The language of all parts of the Agreement shall in all cases be considered as a whole, according to its fair meaning, and no t strictly for or against any of the parties. The parties hereby acknowledge and agree that the language of the Agreement shall be considered jointly drafted.
12.14.Subcontractors. Trimble may use subcontractors in the performance of its obligations under the Agreement, and will be responsible for the acts and omissions of its subcontractors in their performance of Trimble’s obligations in the Agreement.
12.15.No Third-Party Beneficiaries. Except as may be expressly stated in any Supplemental Terms, there are no third -party beneficiaries under the Agreement.
12.16.Independent Contractors . Each party is an independent contractor of, and is not an employee, agent, fiduciary, or authorized representative of, the other party.
12.17.Entire Agreement. The Agreement sets forth the entire understanding between the parties in connection with its subject matter, and supersedes all prior or contemporaneous proposals, communications, agreements, negotiations, and representations, whether written or oral, regarding the subject matter thereof. Any additional, contrary, and/or pre-printed terms or conditions appearing on Customer’s acceptance, orders, or associated purchase documentation are hereby rejected and will be of no effect.
12.18.Counterparts. The Agreement, or portions thereof, may be executed in several counterparts and, if applicable, by each party on a separate counterpart, each of which, when so executed and delivered will be an original, but all of which together will constitute but one and the same instrument. A si gnature, digital signature, or electronic signature delivered through other means (e.g., email) shall have the same force and effect as an original ink signature.
ATTACHMENT A
Exhibit A
Trimble Entities; Governing Law; Exclusive Venue/Jurisdiction
Customer Location* Trimble Entity and Notice
Address**
Governing Law Exclusive
Venue/Jurisdiction
United States
Trimble Inc.
10368 Westmoor Drive
Westminster, CO 80021 USA
State of Delaware State and Federal Courts
located in Wilmington,
Delaware, USA
Belgium Trimble Belgium BV,
Geldenaaksebaan 329 3001
Leuven, Belgium
Belgium Courts in Brussels,
Belgium
Canada Trimble Canada Corporation
600-1741 Lower Water Street
Halifax, Nova Scotia B3J 0J2,
Canada
Province of Ontario, and the
federal laws of Canada
applicable therein
Provincial and federal
courts located in
Toronto, Ontario
France Trimble France S.A.S.
1 quai Gabriel Péri
94340 Joinville-le-Pont,
France
France Courts in Paris, France
Any other country or
geography not
specified above
Trimble Europe B.V.
Industrieweg 187a,
5683 CC Best,
The Netherlands
The Netherlands Courts of Amsterdam,
the Netherlands
* Customer location is Customer’s billing address specified on the Order, or if none, then the address provided by Customer to Trimble when registering its online account. ** Addresses for Trimble entities not listed shall be as set forth on the Order or SOW. See additional required notice address for Trimble in Section 12.5 (Notices).
ATTACHMENT A
Exhibit B
Region-Specific Terms
Table of Contents
● Australia
● France
● The Netherlands
Australia
For Customer who purchase Offerings in Australia, the following provisions apply:
(a) For the purposes of this section, “Australian Consumer Law” means the Australian Consumer Law set out at Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended from time to time, and “ Non-excludable Condition” means the consumer guarantees, warranties, rights, or remedies under the Australian Consumer Law that cannot be limited, excluded, restricted, or modified, and to which Customer may be entitled. (b) To the extent permitted by Law, Trimble’s liability in relation to breach of any such Non- excludable Condition shall be limited, at its option, as follows: (i) in the case of the goods, to repairing or replacing the goods, supplying equivalent goods, or paying the costs of repairing or replacing the goods or acquiring equivalent goods; and (ii) in the case of the services, to re-supplying the services or paying the cost of re-supplying the services. (c) Nothing in the Agreement excludes, restricts or modifies any Non-excludable Condition.
Nothing in the Agreement is intended to derogate from Trimble’s obligations under the Privacy Act 1988 (Cth) as amended from time to time.
(e) Where Order(s) are a “Small Business Contract” within the meaning of the Australian Consumer Law:
(i) Trimble shall not accelerate Customer’s unbilled future fees under any Order(s); (ii) Customer’s indemnification obligations under the Agreement are reduced to the extent Trimble’s acts or omissions contributed to or caused the claims, costs, damages, losses, liabilities, and expenses suffered by Customer;
(iii) Trimble’s liability in relation to breach of any Non-excludable Condition will be an Excluded Claim; and (iv) No dispute or legal action arising under the Agreement may be brought by either party more than three years after such cause of action accrued.
France
Section 3.4 is hereby amended and restated to read as follows:
Section 3.4 Late payments will bear interest at the rate of 1.5% per month or the minimum rate allowed by Law (currently three (3) times the legal interest rate), whichever is higher, measured from the date on which the sums concerned became due until the date on which full payment is received. Collection fees of a minimum amount of 40 € will be added in accordance with Article L. 441-10.II of the Commercial Code. Customer will be liable for all other costs of collection of past due amounts (including court costs and attorney's fees incurred by Trimble). If the Customer does not dispute an invoice amount in writing by the due date of the invoice, the Customer shall be deemed to have acknowledged the accuracy of such invoice and waived its right to dispute it.
A dispute over part of an invoice or amount due shall entitle the Customer to withhold or delay payment of the disputed part only.
The following is hereby added as Section 7.1 (e ):
(e) EACH PARTY HEREBY HAS AN OBLIGATION TO LIMIT THE DAMAGES IT MAY SUFFER IN THE EVENT OF A BREACH OF ITS OBLIGATIONS BY THE OTHER PARTY.
ATTACHMENT A
The Netherlands
The provisions of Section 4.2 (Termination) are the sole grounds for the termination of the Agreement, and to the extent permitted by Law, the right of Customer to rescind the Agreement and claim damages on the basis of statutory Law (including but not limited to sec. 6:265 Dutch Civil Code) is excluded.
THE LIMITATION OF LIABILITY IN SECTION 7 FOR A PERIOD OF 12 MONTHS EXPRESSLY INCLUDES ANY OBLIGATION TO PAY
COMPENSATION UNDER A WARRANTY MENTIONED IN THESE TERMS OR RELATED CONTRACTS OR DOCUMENTS AND THE RESTITUTION OBLIGATIONS (ONDEDAANMAKINGSVERPLICHTINGEN) AND INDEMNIFY FOR DAMAGES. LIABILITY FOR DEATH OR PERSONAL INJURY SHALL NOT EXCEED EUR 1.250.000.
The applicability of section 6:227b subsection 1 and section 6:227c subsection 1 of the Dutch Civil Code are excluded in any Agreement between Trimble and any person who is not a consumer.
ATTACHMENT A
Addendum #3
Supplemental Terms for Software and Subscriptions
Version 1.1 (Last Updated: October 7, 2023)
1. Definitions. Capitalized terms not defined herein have the meanings given in the General Terms.
1.1. “ Active Project” means any Project on which the Software may be used by Customer during any Annual Subscription Term.
1.2. “Annual Subscription Term” means each 12-month period of a Subscription Term.
1.3. “ Anonymized Data” means any data collected in connection with the Offerings (including Customer Data) that has been aggregated and/or de- identified in such a manner that neither Customer nor any of its Authorized Users or any other individual can be identified from the da ta when it is shared outside of Trimble or its Affiliates.
1.4. “Authorized User” means any employee of Customer or third-party user authorized by Customer to access and use the Offerings on Customer’s behalf in accordance with the Agreement, including, without limitation, Section 6.6 (Third-Party Access).
1.5. “Correction Services” means subscription-based services that provide GNSS position correction data.
1.6. “Concurrent User” means any type of User authorized by Customer to access and use the Offerings on Customer’s behalf simultaneously at a given point in time.
1.7. “Customer Data” means any information, documents, materials, or other data of any type that is input by or on behalf of Customer into the Offerings or that is created or generated by Customer through Customer’s use of the Offerings, including without limitation information or data that is submitted manually by Authorized Users or through a Third-Party Platform. For clarity, Customer Data expressly excludes Usage Data.
1.8. “Customer Group” means Customer’s business units, Affiliates, or Joint Ventures, if any, listed in the Order that may authorize Authorized Users to use the Offerings on behalf of those business units, Affiliates, or Joint Ventures.
1.9. “ Gross Annual Revenue ” or “GAR ” means Customer's (and Customer Group's, if applicable) income and revenue from all sources, before expenses or taxes, calculated on an annual basis according to generally accepted accounting principles and as reported in company financial statements. The various equivalent definitions may be used interchangeably.
1.10. “ Joint Venture ” means a business arrangement in which Customer and one or more other third parties agree to pool their resources to accomplish a Project or other commercial enterprise.
1.11. “License Keys” means electronic passwords, authorization codes, or other enabling mechanisms provided for use with the Offerings.
1.12. “Named User” means any type of Authorized User designated by Customer by name or other identifier to access and use the Offerings on Customer’s behalf.
1.13. “P
rohibited Data ” means any (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“ HIPAA”); (b) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS); (c) information subject to regulation or protection under the Children’s Online Privacy Protection Act or Gramm - Leach Bliley Act, or (d) any other information which is regulated under Laws and is not required for use of the Software for its intended purpose.
1.14. “P roject ” means the initiation, delivery, operations, and maintenance of a construction project.
1.15. “Provision Date” means the date on which Trimble first provides access to the Offerings. For an Offering bundle comprised of multiple Software, the Provision Date will be the date on which the entire Offering bundle becomes fully provisioned.
1.16. “Subscription” means access to any Software, Support, Correction Services, content, data, or other information, in each case made availab le for the applicable Subscription Term(s).
1.17. “Support Terms” means the then-current Supplemental Terms for Support and Maintenance available at https://www.trimble.com/en/legal/customer-terms o r any successor url.
1.18. “Third-Party Materials” means any third-party data, content, or proprietary software. Third-Party Materials is not part of Software.
1.19. “Project Budget” means the total projected cost allocated to carry out, manage, and complete one or more Active Project(s) over the entire Subscription Term. The various defined terms are equivalent and may be used interchangeably, including in other defined terms.
1.20. “Total Project Value” or “Project Value” means Project Budget divided by the number of Annual Subscription Terms in the Subscription Term (and not any renewal). The various defined terms are equivalent and may be used interchangeably, including in other defined terms.
1.21. “Usage Limitations” means Customer’s authorized scope of use for the Offerings as specified in the applicable Order, Supplemental Terms, or Documentation, which may include any user (e.g., Named User, Concurrent User, etc.), seat, copy, instance, data storage, CPU, computer, field of use, location, project, or other restrictions.
1.22. “Usage Data” means Trimble’s technical logs, data, and learnings about Customer’s use of the Offerings, excluding Customer Data.
2. G
enerally
2.1 Offerings.
(a) Subscriptions (other than Licensed Software). Customer may access and use the Subscriptions during the Subscription Term only for its internal business purposes in accordance with the Documentation, Usage Limitations, and the Agreement. Unless otherwise specified by T rimble, any Licensed Software provided with a Subscription is subject to the terms applicable to Licensed Software under the Agreement. (b) Licensed Software. Trimble hereby grants Customer a non -transferable, non-sublicensable, non-exclusive license, during Term, to install, copy, and use the Licensed Software on systems or devices under Customer’s control only for its internal business purposes in accor dance with the Documentation, Usage Limitations, and the Agreement. Licensed Software is licensed, not sold. Any Licensed Software deployed through hosting services delivered by Trimble are subject to the terms and conditions applicable to Licensed Software.
2.2 Authorized Users. Only Authorized Users may access or use the Offerings. User IDs are granted to individual, named persons, and each Authorize d
User will keep login credentials confidential and not share them with anyone else. Customer is responsible for its Authorized Users’ compliance with the Agreement and actions taken through their accounts. In the event an Authorized User is no longer authorized to use an Off ering on Customer’s behalf, Customer will promptly de- activate such Authorized User’s access. Unless expressly permitted in the Order, Supplemental Terms, or Documentation, Customer may not transfer Authorized User status from one individual to another. Customer will promptly notify Trimble if it becomes aware that any of its Authorized User login credentials have been compromised.
ATTACHMENT A
2.3. Restrictions. Customer will not (and will not permit, encourage, or assist anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense the Offerings to a third party; (b) use the Offerings on behalf of, or to provide any product or service to, third parties; (c) use the Offerings to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to any element of the Offerings, except to the extent expressly permitted by Law (and then only after providing prior written notice to Trimble); (e) modify or create derivative works of the Offerings or copy any element of the Offerings (other than in connection with making copies of Licensed Software authorized under the Agreement); (f) remove or obscure any proprietary notices in the Offerings; (g) publish benchmarks or performance information about the Offerings, except to the extent expressly permitted by Law; (h) interfere with the Offerings’ operation or its use by others, circumvent its access restrictions or, without the prior written permission of Trimble, conduct any security or vulnerability test of the Offerings; (i) transmit any viruses or other harmful materials to the Offerings; (j) submit to the Offerings any information that is inappropriate, defamatory, obscene, salacious, or unlawful, or use the Offerings to defame, harass, stalk, threaten, or otherwise violate the rights of others; (k) use the Offerings to advertise, offer to sell or buy goods, or otherwise for business promotional purposes; (l) for Licensed Software, unless expressly permitted in the Order, Supplemental Terms, or the Documentation, use or host any Licensed Software in a virtual server envir onment, or (m) for Corrections Services, re-broadcast the Corrections Services without the prior written consent of Trimble.
2.4 Free Versions; Trials and Betas. “F
ree Versions” means any Offerings made available to Customer for use without a fee. “Trials and Betas” means any Offerings or any features thereof made available on a evaluation or trial basis or as an alpha, beta, or early access off ering, in any case free or otherwise. Unless otherwise set forth in the Documentation or the Agreement, Customer may only use Free Versions in a non -production environment and for non- commercial purposes, and Trials and Betas may only be u sed solely for Customer’s internal evaluation to determine whether to purchase a license or subscription to the Offerings. The evaluation term for Trials and Betas shall be 30 days unless otherwise designated by Trimble in writing. Free Versions and Trials and Betas are optional, and Trimble may cease making available such Offerings at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Trimble may never release, and their feature s and performance information are Trimble’s Confidential Information. In the event Customer has purchased Services related to any Free Version or Trial and Beta, any unused Services upon any termination or expiration of the applicable term for the Free Version or Trial and Beta shall be forfeit. Notwithstanding anything else in the Agreement: (a) Trimble has no obligation to retain Customer Data used with Free Versions and Trials and Betas; (b) Trimble provides the Free Versions and Trial and Betas “AS -IS” with no warranty, indemnity, se rvice levels, or support; (c) Trimble’s liability for Free Versions and Trials and Betas will not exceed US$50, and (d) either party may terminate access to a Free Version or Trial and Beta, for any reason or no reason, immediately upon written notice to the other party.
2.5 Educational Versions. For any version of the Offerings designated as “educational,” or a similar term, Customer may use the Offerings solely for educational purposes - e.g., by an instructor or a student at an educational institution and while engaged in educational work. Such educational versions may not be used (a) by any other person; (b) by any educational institution for any non- educational purposes; or (c) for any for -profit purpose, including professional work or training offered for a fee, or by commercial entities.
2.6 Delivery. Offerings and License Keys, if any, will be delivered by electronic means unless otherwise specified on the applicable Orde r. Delivery is deemed to occur on the date on which the Offering and License Key, if any, are first made available to Customer.
2.7 Software Activation and Metering; Audits.
(a) Offerings may gather and transmit to Trimble license usage, compliance, and activation data. Customer will not disable, modify, or interfere with the operation of any such functionality of the Offerings. Trimble may use the foregoing information to validate the authenticity of Authorized Users, to confirm Customer’s compliance with the Agreement, to register the Offerings, to monitor and validate com pliance with Usage Limitations, for license metering, and to protect Trimble against unlicensed or illegal use of the Offerings. (b) Upon Trimble’s written request, Customer shall certify in writing that its use of the Offerings is in full compliance with th e Agreement (including any Usage Limitations). In addition to the other license compliance monitoring rights in the Agreement, Trimble, or its authorized representative, may, upon prior reasonable notice of at least ten (10) days, inspect and audit Customer’s records and use of the Offerings to confirm Customer’s compliance with the Agreement. All such inspections and audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with Customer’s business activities. Customer is responsible for such audit costs only in the event the audit reveals that the use is not in accordance with the Usa ge Limitations or other licensed scope of use and for unpaid fees. Customer shall promptly pay all unpaid fees.
3. Data Usage and Ownership.
3.1 O
wnership. Except for Trimble’s limited rights set forth in the Agreement, as between the parties, Customer retains all Intellectual Property Rights in Customer Data. Trimble owns all Intellectual Property Rights in Anonymized Data and Usage Data.
3.2. Limited Usage Rights. Customer hereby grants to Trimble and its Affiliates the non-e xclusive, worldwide, irrevocable, royalty-free right: (i) to use Customer Data during the Term to provide the Offerings, Support, and Services to Customer; (ii) to use and disclose Customer Da ta as otherwise permitted pursuant to the Agreement or any written consent or instructions of Customer; and, (iii) subject to Trimble’s confidentiality obligations in Section 9 (Confidentiality) of the General Terms and all applica ble Data Protection Legislation, to use Customer Data in perpetuity to develop, maintain, and improve the products, software, and services of Trimble or its Affiliates, including, without limitation, analytics, model training, and machine learning.
3.3 Access. Customer will not have access to Customer Data after termination or expiration of the Term, unless otherwise indicated in the Order, Supplemental Terms, or the Documentation, or the parties agree otherwise in writing.
3.4 Confidentiality. In the event of any conflict between the terms of Section 9 (Confidentiality) of the General Terms and this Section 3 (Data Usage and Ownership), the terms of this Section 3 (Data Usage and Ownership) will control.
4. C
ustomer Obligations.
4.1 D ependencies and Compatibilities. If Customer enables Dependencies or Compatibilities with an Offering, Trimble may access and exchange Customer Data with the Dependencies or Compatibilities on Customer’s behalf. Trimble will have no liability or obligations under the Agreement with respect to how any Dependencies or Compatibilities uses or processes Customer Data. If Trimble hosts any Dependency or Compatibilities at Customer’s request, Customer represents and warrants to Trimble that Customer has all rights necessary. Trimble may charge additional fees for such hosting services.
ATTACHMENT A
4.2 No Prohibited Data . Customer will not use the Offerings with Prohibited Data. Customer acknowledges that the Offerings are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Trimble is not a Business Associate as defined under HIPAA.
4.3 Customer Data. Customer is responsible for its Customer Data, including its content, accuracy, and compliance with Laws. Customer represents and warrants that it has made all disclosures and has all rights, consents, and permissions necessary to use its Customer Data with the Offerings and grant Trimble the rights in Section 3 (Data Use and Ownership), all without violating or infringing Laws, third- party rights (including intellectual property, publicity, or privacy rights), or any terms or privacy policies that apply to its Customer Data. If Customer utilizes data fields available in the Offerings to store data not required for the normal use and operation of the Offerings for their intended purpose, Customer a grees that Trimble is not responsible for, and will not be liable in any manner for such data, and Customer assumes all risks associated with, and agrees to hold Trimbl e harmless from and against any and all claims, losses, damages, liabilities, and expenses (including reasonable attorneys’ fee s) related to or arising from, Customer’s use of data fields to store such data.
4.4 Excluded Claims. In addition to the Excluded Claims stated Section 7 (Limitation of Liability) in the General Terms, the following shall als o be Excluded Claims for purposes of the Agreement: Section 10 (Indemnification) of these Software Terms and any breaches of Sections 2.3 (Restrictions) or Section 4 (Customer Obligations) of these Software Terms.
4.5 License Compliance. Customer shall promptly notify Trimble if Customer become aware of (i) any breach of confidentiality obligations regarding the Offerings, or (ii) any infringement (whether actual or alleged) of Trimble's intellectual property rights in the Offerings, or (iii) any unauthorized use of the Offerings by any person, and provide reasonable assistance to Trimble in connection with any suit or proceeding relating to such events.
4.6. Usage Limitations. Customer will comply with all Usage Limitations. If Customer exceeds the Usage Limitations during the Term, Trimble may invoice Customer for the use that exceeded the applicable Usage Limitations at Trimble’s then-current list price, and Customer shall pay in accordance with the Agreement. The parties may also agree on a Usage Limitation adjustment, in which case Customer must sign a new Order and pay the applicable fees.
4.7 Fee Criteria. If the Order states Software is made available based on GAR, Project Budget, Total Project Value, population, specific -depa rtment usage, Affiliate-limitations, or similar criteria (any such criteria, the “Fee Criteria”), the fees for that Software are calculated based on that Fee Criteria as of the date of Order issuance by Trimble. Unless otherwise provided the Order, if the Fee Criteria increases by more than 10% during the Subscription Term, (i) Customer shall promp tly notify Trimble in writing, (ii) Trimble has the right to adjust such fees based on changes in the Fee Criteria and its then-current list price for that Software (including on a prorated basis for the current term), and (iii) Customer shall pay any applicable additional fees upon receipt of the invoice in accordance with the Agreement. At the request of Trimble, Customer will promptly provide documentation satisfactory to Trimble evidencing Customer’s then-applicable Fee Criteria.
5 . Suspension of Access. Trimble may suspend Customer’s access to an Offering, without liability, and in whole or in part, if (a) Customer breaches any Usage Limitations, Sections 2.2 (Authorized Users), 2.3 (Restrictions), 4 (Customer Obligations) or 6.2 (Offering Content); (b) Customer’s account is five (5) business days or more overdue; or (c) immediately if Customer or any of its Authorized Users’ acts or omissions t hreaten the integrity, availability, or security of the Offerings or Trimble’s systems, products, or infrastructure (provided Trimble will use commercially reasonable efforts to provide Customer with advance notice of such suspension where Trimble determines exigent circumstances do not exist). Trim ble will lift such suspension once the related issue or failure is cured to Trimble’s reasonable satisfaction. Fees will continue to apply during the suspension period.
Customer may be prohibited from entering new Customer Data or processing or accessing existing Customer Data and data reports during the suspension period. If Customer attempts to access or manipulate Customer Data utilizing third -party software during suspension, Trimble disclaims and Customer holds Trimble harmless from any responsibility or liability relating to lost or altered Customer Data or related damages.
6. Certain Features. The following provisions apply to the extent applicable to the Offerings.
6.1 T hird-Party Materials . The Offerings may provide Customer with access to Third -Party Materials. Third -Party Materials are not part of the Offerings. To the extent specified by Trimble (including in any Supplemental Terms or Documentation), use of the Third- Party Materials may be subject to additional terms or restrictions (“ Third-Party Terms”). Customer is solely responsible for its compliance with any Third- Party Terms, and failure to comply with such terms may result in termination of Customer’s right to access any features of the Offerings that utilize such Third -Party Materials. If no Third -Party Terms are specified, Customer may use Third -Party Materials solely in support of Customer’s authorized use of the Offerings in accordance with the Agreement.
6.2 Offering Content. “O ffering Content” shall be any Trimble IP or Third-Party Materials made available as data or information through the Offering, whether included as part of the Offering or as a separate subscription. Any Offering Content that is Trimble IP will be deemed part of the Offeri ng.
Any Offering Content that is Third- Party Materials shall be subject to any applicable Third -Party Terms. If no Third -Party Terms apply, then unless otherwise authorized by Trimble in writing or the applicable Documentation, such Third- Party Materials, and any derivative thereof, may only be used or accessed by an Authorized User. Third- Party Materials will be used solely for Customer’s internal purposes during the Term and must be accessed pursuant to a manual Authorized User request. Customer will not: (i) access, extract, or download any Third -Party Materials, or portions thereof, in batch or en masse by any means; (ii) use any device, software, or routine to bypass any hardware or software that prohibits volume requests for information; (iii) sell, offer to sell, rent, sublicense, or transfer any copies of theThird-Party Materials, or portions thereof, to a third party or allow a third party to use the Third-Party Materials; (iv) use the Third-Party Materials to develop services or products for sale or include any portion of the Third-Party Materials in any product or service; (v) use any portion of the Third -Party Materials to create a competitive service, product, or technology; (vi) recreate the Third -Party Materials or create otherwise a separate database or other repository of Third -Party Materials; (vii) use Third-Party Materials to train, augment, or correct another database or information repository; (viii) unless other specified in th e Documentation, permit any individual other than an Authorized User to access or use the Offering Content and any derivative thereof, or (ix) make any portion of the Third-Party Materials available to the public in any manner. Upon notice from Trimble and/or any termination or expiration of the Term, Customer will immediately cease using and delete/destroy all electronic and physical copies of Third-Party Materials.
6.3 Open Source. The Offerings may incorporate third -p arty open source software (“ Open Source”), as listed in the Documentation or otherwise made available by Trimble. To the extent the terms of the Open Source license prohibit the terms of the Agreement from applying to the Open Source, the terms of the Open Source license will apply to the Open Source on a stand-alone basis instead of the Agreement.
6.4 Third-Party Application Stores.
ATTACHMENT A
(a) Purchase from Application Store. If Customer obtains the Offering (or portions thereof) through a third -party application store, marketplace, or other site or service (each, an “Application Store”), such Application Store is considered a reseller. All fees are non-refundable once paid. Customer’s download of the Offering may be subject to other terms as specified by the operator of the Application Store from which Customer downloaded the Offering.
(b) Apple-S pecific Terms. If Customer downloaded the Offering from Apple Inc.’s (“Apple ”) Application Store, the following terms are part of the Agreement. The Agreement is between Customer and Trimble, and not with Apple. However, as required by Apple, Apple and its subsidiaries will be third-party beneficiaries of the Agreement and will have the right (and will be deemed to have accepted the right) to enforce the Agreement against Customer as a third-party beneficiary. To the maximum extent permitted by Law, Apple will have no warranty obligation with respect to the Offering, and, as between Apple and Trimble, any other claims, losses, liabilities, damages, costs, or expenses attributable to a failure to conform to a warranty will be Trimble’s responsibility. Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Offering. As between Trimble and Apple, Trimble is solely responsible for the Offering and for addressing any claims Customer or any third parties have about the Offering or Customer’s possession or use of the Offering, including without limitation (i) product liability claims; (ii) any claim that the Offering fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising u nder consumer protection or similar legislation. In the event of any third-party claim that the Offering or Customer’s possession or use of the Offering infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement, or discharge of such claim.
6.5 Security for SaaS or Hosting Services for Licensed Software. This Section 6.5 (Security for SaaS or Hosting Services for Licensed Software) applies to Offerings that are SaaS or hosting services for Licensed Software. During the Term, Trimble or its third party hosting pro vider(s) will use commercially reasonable efforts to establish and maintain reasonable administrative, physical, and technical safeguards designed to protect (a) the security, confidentiality, and integrity of Customer Data; (b) against anticipated threats or hazards to the security, confidentiality, and integrity of Customer Data; (c) against unauthorized access to or use of Customer Data; and (d) against unlawful processing, accidental destruction, or loss of Customer Data. In the ev ent Trimble is not in breach of the foregoing obligations and an unauthorized third party nonetheless gains access to the Customer Data, such disclosure of Customer Data in such circumstances shall not be a breach of Section 9 (Confidentiality) of the General Terms. In the event of any conflict between the terms of Section 9 (Confidentiality) of the General Terms and this Section 6.5 (Securit y for SaaS or Hosting Services for Licensed Software), the terms of this Section 6.5 (Security for SaaS or Hosting Services for Licensed Software) will control.
6.6 Third-Party Access.
(a) Contractors and Affiliates. Unless prohibited by Trimble in the Order, Documentation, any Supplemental Terms, or otherwise by Trimble in writing, Authorized Users may include individuals who are contractors or consultants of Customer or employees, contractors, or consultants of it s Affiliates; provided, however, any such access and usage may require additional fees as described in Section 4.7 (Fee Criteria), if applicable. (b) Other Third-P arties. If expressly authorized by Trimble in the Order, Documentation, any Supplemental Terms, or otherwise by Trimble in writing, the Offerings may allow Customer to invite other third parties to become Authorized Users and/or access Customer Data. (c) Generally. Customer authorizes Trimble to share Customer Data with any third -party Authorized Users or as otherwise instructed by Customer.
Customer is solely responsible for such third-parties’ compliance with the Agreement and for any and all acts or omissions of any such third parties.
Such third parties are not intended third-party beneficiaries under the Agreement. Trimble shall have no liability for any act or omission of any such third party, including by way of access or use of Customer Data. Such third-party access or use of the Offerings must be solely and exclusively for the benefit of Customer, and any other purpose is prohibited. For clarity, as between Customer and any such third parties, any data or other information uploaded by such third party to the Offerings on Customer’s behalf will be deemed Customer Data of Customer. (d) Customer as a Third-P arty. In the event that Customer is invited to access an Offering as a third party, any data or other information uploaded by Customer on behalf of such third party shall be deemed “Customer Data” of such third party.
7. S
upport. If Customer is eligible for Support and pays any applicable fees, Trimble will make such Support available in accordance with the Support Terms or as Trimble may otherwise expressly provide in writing. Unless otherwise set forth in writing by Trimble, Supp ort is not available for Free Versions or Trials and Betas.
8. Term and Termination.
8.1 P erpetual License . If Customer purchases a perpetual license to Licensed Software, Customer’s license to the Licensed Software will continue in perpetuity subject to the terms and conditions of the Agreement. Support for Licensed Software is purchased separately unless otherwise indicated by Trimble in writing or on an Order.
8.2 Subscriptions.
(a) Subscription Term. If Customer purchases access to a SaaS or a license to Licensed Software for a limited period of time, the duration of the initial term and any renewals are as set forth in the Order (collectively, the “Subscription Term(s)”). Notwithstanding anything to the contrary in the Order, the start date for each Subscription Term for each Offering will begin on the Provision Date for that Offering. For clarity, each Offering may have a different Provision Date.
(b) Additional Subscriptions.
If Customer previously purchased one or more Subscriptions for a particular Offering (“Existing Subscription (s)”) and subsequently purchases one or more additional Subscriptions (for any Offering) while the Existing Subscription(s) is in effec t (the “ Additional Subscription(s)”), the duration of the Subscription Term for the Additional Subscription will be as set forth in the Order. Unless otherw ise set forth by Trimble in writing, all Customer’s Subscriptions shall have the same end date and Trimble may invoice all fees for all such Subscriptions on a single invoice.
8.3 Effect of Termination. Upon expiration or termination of the Agreement or the Order, Customer’s right to use the Offerings will cease and Customer will immediately cease any and all use of and access to the Offerings and will delete (or, upon request, return) all copies of any Offerings.
At the disclosing party’s request upon expiration or termination of the Agreement, the receiving party will delete all of the disclosing party’s Confidential Information (excluding Customer Data, which is addressed in S ection 3 (Date Usage and Ownership)). Customer Data and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to the Agreement’s confidentiality restrictions.
8.4 Survival. In reference to Section 4.3 of the General Terms (Survival), the following Sections of these Software Terms survive any exp iration or termination of the Agreement: 1 (Definitions), 2.3 (Restrictions), 3.1 (Data Usage and Ownership), 4 (Customer Obligatio ns), 8.3 (Effect of
ATTACHMENT A
Termination), 8.4 (Survival), 9.3 (Additional Disclaimers), and 10 (Indemnification). Except where an exclusive remedy is provided, exercising a remedy under the Agreement, including termination, does not limit other remedies a party may have.
9. Warranties and Additional Disclaimers.
9.1 L
imited Warranty. Subject to the Agreement and any mandatory Laws to the contrary, Trimble warrants to Customer that during the Warranty Period, the Offerings will perform materially as described in the Documentation. The “Warranty Period” is (a) 90 days for Licensed Software licensed on a perpetual basis, and (b) for the duration of the applicable Subscription Term, for any Subscriptions. Notwithstanding t he foregoing, Trimble makes no warranties with respect to Correction Services, which are provided as-is and as-available.
9.2 Warranty Remedy.
(a) If the Offering fails to conform to Section 9.1 (Limited Warranty) during the Warranty Period, Customer may make a reasonably detailed warranty claim within 30 days of discovering the issue. For any such claims reported by Customer within such period that Trimble determines are valid, Trimble will correct such non -conformity by issuing corrected instructions, a restriction, or a bypass, or by replacing the Offerings, at Trimble’s option. Subject to any mandatory Laws to the contrary, these procedures are Customer’s exclusive remedy, and Trimble’s entire liability, for the failure of the Offerings to conform to the warranty in Section 9.1 (Limited Warranty). (b) The foregoing limited warranty only applies if and to the extent that (i) any Offering associated with the warranty is properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with the Documentation, and (ii) any Offerings associated with the warranty is not modified or misused. The foregoing limited warranty does not apply to (1) issues caused by unauthori zed use or modifications; (2) unsupported or unauthorized versions of any Offerings; (3) operating the Offerings under any specification other than, or in addition to, the Documentation; (4) issues in or resulting from Dependencies, Compatibilities, or third- party systems, products, or services; or (5) Free Versions, Trials and Betas or other similar versions.
9.3 Additional Disclaimers. Trimble makes the following disclaimers in addition to Section 6 (Warranty Disclaimer) in the General Terms. (a) General. TRIMBLE MAKES NO EXPRESS WARRANTY THAT CUSTOMER’S USE OF THE OFFERINGS WILL BE UNINTERRUPTED, ERROR -FREE, OR FREE OF VIRUSES OR OTHER MALWARE OR PROGRAM LIMITATIONS; THAT TRIMBLE WILL REVIEW CUSTOMER DATA FOR ACCURACY; OR THAT TRIMBLE WILL MAINTAIN CUSTOM ER DATA OR OTHER DATA WITHOUT LOSS. TRIMBLE IS NOT LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET, SATELLITES, ELECTRONIC COMMUNICATIONS, OR OTHER SYSTEMS OUTSIDE TRIMBLE’S CONTROL. TRIMBLE WILL NOT BE LIABLE IN ANY M ANNER FOR THE OUTPUT OBTAINED THROUGH USE OF THE OFFERINGS OR CUSTOMER’S RELIANCE ON SUCH OUTPUT. CUSTOMER IS RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF CUSTOMER’S USE OF THE OFFERINGS. THIS
RESPONSIBILITY INCLUDES THE DETERMINATION OF APPROPRIATE USES FOR THE OFFERINGS AND THE SELECTION OF THE OFFERINGS TO ACHIEVE INTENDED RESULTS. ANY FORMS, POLICIES, OR OTHER MATERIALS PROVIDED BY TRIMBLE THROUGH THE OFFERINGS OR DOCUMENTATION ARE NOT INTENDED AND SHOULD NOT BE RELIED UPON AS LEGAL ADVICE OR LEGAL OPINION. CUSTOMER SHOULD CONSULT ITS OWN LEGAL COUNSEL REGARDING THE USE OF ANY SUCH MATERIALS. CUSTOMER IS ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY OUTPUT OF THE OF FERINGS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD. (b) Correction Services Disclaimers .
Customer acknowledges that the Correction Services and related network access are subject to transmission limitations caused by a variety of factors such as atmospheric conditions, topographical obstructions, limitations or lack of coverage of the underlying carrier service and other natural or manmade conditions. Additionally, motor and ignition noise, metal shielding, and interf erence by users of the same or adjacent radio channels may limit or interfere with Correction Services. Trimble is not responsible for the operation or failure of operation of GNSS satellites or the availability of GNSS satellite signals. (c) Third-Party Materials. Third- Party Materials are provided “AS IS” and Customer assumes all risk and liability regarding any use of (or results obtained through) Third-Party Materials. Trimble and its suppliers make no warranty or guarantee with respect to any Third-Party Materials, including regarding their accuracy or continued availability or compatibility. (d) Dependencies and Compatibilities. T
rimble makes no warranty or guarantee with respect to any Dependencies, Compatibilities, or other factors outside of Trimble’s control, including their continued availability or compatibility. (e) Prohibited Data. Trimble and its suppliers specifically disclaim any responsibility for, and will not be liable in any manner arising from, any use of the Offerings in connection with Prohibited Data.
10. In
demnification. Customer will defend, indemnify, and hold harmless Trimble from and against any and all third- party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (a) any Customer Data, Dependencies, or Compatibilities, or (b) Customer’s breach of Sections 2.3 (Restrictions), 4 (Customer Obligations), 6.1 (Thi rd-Party Materials), 6.2 (Offering Content), or 6.4 (Third-Party Application Stores) (each, a “Claim”). Trimble will give Customer prompt written notice of any Claim and will cooperate in relation to the Claim at Customer’s expense. Customer will have the exclusive right to control and settle any Claim, except that Customer may not settle a Claim without Trimble’s prior written consent (not to be unreasonably withheld) if the settlement requires T rimble to admit any liability, pay any amounts or take any action or refrain from taking any action (other than ceasing use of infringing materials). Trimble may participate in the defense of any Claim at its expense.
11. Government End -Users. Elements of the Offerings are commercial computer software. If the user or licensee of the Offerings is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Offerings or any related documentation of any kind, including technical data and manuals, is restricted by the terms of the Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Offerings were developed fully at private expense. All other use is prohibited.
12. Region-Specific Terms - France. Solely for purposes of Customers who’s billing address is in France, the following shall apply: Prohibited Data included any patient, medical or other protected health information regulated by the French Public Health Code and the GDPR; and Customer’s grant of rights in Section 3.1 (Generally) shall be for so long as the Customer Data is protected by intellectual property law.
ATTACHMENT A
Addendum #4
Supplemental Terms for Support and Maintenance
Version 1.0 (Last Updated: April 3, 2023)
Capitalized terms not defined herein have the meanings given in the General Terms and the Software Terms.
1. Scope. Provided that Customer has paid the applicable fees, Trimble shall provide the Support described in these Support Terms during the Maintenance Term (as defined below). The “Maintenance Term” shall be: (a) for Support for SaaS or Licensed Software licensed for a limited term, the applicable Subscription Term, and (b) for Support for Licensed Software licensed on a perpetual basis, the term specified in the Order, or if not specified, for a period of one (1) year.
2. Support.
2.1 During the applicable Maintenance Term, Trimble shall use reasonable efforts to correct or provide a workaround for any reproducible programming error in the Software attributable to Trimble with a level of effort commensurate with the severity of the error, as reasonably determined by Trimble. Upon identification of any programming error, Customer shall promptly notify Trimble of such error and shall provide Trimble with enough information to reproduce the error, including a listing of output and any other data that Trimble may reasonably request in order to reproduce the error and operating conditions under which the error occurred or was discovered. Trimble shall not be responsible for correcting any errors not attributable to Trimble.
2.2 For certain Software, Trimble may provide additional or different support services or procedures as set forth in the applicable Documentation, support handbook, or other written documentation provided by Trimble, if any (collectively, the “Additional Support Documentation”). If there is any conflict between these Support Terms and such Additional Support Documentation with respect to the description of support services, requirements or procedures, the provisions of such Additional Support Documentation will prevail. Customer agrees and acknowledges that Trimble may use third parties to provide Support on its behalf. Customer expressly consents to Trimble permitting such third parties to access Customer’s information and data to perform the Support for Customer.
3. Licensed Software Updates and Upgrades. During the applicable Maintenance Term, Customer shall be entitled to receive all upgrades and updates to the Software that are publicly released by Trimble. The contents and timing of all upgrades and updates will be decided by Trimble in its sole discretion. Any such updates and upgrades will be deemed to be “Software” and licensed under the terms and conditions of the Agreement, including any applicable software end user terms or license agreement. Updates and upgrades exclude (a) new versions of the Software (e.g., a change to the left of the decimal in the version number [e.g., 1.x to 2.x] or otherwise designated by Trimble), and (b) any separate modules and other functionality for which Trimble charges a separate fee.
4. Limitations and Exceptions. The following matters are not covered (and Trimble will not have any obligations with respect to such matters) pursuant to these Support Terms:
4.1. Any Software for which applicable fees have not been paid;
4.2. Any problem resulting from the misuse, improper use, alteration, or damage of the Software;
4.2. Any problem resulting from improper or inadequate installation, maintenance, or storage of the Software;
4.3. Any problem caused by modifications of the Software not made or authorized by Trimble;
4.4. Any problem resulting from any hardware or software in either case not developed or supported by by Trimble, including, without limitation:
any computers, tablets, disk drives, operating systems, network hardware or software, database, or any other hardware or third-party software;
4.5. Any problem resulting from the combination of the Software with other programming or equipment to the extent that such combination has not been approved by Trimble; and
4.6. Errors in any version of the Software other than the most recent release, provided that Trimble will continue to provide Support for superseded releases for a reasonable period (not to exceed ninety (90) days).
Support excludes on-site visits, installation and training, file conversion, optional products and services, directories, consulting services, shipping charges, or any recommended hardware.
5. Termination or Expiration. Support will automatically terminate with respect to any Software that is no longer licensed for use as a result of expiration or termination of the Agreement, or replacement of the applicable Software with new releases.
ATTACHMENT A
Additional Support Documentation
Version 1.1
1. G enerally.
1.1. Trimble shall use the applicable level of effort to correct or provide a workaround for any reproducible error in the Offering attributable to Trimble commensurate with the severity of the error, as reasonably determined by Trimble in accordance with Section 3 (Severity Priority Levels) below.
1.2. For certain Offerings as set forth in Section 2 below, Trimble may provide a customer support portal (the “Support Portal ”), which may allow Customer to submit support requests, report issues, view case histories, search the general knowledge database, and other features, as applicable. In the event of any conflicts between the terms set forth herein and any set forth in the applicable Supportal Portal, the terms herein shall govern.
1.3. For certain Offerings as set forth in Section 2 below, Trimble will provide support to Customer only by communication with th e contacts designated by Customer in the Support Portal or otherwise as instructed by Trimble (each, a " Authorized Support Contact"). Customer may update Authorized Support Contact(s) from time to time as instructed by Trimble. Trimble may require the Authorized Suppo rt Contact(s) to have the relevant technical knowledge regarding the Offerings necessary to assist Trimble as needed.
1.4. Upon identification of any error that cannot be resolved by Customer as first line of support (e.g., via the Support Portal, its internal staff, etc.), then Customer (through its Authorized Support Contact(s)) shall promptly notify Trimble of such error and shall provide Trimble with enough information, assistance, and cooperation to reproduce the error, including a listing of output and any other data that Trimble may reasonably request in order to reproduce the error and operating conditions under which t he error occurred or was discovered. Trimble shall not be responsible for correcting any errors not attributable to Trimble.
2. Support Portals. Support portals with information about reporting and general availability are described below.
Offering Support Portal*
Authorized
Support Contacts
Only?**
AgileAssets https://agileassets.com/techsupport Yes
Cityworks https:mycityworks.force.com Yes
e-Builder
(non-Fed Ramp)
https://www.e-builder.net/customer-center No
e-Builder
(Fed Ramp)
None.*** Yes
Trimble
Water
https://mytrimblewater.force.com/s/login No
* Additional phone numbers and hours of availability for contacting Trimble with support requests may be listed in the Suppor t Portal.
** For any Products that do not require an Authorized Support Contact, any Authorized User of Customer may contact support. *** Authorized Users of e-Builder Enterprise Government Edition may submit support requests by phone (866 -254-1531) or email (ebuilder-go v [email protected] ) . Hours of operation are Monday through Friday 8:00 AM to 6:00 PM Eastern Time. Non- urgent and after-hours support requests should be submitted via email. All support requests submitted via email must include the following information: 1) Authorized User name and email address, 2) Phone number, 3) Account Name, and 4) Brief description of the issue. e- Builder Community and Salesforce are not currently available for the Government Edition.
3. S everity Priority Levels. As soon as reasonably practicable after Customer submits the relevant case information, Trimble will collect additional information and categorize the issue into one of four classifications as set forth below in good faith. Upon Customer submiss ion of the case information, Trimble will use commercially reasonable efforts to issue a Response (as defined below) by the indicated target response goal set forth below. Once the priority level is determined, Trimble will use the level of effort for resolution described below.
Priority Level* Priority Criteria Target Response
Goal**
Level of Effort for Resolution
ATTACHMENT A
P1 most urgent and impactful ½ hour Trimble and Customer will prioritize any reasonably available resources to resolve
the situation or identify a work around.
P2 urgent and impactful, but usually has
an acceptable temporary
workaround
½ hour Trimble and Customer will prioritize any
reasonably available resources during
standard business hours to resolve the
situation or identify a work around.
P3 important, but not urgent and
impactful
4 hrs Trimble and Customer will use generally
available resources during standard
business hours to resolve the situation or
identify a work around.
P4
a low priority, informational, or an
enhancement request
24 hrs Trimble and Customer are willing to use
generally available resources during
standard business hours to provide
information or assistance.
* See Priority Matrix and definitions below. The main factors in determining priority level are urgency and impact. Trimble will also consider in good faith any additional relevant facts and circumstances in consultation with Customer that may result in a mutually agreed upon change in priority level.
** The use of the term “hour(s)” refers to business hours based on Trimble’s regular business schedule, and excludes nights, weekends and locally- observed holidays (e.g., 24 hrs equals 3 business days at 8 hrs a day). “Response” means acknowledgment of the issue via the creation of a case number. Determination of priority level will occur as soon as practicable thereafter.
Priority matrix
Impact
Widespread Large Localized Individualized
Urgency Critical P1 P1 P2 P2
High P1 P2 P2 P3
Medium P2 P3 P3 P3
Low P4 P4 P4 P4
Definitions
Impact
Impact is a measure of the number of users,
sites, or devices affected.
Widespread. More than three quarters of users or devices are affected.
Large. (1) Multiple sites are affected or (2) between one-half and three-quarters of users or devices are affected.
ATTACHMENT A
Definitions
Localized. (1) A single site is affected or (2) less than one half of users or devices are affected.
Individualized. A single or a small number of users or devices are affected.
Urgency Urgency is a measure of the severity of the issue on the Customer’s operations.
Critical. Use of Offering as a whole or core functionality is stopped with no work around and with severe immediate impact to the Customer’s operations (e.g., outage).
High. Use of Offering as a whole or core functionality is severely degraded or a work around is available, and with immediate impact to the Customer’s operations.
Medium. Use of Offering or any functionality is not working as expected, and can be addressed through education, training, work around, work order, or a future enhancement.
Low. All other requests that are not the above.
4. A dditional Limitations and Conditions.
(a) Unless otherwise expressly provided by Trimble in writing, Trimble does not support: (i) use of the Offering in a manner othe r than as authorized in the Agreement; (ii) conversions of Customer’s databases to accommodate new hardware or software, (iii) Cust omer Data debugging or manipulation, (iv) recurring support issues where Customer failed to initiate corrective actions previously reco mmended by Trimble or to provide information requested by Trimble, (v) implementation, report creation, onsite support, customizations (e.g., scripting or integration), or assistance with server migrations are not included as part of Support, but such services but may be purchased separately, (vi) any Offering where Customer has failed to meet its obligations with respect to the Agreement, including, without limitation, as set forth below.
(b) Customer must (i) require its personnel to obtain adequate training to operate the Offering, (ii) if required by Trimble for the particular Offering, designate Authorized Support Contacts who will submit all support cases to Trimble, (iii) provide internet and/or network access for Trimble when requesting support; and (iv) provide all information and assistance reasonably requested by Trimble related to the support request.
(c) For Licensed Software not hosted by Trimble, Customer is responsible for (i) securing the server environment, local network, and system security and protocols, including having staff qualified to assume responsibility for management administration and support for Customer’s hardware, database, and any Third-Party Materials, Dependencies, or Compatibilities, (ii) maintaining regular and frequent data backups, and recovering such data if necessary from backups maintained by Customer, (iii) establishing a sec ure method of access to Customer’s network as well as maintaining security protocols for Customer’s network; and (iv) incorporating Releases and any associated data migration.
(d) If any Customer support request is subject to any of the foregoing, then Trimble reserves the right to impose support fees at its then standard commercial time and materials rates for all such services, including pre-approved travel and per diem expenses to be reimbursed consistent with Customer’s policies. Trimble will notify Customer in advance of incurring any such fees.
ATTACHMENT A
Addendum #5
Supplemental Terms for Services
(Training, e-learning content, implementation, configuration, and other services) Version 1.0 (Last Updated: April 3, 2023)
Capitalized terms not defined herein have the meanings given in the General Terms.
1. Generally. Trimble or its authorized service providers will use commercially reasonable efforts to provide Services to Customer as described in an Order or SOW. Any changes in scope must be made in writing and approved by authorized representatives of Customer and Trimble.
2. Training and E-Learning. For any Services consisting of delivery of training or e -learning (e.g., videos, manuals, etc.), any content made available by Trimble shall not be deemed a Deliverable (as defined below), notwithstanding anything in an Order or SOW to the contrary, and no Intellectual Property Rights therein are assigned or transferred to the Customer. Unless an Order or Documentation states otherwise, prepaid training and e -learning content will expire if not completed within six months from the effective date of the Order or SOW. Trimble reserves the right to reschedule training if it determines in good faith that attendance is not sufficient or the originally scheduled time or location are no longer feasible. If the Order states a date that Services must be completed by, such date is presented for illustrative purposes. The actual completion date for such Services will be provided on the invoice.
3. Customer Materials. Customer shall provide Trimble with reasonable access to Customer’s technical data, computer programs, files, documentation, and/or other materials (collectively, “ Customer Materials ”) and to Customer’s resources, personnel, equipment, and facilities to the extent necessary for the performance of Services. Customer will be responsible for, and assumes the risk of any problems resulting from the content, accuracy, completeness, competence, or consistency of Customer Materials or its perso nnel. To the extent that Customer does not timely provide the foregoing access required for Trimble to perform the Services, Trimble shall be excused from performance until such items or access are provided. Customer hereby grants Trimble a limited and rev ocable right to use the Customer Materials for the purpose of performing the Services. Customer owns and will retain ownership (including all intellectual property rights) in the Customer Materials.
4. Customer Premises. Customer shall provide Trimble with safe access to Customer’s premises as reasonably required for Trimble to perform the Services, if onsite performance of Services is needed and agreed to by Customer. Trimble personnel shall comply with the reasonable w ritten rules and regulations of Customer related to use of its premises, provided that such written rules and regulations are provided to Trimble prior to commencement of the Services.
5. Customer Dependencies. Customer is responsible for taking all actions identified or described in the Agreement which are a condition for Trimble to provide Services. Should Customer’s failure to take such actions result in a delay of Trimble against a delivery schedule, or result in additional provable costs incurred by Trimble, Trimble shall not be considered to be delayed in its obligations, and Trimble shall be entitled to payment of such additional costs.
6. Deliverables. “Deliverable(s)” shall mean any Trimble deliverables as expressly set forth on a SOW or Order. Trimble hereby grants Customer a worldwide, royalty-free, non-exclusive license to use the Deliverables for its internal business purposes in connection with the Offerings associated with such Deliverables and only for the period of time that Customer has ownership or authorized use of such Offerings. Unless expressly stated otherwise in the applicable Order or SOW, Trimble owns and will retain ownership (including all intellectual property rights) in and to the Deliverables (excluding any Customer Materials) and any modifications, improvements, and derivative works thereof (including to the extent incorporating any Feedback). If the parties have agreed that Trimble will assign ownership of Deliverables to Customer, the relevant SOW must set forth the terms and conditions regarding such assignment.
7. Limited Warranty . Trimble will perform Services in a professional and workmanlike manner. If notified of a non- conformity within ten (10) days of delivery of the applicable Services, and if Customer provides a sufficiently detailed justification to Trimble to allow Trimbl e to identify the non- conforming Services, Trimble will, as its sole liability and obligation for failure to provide Services meeting this warranty, either (a) re -perform the non-conforming Services at no additional cost to Customer, or (b) issue a credit for any Services which Trimble identifies as non-conforming.
8. Travel Expenses. Trimble will invoice Customer for reasonable and pre-approved out-of-pocket travel expenses incurred in connection with performing Services. Expenses may be invoiced separately from fees and may include, but are not limited to, airfare and other transportation, lodging, and incidentals. Expenses may also include meals reimbursable per a flat per diem rate, available upon request.
ATTACHMENT A
9. Other Offerings. These Services Terms only apply to Services, and not to any other Offerings, even if such other Offerings are referenced in an Order or SOW. For clarity, all such other Offerings shall not be considered a Deliverable hereunder, and the provision thereof shall be governed by one or more separate agreements between Trimble and Customer.
10. Non-Solicitation. During the Term and for a period of 12 months thereafter, Customer, shall not, directly or indirectly, solicit, hire, engage, or attempt to do any of the foregoing, any person who was an employee or independent contractor of Trimble who provided Services to Customer, without Trimble’s express prior written consent.
ATTACHMENT A
Addendum #6
Supplemental Terms for Hardware
Version 1.0 (Last Updated: April 3, 2023)
Capitalized terms not defined herein have the meanings given in the General Terms.
1. Delivery. Delivery times for Hardware are established when an Order is received and accepted by Trimble. Trimble will use commercially reasonable efforts to meet Customer’s requested delivery dates, unless Customer is in default under the Agreement or Trimble’s performance is otherwise excused (e.g., force majeure, etc.). Late delivery is not a basis for Customer’s cancellation of any Order.
Title and risk of loss or damage to the Hardware will pass to Customer upon delivery to Trimble’s shipping carrier..
Trimble will deliver any shipment FCA (Incoterms 2020) from its warehouse. Customer will pay or reimburse Trimble for all costs of carriage , freight, insurance (if applicable), taxes, duty and other related shipping charges. Trimble may fulfill its delivery obligations for Hardware through an Affiliate and/or authorized reseller. Trimble reserves the right to make partial deliveries.
2. Acceptance, Inspection, Notice of Nonconformance. All Hardware will be deemed accepted by Customer upon delivery to Trimble’s shipping carrier, subject to Customer’s right to inspect and reject damaged Hardware or Hardware that do not conform to the Order within 10 days of delivery. It is Customer’s respo nsibility to give Trimble prompt written notice of identified damage or non- conformance to the Order. If Customer retains the Hardware without giving notice within the designated period, it will be deemed to waive its right of rejection. The foregoing will not, however, prejudice Customer’s warranty remedies as described in the applicable Hardware Terms.
3. Limited Warranty. Unless the Hardware comes with a limited warranty that provides otherwise, Trimble warrants to Customer, and only to Customer, that the Hardware is designed and manufactured to conform in all material respects to Trimble's specifications and all parts are and will be free from defects in material and workmanship for a period of twelve (12) months from date of shipment. During the warranty period, Trimble's obligations in Section 7 (Sole Remedy; Warranty Procedure) are Customer’s only and exclusive remedy for Hardware that Trimble reasonably determines does not meet the limited warranty, and is made subject to these Hardware Terms.
4. Firmware. Trimble hereby grants Customer a personal, non- exclusive, revocable, non -assignable right to access and use firmware solely as necessary to use the Hardware in accordance with the Documentation. During the limited warranty period, Customer will be entitled to receive such Fixes (as defined below) to the firmware that Trimble releases and makes commercially available and for which it does not charge separately, subject to the procedures for delivery to purchasers of Trimble products generally. Minor Updates (as defined below), Major Upgrades (as defined below), new products, or substantially new software releases, as identified by Trimble, are expressly excluded from this fix process and limited warranty. Receipt of software fixes will not serve to extend the limited warranty period. "Fix(es)" means an error correction or other update created to fix a previous software version that does not substantially conform to its Trimble specifications; "Minor Update" occurs when enhancements are made to current features in software; and "Major Upgrade" occurs when significant new features are added to software, or when a new product containing new features replaces the further development of a current product line. Trimble reserves the right to determine, in its sole discretion, what constitutes a Fix, Minor Update, Major Upgrade, new products, or substantially new software releases.
5. N
on -Trimble Manufactured Products. Trimble will extend to Customer the manufacturer's warranty, if any, for all equipment and/or software products manufactured by another manufacturer and furnished by Trimble to Customer under such other manufacturer’s brands. Customer acknowledges and agrees that Trimble shall not be responsible for separately warranting or supporting the equipment or software products of such other manufacturers.
6. Warranty Exclusions. The foregoing Hardware limited warranty will only apply in the event and to the extent that (a) the Hardware is properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with the Documentation, and (b) the Hardware is not modified or misused. This limited warranty does not apply to, and Trimble shall not be responsible for defects or performance problems resulting from (i) the combination or use of the Hardware with hardware or software products, information, data, systems, interfaces or devices not made, supplied or specified by Trimble; (ii) the operation of the Hardware under any specification other than, or in addition to, the Documentation; (iii) the unauthorized installation, modification, repair or use of the Hardware; (iv) damage caused by accident, lightning or other electrical discharge, fresh or salt water immersion or spray (outside Hardware specifications), or exposure to environmental
ATTACHMENT A
conditions for which the Hardware is not intended; (v) normal wear and tear on consumable parts (e.g., batteries) or (vi) cosmetic damage. Trimble does not warrant or guarantee the results obtained through the use of the Hardware. TRIMBLE
MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO SERVICES, WHICH IF PROVIDED HEREUNDER ARE PROVIDED "AS-IS."
7. Sole Remedy; Warranty Procedure . If the Hardware fails during the warranty period for reasons covered by this limited warranty and Customer notifies Trimble of such failure during the warranty period, Trimble will at its option repair or replace the nonconforming Hardware with new, equivalent to new, or reconditioned parts or Hardware or, if either of the foregoing is commercially impractical in Trimble’s determination, refund the Hardware purchase price paid by Customer (excluding separate costs of installation, if any) upon Customer’s return of the Hardware in accordance with Trimble's product return procedures then in effect. Any repaired or replaced Hardware will be warranted for a period of thirty (30) days or the remainder of the original warranty period, whichever is longer. Warranty service will be provided at a designated Trimble service center or by an authorized Trimble service provider. Except as otherwise agreed by the parties, Customer shall be responsible for all shipping charges to the designated Trimble service center or authorized Trimble service provider.
8. Determination of Warranty Applicability: Trimble reserves the right to refuse warranty services if the Hardware date of purchase cannot be proven, if a claim is made outside the warranty period or if a claim is excluded from the warranty pursuant to the Terms. Following Trimble’s examination of Customer’s claim, Trimble will notify Customer of warranty status and the repair cost of any out-of-warranty Hardware. At such time Customer must issue a valid purchase order to cover the cost of the non-warranted Hardware repair and return freight, or authorize return shipment of the Hardware at Customer’s expense as-is.
9. Non-responsibility for Lost Data. Trimble shall not be responsible for any modification or damage to, or loss of any programs, data, or other information stored on any media or any part of any Hardware serviced by it or an authorized Trimble service provider, or for the consequence of such damage or loss, e.g., business loss in the event of system, program or data failure. It is Customer’s responsibility, prior to servicing, to backup data and remove all features, parts, alterations, and attachments not c overed by warranty prior to releasing the Hardware to Trimble. The Hardware will be returned to Customer configured as originally purchased.
10. Return of Hardware: All Hardware returns are subject to Trimble’s prior written consent and must comply with its product return (RMA) procedures then in effect. Before returning or exchanging Hardware, Customer must contact Trimble directly to obtain an authorization number to include with the return. Customer must return Hardware to Trimble in their original or equivalent packaging, and Customer is responsible for risk of loss, as well as shipping fees back to Trimble. Hardware received but not eligible for return will be sent back to Customer freight collect. For approved returns, Customer will receive credit equal to the lesser of the Hardware invoice price or its current replacement value, less any applicable charges or fees.
ATTACHMENT A
Addendum #7
Supplemental Terms for U.S. Public Entities
Version 1.0 (Last Updated: October 7, 2023)
Capitalized terms not defined herein have the meanings given in the General Terms and the Software Terms.
1. Scope. To the extent Customer is a public or governmental entity, these Supplemental Terms provisions apply to the extent Customer is a public or governmental entity in the United States.
2. Intellectual Property Indemnification by Trimble. Trimble shall defend Customer from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark asserted against Customer by a third party based upon Customer’s use of the Offerings in accordance with the terms of this Agreement, and pay any resulting settlement or final judgment. If Customer’s use of any of the Offerings are, or in Trimble’s opinion are likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Trimble may, in its sole discretion: (a) substitute for the Offerings substantially functionally similar programs and documentation; (b) procure for Customer the right to continue using the Offerings; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to Customer the fee paid by Customer as reduced to reflect a five year straight-line depreciation from the applicable purchase date. The foregoing indemnification obligation of Trimble will not apply: (1) if the Offerings are modified by any party other than Trimble; (2) if the Offerings are combined with other non-Trimble products, but solely to the extent that the alleged infringement is caused by such combination; (3) to any unauthorized use of the Offerings; (4) to any unsupported release of the Offerings; or (5) to any third-party code, content, and/or data contained in and/or delivered with the Offerings.
3. Tax Exemption. If Customer is a tax-exempt entity and provides evidence of a tax-exempt certificate prior to executing this Agreement, then Section 3.1 of the General Terms regarding Customer’s responsibility to pay taxes shall be inapplicable.
4. No Indemnification by Customer. Section 8 (Indemnification) and the second to last sentence of Section 12.6 (Export Control) of the General Terms shall be inapplicable.
5. Public Records Law. Customer’s confidentiality obligations in Section 9 (Confidentiality) of the General Terms may be subject to applicable public records law.
6. Limited Publicity. Provision (b) in Section 12.11 (Publicity) of the General Terms shall be inapplicable.
7. Termination for Convenience. Customer may terminate this Agreement for convenience on not less than sixty (60) days’ written notice to Trimble. If Customer terminates this Agreement under this paragraph, all fees for the Term shall immediately become due and payable.
All previously paid fees (both used and unused) shall be non-refundable and forfeited. Furthermore, all earned, but unpaid, fees for professional services, if any, must be paid in full before the termination becomes effective.
8. Non-Appropriation of Funds. The Customer’s funds for future and ongoing purchases are contingent on the availability of future appropriations of funds. If funds are not appropriated for any payments due under this Agreement, the Customer will promptly notify Trimble in writing and the applicable Order will terminate as of the date of the notice in accordance with Section 7 (Termination for Convenience) above and the Customer will have no further obligation to make any payments with respect to the affected Order, provided however that the Customer shall pay for any goods or services ordered prior to the date of the Customer’s notice.
9. Piggyback. Trimble does business with many government entities whose applicable laws permit them to join an existing contract between another governmental agency and vendor to acquire goods and services thereunder. In such circumstances and if allowable by applicable law and contract, Customer expressly agrees to allow the other governmental agencies to acquire goods and services using this Agreement (“Piggyback”), subject to applicable pricing of the Trimble offerings at the time of the piggyback purchase.
10. Governing Law. Notwithstanding Section 12.9 (Governing Law and Venue) of the General Terms, the Laws of the jurisdiction required by applicable law shall exclusively govern this Agreement.
ATTACHMENT A
Addendum #8
Service Level Agreement; Data Security and Restoration
Version 1.0
1. Availability Service Level Agreement
For any Offering that is either (i) Software-as-a-Service or (ii) Licensed Software hosted by Trimble, the following will apply.
1.1. T arget Availability. Trimble will use commercially reasonable efforts to make the Offering available with an uptime availability (time periods during which Customer has general connectivity to the Offering) (the “Target Availability”) as follows:
Offering
Target
Availability*
Cityworks 99.9%*
AgileAssets / Pavement Express 99%
e-Builder 99.95%
Trimble Water - Trimble Unity Work Management/ Trimble Unity Remote Monitoring 99.5%
*Target Availability is generally for a calendar month; provided that Cityworks target availability will be calculated on a quarterly basis.
1.2. E
xclusions . The calculation of uptime will not include unavailability to the extent due to: (a) Customer’s use of the Offering in a manner not authorized in the Agreement or Documentation, (b) general Internet problems, force majeure events or other factors outside of Trimble’s reasonable control, including without limitation interruption or failure of telecommunications or digital transmission links, hostile network attacks, network congestion, denial of service attack, (c) Customer’s equipment, software, network connections or other infrastructure, (d) any acts or omissions of Customer or any third -party that is not a service provider of Trimble, (e) failure by Customer to pay any applicable fees under the Agreement, or (f) Scheduled Maintenance or emergency maintenance.
1.3. S
cheduled Maintenance. “ Scheduled Maintenance” means Trimble’s scheduled, routine, or other maintenance which (1) occurs at such times as may be listed on Trimble’s websites or Support Portal, or (2) Trimble notifies Customer with at least two (2) days advance notice, which can be via the Support Portal, e-mail, or in the Offering. Trimble reserves the right to schedule other maintenance periods on an as needed basis and will notify Customer in advance. Trimble will use commercially reasonable efforts to perform Scheduled Maintenance during low usage times.
1.4. S ervice Credits. If there is a verified failure of the Offering to meet Target Availability in a particular month and Customer makes a reque st for service credit within thirty (30) days after the end of such month, Customer will be entitled to a credit based on the monthly fees due for the affected Offering in such month (“Service Credit”). The Service Credit will be calculated as follows:
S
ervice Credit = Pro Rata Fee * percentage of time that the Offering did not meet the Target Availability
The "Pro Rata Fee " means (1) for Target Availability measured monthly, one -twelfth of the total annual fee for the Offering (excluding taxes, etc.), and (2) for Target Availability measured quarterly, one -fourth of the total annual fee for the Offering (excluding taxes, e tc).
The Service Credit will be calculated to the nearest 30- minute interval. The total Service Credits in a month may not exceed 20% of the Monthly Fee.
Trimble will apply each Service Credit to Customer’s next invoice, provided that Customer’s account is fully paid up, without any outstanding payment issues or disputes. Customer will not receive any refunds for any unused Service Credits.
1.5. S
ole Remedy. Service Credits constitute liquidated damages and are not a penalty. The Service Credits set forth in this Section are Customer’s sole and exclusive remedy for any failure to meet the Target Availability.
2. Data Security and Restoration
2.1. S oftware -as-a-Service and Hosted License Software. a) Trimble or its third -party hosting provider(s) shall use commercially reasonable efforts to establish and maintain reasonable administrative, physical, and technical safeguards designed to (a) protect the security, confidentiality, and integrity of Customer Data, (b) protect against anticipated threats or hazards to the security, confidentiality, and integrity of Customer Data; (c) protect against unauthorized access to or use of Customer Data; and (d) protect against unlawful processing, accidental destruction, or loss of Customer Data.
b) Trimble will use reasonable efforts to restore lost or damaged Customer Data for Offerings deployed through Trimble hosting services or as Software -as-a-Service, as described in this paragraph, if the loss or damage was caused by Trimble. Trimble will cons ult with
ATTACHMENT A
Customer and provide information to Customer regarding the availability of backups and the potential limitations of data restoration.
Customer understands that some data loss may result upon restoration based on the frequency and availability of backups. If Customer Data loss or damage is not caused by Trimble, Trimble will provide support and technical assistance for data restoration subj ect to Trimble’s availability and payment of applicable fees at Trimble’s then-current hourly rates.
On Premises Licensed Software. Trimble does not provide regular support or technical assistance for the repair or restoration of lost or damaged Customer Data as part of support for Licensed Software not hosted by Trimble, regardless of the cause. Assistance for restora tion may be available subject to Trimble’s availability and payment of applicable fees at Trimble’s then-current hourly rates.
ATTACHMENT A
Addendum #9
Statement of Work
This Statement of Work (“SOW”) describes the professional services that Customer has engaged Trimble (collectively “Parties’’) to perform on behalf of Customer. This SOW is integrated into a quote that incorporates the terms and conditions governed by the Parties (the “Agreement”). In the event of any inconsistency or conflict between the terms and conditions of this SOW and the Agreement, the terms and conditions of the Agreement shall govern, unless the SOW expressly identifies the term of the Agreem ent to be modified. This SOW may not be modified or amended except in writing signed by a duly authorized representative of each Party.
1 One-Time Implementation Services
Trimble to provide the following firm fixed price services under this SOW:
Phase & Deliverables Scope Comments
Project Kickoff & Cost Discovery
Kickoff Meeting Included 2 weeks after contract execution Implementation Goals Included Defined during Kickoff
Initial Project Schedule Included Defined during Kickoff. Total implementation timeline will take approximately 8 weeks.
Cost Discovery Included Identification of Customer cost configuration requirements
Project Design & Requirements
Solution Document Included Standard Requirements & Solution Design Document will be provided with the cost
configuration decisions made during Cost
Discovery. The Customer is responsible for
updating this documentation for additional
configuration changes performed by the
Customer outside of this implementation.
Project Configuration
Core Modules
Home
Projects
Calendar
Contacts
Setup
The roles and permissions are preconfigured and
recommended based on best practice. The
Customer will be trained to modify or add roles
and permissions.
One (1) project custom field will be configured
within the e -Builder Projects Module. The
Customer will be trained to modify or add project
custom fields.
Cost Module 3-Templates • Budget
• Funding
• Cashflow
Portfolio Management Level Cost Standard • Management of Master Commitments Process Module 7-Processes • Project Intake
• Budget Change Approval
• Commitment Approval
• Potential Change Order
• Change Order
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Phase & Deliverables Scope Comments
• Consultant Invoice Approval
• Construction Pay App Approval
Planning Module 1-Template
Automation Step 3-Automation
Steps
• Project Creation
• PCO Bundling
• Schedule Import
Schedule Module 1-Preconfigured
Template
The Customer will be trained to modify or add
schedule templates.
Document Module 1-Preconfigured
Template
The Customer will be trained to modify or add
document templates.
Submittal Module Preconfigured
Import Toolkit Standard Per the Data Import/Export Toolkit section found in Additional Detail section of this SOW
EZ File Transfer Tool Standard Per the EZ File Transfer Tool (EZ File) section found in Additional Detail section of this SOW
Data Warehouse Standard Per the Data Warehouse section found in Additional Detail section of this SOW
Single Sign-On Standard Per the Single Sign -On (SSO) section found in Additional Detail section of this SOW
Integration Workshop Standard Per the Discovery Workshop section found in Additional Detail section of this SOW
ATTACHMENT A
2 Managed Services
Trimble will provide One (1/4) Quarter Time (the “Trimble Managed Services Resource”). The Trimble Managed Services Resource to be assigned to perform Professional Services tasks which include:
● e-Builder Enterprise administration
○ Creation of new user accounts
○ Setting up permissions
○ New process Rollouts
○ General user support
○ Project administration
○ Account maintenance (e.g. role and user clean up)
● e-Builder Enterprise Training and Education
○ Creating and maintaining training materials
○ New user basic training
○ Workflow training
○ Administrator training
○ Training on new features
● Data Analysis
○ Evaluate use of cost management
○ Leverage best practices
● Process Improvement and process roll-outs
○ Provide training on process design
○ Conduct design sessions and requirements documentation ○ Process testing
○ Reporting assistance
○ Report cleanup
○ Create reports and report subscription
○ Dashboard creation and modification
Place of Performance: The Trimble Managed Services Resource will perform the above Professional Services tasks Remotely Schedule:
● When Customer purchases its Trimble Managed Services Resource under this SOW, The Trimble Managed Services Resource is dedicating 25% of its time to support Customer. Customer is not allowed to transfer any “unused” time from the then - current month to future months, assuming the Trimble Managed Services Resource is directed to work by the Customer to work less hours than allotted.
● Scheduled time off for the Trimble Managed Services Resource will be requested and approved according to Trimble’s time off process and policies. The Customer will be notified of scheduled time off requests upon approval. Scheduled time off includes paid time off (“PTO”), holidays, and Trimble sponsored employee events. Customer agrees that the fee includes time for scheduled time off.
● Unscheduled time off for The Trimble Managed Services Resource will be requested and approved according to Trimble’s procedures and policies. The Customer will be informed of unscheduled time off upon approval. Unscheduled time off includes sick leave, medical leave, etc.
Disclaimer and Non-solicitation:
● The Trimble Managed Services Resource does not include any development hours. If custom development is needed to support the Trimble Managed Services Resource, a separate Order Form will be created. Common custom development items include custom reporting and integration.
● Trimble reserves the right to change the assigned resource and provide a satisfactory replacement. ● During the Term and for a period of two (2) years thereafter, Customer will not, directly or indirectly, employ, offer employment to, or otherwise retain the services of the Trimble Managed Services Resource, without the prior written consent of Trimble.
ATTACHMENT A
Term:
● Trimble shall be afforded ninety (90) days from the time of the full execution of the Order Form (and Purchase Order receipt, if applicable) to provision The Trimble Managed Services Resource. The Term shall be one (1) year from the Start of Work.
Start of Work will occur before project kickoff as there is preparation work needed (such as a project plan). Trimble and Customer will agree on the Start of Work date after execution of the Order Form. ● This Managed Services Scope of Work assumes that, upon execution of this Order Form, Trimble wi ll begin the provision period described above so that the Managed Service resource will be able to train Customer on Customer's initial Implementation described elsewhere in this Order Form.
● Si xty (60) days notice prior to the expiration of this SOW is required if Customer wishes to: (1) expire the Trimble Managed Services Resource or (2) change the scope of work of the Trimble Managed Services Resource. Otherwise, the Trimble Managed Services Resource will automatically renew in one-year periods.
ATTACHMENT A
3 Additional Detail
EZ File Transfer Tool (EZ File)
e-Builder Enterprise provides an Easy File Transfer tool (EZ File) for the movement of document files. The EZ File tool makes it easier for our clients to upload and download many files on a frequent basis. For example, clients that wish to support the BIM file coordination process within e-Builder Enterprise would find value with this service. The EZ File is a supported file transfer service built into the e-Builder Enterprise architecture. It provides a “doorway” into the folders and files stored on the e-Builder servers. Using the e-Builder EZ File, our clients can upload and download files and folders between e-Builder and their computers without having to work directly within the e-Builder application in a browser. EZ File utilizes an industry standard file transfer method called WebDAV (Web- based Distributed Authoring and Versioning). WebDAV is commonly used to publish and manage files and directories on a remote web server. EZ File requires the client to use a 3rd party WebDAV user interface client to manage the upload and download proces s. e- Builder’s EZ File tool includes one (1) license to Syncovery. Any additiona l licenses or any additional upgrades to Syncovery required by Customer are not included and are Customer’s responsibility. For both manual uploads and automated using the EZ File, the folder location(s) is determined by the user.
Automation Step(s)
Automation Steps are provided under the following assumptions:
● One (1) round of User Acceptance Testing (UAT) will be performed by the Customer when directed by Trimble Professional Services. The Customer will complete UAT of the functionality within one UAT (1) testing round. Testing of functionality not explicitly described within this Order Form is out of scope and will require an additional Order F orm providing for additional scope of work and pricing.
● Trimble Professional Services will not configure new processes or make changes to existing processes which are not explicitly stated in this Order Form. Process creation or process changes will be completed by the Customer prior to commencement of the work described within this Order Form.
Data Import/Export Toolkit
To understand the data that needs to be migrated from the Customer’s legacy systems to e- Builder Enterprise, Trimble is including a 1-day Data Migration Workshop for the Customer as detailed below. The Data Migration Workshop will help the Customer’s team identify the scope of the data that needs to be migrated by addressing the following questions:
● I dentify and document the various sources and volumes of legacy data to be migrated:
● How many systems will data be migrated from?
● What formats does this data come in?
● What is the data structure?
● How many legacy projects will data be migrated for?
● How many data objects are associated with each project? ● How many project files must be migrated?
● What is the size of the data (i.e., 500 GB, 2TB, etc.)? ● Identify and document the strategy for each data type to be migrated.
At the completion of the 1-day Data Migration Workshop, the Trimble Data Migration Team will produce a data migration framework document for the Customer. The framework document summarizes the e-Builder Enterprise data configuration methodology and provides a structural framework and recommended approach for data migration. The Trimble implementation team will also provide the Customer with the Data Import/Export Toolkit for the Customer’s team to perform the import of data to e-Builder Enterprise.
ATTACHMENT A
Due to the highly technical and varying resource requirements associated with data migrations, the Proposed Scope of Work and Services does not include the actual migration of any Customer data into e -Builder Enterprise. We often find that data migration services are not necessary as our customers are able to leverage the Import Toolkit quickly and easily as described below.
If the Customer wants Trimble to perform any of the data migration activities identified in the 1 -day Data Migration Workshop, the Trimble Implementation and Trimble Account Management teams will provide the Customer with a detailed data migration plan and executable actions with a proposed contractual amendment detailing the cost proposal to achieve these data migration objectiv es and services. Trimble will perform the agreed upon data migration activities after the full execution of the amendment. e-B uilder Enterprise Data Import/Export Toolkit includes data import wizards for virtually all modules in the product, including cost, schedule, forms and workflow processes, bidding, submittals, projects, contacts, and users. These wizards guide the user through the import process, allowing them to easily map the data in the import file to the data fields in e- Builder Enterprise and preview the results prior to finalizing the import. Data exports leverage the same powerful query builder used by the Reporting and Business Intelligence modules available as part of the e-Builder Enterprise platform. With the export wizards, users can easily construct complex filters, choose which fields to include, and then retrieve and save just the desired information to a file that can be imported into another system. The e-Builder Data Import/Export Toolkit is ideal for initial data loads when new e -Builder Projects are brought online and/or migration of project data is necessary from other systems.
Data Warehouse
Trimble is offering a Data Warehouse as a Companion Product (A Companion Product is defined as an add -on application that is purchased separately from the core e-Builder Enterprise. It’s not “an embedded feature” or a “module” in e -Builder Enterprise) to e- Builder Enterprise which provides capital project performance data for use in enterprise reporting. It allows you to combine data with other enterprise data sets, including Enterprise Resource Planning, Customer Relationship Management, Human Capital Management, and other public or proprietary data for actionable intelligence or decision making. Most organizations will use best in clas s Business Intelligence solutions such as Tableau, Power BI, Qlik, Hyperion, Cognos or other platforms on top of or in conc ert with the e-Builder Data Warehouse. With e -Builder Enterprise Data Warehouse, you can leverage your own experts to extract value from capital improvement data, visualize information, publish dashboards through top Business Intelligence tools, and build trust through data democratization.
When you purchase e -Builder Enterprise Data Warehouse, Trimble will provide the Customer’s e- Builder Administrator with an endpoint and credentials (Schema, User name and Password). Through our Professional Services organization, e -Builder will test to ensure you are connected and onboard your delegates (description below). Professional Services are required as per the descripti on below. How you connect to the Data Warehouse is dependent upon the Business Intelligence (BI) and Modeling tool that your organization chooses.
The Customer expressly understands that this offering by Trimble is a Client Access License , and although it will be billed with your
existing Annual Software Subscription, this Client Access License does not affect your current Annual Software Subscription t o e- Builder Enterprise.
Connectivity to Data Warehouse
Trimble provides you with an endpoint and credentials (Schema, User name and Password).
ATTACHMENT A
S ervices and Support
Services: Trimble’s support is limited to the actions found in yellow boxes above.
Availability: The e-Builder Enterprise Data Warehouse is refreshed one time in a 24 hour period, generally overnight Support: The Customer’s e -Builder Enterprise Administrator will follow the same process to request support by logging a ticket for Data Warehouse with e-Builder Support.
Discovery Workshop
Trimble will provide a discovery workshop for Integrations. The deliverable(s) for the discovery workshop includes:
● Existing Conditions Assessment document
● Design Recommendations
● Implementation Recommendations
The agenda and specific dates for this workshop will be confirmed during the project planning and kickoff.
If Customer would like Trimble to perform any of the Recommendations, an additional SOW containing a defined scope of work and funding shall be mutually executed prior to Trimble commencing work on the Recommendations.
ATTACHMENT A
4 Assumptions
The following responsibilities and assumptions are necessary for the successful completion of the scope of work found in this SOW.
In the event that an item below does not occur in the manner or time-frame defined, Trimble may request to meet with the Customer and mutually agree upon an adjustment to the schedule, work activities and fees. ● The Customer will make best efforts to ensure the committed participation of all appropriate technical and user personnel throughout the project, including but not limited to periodic status reviews. Customer resources provided during the technical and functional sessions must be empowered to make decisions on project direction. ● The Trimble Professional Services team will work jointly with the Customer team to resolve all issues including those impacting the scope and timeline. Issues that may impact the progress and the schedule will be documented. If the issue is critical, Trimble will present the issue to the Customer in writing as quickly as possible. Once the issue is presented in writing the Customer is expected to respond within two (2) business days. If the issue cannot be resolved within two days, they will notify Trimble and arrange a meeting with all relevant personnel to resolve this issue. Failure to do so could impact the cost and schedule of the Trimble implementation project. Trimble may suspend the SaaS Services or terminate this SOW unless Customer signs a SOW providing for additional funding. For purposes of clarity, the delays covered by this Paragraph include only those for which Customer has discretion and control, and specifically excludes matters that are beyond Customer’s discretion and control.
● All necessary content (data, text and graphics) will be provided to Trimble prior to the creative processes (if applicable). ● Unless specifically identified as deliverables within this document, Customer will enter any historical data from past projects to enable historical analysis.
● Unless specifically identified as deliverables within this document, data migration, system integrations or custom development of any kind is not included within the scope of the Trimble implementation project. These items can be included through the change management process if identified as required items. ● All change requests received and approved will be listed on a separate SOW. Each additional SOW must be signed and accepted prior to initiating additional work by Trimble.
ATTACHMENT A