Australia - Terms and Conditions for Services
The proposal and delivery of services by Intergraph Corporation Pty Limited trading as Hexagon Geospatial (Hexagon) are expressly subject to the terms and conditions set forth below. Hexagon does not accept any contradictory or additional terms and conditions, even by accepting the purchase order referencing different terms and conditions. These terms and conditions cannot be altered, modified, or amended by subsequent purchase order or writing received from customer without the express written consent of Hexagon.
1.0 SCOPE OF SERVICES
Hexagon will provide services (“Services”) and/or specific deliverables such as Customized Software or other deliverables (jointly hereinafter the Deliverables) to Customer as stated in the Statement of Work (“SOW”), or Hexagon Proposal (“Proposal”) as the case may be.
The Services and/or Deliverables will be provided in accordance with these Terms and Conditions for Services (hereinafter the “Terms") and limited to the funding contained in the Proposal or SOW or the Customer’s Purchase Order.
2.0 TERMS OF PAYMENT
Unless otherwise agreed or stated in the Proposal, for all Services, Deliverables and any other expenses, Customer shall pay the remuneration listed in the current price list as of the effective date of these Terms. Hexagon payment terms are net thirty (30) calendar days from the date of invoice. Customer will be invoiced on either a monthly basis, upon completion, per milestone payment schedule, or upon completion and acceptance of Deliverables, pursuant to the payment schedule as stated in the applicable SOW or Proposal.
Customer agrees to reimburse for all out-of-pocket expenses (travel, incidentals, special materials which may be requested by Customer) at Hexagon’s cost.
Customer shall pay interest on any payment that becomes due and payable at the rate of 10% per annum compounded monthly calculated from the time payment was due until the time payment is received by Hexagon. No payments may be withheld by Customer for any reason nor may any counterclaim by Customer be set off against any payment due hereunder, without the prior written consent of an authorized Hexagon representative, except for undisputed or legally established claims.
3.0 CUSTOMIZED SOFTWARE WARRANTY
WARRANTS THAT THE DELIVERABLES SHALL PERFORM IN ACCORDANCE WITH THE FUNCTIONAL REQUIREMENTS (FRS)/FUNCTIONAL DESIGN SPECIFICATION (FDS) AS STATED IN THE APPLICABLE STATEMENT OF WORK OR PROPOSAL.
THE WARRANTY PERIOD IS 30 DAYS FROM THE DATE OF SUCCESSFUL COMPLETION OF ACCEPTANCE TEST (IF APPLICABLE) OR IN CASE OF NO ACCEPTANCE TEST, WARRANTY PERIOD SHALL COMMENCE FROM THE DATE OF DELIVERY.
CUSTOMER MAY NOT REFUSE COMPLETION OF ACCEPTANCE TEST (IF APPLICABLE) IN CASE OF INSIGNIFICANT DEFECTS. ACCEPTANCE TEST (IF APPLICABLE) IS DEEMED TO BE COMPLETED IF CUSTOMER FAILS TO DECLARE ACCEPTANCE WITHIN A REASONABLE PERIOD SET BY HEXAGON. ACCEPTANCE TEST IS DEEMED TO BE COMPLETED IF CUSTOMER PLACES CUSTOMIZED SOFTWARE INTO A PRODUCTION ENVIRONMENT.
DURING THE WARRANTY PERIOD, HEXAGON WILL ADDRESS SOFTWARE ANOMALIES, WHICH DO NOT ADHERE TO THE FRS/FDS.
REFERENCE DATA (I. E. ANY DATA THAT HAS BEEN TRANSFORMED FROM STANDARDS, VENDOR CATALOG INFORMATION ETC., INTO THE FORMAT REQUIRED BY THE APPLICABLE PRODUCT. REFERENCE DATA IS NOT EXECUTABLE SOFTWARE.) AND DATA, TEMPLATES, SCHEMATIC EXTENSIONS, WORK PROCESS PRE-CONFIGURATIONS, WEB SERVICES, INTEGRATION COMPONENTS AND SOFTWARE CODE ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES WHATSOEVER.
THE FOREGOING WARRANTIES ARE VOID IF FAILURE OF A WARRANTED ITEM RESULTS, DIRECTLY OR INDIRECTLY, FROM AN UNAUTHORIZED MODIFICATION TO A WARRANTED ITEM; AN UNAUTHORIZED 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, UNLESS CUSTOMER CAN PROVE THAT THESE ACTS DID NOT UNREASONABLY AFFECT THE ANALYSIS AND THE REMEDY OF THE DEFECTS.
HEXAGON’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY SHALL BE, AT HEXAGON’S SOLE AND ABSOLUTE DISCRETION AS FOLLOWS:
SHALL, AT ITS SOLE AND ABSOLUTE DISCRETION, REMEDY A DEFECT OF THE DELIVERABLES BY EITHER REPAIR OR REPLACEMENT. CUSTOMER IS ONLY ENTITLED TO TERMINATE THIS CONTRACT OR REDUCE PAYMENT IF HEXAGON FAILS TO REMEDY THE DELIVERABLES. IN CASE OF INSIGNIFICANT DEFECTS, CUSTOMER IS NOT ENTITLED TO REDUCE PAYMENT OR TERMINATE THE CONTRACT. SUBJECT TO SECTION 5, CUSTOMER SHALL BE ENTITLED TO CLAIM FOR DAMAGES IF HEXAGON IS RESPONSIBLE FOR THE DEFECT.
IF AN ACCEPTANCE TEST IS NOT APPLICABLE, CUSTOMER IS OBLIGED TO INSPECT THE DELIVERABLES IMMEDIATELY UPON RECEIPT AND NOTIFY HEXAGON OF ANY DEFECTS IMMEDIATELY IN WRITING. IN CASE OF HIDDEN DEFECTS CUSTOMER SHALL NOTIFY HEXAGON IMMEDIATELY IN WRITING UPON DETECTION. IF CUSTOMER FAILS TO COMPLY WITH THESE DUTIES, ANY WARRANTY AND/OR DAMAGE CLAIM WITH RESPECT TO THAT DEFECT IS EXCLUDED.
THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND REPRESENTS THE FULL AND TOTAL OBLIGATION AND/OR LIABILITY OF HEXAGON.
EXCEPT AS PROVIDED ABOVE, HEXAGON DISCLAIMS (TO THE EXTENT PERMITTED BY LAW) ALL WARRANTIES, IN PARTICULAR NO WARRANTY SHALL BE ASSUMED FOR POTENTIAL MARKETABILITY OR SUITABILITY AS REGARDS A CERTAIN PURPOSE. IF UNDER THE LAW RULED APPLICABLE TO THESE TERMS ANY PART OF THE ABOVE DISCLAIMER OF WARRANTIES IS INVALID, THEN HEXAGON DISCLAIMS EXPRESS OR IMPLIED WARRANTIES TO THE MAXIMUM EXTENT ALLOWED BY SAID LAW.
5.0 LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT HEXAGON’S LIABILITY TO CUSTOMER FOR ANY COSTS, LOSSES AND DAMAGES; WHETHER DIRECT OR INDIRECT, INCURRED BY CUSTOMER ARISING OUT OF THE WORKS SHALL IN NO CIRCUMSTANCES EXCEED, IN AGGREGATE, THE FEES ACTUALLY PAID TO HEXAGON.
NOTWITHSTANDING ANY PROVISION HEREIN, HEXAGON SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR LOSS OF DATA, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT. NO CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE
BROUGHT BY THE CUSTOMER MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IN ALLOTHER CASES HEXAGON’S LIABILITY IS EXCLUDED. NOTWITHSTANDING THE FOREGOING, HEXAGON ’S LIABILITY FOR REFERENCE DATA AS DEFINED IN SECTION 3 IS EXCLUDED.
TO THE EXTENT HEXAGON, HEXAGON’S EMPLOYEES, MANAGING DIRECTORS AND SUBCONTRACTORS ARE LIABLE UNDER STATUTORY LAW, THE FOREGOING LIMITATIONS APPLY MUTATIS MUTANDIS TO INTERGRAPH CORPORATION, HEXAGON’S EMPLOYEES, MANAGING DIRECTORS AND SUBCONTRACTORS.
6.0 OWNERSHIP OF DATA/COMPUTER SOFTWARE
All Intergraph Corporation Software and Deliverables (including but not limited to data, documentation, programs, or program enhancements) provided by Hexagon under the SOW or Proposal is owned by Intergraph Corporation and shall be licensed to Customer pursuant to Intergraph Corporation’s current Software License Agreement, except as modified herein. Intergraph Corporation only licenses Software products to Customer. The Service Agreement with corresponding warranties is concluded exclusively between Customer and Hexagon.
The Customer understands that Hexagon and Intergraph Corporation possess information and data that was developed, created, or discovered by Hexagon and/or Intergraph Corporation, or that has become known to or has been conveyed to Hexagon’s, that 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, work processes, formulae, algorithms, logic designs, screen displays, schematics, and source and object code computer programs, all of which shall hereinafter be singularly or collectively referred to as “Hexagon ’s Intellectual Property”, which is owned by Intergraph Corporation and provided by Hexagon.
The Customer further understands that if the SOW requires the development of any Customized Software as a Deliverable, the Customer shall maintain the confidentiality of the Deliverable, including any Documentation applicable thereto, but not of the existence of the Customized Software as such, as it would confidential information/data of its own and shall not disclose same to any third party without the prior written consent of an authorized Hexagon contracts representative.
“Customized Software” shall mean those Deliverables developed solely for the Customer under the SOW, as well as any Hexagon Intellectual Property that may be developed or that may be embodied in any Deliverable provided under the SOW. The Customized Software is and shall remain the property of Intergraph Corporation, while the Intergraph Corporation grants the customer an open ended, irrevocable, not transferable, not sub-licensable basic license for the under these terms and conditions delivered customized software.
All Intergraph Corporation Commercial Off-the-Shelf Software Products (“COTS”) and third-party- developed software provided by Hexagon is owned by Intergraph Corporation, or respective third party, and is subject to the terms of Intergraph Corporation’s and/or relevant third-party’s Software License Agreement(s). Where 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.
Hexagon and Customer each acknowledge that they may be furnished with, receive, or otherwise have access to information of or concerning the other Party, or relevant third party, which such Party or relevant third 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. These Terms are
deemed to be 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 or its subcontractors, and (ii) with respect to either Party, all information concerning the operations, financial affairs and businesses, and relations with its customers, suppliers and employees.
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 these Terms. Customer and Hexagon 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 unauthorized disclosure, publication or dissemination of its own information of a similar nature.
The Parties shall take reasonable steps to ensure that its employees comply with these confidentiality provisions.
This Section shall not apply to any particular information which Hexagon or Customer can demonstrate (i) was, at the time of disclosure to it, in the public domain; (ii) after disclosure to it, is published or otherwise becomes part of the public domain through no fault of the receiving Party; (iii) was in the possession of the receiving Party at the time of disclosure to it; (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 furnishing 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.
During a period from the commencement of the work described in the SOW or Proposal until twelve
(12) months after its completion, Customer shall not solicit, headhunt or in any other proactive manner offer employment or engagement to any of Hexagon employees who have been associated with providing services under the SOW or Proposal without the prior written approval of Hexagon.
In the event of a breach of the preceding paragraph Customer agrees to be liable to Hexagon for liquidated damages in an amount equal to such employee’s salary per annum at the time of leaving the employment of Hexagon.
Prices are exclusive of all federal, state or local sales, use, property, gross receipts, value added or similar taxes based upon amounts payable to Hexagon pursuant to these Terms (“Taxes”). Such Taxes however do not include income taxes and other like taxes measured by Hexagon ’s net income. The Customer agrees to pay Hexagon any applicable Taxes or provide Hexagon documentary evidence of an appropriate statutory exemption.
Customer shall be responsible for the maintenance of any Deliverables provided. In the event Customer elects to have Hexagon perform such maintenance, such maintenance may be provided at prevailing service rates under a maintenance agreement to be separately concluded between the Parties.
11.0 GOVERNING LAW
These Terms are governed by and shall for all purposes be construed and enforced under and in accordance with the laws of the state of Victoria, Australia. Jurisdiction and venue for any dispute arising from or in connection with these Terms shall be in the courts of the state of Victoria, Australia. 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.
12.0 EXPORT CONTROL
Intergraph Corporation COTS Software Products, Customized Software and/or third-party software (which for this section also includes any Documentation or technical information pertaining thereto) provided by Intergraph Corporation and/or Hexagon , its subsidiaries or distributors, is subject to the export control laws and regulations of the United States of America.
For the purpose of these Terms, “Documentation” means, whether in electronic or printed form, User's Guides, Installation Guides, Reference Guides, Administrator's Guides, Customization Guides, Programmer's Guides, Configuration Guides and Help Guides delivered with Intergraph COTS Software Products, Customized Software and/or third-party software supplied by Hexagon to Customer. Not all of the previous types of Documentation are delivered with Intergraph COTS Software Products, Customized Software and/or third-party software supplied by Hexagon. Diversion contrary to U.S. law is prohibited.
Intergraph Corporation COTS Software Products, Customized Software and/or third-party software, or the direct product(s) thereof, must not be exported or re-exported, directly or indirectly (including via remote access) under the following circumstances:
A. To Cuba, Iran, 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 (https://www.treas.gov/offices/enforcement/ofac/), and the U.S. Department of State Debarred List (https://www.pmddtc.state.gov/ddtc_public?id=ddtc_kb_article_page&sys_id=c22d1833dbb8d300d0a370131f9619f0).
C. To any entity when Customer knows, or has reason to know, the end use of the Hexagon COTS Software Product, Customized Software and/or third-party software 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 Customer knows, or has reason to know, that an illegal reshipment will take place.
Customer should address any questions regarding export/re-export of relevant Hexagon COTS Software Product, Customized Software and/or third-party software to the Global Manager of Hexagon’s Export Licensing Department at Hexagon’s Corporate Headquarter, Intergraph Corporation Huntsville, Alabama 35894-00001, USA.
Customer shall hold harmless and indemnify Intergraph Corporation and/or Hexagon for any costs and or damages resulting to Intergraph Corporation and/or Hexagon from a breach of this Section 12 by Customer.
13.0 PLACE OF PERFORMANCE
Customer agrees to provide appropriate work place accommodations, computer equipment, software, and necessary access for Hexagon personnel.
Neither Hexagon nor Customer shall assign any of its rights or delegate any of its obligations under these Terms 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 these Terms without the approval of Customer to an entity which acquires all or substantially all of the assets of Hexagon , Intergraph Corporation or any of its other divisions, or to any subsidiary, affiliate or successor in a merger or acquisition of Hexagon , Intergraph Corporation or any other of its divisions.
If any provision of these Terms or any related document shall be prohibited by or invalid under applicable law, the remainder of these Terms or such related document shall be unaffected. Instead of the prohibited or invalid provision of these Terms or any related document, the Parties agree to substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision.
The Sections entitled 4. “Disclaimer”, 5. “Limitation of Liability”, 6. “Ownership of Data/Computer Software”, 7. “Nondisclosure”, 8. “Employment”, 11. “Governing Law”, 14. “Assignment”, 15. “Severability” and 16. “Survival” shall survive termination or expiration of these Terms. The obligation imposed on Customer to pay any unpaid charges which have been accrued and are due at the time of termination or expiration of these Terms, pursuant to Section 2. “Terms of Payment” shall survive the expiration or termination of these Terms.
17.0 FORCE MAJEURE
Neither party hereto shall be considered in default in the performance of its obligations hereunder to the extent that such performance is prevented or delayed by any cause, existing or future, which is not within the reasonable control of such party including, but not limited to, acts of God or the public enemy, terrorism, fires, explosion, riots, labor disputes, or war.
18.0 ENTIRE AGREEMENT
These Terms and Conditions, the Hexagon Proposal, and the Customer’s Purchase Order to the extent that it is not inconsistent with Purchase Order Confirmation of Hexagon , 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.
Intergraph Corporation means the means the company incorporated under the laws of Delaware, United States, with its office at 305 Intergraph Way, Madison, Alabama 35758, United States.