Geospatial Desktop Program
This Agreement (“Agreement”) Constitutes the Terms and Conditions of Sale of Hexagon 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/or Hardware listed on a Hexagon quotation;
“Existing Products” means any Hexagon software products held by the Customer prior to entering this Agreement that are duplicative of one or more components of the Geospatial Desktop Program made the subject of this Agreement.
“Hardware” means all Hexagon or Third Party hardware (including components), software media, and spare parts listed on a Hexagon quotation;
“Hexagon” means Intergraph Corporation doing business as Hexagon Geospatial;
“Product(s)” means the Hexagon software licenses or hardware and/or Third Party software licenses or hardware listed on a Hexagon quotation;
“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 on a Hexagon quotation; “Terms and Conditions” means the current standard terms and conditions of purchase and licensing set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between Hexagon and Buyer;
“Third Party” means any other Hexagon division other than the Hexagon Geospatial division or any company other than Hexagon.
2. General. These Terms and Conditions 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.
3. Quotations. Hexagon reserves the right to change design, price, and other terms without notice to Buyer and until acceptance of order by Hexagon.
4. Taxes. 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, municipal, 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 United States (i) federal,
(ii) state, (iii) municipal, (iv) or 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 F.O.B. Point. Hexagon will deliver all Product(s) on an FOB Destination, Pre-Paid and Added ("PPA") basis, including DDP when shipped from a foreign point of origin, unless otherwise stated. . For Product(s) shipped via electronic delivery, delivery is deemed complete, FOB shipping point, when the Product(s) is/are made available to the Buyer for download and Buyer is e-mailed or otherwise issued license access code(s)/key(s) for the Product(s). At Hexagon’s discretion, Product(s) may ship from different points of origin. Written notification is required for any short shipments/discrepancies within five days of receipt of order. Hexagon’s responsibility ceases upon delivery of Product(s) to the Buyer in good order at the point of destination. The Buyer is urged to examine all deliveries carefully immediately upon delivery and before signing receipt. If goods are visibly damaged, the Buyer must have written confirmation of the damages noted on the freight bill or other receipt by the agent of the carrier. Signing a receipt without notation of damage to the Product(s) shall constitute conclusive evidence of receipt of the Products in satisfactory condition.
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.
5.4 Installation. Unless installation services by Hexagon have been purchased
6. Acceptance. 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. Payments shall be made in United States of America 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. Hexagon shall retain a security interest in any of the Products sold to the Buyer until the purchase price is paid in full. Buyer shall take all steps necessary to perfect Hexagon’s security interest. Title to the Hardware shall pass to the Buyer upon payment. 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 as follows:
7.1 For purchases under U.S. $25,000. Fifteen (15) days prior to shipment advance payment must be received by Hexagon in accordance with the Remit instructions.
7.2 For purchases over U.S. $25,000. Thirty (30) days prior to shipment advance payment must be received by Hexagon in accordance with the Remit instructions.
7.3 Hexagon at its sole discretion, may offer Buyer open account payment terms. Open account payment terms must be confirmed in writing by Hexagon. Open account charges shall be due net thirty (30) days from date of invoice.
7.4 Remit Instructions. Hexagon accepts these payment methods: U.S. major credit cards (Visa, MasterCard, AMEX, and Discover), check, wire transfer, and EFT.
For shipments requiring advance payment by the Buyer, Buyer shall make remittance by check to:
Attn: Accounts Receivable
7104 Solution Center
Chicago, IL 60677-7001
For shipments based on established open accounts, Buyer shall make remittance by check to:
Attn: Accounts Receivable
7104 Solution Center
Chicago, IL 60677-7001
Hexagon will make wire transfer and EFT remit to information available upon request.
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.
7.5 Level Pricing. Products sold to the Buyer as part of the Geospatial Desktop Program are subject to the then-current pricing levels. In order for the Buyer to receive quantity discounts, the Buyer must purchase the requisite number of licenses for the previous level to gain discounts for the next available level. Buyer must renew and maintain the requisite number of licenses for the previous level as a condition precedent to gaining level discounts for the next available level at the time of renewal. Should the Buyer choose to not renew licenses purchased at a lower tier, the requisite number of licenses for that level must be purchased before the Buyer can then purchase licenses at the next pricing discount level. For example, if the Buyer has 10 level one licenses and then later purchases 10 level 2 licenses and the Buyer chooses not to renew the requisite number (10) of level one licenses, the Buyer is not entitled to level 2 pricing discounts until all 10 level one prices are renewed or repurchased.
8. Limited Warranties.
8.1 Software Products. 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.
8.2 Hardware Products. Hexagon warrants for a period of one (1) year from the date of delivery, or the date of installation if installation by Hexagon is included in the purchase price, that the Hardware Product(s) is free from defect in material and workmanship and is of the kind and quality described in the quotation except that:
(a) Hexagon gives no warranty with respect to parts with a limited technical lifetime such as data discs and cassettes.
(b) Components of the Product produced by other manufacturers are warranted only to the extent that such components are warranted by the manufacturers supplying such components to Hexagon.
If Hexagon Software is included in this Agreement, Hexagon warrants that its Software, when properly installed, will not fail to execute its programming instructions due to defect in materials and workmanship. If Hexagon receives notice of a defect during the applicable warranty period, Hexagon will repair or replace software media that does not execute programming instructions due to such defect. Hexagon does not warrant that the operation of the software will be uninterrupted or error free.
THE FOREGOING WARRANTIES ARE VOID IF FAILURE OF A WARRANTED ITEM RESULTS, DIRECTLY OR INDIRECTLY, FROM AN UNAUTHORIZED MODIFICATION OF 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). BUYER SHALL PROMPTLY NOTIFY HEXAGON OF ANY SUSPECTED DEFECTS IN SOFTWARE DELIVERY MEDIA.
8.3 Remedies. Upon written notification of any failure to conform to Hexagon’s express warranties, Hexagon shall have the right either to replace or repair any defective Product, to refund the purchase price upon return of the defective Products, or to grant a reasonable allowance on account of such defects, and Hexagon’s liability and Buyer’s exclusive remedy for defective Products shall be limited solely to such replacement, repair, or allowance, as Hexagon may elect. 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.
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 hereof until thirty (30) days from the date that the product is shipped by Hexagon, 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 PURPOSE. THE WARRANTIES AND REMEDIES EXPRESSLY STATED ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND REPRESENTS THE FULL AND TOTAL OBLIGATION AND/OR LIABILITY OF HEXAGON WITH RESPECT TO THE SOFTWARE PRODUCT(S) AND HARDWARE PRODUCT(S). CERTAIN LIMITATIONS SET FORTH IN THIS DISCLAIMER MAY NOT APPLY IN SOME JURISDICTIONS.
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. Product(s) are furnished to Buyer under the terms of Hexagon’s “End User License Agreement,” and any applicable addendum thereto, which may be separately executed or may be included with the Product(s). Buyer agrees to execute a Hexagon End User License Agreement, as applicable, for the software packages that are furnished without an included End User License Agreement. Buyer acknowledges that, to the extent the Product(s) consist of the bundle of applications knows as the “Geospatial Desktop Program,” said Product(s) are licensed for a finite period of twelve (12) months, and all of Buyer’s rights with respect to such products terminate at the conclusion of said term, in the absence of mutually agreed renewal of the term.
11. Ownership. All Software Products furnished by Hexagon hereunder shall remain the property of Hexagon or the respective Third Party. Software Product(s) are licensed, not sold. Buyer understands that it is purchasing a license to use the Software Product(s) and is not purchasing the Intellectual Property of the Software Product(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, 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 addition 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 any defense expenses inclusive of reasonable attorney’s 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.
THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES RELATED TO PATENT, TRADEMARK AND COPYRIGHT INFRINGEMENT, EXPRESSED OR IMPLIED, AND THESE WARRANTIES ALONG WITH THE REMEDIES STATED ABOVE REPRESENT THE FULL AND TOTAL OBLIGATION AND/OR LIABILITY OF HEXAGON WITH REGARD TO INFRINGEMENT. CERTAIN LIMITATIONS SET FORTH IN THIS DISCLAIMER MAY NOT APPLY IN SOME JURISDICTIONS.
13. Maintenance. To the extent the Product(s) consist of the bundle of applications known as the “Geospatial Desktop Program,” Buyer may elect to not renew maintenance for Existing Products only at the expiration of the term of any current maintenance agreement applicable to Existing Products. Early maintenance termination is not permitted for Existing Products. Within thirty (30) days of expiration of the Term described in the End User License Agreement - Addendum 1, Buyer may reinstate maintenance for those Existing Products for which maintenance was not renewed during the term of the Geospatial Desktop Program license. Reinstatement shall be at the then current rates as quoted by Hexagon.
14. Assignment. 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 Hexagon or to any subsidiary, affiliate, or successor in a merger or acquisition of Hexagon.
15. Limitation of Liability. NOT WITHSTANDING ANYTHING TO THE CONTRARY, 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. UNDER NO CIRCUMSTANCE SHALL HEXAGON’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT THAT HEXAGON HAS BEEN PAID BY BUYER UNDER THIS AGREEMENT AT THE TIME THE CLAIM IS MADE. 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 BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
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 and agrees to pay cancellation charges to Hexagon in accordance with the following schedule:
Cancellation notice received fourteen (14) days or more prior to the scheduled shipment date, for purchases other than a Digital Mapping Camera: No charge for Hexagon manufactured Products.
Cancellation notice received less than fourteen (14) days prior to the scheduled shipment date: ten percent (10%) of the total purchase price.
No cancellation will be accepted for products that have shipped or Third Party Products that have been ordered by Hexagon for Buyer.
Buyer agrees that title, rights, and/or interests to the canceled 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.
17. Nondisclosure. 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 Intellectual Property. Buyer agrees to use reasonable efforts to treat and maintain as proprietary and confidential Hexagon’s Intellectual Property 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, and to comply with all license requirements, copyright, patents and trade secret laws as they may pertain to any of Hexagon’s Intellectual Property or other information or data provided by Hexagon.
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, labor 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 and Conditions 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 Hexagon’s Terms and Conditions. Neither Hexagon’s commencement of performance nor delivery shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions. The Terms and Conditions of this Agreement (including the terms and conditions of the standard end user license agreement applicable to any Software Products) constitute the entire understanding between the parties and supersede 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 of the Terms and Conditions herein shall be valid or binding on either party unless in writing and signed by an authorized representative of the party to be bound.
20. Severability. Whenever possible, each provision of these Terms and Conditions and each related document shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of these Terms and Conditions or any related document shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of these Terms and Conditions or such related document.
21. Export Control. Buyer agrees to comply fully with all relevant export laws and regulations of the United States (hereinafter “Export Law”) to assure that neither the Product(s) or anything provided by Hexagon hereunder are exported directly or indirectly in violation of said Export Law or are intended to be used for a purpose prohibited by said Export Law.
With respect to the export by Buyer of the Product(s), including documentation, data, or information pertaining thereto the Product(s), or anything containing the Product(s), the disclosure of the Software to a non U.S. national, or any other activities relating to the Software, Buyer agrees that it shall obtain any and all necessary or appropriate export licenses, permits, or other authorizations and shall otherwise comply with all statues, regulations, or other requirements of any governmental agency. Notwithstanding the foregoing, Hexagon’s and Third Party’s Product(s) are subject to export controls promulgated by the Government of the United States. Buyer warrants that it will not export or re-export, either directly or indirectly, any such Product or restricted direct Product thereof, without first obtaining any necessary authorization from the U.S. Government, when required. Buyer agrees to comply with all U.S. laws and regulations and to furnish and/or sign any and all applicable export.
22. Waiver. 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 to avail itself of such remedies as it may have for any subsequent breach of this Agreement.
23. Governing Law. This Agreement shall for all purposes be construed and enforced under and in accordance with the laws of the State of Alabama, and the Parties agree to attorn to the jurisdiction of the courts of that State.
24. Jurisdiction. Buyer herby submits to the jurisdiction of the United States Federal District Court for the Northern District of Alabama or applicable State Court for Madison County, Alabama solely for purposes of enforcement of rights and remedies arising under this Agreement.