Support Terms and Conditions for Hexagon Geospatial Developer Network Software
This document (the “Support Terms”) sets forth the terms and conditions for support services for the Covered Products associated with a Hexagon Geospatial Developer Network Subscription and provided by Intergraph Corporation doing business as Hexagon Geospatial (“Hexagon”).
1.1. “Affiliate” means any company or other legal entity which controls, is controlled by, or is under common control with Hexagon, and for the purposes of this definition, "control" shall mean direct or indirect ownership of more than twenty five percent (25%) of the voting rights of the controlled or commonly controlled entity.
1.2. “Coverage Period” means the duration of the Subscriber’s Hexagon Geospatial Developer Network subscription.
1.3. “Covered Products” means the software made available to Hexagon Geospatial Developer Network subscribers. Covered Products may include Software Products as well as Third Party Software.
1.4. “Services” means the maintenance and support services for Covered Products that are further described in this document.
1.5. “Software Product” includes Hexagon’s or Hexagon’s Affiliate’s 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, and any Updates of such Software Products. Software Products are subject to all of the terms and conditions of the End-User License Support Terms (“EULA”) applicable to such Software Product.
1.6. “Subscriber” means the entity or person purchasing Services.
1.7. “Third Party Software” means computer software or other technology in which any person or entity, other than Hexagon or Hexagon’s 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 or similar agreement (“SLA”) provided with the Third Party Software.
1.8. “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 Subscriber’s current version of the Covered Products.
1.9. “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.
The Services apply only during the Coverage Period.
3. SCOPE OF COVERAGE FOR SOFTWARE PRODUCTS
3.1. Services described in this Section apply to Hexagon Software Products only. No support or Services is provided for Third Party Products.
3.2. Support will include and be limited to the following:
3.2.1. Updates. Access to all available Updates of Software Products included in the Covered Products. Hexagon will notify Subscriber when Updates are made available for any Software Products for which Service has been purchased, by way of posting notices of such to the “Support Notices and Announcements” section on the Subscriber Support Web Site or applicable local support website or via direct notification by Hexagon. If applicable, Subscriber may also register on the Subscriber 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. Updates are shipped to Subscriber upon Subscriber request. Hexagon is not obligated to produce any Updates.
3.2.2. Self Service Support. Access to the Hexagon Geospatial Developer Network Community (http://community.hexagongeospatial.com).
4. MINIMUM SYSTEM REQUIREMENTS; SUBSCRIBER’S OBLIGATIONS
Performance of Services by Hexagon is specifically conditioned upon the following minimum system requirements and fulfillment by Subscriber of the following obligations (collectively, minimum system requirements and Subscriber obligations hereinafter referred to as “Subscriber Obligations”):
4.1. Subscriber’s hardware and operating system software must meet the minimum system requirements specified by Hexagon and made available to Subscriber upon request.
4.2. Subscriber will be responsible for any required adjustments or updates to its hardware and/or operating system software required to accommodate Updates of Covered Products.
4.3. Subscriber is solely responsible for assuring the compatibility of non-Hexagon products with products provided by Hexagon.
4.4. Subscriber is solely responsible for ensuring its systems, software, and data are adequately backed up. Hexagon will not be liable for lost data.
If Subscriber fails to fulfill its Subscriber Obligations, Hexagon is entitled to bill Hexagon’s time and effort made necessary by Subscriber’s failure at Hexagon’s currently stated hourly rates.
5. EXCLUDED SOFTWARE SERVICES
All services not specifically described herein are outside the scope of the Support Terms. Only the Subscriber can take any benefit from the Support Terms.
6. SUBSCRIBER WARRANTIES
During the Coverage Period, Subscriber shall commit to the following:
6.1. Subscriber warrants that Services provided herein shall be utilized only the Covered Products associated with Subscriber’s Hexagon Geospatial Developer Network Subscription.
6.2. Subscriber shall, and Subscriber shall cause each of Subscriber’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 Support Terms.
7. INTELLECTUAL PROPERTY
7.1. Software License. Any Upgrades furnished hereunder shall remain the property of Hexagon, Hexagon’s Affiliate or applicable third party, and are licensed in accordance with the then current Hexagon EULA, EULA of Hexagon’s Affiliate or third party SLA, which shall supersede any EULA or SLA associated with prior releases of the Software Products or Third Party Software. Upon Subscriber’s request, Hexagon shall provide Subscriber with such EULA or SLA. Upon Hexagon’s request, Subscriber agrees to execute a EULA or SLA, as applicable, for Covered Products provided without an included EULA or SLA.
7.2. Confidential Information.
7.2.1. Hexagon and Subscriber 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 the Support Terms “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 the Support Terms 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 or its subcontractors, and (ii) with respect to either party, all information concerning the operations, financial affairs and businesses, and relations with its employees and service providers.
7.2.2. 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 the Support Terms. Subscriber 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.
7.2.3. 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.
8. LIMITED WARRANTIES; WARRANTY DISCLAIMERS
8.1. NO WARRANTIES. THIS AGREEMENT NEITHER ADDS TO OR DETRACTS FROM ANY WARRANTIES PROVIDED AS PART OF THE HEXAGON GEOSPATIAL DEVELOPER NETWORK SUBSCRIPTION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEXAGON AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES, COVERED PRODUCTS, AND UPDATES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. HEXAGON DOES NOT WARRANT THAT ANY SERVICES, COVERED PRODUCTS, AND UPDATES PROVIDED PURSUANT TO THIS AGREEMENT WILL MEET SUBSCRIBER’S REQUIREMENTS, AND UNDER NO CIRCUMSTANCES DOES HEXAGON 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 DISCLAIMS EXPRESS OR IMPLIED WARRANTIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.
8.2. Hexagon is acting on behalf of its suppliers for the sole purpose of disclaiming, excluding and/or limiting obligations and liability as provided in the Support Terms, but in no other respects and for no other purpose.
8.3. WARRANTY DISCLAIMERS. ANY WARRANTIES ASSOCIATED WITH THIS AGREEMENT OR THE HEXAGON GEOSPATIAL DEVELOPER NETWORK SUBSCRIPTION 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. SUBSCRIBER SHALL PROMPTLY NOTIFY HEXAGON OF ANY SUSPECTED DEFECTS IN COVERED PRODUCTS DELIVERY MEDIA. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, HEXAGON MAY SHARE INFORMATION FROM TIME TO TIME RELATED TO ITS EXPECTED DIRECTION, ROADMAP, OR VISION FOR ITS PRODUCTS AND SERVICES, ALL OF WHICH IS SUBJECT TO CHANGE AT ANY TIME IN HEXAGON’S SOLE DISCRETION. SUBSCRIBER SHOULD NOT RELY UPON STATEMENTS, PRESENTATIONS, OR INFORMATION REGARDING FUTURE FEATURES, FUNCTIONS, OR PRODUCTS FOR ANY PURPOSE IN ABSENCE OF HEXAGON’S FORMAL AND EXPRESS CONTRACTUAL COMMITMENT TO DELIVER THE SAME.
9. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HEXAGON OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, 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 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HEXAGON’S ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY SUBSCRIBER TO HEXAGON 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 SUBSCRIBER MORE THAN SIX (6) MONTHS 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 SUBSCRIBER. IF ANY PART OF THIS SECTION IS HELD INVALID, THEN HEXAGON LIMITS ITS LIABILITY TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.
10.1. 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.
10.1.1. 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).
10.1.2. 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).
10.1.3. Notice: The Covered Product is “commercial computer software” as defined in DFARS 252.227-7014 (Rights in Noncommercial 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 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.
10.2. 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, 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:
10.2.1. To Cuba, Iran, North Korea, Sudan, or Syria, or any national of these countries.
10.2.2. 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 (www.bis.doc.gov/complianceandenforcement/liststocheck.htm), the U.S. Department of Treasury Specially Designated Nationals List (www.treas.gov/offices/enforcement/ofac/), and the U.S. Department of State Debarred List (http://www.pmddtc.state.gov/compliance/debar.html).
10.2.3. To any entity if Subscriber 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.
10.2.4. To any entity if Subscriber 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’s Export Compliance Department, 305 Intergraph Way, Madison, Alabama, United States 35758 or at email@example.com.
11.1. Third Party Providers. Hexagon reserves the right to provide Services through a third party provider.
11.2. Entire Support Terms. The Support Terms constitutes the entire agreement between the parties relating to the subject matter hereof. The Support Terms supersedes any and all prior discussions and/or representations, whether written or oral, relating to the subject matter of the Support Terms and no reference to prior dealings may be used to in any way modify the expressed understandings of the Support Terms. Hexagon does not accept any contradictory or additional terms and conditions, even by accepting a purchase order referencing different terms and conditions. The Support Terms may be amended only by a written instrument signed by authorized representatives of both parties, and cannot be amended by subsequent purchase order or writing received from Subscriber without the express written consent of Hexagon. Any reproduction of the Support Terms made by reliable means (for example, photocopy or facsimile) will be deemed an original.
11.3. Severability. Whenever possible, each provision of the Support Terms shall be interpreted in such a manner as to be effective and valid under the applicable law. However, if any provision of the Support Terms 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 Support Terms.
11.4. 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.
11.5. No Waiver. Any failure by either party to enforce performance of the Support Terms 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 Support Terms.
11.6. Notices. Any notice or other communication (“Notice”) required or permitted under the Support Terms 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 sent. 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 the Support Terms 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’s address for Notices is Hexagon Geospatial, 305 Intergraph Way, Madison, Alabama 35758, Attn: Legal Department, 256-730-2333.
11.7. Assignment. Subscriber has no right to assign any of its rights nor delegate any of its obligations under the Support Terms without the prior written consent of Hexagon. Any attempt by Subscriber to sublicense, assign, or transfer any of Subscriber’s rights or obligations under the Support Terms, except as expressly provided in the Support Terms, is void.
11.8. Force Majeure. Except for payment obligations under the Support Terms, neither party shall be liable for any failure to perform or observe any of its obligations under the Support Terms 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; labor 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) calendar days, the other party has a right to terminate the Support Terms upon providing thirty (30) calendar days prior written notice to the party subject to the force majeure.
11.9. Governing Law. This Support Terms shall for all purposes be construed and enforced under and in accordance with the laws of the State of Alabama and shall be deemed to have been accepted in Madison, Alabama, United States. The parties agree that any legal action or proceeding relating to the Support Terms shall be instituted in the Circuit Court for Madison County, Alabama, or the United States District Court for the Northern District of Alabama, Northeastern Division. 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. This Support Terms shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
11.10. Waiver of Jury Trial. Hexagon and Subscriber each hereby waive, to the fullest extent permitted by applicable law, any right either may have to a trial by jury for any legal proceeding arising, directly or indirectly, out of or relating to the Support Terms.
11.11. Injunctive Relief; Cumulative Remedies. Subscriber acknowledges and agrees that a breach of the Support Terms by Subscriber could cause irreparable harm to Hexagon for which monetary damages may be difficult to ascertain or may be an inadequate remedy. Subscriber agrees that Hexagon will have the right, in addition to its other rights and remedies, to seek and obtain injunctive relief for any breach of the Support Terms by Subscriber, and Subscriber expressly waives any objection that Hexagon has or may have an adequate remedy at law with respect to any such breach. The rights and remedies set forth in the Support Terms are cumulative and concurrent and may be pursued separately, successively or together.
11.12. Attorneys’ Fees and Costs. In the event of any legal proceeding arising out of or relating to the Support Terms, the prevailing party in such action shall be entitled to an award of its reasonable attorneys’ fees and costs for all such legal proceedings, including for trial and all levels of appeal.
11.13. Governing Language. The controlling language of the Support Terms is English. If Subscriber has received a translation into another language, it has been provided for Subscriber’s convenience only.
11.14. Survival. The provisions of the Support Terms which require or contemplate performance after the expiration or termination of the Support Terms shall be enforceable notwithstanding said expiration or termination.