Hexagon Safety & Infrastructure
U.S. Support Terms and Conditions for Software
These terms and conditions (“Support Terms”) govern the provision to Customer of maintenance and support services by Intergraph Corporation doing business as Hexagon Safety & Infrastructure ("Hexagon") with respect to Covered Products. Customer and Hexagon are each a “Party” and collectively the “Parties.”
DEFINITIONS
All capitalized terms not otherwise defined herein shall have the meaning set forth in the attached “Common Terms Glossary Exhibit.”
AUTHORIZATION OF MAINTENANCE SERVICES
In accordance with Order Documents that reference these Support Terms, Customer authorizes Hexagon to provide under the Support Contract the Maintenance Services for Covered Products during the Coverage Period.
ELEMENTS OF AN ORDER
Each Order will be comprised of Order Documents.
3.2 Upon mutual acceptance of the Order Documents, Customer will execute the Order Documents and/or issue a PO or a notice to commence Maintenance Services.
3.3 Notwithstanding the foregoing, Orders for Maintenance Services shall commence on the date specified in the Order Documents regardless of whether Customer has issued a PO.
TERM
Term. The Support Contract shall begin, retroactively (if applicable), on the first calendar day of the first Month of the Coverage Period and shall expire on the last calendar day of the last Month of the Coverage Period. The Coverage Period shall be for whole Months only.
Renewal. Prior to expiration of the Coverage Period, Hexagon may submit to Customer a renewal quote with pricing for extension of the Coverage Period. The Parties may extend the Coverage Period pursuant to Order Documents.
Lapse. In the event of a Lapse: (i) Hexagon shall, at any time, be entitled to discontinue Maintenance Services, in whole or in part, for the affected Covered Products; (ii) Hexagon shall be relieved of any previously provided pricing commitments or options for Maintenance Services, if any, related to time periods following the Lapse; and, (iii) Hexagon may permit Customer to reinstate support for Covered Products pursuant to Hexagon’s then current policies and practices, including any policies or practices related to payment of reinstatement fees.
SCOPE OF COVERAGE FOR COVERED SOFTWARE PRODUCTS
Maintenance Services described in this Section apply to Covered Software Products only. Maintenance Services for Covered Third Party Products are separately stated.
Hexagon offers three levels of Maintenance Services for Covered Software Products, dependent upon the Software Product and other factors. Under all levels of Maintenance Services, Hexagon shall provide reasonable commercial efforts to aid in the diagnosis of Defects. Under all levels of Maintenance Services, but only until the subject Software Product version reaches Version Limitation I or Version Limitation II, Hexagon shall provide reasonable commercial efforts to aid in correction of Defects. After a Software Product version reaches Version Limitation I, but only until the subject Software Product reaches Version Limitation II, Hexagon shall provide reasonable commercial efforts to aid in correction of Level One Defects only. The level of Maintenance Services for each Software Product is identified in the Order Documents, subject however to Version Limitations. Defect corrections provided by Hexagon shall, unless otherwise agreed by Hexagon, be delivered within Hexagon’s product releases, and in accordance with Hexagon’s standardized release cycles. Levels of Maintenance Services are as follows:
Advantage Support. Advantage Support will include and be limited to the diagnostic and Defect correction support as described above, and the following: Out-of-the-box functionality support via the help desk (telephone or eService via Hexagon’s Customer Support Web Site where available at https://support.hexagonsafetyinfrastructure.com; and, access to any applicable Hexagon problem knowledge base online self-help tool. Phone support is available Monday through Friday from 8AM – 5PM at Customer’s local time, excluding Hexagon-observed holidays. Local variances in support hours will be posted on the Customer Support Web Site or applicable local support website or can be determined by contacting Customer’s local Hexagon office.
Standard Support. Standard Support will include and be limited to the following:
All features of Advantage Support.
Access to available Updates of Covered Software Products. Hexagon will notify Customer when Updates are made available for any Covered Software Products for which Maintenance Services have been purchased, by way of posting notices of such to the “Support Notices and Announcements” section on the Customer Support Web Site or applicable local support website or via direct notification by Hexagon. Updates are shipped to Customer upon Customer request, logged in the Customer Support Web Site. Hexagon is not obligated to produce any Updates. For avoidance of doubt, a Customer’s entitlement to Updates shall not include entitlement to any therein embedded or otherwise related module or function which is licensed and priced separately from Covered Product(s) for which Customer has purchased an entitlement to Updates.
Premium Support. Premium Support will include all features available under Standard Support (subject to Version Limitations). Additionally, for a Level 1 Defect, phone support is also available after-hours and on Hexagon-observed holidays.
Product Change Requests (also referred to as CR-E) will be reported in like manner as set forth in Section 5.1. Hexagon will review Product Change Requests and at its sole discretion decide whether to make the requested change to the Covered Product(s) through an Update. Product Change Requests not accepted may be the subject of a separate contract between the Parties. For the avoidance of doubt, to the extent Hexagon agrees to make a requested change to a Covered Product pursuant to a Product Change Request, any and all IPR resulting from the Update including the change or modification is and shall remain the property of Hexagon.
MINIMUM SYSTEM REQUIREMENTS; CUSTOMER’S OBLIGATIONS
Performance of Maintenance Services by Hexagon is specifically conditioned upon the following minimum system requirements and fulfillment by Customer of the following obligations (collectively, minimum system requirements and customer obligations hereinafter referred to as “Customer Obligations”):
System Requirements. Customer is responsible for ensuring: the System Equipment and network infrastructure meet minimum system requirements specified by Hexagon and made available to Customer upon request; its System Equipment and network infrastructure are adjusted as required to accommodate Updates of Covered Products; compatibility of non-Hexagon provided products with products provided by Hexagon; and, its systems, software, and data are adequately backed up. Hexagon is not liable for lost data.
Hexagon Access and Customer Cooperation. Customer’s system and/or System Equipment must have input and output devices that enable the use of Hexagon’s diagnostic programs and supplemental tests. Customer will permit Hexagon to electronically access Customer’s system via SecureLink™, a tool providing secure, auditable remote access to Customer’s system for Hexagon to effectively render Maintenance Services. Customer will ensure availability of its own system technical support personnel so that Hexagon can fulfill its Maintenance Services obligations. When reporting problems to Hexagon’s help desk, Customer will provide a complete problem description, along with all necessary documents and information that is available to Customer and required by Hexagon to diagnose and resolve the problem. Customer will grant all necessary access to all required systems as well as to the Covered Products, and any other reasonable assistance needed. Customer will carry out any reasonable instructions and will install any necessary patches, Defect corrections, or Updates. Customer will appoint a minimum of two and a maximum of three contact people who are each authorized to make use of the Maintenance Services (“Authorized Contacts”). Customer must assure Authorized Contacts have adequate expertise, training, and experience to provide professionally accurate descriptions of malfunctions and facilitate Hexagon’s efficient response. Authorized Contacts must have successfully completed Hexagon product training or complete it at the next available scheduled opportunity, for those products for which formal training is available. Customer will bear the cost of this training. Customer is obligated to select only those personnel for this task who are suitable for it by means of training and function, and who have knowledge of Customer’s operating system, network, and hardware and software. Customer agrees to promptly notify Hexagon of any replacement of an Authorized Contact.
EXCLUDED SOFTWARE SERVICES
Services for the following are outside the scope of the Support Contract and may be available under separate Order at an additional charge (collectively “Excluded Services”):
Installation of any Covered Product, Update, or interface software.
Network configuration.
Configuration or customization of Covered Products to Customer or other third party requirements (except as necessary to remedy a Defect).
System-level tuning and optimization and system administration support.
Training.
Services required because the Authorized Contact is not available or is not trained.
On-site services (unless waived by Hexagon, in its sole discretion).
Services required due to modifications of Covered Products by Customer.
Services required due to use other than in the ordinary manner intended for the Covered Products, or use in a manner that contravenes terms hereunder, or Customer’s disregard of the installation and operating instructions according to the Documentation provided with the Covered Products.
Services required due to failure of software or hardware that is not a Covered Product.
Services required due to Customer’s use of hardware or software that does not meet Hexagon specifications or failure of Customer to maintain or perform industry standard maintenance on Customer’s hardware or software.
Services required due to software or portions thereof that were incorrectly installed or configured (other than by Hexagon) or use in an environment inconsistent with the support environment specified by Hexagon, or used with peripherals, operational equipment or accessories not conforming to Hexagon’s specifications.
Services required due to cases of force majeure, especially lightning strikes, fire or flood, third-party criminal acts, or other events not caused through Hexagon’s fault.
Services required due to Customer’s failure to fulfill the Customer Obligations.
Services required due to faulty or incomplete Customer data.
COVERED THIRD PARTY PRODUCTS
Support and Updates of Covered Third Party Products shall be provided in the fashion and to the extent or duration that Hexagon is authorized to provide such by the third party manufacturer of the Covered Third Party Products, and such Covered Third Party Products and related services may be subject to additional terms and conditions of the third party manufacturer of the Third Party Software.
Services and updates for any Third Party Software that are not listed in the Order Documents as Covered Products must be obtained from the third party owner of the products or their designated representative.
REQUIRED COVERAGE
Multiple or Interdependent Licenses. If Customer holds multiple licenses for any Covered Product, all held licenses must be included as Covered Products in the Support Contract.
Prerequisite Licenses. All prerequisite licenses for Software Products necessary to operate the Covered Products, together with all licenses of Software Products interoperating with Covered Products in a single solution, must be included as Covered Products in the Support Contract.
ADDITIONS AND REMOVALS OF COVERED PRODUCTS
Additions of Covered Products. Software Products licensed from Hexagon during the term of the Support Contract may be added as Covered Products, if such addition is addressed through additional related Order Documents. If Software Products are not added as Covered Products by commencement of Production use thereof, Hexagon may permit Customer to add support, but subject to additional fees payable pursuant to Hexagon’s then current policies or practices.
Removal of Covered Products from Maintenance. Either Party may provide written notice to the other Party at least sixty (60) calendar days prior to the end of any Coverage Period Anniversary of its intent to remove any individual Covered Products from the Support Contract at the end of the then current and contracted Coverage Period or any Coverage Period Anniversary. Neither Party may remove Covered Products except upon Coverage Period renewal or extension or Coverage Period Anniversary; provided that Hexagon may additionally remove Covered Products as part of a general discontinuance program at any time upon one hundred eighty (180) days’ written notice. Customer may not remove from the Support Contract individual software licenses of a Covered Product for which Customer has multiple copies under Maintenance Services or for Covered Products that are being used interdependently, unless Customer has first certified to Hexagon on a “Software Relinquishment Agreement” that it surrenders and relinquishes all rights in and to the applicable Software licenses and the copies of the Covered Product for which Customer desires to cease Maintenance Services (the “Relinquished Licenses”) for the renewal Coverage Period have been uninstalled and removed from its system(s). Should Customer desire to resume usage of the Relinquished Licenses at a later date, Customer must re-purchase the licenses at the then current list price.
PAYMENT
Terms of Payment. Charges for Maintenance Services are due and payable annually and in advance. All charges are due net thirty (30) calendar days from the date of invoice or prior to the beginning of the applicable Coverage Period, whichever is earlier. Charges for Covered Software Products added during a Coverage Period shall be prorated to the remaining Months of the Coverage Period, in whole Month increments only, and such charges shall be due and payable in full upon receipt of invoice. Covered Third Party Products added during a Coverage Period are subject to Section 8 of these Support Terms.
Past Due Accounts. HEXAGON RESERVES THE RIGHT TO REFUSE SERVICE TO ANY CUSTOMER WHOSE ACCOUNT IS PAST DUE. At the discretion of Hexagon, Customers who have not paid any charges when due (i) under the Support Contract, (ii) under any other agreement between the Parties, or (iii) under any agreement between Hexagon and Customer’s parent and/or subsidiary, may not be rendered Maintenance Services until all past due charges are paid in full. The start of the Coverage Period shall not be postponed due to delayed payment of any charges.
Customer’s Responsibilities Concerning Invoice Questions. Subject to applicable law, if Customer intends to dispute a charge or request a credit, Customer must contact Hexagon within ten (10) calendar days of the date on the invoice. Customer waives any right to dispute a charge or receive a credit for a charge for Maintenance Services that Customer does not report within such period.
CUSTOMER ACKNOWLEDGEMENTS
During the Coverage Period, Customer commits to the following:
Customer shall have reviewed the Order Documents and by executing the Order Documents confirms the Order Documents accurately reflects all Hexagon software in its possession or control Customer acknowledges and confirms that for all Covered Products supported under the Support Contract, all licenses of a Covered Product for which Customer has multiple copies in its possession and all prerequisite licenses necessary to operate Covered Products, are accounted for in the Order Documents. If all like Covered Products or prerequisite software licenses are not accounted for in the Order Documents, Customer agrees to notify Hexagon so that Hexagon may issue a revised Quote to Customer.
Customer acknowledges and confirms Maintenance Services provided herein shall be utilized only for the quantity of Covered Products licenses listed in the Order Documents.
Customer shall, and Customer shall cause each of Customer’s employees and representatives to, comply with each and every term and condition of the EULA applicable to the Covered Products supported under the Support Contract.
INTELLECTUAL PROPERTY
Software License. Any Updates furnished hereunder shall remain the property of Hexagon, Hexagon’s Affiliate, or applicable third party, and are licensed in accordance with the then current Hexagon EULA, EULA of Hexagon’s Affiliate, or third party SLA, which shall supersede any EULA or SLA associated with prior releases of the Software Products or Third Party Software. Upon Customer’s request, Hexagon shall provide Customer with such EULA or SLA. Upon Hexagon’s request, Customer agrees to execute a EULA or SLA, as applicable, for Covered Products.
Confidential Information. Hexagon and Customer each acknowledge that they may be furnished with, receive, or otherwise have access to information of or concerning the other Party which such Party considers to be confidential, proprietary, a trade secret or otherwise restricted.
Each Party 's Confidential Information shall remain the property of that Party or relevant third party except as expressly provided otherwise by the other provisions of the Support Contract. Customer and Hexagon shall each use at least the same degree of care, but in any event no less than a reasonable degree of care, to prevent disclosing to third parties the Confidential Information of the other as it employs to avoid unauthorized disclosure, publication or dissemination of its own information of a similar nature.
The Parties shall take reasonable steps to ensure their respective employees comply with these confidentiality provisions. A Party shall not be considered to have breached its obligations by disclosing Confidential Information of the other Party as required to satisfy any legal or judicial requirement provided that, immediately upon receiving any such request and to the extent that it may legally do so, such Party advises the other Party promptly and prior to making such disclosure in order that the other Party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.
PERSONAL DATA.
Where Personal Data is provided by the Customer to Hexagon, the Customer shall act as the data controller and shall be responsible for complying with all applicable data protection laws. Hexagon shall act as the data processor in respect of such Personal Data and shall process the Personal Data in accordance with applicable data protection laws. The Customer acknowledges and agrees that Hexagon is not capable of being a data controller due to Hexagon’s inability to determine the purpose and means of the processing of Personal Data provided by Customer to Hexagon. To the extent that: (a) Personal Data of Users provided by the Customer to Hexagon pursuant to this Support Contract is subject to the European Union General Data Protection Regulation 2016/679, as may be amended from time to time (“GDPR”); and (b) the Customer and Hexagon do not have a separate, written data processing agreement, then the Customer and Hexagon agree that the terms of Hexagon’s Data Processing Addendum, as updated from time to time, found at https://www.hexagonsafetyinfrastructure.com/-/media/Legal/Hexagon/SI/Policies/DPA/DPALP/DPA_LP_08-2019.pdf, shall apply.
Where Customer is responsible for providing Personal Data on behalf of Users directly to Hexagon, Customer will secure and maintain all necessary consents and make all necessary disclosures before including Personal Data in Customer’s Data input to, or otherwise supplied to Hexagon. In the event Customer, including all its Users, does not consent to Personal Data being processed as a result of this Support Contract, Customer acknowledges Hexagon may be unable to provide services, Software Products, and/or Maintenance Services (or part thereof).
Hexagon will only process Customer supplied Personal Data in accordance with the Customer’s lawful instructions and to the extent and as necessarily required to provide the applicable goods and services under this Support Contract and for no other purpose. Except as may be otherwise required by law, contract, or judicial order, after expiration or earlier termination of this Support Contract, Hexagon will destroy all Customer-supplied Personal Data in accordance with applicable data protection laws.
If Hexagon supplies maintenance, support, or subscription services to Customer with respect to third-party products, and if the third-party supplier or proprietor of such requires Customer be party to any data processing agreement in connection therewith, and if Customer has not separately executed an instrument to satisfy such requirement, then Customer and Hexagon agree that the terms of the applicable third-party data processing agreement, as updated from time to time, found at https://www.hexagonsafetyinfrastructure.com/-/media/Legal/Hexagon/SI/Policies/DPA/DPALP/DPA_LP_08-2019.pdf, shall apply.
LIMITED WARRANTIES; WARRANTY DISCLAIMERS
Limited Warranties.
Hexagon Maintenance Services Warranty. Hexagon warrants for a period of thirty (30) days from the date of Maintenance Services that the Maintenance Services provided pursuant to the Support Contract, in the form of a Defect correction and/or services, will be performed with reasonable skill and care in accordance with the requirements set forth herein, provided the Covered Products for which the Maintenance Services are provided are used under normal conditions and in strict accordance with the terms and conditions herein. Customer agrees to promptly notify Hexagon of any unauthorized use, repair, modification, or misuse, as well as suspected defects in any Maintenance Services provided pursuant to the Support Contract.
Hexagon Software Warranty. Hexagon warrants for a period of thirty (30) days from the date of shipment of any Updates that, under normal use, software delivery media shall be free from defect in material or workmanship. Additional warranties for Software Products may be provided in the applicable Order Documents between the Parties governing the delivery of Software Products.
Pass-Through Third Party Warranties. Third Party Software is only warranted pursuant to a pass-through warranty to Customer from the applicable Third Party Software manufacturer and only to the extent warranted by the applicable Third Party Software manufacturer.
NO OTHER WARRANTIES. THE ABOVE LIMITED WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND REPRESENT THE FULL AND TOTAL OBLIGATION AND/OR LIABILITY OF HEXAGON. THE LIMITED WARRANTIES PROVIDE CUSTOMER WITH SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE OTHER RIGHTS, WHICH VARY JURISDICTION TO JURISDICTION. IF A GREATER WARRANTY IS MANDATED PURSUANT TO THE LAW HELD APPLICABLE TO THE SUPPORT CONTRACT, THEN HEXAGON WARRANTS THE SERVICES OR COVERED PRODUCTS TO THE MINIMUM EXTENT REQUIRED BY SAID LAW.
Remedies. In the event a warranted Maintenance Service, Covered Product, or Update provided pursuant to the Support Contract does not substantially comply with the limited warranties set forth in the Support Contract, Hexagon’s entire liability and Customer’s exclusive remedy shall be, in Hexagon’s sole and absolute discretion, either (i) providing of a Maintenance Service, Covered Product, or Update which conforms substantially with the warranty; or (ii) a refund of the purchase price of the particular warranted Maintenance Service, Covered Product, or Update for the period of time that the warranted Maintenance Service, Covered Product, or Update did not substantially conform to the limited warranties set forth in the Support Contract.
Hexagon is acting on behalf of its suppliers for the sole purpose of disclaiming, excluding and/or limiting obligations and liability as provided in the Support Contract, but in no other respects and for no other purpose.
WARRANTY DISCLAIMERS. Any warranties hereunder are void if failure of a warranted item results from unauthorized modification or repair of a warranted item; or misuse of a warranted item. EXCEPT AS SPECIFICALLY SET FORTH IN THE SUPPORT CONTRACT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEXAGON AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, RELATING TO THE MAINTENANCE SERVICES, COVERED PRODUCTS, AND UPDATES PROVIDED PURSUANT TO THE SUPPORT CONTRACT, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Hexagon does not warrant that any Maintenance Services, Covered Products, and Updates provided pursuant to the Support Contract will meet Customer’s requirements, and under no circumstances does Hexagon warrant that any Maintenance Services, Covered Products, and Updates will operate uninterrupted or error free. If any part of this disclaimer of express or implied warranties is ruled invalid, then Hexagon disclaims express or implied warranties to the maximum extent allowed by applicable law. 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.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HEXAGON OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE OR PRODUCTION, LOSS OF REVENUE OR PROFIT, LOSS OF DATA, LOSS OF BUSINESS INFORMATION, BUSINESS INTERRUPTION, CLAIMS OF THIRD PARTIES OR ANY OTHER PECUNIARY LOSS ARISING OUT OF THE SUPPORT CONTRACT, EVEN IF HEXAGON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HEXAGON’S ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SUPPORT CONTRACT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO HEXAGON DURING THE PAST TWELVE MONTHS UNDER THE SUPPORT CONTRACT AS OF THE DATE THE EVENT GIVING RISE TO THE CLAIM OCCURS. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, NO CLAIM, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THE SUPPORT CONTRACT MAY BE BROUGHT BY CUSTOMER MORE THAN TWO (2) YEARS FOLLOWING THE INITIAL EVENT GIVING RISE TO THE CAUSE OF ACTION. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER. IF ANY PART OF THIS SECTION IS HELD INVALID, THEN HEXAGON LIMITS ITS LIABILITY TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.
TERMINATION
The Support Contract may only be terminated prior to its expiration in the following ways:
By either Party if the other Party petitions for reorganization under the Bankruptcy Act or is adjudicated as bankrupt, or a receiver is appointed for the other Party’s business.
By Hexagon if Customer fails to pay Hexagon any amount when due (i) under the Support Contract; or (ii) under any other agreement between the Parties.
By Hexagon if Customer’s license to the Covered Products for which Customer has purchased Maintenance Services is terminated.
RESTRICTIONS
United States Government Restricted Rights. If a Covered Product (including any Updates, Documentation or technical data related to such Covered Products) is licensed, purchased, subscribed to or obtained, directly or indirectly, by or on behalf of a unit or agency of the United States Government, then this Section also applies.
For civilian agencies: The Covered Product was developed at private expense and is “restricted computer software” submitted with restricted rights in accordance with the Federal Acquisition Regulations (“FAR”) 52.227-19 (a) through (d) (Commercial Computer Software – Restricted Rights).
For units of the Department of Defense (“DoD”): The Covered Product was developed at private expense and is “commercial computer software” submitted with restricted rights in accordance with the Defense Federal Acquisition Regulations (“DFARS”) DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation).
Notice: The Covered Product is “commercial computer software” as defined in DFARS 252.227-7014 (Rights in Noncommercial Computer Software) and FAR 12.212 (Computer Software), which includes “technical data” as defined in DFARS 252.227-7015 (Technical Data) and FAR 12.211 (Technical Data). All use, modification, reproduction, release, performance, display or disclosure of this “commercial computer software” shall be in strict accordance with the manufacturer’s standard commercial license, which is attached to and incorporated into the governing U.S. Government contract. Hexagon and any applicable Third Party Software manufacturers are the manufacturers. The Covered Product is “unpublished” and all rights are reserved under the Copyright Laws of the United States.
Export Restrictions. All Software Products and all Third Party Software (including any Updates, Documentation or technical data related to such software products) licensed, purchased, subscribed to or obtained, directly or indirectly, from Hexagon, its subsidiaries or distributors (collectively, “Export Controlled Products”) are subject to the export control laws and regulations of the United States. Diversion contrary to United States law is prohibited. The Export Controlled Products, and the direct product thereof, shall not be exported or re-exported, directly or indirectly (including via remote access), under the following circumstances:
To Cuba, Iran, North Korea, Syria, the Crimean region of Ukraine, or any national of these countries.
To any person or entity listed on any United States government denial list, including but not limited to, the United States Department of Commerce Denied Persons, Entities, and Unverified Lists (www.bis.doc.gov/complianceandenforcement/liststocheck.htm), the U.S. Department of Treasury Specially Designated Nationals List (www.treas.gov/offices/enforcement/ofac/), and the U.S. Department of State Debarred List (http://www.pmddtc.state.gov/compliance/debar.html).
To any entity if Customer knows, or has reason to know, the end use of the Export Controlled Product is related to the design, development, production, or use of missiles, chemical, biological, or nuclear weapons, or other unsafeguarded or sensitive nuclear uses.
To any entity if Customer knows, or has reason to know, that an illegal reshipment will take place.
Any questions regarding export or re-export of an Export Controlled Product should be addressed to Hexagon’s Export Compliance Department, 305 Intergraph Way, Madison, Alabama, United States 35758 or at [email protected].
Anti-Bribery. Each Party hereby certifies it shall comply with all applicable laws in carrying out its duties under this Agreement, including, but not limited to, the United States Foreign Corrupt Practices Act (“FCPA”). In particular, Customer, on behalf of itself and its Affiliates, and Hexagon, each severally represent and agree that: such Party is familiar with the FCPA and its purposes and agrees to comply with the acts. Specifically, such Party is aware of and will comply with the FCPA’s prohibition of the payment or the gift of any item of value, either directly or indirectly, to an official of a government, political party or party official, candidate for political office, or official of a public international organization, for the purpose of influencing an act or decision in his/her official capacity, or inducing him/her to use his/her influence with the government to assist a company in obtaining or retaining business for, with, or in that country or directing business to any person; such Party has not made, and will not make, payments to third parties which such Party knows or has reason to know are illegal under the FCPA, or the laws of any applicable jurisdiction; and, the method of making payment to Hexagon as provided hereunder is not in violation of the law of any applicable jurisdiction. Either Customer or Hexagon has the right to terminate the Support Agreement upon any violation of the FCPA or similar laws by the other Party.
TAXES
All charges under the Support Contract are exclusive of each and every country’s federal, provincial, state, municipal, or other governmental, withholding, excise, sales, use, value added or other taxes, tariffs, custom duties and importing fees (“Taxes”). Customer shall be liable for, and to the extent allowed by applicable law, shall indemnify and hold Hexagon harmless from and against, any and all Taxes. Taxes shall expressly exclude any federal, state, municipal, or other governmental income taxes, franchise taxes, business license fees and other like taxes measured by Hexagon’s income, capital and/or assets. The total invoice amount for charges under the Support Contract is subject to increase by the amount of any Taxes which Hexagon is required to withhold, collect, or pay regarding the transactions under the Support Contract so that Hexagon receives the full amount of the charges on Hexagon’s invoices. Any certificate to exempt the Support Contract from tax liability or other documentary evidence of statutory exemption shall be obtained by Customer at Customer’s expense.
ADDITIONAL TERMS
Third Party Providers. Hexagon reserves the right to provide Maintenance Services through a third party provider.
Non-Solicitation of Employees. Customer agrees it will not, without the prior written consent of Hexagon, solicit any Hexagon employee, or induce such employee to leave Hexagon’s employment, directly or indirectly, during the Term and for a period of twelve (12) Months after the Support Contract expires or is terminated.
Authority. Each Party represents and certifies to the other Party it has the requisite legal authority to enter into and be bound by the Support Contract.
Entire Support Contract. The Support Contract constitutes the entire agreement between the Parties relating to the subject matter hereof. Except as otherwise provided in Order Documents, the Support Contract supersedes any and all prior discussions and/or representations, whether written or oral, relating to the subject matter of the Support Contract and no reference to prior dealings may be used to in any way modify the expressed understandings of the Support Contract. Hexagon does not accept any contradictory or additional terms and conditions, even by accepting a Purchase Order referencing different terms and conditions. The Support Contract may be amended only by a written instrument signed by authorized representatives of both Parties and cannot be amended by subsequent Purchase Order or writing received from Customer without the express written consent of Hexagon. Any reproduction of the Support Contract made by reliable means (for example, photocopy or facsimile) will be deemed an original.
Order of Precedence. In the event of a conflict between the documents that form the Support Contract, the order of precedence will be as follows: (i) any addenda executed by Hexagon and Customer, with the latest addendum taking precedence over any earlier addenda; (ii) any document forming part of the Order Documents which is executed jointly by Hexagon and Customer; (iii) any Quotation issued by Hexagon and forming part of the Order Documents; (iv) these Support Terms; and, (v) any other document forming a part of the Order Documents.
Severability. Whenever possible, each provision of the Support Contract shall be interpreted in such a manner as to be effective and valid under the applicable law. However, if any provision of the Support Contract shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of the Support Contract.
Headings. The various headings in these Support Terms are inserted for convenience only and shall not affect the meaning or interpretation of these Support Terms or any section or provision of these Support Terms.
No Waiver. Any failure by either Party to enforce performance of the Support Contract shall not constitute a waiver of, or affect said Party’s right to avail itself of, such remedies as it may have for any subsequent breach of the terms of the Support Contract.
Notices. Any notice or other communication (“Notice”) required or permitted under the Support Contract shall be in writing and either delivered personally or sent by overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested. A Notice delivered personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A Notice sent by overnight delivery or express mail shall be deemed given twenty-four (24) hours after having been sent. A Notice that is sent by certified mail or registered mail shall be deemed given forty-eight (48) hours after it is mailed. If any time period in the Support Contract commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given. Hexagon’s address for Notices is Hexagon Safety & Infrastructure, 305 Intergraph Way, Madison, Alabama 35758, Attn: Legal Department, 256-730-2333.
Assignment. Neither Party shall have the right to assign any of its rights nor delegate any of its obligations under the Support Contract without the prior written consent of the other Party, except that Hexagon may assign its rights and obligations under the Support Contract, without Customer’s approval, to (i) an entity which acquires all or substantially all of the assets of Hexagon or the Hexagon division providing a product or service under the Support Contract; (ii) an entity which acquires all or substantially all of the Software Products or product line assets subject to the Support Contract; or (iii) any subsidiary, affiliate or successor in a merger or acquisition of Hexagon. Any attempt by Customer to sublicense, assign or transfer any of Customer’s rights or obligations under the Support Contract, except as expressly provided in the Support Contract, is void.
Force Majeure. Except for payment obligations under the Support Contract, neither party shall be liable for any failure to perform or observe any of its obligations under the Support Contract for as long as and to the extent that such performance is prevented or hindered by any circumstances beyond its reasonable control. By way of example, and not limitation, such causes may include acts of God or public enemies; labor disputes; acts of local, state, or national governments or public agencies; utility or communications failure; fire; flood; epidemics; third-party criminal acts; riots; or, strikes. The time for performance of any right or obligation delayed by such events will be postponed for a period equal to the delay. If, however, a Party is subject to a force majeure that endures for more than sixty (60) calendar days, the other Party has a right to terminate the Support Contract upon providing thirty (30) calendar days prior written notice to the Party subject to the force majeure.
Governing Law. The Support Contract shall for all purposes be construed and enforced under and in accordance with the laws of the State of Alabama and shall be deemed to have been accepted in Madison, Alabama, United States. The parties agree that any legal action or proceeding relating to the Support Contract shall be instituted in the Circuit Court for Madison County, Alabama, or the United States District Court for the Northern District of Alabama, Northeastern Division. The parties agree to submit to the jurisdiction of and agree that venue is proper in these courts in any such legal action or proceedings. The Support Contract shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
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 the Support Contract.
Injunctive Relief; Cumulative Remedies. Customer acknowledges and agrees that a breach of the Support Contract 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 the Support Contract 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 the Support Contract are cumulative and concurrent and may be pursued separately, successively or together.
Governing Language. The controlling language of the Support Contract is English. If Customer has received a translation into another language, it has been provided for Customer’s convenience only.
Survival. The provisions of the Support Contract which require or contemplate performance after the expiration or termination of the Support Contract shall be enforceable notwithstanding said expiration or termination.
Common Terms Glossary EXHIBIT
“Affiliate” means, 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. “Affiliates” means, for government entities which are Customers, an entity which has entered into an intergovernmental agreement with Customer which: (i) relates to or addresses the subject matter of the Principle Contracting Document; and (ii) was disclosed to, and acknowledged by, Hexagon (A) prior to the Effective Date for any existing intergovernmental agreements, and (B) prior to any renewal date of such Principle Contracting Document for any intergovernmental agreements entered into after the Effective Date. “Control” for the purposes of this definition means that Customer owns in excess of fifty percent (50%) of the ownership interest of the Affiliate or owns a majority of the voting shares of the Affiliate. “Confidential Information” means 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 the Disclosing Party considers confidential or proprietary and is not generally known in the industry or to competitors of the Disclosing Party and which shall include: (i) tangible information marked by the Disclosing Party with the word "Confidential" or otherwise identified by an appropriate stamp or legend indicating its confidential nature; (ii) Confidential 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; and (iii) all other information that, notwithstanding the absence of markings or designations, would be understood by the Parties, exercising reasonable business judgment, to be confidential. The term Confidential Information does not include information that: (i) is or becomes available in the public domain through no act of the Receiving Party; (ii) has been received on a non-confidential basis from a third party without breach of the Principle Contracting Document, where the Receiving Party has no reason to believe that such third party is bound by any confidentiality obligation to the Disclosing Party; (iii) was developed independently by the Receiving Party without reliance on the disclosed Confidential Information, provided that such independent development can be substantiated; or (iv) is confirmed by the Disclosing Party as not being confidential in writing. “Coverage Period” means the period of performance of Maintenance Services with respect to a Covered Product, as stated in the Order Documents. Coverage Periods may differ for discrete Covered Products. “Coverage Period Anniversary” means, in the case where the Coverage Period is greater than one (1) year, the anniversary of the date on which the Coverage Period commenced. “Covered Products” means collectively, Covered Software Products and Covered Third Party Products. “Covered Software Product(s)” means Software Product(s) identified in the Order Documents as software for which Maintenance Services are to be provided by Hexagon. Covered Software Products shall not include Third Party Software or any Cloud Program. “Covered Third Party Products” means Software Product(s) identified in the Order Documents as Third Party Software for which Maintenance Services are to be provided by Hexagon. Covered Third Party Products shall not include Software Products or any Cloud Program. “Customer” means the non-Hexagon party to the Principle Contracting Document. “Customer Data” means all electronic data or information: (i) provided by Customer to Hexagon in connection with the Deliverables provided pursuant to an Order; and/or (ii) created by Customer and/or Users. “Customer Data” shall not mean data which (i) is not peculiar to Customer, and/or (ii) is of value to the general implementation, development, operation, or use of Hexagon products or services for the benefit of other customers. For the avoidance of doubt, Customer Data shall not include the Software Products, Documentation written by Hexagon, and any other data and information constituting a Hexagon Deliverable. “Defect” means a reproducible instance of an adverse and incorrect functioning of a Software Product that impacts the ability to use functionality intentionally integrated in the design of the Software Product, assuming proper usage of the Software Product in its required operating environment. Defects are further classified into four levels as follows:
Level
Impact of Defect
Level One
No workaround available and either:
Loss of data
Data corruption
Productive use prohibited, or
Aborts.
Level Two
No workaround available and either:
Primary purpose compromised, or
Productive use significantly impacted
Level Three
Productive, but incomplete operation
Level Three Defects generally have a workaround or do not otherwise substantially impair productive use.
Level Four
Defects not qualifying as Level One, Two, or Three, including defects of a cosmetic nature and defects not materially limiting complete productive use Customer shall classify a Defect in accordance with the foregoing; provided that, Hexagon shall reclassify the Defect as appropriate following its review thereof. “Deliverable(s)” means all Services Deliverables, software, hardware, and other items delivered or to be delivered by Hexagon to Customer and identified in the Order. “Documentation” means, whether in electronic or printed form, User's Guides, Reference Guides, Administrator's Guides, Configuration Guides, and Help Guides made available at the support website (https://support.hexagonsafetyinfrastructure.com) for Software provided by Hexagon to the Customer. Not all of the types of Software are provided with Documentation or with similar Documentation. “Effective Date” means the date and time the last Party is on notice that all Parties have accepted the Principle Contracting Document. “EULA” means the End-User License Agreement provided with Software Products. “Hexagon” means Intergraph Corporation doing business as Hexagon Safety & Infrastructure. “Intellectual Property” or “IPR” means 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, documentation, 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. “Lapse” means an occurrence of any period of time, regardless of duration, during which (i) a Covered Product is not the subject of an active Order for Maintenance Services or other Support Contract and an active Coverage Period, and/or (ii) payment is past due to Hexagon under a Support Contract. Extension of a Coverage Period and/or payment to Hexagon after the occurrence of a Lapse shall not negate a Lapse, absent Hexagon’s express written waiver. “Maintenance Services” means those services described in the Support Terms” provided by Hexagon with respect to Software and other Deliverables licensed to Customer and identified in the Order Documents as the subject of Maintenance Services. “Month” means, unless otherwise stated in the applicable provision, a calendar month. “Order” means Order Documents that have been executed and/or accepted by both Parties documenting the purchase of any item or service and referencing the Principle Contracting Document. “Order Documents” shall mean written documents, the terms of which include Hexagon’s commitment to provide products, licenses, and/or services at a specified price, subject to the terms and conditions of the Principle Contracting Document. Order Documents may consist of a single document executed by the parties or a combination of documents that together form an Order. “Personal Data” means data, including but not limited to criminal justice information, and other information which corresponds to a living individual person defined to be Personal Data under the applicable Personal Data protection laws of the Customer’s jurisdiction. “Principal Contracting Document” means the contract document accepted by the Parties which references and incorporates this Terms Glossary and/or references and incorporates a document to which this Terms Glossary is an exhibit or attachment. “Product Change Request” means a request for additional functionality or modification to the purchased Covered Products. “Production” means, as applicable, where a Subsystem is used in production/operation with an aim to accomplish one or more of its ultimate intended purposes. Operation solely for testing or training is not Production. “Purchase Order” or “PO” means a document issued by Customer to Hexagon to authorize the delivery of certain Services or Deliverables. “Quote” means a document issued by Hexagon reflecting Maintenance Services and/or Deliverables, which Hexagon offers to provide Customer, as well as the prices and fees therefor and the Customer’s name and location. To the extent any document or information is identified in the Quote with the intention of it being incorporated into the Quote, it will form part of the Quote. “Software” means the software owned by Hexagon or an Affiliate and Third Party Software that is licensed to Customer. “Software Product” means the Hexagon software product(s) identified in the Order Documents and subject to the EULA, which includes (i) any associated Hexagon files or 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 not made the subject of a separate license agreement. The term Software Products shall not include, and no rights of use are granted to User for, Third Party Components, Hexagon products, or dependencies unnecessary to operate products made the subject of the Order Documents, but incidentally delivered within the same files or media. Software Product shall not mean any Third Party Software. For the avoidance of doubt, Cloud Programs and their contents are not “Software Products” as that term is used herein. Software Products are subject to all of the terms and conditions of the End-User License Agreement which the Parties agree will apply to the same; and in the absence of such agreement, then the terms of the End-User License Agreement provided with the Software Product. “Subsystem” means a Hexagon solution that is designed to provide a specific capability independent of the procurement of any other Subsystem. Hexagon’s computer aided dispatch system (“I/CAD”), records management system (“RMS”), field based reporting (“FBR”), G/Technology (G/Tech), In/Service and mobile for public safety (“MPS”) are each an example of a Subsystem. “Support Contract” means a contract under which Hexagon provides Maintenance Services to Customer in relation to Covered Products and under which Customer is to compensate Hexagon therefor. “System Equipment” means all computer-related hardware, including but not limited to, servers, workstations, cables, mice, keyboards, cameras, and SAN’s; operating system software; database software; and other third party software. “Term” means the duration of performance under the Support Contract. “Third Party Software” means computer software or other technology in which any person or entity, other than Hexagon or Hexagon’s Affiliate, has any right, title or interest, including any restrictions or obligations (such as obligations to obtain consents or approvals and restrictions that may be eliminated only by obtaining such consents or approvals) applicable to the computer software or technology, but does not include software embedded in the Software Products by license from third parties. The use of Third Party Software is subject to all of the terms and conditions of the third party’s software license or similar agreement (“SLA”) provided with the Third Party Software. “Update” means any Upgrade, modified version, fix, patch and/or update of the Software Product. Updates not meeting the definition of Upgrades are subject to all of the terms and conditions of the EULA provided with User’s then current version of the Software Product. “Upgrade” means each new release of the Software Product. Upgrades require a full installation and may be provided with a separate EULA. Any EULA delivered with the Upgrade will supersede any EULA associated with prior releases of the Software Product. “User” means Customer or an individual employed by Customer and authorized by Hexagon to use a particular Software Product or Third Party Software Product on behalf of the Customer. A User may also include Customer’s contractor who requires temporary use in order to provide services on Customer’s behalf. A person can only be authorized and a User if the person is an employee or designee of Customer and Customer has purchased the requisite number of licenses for that User. “Version Limitation I” is a status reached by a Software Product version on the third anniversary of the Customer’s first operation of that version in a live production environment. “Version Limitation II” is a status reached by a Software Product version on the fourth anniversary of the Customer’s first operation of that version in a live production environment, or upon the Customer’s failure to commence live operation prior to the availability of two newer versions of the Software Product. “Version Limitations” means, separately and collectively, limitations on Services to be provided hereunder based upon a Covered Product reaching Version Limitation I and/or Version Limitation II.
Hexagon U.S. Support Terms and Conditions
SI092019-M Page 1
EXHIBIT C