This Trimble Sefaira Subscription Terms of Service (this “Agreement”) is entered into as of the Effective Date between Trimble Inc. and its affiliates (“Trimble”) and you (“Customer” or “you”), an entity accessing or using one or more Trimble Sefaira online software-as-a-service solutions. The Services (as defined below) are designed to enable users to understand the performance characteristics of digital models of buildings they create, including such elements as energy performance, use of natural daylight, HVAC sizing, and other similar metrics, as further described in the Documentation (as defined below).
Entry into the Agreement. The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Services or (b) the effective date of the first Quote referencing this Agreement. This Agreement governs use of the Services 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.
Quotes. 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, a “Quote”) for Customer’s purchase of a subscription to the Services from Trimble. The version of this Agreement referenced in the Quote will govern Customer’s purchase of the Services specified therein. This Agreement governs Customer’s initial purchase as well as any future purchases made by Customer that reference this Agreement. In the event of any conflict between this Agreement and a Quote, the terms of the Quote will prevail.
Purchase from Reseller: If Customer purchases any Services from an authorized distributor or reseller of Trimble (“Reseller”), Customer’s use of the Services will be governed by this Agreement, except that Customer will pay Reseller for the Services.
Changes to Agreement. From time to time, Trimble may modify this Agreement. Any changes will be effective upon the next renewal of Customer’s Subscription Term (as defined below). Customer may elect not to renew its Subscription Term if it does not agree to such changes (but use of the Services during the renewal Subscription Term will constitute acceptance of the amended Agreement). Trimble will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before continuing to use the Services. The then-current version of this Agreement can be accessed and viewed at any time at www.sefaira.com/tos.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICES, 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 USE THE SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
“Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
“Collaborator” means an individual who is granted limited access to the Services as described in Section 4.
“Contractor” means an independent contractor or consultant who is not a competitor of Trimble.
“Web Application” means Trimble’s online user interface for accessing and administering the Services.
“Model” means a three-dimensional digital model of a building created using a Modeling Program.
“Modeling Program” means Trimble SketchUp® or other modeling software programs designated by Trimble as compatible with the Services.
“Output” means any energy performance, energy efficiency, HVAC sizing or other reports, or any other output, generated by the Services.
“Plug-Ins” means the downloadable plug-ins for the Services made available to Customer by Trimble.
“Project” means a collection of one or more Models, together with data associated with or calculated based on the Models.
“Services” means Trimble’s proprietary Sefaira software-as-a-service solution(s), including the Web Application, Plug-Ins and Output, as described in the applicable Quote.
2. THE SERVICESS
2.1. Provision of the Services. The Services are provided on a subscription basis for a set term designated on the Quote (each, a “Subscription Term”). Trimble may also offer Professional Services (as defined in Section 10) related to the Services.
2.2. Access to the Services. Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the end user technical documentation provided with the Services (“Documentation”) and any scope of use restrictions designated in the applicable Quote. Use of and access to the Services is permitted concurrently only by the number of employees of Customer specified in the applicable Quote (“Permitted Users”). If Customer is given passwords to access the Services, 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, if Customer is ordering a “Managed License” as set forth in the applicable Quote, Customer may transfer Permitted User status from one employee to another at any time, provided that Customer remains compliant with this Section 2.2, including without limitation by limiting the number of Permitted Users to the number specified in the applicable Quote.
2.3. Output and Plug-Ins. Subject to all of the terms and conditions of this Agreement, Trimble grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license (a) during and after any applicable Subscription Term to use the Output for its business purposes and (b) during any applicable Subscription Term to use the object code form of the Plug-Ins internally, but only (i) with compatible Modeling Programs for which the Plug-Ins are designed and (ii) in connection with Customer’s use of the Services and otherwise in accordance with the Documentation and this Agreement.
2.4. Modeling Programs. The Services can be used in connection with Modeling Programs. Certain Modeling Programs are developed and distributed by third parties (“Third Party Modeling Programs”). All Third Party Modeling Programs are sold and supported separately by the applicable third party providers and, notwithstanding anything to the contrary in this Agreement, Trimble does not provide any support for Third Party Modeling Programs. Use of any Modeling Program (including Third Party Modeling Programs and Trimble’s Modeling Programs) by Customer is governed by Customers’ agreement with the supplier of such Modeling Program and is not governed by this Agreement.
2.5. Contractors and Affiliates. Customer may permit its Contractors and Affiliates to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement and any such use of the Services by such Contractor or Affiliate is for the sole benefit of Customer. Use of the Services by Affiliates, Contractors and Customer in the aggregate must be within the restrictions in the applicable Quote. The Affiliate rights granted in this section will not apply to any “enterprise wide” licenses unless Affiliate usage is designated in the applicable Quote.
2.6. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services 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 Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Trimble); (d) copy or modify the Services 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 Services (including any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.7. Third Party Terms. Trimble may use third party products and services (including without limitation software subject to open source and third party license terms that is incorporated in the Plug-Ins) in its provisioning of the Services, including without limitation for hosting Customer Data (“Third Party Offerings”). If Trimble notifies Customer of any additional end user terms or open source or third party licenses for use of such products and services (“Third Party Terms”), then Customer agrees to comply with such Third Party Terms. Any noncompliance by Customer with any Third Party Terms will be deemed a material breach of this Agreement. Neither Trimble nor Trimble’s suppliers offer any warranty in connection with any Third Party OFFERINGS (including without limitation any warranty the third party offerings will continue to be provided as part of the services) and neither Trimble nor ITS Suppliers will be liable to CUSTOMER for such Third Party OFFERINGS. In the event of a conflict between this Agreement and any Third Party Terms, the Third Party Terms will control with regard to Customer’s use of the relevant Third Party Offerings. The applicable Third Party Terms with respect to the Services (including, without limitation, any open source software utilized in the Plug-Ins and the applicable license terms) are listed at http://sefaira.com/sefaira-oss-components/.
2.8. Trial Subscriptions. Where indicated in the applicable Quote, Customer may receive free access or a trial or evaluation subscription to the Services (a “Trial Subscription”). If Customer receives a Trial Subscription, then Customer may use the Services in accordance with the terms and conditions of this Agreement and the applicable Quote for the period designated in such Quote 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 Services. Customer may not use a Trial Subscription for any other purpose, including without limitation for competitive analysis or commercial Projects. 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 Services. 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 Services unless otherwise specified in the Quote for the Trial Subscription. Trimble has the right to terminate a Trial Subscription at any time for any reason. The Services 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 SERVICES ARE PROVIDED “AS IS” AND TRIMBLE WILL HAVE NO WARRANTY OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS UNLESS OTHERWISE SPECIFIED IN THE APPLICABLE QUOTE.
3. CUSTOMER DATA
3.1. Definition. “Customer Data” means any business information or other data of any type that is input by or on behalf of Customer into the Services (including without limitation any Models).
3.2. 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 Services to Customer.
3.3. 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 Services prior to termination of Customer’s applicable Subscription Term. Trimble expressly disclaims all other obligations with respect to storage.
3.4. Customer Obligations.
a) In General. Customer will ensure that Customer’s use of the Services 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 3.2 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. In addition, Customer specifically agrees not to submit to the Services 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 Services are 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 Services, including without limitation in the submission of Customer Data. Misuse includes, but is not limited to:
3.5. Indemnification by Customer. Customer will indemnify, defend and hold harmless Trimble 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 2.7 (Third Party Terms) or Section 3.4 (Customer Obligations), or (c) any service or product offered by Customer in connection with or related to the Services. 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. Customer will not settle any claim without Trimble’s prior written consent, unless the settlement fully and unconditionally releases Trimble and does not require Trimble to pay any amount, take any action, or admit any liability.
4.1. Invitation. Customer may invite Collaborators to access Projects shared by Customer via the Web Application for the limited purpose of viewing Output with respect to such Projects. Customer will have sole discretion as to (a) which Projects are shared and (b) which Collaborators are permitted to access each Project. Trimble is not responsible for any actions taken by a Collaborator.
4.2. Collaborator Access. If a Collaborator is a current Trimble customer of the Services, then such Collaborator will access Customer’s Models via such Collaborator’s existing Services account. If a Collaborator is not a current Trimble customer of the Services, then Customer must provision such Collaborator with Permitted User access as set forth in Section 2.2 (Access to the Services), but such Collaborator’s access to the Services will be limited to the purposes described in Section 4.1.
5.1. Trimble Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services 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 Services, 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 Services are offered as on-line, hosted solutions, and that Customer has no right to obtain a copy of the any of the Services, except for the Plug-Ins and Output.
5.2. 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 and services.
5.3. 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 Services, including, but not limited to, using such data for any internal business purpose, and for the improvement, support, and operation of the Services, 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 Services, 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, title and interest, if any, in and to such items to Trimble without any fees and without rights to future royalties.
6. Subscription Term, FEES & PAYMENT
6.1. Renewals. Unless otherwise set forth in the applicable Quote, at the end of each Subscription Term, the parties may renew the Subscription Term for a length and at pricing as mutually agreed by the parties in writing.
6.2. Fees and Payment. All fees are as set forth in the applicable Quote and will be paid by Customer within thirty (30) days of invoice, unless otherwise specified in the applicable Quote. Except as expressly set forth in Section 8 (Limited Warranty), all fees are non-refundable. The rates in the Quote 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.
6.3. Suspension of Services. If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Trimble reserves the right to suspend Customer’s access to the Services (and any related services) without liability to Customer until such amounts are paid in full.
7. TERM AND TERMINATION
7.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
7.2. Termination for Cause. Either party may terminate this Agreement (including all related Quotes) 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).
7.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to the Services (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. For clarity, if Customer entered into a Quote with a Reseller (and not Trimble itself), Customer agrees that Trimble is a third party beneficiary to that Quote and has the right to terminate this Agreement as set forth herein.
7.4. Survival. The following Sections of this Agreement will survive any expiration or termination of this Agreement: 1.6 (General Restrictions), 3.3 (Storage of Customer Data), 3.5 (Indemnification by Customer), 5 (Ownership), 6.2 (Fees and Payment), 7 (Term and Termination), 8.2 (Warranty Disclaimer), 8.3 (Warnings; Additional Disclaimers), 11 (Limitation of Remedies and Damages), 12 (Confidential Information) and 14 (General Terms).
8. LIMITED WARRANTY
8.1. Limited Warranty. Trimble warrants, for Customer’s benefit only, that the Services, 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 Services 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 shall 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 shall receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Services for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 8.1 shall 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 Services, (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.
8.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 8.1, THE SERVICES ARE 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 Services 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.
8.3. Warnings; Additional Disclaimers. THE SERVICES ARE TOOLS INTENDED TO BE USED BY TRAINED PROFESSIONALS ONLY. THEY ARE NOT SUBSTITUTES FOR CUSTOMER’S PROFESSIONAL JUDGMENT OR INDEPENDENT TESTING. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE SERVICES, THE SERVICES HAVE NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH THEY MAY BE USED. ANY USE BY CUSTOMER OF THE SERVICES IS SOLELY AT CUSTOMER’S OWN RISK AND CUSTOMER AGREES THAT TRIMBLE WILL HAVE NO LIABILITY FOR SUCH USE. Trimble makes no representations or warranties, AND SHALL HAVE NO LIABILITY, with respect to any Third Party Modeling Programs, including without limitation regarding interoperability of the Services with any Third Party Modeling Program. TRIMBLE SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE OUTPUT OBTAINED THROUGH THE USE OF THE SERVICES OR CUSTOMER’S RELIANCE ON SUCH OUTPUT (INCLUDING WITHOUT LIMITATION CUSTOMER’S USE OF OUTPUT AS VALIDATION FOR COMPLIANCE WITH ANY REGULATIONS OR STANDARDS). CUSTOMER IS RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF THE SERVICES. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE SERVICES AND THE SELECTION OF THE SERVICES 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 SERVICES.
9. SUPPORT AND SERVICE LEVELS. During the Subscription Term, (a) Trimble will provide end user support in accordance with Trimble’s standard service terms, which are available upon request from Trimble, and (b) the Services will be subject to the Trimble Service Level Agreement, available at http://sefaira.com/sla.
10. Professional Services. If the applicable Quote 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.
11. Limitation of Remedies and Damages
11.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY Nor its suppliers WILL BE LIABLE FOR ANY LOSS OF USE, LOST or INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
11.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TRIMBLE’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO TRIMBLE DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
11.3. Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 2.6 (General Restrictions), Section 2.7 (Third Party Terms), or Section 12 (Confidential Information); or (b) under Section 3 (Customer Data).
11.4. Failure of Essential Purpose. The parties agree that the limitations specified in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
12. 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 Services, and the terms and conditions of this Agreement shall 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 14.8), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 12 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 12. The Receiving Party’s confidentiality obligations shall 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 shall 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 12.
13. 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.
14. GENERAL TERMS
14.1. 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 14.1 will be null and void.
14.2. 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.
14.3. Governing Law; Venue. This Agreement will be construed in accordance with the laws of the State of California, USA without reference to its choice of law provisions and without regard to the United Nations Convention on the International Sale of Goods. The Federal and State courts located in Santa Clara County, California will be the exclusive venue for any claim or dispute between the parties or against any agent, employee, successor or assign of the other related to this Agreement and the parties hereby consent to the personal jurisdiction of those courts for such purposes.
14.4. Notices and Electronic Communications. By registering with Trimble, Customer understands that Trimble may send Customer communications or data regarding the Services, including but not limited to (a) notices about Customer’s use of the Services, 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 Navigation Limited, Attn: General Counsel, 935 Stewart Drive, Sunnyvale, CA 94085, USA.
14.5. Amendments; Waivers. 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.
14.6. 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 Services are on-line, subscription-based offerings, and that in order to provide improved customer experience Trimble may make changes to the Services, and Trimble will update the applicable Documentation accordingly. Any support terms described in the applicable Quote 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.
14.7. 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.
14.8. Subcontractors. Trimble may use the services of subcontractors and permit them to exercise the rights granted to Trimble in order to provide the Services 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 Services as required under this Agreement.
14.9. 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.
14.10. 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.
14.11. Export Control. The Services are 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 Services, 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 Services in violation of any U.S. export embargo, prohibition or restriction; and (c) Customer will not submit to the Services 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 Services. 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 Services the law applicable in the domicile of the hosting entity will have precedence at all times. Trimble makes no representation that the Services are 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 Services 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 Services 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 Services are 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 Services 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 Services 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 Services 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 Services will not be used in the design, development, production, stockpiling, or using chemical or biological weapons, or precursors; (6) certifies that the Services will not be used in the design, development, production, or testing of nuclear weapons or nuclear explosive devices; (7) certifies that the Services 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 14.11, 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 14.11. Customer’s failure to comply with any term of this Section 14.11 constitutes a material breach of this Agreement and entitles Trimble to immediately terminate this transaction for Customer’s use of the Services in addition to any other remedy available at law or equity.
14.12. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, 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 Services were developed fully at private expense. All other use is prohibited.
14.13. Purchase from Reseller. If Customer purchased the Services through a Reseller under an order form directly with such Reseller (“Reseller Order Form”), then the following terms apply:
a) Notwithstanding Section 6.2 (Fees and Payment), all fees for the relevant Services will be payable directly to the Reseller. The Reseller Order Form will stand in for the “Quote” for purposes of identifying the Services, Professional Services, fees and scope of use and support.
b) Resellers may provide additional support services under a separate written agreement with Customer, but Trimble is not responsible for any such support.
c) If a Reseller Order Form includes any Professional Services, then the Reseller (and not Trimble) is solely responsible for providing Professional Services and Trimble has no liability related to such Professional Services.
d) If Reseller fails to pay Trimble the applicable fees for Customer’s use of the Services, Trimble reserves the right to suspend Customer’s access to the Services until proper payment is received by Trimble (including interest as set forth in Section 6.2 (Fees and Payment), as appropriate) or to terminate this Agreement in accordance with Section 7.2 (Termination for Cause).
e) In the event Customer is entitled to a refund under this Agreement, Customer must request such refund through Reseller. Unless otherwise elected by Trimble in its sole discretion, Trimble will refund any applicable fee to the applicable Reseller and the Reseller will be solely responsible for refunding appropriate fees to Customer.
f) Except as specified in this Section 14.13, Customer’s access to and use of the Services is subject solely to this Agreement and not to any terms on the Reseller Order Form or any other Reseller terms. No Reseller has authority to modify this Agreement or to make any statements, representations, warranties or commitments on Trimble’s behalf; any such modifications, statements, representations, warranties or commitments will be null and void.
4.14. Digital Millennium Copyright Act. If Customer believes that any content submitted to the Services 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):
Trimble’s DMCA administrator for notice of claims of copyright infringement on the Services can be reached as follows:
935 Stewart Drive
Sunnyvale, CA 94085