M.App Enterprise Standard Licensing Agreement
This Agreement is a legal agreement between “you” (either an individual or a single legal entity, sometimes referred herein as “Customer”) and Intergraph Corporation doing business as Hexagon Geospatial (“Hexagon”) (each a “Party” and collectively the “Parties”) for your use of M.App Enterprise. Any amendments to this Agreement shall be in writing and in accordance with the terms and conditions contained herein. By returning the Quote for an Order and paying the License Fee(s), 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 Agreement, you are not authorized to, and you shall not, download, install or use M.App Enterprise.
Hexagon will make available to Customer such Software as is set forth in an Order placed pursuant to the terms of this Agreement.
The Agreement consists of the following documents:
- This document, including the General Terms and Conditions
- Attachment 1 – Hexagon Standard Definitions
- Attachment 2 – M.App Enterprise Product Description
- Attachment 3 – Optional Training
- Attachment EULA - End User License Agreement
- Attachment MTX – M.App Enterprise Custom Support Services Terms and Conditions
- Attachment OF – Sample Order Form
GENERAL TERMS AND CONDITIONS
All capitalized terms not otherwise defined herein shall have the meanings assigned to them in Attachment 1 – Hexagon Standard Definitions.
2 Order Composition. Orders pursuant to this Agreement shall be governed by the terms of this Agreement and shall be comprised of the following elements:
a) An Order signed by an authorized signatory of the Customer substantially in the form of Attachment OF; or
b) A Quote and customer PO referencing the Quote.
3 Invoicing and Payment.
3.1 Invoices. Hexagon shall invoice Customer for the amount set forth in the Order upon making the Software identified in the Order available for download.
3.2 Payment. Customer shall make payment for any invoices issued by Hexagon within thirty(30) calendar days of the date the invoice was issued.
3.3 Late Payment. If Customer does not make timely payment, an interest charge of two percent (2%) per month (or the maximum allowed by law, whichever is less), which shall be compounded on a monthly basis, will be due on any unpaid and overdue amounts.
3.4 Taxes. The purchase price is exclusive of all Federal, State, or Local taxes. Any taxes applied to this sale by a Federal, State, or Local taxing authority will be the responsibility of Customer. Such taxes do not include franchise taxes or taxes based on net income. If Customer is claiming a tax-exempt status, it must submit the proper documentation satisfactory to Hexagon evidencing its tax exempt status. Applicable taxes may be invoiced at any time such taxes become fixed and certain.
3.5 Refunds. All sales are final. No refunds are permitted except with respect to any statutory warranties or guarantees that cannot be excluded or limited by law.
4 Term and Termination.
4.1 Term. The Term of this Agreement shall begin on the Effective Date and remain in effect for the period specified in your Quote or until the Agreement is earlier terminated pursuant to the terms set forth herein or by mutual agreement of the Parties. An Order that is executed prior to the expiration of the term of this Agreement shall be governed by this Agreement even if the Agreement Term expires during the performance of the Order.
4.2 Termination for Cause. Either Party may terminate this Agreement or a specific Order, as the case may be, in the event that other Party materially breaches a material term of this Agreement or any Order. Prior to termination, the non-defaulting Party shall give the defaulting Party sixty (60) calendar days written notice specifying the material breach. The non-defaulting Party may terminate an Order and/or any license and rights granted if the defaulting Party does not remedy and cure the material breach specified in the written notice within the sixty (60) calendar day notice period. Such sixty (60) day cure period shall not apply to a breach in the nature of non-payment of amounts due and payable or breaches of an incurable nature.
4.3 Notwithstanding the foregoing, Hexagon may terminate any license granted pursuant to an Order or the Agreement for cause if payment is not received within thirty (30) days following the date when payment was due.
4.4 Obligations upon Termination. Except for those obligations specified in the Section entitled “Survival” below, all of the Parties’ obligations under an Order will automatically terminate upon termination or expiration of this Agreement in accordance with this Article. If Hexagon is not the defaulting Party, then Hexagon shall not be under any obligation to refund any monies in the event of such termination. Additionally, upon any termination or expiration of a license and rights granted under an Order, Customer shall promptly return to Hexagon all Software provided to Customer, including all full and partial copies and any associated login credentials or License Files, and shall purge all copies of all Software provided to Customer 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.
5 Dispute Resolution.
5.1 Resolution Protocol. In the event of any dispute between the Parties arising under this Agreement that cannot be settled at the project manager level, the Parties shall first attempt to resolve the dispute at the business unit director level. Upon the written request of any Party, the other Party shall, within five (5) Business Days, designate an authorized representative for the purposes of resolving any dispute, if no authorized representative is designated the authorized representative shall be the Party’s signatory of this Agreement. If the dispute is not resolved at this level within ten (10) Business Days of the date the other Party is first informed of the dispute in writing, the Parties shall attempt to resolve the dispute at the group vice president or equivalent level, for an additional period of ten (10) Business Days. Prior to the initiation of formal dispute resolution, every reasonable effort shall be made by the Parties to resolve all disputes on an informal basis. Compliance with this article shall not relieve either Party from compliance with any other obligation set out in this Agreement. Unless otherwise provided in this Agreement or except where clearly prevented by the issue in dispute, the Parties agree to continue performing their respective obligations under this Agreement during the informal dispute resolution (“Informal Dispute Resolution”) procedure described above.
5.2 Mediation. To the extent a dispute is not resolved through the process outlined in the previous section and remains unresolved, the Parties agree to enter into non-binding mediation to resolve the dispute. Within sixty (60) calendar days of the issuance of the Dispute Notice, or such longer period that is mutually agreeable to the parties, the Parties agree to identify a mutually acceptable mediator who shall mediate the dispute. If after making reasonable efforts to identify a mutually acceptable mediator and no later than fifty (50) calendar days after the issuance of the Dispute Notice, the Parties are unable to identify such a mediator, the Disputing Party shall provide the non-disputing party with a list of five (5) proposed mediators. The non-disputing shall have five (5) business days from receipt of such list from the Disputing Party to identify one proposed mediator on the list to use as a mediator. If the non-disputing party fails to identify and communicate its choice to the Disputing Party in the time allotted, then the Disputing Party shall be permitted to unilaterally identify the mediator from the list of five (5) mediators previously given who shall mediate the Dispute. The mediator shall be an attorney licensed to practice law in the courts identified in section below entitled “Governing Law”. Subject to the mediator’s availability, the Parties agree to mediate the dispute within thirty (30) days after the Parties have identified a mediator who has agreed to mediate the dispute. To the extent the mutually identified mediator is unavailable, unwilling, or unable to mediate the Dispute, the Parties shall utilize the same steps listed above to identify a new mutually agreeable mediator. To the extent the Disputing Party had to prepare a list of proposed mediators previously, it shall prepare and transmit a revised list within five (5) business days of receiving notice of the proposed mediator’s unavailability. Subject to the mediator’s requirements, the Parties agree they shall be permitted to attend the mediation via telephone or video conferencing. The Parties agree to pay in equal shares the mediator’s fee and expenses unless otherwise agreed to pursuant to a settlement agreement.
5.3 Prerequisites to Litigation. Except for disputes for non-payment, only after the Parties have endeavored to resolve the dispute through the processes outlined in the immediately preceding two sections may a Party commence litigation to resolve the dispute.
5.4 Injunctive Relief. Notwithstanding the foregoing, either party may, before or during the exercise of the informal dispute resolution procedures set forth above, apply to a court identified in the section entitled “Governing Law” for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests pending completion of such informal dispute resolution procedures.
6 Limitation of Liability.
IN NO EVENT WILL HEXAGON BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, LOST PROFITS, LOSS OF USE OR PRODUCTION, LOSS OF REVENUE, LOSS OF DATA, OR CLAIMS OF THIRD PARTIES, EVEN IF HEXAGON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCE WILL HEXAGON'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT THAT HEXAGON HAS BEEN PAID BY CUSTOMER UNDER THE INDIVIDUAL ORDER UNDER WHICH THE EVENT GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED.
7 Notices. All notices given between the Parties shall be in writing and shall be considered properly sent by postage prepaid United States Mail to the persons identified for you in the Quote, and ifto Hexagon Geospatial, notices should be sent to Hexagon Geospatial, Attn: Legal Department, 305 Intergraph Way, Madison, AL 35758 USA.
8 Force Majeure.
Neither party shall be deemed to be in default of any provision of this Agreement or an Order or be liable for any delay, failure in performance, or interruption of service resulting from acts of war, acts of terrorism, acts of God, acts of civil or military authority, labor disruption, civil disturbance, or any other cause beyond its reasonable control.
9 IP Ownership.
Customer acknowledges Hexagon will retain ownership and title of Intellectual Property made by Hexagon or its contractors or subcontractors at any time prior to and while performing any Order. Except as otherwise set forth in an Exhibit to or Order pursuant to this Agreement, all Hexagon software provided under this Agreement is licensed to Customer in accordance with Exhibit EULA and not sold. Third Party Software is licensed to Customer pursuant to the software license agreement delivered with such Third Party Software product.
10 Indemnification Provisions.
10.1 Subject to the limitation of liability provisions in this Agreement, Hexagon will defend, at its expense, a third party action, suit, or proceeding against Customer ("Claim"), and indemnify Customer from any judgments, settlements, and reasonable attorney's fees resulting therefrom, to the extent such Claim is (i) attributable to bodily injury, death, or physical damage to tangible property caused by Hexagon's negligent acts or omissions arising under this Agreement; or (ii) based upon an allegation that the Software Product as of its delivery date under this Agreement, infringes a valid United States patent, copyright, or trademark, or misappropriates a third party's trade secret ("Infringement Claim(s)").
10.2 Hexagon's defense and indemnification obligations are conditioned upon:
10.2.1 Customer providing prompt written notice to Hexagon in writing of any Claim;
10.2.2 Hexagon having sole control of the defense of any actions and negotiations related to the defense or settlement of any Claim; and
10.2.3 Customer cooperating fully in the defense or settlement of any Claim.
10.3 Hexagon will have no obligation to defend Customer or to pay any resulting costs, damages, or attorneys' fees for any Infringement Claims alleging direct or contributory infringement of a Software Deliverable (i) by the combination of or integration with a product, process, or system not supplied by Hexagon; (ii) by material alteration by anyone other than Hexagon or its subcontractors; (iii) by use after Customer has been notified of possible infringement; (iv) use after modifications are provided to Customer; (v) use after a return for refund as described below is ordered by Hexagon; (vi) the creation of which was pursuant to specifications provided by Customer; or (vii) use other than as specified in the applicable Documentation.
10.4 In connection with any Infringement Claims, Hexagon, at its own expense and option, may either (i) obtain rights for Customer to continue using the Software Deliverable; (ii) replace the Software Deliverable with a non-infringing alternative, or modify the allegedly infringing elements of the Software Deliverable, while maintaining substantially similar software functionality or data/informational content; or (iii) refund to Customer a prorated portion of the license fees paid by Customer for the infringing item(s), based on a five (5)-year, straight-line depreciation basis beginning from the initial date of delivery, in which case Customer will uninstall, cease all use of and return to Hexagon the infringing item(s).
10.5 In no event will the indemnification for Infringement Claims apply to any Beta Software or sample, hot fix, or royalty-free software delivered pursuant to the Agreement.
10.6 Hexagon is not required to indemnify or defend Customer against Claims brought by any Customer affiliate.
10.7 This Article entitled “Indemnification Provisions” provides the sole and exclusive remedies of Customer and Hexagon’s entire liability in the event of a Claim. Customer has no right to recover and Hexagon has no obligation to provide any other or further remedies, whether under another provision of the Agreement or any other legal theory or principle in connection with a Claim.
11 Confidential Information.
11.1 The Parties agree not to disclose Confidential Information provided to it by the disclosing party to the maximum extent allowable under applicable law unless if first obtains the disclosing party’s written consent to such disclosure. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this provision of the Agreement by the non-disclosing party and the disclosing party may be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this provision of the Agreement but will be in addition to all other remedies available at law or equity. The covenants set forth herein and the rights and obligations related thereto shall continue for a period of five (5) years from the date of disclosure.
11.2 All Hexagon IP is Confidential Information and proprietary to Hexagon. Customer shall maintain the confidentiality of all Hexagon IP as it would confidential information/data of its own and shall not disclose same to any third party without the prior written consent of Hexagon.
Neither party shall assign, sublet, or transfer all or any portion of the Agreement, nor any interest in the Agreement, without the express written consent of the non-assigning party, which consent may be granted or withheld in the sole discretion of the non-assigning party. Notwithstanding the foregoing, Hexagon may assign its rights and obligations under the Agreement, without the approval of Customer to: (1) an Affiliate or (2) another business entity in connection with a merger, consolidation, or reorganization of Hexagon or any of its subsidiaries.
Hexagon IP, including any technical data related to Software or Services, is subject to the export control laws and regulations of the United States. Diversion contrary to United States law is prohibited. Hexagon IP, including any technical data related to Software or Services, shall not be exported or re-exported, directly or indirectly (including via remote access), under the following circumstances:
- To Cuba, Iran, North Korea, Sudan, or Syria, or any national of these countries.
- To any person or entity listed on any United States government denial lists or consolidated screening lists, 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 (http://apps.export.gov/csl-search#/csl-search).
- To any entity if Customer knows, or has 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.
- To any entity if Customer knows, or has reason to know, that a reshipment contrary to United States law or regulation will take place.
Customer agrees to hold harmless and indemnify Hexagon and its Affiliates for any causes of actions, claims, costs, expenses and/or damages resulting to Hexagon from a breach of the export restrictions set forth in this Agreement by Customer or any User. Any questions regarding export or re-export of the Software should be addressed to Hexagon’s Export Compliance Department at 305 Intergraph Way, Madison, Alabama, 35758, USA or at firstname.lastname@example.org.
14.1 Authority. Each Party represents and certifies to the other Party it has the requisite legal authority to enter into and be bound by this Agreement and all Orders arising from this Agreement.
14.2 Compliance with Laws. Each Party agrees to comply with all applicable laws and is responsible, at its sole cost and expense, for obtaining any and all governmental licenses, permits, authorizations, passes and approvals that may be required in connection with this Agreement.
14.3 Costs. In the event of any legal proceeding arising out of or relating to this Agreement, 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.
14.4 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be original, and all of which together shall constitute one and the same document. A signature delivered by facsimile or via an email containing a scanned, executed Agreement shall be deemed to be an original signature and shall be effective upon receipt thereof by the other party.
14.5 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 shall have been deemed to have been executed and accepted in Madison, Alabama, United States of America. Customer and Hexagon agree that any legal action or proceeding arising, directly or indirectly, out of or relating to this Agreement 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 United Nations Conventions on Contracts for the International Sale of Goods shall not apply to this Agreement, and the Parties expressly agree not to be governed by the Uniform Computer Information Transactions Act.
14.6 Headings. Numbered topical headings, articles, paragraphs, subparagraphs or titles in this Agreement are inserted for the convenience of organization and reference and are not intended to affect the interpretation or construction of the terms thereof.
14.7 Independent Contractor. The Parties intend to create an independent contractor relationship and nothing contained in this Agreement shall be construed to make either Customer or Hexagon partners, joint ventures, principals, agents, or employees of the other. Neither Party shall have any right, power, or authority, express or implied, to bind the other. Each Party shall be responsible for the management, direction, and control of its employees and agents and such employees and agents shall not be employees of the other Party.
14.8 Language. The controlling language of this Agreement and all exhibits and attachments thereto is English.
14.9 Limitation on Claims. No claim, regardless of form, arising out of or in connection with this Agreement may be brought by Customer more than two (2) years after the event giving rise to the cause of action has occurred.
14.10 Order of Precedence. In the event of any conflict or inconsistency among documents related to this Agreement, the following order of precedence shall be used to determine the resolution of the discrepancy, unless both parties mutually agree in writing to an alternative decision. The order of precedence for between documents shall be as follows, from highest precedence to lowest precedence:
(1) Orders, as amended or modified by a change order;
(2) Any amendments to this Agreement;
(3) Exhibits to the Agreement; and
(4) The General Terms and Conditions of the Agreement.
14.11 Severability. If any provision of this Agreement or an Order is void, voidable, unenforceable, or illegal in its terms, but would not be so if it were rewritten to eliminate such terms that were found to be voidable, unenforceable, or illegal and such rewrite would not affect the intent of the provision, then the provision must be rewritten to be enforceable and legal.
14.12 Survival. The rights and obligations in sections entitled “IP Ownership”, “Limitation of Liability”, “Dispute Resolution”, “Confidential Information”, “Export”, and the terms of any license granted pursuant to this Agreement (including, but not limited to, Exhibit EULA), shall survive and continue after expiration or termination of the Agreement, shall remain in effect until fulfilled, and shall apply to any permitted successors and assigns. Upon termination of the Agreement, the provisions of the Agreement, including those in the preceding sentence, which by their express terms survive termination, shall remain in full force and effect.
14.13 Use of Contractors. Hexagon may utilize subcontractors to perform the Services set forth in any Order or SOW. Hexagon shall be responsible to Customer for the performance by any such Hexagon contractors as if the Services were performed by Hexagon itself.
14.14 Waiver. The waiver by either Party of any of its rights or remedies in enforcing any action or breach under this Agreement in a particular instance shall not be considered as a waiver of the same or different rights, remedies, or actions for breach in subsequent instances.
14.15 Waiver of Jury Trial. HEXAGON AND CUSTOMER 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 THIS AGREEMENT.
15 Entire Agreement.
This Agreement and its attachments incorporated herein by reference constitutes the entire agreement between the Parties with regard to the subject matter hereof. This Agreement supersedes any and all prior discussions and/or representations, whether written or oral, and no reference to prior dealings may be used to in any way modify the expressed understandings of this Agreement. Any future representations, promises and verbal agreements related to the 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. This Agreement may not be amended or modified unless so done in writing signed by authorized representatives of both Parties. Any and all amendments to this Agreement shall specifically reference the fact the amendment is intended to alter the terms and conditions set forth herein. No Order or change order to an SOW shall affect the terms and conditions set forth herein. All terms and conditions printed on a Customer’s PO are void, even if issued subsequent to the effective date of this Agreement, and no term or condition printed on a Customer’s PO shall be deemed to constitute a change to this Agreement or impose a term or condition on any Order.
In consideration of the mutual obligations assumed under this Agreement, Customer and Hexagon agree to the terms and conditions set forth herein and attached to this Agreement as Exhibits and represent that this Agreement has been executed by each Party's duly authorized representative. The signatories represent that they have the authority to bind their respective organizations to this Agreement. This Agreement may be executed in counterparts or in duplicate originals. Each counterpart or each duplicate shall be deemed an original copy of this Agreement signed by each Party for all purposes.
ATTACHMENT 1 –DEFINED TERMS
All terms defined herein but not used in the Agreement, exhibits, attachments, or Orders shall have no meaning or effect as applied to such documents, nor shall they modify such documents in any way.
“Acknowledgment” or “Acknowledge” shall mean a response to Customer by a representative of Hexagon that he or she is gathering Problem Determination information in response to a Problem reported by Customer.
“Affiliate” shall mean, for business entities, the parent business entity of a Party and any business entities in which a Party or its parent company directly or indirectly holds a controlling ownership interest.
“Archival Copy” shall mean a copy of the licensed Software Product that is stored by Customer to be used solely for backup and disaster recovery purposes.
“Beta Software” shall mean any version of Software prior to a generally available commercial release of such Software.
“Change” shall mean any modification to the terms of an Order.
“Change Order” shall mean any document executed by both Parties explicitly describing a Change.
“Confidential Information” shall mean any data or information, tangible or intangible, disclosed or made available by either party (the "Disclosing Party") to the other party (the "Receiving Party") that is of value to the Disclosing Party and is not generally known in the industry or to competitors of the Disclosing Party and which shall include:
- tangible information marked by the Disclosing Party with the word "Confidential" or otherwise identified by an appropriate stamp or legend indicating its confidential nature;
- information disclosed orally or visually and identified by the Disclosing Party as confidential when disclosed, and confirmed by the Disclosing Party in a written notice within thirty (30) days following disclosure, which notice shall include markings similar to those outlined above;
- technical, financial and business information and models, information relevant to the current or proposed business plans of the Disclosing Party, reports, market projections, analyses, working papers, comparisons, studies, or other documents which contain such information;
- information disclosed either directly, in oral or tangible form (including, but not limited to, magnetic or electronic form), or indirectly, by permitting the Receiving Party to observe various operations or processes conducted by the Disclosing Party;
- any material or documents prepared by the Receiving Party that is based on or contains any information disclosed by the Disclosing Party; and
- all other information that, notwithstanding the absence of markings or designations, would be understood by the parties, exercising reasonable business judgment, to be confidential.
Confidential Information does not include information that:
- is or becomes available in the public domain through no act of the Receiving Party;
- has been received on a non-confidential basis from a third party without breach of an agreement, where the Receiving Party has no reason to believe that such third party is bound by any confidentiality obligation to the Disclosing Party;
- was already known by the Receiving Party without any obligation of confidence prior to receipt;
- was developed independently by the Receiving Party without reliance on the disclosed Confidential Information, provided that such independent development can be substantiated; or
- is confirmed by the Disclosing Party as not being confidential in writing.
“Core” shall mean a physical processor on a computer server that can respond to and execute the basic instructions that drive the computer. A Central Processing Unit (“CPU”) may have one or more Cores, and a given server may have multiple CPU sockets that may each contain multiple Cores.
“Covered Products” shall mean the software listed on the Quote for which Maintenance Services are to be provided to Customer by Hexagon. Covered Products shall also include additional copies of software (i) where the software is already a Covered Product under an existing agreement for Maintenance Services and (ii) additional licenses are purchased or otherwise obtained by Customer during the Licensed Usage Period. Covered Products may include Software Products and Third Party Software.
“Customized Software” shall mean those Services Deliverables that are software or computer code, whether in source code or object code.
“Defect” shall mean a condition in the Software Products that causes the Software Products to substantially fail to conform to Documentation in effect on the date of delivery of the Software Products. An error in the Documentation is not a Defect of the Software Product. If the Documentation is determined to be in error, it will be corrected and provided to the Customer
“Deliverable(s)” shall mean all Services, Maintenance Services, Software, hardware, and other items delivered or to be delivered by Hexagon to Customer pursuant to an Order.
“Desktop-based Software Product” shall mean a self-contained application that runs from a local drive and does not require network connectivity to operate.
“Documentation” shall mean, whether in printed or electronic format, any document that contains information a User may need to install or operate a Software Product.
“Effective Date” shall mean the date and time of receipt of your full payment of the License Fee(s) pursuant to an Order.
“EULA” shall mean the End User License Agreement made an exhibit to this Agreement.
“Fixed Price Project Assignment” shall mean Hexagon will provide the Services and Software licenses for a fixed price.
“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.
“License File” shall mean the unique key, mechanism, device, file (or sets of files), or other security device provided to the Customer by Hexagon for the use of a Software Product.
“Licensed Usage Period” shall mean the duration of the licensed usage as set forth in the applicable Order.
“Maintenance Services” shall mean only those services associated with the maintenance of Software and/or other Deliverables licensed to Customer as particularly identified in a Quote for Maintenance Services.
“Order” shall mean each individual purchase referencing the Agreement and executed by both Parties in a manner set forth in the Agreement.
“OSSW” shall mean Opens Source Software.
“Primary License” shall mean the license(s) of the Software Product provided to Customer for general production use as authorized by this EULA.
“Problem” shall mean a condition reported by Customer to Hexagon or identified by Hexagon in which the Software Products appears to not be functioning in substantial conformance with the Documentation.
“Problem Diagnosis” [or “Problem Determination”] means Hexagon’s isolation of a Problem as either (a) a Defect or (b) a problem of another nature which has adversely affected the performance of the Software Products (e.g., Customer operational, database, hardware/firmware, interfacing product, software other than the Software Products, improper use of the Software Products by Customer, etc.).
“Purchase Order” or “PO” shall mean a document issued by Customer to Hexagon to authorize the delivery of the objects of an Order.
“Quote” shall mean a document prepared by Hexagon reflecting prices for Software, Services, Maintenance Services, and/or Deliverables.
“Release” shall mean a particular numbered version of the Software Product made generally available to customers.
“Services” shall mean the work, services, projects, assignments, or tasks Hexagon will perform pursuant to an approved Order an in accordance with the requisite SOW.
“Services Deliverable” shall mean any data, document, information, Customized Software, Third Party Software, or material provided to Customer as a product of Hexagon’s performance of Services.
“Software” shall mean the software owned by Hexagon or an Affiliate and Third Party Software that is licensed to Customer.
“Software License Sale” shall mean an Order that involves only the sale of Software licenses from Hexagon to Customer. This type of Order does not include Services.
“Software Product” shall 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.
“SOW” or “Statement of Work” shall mean a statement of work setting forth the scope of Services being provided pursuant to an Order.
“Standard Operating Environment” or “SOE” shall mean the hardware and Third Party software prescribed by Hexagon in Documentation and required to operate a Release of the Software Product.
“Subsystem” shall mean a Software and hardware solution that is designed to provide a specific capability independent of the procurement of any other Subsystem.
“Supplementary License” shall mean a license(s) of the Software Product which is made available by Hexagon for select Software Products to augment Primary Licenses for special purposes. Each Supplementary License requires a Primary License and the term of the Supplementary License shall not exceed the term of the applicable Primary License.
“System” shall mean a physical or operational location where the Software Product resides and operates on an individual server or where a single operational identification number (“Site ID”) has been assigned by Hexagon.
“Term” shall mean the duration of performance under the Agreement.
“Time and Materials Project Assignment” shall mean Hexagon will perform the Services set forth in an Order on an hourly basis until the project is either completed or the authorized hours are exhausted, whichever comes first.
“Third Party Software” shall mean 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.
“Update” shall mean any modified version, fix, or patch of the Software Product provided by Hexagon.
“Upgrade” shall mean each new release of the Software Product that is a result of an architectural, major, or minor change to the Software Product provided by Hexagon.
“User” shall mean Customer or an individual employed by Customer. A User may also include Customer’s contractor who requires temporary use of the Software Product to provide services on Customer’s behalf.
“Web-based Software Product” shall mean a Webservices-based Software Product that is accessed by Users solely over the World Wide Web, Internet, or intranet.
“XML Files” shall mean the XML (Extensible Markup Language) files generated by the Software Product, where applicable.
“XSL Stylesheets” shall mean the XSL (Extensible Stylesheet Language) presentation of a class of XML Files which, when included with the Software Product, describe how an instance of the class is transformed into an XML (Extensible Markup Language) document that uses the formatting vocabulary.
END OF ATTACHMENT 1
ATTACHMENT 2 –M.APP ENTERPRISE PRODUCT DESCRIPTION
M.App Enterprise is a solution for analyzing, managing, and delivering geospatial data and creating and editing geospatial workflows. M.App Enterprise is licensed with three possible license models. The model and the duration of the licensed grant is set forth in the applicable Order.
Usage License Model - M.App Enterprise under this model is a Usage Based Concurrent License subject to a usage metric. 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 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 Enterprise software client is connected to the Customer’s M.App Enterprise application server. Customer understands and consents to automatic periodic transmission to Hexagon of license usage metric information during activation and use of the Licensed Software.
Subscription License Model – M.App Enterprise 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 Enterprise software will terminate and access to M.App Enterprise 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.
Perpetual License Model – M.App Enterprise 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 of the End User License Agreement (“EULA”).
ATTACHMENT 3 – OPTIONAL TRAINING
If, with your purchase of a license for M.App Enterprise you ordered training services for M.App Enterprise, the following additional terms apply for such training services.
Training services may be provided by Hexagon Geospatial remotely or on-site at Customer’s facility. The Quote you received for M.App Enterprise will also contain pricing information associated with travel of Hexagon Geospatial employees for on-site travel. No training services will be provided prior to payment in full for quoted training services. Payment terms for training services are as indicated on your Quote.
Protection and Security. Customer acknowledges that training material and information marked confidential, which may come into the Customer’s possession, are proprietary to Hexagon and Customer agrees that such material and information are supplied only to facilitate utilization of their Hexagon-provided equipment and software. Customer will not disclose such material and information to a third party. Customer agrees to not duplicate and or distribute any materials obtained through the Hexagon training courses and that all materials will be used for personal use only.
For online training courses, Customer agrees to not upload copyrighted third party materials to the Web Board. Customer agrees to indemnify and hold harmless Hexagon from all claims, losses, or damages, including reasonable attorneys’ fees, related to Customer’s violation of this term. Provision of hotlinks to original sources is permitted on the Web Board.
Video or Audio Taping. Video or audio taping of Hexagon’s training courses is prohibited.
Assignment. The rights and obligations defined under these terms are not assignable by the Customer.
Export Restrictions. In addition to the Section titled “Export” above, the following additional export restrictions shall apply. With respect to the export by Customer of information and/or technical data received as a result of Hexagon training provided under this Agreement, whether in written or non-written form and including documentation pertaining thereto or anything containing the information and/or technical data, the disclosure of the information and/or technical data to a non U.S. national, or any other activities relating to the Training, Customer agrees that it shall obtain any and all necessary or appropriate export licenses, permits, or other authorizations and shall otherwise comply with all statutes, regulations, or other requirements of any governmental agency. Notwithstanding the foregoing, Hexagon’s information and/or technical data is subject to export controls promulgated by the Government of the United States. Customer warrants that it will not export or re-export, either directly or indirectly, any such information and/or technical data or restricted direct information and/or technical data thereof without first obtaining any necessary authorization from the U.S. Government, when required.
Customer agrees to comply with all U.S. laws and regulations and to furnish and/or sign any and all applicable export documents required to comply with U.S. licensing requirements prior to information and/or technical data shipment. Hexagon cannot be held responsible for the delay in delivery of any training or services for which an Export License is refused or delayed by the U.S. Government.
Statement of Work for Training. If the training to be provided by Hexagon Geospatial requires a statement of work, such statement of work shall be signed by both parties and incorporated herein as part of this Agreement by reference.
ATTACHMENT EULA - END USER LICENSE AGREEMENT
The additional terms and conditions set forth in this this End User License Agreement (“EULA”) constitute the terms and conditions governing the provision to Customer of Software and/or Software Products as described in individual Quotes, Orders, or SOWs placed under the Agreement. The EULA is comprised of this document, plus Addendum 1 – Specific Terms Applicable to Specific Products and Licenses. All capitalized terms not otherwise defined herein shall have the meanings assigned to them in Attachment 1 – Hexagon Standard Definitions.
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 Agreement.
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, non-transferable, 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 t 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 proposal, quote, SOW, 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.
3.2 Usage License. This license is a revocable license that allows for users to use the M.App Enterprise 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 Enterprise software client is connected to the Customer’s M.App Enterprise application server. Customer understands and consents to automatic periodic transmission to Hexagon of 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 Enterprise 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 quote, SOW, or Order (“Subscription Period”) At the expiration of the Subscription Period, Customer’s license grant of the M.App Enterprise software will terminate and access to M.App Enterprise 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.
3.4. 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 Enterprise 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 and of the terms of this Agreement and this EULA.
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 Addendum 1 to this EULA, Customer shall not translate or make any derivative works of the Software Product.
5.2 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 No copies may be made of the Software Product without the prior written consent of Hexagon, except that Customer may create one (1) Archival Copy. In no case may such Archival Copy be accessed, executed, or otherwise used when the original Software Product copy is in use.
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 or SOW pursuant to Services, 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.
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. 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 Agreement 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 apass-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 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 SOE 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 under an Order, 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 Upgrades and Updates.
15.1 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.
15.2 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.
16 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 Enterprise. Customer will not receive license keys, LACS or files from Hexagon. The login credentials are required for the use of M.App Enterprise. 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 Enterprise will not function without the License File.
17 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.
18 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
19 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.
ADDENDUM 1 TO ATTACHMENT EULA - SPECIFIC TERMS APPLICABLE ONLY TO SPECIFIC PRODUCTS AND LICENSES
This Addendum is applicable to Customer in the event that the Software Product is one that also makes use of the products or license types identified below. If applicable, this Addendum (“Addendum”) sets forth the terms of the Customer’s use of the Software Product in addition to the terms of the END-USER LICENSE AGREEMENT (“EULA”) provided to the Customer at the time of licensing. This Addendum shall only apply to Customer if Customer uses any of the products identified below. To the extent not inconsistent with this Addendum, all terms of the EULA shall apply to the use of the Software Product. In the event of a conflict of terms between the EULA and this Addendum, this Addendum shall take precedence over the EULA.
1 Geospatial Desktop Program. This Article only applies if the Software Product is that particular bundle of applications known as the “Geospatial Desktop Program.”
1.1.1 “Effective Addendum Date” shall mean the later of (i) the date of delivery of the License File(s) to Licensee, (ii) the date the Geospatial Desktop Program goes into production, or (iii) such later date as specified in the Quote.
1.1.2 “Existing Products” - any Hexagon software products held by Customer prior to entering into this addendum that are duplicative of one or more components of the Geospatial Desktop made the subject of this Addendum.
1.1.3 “License File” shall mean the unique key file provided to the Licensee by Hexagon for the run-time use of the Software Product
1.1.4 “Licensee” shall mean an individual or single legal entity authorized by Hexagon to utilize the Software Product pursuant to the EULA and this Addendum.
1.2 License Grant. Provided Customer is not in breach of any term or condition of the EULA or this Addendum Hexagon hereby grants Customer a limited, non-exclusive license to install and use the Software Product, in object code form only, strictly for Customer’s internal use and strictly in accordance with the EULA and this Addendum. The license is non-transferable, except as specifically set forth in the EULA. Customer assumes full responsibility for the selection of the Geospatial Desktop Program to achieve Customer’s intended results, and for the installation, use, and results obtained from the Geospatial Desktop Program.
1.2.1 License type and Mode: The Geospatial Desktop Program licensed pursuant to this Addendum shall be concurrent-use mode (CC) as defined in the EULA.
1.3 Term. This license granted in this Article and the rights granted to Licensee pursuant to this license and the EULA shall begin upon the delivery date and remain in effect for a period of twelve (12) months. The license may be renewed as set forth herein. New License Files and/or installation media will be issued annually upon renewal of the license as they may be required.
1.4 Approximately thirty (30) days prior to the end of the license term, Hexagon may submit a renewal Quote to the Licensee to renew the license(s) for the next subscription period at the prices provided in the renewal Quote. If the license(s) are not renewed at the end of the term, Licensee acknowledges that all rights and license grants provided by this EULA and this Addendum shall terminate upon expiration of the term described in the section immediately above.
1.5 Customer’s Existing Products. Any Existing Products held by Customer are not a part of this Addendum. Any Existing Products must be subject to a separate Hexagon maintenance agreement. Customer may choose to not renew maintenance for Existing Products only at the expiration of the term of any maintenance agreement applicable to Existing Products. Early maintenance termination is not permitted for Existing Products under this Addendum.
2 Geospatial SDK. This Article only applies if the Software Product is the Geospatial Portal SDK.
2.1 License Limitations for Sencha Products. Customer shall not distribute the Sencha Products in stand-alone form. Customer shall not provide license rights, consulting, training, or other services with the standalone functionality of the Sencha Products. Customer shall not allow third parties to develop or use the Sencha Products on a standalone basis. Copies of the Sencha Products are licensed and not sold. Customer may not: (a) modify the Sencha Products or permit or permit any third party to do so; (b) rent, lease or sell or otherwise provide temporary access to the Sencha Products to any third party; (c) use the Sencha Products in any manner to assist or take part in the development, marketing, or sale of a product competitive with the Sencha Products; (d) modify, remove or obstruct any copyright or other proprietary rights statements or notices contained within the Sencha Products; (e) distribute the Sencha Products except as provided herein; (f) allow, assist or permit any others to do any of the foregoing. Customer agrees to not reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Sencha Products. Customer may only make a single copy of the Sencha Products for back-up purposes only.
2.2 Limitations on Use. Customer may only use the Geospatial Portal SDK and Sencha Products in combination with the Geospatial Portal Software Product. For the avoidance of doubt, “Customer” in this Addendum means an individual person. Only one person may use the Geospatial Portal SDK per license. Customer is the only authorized user of this licensed copy of the Geospatial Portal SDK and Customer may not allow anyone other than itself to use the Geospatial Portal SDK.
3 Web-Based Software. The Article only applies to Web-Based Software Products.
3.1 Customer may run multiple Websites and provide multiple Webservices to Customer’s client Users with a single Web-Based Software license.
3.2 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.
3.3 Customer may load a Web-based Software Product on multiple machines within a cluster that is acting as a single web server provided:
3.3.1 Customer has obtained the applicable number of Load Balancing Licenses or Cores from Hexagon; and
3.3.2 The total number of map servers or number of Cores deployed do not exceed the quantity licensed.
3.4 Unless otherwise explicitly stated in the Documentation:
3.4.1 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
3.4.2 Customer may prepare derivative works solely for its internal use.
4 Remote Content Management. This Article only applies if the Software Product is Remote Content Management and makes use of DotNetZip Library
4.1 “Contributor” shall mean any person that distributes its contribution under this license.
4.2 If Customer brings a patent claim against any contributor over patents that Customer claims are infringed by the software, Customer’s patent license from such contributor to the software ends automatically.
5 IMAGINE GeoPDF PUBLISHER. This Article only applies if the Software Product is the IMAGINE GeoPDF PUBLISHER product.
5.1 Warranty Disclaimer. Notwithstanding anything to the contrary herein, no warranty is provided with respect to the performance of IMAGINE GeoPDF PUBLISHER. For greater clarity IMAGINE GeoPDF PUBLISHER is provided on an “AS IS” basis.
5.2 Limitation of Liability. Hexagon, its licensors or its suppliers shall not be liable for any claims relating to or arising out of IMAGINE GeoPDF PUBLISHER, regardless of form, in connection with Customer’s use of IMAGINE GeoPDF PUBLISHER.
5.3 Acceptance. IMAGINE GeoPDF PUBLISHER shall be deemed accepted upon Customer’s installation of the same.
5.4 Use Restrictions. Customer may use the GeoPDF PUBLISHER only for Customer’s internal business use, and Customer may not use IMAGINE GeoPDF PUBLISHER to render any files other than GeoPDF files.
6 Euclideon technology. This Article only applies if the Software Product is APOLLO, ERDAS IMAGINE, Geospatial Portal, or GeoMedia WebMap. These Software Products have Euclideon technology embedded within the final products and the intellectual property rights of such third-party technology remain with Euclideon. By installing and using these Software Products, Customer agrees that Customer will not modify, reverse engineer, disassemble or decompile any Euclideon software, that Customer will not remove, obscure or alter any notice of patent, trademark, copyright or trade name.
7 This Article only applies if the Software Product is Geospatial Provider Suite or Platform Suite products. mTransformer by myVR Software AS is delivered with the Hexagon Geospatial Provider Suite and Platform Suite products. mTransformer may be installed on any machine and used within an organization that has a valid license for any product from the Provider Suite or the Platform Suite.
8 This Article only applies if the Software Product is GeoMedia Viewer Software. The software license specifically for GeoMedia Viewer permits copies to be stored on hard disk and loaded for execution on one or more workstations. The GeoMedia Viewer software may be freely copied, transferred, and loaned both inside and outside Customer’s company.
9 This Article only applies if the Software Product is ImageStation or Geospatial SDI Software. Some Software Products of the ImageStation and Geospatial SDI product families contain one or more dynamic link libraries (DLLs) that were built at least partially from open source code subject to the Code Project Open License (CPOL) 1.02 which may be found at http://www.codeproject.com/info/cpol10.aspx. By installing and using these Software Products, Customer agrees the terms of the CPOL license apply to the portions of such DLLs built with CPOL-licensed open source code.
10 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.
11 This Article only applies if the Software Product includes the ECW Browser Plug-in. The Enhanced Compression Wavelet (ECW) browser plug-in Software Product (“Browser Plug-in”) is designed to be used as a browser plug-in to view images created using ECW image technology within the Microsoft Internet Explorer, Google Chrome, and Mozilla Firefox browsers (the “Browsers”). Browsers are not included with the Browser Plug-in. Customer may make and install as many copies of the Browser Plug-in as Customer needs, as plug-ins to lawfully licensed Browsers on computers that Customer owns or controls. If Customer has a valid license to use Hexagon Enhanced Compression Wavelet (ECWP) server Software Product (“ECWP Server Software”), Customer may also distribute copies of the Browser Plug-in to others whom Customer wish to authorize to access images residing on Customer’s ECWP server, provided Customer includes this EULA with the distributed copies. All copies of the Browser Plug-in authorized as described herein are considered to be authorized copies. Customer may install and use the Browser Plug-in only to enable the Browsers to display images that are created with ECW image technology, and that are accessed via Customer’s licensed ECWP Server Software. The Browser Plug-in is licensed only for research, commercial, governmental, and educational purposes and is not licensed, and shall not be used, for personal, family, or household purposes.
12 This Article only applies if the Software Product is AAIC and RINAV. Customer may not use a single license of AAIC or RINAV for more than four (4) simultaneous jobs. Customers desiring to execute AAIC or RINAV simultaneously on more than four (4) cores may purchase additional licenses.
13 This Article only applies if the Software Product contains MrSID software components: Government Reserved Rights. MrSID technology incorporated in the Software Product was developed in part through a project at the Los Alamos National Laboratory, funded by the U.S. Government, managed under contract by the University of California (the “University”), and is under exclusive commercial license to LizardTech, Inc. It is used under license from LizardTech. MrSID technology is protected by U.S. Patent No. 5,710,835. Foreign patents pending. The U.S. Government and the University have reserved rights in MrSID technology, including without limitation: (a) The U.S. Government has a non-exclusive, nontransferable, irrevocable, paid-up license to practice or have practiced throughout the world, for or on behalf of the United States, inventions covered by U.S. Patent No. 5,710,835 and has other rights under 35 U.S.C. § 200-212 and applicable implementing regulations; (b) If LizardTech’s rights in the MrSID technology terminate during the term of this EULA, Customer may continue to use the Software Product. Any provisions of this license which could reasonably be deemed to do so would then protect the University and/or the U.S. Government; and (c) The University has no obligation to furnish any know-how, technical assistance, or technical data to users of MrSID technology and makes no warranty or representation as to the validity of U.S. Patent 5,710,835 nor that the MrSID technology will not infringe any patent or other proprietary right. For further information about these provisions, contact LizardTech, 1008 Western Ave., Suite 200, Seattle, WA 98104.
14 Beta Software - Additional Terms. If the Software Product Customer received with this EULA is Beta Software, then the following additional terms apply. To the extent that any provision in this Article is in conflict with any other terms or conditions in this EULA, this Article shall supersede such other terms and conditions with respect to the Beta Software, but only to the extent necessary to resolve the conflict. Customer shall hold all information concerning Beta Software and Customer’s use and evaluation of such information and the Beta Software (collectively, “Beta Software Information”) in confidence and with the same degree of care Customer uses to keep Customer‘s own similar information confidential, but in no event shall Customer use less than a reasonable degree of care; and Customer shall not, without the prior written consent of Hexagon, disclose such Beta Software Information to any person or entity for any reason at any time; provided, however, it is understood that Customer may disclose any Beta Software Information to those of Customer’s representatives who actually need such information for the purpose of participating in the proposed evaluation and testing (“Beta Testing”) of the Beta Software, on the condition that, prior to such disclosure, such representative has been made aware of the terms of this EULA. Customer shall not use any Beta Software Information for any reason or purpose other than as necessary for Beta Testing. Customer agrees to make no other use of the Beta Software Information or to incorporate any Beta Software Information into any work or product. Customer acknowledges that the Beta Software is a pre-release, beta version, does not represent final product from Hexagon, and may contain bugs, errors and other problems that could cause system or other failures and data loss. THE BETA SOFTWARE IS PROVIDED TO CUSTOMER “AS-IS”, AND HEXAGON DISCLAIMS ALL WARRANTY AND LIABILITY OBLIGATIONS TO CUSTOMER OF ANY KIND. Customer may use the Beta Software only for evaluation and testing. Production use of Beta Software is strictly prohibited. Customer acknowledges that Hexagon has not promised or guaranteed to Customer that Beta Software or any portion thereof will be announced or made available to anyone in the future, Hexagon has no express or implied obligation to Customer to announce or introduce the Beta Software and that Hexagon may not introduce a product similar to or compatible with the Beta Software. Accordingly, Customer acknowledges that any research or development that Customer performs regarding the Beta Software or any product associated with the Beta Software is done entirely at Customer’s own risk. During the term of this EULA, if requested by Hexagon, Customer will provide feedback to Hexagon regarding Beta Testing, including error or bug reports. Upon receipt of a later unreleased version of Beta Software or release by Hexagon of a publicly released commercial version of the Software Product, Customer agrees to return or permanently destroy all earlier Beta Software received from Hexagon. Customer agrees that Customer will return or destroy all unreleased versions of the Beta Software within thirty (30) days of the completion of Beta Testing when such date is earlier than the date for Hexagon’s first commercial shipment of the publicly released commercial software.
HEXAGON END-USER LICENSE AGREEMENT ADDENDUM FOR ORACLE CONTENT
This Addendum (“Addendum”) is applicable to you in the event that you have obtained the following software products (“SOFTWARE PRODUCTS”) from Hexagon that deliver content licensed from Oracle Corporation (“Oracle Content”): ERDAS APOLLO, ERDAS IMAGINE, Geospatial Portal, and GeoMedia WebMap. If applicable, this Addendum sets forth the terms of your use of the SOFTWARE PRODUCT in addition to the terms of the END-USER LICENSE AGREEMENT (“EULA”) provided to you at the time of purchase. This Addendum shall only apply to you if you use any of the SOFTWARE PRODUCTS identified above by or through Hexagon. To the extent not inconsistent with this Addendum, all terms of the EULA shall apply to the use of the SOFTWARE PRODUCTS. In the event of a conflict of terms between the EULA, any other EULA Addendum, and this Addendum, this Addendum shall take precedence over the EULA and any other EULA Addendum regarding the subject hereof. The EULA may be found at: https://sgisupport.intergraph.com/infocenter/index?page=support_policies.
This Addendum has two sections. SECTION A addresses the licensing for the following Oracle components delivered with all of the SOFTWARE PRODUCTS identified above: Client, Instant Client, and ODP.NET Driver (“Oracle Components”). SECTION B addresses the licensing of certain Java SE Platform Products, including Java Platform Standard Edition Development Kit (JDK), delivered with ERDAS APOLLO only.
Hexagon provides the Oracle Components subject to a restricted license and licenses them to you strictly for your internal use with the SOFTWARE PRODUCTS listed above, and strictly in accordance with this Addendum. The EULA shall govern your use of the SOFTWARE PRODUCTS. This Addendum Section A addresses additional license rights and restrictions specific to the Oracle Components delivered as part of the SOFTWARE PRODUCTS.
The following additional terms and conditions shall apply to the Oracle Components licensed hereunder:
1. Use of the Oracle Components is limited to the legal entity that executes or otherwise accepts this Addendum in accordance with the terms and conditions governing acceptance set forth in the EULA.
2. Use of the Oracle Components is restricted to running the SOFTWARE PRODUCTS for your business operations.
3. You are prohibited from assigning, giving, or transferring the Oracle Components or any interest in them to another individual or entity (in the event you grant a security interest in the Oracle Components, the secured party has no right to use or transfer the Oracle Components).
4. You are prohibited from (a) the removal or modification of any Oracle Components’ markings or any notice of Oracle’s or its licensors’ proprietary rights; (b) making the Oracle Components available in any manner to any third party for use in the third party’s business operations; and (c) title of the Oracle Components passing to you or any other party.
5. You are prohibited from reverse engineering (unless required by law for interoperability), disassembly or decompilation of the Oracle Components and from duplication of the Oracle Components except for a sufficient number of copies of each Oracle Component for your licensed use and one copy of each Oracle Component’s media.
6. Hexagon disclaims, to the extent permitted by applicable law, Oracle’s liability for any damages, whether direct, indirect, incidental, special, punitive, or consequential, arising from the use of the Oracle Components.
7. Upon termination of the EULA and this Addendum, you are required to discontinue use and to destroy or return to Hexagon all copies of the Oracle Components and documentation.
8. You are prohibited from publication of any results of benchmark tests run on the Oracle Components.
9. You are required to comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the Oracle Components, nor any direct product thereof, are exported, directly or indirectly, in violation of applicable laws.
10. Oracle shall not be required to perform any obligation or incur any liability under this Addendum.
11. Hexagon shall be permitted to audit your use of the Oracle Components, and Hexagon shall be permitted to assign to Oracle Hexagon’s right to audit your use of the Oracle Components.
12. Oracle shall be a third party beneficiary of this Addendum.
13. The Uniform Computer Information Transactions Act shall not apply to this Addendum.
14. THE ORACLE COMPONENTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. HEXAGON AND ORACLE FURTHER DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. IN NO EVENT SHALL HEXAGON OR ORACLE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF HEAXGON OR ORACLE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HEXAGON AND ORACLE’S ENTIRE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED ONE THOUSAND DOLLARS (U.S. $1,000).
15. Oracle’s technical support organization will not provide technical support, phone support, or updates to you for the Oracle Components.
16. You may terminate this Addendum by destroying all copies of the Oracle Components. Hexagon has the right to terminate your right to use the Oracle Components if you fail to comply with any of the terms of this Addendum, in which case you shall destroy all copies of the Oracle Components.
17. The relationship between us is that of licensee/licensor. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity. Nothing in this Addendum shall be construed to limit either party's right to independently develop or distribute software that is functionally similar to the other party's products, so long as proprietary information of the other party is not included in such software.
18. "Open Source" software is software available without charge for use, modification and distribution is often licensed under terms that require the user to make the user's modifications to the Open Source software or any software that the user 'combines' with the Open Source software freely available in source code form. If you use Open Source software in conjunction with the Oracle Components, you must ensure that your use does not: (i) create, or purport to create, obligations of Hexagon or Oracle with respect to the Oracle Components; or (ii) grant, or purport to grant, to any third party any rights to or immunities under Oracle’s intellectual property or proprietary rights in the Oracle Components. For example, you may not develop a software program using an Oracle Component and an Open Source program where such use results in a program file(s) that contains code from both the Oracle Component and the Open Source program (including without limitation libraries) if the Open Source program is licensed under a license that requires any "modifications" be made freely available. You also may not combine the Oracle Components with programs licensed under the GNU General Public License ("GPL") in any manner that could cause, or could be interpreted or asserted to cause, the Oracle Components or any modifications thereto to become subject to the terms of the GPL.
Hexagon provides the Java SE Platform Products, including Java Platform Standard Edition Development Kit (JDK), delivered with ERDAS APOLLO subject to only the following Oracle Binary Code License Agreement.
Oracle Binary Code License Agreement for the Java SE Platform Products and JavaFX
ORACLE AMERICA, INC. ("ORACLE"), FOR AND ON BEHALF OF ITSELF AND ITS SUBSIDIARIES AND AFFILIATES UNDER COMMON CONTROL, IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS BINARY CODE LICENSE AGREEMENT AND SUPPLEMENTAL LICENSE TERMS (COLLECTIVELY "AGREEMENT"). PLEASE READ THE AGREEMENT CAREFULLY. BY SELECTING THE "ACCEPT LICENSE AGREEMENT" (OR THE EQUIVALENT) BUTTON AND/OR BY USING THE SOFTWARE YOU ACKNOWLEDGE THAT YOU HAVE READ THE TERMS AND AGREE TO THEM. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT WISH TO BE BOUND BY THE TERMS, THEN SELECT THE "DECLINE LICENSE AGREEMENT" (OR THE EQUIVALENT) BUTTON AND YOU MUST NOT USE THE SOFTWARE ON THIS SITE OR ANY OTHER MEDIA ON WHICH THE SOFTWARE IS CONTAINED.
1. DEFINITIONS. "Software" means the software identified above in binary form that you selected for download, install or use (in the version You selected for download, install or use) from Oracle or its authorized licensees, any other machine readable materials (including, but not limited to, libraries, source files, header files, and data files), any updates or error corrections provided by Oracle, and any user manuals, programming guides and other documentation provided to you by Oracle under this Agreement. "General Purpose Desktop Computers and Servers" means computers, including desktop and laptop computers, or servers, used for general computing functions under end user control (such as but not specifically limited to email, general purpose Internet browsing, and office suite productivity tools). The use of Software in systems and solutions that provide dedicated functionality (other than as mentioned above) or designed for use in embedded or function-specific software applications, for example but not limited to: Software embedded in or bundled with industrial control systems, wireless mobile telephones, wireless handheld devices, kiosks, TV/STB, Blu-ray Disc devices, telematics and network control switching equipment, printers and storage management systems, and other related systems are excluded from this definition and not licensed under this Agreement. "Programs" means (a) Java technology applets and applications intended to run on the Java Platform, Standard Edition platform on Java- enabled General Purpose Desktop Computers and Servers; and (b) JavaFX technology applications intended to run on the JavaFX Runtime on JavaFX-enabled General Purpose Desktop Computers and Servers. “Commercial Features” means those features identified in Table 1-1 (Commercial Features In Java SE Product Editions) of the Java SE documentation accessible at http://www.oracle.com/technetwork/java/javase/documentation/index.html. “README File” means the README file for the Software accessible at http://www.oracle.com/technetwork/java/javase/documentation/index.html.
2. LICENSE TO USE. Subject to the terms and conditions of this Agreement including, but not limited to, the Java Technology Restrictions of the Supplemental License Terms, Oracle grants you a non-exclusive, non-transferable, limited license without license fees to reproduce and use internally the Software complete and unmodified for the sole purpose of running Programs. THE LICENSE SET FORTH IN THIS SECTION 2 DOES NOT EXTEND TO THE COMMERCIAL FEATURES. YOUR RIGHTS AND OBLIGATIONS RELATED TO THE COMMERCIAL FEATURES ARE AS SET FORTH IN THE SUPPLEMENTAL TERMS ALONG WITH ADDITIONAL LICENSES FOR DEVELOPERS AND PUBLISHERS.
3. RESTRICTIONS. Software is copyrighted. Title to Software and all associated intellectual property rights is retained by Oracle and/or its licensors. Unless enforcement is prohibited by applicable law, you may not modify, decompile, or reverse engineer Software. You acknowledge that the Software is developed for general use in a variety of information management applications; it is not developed or intended for use in any inherently dangerous applications, including applications that may create a risk of personal injury. If you use the Software in dangerous applications, then you shall be responsible to take all appropriate fail-safe, backup, redundancy, and other measures to ensure its safe use. Oracle disclaims any express or implied warranty of fitness for such uses. No right, title or interest in or to any trademark, service mark, logo or trade name of Oracle or its licensors is granted under this Agreement. Additional restrictions for developers and/or publishers licenses are set forth in the Supplemental License Terms.
4. DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. ORACLE FURTHER DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
5. LIMITATION OF LIABILITY. IN NO EVENT SHALL ORACLE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF ORACLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORACLE'S ENTIRE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED ONE THOUSAND DOLLARS (U.S. $1,000).
6. TERMINATION. This Agreement is effective until terminated. You may terminate this Agreement at any time by destroying all copies of Software. This Agreement will terminate immediately without notice from Oracle if you fail to comply with any provision of this Agreement. Either party may terminate this Agreement immediately should any Software become, or in either party's opinion be likely to become, the subject of a claim of infringement of any intellectual property right. Upon termination, you must destroy all copies of Software.
7. EXPORT REGULATIONS. You agree that U.S. export control laws and other applicable export and import laws govern your use of the Software, including technical data; additional information can be found on Oracle's Global Trade Compliance web site (http://www.oracle.com/us/products/export). You agree that neither the Software nor any direct product thereof will be exported, directly, or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.
8. TRADEMARKS AND LOGOS. You acknowledge and agree as between you and Oracle that Oracle owns the ORACLE and JAVA trademarks and all ORACLE- and JAVA- related trademarks, service marks, logos and other brand designations ("Oracle Marks"), and you agree to comply with the Third Party Usage Guidelines for Oracle Trademarks currently located at http://www.oracle.com/us/legal/third-party-trademarks/index.html. Any use you make of the Oracle Marks inures to Oracle's benefit.
9. U.S. GOVERNMENT LICENSE RIGHTS. If Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government's rights in Software and accompanying documentation shall be only those set forth in this Agreement.
10. GOVERNING LAW. This agreement is governed by the substantive and procedural laws of California. You and Oracle agree to submit to the exclusive jurisdiction of, and venue in, the courts of San Francisco, or Santa Clara counties in California in any dispute arising out of or relating to this agreement.
11. SEVERABILITY. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate.
12. INTEGRATION. This Agreement is the entire agreement between you and Oracle relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by an authorized representative of each party.
SUPPLEMENTAL LICENSE TERMS
These Supplemental License Terms add to or modify the terms of the Binary Code License Agreement. Capitalized terms not defined in these Supplemental Terms shall have the same meanings ascribed to them in the Binary Code License Agreement. These Supplemental Terms shall supersede any inconsistent or conflicting terms in the Binary Code License Agreement, or in any license contained within the Software.
A. COMMERCIAL FEATURES. You may not use the Commercial Features for running Programs, Java applets or applications in your internal business operations or for any commercial or production purpose, or for any purpose other than as set forth in Sections B, C, D and E of these Supplemental Terms. If You want to use the Commercial Features for any purpose other than as permitted in this Agreement, You must obtain a separate license from Oracle.
B. SOFTWARE INTERNAL USE FOR DEVELOPMENT LICENSE GRANT. Subject to the terms and conditions of this Agreement and restrictions and exceptions set forth in the README File incorporated herein by reference, including, but not limited to the Java Technology Restrictions of these Supplemental Terms, Oracle grants you a non-exclusive, non-transferable, limited license without fees to reproduce internally and use internally the Software complete and unmodified for the purpose of designing, developing, and testing your Programs.
C. LICENSE TO DISTRIBUTE SOFTWARE. Subject to the terms and conditions of this Agreement and restrictions and exceptions set forth in the README File, including, but not limited to the Java Technology Restrictions and Limitations on Redistribution of these Supplemental Terms, Oracle grants you a non-exclusive, non-transferable, limited license without fees to reproduce and distribute the Software, provided that (i) you distribute the Software complete and unmodified and only bundled as part of, and for the sole purpose of running, your Programs, (ii) the Programs add significant and primary functionality to the Software, (iii) you do not distribute additional software intended to replace any component(s) of the Software, (iv) you do not remove or alter any proprietary legends or notices contained in the Software, (v) you only distribute the Software subject to a license agreement that: (a) is a complete, unmodified reproduction of this Agreement; or (b) protects Oracle's interests consistent with the terms contained in this Agreement and that includes the notice set forth in Section H, and (vi) you agree to defend and indemnify Oracle and its licensors from and against any damages, costs, liabilities, settlement amounts and/or expenses (including attorneys' fees) incurred in connection with any claim, lawsuit or action by any third party that arises or results from the use or distribution of any and all Programs and/or Software. The license set forth in this Section C does not extend to the Software identified in Section G.
D. LICENSE TO DISTRIBUTE REDISTRIBUTABLES. Subject to the terms and conditions of this Agreement and restrictions and exceptions set forth in the README File, including but not limited to the Java Technology Restrictions and Limitations on Redistribution of these Supplemental Terms, Oracle grants you a non-exclusive, non-transferable, limited license without fees to reproduce and distribute those files specifically identified as redistributable in the README File ("Redistributables") provided that: (i) you distribute the Redistributables complete and unmodified, and only bundled as part of Programs, (ii) the Programs add significant and primary functionality to the Redistributables, (iii) you do not distribute additional software intended to supersede any component(s) of the Redistributables (unless otherwise specified in the applicable README File), (iv) you do not remove or alter any proprietary legends or notices contained in or on the Redistributables, (v) you only distribute the Redistributables pursuant to a license agreement that:
(a) is a complete, unmodified reproduction of this Agreement; or (b) protects Oracle's interests consistent with the terms contained in the Agreement and includes the notice set forth in Section H, (vi) you agree to defend and indemnify Oracle and its licensors from and against any damages, costs, liabilities, settlement amounts and/or expenses (including attorneys' fees) incurred in connection with any claim, lawsuit or action by any third party that arises or results from the use or distribution of any and all Programs and/or Software. The license set forth in this Section D does not extend to the Software identified in Section G.
E. DISTRIBUTION BY PUBLISHERS. This section pertains to your distribution of the JavaTM SE Development Kit Software (“JDK”) with your printed book or magazine (as those terms are commonly used in the industry) relating to Java technology ("Publication"). Subject to and conditioned upon your compliance with the restrictions and obligations contained in the Agreement, Oracle hereby grants to you a non-exclusive, nontransferable limited right to reproduce complete and unmodified copies of the JDK on electronic media (the "Media") for the sole purpose of inclusion and distribution with your Publication(s), subject to the following terms:
(i) You may not distribute the JDK on a stand-alone basis; it must be distributed with your Publication(s); (ii) You are responsible for downloading the JDK from the applicable Oracle web site; (iii) You must refer to the JDK as JavaTM SE Development Kit; (iv) The JDK must be reproduced in its entirety and without any modification whatsoever (including with respect to all proprietary notices) and distributed with your Publication subject to a license agreement that is a complete, unmodified reproduction of this Agreement; (v) The Media label shall include the following information: “Copyright [YEAR], Oracle America, Inc. All rights reserved. Use is subject to license terms. ORACLE and JAVA trademarks and all ORACLE- and JAVA-related trademarks, service marks, logos and other brand designations are trademarks or registered trademarks of Oracle in the U.S. and other countries.” [YEAR] is the year of Oracle's release of the Software; the year information can typically be found in the Software’s “About” box or screen. This information must be placed on the Media label in such a manner as to only apply to the JDK; (vi) You must clearly identify the JDK as Oracle's product on the Media holder or Media label, and you may not state or imply that Oracle is responsible for any third-party software contained on the Media; (vii) You may not include any third party software on the Media which is intended to be a replacement or substitute for the JDK; (viii) You agree to defend and indemnify Oracle and its licensors from and against any damages, costs, liabilities, settlement amounts and/or expenses (including attorneys' fees) incurred in connection with any claim, lawsuit or action by any third party that arises or results from the use or distribution of the JDK and/or the Publication; ; and (ix) You shall provide Oracle with a written notice for each Publication; such notice shall include the following information: (1) title of Publication, (2) author(s), (3) date of Publication, and (4) ISBN or ISSN numbers. Such notice shall be sent to Oracle America, Inc., 500 Oracle Parkway, Redwood Shores, California 94065 U.S.A, Attention: General Counsel.
F. JAVA TECHNOLOGY RESTRICTIONS. You may not create, modify, or change the behavior of, or authorize your licensees to create, modify, or change the behavior of, classes, interfaces, or subpackages that are in any way identified as "java", "javax", "sun", “oracle” or similar convention as specified by Oracle in any naming convention designation.
G. LIMITATIONS ON REDISTRIBUTION. You may not redistribute or otherwise transfer patches, bug fixes or updates made available by Oracle through Oracle Premier Support, including those made available under Oracle's Java SE Support program.
H. COMMERCIAL FEATURES NOTICE. For purpose of complying with Supplemental Term Section C.(v)(b) and D.(v)(b), your license agreement shall include the following notice, where the notice is displayed in a manner that anyone using the Software will see the notice:
Use of the Commercial Features for any commercial or production purpose requires a separate license from Oracle. “Commercial Features” means those features identified Table 1-1 (Commercial Features In Java SE Product Editions) of the Java SE documentation accessible at http://www.oracle.com/technetwork/java/javase/documentation/index.html
I. SOURCE CODE. Software may contain source code that, unless expressly licensed for other purposes, is provided solely for reference purposes pursuant to the terms of this Agreement. Source code may not be redistributed unless expressly provided for in this Agreement.
J. THIRD PARTY CODE. Additional copyright notices and license terms applicable to portions of the Software are set forth in the THIRDPARTYLICENSEREADME file accessible at http://www.oracle.com/technetwork/java/javase/documentation/index.html. In addition to any terms and conditions of any third party opensource/freeware license identified in the THIRDPARTYLICENSEREADME file, the disclaimer of warranty and limitation of liability provisions in paragraphs 4 and 5 of the Binary Code License Agreement shall apply to all Software in this distribution.
K. TERMINATION FOR INFRINGEMENT. Either party may terminate this Agreement immediately should any Software become, or in either party's opinion be likely to become, the subject of a claim of infringement of any intellectual property right.
L. INSTALLATION AND AUTO-UPDATE. The Software's installation and auto-update processes transmit a limited amount of data to Oracle (or its service provider) about those specific processes to help Oracle understand and optimize them. Oracle does not associate the data with personally identifiable information. You can find more information about the data Oracle collects as a result of your Software download at http://www.oracle.com/technetwork/java/javase/documentation/index.html.
For inquiries please contact: Oracle America, Inc., 500 Oracle Parkway, Redwood Shores, California 94065, USA.
Last updated 02 April 2013
DDCC076D0B – Oracle Content Addendum
END OF EXHIBIT EULA - END USER LICENSE AGREEMENT
ATTACHMENT MTX – M.APP ENTERPRISE CUSTOM SUPPORT SERVICES TERMS AND CONDITIONS
Maintenance services, including minor updates and major updates are available for Usage License types and Subscription License types only and only during an active Subscription Period. Hexagon is under no obligation to create or provide minor or major updates and will do so at its own discretion. Minor and major updates will be delivered to the Customer via electronic download only.
Perpetual License types shall only receive major updates the Software Product through a separate Order and may receive Custom Support Services as described below.
Utilization of Hexagon development services permits M.App Enterprise users to access certain Hexagon custom software development and support services (“Custom Support Services”). All M.App Enterprise users can request, order, and receive Custom Support Services.
To access the Custom Support Services, Customer will file a support ticket requesting the Custom Support Services, including a detailed requirements document for the Custom Support Services.
Response and Pricing.
In the event Customer’s support ticket is requesting a modification to the Software Product due to a Defect in the Software Product, and Hexagon agrees there is in fact a Defect in the Software Product, there is no charge for filing the support ticket. Hexagon will thereafter take the report of a Defect in the Software Product and address such Defect in conformance with Hexagon’s internal development plans.
After reviewing the support ticket, if the request is not generated as a result of a Defect in the Software Product, a Hexagon agent will reply to the ticket with an estimate of the cost (expressed in Development Credits) along with an estimated schedule for the product of the Custom Support Services. The cost of every Service request depends on the complexity of the request and the time required producing the requested development. Cost estimates provided by the Hexagon agent shall expire in 14 days.
If Customer wishes to order the Custom Support Services proposed by the Hexagon agent, Customer must purchase at least the estimated number of Development Credits. Development Credits may be purchased on M.App Exchange.
Hexagon shall have the right at any time, prior to Hexagon’s acceptance of Customer’s order, to withdraw any discount and/or to revise prices to take into account increases in costs including (without limitation) costs of any materials, carriage, labor, or the increase or imposition of any tax, duty or other levy and any variation in exchange rates. Any prices, quotations and descriptions made may be withdrawn or revised at any time prior to Hexagon’s express acceptance of Customer’s order. Hexagon reserves the right to notify Customer of any mistakes in Custom Support Services descriptions or errors in pricing prior to services performance. In such event if Customer chooses to continue with fulfilment of the order, Customer acknowledges that the service will be provided in accordance with such revised description or corrected price.
Provisions of Custom Support Services.
Hexagon will provide Custom Support Services to Customer as stated on Hexagon’s response to the filing of the ticket. The resulting product of the Custom Support Services (the “Deliverable”) will be as described on Hexagon’s response to the filing of the ticket.
License Granted for the Deliverable.
All Custom Support Services Deliverables, Updates and Upgrades are provided to Customer pursuant to the terms of the then current EULA.
All Hexagon Deliverables and all products of Hexagon Custom Support Services, Updates and Upgrades are, and at all times, remain the property of Hexagon. Any intellectual property created by Hexagon during the course of the Custom Support Services, Updates and Upgrades shall be the sole and exclusive property of Hexagon. The Custom Support Services and Deliverables, Updates and Upgrades provided to Customer are not “work for hire.” Hexagon may perform the same or similar services for other customers.
Maintenance of the Deliverable.
Hexagon expressly disclaims any obligation to maintain any Deliverable. Schedule.
The schedule for the performance of the Custom Support Services will be stated on the Ticket. Warranty and Disclaimer of Warranties.
Custom Support Services, Deliverables, Updates and Upgrades are provided "AS IS" and without warranty of any kind. Hexagon does not warrant the type, quality, or results of any Custom Support Services, Updates and Upgrades or Deliverable provided. HEXAGON DISCLAIMS (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ALL WARRANTIES ON UPDATES, UPGRADES, DELIVERABLES AND SERVICES FURNISHED HEREUNDER, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTY HEREIN IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND REPRESENTS THE FULL AND TOTAL OBLIGATION AND/OR LIABILITY OF HEXAGON.
END OF ATTACHMENT MTX
ATTACHMENT OF – SAMPLE ORDER FORM ORDER
This Order is made pursuant to the terms of the M.App Enterprise Standard Licensing Agreement
(the “Agreement” dated_____________________by and between __________________ ("Customer") and Intergraph Corporation doing business as Hexagon Geospatial ("Hexagon"). Hexagon shall provide the following Software Licenses under the terms and conditions of the Agreement and any additional terms contained in this Order.
A. DESCRIPTION, TYPE, AND QUANTITIES OF SOFTWARE LICENSES
B. DURATION OF SOFTWARE LICENSES
C. FEES AND INVOICING SCHEDULE
Hexagon Admin. Contact
Hexagon Billing Contact
E. ASSUMPTIONS [DETAIL ASSUMPTIONS HERE]
Hexagon and Customer agree that all Orders placed are pursuant to the Agreement. The signatories represent that they have the authority to bind their respective organizations to this Order. This Order may be executed in counterparts or in duplicate originals. Each counterpart or each duplicate shall be deemed an original copy of this Order signed by each Party for all purposes.
Customer’s Authorized Representative
(Authorized Signature Required
Hexagon’s Authorized Representative
(Authorized Signature Required
END OF ATTACHMENT OF SAMPLE ORDER FORM