiliate or successor in a merger or acquisition of Intergraph Corporation or Hexagon.
15. Limitation of Liability.
15.1. TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEXAGON SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE OR PRODUCTION, REVENUE OR PROFIT, OR LOSS OF DATA OR CLAIMS OF THIRD PARTIES, EVEN IF HEXAGON HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.
15.2. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO CLAUSE 15.1, HEXAGON’S TOTAL AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND WHETHER ARISING FROM A BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER BASIS IN LAW OR EQUITY, WILL NOT EXCEED THE AMOUNT THAT HEXAGON HAS BEEN PAID BY CUSTOMER UNDER THIS AGREEMENT AT THE TIME ANY CLAIM IS MADE. EXCEPT WHERE PROHIBITED 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 AFTER THE EVENT GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED.
15.3. IF UNDER THE LAW RULED APPLICABLE TO THIS AGREEMENT ANY PART OF THIS CLAUSE IS INVALID, HEXAGON EXCLUDES ITS LIABILITY TO THE MAXIMUM EXTENT ALLOWED BY SAID LAW.
15.4. THIS LIMITATION OF LIABILITY CLAUSE SHALL NOT APPLY TO ANY PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENCE OF HEXAGON.
16. Cancellation, Rescheduling, Returns.
16.1. Cancellation - In the event of the cancellation of any order, or items included in an order, Buyer will be liable for and agrees to pay cancellation charges to Hexagon in accordance with the following schedule:
(a) For cancellation notices received thirty (30) days or more prior to the scheduled date of delivery (i.e., via physical shipment or electronic download), zero percent (0%) cancellation fee.
(b) For cancellation notices received less than thirty (30) days prior to the scheduled date of delivery, ten percent (10%) of the total purchase price.
(c) For cancellation notices received after the scheduled date of delivery, no refunds shall be provided.
Buyer agrees that title, rights and/or interests to the cancelled item(s) shall remain with Hexagon and that Buyer shall have no title, right and/or interest to such.
16.2. Rescheduling - In the event that Buyer makes changes following initial placement of the order, Hexagon reserves the right to reschedule Buyer’s order. Upon Buyer’s written notification of change(s), a new shipment date will be established by Hexagon. Hexagon will inform Buyer and obtain Buyer’s direction regarding any charges that Hexagon would incur as a result of an order modification. If Buyer directs Hexagon to modify the order for which Hexagon will incur a charge, Buyer agrees to pay all charges for the modification.
16.3. Returns - No return of any Product(s) to Hexagon will be accepted unless previously authorized in writing by Hexagon, whether under warranty or otherwise. Any returns other than those under warranty will be subject to a reasonable restocking charge.
Buyer understands that Hexagon possesses information and data that was developed, created or discovered by Hexagon, or which has become known to, or has been conveyed to Hexagon which has commercial value in Hexagon’s day-to-day business. Hexagon considers such information and/or data to be proprietary and confidential. Such information and/or data includes, but is not limited to, trade secrets, copyrights, inventions (whether patentable or not), concepts, ideas, methods, techniques, formulae, algorithms, logic designs, screen displays, schematics, source and object code computer programs all of which shall hereinafter be singularly or collectively referred to as Hexagon’s Confidential Information. Buyer agrees to use reasonable efforts to treat and maintain as proprietary and confidential Hexagon’s Confidential Information or any information or data provided by Hexagon, in whatever form, as it would its own proprietary and confidential information and data, but in any event, no less than reasonable care.
18. Force Majeure.
Hexagon has no obligation to deliver the Product(s) against any order until it has accepted the order. In any event, Hexagon will not be liable for any delay in shipment or any failure to ship the Product against an accepted order or for any damages suffered by reason thereof, when such delay or failure is, directly or indirectly, due to accident (in manufacture or otherwise), fire, flood, seizure, riot, acts of terrorism, war, embargo, labour stoppages or difficulties, inadequate transportation facilities, shortage of material or supplies, delay or default on the part of its suppliers, regulation or order by government authority, or any other casualty or cause beyond the reasonable control of Hexagon, which Hexagon, in its discretion, declares to be Force Majeure resulting in such delay or failure. Hexagon may, at its option, cancel this order, or delay performance hereunder for any period reasonably necessary due to any of the foregoing, during which time this Agreement shall remain in full force and effect. Hexagon shall have the further right to then allocate its available materials and Product between its own uses and its customers in such manner as Hexagon may consider fair and equitable.
19. Order of Precedence.
The terms of this Agreement hereof take precedence over Buyer’s additional or different terms and conditions, to which notice of objection is hereby given. Acceptance by Buyer is limited to this Agreement. Neither Hexagon’s commencement of performance nor delivery shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions. This Agreement constitutes the entire understanding between the parties and supersedes any previous communications, representations or agreements by either party whether verbal or written. Any future representations, promises and verbal agreements related to Products, Product features, future Product enhancements, Product functionality, or services covered by this Agreement will be of no force or effect unless reduced in writing and made a part of this Agreement. No change or modification of any term of this Agreement herein shall be valid or binding on either party unless in writing and signed by an authorized representative of the party to be bound.
Whenever possible, each provision of this Agreement 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 this Agreement 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 this Agreement or such related document.
21. Export Control
Hexagon’s software products and any third-party software products obtained from Hexagon, its subsidiaries, or distributors, ( including any Documentation or technical data related to these products) are subject to export controls laws and regulations of the United States. Diversion contrary to U.S. law is prohibited. This software, and the direct product thereof, must not be exported or re-exported, directly or indirectly (including via remote access) under the following circumstances:
a. To Cuba, Iran, Libya, North Korea, Sudan, or Syria, or any national of these countries.
b. To any person or entity listed on any U.S. 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 ().
c. To any entity when Lessee knows, or has reason to know, the end use of the Software Product is related to the design, development, production, or use of missiles, chemical, biological, or nuclear weapons, or other un-safeguarded or sensitive nuclear uses.
d. To any entity when Lessee knows, or has reason to know, that an illegal reshipment will take place.
Any questions regarding export or re-export of these Software Products should be addressed to Export Compliance Department, 305 Intergraph Way, Madison, Alabama 35758, USA.
Buyer shall hold harmless and indemnify Hexagon for any costs and or damages resulting to Hexagon from a breach of this Article by Buyer. The Buyer’s obligations in this Clause 20 shall survive the termination or expiration of this Agreement.
Any failure by Hexagon to enforce performance of the terms and conditions set forth in this Agreement shall not constitute a waiver of or affect Hexagon’s right
23. Governing Law & Jurisdiction
This Agreement shall for all purposes be construed and enforced under and in accordance with the laws of the State of Victoria. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Victoria for the settlement or adjudication of any disputes arising out of this Agreement. 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 the interpretation or enforcement of these terms.
24. Entire Agreement
These Terms and Conditions, the Hexagon Quotation, and the Customer’s Purchase Order to the extent that it is not inconsistent with Hexagon’s terms and conditions , together constitute the entire agreement between the parties with respect to the subject matter hereof; all prior agreements, representations, statements, negotiations, and undertakings are superseded hereby. Other terms and conditions do not apply to this Agreement, even if Hexagon does not expressly contradict. This Agreement shall not be amended or modified except by written and signed agreement of the parties. The waiver of this written form requirement needs to be in writing and duly signed by the parties.”