HomeMy WebLinkAboutC2019-627 - 11/19/2019 - Approved L'1H EXAG ON
SAFETY&INFRASTRUCTURE
MAINTENANCE RENEWAL POLICIES
LATE RENEWAL
If your maintenance renewal is not received prior to the performance period begin date, in
addition to any reinstatement fees that may be charged as described below, maintenance
services for the new coverage period may be terminated or suspended by Intergraph
Corporation d/b/a Hexagon Safety & Infrastructure. This includes your ability to access system
support or the knowledge base, and the ability to log or check support requests. Therefore it is
important that you do not delay in renewing your maintenance service contract.
REINSTATEMENT FEE FOR LAPSE IN HEXAGON
MAINTENANCE COVERAGE
Hexagon charges a 25% reinstatement fee when maintenance coverage lapses because a
renewal is not received by the performance period begin date. Notwithstanding the foregoing,
for all Oracle products there is a 50% reinstatement fee when maintenance coverage lapses
because a renewal is not received by the performance period begin date. The reinstatement
fee will be calculated and assessed for each month in which there has been a lapse in
coverage. The details of this fee may be found in Section 4.1 of the Terms and Conditions. To
ensure you are not assessed a reinstatement fee, please return your renewal instructions
before the performance period begin date.
LICENSE RE-PURCHASE FOR LAPSE IN MICROSOFT
SQL SERVER AND BIZTALK MAINTENANCE
COVERAGE
Hexagon's agreement with Microsoft for reinstating maintenance that has lapsed on Microsoft
SQL Server and BizTalk licenses obtained from Hexagon and for which Hexagon provides
maintenance and support. Microsoft only allows Hexagon to provide maintenance (including
upgrades of the Microsoft products) to you if you provide renewal instructions prior to the
performance period begin date shown in the attached quote and without any lapse in coverage.
Any maintenance renewal received on or after the performance period begin date is considered
to be a lapse in coverage and will not be accepted by Hexagon. Therefore, if your renewal for
the Microsoft license maintenance is not received by Hexagon by the performance period begin
date, when you wish to upgrade to a new version of SQL Server and/or BizTalk, you are
SCANNED
e4 HEXAGON
SAFETY&INFRASTRUCTURE
required to re-purchase the licenses for the Microsoft products at the then current list price of
those products, plus one year of maintenance coverage from the date of re-purchase. You will
not be eligible to obtain support services from Hexagon during any lapse in maintenance
coverage for SQL Server and/or BizTalk.
BUSINESS INTELLIGENCE MAINTENANCE BEGINS
WITH LICENSE PURCHASE; MAINTENANCE
RENEWALS MUST BE RECEIVED BEFORE CURRENT
MAINTENANCE TERM EXPIRES
Due to constraints related to third-party content in the Business Intelligence suite, the
maintenance term must begin when Business Intelligence licenses are purchased. The
maintenance must renew, if elected, on the anniversary of the license purchase; therefore, your
renewal instructions must be received prior to the performance period begin date shown in the
attached quote and without any lapse in coverage. Any maintenance renewal received on or
after the performance period begin date is considered to be a lapse in coverage and will not be
accepted by Hexagon. Therefore, if your renewal for the Business Intelligence license
maintenance is not received by Hexagon by the performance period begin date, when you wish
to upgrade to a new version of Business Intelligence, you are required to purchase an upgrade
of the Business Intelligence products at a price that is fifty percent (50%) of the then current list
price, plus one year of maintenance coverage from the date of the upgrade purchase. You will
not be eligible to obtain support services from Hexagon during any lapse in maintenance
coverage for the Business Intelligence products.
CHARGES ARE PAYABLE ANNUALLY AND IN
ADVANCE
Hexagon's payment terms are annual, in advance, for maintenance service contracts. If you
wish to instead pay quarterly in advance, please request a revised quotation. A convenience
fee of 15% will be added to contracts with quarterly payment schedules instead of annual. The
convenience fee will be prorated across the four quarterly invoices.
May 25, 2016 2
HEXAGON
SAFETY&INFRASTRUCTURE
Hexagon Safety & Infrastructure
U.S. Maintenance Terms and Conditions for Software for Corpus
Christi Texas
This document ("Terms and Conditions") and the Quote to which these Terms and Conditions are
attached set forth the terms and conditions for the maintenance of software and related support
services by Intergraph Corporation doing business as Hexagon Safety& Infrastructure ("Hexagon")
for Customer.
1. DEFINITIONS
1.1. "Affiliate" means any entity or person controlled by or under common control of
Hexagon. For the purposes of this Agreement, the term "control" means ownership, directly
or indirectly, of equity securities entitling the owner to exercise in the aggregate equal or
more than twenty-five percent (25%) of the voting power of the entity in question. For the
avoidance of doubt, any Affiliate of Hexagon is as well deemed an Affiliate of any other
Affiliate of Hexagon; also Hexagon is an Affiliate of any of its Affiliates.
1.2, "Agreement" means (1) the binding contract incorporating these Terms and Conditions as
well as the Quote submitted to Customer under Section 2 and/or, if applicable, (2) the
binding contract incorporating a Quote submitted to Customer under Section 3.2 and/or
Section 12.1 as well as the maintenance service contract terms and conditions referenced
therein.
1.3. "Coverage Period" means the period of performance set forth in the Quote.
1.4. `Covered Products" means the software listed on the Quote for which Services are to be
provided to Customer by Hexagon. Covered Products shall also include additional copies of
the software (i)where the original software is already covered by the Agreement and (ii)for
which additional licenses are purchased or otherwise obtained by Customer during the
Coverage Period. Covered Products may include Software Products, as well as Third Party
Software,
1.5. "Customer"means the entity or person purchasing Services.
1.6. "Quote" means a quotation for Services submitted to Customer by Hexagon or an
authorized Hexagon partner, along with a product quotation at time of purchase of the
product to be maintained. according to Section 2, or a quotation for Services submitted to
Customer by Hexagon, according to, Section 3.2 and/or Section 12.1.
1.7. "Services" means the maintenance and support services for Covered Products that are
further described in the Agreement.
1.8. "Software Product"includes Hexagon's or Hexagon's Affiliate's computer software and all of
the contents of the files, disk(s), CD-ROM(s) or other media with which the software is
provided, including any templates, data, printed materials, and "online" or electronic
documentation, all copies, and any Updates of such Software Products. Software Products
are subject to all of the terms and conditions of the End-User License Agreement ("EULA")
provided with the Software Product.
1.9. "Third Party Software" means computer software or other technology in which any
person or entity, other than Hexagon or Hexagon's Affiliate, has any right, title or interest,
including any restrictions or obligations (such as obligations to obtain consents or approvals
and restrictions that may be eliminated only by obtaining such consents or approvals)
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applicable to the computer software or technology, but does not include software embedded
in the Software Products by license from third parties. The use of Third Party Software is
subject to all of the terms and conditions of the third party's software license or similar
agreement("SLA") provided with the Third Party Software.
1.10. "Update(s)" means any Upgrade, modified version, fix, patch and/or update of Covered
Products. The use of Updates is subject to all of the terms and conditions of the EULA or
SLA provided with Customer's current version of the Covered Products.
1.11. "Upgrade(s)" means each new release of Covered Products. Upgrades require a full
installation and may be provided with a separate EULA or SLA. Any EULA or SLA delivered
with the Upgrade will supersede any EULA or SLA associated with prior releases of the
Covered Products.
2. AUTHORIZATION OF SERVICES
By either(a)returning a signed Quote; (b) submitting a signed purchase order referencing a Quote;
(c) paying any charges as set forth on a Quote; or(d)accepting delivery of Services as set forth on a
Quote, Customer authorizes Hexagon to provide the Services for Covered Products during the
Coverage Period in accordance with the Agreement. The Services will be provided by Hexagon in
accordance with the Scope of Coverage as set forth in Section 5, The Agreement shall only become
binding and effective upon the written acceptance by Hexagon or the first delivery of the Services set
forth in the Quote, whichever is earlier.
3. TERM
3.1. Term. This Agreement shall begin, retroactively (if applicable), on the first calendar day of
the first month of the applicable Coverage Period, and shall expire at the end of the
Coverage Period unless terminated earlier as provided in Section 18, or renewed by mutual
agreement of the parties in accordance with Section 3.2. The Coverage Period shall be for
whole months only.
3.2. Renewal. Approximately ninety (90) days prior to the expiration date of any Coverage
Period, Hexagon will submit to Customer a renewal Quote that includes pricing for the
upcoming Coverage Period. Section 2 shall apply mutatis mutandis to the formation of the
Agreement based on the renewal Quote as well as the maintenance service contract terms
and conditions referenced therein or made available to Customer together with the renewal
Quote. If the Agreement is not entered into based on the renewal Quote as well as the
maintenance service contract terms and conditions referenced therein, Hexagon, after the
preceding Coverage Period has expired, shall be entitled to discontinue Services for the
affected Covered Products, including access to system support or knowledge base, and/or
end the ability of Customer to log or check support requests.
4. REINSTATEMENT OF MAINTENANCE SUPPORT COVERAGE
4.1. Lapse in Software Maintenance Coverage. To reinstate Services after any termination or
suspension thereof, Customer must pay a reinstatement fee. The Coverage Period for any
reinstated Services (the "Renewal Coverage Period") shall begin on the first day after the
expiration or termination of the last paid-in-full Coverage Period and extend until the next
purchase anniversary date of the lapsed Covered Products. The reinstatement fee will equal
twenty-five percent(25%)of the past due maintenance charges(rounded up to whole months
only) for the Renewal Coverage Period, and shall be in addition to the total maintenance
charges due for the Renewal Coverage Period, all calculated at the current maintenance list
price. Upon request of Customer, Hexagon will provide a Quote for the Renewal Coverage
Period, to include the reinstatement fee, which is applicable only for reinstatement made in
the then-current month.
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4.2. Failure to Obtain Maintenance Coverage. In the event Services were not purchased at the
time that the Covered Product was originally purchased, in order to obtain Services,
Customer must pay one hundred twenty-five percent (125%) of all maintenance payments
from the date the original Covered Product was purchased up to the date the Services are
actually purchased, plus one hundred percent(100%)of the remaining Coverage Period that
expires upon the anniversary date of the original Covered Product purchase, all calculated at
the current maintenance list price. The Coverage Period for such Covered Products will begin
on the first day of the month in which the Covered Products were originally purchased.
5. SCOPE OF COVERAGE FOR SOFTWARE PRODUCTS
Services described in this Section apply to Software Products only. Services for Third Party Software
are set forth in Section 10.
Hexagon offers two levels of Services for Software Products included in the Covered Products:
Standard Support and Premium Support. Under both levels of Services, Hexagon shall provide
reasonable commercial efforts to aid in the diagnosis and correction of defects in and provide general
advice as to the use of the Software Products included in the Covered Products. The level of Services
will be set forth on the Quote and will include the following:
5.1. Standard Support: Standard Support will include and be limited to the following:
5.1.1. Help Desk Support. Out-of-the-box functionality support via the Help Desk
(telephone or eService via Hexagon's Customer Support Web Site where available at
https://support.hexagonsafetvinfrastructure.com). Phone support for all priority levels of
software errors is available on Monday through Friday from 8AM—5PM at
Customer's local time, excluding Hexagon-observed holidays. Local variances in
support hours will be posted on the Customer Support Web Site or applicable local
support website, or can be determined by contacting Customer's local Hexagon
office.
5.1.2. Updates. Access to all available Updates of Software Products included in the
Covered Products. Hexagon will notify Customer when Updates are made available
for any Software Products for which Service has been purchased, by way of posting
notices of such to the"Support Notices and Announcements"section on the Customer
Support Web Site or applicable local support website or via direct notification by
Hexagon. If applicable, Customer may also register on the Customer Support Web
Site or applicable local support website to automatically receive email notifications
when a new release of a Software Product is made available by Hexagon. Updates
are shipped to Customer upon Customer request. Hexagon is not obligated to produce
any Updates.
5.1.3. Knowledge Base. Twenty-four-hour-per-day/seven-day-per-week access to problem
Knowledge Base, an on-line self-help tool.
5.2. Premium Support: Premium Support will include all of the features available under
Standard Support. Additionally,when the software error is considered to be critical
(meaning production is down), then phone support is also available after-hours and on
Hexagon-observed holidays.
Hexagon may not provide both levels of support for all Software Products in all countries. Customer
may choose any level of Services offered, however all Software Products included in the Covered
Products under the Agreement must have the same level of Services when available.
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Services are only available for the current version and the one version prior to the current version of
a particular Software Product. Services are limited to the specific Software Products listed on the
Quote and functioning on the appropriate Hexagon-supported operating system.
6. MINIMUM SYSTEM REQUIREMENTS; CUSTOMER'S OBLIGATIONS
Performance of Services by Hexagon is specifically conditioned upon the following minimum system
requirements and fulfillment by Customer of the following obligations (collectively, minimum system
requirements and customer obligations hereinafter referred to as"Customer Obligations"):
6.1. Customer's hardware and operating system software must meet the minimum system
requirements specified by Hexagon and made available to Customer upon request.
6.2. Customer's system must have input and output devices that enable the use of
Hexagon's diagnostic programs and supplemental tests. The specifications of such devices
shall be made available to Customer by Hexagon upon request.
6.3. Customer will be responsible for any required adjustments or updates to its hardware and/or
operating system software required to accommodate Updates of Covered Products.
6.4. Customer will ensure availability of its own system technical support personnel so that
Hexagon can fulfill its Service obligations.
6.5. When reporting problems to Hexagon's Help Desk, Customer will provide a complete
problem description, along with all necessary documents and information that is available to
Customer and required by Hexagon to diagnose and resolve the problem. Customer will grant
all necessary access to all required systems as well as to the Covered Products, and any
other reasonable assistance needed.
6.6. Customer will carry out any reasonable instructions on troubleshooting or circumvention of
the problem provided by Hexagon through the Authorized Contact (as defined below in
Section 8.1) immediately and in conformity with these instructions, and will install any
necessary patches, defect corrections or new versions from Hexagon.
6.7. Customer is solely responsible for assuring the compatibility of non-Hexagon products with
products provided by Hexagon.
6.8. Customer is solely responsible for ensuring its systems, software, and data are
adequately backed up. Hexagon will not be liable for lost data.
In addition, Customer shall provide for any other requirements reasonably specified by Hexagon and
related to the rendition of the Services to be met.
If Customer fails to fulfill its Customer Obligations, Hexagon is entitled to bill Hexagon's time and effort
made necessary by Customer's failure at Hexagon's currently stated hourly rates.
7. EXCLUDED SOFTWARE SERVICES
Services for the following are outside the scope of this Agreement and may be available under
separate agreement at an additional charge (collectively"Excluded Services"):
7.1. Installation of any Covered Product, Update, or interface software
7.2. Network configuration
7.3. Configuration or customization of Covered Products to customer requirements.
7.4. System-level tuning and optimization and system administration support
7.5. Programming or software development
7.6. Training
7.7. Services required because the Authorized Contact is not available or is not trained in
accordance with Section 8
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7.8. On-site Services
7.9. Services outside of the regular business hours associated with the applicable level of
Services
7.10. Services required due to modifications of Covered Products by Customer. In the case of
Hexagon software modules which assist in the creation and use of Customer software, the
performance of Services under the Agreement is restricted to unmodified components of
these Covered Products
7.11. Services required due to use other than in the ordinary manner intended for the Covered
Products, or use in a manner that contravenes terms hereunder, or Customer's disregard of
the installation and operating instructions according to the documentation provided with the
Covered Products
7.12. Services required due to failure of software or hardware not supplied by Hexagon and not
covered in the Agreement
7.13. Services required due to Customer's use of hardware or software that does not meet
Hexagon specifications or failure of Customer to maintain or perform industry standard
maintenance on Customer's hardware or software
7.14. Services required due to software or portions thereof that were incorrectly installed or
configured, or use in an environment inconsistent with the support environment specified by
Hexagon, or used with peripherals, operational equipment or accessories not conforming to
Hexagon's specifications
7.15. Services required due to cases of force majeure, especially lightning strikes, fire or flood or
other events not caused through Hexagon's fault.
7,16. Services required due to customer's failure to fulfill the Customer Obligations set forth in
Section 6
7.17. Services required due to faulty or incomplete Customer data.
When ordered by Customer, Excluded Services or other software maintenance support services that
are outside the scope of this Agreement will be billed by Hexagon according to the stated hourly rates
and material prices in effect at the time such service is performed.
8. SYSTEM SUPPORT TECHNICIAN
8.1. Customer will appoint a minimum of two and a maximum of three contact people who are
each authorized to make use of the Services ("Authorized Contacts").
8.2. Customer must make sure that the Authorized Contacts have adequate expertise and
experience to make possible a targeted and professionally accurate description of
malfunctions and make it possible for Hexagon to handle them efficiently. Authorized
Contacts must have successfully completed Hexagon product training or complete it at the
next available scheduled opportunity, for those products for which formal training is available.
Customer will bear the cost of this training. Customer is obligated to select only those
personnel for this task who are suitable for it by means of training and function,and who have
knowledge of Customer's operating system, network, and hardware and software systems.
Customer agrees to promptly notify Hexagon of any replacement of an Authorized Contact.
9. REMOTE ACCESS
Customer will permit Hexagon to electronically access Customer's system via SecureLinkTM
SecureLinkTM is a tool for providing secure, auditable remote access to Customer's system in order
for Hexagon support personnel ("Customer Support") to effectively troubleshoot critical or complex
problems and to expedite resolution of such issues. The Authorized Contacts should be available to
assist Hexagon Customer Support as needed during this entire process. Customer Support will only
access Customer's system with the knowledge and consent of Customer. For local variances specific
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to the use of remote access tools other than SecureLinkTM, Customer should contact the local
Hexagon support office.
10. THIRD PARTY SOFTWARE
Support and Updates of Third Party Software shall be provided in the fashion and to the extent or
duration that Hexagon is authorized to provide such by the third party manufacturer of the Third Party
Software, and such Third Party Software Services may be subject to additional terms and conditions
of the third party manufacturer of the Third Party Software.
Services and Updates for any Third Party Software that are not listed on the Quote must be obtained
from the third party owner of the products or their designated representative.
11. REQUIRED COVERAGE
11.1. Multiple or Interdependent Licenses. Customer may not decline maintenance for individual
licenses of a Covered Product for which Customer has multiple copies under Service at one
site or for Covered Products that are being used interdependently at a single site, except in
accordance with the relinquishment process described in Section 12.2.
11.2. Prerequisite Licenses. All prerequisite Hexagon software licenses that are necessary to
operate the Covered Products for which Customer desires Services under the Agreement
must also be included as Covered Products and listed on the Quote.
12. ADDITIONS AND REMOVALS OF COVERED PRODUCTS
12.1. Additions of Covered Products to Maintenance.
12.1.1. Additional Software Products from Hexagon. In the event Customer purchases
additional licenses of Software Products from Hexagon during the term of this
Agreement, Hexagon will provide Customer with a written extension Quote that
reflects the additional licenses, the effective date of Service, and charges for the
additional licenses, pursuant to the Agreement.
12.1.2. Additional Software Products from a third party. In the event Customer obtains
additional licenses of Software Products from an authorized reseller or by any other
means, Customer agrees to promptly notify Hexagon in writing about the newly
acquired Software Products, and upon receipt of such notice, Hexagon will provide
Customer with a written extension Quote that reflects the additional licenses, the
effective date on which Hexagon may commence the Services with respect to the
copies of the Software Product pertaining to the additional licenses, and the charges
that would be due in return for these Services pursuant to the Agreement.
12.1.3. Section 2 shall apply mutatis mutandis to the formation of the Agreement based on the
extension Quote submitted to Customer under Section 12.1.1 or Section 12.1.2 as well
as the maintenance service contract terms and conditions referenced therein or made
available to Customer together with the extension Quote. If the Agreement is not
entered into based on the extension Quote as well as the maintenance service contract
terms and conditions referenced therein, then the terms and conditions in Section 4
regarding reinstatement of Services will apply to the additional licenses of Software
Products. If, however, the additional Software Products are multiple, interdependent,
or prerequisite licenses as described in Section 11 above, Services may not be
declined, and Services and the appropriate monthly charges will begin on the effective
date as shown on the extension Quote.
12.1.4. Additional Software Products via Software Transfer Policy. Customer shall purchase
Services on all additional licenses of Software Products for a site obtained via software
license transfer. Any such software license transfers shall be in accordance with the
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then-current Hexagon Software Transfer Policy and the EULA or other applicable
Software License Agreement delivered with the Software Product.
12.2. Removal of Covered Products from Maintenance. Either party may provide written notice
to the other party at least sixty(60) calendar days prior to the end of any Coverage Period
of its intent to remove any individual Covered Products from the Agreement for the renewal
period. Neither party may remove Covered Products except upon Agreement renewal.
Customer may not remove from the Agreement individual software licenses of a Covered
Product for which Customer has multiple copies under Service at one site or for Covered
Products that are being used interdependently at a single site, unless Customer has first
certified to Hexagon on a "Software Relinquishment Agreement" that the copies of the
Covered Product for which Customer desires to cease Services (the "Relinquished
Licenses") for the renewal Coverage Period have been uninstalled and removed from its
system(s). Should Customer desire to reinstate Services for the Relinquished Licenses at a
later date, Customer must re-purchase the licenses at the then current list price.
13. PAYMENT
13.1. Terms of Payment. Charges for Services are due and payable annually and in advance.
For Customers desiring to pay quarterly and in advance instead of annually and in advance,
Customer must request a revised Quote which shall include a convenience fee increase of
fifteen percent (15%) of the total annual charges, which convenience fee Customer agrees
to pay. The convenience fee shall be prorated and charged to the four quarterly invoices.
All charges are due net thirty (30) calendar days from the date of invoice or prior to the
beginning of the applicable Coverage Period, whichever is earlier. Charges for Covered
Products added during a Coverage Period shall be prorated to the remaining months of the
Coverage Period, in whole month increments only, and such charges shall be due and
payable in full upon receipt of invoice.
13.2 Past Due Accounts. HEXAGON RESERVES THE RIGHT TO REFUSE SERVICE TO
ANY CUSTOMER WHOSE ACCOUNT IS PAST DUE.At the discretion of Hexagon,
Customers who have not paid any charges when due(i) under this Agreement, (ii) under
any other agreement between the parties, or(iii) under any agreement between Hexagon
and Customer's parent and/or subsidiary at feast fifty percent(50%)owned by Customer,
may not be rendered Services until all past due charges are paid in full. Additionally,
Hexagon shall charge and Customer agrees to pay interest at the rate of two percent(2%)
per month or the maximum amount allowed by law, whichever is less, for all amounts not
received when due. The start of the Coverage Period shall not be postponed due to
delayed payment of any charges. If Hexagon is required to use a collection agency or
attorney to collect money owed by Customer, Customer agrees to pay the reasonable
costs of collection. These collection costs include, but are not limited to, any collection
agency's fees, reasonable attorneys' fees and court costs.
13.3 Customer's Responsibilities Concerning Invoice Questions. Subject to applicable law, if
Customer intends to dispute a charge or request a credit, Customer must contact Hexagon
within ten (10)calendar days of the date on the invoice. Customer waives any right to
dispute a charge or receive a credit for a charge or Services that Customer does not report
within such period.
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14. CUSTOMER WARRANTIES
During the Coverage Period, Customer shall commit to the following:
14.1. Subject to Section 12.2, Customer warrants that for all Covered Products supported under
the Agreement, all licenses of a Covered Product for which Customer has multiple copies in
its possession and that are located at the site referenced on the Quote, and all prerequisite
licenses necessary to operate Covered Products, are listed on the Quote. If all like Covered
Products or prerequisite software licenses are not listed on the Quote, Customer agrees to
notify Hexagon so that Hexagon may issue a revised Quote to Customer.
14.2. Customer warrants that Services provided herein shall be utilized only for the quantity of
Covered Products licenses listed on the Quote.
14.3. Customer shall, and Customer shall cause each of Customer's employees and
representatives to, comply with each and every term and condition of the EULA and/or SLA
applicable to the Covered Products supported under the Agreement.
15. INTELLECTUAL PROPERTY
15.1. Software License. Any Upgrades furnished hereunder shall remain the property of Hexagon,
Hexagon's Affiliate or applicable third party, and are licensed in accordance with the then
current Hexagon EULA, EULA of Hexagon's Affiliate or third party SLA, which shall
supersede any EULA or SLA associated with prior releases of the Software Products or
Third Party Software. Upon Customer's request, Hexagon shall provide customer with such
EULA or SLA. Upon Hexagon's request, Customer agrees to execute a EULA or SLA, as
applicable, for Covered Products provided without an included EULA or SLA.
15.2. Confidential Information. Hexagon and Customer each acknowledge that they may be
furnished with, receive, or otherwise have access to information of or concerning the other
party which such party considers to be confidential, proprietary, a trade secret or otherwise
restricted. As used in this Agreement"Confidential Information" shall mean all information,
which may include third party information, in any form, furnished or made available directly
or indirectly by one party to the other that is marked confidential, restricted, proprietary, or
with a similar designation. Confidential Information also shall include, whether or not
designated "Confidential Information" (i) all specifications, designs, documents,
correspondence, software, documentation, data and other materials and work products
produced by either Hexagon or its subcontractors, and (ii) with respect to either party, all
information concerning the operations, financial affairs and businesses, and relations with
its employees and service providers.
Each party's Confidential Information shall remain the property of that party or relevant third
party except as expressly provided otherwise by the other provisions of this Agreement.
Customer and Hexagon shall each use at least the same degree of care, but in any event
no less than a reasonable degree of care, to prevent disclosing to third parties the
Confidential Information of the other as it employs to avoid unauthorized disclosure,
publication or dissemination of its own information of a similar nature.
The parties shall take reasonable steps to ensure that their respective employees comply
with these confidentiality provisions. This Section shall not apply to any particular
information which either party can demonstrate (i) was, at the time of disclosure to it,
generally publicly available; (ii) after disclosure to it, is published or otherwise becomes
generally publicly available through no fault of the receiving party; (iii)was in the possession
of the receiving party at the time of disclosure to it without restriction on disclosure; (iv)was
received after disclosure to it from a third party who had a lawful right to disclose such
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information to it without any obligation to restrict its further use or disclosure; or (v) was
independently developed by the receiving party without reference to Confidential Information
of the disclosing party. In addition, a party shall not be considered to have breached its
obligations by disclosing Confidential Information of the other party as required to satisfy any
legal requirement of a competent government body produced by court order or
subpoena,or in compliance with the Texas Public Information Act provided that,
immediately upon receiving any such request and to the extent that it may legally do so,
such party advises the other party promptly and prior to making such disclosure in order
that the other party may interpose an objection to such disclosure, take action to assure
confidential handling of the Confidential Information, or take such other action as it deems
appropriate to protect the Confidential Information.
16. LIMITED WARRANTIES; WARRANTY DISCLAIMERS
16.1. Limited Warranties.
16.1.1. Hexagon Services Warranty. Hexagon warrants for a period of thirty(30)days from
the date of Services that the Services provided pursuant to this Agreement, in the form
of a defect correction and/or maintenance services, will be performed with reasonable
skill and care in accordance with the requirements set forth herein, provided
the Covered Products for which the Services are provided are used under normal
conditions and in strict accordance with the terms and conditions herein. Customer
agrees to promptly notify Hexagon of any unauthorized use, repair, or modification, or
misuse, as well as suspected defects in any Services provided pursuant to this
Agreement.
16.1.2. Hexagon Software Warranty. Hexagon warrants for a period of thirty(30)days from
the date of shipment of any Software Product that, under normal use, software delivery
media shall be free from defect in material or workmanship. Additional warranties for
Software Products may be provided in the applicable Hexagon Terms and Conditions
for Sale or other agreement between the parties governing the delivery of Software
Products.
16.1.3. Pass-Through Third Party Warranties. Third Party Software is only warranted
pursuant to a pass-through warranty to Customer from the applicable Third Party
Software manufacturer and only to the extent warranted by the applicable Third Party
Software manufacturer.
16.1.4. NO OTHER WARRANTIES. THE ABOVE LIMITED WARRANTIES ARE IN LIEU
OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,AND REPRESENT THE
FULL AND TOTAL OBLIGATION AND/OR LIABILITY OF HEXAGON. THE LIMITED
WARRANTIES PROVIDE CUSTOMER WITH SPECIFIC LEGAL RIGHTS.
CUSTOMER MAY HAVE OTHER RIGHTS,WHICH VARY JURISDICTION TO
JURISDICTION. IF A GREATER WARRANTY IS MANDATED PURSUANT TO THE
LAW HELD APPLICABLE TO THIS AGREEMENT, THEN HEXAGON WARRANTS
THE SERVICES OR COVERED PRODUCTS TO THE MINIMUM EXTENT REQUIRED
BY SAID LAW.
16.2. Remedies. In the event a warranted Service, Covered Product, or Update provided
pursuant to this Agreement does not substantially comply with the limited warranties set
forth in the Agreement, Hexagon's entire liability and Customer's exclusive remedy shall be,
in Hexagon's sole and absolute discretion, either(i)providing of a Service, Covered
Product, or Update which conforms substantially with the warranty; or(ii)a refund of the
purchase price of the particular warranted Service, Covered Product, or Update for the
period of time that the warranted Service, Covered Product,or Update did not substantially
conform to the limited warranties set forth in this Agreement.
Page 9 of 14
Hexagon is acting on behalf of its suppliers for the sole purpose of disclaiming, excluding
and/or limiting obligations and liability as provided in this Agreement, but in no other respects
and for no other purpose.
16.3. WARRANTY DISCLAIMERS. ANY WARRANTIES HEREUNDER ARE VOID IF
FAILURE OFA WARRANTED ITEM RESULTS DIRECTLY, OR INDIRECTLY, FROM AN
UNAUTHORIZED MODIFICATION OF A WARRANTED ITEM; AN UNAUTHORIZED
ATTEMPT TO REPAIR A WARRANTED ITEM; OR MISUSE OF A WARRANTED ITEM,
INCLUDING WITHOUT LIMITATION, USE OF WARRANTED ITEM UNDER ABNORMAL
OPERATING CONDITIONS OR WITHOUT ROUTINELY MAINTAINING A WARRANTED
ITEM. CUSTOMER SHALL PROMPTLY NOTIFY HEXAGON OF ANY SUSPECTED
DEFECTS IN COVERED PRODUCTS DELIVERY MEDIA. EXCEPT AS SPECIFICALLY
SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, HEXAGON AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES,
EITHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES, COVERED
PRODUCTS, AND UPDATES PROVIDED PURSUANT TO THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. HEXAGON
DOES NOT WARRANT THAT ANY SERVICES, COVERED PRODUCTS, AND UPDATES
PROVIDED PURSUANT TO THIS AGREEMENT WILL MEET CUSTOMER'S
REQUIREMENTS,AND UNDER NO CIRCUMSTANCES DOES HEXAGON WARRANT
THAT ANY SERVICES, COVERED PRODUCTS, AND UPDATES WILL OPERATE
UNINTERRUPTED OR ERROR FREE. IF ANY PART OF THIS DISCLAIMER OF
EXPRESS OR IMPLIED WARRANTIES IS RULED INVALID, THEN HEXAGON
DISCLAIMS EXPRESS OR IMPLIED WARRANTIES TO THE MAXIMUM EXTENT
ALLOWED BY APPLICABLE LAW. HEXAGON MAY SHARE INFORMATION FROM TIME
TO TIME RELATED TO ITS EXPECTED DIRECTION, ROADMAP, OR VISION FOR ITS
PRODUCTS AND SERVICES,ALL OF WHICH IS SUBJECT TO CHANGE AT ANY TIME
IN HEXAGON'S SOLE DISCRETION. CUSTOMER SHOULD NOT RELY UPON
STATEMENTS, PRESENTATIONS, OR INFORMATION REGARDING FUTURE
FEATURES, FUNCTIONS, OR PRODUCTS FOR ANY PURPOSE IN ABSENCE OF
HEXAGON'S FORMAL AND EXPRESS CONTRACTUAL COMMITMENT TO DELIVER
THE SAME.
17. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
HEXAGON OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING,WITHOUT LIMITATION,
DAMAGES FOR LOSS OF USE OR PRODUCTION, LOSS OF REVENUE OR PROFIT, LOSS OF
DATA, LOSS OF BUSINESS INFORMATION, BUSINESS INTERRUPTION, CLAIMS OF THIRD
PARTIES OR ANY OTHER PECUNIARY LOSS ARISING OUT OF THIS AGREEMENT, EVEN IF
HEXAGON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HEXAGON'S
ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE
LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO HEXAGON DURING THE PAST
TWELVE MONTHS UNDER THIS AGREEMENT AS OF THE DATE THE EVENT GIVING RISE TO
THE CLAIM OCCURS. EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, NO CLAIM,
REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
MAY BE BROUGHT BY CUSTOMER MORE THAN TWO (2)YEARS FOLLOWING THE INITIAL
EVENT GIVING RISE TO THE CAUSE OF ACTION. BECAUSE SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT
APPLY TO CUSTOMER. IF ANY PART OF THIS SECTION IS HELD INVALID, THEN HEXAGON
LIMITS ITS LIABILITY TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.
Page 10 of 14
18. TERMINATION
This Agreement may only be terminated prior to its expiration in the following ways:
18.1. Either party petitions for reorganization under the Bankruptcy Act or is adjudicated as
bankrupt, or a receiver is appointed for the other party's business.
18.2. Customer fails to pay Hexagon any amount when due (i) under this Agreement;or(ii)
under any other agreement between the parties.
18.3. Customer's license to the Covered Products for which Customer has purchased
Services is terminated.
19. RESTRICTIONS
19.1. Non-Solicitation of Employees. Customer agrees and shall endeavor not to, without
the prior written consent of Hexagon, solicit or hire any Hexagon employee, or induce such
employee to leave Hexagon's employment, directly or indirectly, during the term of this
Agreement and for a period of twelve (12) months after the Agreement expires or is
terminated.
. Hexagon shall be entitled to equitable or injunctive relief to prevent breaches. For
purposes of this Section, the term "employee"means employees of Hexagon and/or any
Hexagon subsidiary and/or any of Hexagon's subcontractors who directly support Customer.
19.2. United States Government Restricted Rights. If a Covered Product(including any
Updates, documentation or technical data related to such Covered Products) is licensed,
purchased, subscribed to or obtained, directly or indirectly, by or on behalf of a unit or
agency of the United States Government, then this Section also applies.
19.2.1. For civilian agencies: The Covered Product was developed at private expense and is
"restricted computer software"submitted with restricted rights in accordance with the
Federal Acquisition Regulations ("FAR")52.227-19 (a)through (d) (Commercial
Computer Software—Restricted Rights).
19.2.2. For units of the Department of Defense ("DoD"): The Covered Product was
developed at private expense and is"commercial computer software"submitted with
restricted rights in accordance with the Defense Federal Acquisition Regulations
("DEARS") DFARS 227.7202-3 (Rights in commercial computer software or commercial
computer software documentation).
19.2.3. Notice: The Covered Product is"commercial computer software"as defined in
DFARS 252.227-7014 (Rights in Noncommercial Computer Software)and FAR 12.212
(Computer Software), which includes"technical data"as defined in DFARS 252.227-
7015 (Technical Data)and FAR 12.211 (Technical Data).All use, modification,
reproduction, release, performance, display or disclosure of this"commercial computer
software"shall be in strict accordance with the manufacturer's standard commercial
license, which is attached to and incorporated into the governing Government contract.
Hexagon and any applicable Third Party Software manufacturers are the
manufacturers.This Covered Product is unpublished and all rights are reserved under
the Copyright Laws of the United States.
Page 11 of 14
19.3. Export Restrictions. All Software Products and all Third Party Software (including
any Updates, documentation or technical data related to such software products) licensed,
purchased, subscribed to or obtained, directly or indirectly, from Hexagon, its subsidiaries or
distributors (collectively, "Export Controlled Products")are subject to the export control laws
and regulations of the United States. Diversion contrary to United States law is prohibited.
The Export Controlled Products, and the direct product thereof, shall not be exported or re-
exported, directly or indirectly(including via remote access), under the following
circumstances:
19.3.1. To Cuba, Iran, North Korea, Sudan, or Syria, or any national of these countries.
19.3.2. To any person or entity listed on any United States government denial list, including
but not limited to,the United States Department of Commerce Denied Persons, Entities,
and Unverified Lists (www.bis.doc.gov/complianceandenforcement/liststocheck.htm),
the U.S. Department of Treasury Specially Designated Nationals List
(www.treas.gov/offices/enforcement/ofac/), and the U.S. Department of State Debarred
List (htto://vvww.pmddtc.state.gov/compliance/debar.html).
19.3.3. To any entity if Customer knows, or has reason to know, the end use of the Export
Controlled Product is related to the design,development, production, or use of missiles,
chemical, biological, or nuclear weapons, or other unsafeguarded or sensitive nuclear
Uses.
19.3.4. To any entity if Customer knows, or has reason to know, that an illegal reshipment will
take place.
Any questions regarding export or re-export of an Export Controlled Product should be
addressed to Hexagon's Export Compliance Department, 305 Intergraph Way, Madison,
Alabama, United States 35758 or at exportcompliance@intergraph.com.
20. TAXES
All charges under this Agreement are exclusive of each and every country's federal, provincial, state,
municipal, or other governmental, withholding, excise, sales, use,value added or other taxes, tariffs,
custom duties and importing fees ("Taxes"). Customer shall be liable for, and hold Hexagon
harmless from and against, any and all Taxes.Taxes shall expressly exclude any federal, state,
municipal, or other governmental income taxes, franchise taxes, business license fees and other like
taxes measured by Hexagon's income, capital and/or assets. The total invoice amount for charges
under this Agreement is subject to increase by the amount of any Taxes which Hexagon is required
to withhold, collect, or pay regarding the transactions under this Agreement so that Hexagon
receives the full amount of the charges on Hexagon's invoices. Any certificate to exempt the
Agreement from tax liability or other documentary evidence of statutory exemption shall be obtained
by Customer at Customer's expense.
21. GENERAL
21.1. Third Party Providers. Hexagon reserves the right to provide Services through a third party
provider.
21.2. Entire Agreement. The Agreement constitutes the entire agreement between the parties
relating to the subject matter hereof. The Agreement supersedes any and all prior
discussions and/or representations, whether written or oral, relating to the subject matter
of the Agreement and no reference to prior dealings may be used to in any way modify the
expressed understandings of the Agreement. Hexagon does not accept any contradictory
or additional terms and conditions, even by accepting a purchase order referencing
different terms and conditions. The Agreement may be amended only by a written
instrument signed by authorized representatives of both parties, and cannot be amended
by subsequent purchase order or writing received from Customer without the express
Page 12 of 14
written consent of Hexagon. Any reproduction of the Agreement made by reliable means
(for example, photocopy or facsimile)will be deemed an original.
21.3. Order of Precedence. In the event of a conflict between the documents that form the
Agreement, the order of precedence will be as follows: (i) any addenda executed by
Hexagon and Customer, with the latest addendum taking precedence over any earlier
addenda; (ii)the Quote; and (iii)these Terms and Conditions.
21.4. Severability. Whenever possible, each provision of the Agreement shall be interpreted in
such a manner as to be effective and valid under the applicable law. However, if any
provision of the Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of the Agreement.
21.5. Headings. The various headings in these Terms and Conditions are inserted for
convenience only and shall not affect the meaning or interpretation of these Terms and
Conditions or any section or provision of these Terms and Conditions.
21.6. No Waiver. Any failure by either party to enforce performance of the Agreement shall not
constitute a waiver of, or affect said party's right to avail itself of, such remedies as it may
have for any subsequent breach of the terms of the Agreement.
21.7 Notices. Any notice or other communication ("Notice") required or permitted under the
Agreement shall be in writing and either delivered personally or sent by overnight
delivery, express mail, or certified or registered mail, postage prepaid, return receipt
requested. A Notice delivered personally shall be deemed given only if acknowledged in
writing by the person to whom it is given. A Notice sent by overnight delivery or express
mail shall be deemed given twenty-four(24) hours after having been sent.A Notice that
is sent by certified mail or registered mail shall be deemed given forty-eight (48)hours
after it is mailed. If any time period in this Agreement commences upon the delivery of
Notice to any one or more parties,the time period shall commence only when all of the
required Notices have been deemed given. Hexagon's address for Notices is Hexagon
Safety& Infrastructure, 305 Intergraph Way, Madison, Alabama 35758, Attn: Legal
Department, 256-730-2333.
21.8 Assignment. Neither party shall have the right to assign any of its rights nor delegate any
of its obligations under this Agreement without the prior written consent of the other party,
except that Hexagon may assign its rights and obligations under this Agreement, without
Customer's approval, to (i) an entity which acquires all or substantially all of the assets of
Hexagon or the Hexagon division providing a product or service under this Agreement; (ii)
an entity which acquires all or substantially all of the Software Products or product line
assets subject to this Agreement; or(iii) any subsidiary, affiliate or successor in a merger
or acquisition of Hexagon.Any attempt by Customer to sublicense, assign or transfer any
of Customer's rights or obligations under this Agreement, except as expressly provided in
this Agreement, is void.
21.9 Force Majeure. Except for payment obligations under the Agreement, neither party shall
be liable for any failure to perform or observe any of its obligations under this Agreement
for as long as and to the extent that such performance is prevented or hindered by any
circumstances beyond its reasonable control. By way of example, and not limitation, such
causes may include acts of God or public enemies; labor disputes; acts of local, state, or
national governments or public agencies; utility or communications failure; fire; flood;
epidemics; riots; or strikes. The time for performance of any right or obligation delayed by
such events will be postponed for a period equal to the delay. If, however, a party is
subject to a force majeure that endures for more than sixty(60) calendar days, the other
party has a right to terminate the Agreement upon providing thirty (30)calendar days prior
written notice to the party subject to the force majeure.
21.10 Governing Law. This Agreement shall for all purposes be construed and enforced under
and in accordance with the laws of the State of Alabama and shall be deemed to have
been accepted in Madison, Alabama, United States. The parties agree that any legal
Page 13 of 14
action or proceeding relating to this Agreement shall be instituted in the Circuit Court for
Madison County, Alabama, or the United States District Court for the Northern District of
Alabama, Northeastern Division. The parties agree to submit to the jurisdiction of and
agree that venue is proper in these courts in any such legal action or proceedings. This
Agreement shall not be governed by the conflict of law rules of any jurisdiction or the
United Nations Convention on Contracts for the International Sale of Goods, the
application of which is expressly excluded.
21.11 Waiver of Jury Trial. Hexagon and Customer each hereby waive, to the fullest extent
permitted by applicable law, any right either may have to a trial by jury for any legal
proceeding arising, directly or indirectly, out of or relating to this Agreement.
21.12 Injunctive Relief; Cumulative Remedies. Customer acknowledges and agrees that a
breach of the Agreement by Customer could cause irreparable harm to Hexagon for
which monetary damages may be difficult to ascertain or may be an inadequate remedy.
Customer agrees that Hexagon will have the right, in addition to its other rights and
remedies, to seek and obtain injunctive relief for any breach of the Agreement by
Customer, and Customer expressly waives any objection that Hexagon has or may have
an adequate remedy at law with respect to any such breach. The rights and remedies set
forth in this Agreement are cumulative and concurrent and may be pursued separately,
successively or together.
21.13 Attorneys' Fees and Costs. In the event of any legal proceeding arising out of or relating
to this Agreement, the prevailing party in such action shall be entitled to an award of its
reasonable attorneys' fees and costs for all such legal proceedings, including for trial and
all levels of appeal.
21.14 Governing Language. The controlling language of this Agreement is English. If
Customer has received a translation into another language, it has been provided for
Customer's convenience only.
21.15 Survival. The provisions of the Agreement which require or contemplate performance
after the expiration or termination of the Agreement shall be enforceable notwithstanding
said expiration or termination.
Approved by:
Intergraph Corporation d/b/a Hexagon Safety & Infrastructure
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Debra T. Huser, Finance Director Date
Corpus Christi TX, City of
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Signature Date
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RE ECCA HUERTA
SGI-10012015 CITY SECRETARY I• i u /
/ti1�2Of�f_ (615 Assistant City Attorney
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