Hexagon Geospatial M.App X End User License Agreement

End User License Agreement (“EULA”)

This Agreement is a legal agreement between “you” (either an individual or a single legal entity, sometimes referred herein as “Customer or End User”) and Intergraph Corporation doing business as Hexagon Geospatial (“Hexagon”) (each a “Party” and collectively the “Parties”) for your use of M.App X. It is important that you ensure that you purchased this license from an approved source (either Hexagon directly or an authorized reseller, distributor or other system integrator). For the sake of clarity, if you purchased this license from an approved source (such as a system integrator), you, the ultimate end-user are the Customer. Any amendments to this Agreement shall be in writing and in accordance with the terms and conditions contained herein. By paying the License Fee(s) and by downloading, installing or using the software you agree that this Agreement is enforceable against you the same as any written, negotiated contract signed by you.  If you do not agree to the terms of this EULA, you are not authorized to, and you shall not, download, install or use M.App X.

Definitions.

“Hexagon IP” shall mean Hexagon or Hexagon Affiliate developed, created, or prepared Intellectual Property.

“Intellectual Property” shall mean all forms of intellectual property including, but not limited to, patents, trademarks, copyrights, trade secrets, methodologies, logos, techniques, processes, know-how, formulae, algorithms, logic designs, screen displays, schematics, source and object code computer programs or software, documents, mask work rights, design, ideas, product information, inventions and improvements thereto (whether or not patentable), and all works of authorship fixed in any medium of expression (including any form of online, digital, or electronic medium), whether or not copyrightable and whether registered or not.

“License Fee(s)” shall mean the charges for a Software Product set forth in an applicable quote or Order.

“Software Product” for M.App X shall collectively mean Hexagon IP delivered as proprietary object code or machine readable program identified in and to be provided by Hexagon to Customer pursuant to an Order.  Software Product includes all of the following: (i) any associated Hexagon or Affiliate files, disk(s), CD-ROM(s) or other media with which the software is provided, (ii) any associated templates, data, printed materials, and “online” or electronic documentation, and (iii) any Updates or Upgrades of such Software Products provided pursuant to Maintenance Services.  Software Product shall not mean any Third Party software, if any, that may be licensed to Customer under a separate license agreement.

“Order” shall mean each individual purchase from Customer or End User of Hexagon IP or services.

Product Information.

M.App X is the intersection of geospatial and imagery exploitation, operating in the cloud. This enterprise solution gives customers an extensive platform to deliver innovative geospatial solutions tailored to a specific environment. M.App X includes a rich web-based client application for all users to create and share information across the enterprise. M.App X also provides tools to capture geospatial tradecraft and share it as dynamic services across the enterprise.

M.App X includes the top features that users of geospatial data require for viewing, analyzing, and reporting geospatial information. It offers simplified data access, defense workflows, and on-premises (private cloud) or public cloud hosting to provide centralized storage and computation. All software is consolidated in one place, greatly simplifying version management and control. The rich web-based client runs in modern browsers, and the workstations deployed can range from desktop to laptop to tablet.

M.App X is licensed in two primary ways. Either a subscription license or a perpetual license. A subscription may be based on a period of time or a period of usage (usually, hourly periods purchased for use).

Subscription License Model – M.App X under this model is a concurrent Subscription License meaning the license grant is only valid during the specified Subscription Period (“Subscription Period”) on the applicable order. At the expiration of the Subscription Period, Customer’s license grant of the M.App X software will terminate and access to M.App X will terminate accordingly. Customer may renew their subscription by submitting a new order for a new Subscription Period. Customer understands and agrees that Hexagon Geospatial is not and cannot be responsible for any loss of data or any claims related to the expiration of a particular subscription.

Subscription Periods can be usage based and for those licenses, a usage based concurrent license means a license that permits execution of the Licensed Software on any computer on a network under the control of the Customer or End User as the case may be and the operation and use of which is based upon a usage capacity to-wit: usage time.  Hours of usage are calculated by adding the number of hours any M.App X software client is connected to the Customer’s M.App X application server and the hours spent executing background geoprocesses. You will be charged for the hours used in accordance with the current pay scale for your Subscription Period. Under this license model, unless otherwise agreed to in writing, Customer understands and consents to automatic periodic transmission to Hexagon of necessary license usage metric information during activation and use of the Licensed Software.

Perpetual License Model – M.App X under this model is a revocable, perpetual license meaning the license grant only expire if terminated by the parties or if Customer violates any of the license terms.

For the avoidance of doubt, the license models are further described in Section 3 below.

Consent to Use of Data.  With Subscription License Model, some of the Software features send or receive information to and from Hexagon when using those features.  By accepting this agreement or using the Software, Customer agree to all of these terms, consent to the transmission of certain information during activation and during Customer’s use of the Software, and that Hexagon may collect, use, and disclose the information.  If Customer does not accept and comply with these terms, Customer may not use the Software or its features.  All data collection and use is subject to the Hexagon Geospatial Privacy Policy http://www.hexagongeospatial.com/privacy. Hexagon does not and will not share any information received with any Third Parties. The receipt of such information is required to accurately measure usage and Subscription Period data.

License.

1              Intellectual Property/Reservation of Rights. All right, title and interest in and to the Software Product and all proprietary rights thereto and any copy or derivative of the Software Product, remains in Hexagon or its third party licensors.  Hexagon and its third party licensors reserve all rights not expressly granted by it to Customer under this EULA.

Software Products are licensed, not sold pursuant to this EULA. All rights not expressly granted to you by this EULA or other applicable third party software license agreement or terms and conditions are reserved by Hexagon and such third parties.  No source code is deliverable hereunder unless otherwise agreed to in writing by Hexagon.

2              License Grant and Term. For the consideration of payment in full of the applicable License Fee, Hexagon grants to Customer a personal, nontransferable and nonexclusive license for the duration and type set forth in the applicable Order to install and operate the Software Product solely for Customer’s own internal business operations, subject to the license type (as described below) and any other limitations specified herein or in the applicable Order.  Further, to the extent third party software is embedded in the Software Product, Customer is hereby granted a personal, nontransferable, and nonexclusive license to use the third party software solely in connection with the Software Product for Customer’s internal business purposes.  Additionally, Customer is granted a personal, nonexclusive, and non-transferable right to use the Documentation solely for Customer’s internal business purposes. 

3              Licenses – Specific Types.

3.1           Software Products are licensed as either a Usage License, Subscription License or a Perpetual License.  The license type and mode for the Software Product Customer subscribed to or obtained will be designated in the product description set forth on the Quote or packaging provided with the Software Product, and, if an electronic license manager tool is incorporated in the Software Product, verified by the Hexagon license system.  Each license of the Software Product is subject to the terms of this EULA. Each license applies to the current version available and delivered at the time of any particular Order.

3.2           Usage License. This license is a revocable license that allows for users to use the M.App X software on usage metric and it is a license that permits execution of the Licensed Software on any computer on the Customer’s network and the operation and use of which is based upon a usage capacity to-wit: usage time.  Hours of usage are calculated by adding the number of hours any M.App X software client is connected to the Customer’s M.App X application server and the hours spent executing background geoprocesses. Customer understands and consents to automatic periodic transmission to Hexagon of necessary license usage metric information during activation and use of the Licensed Software.

3.3.          Subscription License. This license is a revocable license that allows for users to use the M.App X software on a subscription basis that will expire and all rights and license grants therein shall terminate at the end of the Subscription Period as identified on the Order (“Subscription Period”). At the expiration of the Subscription Period, Customer’s license grant of the M.App X software will terminate and access to M.App X will terminate accordingly. Customer may renew their subscription by submitting a new Order at the time of or prior to the expiration of the Subscription Period for a new Subscription Period. Customer understands and agrees that Hexagon Geospatial is not and cannot be responsible for any loss of data or any claims related to the expiration of a particular subscription.

3.3.          Perpetual License. This license is a perpetual, revocable (as set forth in the termination provisions of this EULA) license that allows the user to use the M.App X software on a perpetual basis and the rights and license rights therein shall only terminate upon written termination by the parties or if the Customer violates any of the terms of this EULA. Upgrades of perpetual licenses require a separate Order.

4             Usage Rights. Customer may configure the Software Product in accordance with the Documentation, which may involve the entry, addition, or modification of data elements in the Software Product utilizing the development tools or user interfaces contained in the Software Product to develop a customer‑specific configuration of the Software Product.  Configuration does not require enhancements or any other kind of change to the Software Product code or result in a change to any functionality.  In no circumstance will customer‑specific configuration of the Software Product abate, abrogate, cloud, or diminish Hexagon’s title to the Software Product or any configuration thereof.  Hexagon will have no liability for Customer’s errors in making such configurations. 

5              License Restrictions.

5.1           Customer shall not modify, reverse engineer, decompile, disassemble or decode the Software Product, or otherwise derive or attempt to derive any source code or algorithms from the Software Product.  Except as explicitly permitted in this EULA, Customer shall not translate or make any derivative works of the Software Product.

5.2           Unless authorized in writing from Hexagon, the License granted in an Order does not extend to any Customer Affiliate or Third Party, or any business or operation of a Third Party that acquires or is acquired by Customer by merger, consolidation, purchase, operation of law or otherwise, after the effective date of the corresponding Order, unless and until (i) Hexagon is notified in writing of the acquisition, (ii) Hexagon consents in writing to the license extension, and (iii) Hexagon and Customer agree in writing as to appropriate increases, if any, in the License and corresponding payments that will be required.

5.3           Except as provided in an Order, no right is granted (i) for the use of the Software Product for or by any Customer Affiliate or Third Party, (ii) to sell, transfer, distribute, lend, lease, rent export, license or sublicense the Software Product, (iii) to transmit the Software Product to any person outside Customer’s organization or business entity, (iv) to install the Software Product on any equipment not in the possession and control of Customer, (v) for the provision of time-sharing, service bureau, remote processing services or similar services to Third Parties, or (vi) use of the Software Product outside of the country in to which it was delivered for Customer use. 

5.4           You may make copies of the Software Product, but the Software Product may not be used unless it has been properly licensed and fees have been paid by the End User. You may only distribute the Software Product with prior written permission from Hexagon.

5.5           Embedded third party software may not be used as full-use or stand-alone software.

5.6           The Software Product is subject to the export control laws of the United States and its use shall at all times comply with the section titled Export of the Agreement.

6              Acceptance and Delivery. Unless otherwise defined in an Order, Acceptance of a Software Product occurs upon the delivery of the applicable Software Product to the Customer.

6.1           Delivery. Delivery shall be made by electronic download. The effective date of Delivery shall be the day on which the Software Product is made available to the Customer for download by Hexagon. Hexagon will notify the Customer when the Software Product is available for download via electronic mail at the e-mail address provided on the Order.

7              Termination. Hexagon may terminate this EULA and all rights granted to Customer hereunder effective upon delivery of a written termination notice if (i) Customer assigns the License without the written consent of Hexagon or (ii) Customer breaches one or more of its material obligations under this EULA, including, but not limited to U.S. export and corruption laws.  In the event of a termination, Hexagon shall not be under any obligation to refund any monies to Customer.

8              Limited Warranties.

8.1           Hexagon warrants that it has the right to grant Customer the License and rights granted under this EULA and the applicable Order.  Customer's sole and exclusive remedy for a breach of this warranty is the Hexagon obligations set forth in this Attachment.

8.2           Hexagon warrants to Customer for a period of thirty (30) days from the date of shipment that the Software Product delivery media will be free of defects in materials and workmanship, provided the Software Product is used under normal conditions and in strict accordance with the terms and conditions of this EULA.  Customer agree to promptly notify Hexagon of any unauthorized use, repair or modification, or misuse of the Software Product, as well as any suspected defect in the Software Product delivery media, if any.

8.3           To the extent third party products of any nature are supplied by Hexagon, such third party products are provided with a pass-thru-warranty from the original manufacturer, if any.  Hexagon does not independently warrant third party products of any nature.

9              Warranty Remedies. Customer's sole and exclusive remedy for a breach of this warranty is that, subject to receipt of written notice from Customer during the Warranty Period of material nonconformance with the Documentation, Hexagon will use commercially reasonable efforts to correct a Defect in the Software Product.  If Hexagon is unable to correct a Defect, Hexagon, solely at its option, shall be entitled to immediately terminate the License of such Software Product upon written notice to Customer and refund to Customer (a) the License Fee paid by Customer for such Software Product, plus (b) any Maintenance Fee that may have been pre-paid by Customer for such Software Product.  This refund shall be Customer’s sole and exclusive remedy for Hexagon’s termination of the License pursuant to this provision.

10            Disclaimer of Warranties.

10.1         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.  CUSTOMER 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.

10.2         HEXAGON MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND (OTHER THAN THOSE EXPRESSLY SET FORTH ABOVE AND ASSUMES NO RESPONSIBILITY OR LIABILITY WITH RESPECT TO (I) THE USE, SUFFICIENCY, OR ACCURACY OF THE SOFTWARE PRODUCT, OR (II) ANY SERVICES FURNISHED WITH RESPECT TO IT.  HEXAGON SHALL NOT BE LIABLE UNDER THIS AGREEMENT TO THE EXTENT THAT A WARRANTY BREACH RESULTS FROM ANY ADDITION TO OR MODIFICATION OF THE SOFTWARE PRODUCT WHICH IS NOT IN ACCORDANCE WITH THE EXPRESS WRITTEN DIRECTIONS OF HEXAGON.  THIRD PARTY SOFTWARE AND OSSW IS PROVIDED ON AN “AS-IS” BASIS.  THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF HEXAGON HAS BEEN MADE AWARE OF SUCH PURPOSE, WARRANTIES ALLEGED TO ARISE AS A RESULT OF CUSTOM AND USAGE, AND THE WARRANTY AGAINST INFRINGEMENT OF PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER SHALL MAKE NO CLAIM AGAINST THE OWNER OF ANY THIRD PARTY SOFTWARE OR OSSW FOR ANY DAMAGES OR LOSS OF ANY KIND, WHETHER SPECIAL, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL, ARISING FROM THE USE OF OSSW OR THIRD PARTY SOFTWARE.

11            Customer Indemnification. Customer shall defend, indemnify and hold Hexagon harmless against any claim, suit, or proceeding brought against Hexagon by any Third Party to the extent that such claim, suit, or proceeding is based on a claim that the use or possession by Hexagon of information (including software and Customer created modifications) provided by Customer to Hexagon infringes any United States, European Union, or Canadian patent, copyright, or other intellectual property right of such Third Party or was misappropriated from such Third Party.

12            Customer Obligations.

12.1         Customer is responsible, at its sole cost and expense, for procuring, purchasing and/or licensing, installing, configuring, testing, and making the standard operating environment (including hardware and third party software) available prior to the delivery and installation of any Release of the Software Product.

12.2         Upon any termination or expiration of a license and rights granted to Customer, Customer shall promptly return to Hexagon all Software Product, including all full and partial copies, and any associated License File and shall purge all copies of the Software Product from all computers and storage media on which Customer has maintained them.  If requested, Customer shall certify in writing to Hexagon as to such destruction or return.

13            Government Restrictions. The Software Products are commercial items, developed at private expense, provided to Customer under this EULA.  If Customer is a US government entity or US government contractor, Licensor licenses the Software Products to Customer in accordance with this EULA under FAR Subparts 12.211/12.212 or DFARS Subpart 227.7202.  Hexagon data and online services are licensed under the same DFARS Subpart 227.7202 policy as commercial computer software for acquisitions made under DFARS.  The Software Products are subject to restrictions, and this EULA strictly governs the use, modification, performance, reproduction, release, display, or disclosure of Software Products.  License provisions that are inconsistent with federal law will not apply.  A US government Customer may transfer Software Products to any of its facilities to which it transfers the computer(s) on which such Software is installed.  If any court, arbitrator, or board holds that Customer has greater rights to any portion of Products under applicable public procurement law, such rights shall extend only to the portions affected.

14            Export Restrictions. This Software Product, including any technical data related to this Software Product, is subject to the export control laws and regulations of the United States, including, but not limited to the U.S. Export Administrations Act. Diversion contrary to United States law is prohibited.  This Software Product, including any technical data related to this Software Product and any derivatives of this Software Product, shall 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 United States government denial list, including, but not limited to, the United States Department of Commerce Denied Persons, Entities, and Unverified Lists, the United States Department of Treasury Specially Designated Nationals List, and the United States Department of State Debarred List (presently accessible at: https://build.export.gov/main/ecr/eg_main_023148).

(c)            To any entity if you know, or have reason to know, the end use is related to the design, development, production, or use of missiles, chemical, biological, or nuclear weapons, or other unsafeguarded or sensitive nuclear uses.

(d)           To any entity if you know, or have reason to know, that an illegal reshipment will take place.

If the Software Product you received is identified on the media as being ITAR-controlled, this Software Product has been determined to be a defense article subject to the U.S. International Traffic in Arms Regulations (ITAR).  Export of this Software Product from the United States must be covered by a license issued by the Directorate of Defense Trade Controls (DDTC) of the U.S. Department of State or by an ITAR license exemption.  This Software Product may not be resold, diverted, or transferred to any country or any end user, or used in any country or by any end user other than as authorized by the existing license or ITAR exemption.  Subject to the terms of this EULA, this Software Product may be used in other countries or by other end users if prior written approval of DDTC is obtained.

You agree to hold harmless and indemnify Hexagon for any causes of actions, claims, costs, expenses and/or damages resulting to Hexagon from a breach by you or any User of the export restrictions set forth in this EULA.  Any questions regarding export or re-export of the Software Product or concerning ITAR restrictions, if applicable, should be addressed to Hexagon’s Export Compliance Department at 305 Intergraph Way, Madison, Alabama, United States 35758 or at exportcompliance@intergraph.com.

14.1 Territorial Use Restriction. Unless otherwise specifically permitted in writing by Hexagon, use of the Software Product outside the country in which it is licensed is strictly prohibited

15            Upgrades and Updates. The terms of this EULA shall apply to subsequent version of the Software Products.  Notwithstanding the foregoing, new or updated versions of the Software Products may require additional or revised terms of use under the then-current Hexagon EULA.  A EULA delivered with any subsequent version of a Software Product supersedes the prior EULA for said Software Product.

16            Audit.

16.1         Customer shall keep complete, clear and accurate records with respect to Customer's use of all Software Products.  If the license of the Software Product is subject to limitations as to usage, such as usage based on subscribers, concurrent connections, orders, users or any other metric (a “Usage Threshold”), it is a condition of the license granted herein that Customer’s usage not exceed the Usage Threshold set out in the applicable Order.  Customer is responsible to monitor usage of the Software Product, and to report compliance with the applicable Usage Threshold to Hexagon on a quarterly basis at the end of each calendar quarter.  If requested by Hexagon, Customer will establish and maintain Hexagon’s connectivity to Customer’s System by following the procedures stated in the Software Product Documentation to allow Customer’s license usage information to be sent to Hexagon for license compliance purposes.  Customer acknowledges and agrees that Hexagon may monitor Customer’s usage remotely, provided that in no event shall Customer be relieved from its obligation to self-monitor, report and pay incremental License Fees hereunder.

16.2         Upon reasonable written notice, Hexagon shall have the right to make an examination, during normal business hours, of all records and accounts bearing upon the extent of Customer’s use of the Software Product and the amount of fees payable to Hexagon under the applicable Order.  Customer shall promptly pay Hexagon any additional License or Maintenance fees that are due to Hexagon for any increased use of the Software Product at the then current Hexagon rates, unless such additional fees are specified in the applicable Order.  Customer shall pay Hexagon its expenses for any such examination which discloses underpayment of fees due to Hexagon greater than ten percent (10%) of the then current License Fee and applicable Maintenance fees in addition to the increased usage fees and late payment charges as described in this Agreement.

17            License Files. In the cases of a Subscription and Usage License, the Customer will receive login credentials from Hexagon for its use of M.App X. Customer will not receive license keys, LACS or files from Hexagon. The login credentials are required for the use of M.App X. Customer is fully responsible for maintaining the security of their login credentials. Hexagon will not and cannot be responsible for misuse of login credentials.

In the case of a Perpetual License, the Customer will receive a License File from Hexagon prior to or contemporaneous with installation and configuration. The License File will be installed on the Customers server for authentication and use purposes. M.App X will not function without the License File.

18            Confidential Information. The Software Products and Documentation are the copyrighted, confidential, and proprietary property of Hexagon and its licensors.  Customer agrees to use reasonable means to protect the Software Products and Documentation from unauthorized use, reproduction, distribution, or publication. 

19            Third Party Rights. Third party software suppliers are intended third party beneficiaries under this Agreement and independently may protect their rights in the Software Product in the event of any infringement of their licenses

20            Injunctive Relief. Customer acknowledges and agrees that a breach of this EULA by Customer could cause irreparable harm to Hexagon for which monetary damages may be difficult to ascertain or may be an inadequate remedy.  Customer 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 this EULA by Customer, and Customer 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 this EULA are cumulative and concurrent and may be pursued separately, successively, or concurrently.

21.           General.

21.1         Web-based software. The Article only applies to Web-Based Software Products.

21.1.1      Customer may run multiple Websites and provide multiple Webservices to Customer’s client Users with a single Web-Based Software license.

21.1.2      Customer may distribute client side web page plug-ins (e.g., ActiveX controls, Java applets and applications, Enhanced Compressed Wavelet (ECW) plug ins) to Users.

21.1.3      Customer may load a Web-based Software Product on multiple machines within a cluster that is acting as a single web server.

21.1.4      Unless otherwise explicitly stated in the Documentation:

21.1.4.1 Customer may only copy and distribute the Java script source files to support the Web-based Software Product’s output vector map type and Customer’s associated websites; and

21.1.4.2 Customer may prepare derivative works solely for its internal use.

21.2         API. This Article only applies if the Software Product is delivered with an Application Programming Interface (“API”) and or a configuration setup.  Unless otherwise stated in the Documentation, Customer may use the API(s) to write Customer’s own extensions to the Software Products, and Customer may use configuration setup to configure the Software Product, but only to the extent permitted by the API(s) and/or configuration setup.  Customer hereby agrees and acknowledges that Hexagon retains all rights in its Software Product, API(s), and configuration setup.  Hexagon does not make any representations or warranties with respect to any APIs, extensions, or configurations and HEXAGON AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, RELATING TO SUCH APIS, EXTENSIONS, AND CONFIGURATIONS, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, HIGH RISK USE AND NON-INFRINGEMENT.  Customer’s use of APIs, extensions, and/or configurations is solely at its own risk and Customer hereby agrees to indemnify and hold Hexagon and its suppliers harmless with respect to Customer’s use of APIs, creation of extension, or configurations.

21.3            Entire Agreement. You acknowledge that you have read this EULA, understand it and agree to be bound by its terms and conditions.  You further agree that this EULA is the complete and exclusive statement of the agreement between you and Hexagon relating to the subject matter of this EULA and that this EULA supersedes any proposal or prior agreement, oral or written, and any other communications between you and Hexagon relating to the subject matter of this EULA.  This EULA may be amended only by a written instrument signed by both you and Hexagon; provided however, certain Hexagon Software Product and Upgrades may be subject to additional, or different, as applicable, terms and conditions contained in a EULA Addendum or separate EULA that is delivered with the applicable Software Product or Upgrade. Any reproduction of this EULA made by reliable means (for example, printed, photocopy or facsimile) will be deemed an original.

21.4            Severability.  Whenever possible, each provision of this EULA shall be interpreted in such a manner as to be effective and valid under applicable law.  However, if any provision of this EULA 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 EULA.

21.5            No Waiver.  Any failure by either party to enforce performance of this EULA 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 this EULA.

21.6            Notices.  Any notice or other communication (“Notice”) required or permitted under this EULA shall be in writing and either delivered personally or sent by electronic mail, facsimile, 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 electronic mail or facsimile shall be deemed given when transmitted, provided that the sender obtains written confirmation from the recipient that the transmission was received. 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 this EULA 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.

21.7            Assignment.  Unless otherwise provided in writing, neither party shall have the right to assign any of its rights nor delegate any of its obligations under this EULA without the prior written consent of the other party, except that Hexagon may assign its rights and obligations under this EULA, without your approval, to (i) an entity which acquires all or substantially all of the assets of Hexagon or the Hexagon division providing a product or service subject to this EULA; (ii) an entity which acquires all or substantially all of the product or product line assets subject to this EULA; or (iii) any subsidiary, affiliate or successor in a merger or acquisition of Hexagon.  Any attempt by you to sublicense, assign or transfer the license or the Software Product, except as expressly provided in writing, is void and immediately terminates the license.

21.8            Governing Law; Venue and Jurisdiction.  This EULA shall for all purposes be construed and enforced under and in accordance with the Laws of the State of Alabama and shall have been deemed to have been accepted in Madison, Alabama, United States. You and Hexagon agree that any legal action or proceeding arising, directly or indirectly, out of or relating to this EULA shall be instituted in the Circuit Court for Madison County, Alabama, United States or the United States District Court for the Northern District of Alabama, Northeastern Division.  You and Hexagon agree to submit to the jurisdiction of and agree that venue is proper in these courts for any such legal action or proceedings. This EULA 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.

21.9            Governing Language.  The controlling language of this EULA is English.  If you received a translation of this EULA into another language, it has been provided for your convenience only. If you are located outside the United States, then the provisions of this section shall also apply: (i) Les parties en présence confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s’y rattachent, soient redigés en langue anglaise (Translation: “The parties confirm that this agreement and all related documentation is and will be in the English language.”); and (ii) You are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the SOFTWARE PRODUCT, and you represent that you have complied with any and all regulations or registration procedures required by applicable law to make this EULA fully enforceable.

21.10            Survival.  The provisions of this EULA which require or contemplate performance after the expiration or termination of this EULA shall be enforceable notwithstanding said expiration or termination.

GLGSP00003082017

Hexagon's Geospatial Division

Hexagon's Geospatial division creates solutions that visualize location intelligence, delivering a 5D smart digital reality with insight into what was, what is, what could...