These Terms of Service (this “Agreement”) are entered into as of the Effective Date between Trimble Inc. or the Trimble affiliate identified on the Order Form (“Trimble”) and you (“Customer” or “you”), an entity accessing or using any Trimble online software-as-a-service solution specified in the applicable Order Form (in each case, the “Service”). This Agreement includes any Order Forms or exhibits which reference this Agreement and any applicable Product-Specific Terms.
Entry into this Agreement. The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Service or (b) the effective date of the Order Form referencing this Agreement. This Agreement governs use of the Service no matter how accessed, including without limitation via a mobile, tablet or web application. If the individual entering into this Agreement is an employee or agent of Customer, then such individual must be authorized to, and by agreeing to the terms of this Agreement hereby does, bind Customer to this Agreement.
Order Forms. Customer and Trimble may enter into order forms, quotations, change orders, sales agreements, or any other document referencing this Agreement (which may consist of online registration or separate Trimble order forms) (each, an “Order Form”) for Customer’s purchase of a subscription to the Service from Trimble. The version of this Agreement referenced in the Order Form will govern Customer’s purchase of the Services specified therein.
Purchase from Reseller. If you obtained the Service through an authorized dealer, distributor or reseller of Trimble (“Reseller”), your use of the Service shall be governed by this Agreement, subject to Section 12.15 (Purchase from Reseller) below.
Product-Specific Terms. “Product-Specific Terms” are additional product-specific terms and conditions which govern your use of the Service as set forth in Exhibit A, unless such terms and conditions are separately referenced in the applicable Order Form.
Order of Precedence. In the event of a conflict, the terms will control in the following order: (1) the applicable Order Form; (2) the Product-Specific Terms; and (3) these Terms of Service.
Modifications to this Agreement. Trimble may modify this Agreement (which may include changes to Service pricing and plans) from time to time by giving notice to Customer by email or through the Service. Unless a shorter period is specified by Trimble (e.g. due to changes in the law or exigent circumstances), the modifications become effective thirty (30) days after such notice. If within the notice period Customer notifies Trimble in writing of its objection to the modifications, Trimble (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a refund of any pre-paid Service fees allocable to the terminated portion of the applicable Subscription Term (as defined below). Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Service, and, in any event, continued use of the Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT ACCESS OR USE THE SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1. THE SERVICE
1.1. Access to the Service. The Service is provided on a subscription basis for a set term designated on the applicable Order Form (each, a “Subscription Term”). Customer may access and use the Service solely for its own benefit and in accordance with the terms and conditions of this Agreement, the end user technical documentation provided with the Service (“Documentation”) and any scope of use restrictions designated in the applicable Order Form or Product-Specific Terms. Use of and access to the Service is permitted concurrently only by the number of employees and contractors of Customer specified in the applicable Order Form acting for the sole benefit of Customer (“Permitted Users”). Use of the Service by Permitted Users in the aggregate must be within the scope of use restrictions in the applicable Order Form or Product-Specific Terms. Customer is responsible for any use of the Service by its Permitted Users and their compliance with all of the terms and conditions of this Agreement. If Customer is given passwords to access the Service, Customer will require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. Customer will be responsible for any and all actions taken using Customer’s accounts and passwords. In the event that any Permitted User who has access to a user ID is no longer an employee of Customer, Customer will be solely responsible for de-activating such Permitted User’s access, and may re-allocate such Permitted User’s access to a different employee. Further, Customer may transfer Permitted User status from one employee to another at any time, provided that Customer remains compliant with this Section 1.1, including without limitation by limiting the number of Permitted Users to the number specified in the applicable Order Form or Product-Specific Terms.
1.2. Client Software. If applicable for use of the Service, Customer may download certain desktop and/or mobile software made available by Trimble (“Client Software”). Subject to all of the terms and conditions of this Agreement, Trimble grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the Client Software internally, but only in connection with Customer’s use of the Service and otherwise in accordance with the Documentation and this Agreement. The Client Software is deemed to be part of the Service.
1.3. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Service to a third party; (b) use the Service to provide, or incorporate the Service into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Trimble); (d) copy or modify the Service or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); or (f) publicly disseminate information regarding the performance of the Service.
1.4. Trial Subscriptions. Where indicated in the applicable Order Form, Customer may receive free access or a trial or evaluation subscription to the Service (a “Trial Subscription”). If Customer receives a Trial Subscription, then Customer may use the Service in accordance with the terms and conditions of this Agreement and the applicable Order Form for the period designated in such Order Form or otherwise by Trimble (and if not designated, then for thirty (30) days) (“Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a full subscription to the Service. Customer may not use a Trial Subscription for any other purpose, including without limitation for competitive analysis. At the end of the Trial Period, the Trial Subscription will expire and Customer will have the option to purchase a full subscription to the Service. If Customer purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Service unless otherwise specified in the Order Form for the Trial Subscription. Trimble has the right to terminate a Trial Subscription at any time for any reason. The Service may have a mechanism that limits access during the Trial Period and Trimble may otherwise restrict certain product functionality during the Trial Period. Customer will not attempt to circumvent any such mechanism or restriction. Trimble has no obligation to retain Customer Data used with a Trial Subscription during or after the Trial Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DURING THE TRIAL PERIOD THE SERVICE IS PROVIDED “AS IS” AND TRIMBLE WILL HAVE NO WARRANTY OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS UNLESS OTHERWISE SPECIFIED IN THE APPLICABLE ORDER FORM.
2. CUSTOMER DATA
2.1. Definition. “Customer Data” means any business information or other data of any type that is input by or on behalf of Customer into the Service, including without limitation information manually input by Permitted Users or imported via a third party product or service.
2.2. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Trimble. Subject to the terms of this Agreement, Customer hereby grants to Trimble a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and publicly perform and display the Customer Data solely to the extent necessary to provide the Service to Customer.
2.3. Storage of Customer Data. Trimble does not provide an archiving service. Trimble agrees only that it will not intentionally delete any Customer Data from the Service prior to termination of Customer’s applicable Subscription Term. Trimble expressly disclaims all other obligations with respect to storage.
2.4. Customer Obligations.
a) In General. Customer will ensure that Customer’s use of the Service and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Trimble that Customer has sufficient rights in the Customer Data to grant the rights granted to Trimble in Section 2.2 above and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.
b) Health Information. Customer specifically agrees not to submit to the Service any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations (“Health Information”) and acknowledges that Trimble is not a Business Associate or subcontractor (as those terms are defined in HIPAA) and that the Service is not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Trimble will have no liability under this Agreement for Health Information, notwithstanding anything to the contrary herein.
c) Misuse. Customer agrees that Customer will not misuse the Service, including without limitation in the submission of Customer Data. Misuse includes, but is not limited to:
- Using the Service to disseminate or convey inappropriate, defamatory, obscene, salacious, or unlawful information, images or materials; or to defame, harass, stalk, threaten or otherwise violate the legal rights of others.
- Using the Service in such a manner so as to interfere unreasonably with its use by others; or attempting or assisting another to access, alter, or interfere with the communications and/or information of another user.
- Subscription fraud or unauthorized access.
- Uploading, or otherwise making available, files that contain text, images, photographs, software or other materials owned by others that are protected by intellectual property laws (e.g., copyright, trademark, rights of privacy or publicity) and for which Customer has not received all necessary and legal consents for their use.
- Using any information, images or other materials available through the Service in any manner that infringes any copyright, trademark, patent, trade secret or other proprietary right of any party.
- Advertising, offering to sell or buy goods, or using the Service for business promotional purposes.
- Violating any code of conduct associated with the Service, or any applicable laws or regulations.
- Taking any action that imposes an unreasonable or disproportionately large load on the Service infrastructure; or uploading files that contain viruses, Trojan horses, worms, or other similar software or programs that cause damage to computers or property of others.
2.5. Indemnification by Customer. Customer will indemnify, defend and hold harmless Trimble and its affiliates from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Data, (b) any breach or alleged breach by Customer of Section 2.4 (Customer Obligations) or Section 12.14 (Third-Party Materials), or (c) any service or product offered by Customer in connection with or related to the Service. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Trimble at Customer’s expense.
3.1. Trimble Technology. This is a subscription agreement for access to and use of the Service. Customer acknowledges that it is obtaining only a limited right to the Service and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Trimble or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all of the Service, Documentation, Professional Services deliverables and any and all related and underlying technology and documentation, and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Trimble Technology”). Except as expressly set forth in this Agreement, no rights in any Trimble Technology are granted to Customer. Further, Customer acknowledges that the Service is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of the Service.
3.2. Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Trimble product or service to Trimble (“Feedback”). Trimble may freely use or exploit Feedback in connection with any of its products or services.
3.3. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Trimble and its affiliates may use, process, manipulate, modify, copy, publicly perform and display, compile, and create derivative works from Customer Data and any other data related to the Service, including, but not limited to, using such data for any internal business purpose, and for the improvement, support, and operation of the Service, and/or the development of other products or service capabilities. Customer hereby acknowledges and agrees that Trimble and its affiliates may disclose to third parties aggregate data derived from Customer Data or from any other data related to the Service, so long as such aggregate data is not personally identifiable with respect to Customer. Further, all service data, usage data, and other data that does not identify Customer and any data that is derived from the Customer Data and all data, reports, derivative works, compilations, modifications and other materials created by Trimble from or with use of such data will be, in each case, the sole and exclusive property of Trimble; and Customer, on Customer’s behalf and on behalf of Customer, hereby assigns all of Customer’s right, title and interest, if any, in and to such items to Trimble without any fees and without rights to future royalties.
4. SUBSCRIPTION TERM, FEES & PAYMENT
4.1 Subscription Term and Renewals. Unless otherwise set forth in the Product-Specific Terms or Order Form, the Subscription Term (A) is twelve (12) months and/or (B) will automatically renew for subsequent twelve (12)-month periods at Trimble’s then-current price unless either party provides the other with notice of cancellation at least thirty (30) days prior to expiration of the then-current Subscription Term.
4.2. Fees and Payment. All fees are as set forth in the applicable Order Form and will be paid by Customer within thirty (30) days of invoice, unless otherwise specified in the applicable Order Form. Except as expressly set forth in Section 6 (Limited Warranty), all fees are non-refundable. The rates in the Order Form are valid for the initial Subscription Term. Customer is required to pay all sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Trimble. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
4.2. Suspension of Service. Without limiting Trimble’s termination or other rights hereunder, Trimble reserves the right with notice (email sufficient) to suspend Customer’s access to the Service (and any related services) in whole or in part, without liability to Customer: (i) if Customer’s account is thirty (30) days or more overdue; (ii) for Customer’s breach of Sections 1.3 (General Restrictions) or 2.4 (Customer Obligations); or (iii) to prevent harm to other customers or third parties or to preserve the security, availability or integrity of the Service. Unless this Agreement has been terminated, Trimble will restore Customer’s access to the Service promptly after Trimble verifies that Customer has resolved the issue requiring suspension.
5. TERM AND TERMINATION
5.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
5.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
5.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to the Service (including any and all related Trimble Technology) and delete (or, at Trimble’s request, return) any and all copies of the Documentation, any Trimble passwords or access codes and any other Trimble Confidential Information in its possession. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
5.4. Survival. The following Sections of this Agreement will survive any expiration or termination of this Agreement: 1.3 (General Restrictions), 2.3 (Storage of Customer Data), 2.5 (Indemnification by Customer), 3 (Ownership), 4.2 (Fees and Payment), 5 (Term and Termination), 6.2 (Warranty Disclaimer), 6.3 (Warnings; Additional Disclaimers), 9 (Limitation of Remedies and Damages), 10 (Confidential Information) and 12 (General Terms).
6. LIMITED WARRANTY
6.1. Limited Warranty. Unless otherwise specified in the Product-Specific Terms, Trimble warrants, for Customer’s benefit only, that the Service, when used by Customer during the Term, will operate in substantial conformity with its applicable Documentation. Trimble does not warrant that Customer’s use of the Service will be uninterrupted or error-free, nor does Trimble warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. Trimble’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Trimble to use commercially reasonable efforts to correct the reported non-conformity, or if Trimble determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 6.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse or unauthorized modifications of the Service, (iii) if the error was caused by Customer or third-party hardware, software or services, or (iv) to use and access provided during a Trial Period.
6.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.1, THE SERVICE IS PROVIDED “AS IS”. NEITHER TRIMBLE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. TRIMBLE DOES NOT WARRANT THAT CUSTOMER'S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES TRIMBLE WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. TRIMBLE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF TRIMBLE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
6.3. Warnings; Additional Disclaimers. TRIMBLE SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE OUTPUT OBTAINED THROUGH THE USE OF THE SERVICE OR CUSTOMER’S RELIANCE ON SUCH OUTPUT. CUSTOMER IS RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF CUSTOMER’S USE OF THE SERVICE. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE SERVICE AND THE SELECTION OF THE SERVICE AND OTHER PROGRAMS TO ACHIEVE INTENDED RESULTS. CUSTOMER IS ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY OUTPUT OF THE SERVICE.
7. Support AND SERVICE LEVELS. During the Subscription Term, Trimble will provide the support, including service levels, specified on the applicable Order Form and/or the Product-Specific Terms, if any.
8. Professional Services.
If the applicable Order Form indicates that Trimble will provide any professional consulting services (“Professional Services
”) to Customer, then Trimble’s provision of and Customer’s receipt of such Professional Services will be governed by Trimble’s standard Professional Services terms, available at http://www.trimble.com/legal/tandcforservices
or a successor URL, unless otherwise mutually agreed by the parties in writing.
9. LIMITATION OF REMEDIES AND DAMAGES
9.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2. Liability Cap. TRIMBLE’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO TRIMBLE DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
9.3. Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 1.3 (General Restrictions), Section 10 (Confidential Information), or Section 12.14 (Third-Party Materials); or (b) under Section 2 (Customer Data).
9.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10. CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Trimble Technology, performance information relating to the Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Trimble without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Trimble, the subcontractors referenced in Section 12.8), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, unauthorized access by third parties to any Confidential Information will not be deemed a breach of this Section 10.
11. CO-MARKETING. Customer agrees that Trimble may disclose Customer as a customer of Trimble. Customer and Trimble may participate in joint marketing activities (including, without limitation, issuance of a joint press release) as mutually agreed by the parties.
12. GENERAL TERMS
12.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Customer may not assign this Agreement, by operation of law or otherwise, except upon the advance written consent of Trimble. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.
12.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
12.3. Governing Law; Venue.
12.3.1. If Customer originally obtained the Service inside the United States, this Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. In such case the jurisdiction and venue for actions related to the subject matter hereof are the State of California and United States federal courts located in Santa Clara County, California, and both parties hereby submit to the personal jurisdiction of such courts.
12.3.2. If Customer originally obtained the Service outside the United States, this Agreement is governed by the laws of The Netherlands, excluding its rules governing conflicts of laws and without regard to the United Nations Convention on the International Sale of Goods. In such case the jurisdiction and venue for actions related to the subject matter hereof are the courts of Amsterdam, The Netherlands and both parties hereby submit to the personal jurisdiction of such courts.
12.4. Notices and Electronic Communications. By registering with Trimble, Customer understands that Trimble may send Customer communications or data regarding the Service, including but not limited to (a) notices about Customer’s use of the Service, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding Trimble’s products and services, via electronic mail. Trimble provides Customer the opportunity to opt-out of receiving promotional and marketing-related electronic mail from us by following the opt-out instructions provided in the message. Any notice or other communication given by Customer to Trimble regarding this Agreement will be deemed given and served when personally delivered, delivered by reputable international courier requiring signature for receipt, or five (5) business days after mailing (postage prepaid), addressed to Trimble at its notice address. Trimble’s notice address is: Trimble Inc., Attn: General Counsel – Important Notice, 935 Stewart Drive, Sunnyvale, CA 94085, USA.
12.5. Amendments; Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
12.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Service is an on-line, subscription-based offering, and that in order to provide improved customer experience Trimble may make changes to the Service, and Trimble will update the applicable Documentation accordingly. Any support terms described in the applicable Order Form may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Trimble’s obligations as compared to those reflected in such terms as of the Effective Date). Any contrary terms or conditions appearing on Customer orders or associated purchase documentation will be of no effect.
12.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
12.8. Subcontractors. Trimble may use the services of subcontractors and permit them to exercise the rights granted to Trimble in order to provide the Service and Professional Services under this Agreement, provided that Trimble remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Service as required under this Agreement.
12.9. Subpoenas. Nothing in this Agreement prevents Trimble from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Trimble will use commercially reasonable efforts to notify Customer where permitted to do so.
12.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
12.11. Compliance; Export Control.
a) Customer shall comply with all laws, regulations and codes of practice applicable to its access of the Service and any results derived from the Service.
b) The Service is administered by Trimble from its offices or those of its affiliates at various locations within the United States of America. In Customer’s use of the Service, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing: (a) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) Customer will not (and will not permit any of its users to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction; and (c) Customer will not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations. Trimble may also make use of its U.S. or foreign affiliates or one or more external service providers to host the Service. Consequently, data is collected, sent, processed and stored in the United States and may be collected, sent, processed and stored outside the United States. Customer acknowledges that in the event of conflict of privacy laws or practices in the Customer’s jurisdiction and those in the domicile of the entity hosting Service the law applicable in the domicile of the hosting entity will have precedence at all times. Trimble makes no representation that the Service is appropriate or available for use in locations outside the United States, and accessing them from territories where they are illegal is prohibited. Customer may not use or export or re-export the Service or any copy or adaptation in violation of any applicable laws or regulations including, without limitation, United States export laws and regulations. If Customer chooses to access the Service from locations outside the United States, Customer does so on its own initiative and is responsible for compliance with applicable local laws.
In addition to the foregoing, if Customer is located in a country identified in the U.S. Department of Commerce Country Group D list, then it (1) acknowledges that the Service is subject to the Export Administration Regulations (EAR) and the jurisdiction of the U.S. Department of Commerce or subject to the International Traffic in Arms Regulations (ITAR) and the jurisdiction of the U.S. Department of State; (2) certifies that the export, re-export, resale, and/or transfer to any party who is listed by the government of the United States as prohibited from receiving the Service or other restrictions to any destination, end-user, or for any end use prohibited by the laws of the United States, or any other applicable law where such law does not conflict with the laws of the United States, will not be violated; (3) certifies that the Service will not be resold, transferred, or re-exported without prior authorization from the U.S. Government, to any military entity on the U.S. Department of Commerce Country Group D list; (4) certifies that the Service will not be used in designing, developing, production of or using rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (including cruise missile systems, target drones and reconnaissance drones); (5) certifies that the Service will not be used in the design, development, production, stockpiling, or using chemical or biological weapons, or precursors; (6) certifies that the Service will not be used in the design, development, production, or testing of nuclear weapons or nuclear explosive devices; (7) certifies that the Service will not be exported/re-exported to Cuba, Iran, North Korea, Sudan and Syria or any other country under an export embargo/sanction by the U.S. Department of Treasury or U.S. Department of Commerce at the time of export; (8) acknowledges that U.S. law prohibits the sale, transfer, export, or re-export or other participation in any transaction involving products with individuals or companies listed in the U.S. Commerce Department's table of Denial Orders, the U.S. Department of State's list of individuals debarred from receiving Munitions List items or other entity lists published by agencies of the U.S. Government; and (9) agrees that the export control requirements in this Section 12.11, including without limitation (1)-(8) above, will survive the completion, early termination, cancellation or expiration for this Agreement.
Customer will defend, indemnify and hold Trimble and its affiliates harmless against any liability (including attorneys’ fees) arising out of Customer’s failure to comply with the terms of this Section 12.11. Customer’s failure to comply with any term of this Section 12.11 constitutes a material breach of this Agreement and entitles Trimble to immediately terminate this transaction for Customer’s use of the Service in addition to any other remedy available at law or equity.
12.12 Government End-Users. Elements of the Service are commercial computer software. If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.
12.13. Open Source Software. The Service (including any Client Software) may contain or be provided with open source software. Open source software may be identified in the Documentation, or Trimble shall provide a list of the open source software licenses applicable to Customer’s use of the Service upon Customer’s written request. To the extent required by the license that accompanies the open source software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such open source software itself, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
12.14. Third-Party Materials. The Service may include third-party data, content or proprietary software (collectively, “Third-Party Materials”). To the extent specified by Trimble (including in any Product-Specific Terms), 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 elements of the Service which utilize such Third-Party Materials. If no Third-Party Terms are specified, Customer may use Third-Party Materials solely in support of its authorized use of the Service as set forth herein. NEITHER TRIMBLE NOR ITS SUPPLIERS OFFER ANY WARRANTY IN CONNECTION WITH ANY THIRD-PARTY MATERIALS AND NEITHER TRIMBLE NOR ITS SUPPLIERS WILL BE LIABLE TO CUSTOMER FOR SUCH THIRD-PARTY MATERIALS.
12.15. Purchase from Reseller. If Customer obtained access to the Service through a Reseller, the following terms are applicable and shall prevail in event of any conflict with any other provisions of this Agreement:
a) The terms of this Agreement constitute the only terms applicable to Customer’s access and use of the Service and no terms between Customer and the Reseller shall apply to its access and use of the Service.
b) Instead of paying Trimble, Customer will pay the applicable amounts to the Reseller, as agreed between Customer and the Reseller. If the Reseller fails to pay Trimble the applicable fees for Customer’s use of the Service, Trimble reserves the right to terminate the applicable Subscription Term for such Service and all related rights granted hereunder. Unless otherwise agreed between Customer and the Reseller, Customer may purchase renewal Subscription Terms for the Service under this Agreement directly from Trimble pursuant to an Order Form.
c) Customer’s order details (e.g., the applicable Service, the Subscription Term, Permitted Users, and any additional scope of use restrictions) will be as stated in the order placed with Trimble by the Reseller, and the Reseller is responsible for the accuracy of any such order as communicated to Trimble.
d) The Reseller may fulfill Trimble’s warranty obligations under Section 6.1 (Limited Warranty) on behalf of Trimble. Notwithstanding the foregoing, the Reseller has no authority to make any statements, representations, warranties or commitments on Trimble’s behalf and any such statements, representations, warranties or commitments are null and void. If the Reseller agrees to provide front-line support and maintenance services or Professional Services to Customer, Trimble has no responsibility for such Reseller-provided support and maintenance services or Professional Services.
e) In the event Customer is entitled to a refund under this Agreement, Customer must request such refund through the Reseller. Any request sent directly to Trimble may be redirected to the Reseller. Trimble will refund any applicable fees to the Reseller and the Reseller shall be solely responsible for refunding such fees to Customer. Trimble shall have no further liability to Customer in the event the Reseller fails to refund such fees to Customer.
f) Unless otherwise specified in the applicable Order Form or the Product-Specific Terms: (1) If Customer originally obtained the Service inside the United States, then “Trimble” for purposes of this Agreement is Trimble Inc., and if Customer originally obtained the Service outside the United States, then “Trimble” for purposes of this Agreement is Trimble Europe B.V.; and (2) the governing law, jurisdiction and venue for purposes of this Agreement are as specified in Section 12.3 (Governing Law; Venue).
12.16. Digital Millennium Copyright Act. If Customer believes that any content submitted to the Service by another user copies Customer’s work in a manner that constitutes copyright infringement, Customer will provide Trimble’s DMCA administrator the written information specified below, as required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2):
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that Customer claims has been infringed upon;
- A description of where the material that Customer claims is infringing is located on the Services;
- Customer’s address, telephone number, and e-mail address;
- A statement by Customer that Customer has a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by Customer, made under penalty of perjury, that the above information in Customer’s notice is accurate and that Customer is the copyright owner or authorized to act on the copyright owner’s behalf.
Trimble’s DMCA administrator for notice of claims of copyright infringement on the Service can be reached as follows:
935 Stewart Drive
Sunnyvale, CA 94085
(TRA-SER and Submittal Manager)
1. Overview. The Service allows Customers to access a database of product and pricing data for Mechanical, Electrical, and Plumbing components (collectively, “Content”) solely for its own internal use.
a) The TRA-SER Service allows Customers to create, utilize, and update a customized database of Content and obtain Customer-specific pricing from suppliers.
b) The Submittal Manager Service allows customers to create, mark-up, and customize project submittal documents using Content.
2. Trimble Entity. If Customer originally obtained the Service inside the United States, the Trimble entity for purposes of this Agreement is Trimble Inc., otherwise the Trimble entity is Trimble Europe B.V.
3. Content. If you have an agreement with Trimble in place regarding the use of Content (the "Content Agreement"), then such Content Agreement shall govern the use of Content accessed through the Services, but not the use of the Services itself, which will be governed by this Agreement. Content is provided by third-parties. Trimble is not responsible for Content (including, without limitation, as to its accuracy or completeness or availability), and as between Trimble and Customer, Customer assumes all risk and liability regarding any use of Content with the Service, including any results obtained using the Content and confirming any Content with the applicable third-party(ies). Trimble makes no guarantee that any Content is accurate and/or up to date, or that it will continue to update and/or make the Content available. Customer may access and use Content solely for its own internal use on an “AS IS” basis, and shall not, except as expressly authorized by Trimble in writing: (i) scrape the Content, or portions thereof, (ii) sell, offer to sell, rent, sublicense or transfer any copies of the Content, or portions thereof, to a third party or allow a third party to use the Content; (iii) use the Content to develop services or products for sale or include any portion of the Content in any product; (iv) use any portion of the Content to create a competitive service, product or technology; or (v) make any portion of the Content available to the public in any manner. Upon notice from Trimble and/or any termination or expiration of the Subscription Term, Customer must cease using and delete/destroy all electronic and physical copies of Content. CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT ANY WARRANTY BY TRIMBLE OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY, OR FITNESS FOR A PARTICULAR PURPOSE.
4. Annual Subscription Term and Renewals. Section 4.1 of the Agreement (Subscription Term and Renewals) is hereby amended and restated in its entirety to read as follows: “Unless otherwise set forth in the Order Form, the Subscription Term (A) is twelve (12) months and/or (B) will automatically renew for subsequent twelve (12)-month periods at Trimble’s then-current price unless either party provides the other with notice of cancellation at least sixty (60) days prior to expiration of the then-current Subscription Term.”
5. Payment Via Credit Card. If you are purchasing the Service via credit card, debit card or other payment card (“Credit Card”), the following terms apply:
a) Authorization and Recurring Billing. By providing Credit Card information and agreeing to purchase the Service, Customer hereby authorizes Trimble (or its designee) to automatically charge Customer’s Credit Card for all applicable fees owed for each Subscription Term, including, without limitation, any automatic renewal Subscription Term(s).
b) Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer’s Credit Card may charge a foreign transaction fee or other charges.
c) Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Trimble and Trimble may, in its sole discretion, (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) suspend Services and/or terminate this Agreement.
d) Changing Credit Card Information. At any time, Customer may change its Credit Card information by contacting its Trimble sales representative and/or e-mailing MEP_orders@trimble.com.
e) Opting Out of Recurring Billing. Customer may choose not to auto-renew its Subscription Term in accordance with Section 4 of this Exhibit A (Annual Terms and Renewals) or with the applicable Order Form.
6. Additional Warnings and Disclaimers. THE SERVICE IS A TOOL INTENDED TO BE USED BY TRAINED PROFESSIONALS ONLY. IT IS NOT A SUBSTITUTE FOR CUSTOMER'S PROFESSIONAL JUDGEMENT OR INDEPENDENT TESTING. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE SERVICE, THE SERVICE HAS NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH IT MAY BE USED. ANY USE BY CUSTOMER OF THE SERVICE, ANY CONTENT, ANY INPUT CUSTOMER PROVIDES OR ANY OUTPUT OF THE SERVICE IS SOLELY AT CUSTOMER’S OWN RISK AND CUSTOMER AGREES THAT TRIMBLE WILL HAVE NO LIABILITY FOR SUCH USE. TRIMBLE SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE RESULTS OBTAINED THROUGH THE USE OF THE SERVICE. CUSTOMER IS RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF THE SERVICE. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE SERVICE AND THE SELECTION OF THE SERVICE AND OTHER PROGRAMS TO ACHIEVE INTENDED RESULTS. CUSTOMER IS ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY OUTPUT OF THE SERVICE.
7. Use of Other Trimble Products and Services. The Service may support integrations with other software products and/or services provided by Trimble (“Trimble Products and Services”). Customer’s use of such Trimble Products and Services and any other features that are not part of the Service are governed by those offerings’ respective end user terms and conditions and not by this Agreement.
8. External Services. The Service may support integrations with software or services not provided by Trimble (“External Services”). In order for the Service to communicate with such External Services, you may be required to input credentials for the External Service. By enabling use of the Service with any External Service, you authorize Trimble to access your accounts with such External Service to authenticate such integrations. You are solely responsible for complying with any relevant terms and conditions of the External Services and maintaining appropriate accounts in good standing with the providers of the External Services.