ALI-24-10-7214
Software as a Service Agreement (US Oct 2022) Page 1 of 22 INTERGRAPH CORPORATION, HEXAGON’S ASSET LIFECYCLE INTELLIGENCE DIVISION, HxGN EAM
SOFTWARE AS A SERVICE AGREEMENT
This HxGN EAM Software as a Service Agreement (“Agreement”) is between Intergraph Corporation, Hexagon’s Asset Lifecycle Intelligence division, a Delaware corporation with headquarters at 305 Intergraph Way, Madison, AL 35758 (hereinafter referred to as “Hexagon”) and City of Vernon with headquarters 4305 S Santa Fe Ave, Vernon, California 90058, United States “Customer”) and entered as of the Effective Date.
1. Definitions
1.1 “Applications” means Hexagon mobile applications available for purchase or included with the Subscription Services that enable users to use the licensed Software Product utilizing a Device.
1.2 “Authorized Users” means the Employees and Staff Augmentation of the Customer authorized by the Customer to use Subscription Services on behalf of the Customer and in relation to whom an account is or has been set up by or on behalf of Customer to access Subscription Services.
1.3 “Availability Service Level Objective” is as defined in Exhibit A.
1.4 “Confidential Information” means non-public information that is identified as or would be reasonably understood to be confidential and/or proprietary. Confidential Information of Hexagon includes, without limitation, the Documentation, the Subscription Services and the Software Products, including any software code and all algorithms, methods, techniques, training materials, Security Reports and processes revealed or utilized therein. Confidential Information of Customer includes Customer Data.
Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach of the Recipient; (ii) the Discloser regularly discloses to third parties without restriction on disclosure; (iii) the Recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation known to Recipient; or (iv) is independently developed by the Recipient without use of Confidential Information.
1.5 “Consulting Services” means services that not delivered as part of Hexagon’s commercial off the shelf Subscription Services including but not limited to software modifications or enhancements, software and system configuration, software and system installation, software and system development, software customization, or software and system design. “Consulting Services” are subject to this Agreement including the terms stated in Exhibit B or otherwise stated in the Statement of Work.
1.6 “Consulting Services Fees” means the fees for Consulting Services performed under a Statement of Work.
1.7 “Customer Data” means all electronic data or information submitted to, stored in and/or generated in the Subscription Services by Customer, which may include Personal Information.
1.8 “Custom Software” means, as applicable, the following software deliverables that may be provided under a Consulting Services SOW:
i. “Customized Software” means software in which a piece of Software Product’s out-of-the-box source code has been modified by Hexagon and provided as a deliverable under a SOW; and/or ii. “Custom-configured Software” means the Software Product that has been configured using tools in the applicable to meet specific requirements of Customer without modification of source code.
Custom Software is not “work for hire” development.
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1.9 “Data Protection Legislation” means the privacy and personal data legislation applicable to the processing of personal data in the jurisdiction where this Agreement is made or performed, including but not limited to the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”) as may be amended and/or any corresponding or equivalent national laws or regulations, (and in case of discrepancies or contradictions between different rules or regulations, the one which provides the highest degree of privacy and/or information security shall apply).
1.10 “Discloser” means the party providing Confidential Information to the Recipient.
1.11 “Documentation” means the then-current documentation made generally available with the Subscription Services by Hexagon relating to the features, functions, and use of the Software Product.
1.12 “Effective Date” means the first day of the Month on which the Quote is signed by the Customer and processed by Hexagon or, if not signed and accepted by Hexagon, the date the Customer’s purchase order is accepted and processed by Hexagon.
1.13 “Emergency Maintenance” means unplanned maintenance performed to either correct a material services issue or outage or mitigate/prevent a security threat (e.g. due to an external attack, virus cleansing, and service degradation resolution). Hexagon shall provide as much notice as possible to the Customer in respect of Emergency Maintenance.
1.14 “Employees” means an individual employed by the Customer on a permanent or part time basis performing services for Customer who has operate within the Customer’s computer network firewall.
1.15 “Hexagon Group Company” means a company controlled directly or indirectly by Hexagon AB, a Swedish corporation.
1.16 “Intellectual Property Rights” means all intellectual property or other proprietary rights, whether registered or unregistered, in any jurisdiction, including all such rights in patents and patent applications, trademarks (including any goodwill therein or relating thereto), service marks, trade names, business names, internet domain names, copyrights (including rights in computer software), moral rights, database rights, design rights, rights in know-how, rights in trade secrets, and rights in inventions (whether or not patentable).
1.17 “Minimum Commitment Term” means the period of service (typically in months or years) stated on the Quote processed on or around the date of execution of this Agreement. The Minimum Commitment Term starts on the Effective Date. The Minimum Commitment Term will not be less than twelve (12) calendar months.
1.18 “Personal Information” means data or information relates to an identified or identifies a natural person, or is defined to be personal data or personal information under applicable Data Protection Legislation.
1.19 “Planned Maintenance” means any maintenance required, planned and communicated in advance by Hexagon for the maintenance of the system and Subscription Services.
1.20 “Quote” means a quotation for Subscription Services issued by Hexagon (at any given time during the term of this Agreement) to Customer, which shall incorporate the provisions of this Agreement by reference.
1.21 “Recipient” means the party receiving Confidential Information of the Discloser.
1.22 “Renewal Term” means any renewal or extension of Customer’s right to access and use the Software Products and Subscription Services following the expiration of the Minimum Commitment Term or prior Renewal Term. The Renewal Term shall be the greater of (i) the term stated on the Renewal Term Quote or (ii) twelve (12) calendar months.
1.23 “Security Incident” means an event or set of circumstances resulting in a compromise to the security, confidentiality, availability or integrity of Customer Data under Hexagon’s control.
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1.24 “Security Report” shall mean the Audit Report as defined in Subsection 7.3, any other audit results or certifications, any completed questionnaires, any security or Subscription Services policies or any other analogous documentation that may be provided to Customer under this Agreement.
1.25 “Software” means collectively and as applicable the Applications, Software Products and Third Party Software Products.
1.26 “Software Product” means collectively or individually the computer software programs identified in the applicable Quote for which Hexagon is providing access via the Subscription Services and which have been manufactured and are owned or licensed by Intergraph Corporation or a Hexagon Group Company, but excluding Third Party Software Products.
1.27 “Staff Augmentation” means an extension of the Customer’s Employee base by use of individual contractors that are temporarily engaged by Customer, provided that the access is from within the Customer’s firewall. Staff Augmentation may work onsite or remotely provided they work within Customer’s computing infrastructure and access that infrastructure via Customer-provided computing equipment/hardware.
1.28 “Statement of Work” or “SOW” means specific, written work authorizations prepared by Hexagon, mutually agreed to and executed by the Parties referencing the terms of the Agreement, which shall contain without limitation, a description of the Consulting Services, and the rate(s) on which the Consulting Services Fees are based.
1.29 “Subscription Fees” means the fees for the Subscription Services set forth on the applicable Quote.
1.30 “Subscription Services” means the standard market offering of SaaS EAM software as a service that Hexagon provides Customer under this Agreement.
1.31 “Subscription Term” means the Minimum Commitment Term or any Renewal Term, as applicable.
1.32 “Third Party Licensor” means a third party whose software products or services have been made available to Hexagon for distribution or inclusion in the Subscription Services under the terms of its agreement with Hexagon.
1.33 “Third Party Software Products” means, where applicable, (i) pre-requisite third party software products used by Hexagon in order for Customer to receive the Subscription Services or licensed by Hexagon and used by the Customer in Subscription Services in order to deliver Software Product functionality; and (ii) third party software made available through the Subscription Services as stated on the applicable Quote.
1.34 “Updates” means generally available updates, enhancements or modifications to the then-current, general release version of the Software Product that are not separately priced as new products.
1.35 “Use Restriction” means any limitation on the use of the Software Product identified in a Quote or in this Agreement, specifically noting the license types listed Exhibit C (e.g., number of Authorized Users, locations, connections).
1.36 “UserID” means a unique user identification credential used in combination with a unique password to access the Software Product and Subscription Services.
1.37 “Virtual Training” shall mean the online based videos and training materials provided through Hexagon University.
1.38 “Virus” means anything or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by rearranging, altering or erasing the program or data in whole or part Docusign Envelope ID: 8DC24B9D-C4B8-4EDC-85B0-31145083FAB5 Docusign Envelope ID: 27E32B8A-8598-4F3E-865D-183E5BF1F73E Software as a Service Agreement (US Oct 2022) Page 4 of 22 or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
2. Use Rights and Restrictions
2.1 Subject to receiving a Quote signed by the Customer and/or valid purchase order, for and during the term of this Agreement, Hexagon grants to Customer, a personal, non-exclusive, non-transferable, worldwide (subject to compliance with applicable laws) right to access and use the Subscription Services including any Software contained thereon solely for Customer’s own internal business purposes and subject to the terms and conditions of this Agreement. Any rights not expressly granted in this Agreement are expressly reserved.
2.2 Customer shall ensure that:
i. Use of the Subscription Services and Software is limited to Authorized Users and in accordance with any Use Restrictions; and
ii. Authorized Users’ use of the Subscription Services and Software is limited solely to work for the benefit of Customer.
iii. Access to the Subscription Services and Software shall be immediately terminated when an Authorized User is no longer working for the benefit of Customer (e.g. leave of employment, reassignment).
2.3 Customer shall not and shall procure that its Authorized Users shall not:
i. license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Subscription Services or the Software in any way; ii. remove or modify any marks or proprietary notices of Hexagon or a Third Party Licensor. iii. modify or make derivative works or a competitive product or service based on Subscription Services or the Software;
iv. run penetration testing or any other testing that could affect the usability (e.g. increase traffic) of the Subscription Services or put at risk any other Subscription Services customers; v. use the Software and Subscription Services to provide service bureau services to third parties; or vi. reverse engineer the Subscription Services or Software.
2.4 If Subscription Services, the Software, or any part thereof is acquired directly or indirectly on behalf of a unit or agency of the United States Government, this provision applies. For civilian agencies: Subscription Services and the associated Software were developed at private expense and are “restricted computer software” submitted with restricted rights in accordance with subparagraphs (a) through (d) of the Commercial Computer Software - Restricted Rights clause at 52.227-19 of the Federal Acquisition Regulations (“FAR”) and its successors, and are unpublished and all rights are reserved under the copyright laws of the United States. For units of the Department of Defense (“DoD”): This program is ‘commercial computer software’ as defined in DFAR’s 252.227-7014 and the rights of the government are as specified at DFARs 227.7202-3.
2.5 Customer shall be responsible for all activities that occur in Authorized User accounts in respect of its and Authorized Users, and shall be liable for any noncompliance by its Authorized Users of this Agreement.
2.6 Customer shall and shall procure that its Authorized Users shall:
i. have sole responsibility for the accuracy, quality, integrity, reliability and appropriateness of all Customer Data;
Docusign Envelope ID: 8DC24B9D-C4B8-4EDC-85B0-31145083FAB5 Docusign Envelope ID: 27E32B8A-8598-4F3E-865D-183E5BF1F73E Software as a Service Agreement (US Oct 2022) Page 5 of 22 ii. use commercially reasonable efforts to prevent unauthorized access to or use of Subscription Services and shall notify Hexagon promptly of any such unauthorized access or use; iii. implement and maintain appropriate technical and organizational security measures to protect and to preserve the security, integrity and confidentiality of the Subscription Services, Software, and the Customer Data. These security measures shall prevent the unauthorized access or disclosure of confidential data. Customer shall promptly report any security deficiencies or security incidents that may impact or compromise our users or Subscription Services in writing to [email protected]; and
iv. provide and maintain their own equipment, software, networks and communications lines, including any public lines required to properly access Subscription Services, content and/or data.
2.7 Documentation. Customer may make a reasonable number of copies of the Documentation for the Software Product for its internal use in accordance with the terms of this Agreement. Customer must reproduce the unaltered Intellectual Property Rights notice(s) in any full or partial copies that Customer makes of the Documentation.
2.8 Applications. In the event a Software Product provided hereunder includes a mobile application or a license to such mobile application has been purchased, in addition to the terms of this Agreement, the terms stated in Exhibit D shall apply to such application.
3. Subscription Services
3.1 Hosted Environment. Hexagon will provide the application hosting environment, including the hardware, equipment, and systems software configuration on which Hexagon supports use of the Software Product and Subscription Services, on servers located at facilities selected by Hexagon.
Customer is not permitted to access the Software Product on any environment outside the hosted environments selected by Hexagon as part of the Subscription Services.
3.2 Support and Virtual Training. Hexagon shall (a) provide Customer with access (via the internet, telephone or other means established by Hexagon) to Hexagon’s support helpline, (b) install, when and if generally available, Updates; and (c) use reasonable efforts to correct or circumvent any material deviation between the then-current, general release version of the Software Product and its Documentation (the foregoing referred to collectively as “Support”). Support and Virtual Training are included in the Subscription Fee.
3.3 User Accounts. Customer shall ensure that a unique UserID and password is assigned to each Authorized User accessing the Subscription Services and Customer shall be responsible for managing such UserIDs and passwords through the Subscription Services interface. Customer shall maintain the confidentiality of Customer’s UserIDs and passwords and shall cause its Authorized Users to maintain the confidentiality of their UserIDs and passwords. Customer agrees to immediately notify Hexagon of any unauthorized use of Customer’s UserIDs of which Customer becomes aware.
3.4 Connectivity. Hexagon will be responsible for maintaining connectivity from its network to the Internet which is capable of servicing the relevant Internet traffic to and from the hosted environment. Customer is responsible for providing connectivity to the Internet for itself and its Authorized Users. Customer shall also be responsible for ensuring that latency and available bandwidth from the device of the Authorized User to Hexagon’s hosted routers are adequate to meet Customer’s desired level of performance.
Customer is responsible for all costs associated with any specialized network connectivity required by Customer.
4. Terms of Payment
4.1 Subscription Fees shall be invoiced by Hexagon as follows:
i. Subscription Fees:
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1. if chargeable and payable twelve (12) months in advance, will be invoiced in advance for the upcoming twelve (12) months;
2. if chargeable and payable monthly, will be invoiced on or about the fifteenth (15th) business day of the month;
ii. Fees for any other piece of the Subscription Services agreed as part of a change request shall be invoiced at the time(s) agreed between the Parties.
4.2 All invoices are due and payable within thirty (30) days of the date of the applicable invoice. If an invoice is not paid within thirty (30) days of the date of the invoice then Hexagon is entitled to assess an interest fee for each day such invoice is not paid at the lesser of: (i) a rate equal to one and one-half percent (1.5%) per Month, each day such interest accrues; and (ii) the maximum rate allowed by applicable law.
4.3 All payments to Hexagon from Customer shall be in United States Dollars, if invoiced by Hexagon to Customer in the United States, or the non-US currency as invoiced by Hexagon to Customer outside of the United States. Where the Hexagon and Customer contract to invoice the Subscription Fees and/or pay in a non-US currency, the Subscription Fees will be converted and fixed in the applicable currency on the date of entry into this Agreement. In the event that during the term of this Agreement the applicable exchange rate operates so as to reduce the Subscription Fees payable hereunder by in excess of five percent (5%) by reference to Hexagon’s global price list, Hexagon shall have the option to increase the fees payable by written notice to the Customer, in order to address any such shortfall in the Subscription Fees payable by Customer.
5. Taxes
5.1 All Subscription Fees payable by Customer as set forth in this Agreement are exclusive of and Customer shall be liable for, and shall indemnify and hold Hexagon harmless from and against, any and all countries' federal, state, municipal, or other governmental, withholding, excise, sales, use, goods and services, value added or other similar taxes, tariffs, custom duties and importing fees ("Taxes").
5.2 Taxes shall expressly exclude any country’s federal, state, municipal or other governmental income taxes, franchise taxes, and other like taxes measured by Hexagon’s income or revenue.
5.3 Taxes shall also exclude, and Hexagon shall be responsible for, employee-related withholding, payroll and any other such taxes including, but not limited to occupational, unemployment and old-age benefits, for employees of Hexagon. The total invoiced amount is subject to increase by the amount of any Taxes which Hexagon is required to pay and/or which Customer is required to withhold, collect or pay upon the Subscription Fees so that Hexagon receives the full amount of the Subscription Fees invoiced. Any certificate to exempt this Agreement from tax liability or other documentary evidence of statutory exemption shall be obtained by Customer at Customer’s expense. Hexagon shall reasonably cooperate with Customer to minimize Taxes through any applicable exemptions, ceilings or other means legally available. Customer shall provide to Hexagon the information necessary to determine any applicable Taxes.
5.4 If Hexagon is required to pay any Taxes, Hexagon shall notify Customer in writing ("Hexagon Notification") regarding: the type(s) of Taxes that must be paid; the amount(s) of Taxes that must be paid; the date when the Taxes must be paid; and a brief explanation of why the Taxes must be paid.
5.5 If Customer disagrees that any such Taxes must be paid, Customer must notify Hexagon in writing within thirty (30) days of receiving the Hexagon Notification that it disagrees and include an explanation why. The Parties shall use their reasonable efforts to mutually agree on whether and to what extent such Taxes must be paid. If the Parties are unable to agree and Hexagon needs to make payment of such Taxes to avoid penalties and/or interest it may do so after notifying Customer in writing. Customer shall reimburse Hexagon within thirty (30) days of receiving such notice. If requested to do so by Customer in writing, Hexagon agrees to challenge or contest the payment before any tax authority or tribunal at Customer’s expense.
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5.6 When the transactions contemplated by this Agreement create a tax reporting and / or tax collection responsibility for Hexagon, Customer shall fully cooperate so that Hexagon has the information and documentation necessary to correctly report the transaction.
6. Limited Warranties, Disclaimer of Warranties, and Remedies
6.1 Limited Software Product Warranty by Hexagon and Remedy For Breach. During the term of this Agreement, Hexagon warrants that the Software Product access via the Subscription Services will perform substantially in accordance with the applicable Documentation. If a Software Product does not perform substantially in accordance with the applicable Software Documentation, Hexagon’s entire liability and Customer’s sole remedies under this warranty shall be to obtain the Support described in this Agreement.
6.2 Virus. During the term of this Agreement, Hexagon warrants that the Subscription Services will use industry standard Virus checking software to avoid transmission to the Customer of any Viruses to Customer’s IT environment (except for any Viruses contained in Customer Data uploaded by Authorized Users or otherwise originating from Authorized Users).
6.3 Limited Subscription Services Warranty and Remedy For Breach. During the term of this Agreement, Hexagon warrants that the hosted production environment will conform to the Availability Service Level Objective stated in Exhibit A. In the event the Available Service Level falls below the Availability Service Level Objective, Hexagon shall apply service level credits based on the actual availability measure for the applicable period as follows:
Availability Percentage Service Level Credit
99.500% or greater No Service Level Credit
99.499% - 99.000% 5% of the monthly prorated subscription fee
98.999% - 98.500% 15% of the monthly prorated subscription fee
98.499% - 95.000% 25% of the monthly prorated subscription fee Below 95.000% 35% of the monthly prorated subscription fee Service level credits for Subscription Fees paid on an annual basis shall be based on a monthly equivalent fee. For example, a 5% service level credit on an annual subscription fee shall be 5% of 1/12 of the annual subscription fee. Service level credits shall be applied to Customer’s next Subscription Fees invoice or, if Customer has paid the final invoice under this Agreement, service level credits shall be paid to Customer within thirty (30) calendar days following the determination that the credit is due. In the event availability for the production environment falls below 95% for any three (3) consecutive months or any four (4) months in a rolling twelve (12) month period (a “Triggering Event”), Customer may, within sixty (60) days of such Triggering Event, terminate the affected Quote, in which case, in lieu of service level credits, Customer shall receive a refund, on a pro rata basis, of any prepaid Subscription Fees applicable to the unused portion of the then-current Subscription Term following the effective date of termination of the Quote. The foregoing remedies are the exclusive remedies and are in lieu of all other remedies for breach of the Availability Service Level Objective.
6.4 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6,
HEXAGON MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH
REGARD TO THE SOFTWARE, SUBSCRIPTION SERVICES, SUPPORT, VIRTUAL TRAINING OR CONSULTING SERVICES PROVIDED UNDER THIS AGREEMENT AND/OR ANY QUOTE OR SOW.
HEXAGON EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. HEXAGON EXPRESSLY DOES NOT WARRANT THAT
THE SOFTWARE PRODUCT OR SUBSCRIPTION SERVICES, IN WHOLE OR IN PART, WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR MEET CUSTOMER’S REQUIREMENTS.
6.5 FAILURE OF ESSENTIAL PURPOSE. THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN SECTIONS 6 AND 10 WILL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
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6.6 HIGH RISK ACTIVITIES. THE SUBSCRIPTION SOFTWARE IS NOT FAULT-TOLERANT AND IS
NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE AS ON-LINE CONTROL
EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH
AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR AIRCRAFT
COMMUNICATION SYSTEMS, MASS TRANSIT, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT
MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE PRODUCT
COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). ACCORDINGLY, HEXAGON DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
CUSTOMER AGREES THAT HEXAGON SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES
ARISING FROM OR RELATED TO THE USE OF THE SOFTWARE PRODUCT IN SUCH APPLICATIONS.
7. Confidential Information and Security
7.1 Confidentiality. Recipient will take reasonable measures designed to prevent the unauthorized use or disclosure of Discloser’s Confidential Information, including, at a minimum, those measures Recipient takes to protect its own Confidential Information of a similar nature. Recipient will use and disclose the Confidential Information disclosed to it under this Agreement only to the extent necessary to further and fulfill the purposes of this Agreement. The non-disclosure and non-use obligations of this Agreement will remain in full force with respect to each item of Confidential Information for a period of five (5) years after termination of this Agreement. Recipient shall be responsible for any breach of the confidentiality terms contained in this Section 7 by any of its directors, officers, employees, Authorized Users (in the case of Customer), contractors and agents. If the Recipient should receive any legal request or process in any form seeking disclosure of Discloser’s Confidential Information, or if the Recipient should be advised by counsel of any obligation to disclose such Confidential Information, the Recipient shall (if allowed by law) provide the Discloser with prompt notice of such request or advice so that the Discloser may seek a protective order or pursue other appropriate assurance of the confidential treatment of the Confidential Information. Regardless of whether or not a protective order or other assurance is obtained, the Recipient shall provide only that portion of the Discloser’s Confidential Information which is legally required to be provided and to use reasonable efforts to assure that the information is maintained in confidence by the party to whom it is furnished. Customer shall ensure that Authorized Users are bound by confidentiality obligations consistent with those above.
7.2 Security Policies and Safeguards for Subscription Services. Hexagon shall establish and maintain administrative, technical, and physical safeguards designed to protect against the destruction, loss, unauthorized access or alteration of Customer Data in the possession or under the control of Hexagon or to which Hexagon has access, which are: (i) no less rigorous than those maintained by Hexagon for its own information of a similar nature; (ii) no less rigorous than generally accepted industry standards; and (iii) required by applicable laws. The security procedures and safeguards implemented and maintained by Hexagon pursuant to this Section 7.2 shall include, without limitation:
i. user identification and access controls designed to limit access to Customer’s Data to Authorized Users;
ii. the use of appropriate procedures and technical controls regulating data entering Hexagon’s network from any external source;
iii. the use of encryption techniques when Customer Data is transmitted or transferred into or out of the hosted environment;
iv. physical security measures, including without limitation securing Customer Data within a secure facility where only authorized personnel and agents will have physical access to Customer Data;
v. operational measures, including without limitation IT Service Management (ITSM) processes designed to ensure the correct and secure operations of information processing activities; vi. periodic employee training regarding the security programs referenced in this Section; and vii. periodic testing of the systems and procedures outlined in this Section.
7.3 Review of Controls. Hexagon shall, at its cost and expense, engage a duly qualified independent auditor (s) to conduct a review of the design and operating effectiveness of Hexagon’s defined control Docusign Envelope ID: 8DC24B9D-C4B8-4EDC-85B0-31145083FAB5 Docusign Envelope ID: 27E32B8A-8598-4F3E-865D-183E5BF1F73E Software as a Service Agreement (US Oct 2022) Page 9 of 22 objectives and control activities in connection with the Subscription Services. Hexagon shall cause such auditor to prepare a report in accordance with the Interdependent American Institute of Certified Public Accountants (AICPA) System and Organization Controls (SOC) Type 2 assessment or an equivalent standard (the “Audit Report”). Customer shall have the right to request and receive a copy of the Audit Report and Customer may share a copy of such Audit Report with its auditors and regulators, provided that, such Audit Report shall be Hexagon’s Confidential Information.
7.4 Security Incident Response. In the event that Hexagon becomes aware of a Security Incident, Hexagon shall: (i) provide a Security Incident Report to the customer (such report will be provided as soon as practicable following discovery of a Security Incident as required by applicable laws); (ii) at Customer’s request, Hexagon will meet with Customer to discuss the cause of the Security Incident and Hexagon’s response.
8. Intellectual Property Infringement Indemnity
8.1 In the event of any proceeding (suit, claim, or action) against Customer, (in this Section “Authorized Person”) arising from allegations that a Software Product, or part thereof, furnished by Hexagon (in this Section hereinafter “Product”) infringes a U.S. or an EU patent, copyright, or trademark of any third party, Hexagon will, if such infringement does not result solely from modifications, enhancements or additions to the Product made by an Authorized Person or any person or entity acting under the direction or control of an Authorized Person, or an Authorized Person’s use of any Product in combination with other products not furnished by Hexagon, and provided the Authorized Person promptly notifies Hexagon in writing of said proceeding, Hexagon shall defend the Authorized Person’s right, or interest in the Product, and said infringement claim at Hexagon’s expense, and Hexagon shall pay any judgment or settlement against the Authorized Person resulting from said proceeding. Hexagon shall make such defense by counsel of its own choosing and the Authorized Person shall reasonably cooperate with said counsel. Hexagon, in such circumstances, shall have sole control of the defense and settlement of any such claim, but shall consult with the Authorized Person on the status of and strategy for the defense.
8.2 If any such infringement is found by a court of competent jurisdiction to be caused by modifications, enhancements or additions to the Product made by an Authorized Person or any person or entity authorized to use the Product, acting under the direction or control of an Authorized Person or an Authorized Person’s use of the Product in combination with other products not furnished by Hexagon, Customer shall reimburse Hexagon any reasonable defense expenses inclusive of reasonable legal fees which may have been expended by Hexagon in defense of said claim, as well as to pay any final judgment rendered against Hexagon as a result of said proceedings.
8.3 In the event any Product furnished hereunder is, in Hexagon’s opinion, likely to or does become the subject of a claim of infringement of any duly issued U.S. or EU patent, copyright or trademark of a third party, and if Authorized Person’s use of any Product is enjoined, Hexagon may at its option and expense, either procure for the Authorized Person the right to continue using the Product, or modify the Product to make it non-infringing but functionally the same, or replace the Product with a non-infringing equivalent.
8.4 The above provisions are in lieu of all other provisions related to patent, trademark and copyright infringement, express or implied. They, along with the remedies stated above and which are subject to the limitations set forth in Section 10 below, represent the full and total obligation and / or liability of Hexagon and Customer in relation to the infringement of Intellectual Property Rights.
9. Term and Termination
9.1 NEGOTIATED: Term. The Initial Subscription Term will be specified in the applicable Quote. Prior to expiry of Initial Subscription Term, Hexagon shall provide a new Quote for renewal to the Customer, and upon acceptance of the Quote/issuance of Purchase Order, the Subscription Term shall renew for the Renewal Term mentioned in the Quote. Except as set forth in Section 6.3 or Section 9.2, the Subscription Term cannot be terminated prior to its expiration date.
Docusign Envelope ID: 8DC24B9D-C4B8-4EDC-85B0-31145083FAB5 Docusign Envelope ID: 27E32B8A-8598-4F3E-865D-183E5BF1F73E Software as a Service Agreement (US Oct 2022) Page 10 of 22
9.2 Right of Termination. If either party breaches any material obligation in an Quote and fails to remedy such breach within thirty (30) days of receipt of written notice of such breach, the other party may terminate the Quote. Notice of an alleged breach of warranty does not constitute notice of material breach for purposes of this Section.
9.3 Effect of Termination. Upon termination of a Quote by either party, Customer’s access and use of the Software and Subscription Services under such Quote shall immediately terminate as of the effective date of such termination. Termination of a Quote will not release either party from making payments which may be owing to the other party through the effective date of such termination. Termination of an Quote will be without prejudice to the terminating party’s other rights and remedies pursuant to this Agreement, unless otherwise expressly stated herein. In the event of Customer’s termination of an Quote under Section 9.2, Customer shall be entitled to a refund, on a pro rata basis, of any prepaid Subscription Fees under such Quote applicable to the unused portion of the then-current Subscription Term following the effective date of termination.
9.4 Return of Customer Data. Upon termination or expiration of a Quote, Hexagon shall promptly make all Customer Data available to Customer as a native database export provided through Hexagon’s FTP server. In the event that Customer requires the return of Customer Data in an alternate format or requires any other termination assistance services, Hexagon and Customer shall mutually agree upon the scope of such termination assistance services and the fees and expenses payable for such termination assistance services.
9.5 Survival of Obligations. All obligations relating to non-use and non-disclosure of Confidential Information, limitation of liability, and such other terms which by their nature survive termination, will survive termination or expiration of this Agreement.
10. Limitations of Liability
10.1 LIMITED LIABILITY. EXCEPT WITH RESPECT TO (I) HEXAGON’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS UNDER SECTION 8; (II) UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION RESULTING FROM A PARTY’S BREACH OF THE AGREEMENT, WHICH LIABILITY SHALL BE SUBJECT TO SECTION 10.3 BELOW; (III) CUSTOMER’S INFRINGEMENT OR MISAPPROPRIATION OF HEXAGON’S INTELLECTUAL PROPERTY RIGHTS; OR (IV) CUSTOMER’S OBLIGATION TO PAY FEES, THE TOTAL LIABILITY OF EITHER PARTY,
THE HEXAGON GROUP COMPANIES AND THIRD PARTY LICENSORS (IN THE CASE OF HEXAGON), WHATEVER THE BASIS OF LIABILITY, (i) IN CONNECTION WITH OR RELATED TO
THE SOFTWARE, THE SUBSCRIPTION SERVICES OR ANY OTHER MATTER RELATING TO THIS
AGREEMENT (OTHER THAN CONSULTING SERVICES PROVIDED UNDER THIS AGREEMENT, WHICH IS ADDRESSED IN (ii) BELOW) WILL NOT EXCEED THE SUBSCRIPTION FEES PAID OR
PAYABLE TO HEXAGON HEREUNDER FOR THE ANNUAL PERIOD IN WHICH SUCH LIABILITY FIRST AROSE, OR (ii) IN CONNECTION WITH OR RELATED TO CONSULTING SERVICES
PROVIDED UNDER THIS AGREEMENT, THE CONSULTING SERVICES FEES PAID OR PAYABLE
TO HEXAGON FOR THE CONSULTING SERVICES GIVING RISE TO LIABILITY UNDER THE APPLICABLE SOW.
10.2 EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY OR THE HEXAGON GROUP
COMPANIES OR THIRD PARTY LICENSORS (IN THE CASE OF HEXAGON) BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES
FOR LOST PROFITS, LOSS OF BUSINESS, LOSS OF USE OR PRODUCTION, LOSS OF
REPUTATION OR LOSS OF DATA WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND REGARDLESS OF
WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR
WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE TO THE EXTENT PERMITTED BY APPLICABLE LAW.
10.3 UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION. WITH RESPECT TO
UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION RESULTING FROM A PARTY’S BREACH OF THE AGREEMENT, THE TOTAL LIABILITY OF THE BREACHING PARTY,
THE HEXAGON GROUP COMPANIES AND THIRD PARTY LICENSORS (IN THE CASE OF Docusign Envelope ID: 8DC24B9D-C4B8-4EDC-85B0-31145083FAB5 Docusign Envelope ID: 27E32B8A-8598-4F3E-865D-183E5BF1F73E Software as a Service Agreement (US Oct 2022) Page 11 of 22 HEXAGON), SHALL NOT EXCEED THREE (3) TIMES THE SUBSCRIPTION FEES PAID OR
PAYABLE TO HEXAGON HEREUNDER FOR THE ANNUAL PERIOD IN WHICH SUCH LIABILITY FIRST AROSE.
11. Ownership
11.1 Customer, for itself and its and their Authorized Users, acknowledges and agrees that all right, title and interest in and to Subscription Services, Custom Software, Virtual Training and Software, including Documentation, data, information, trade secrets, copyrights, inventions (whether patentable or not), concepts, ideas, methods, techniques, work processes, formulae, algorithms, logic designs, screen displays, schematics, and source and object code computer programs, all of which is owned (in this Section, the “Product”) and all copies of all or any part thereof, are and shall remain vested in Hexagon or a Hexagon Group Company or relevant third parties. Customer and its and their Authorized Users do not have, and shall not attempt to obtain, any right, title, or interest in or to the Product, or Hexagon’s or a Hexagon Group Company’s or such third parties’ Intellectual Property Rights, except as expressly provided herein, and shall not decompile, disassemble, or otherwise attempt to gain access to any source code for the Product. Customer, for itself and Authorized Users, acknowledges and agrees that the Product is comprised of trade secrets, proprietary information, and Confidential Information, and that Customer, and its Authorized Users shall not use, distribute, copy, perform, amend, alter, modify, create derivative works, reverse engineer, exploit, sublicense, or assign the Product, or any of Hexagon’s or a Hexagon Group Company’s or such third parties’ Intellectual Property Rights or permit such to occur, except as expressly permitted by this Agreement.
11.2 Notwithstanding the foregoing, Customer or its Affiliates shall retain their respective full ownership and all rights associated therewith solely to Customer Data and work product input or output generated by the Subscription Services. This ownership shall not extend to any formats or other Intellectual Property Rights provided by Hexagon under this Agreement that makes a particular data file intelligent or that structures output, which shall remain the property of Hexagon or a Hexagon Group Company or the respective third party that owns said format or Intellectual Property Rights.
12. Miscellaneous
12.1 Notices. Any legal notice or communication given pursuant to this Agreement shall be in writing, as a document or in electronic form, and deemed received when delivered in person, electronic mail, facsimile, or sent postage prepaid via Express Mail, Federal Express or other private courier, or United States certified mail, return receipt requested. Legal notices under this Agreement shall be submitted to Hexagon shall be sent to Hexagon Asset Lifecycle Intelligence division, Attention: Division Counsel, 305 Intergraph Way, Madison, AL, USA, email [email protected], or to such other place as Hexagon may subsequently designate for its receipt of notices.
12.2 Force Majeure. Except with respect to the payment of fees hereunder, neither party will be liable to the other for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control, including, without limitation, Acts of God, war, terrorist acts, accident, labor disruption, acts, omissions and defaults of third parties and official, governmental and judicial action not the fault of the party failing or delaying in performance, or the threat of any of the foregoing (a “Force Majeure Event”). A party seeking to excuse its non-performance as a result of a Force Majeure Event shall have the burden of proof to demonstrate that the Force Majeure Event prevents its performance and must, upon becoming aware of a Force Majeure Event that prevents its performance, provide written notice to the other party specifying the details in such regard (a “Force Majeure Notice”). If, within thirty (30) days following a party’s provision of a Force Majeure Notice, such party is unable to provide written assurances of its ability to perform in accordance with the Agreement, the other party shall be entitled to terminate the Agreement or suspend its performance hereunder upon providing written notice.
12.3 Assignment. This Agreement shall be binding on the Parties hereto and their respective successors and assigns. Neither Party may, or shall have the power to, assign this Agreement without the prior written consent of the other, except that Hexagon may assign its rights and obligations under this Agreement without the approval of Customer to an entity which acquires all or substantially all of the assets of the Intergraph Corporation, its Asset Lifecycle Intelligence division, Hexagon, or Hexagon AB, Docusign Envelope ID: 8DC24B9D-C4B8-4EDC-85B0-31145083FAB5 Docusign Envelope ID: 27E32B8A-8598-4F3E-865D-183E5BF1F73E Software as a Service Agreement (US Oct 2022) Page 12 of 22 or to any subsidiary, affiliate or successor in a merger or acquisition of Intergraph Corporation, its asset Lifecycle Intelligence division, Hexagon or Hexagon AB.
12.4 No Waiver. A party’s failure to enforce its rights with respect to any single or continuing breach of this Agreement will not act as a waiver of the right of that party to later enforce any such rights or to enforce any other or any subsequent breach.
12.5 Export Control. The Subscription Services including access to Software and, customized software and including Documentation or technical information pertaining thereto, provided by Hexagon, its subsidiaries or distributors (“US Export Controlled Items”), is subject to the export control laws and regulations of the United States of America. Diversion contrary to U.S. law is prohibited. To the extent prohibited by United States or other applicable laws, US Export Controlled Items, or any derivatives thereof, must not be exported or re-exported, directly or indirectly (including via remote access) under the following circumstances:
i. To Cuba, Iran, North Korea, Syria, or the Crimean, "Donetsk People's Republic", "Luhansk People's Republic" or Sevastopol regions of Ukraine or its territories, or Syria, or any national of these countries or territories;
ii. To any person or entity listed on any United States government denial list, including, but not limited to, the United States Department of Commerce Denied Persons, Entities, and Unverified Lists, the United States Department of Treasury Specially Designated Nationals List, and the United States Department of State Debarred List. Visit www.export.gov for more information, or follow this link for the screening tool: https://legacy.export.gov/csl-search. iii. To any entity when Customer, or an Affiliate, knows, or has reason to know, the end use of the US Export Controlled Item is related to the design, development, production, or use of missiles, chemical, biological, or nuclear weapons, or other un-safeguarded or sensitive nuclear uses; and/or iv. To any entity when Customer, or an Affiliate, knows, or has reason to know, that an illegal reshipment will take place.
12.6 Customer will not allow any Authorized User (which for the purpose of this Section, includes any employee, contractor, affiliate or other person) to access the Subscription Services who is or becomes subject to US export controls and sanctions, including but not limited to, a person designated on the Specially Designated Nationals list.
12.7 Customer is responsible for all persons that it authorizes to access the Subscription Services and for all technology created in and/or stored by Hexagon as part of the Subscription Services for Customer, including compliance with applicable US and other countries’ export controls and sanctions.
12.8 Customer shall hold harmless and indemnify Hexagon and each Hexagon Group Company against any causes of actions, claims, costs, expenses and/or damages suffered or incurred by Hexagon or a Hexagon Group Company, which arise from a breach by Customer, an Affiliate or an Authorized User of the export restrictions set forth in this Section 12.
12.9 Customer and its Affiliates should address any questions regarding export/re-export of relevant Subscription Services, Software Products, customized software and/or Third Party Software Products to Asset Lifecycle Intelligence Division, Export Compliance Department, 305 Intergraph Way, Madison, Alabama 35758, USA.
12.10 Choice of Law and Severability. This Agreement shall for all purposes be construed and enforced under and in accordance with the Laws of the State of Alabama, United States of America. The Parties agree that any legal action or proceeding relating to this Agreement shall be instituted in the Circuit Court for Madison County, Alabama or the United States District Court for the Northern District, Northeastern Division, of Alabama, USA. The Parties agree to submit to the jurisdiction of and agree that venue is proper in these courts in any such legal action or proceeding. The Parties waive the application of the United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement of Docusign Envelope ID: 8DC24B9D-C4B8-4EDC-85B0-31145083FAB5 Docusign Envelope ID: 27E32B8A-8598-4F3E-865D-183E5BF1F73E Software as a Service Agreement (US Oct 2022) Page 13 of 22 this Agreement. If any part of this Agreement is held unenforceable, the rest remains in full force and effect.
12.11 Dispute Resolution. For any controversy or claim that may arise out of or in relation to this Agreement or with respect to breach thereof, the Parties agree to initially seek to solve the matter amicably through discussions between the Parties’ points of contact as listed herein. If the Parties fail to resolve such controversy or breach by amicable arrangement and/or compromise within thirty (30) days of the notice of dispute, such dispute should be escalated to Parties’ upper management. If the Parties fail to resolve such controversy, claim, or breach by amicable arrangement and/or compromise within thirty (30) days of the dispute being brought to the attention of Parties’ upper management, then the Parties may, at their sole discretion, seek resolution through non-binding mediation. If either Party is not satisfied with the result of the non-binding mediation, such party may seek legal recourse through the courts in the jurisdiction chosen herein. No party may commence litigation in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute by negotiation and mediation, and the mediation has terminated, or the other party refused to participate in the mediation. Any time period stated in this Section may be reduced for the sole purpose of avoiding the expiration of the Statute of Limitations for the event made the basis of the controversy.
12.12 Compliance with Laws. Customer and Hexagon hereby certify that they shall comply with all applicable laws in carrying out its duties under this Agreement, including but not limited to the Data Protection Legislation, the United States Foreign Corrupt Practices Act, (“FCPA”), the Bribery Act2010 (pursuant to the laws of England and Wales) and any analogous legislation of other jurisdictions that are applicable or relevant in the country where the Agreement is entered into or to be performed.
12.13 Data Protection. Any processing of personal data within the meaning of the Data Protection Legislation will be carried out by Hexagon, Hexagon Group Companies and their employees, and Subcontractors in accordance with Customer’s instructions and to enable Hexagon to deliver the services contemplated by this Agreement. Customer shall only transmit the minimum amount of Personal Information as strictly necessary for Hexagon to perform this Agreement.
12.14 Audit. Hexagon may audit Customer’s compliance with the terms of this Agreement and applicable Quotes. If an audit reveals that Customer has exceeded the permitted scope of use, then, in addition to any other remedies available to Hexagon, Customer will promptly pay Hexagon any underpaid Subscription Fees associated with such overuse based on Hexagon’s then-current list rates.
12.15 Marketing Customer grants Hexagon permission to use its name and logo in marketing materials referencing Customer as a customer. Hexagon and Customer are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture or agency relationship between them. This Agreement shall be construed as if drafted by both parties and shall not be strictly construed against either party.
12.16 Entire Agreement. This Agreement contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes all prior oral and written communications, representations and understandings between the parties about its subject matter. Each party acknowledges that, in entering into this Agreement, it does not rely upon, and shall have no remedy in respect of, any statement or representation of any person other than as expressly set out in this Agreement. Any purchase order or similar document that may be issued by Customer in connection with this Agreement does not modify, supplement or add terms to this Agreement. No modification of this Agreement will be effective unless it is in writing, is signed by each party, and expressly provides that it amends this Agreement. This Agreement and any signed agreement entered into in connection herewith or contemplated hereby may be executed in counterparts. An executed document that has been delivered via fax, electronic or digital means shall be treated as an original.
Docusign Envelope ID: 8DC24B9D-C4B8-4EDC-85B0-31145083FAB5 Docusign Envelope ID: 27E32B8A-8598-4F3E-865D-183E5BF1F73E Software as a Service Agreement (US Oct 2022) Page 14 of 22 IN WITNESS WHEREOF the Parties have caused this agreement to be validly executed by duly appointed officers in duplicate original on the dates and in the places hereinafter indicated:
CUSTOMER INTERGRAPH CORPORATION, Hexagon’s Asset
Lifecycle Intelligence division
By: By:
Name: Name:
Title: Title:
Date: Date:
Attest:
___________________________________
Yonnie Parker, Deputy City Clerk
___________________________________
Date
Approved as to Form:
___________________________________
Zaynah N. Moussa, City Attorney
___________________________________
Date
Daniel Calleros
Interim City Administrator
Intergraph Corporation- 2nd Authorized
Signature:
___________________________________
Signature
___________________________________
Name
___________________________________
Title
___________________________________
Date
Docusign Envelope ID: 8DC24B9D-C4B8-4EDC-85B0-31145083FAB5 Associate Division Counsel
October 23, 2024
Caroline Bonner
October 23, 2024
Smita Agarwal
Contracts Manager
Docusign Envelope ID: 27E32B8A-8598-4F3E-865D-183E5BF1F73E 11/5/2024
11/7/2024
11/7/2024