Trimble InsightHQ – Terms of Use & End User License Agreement

VERSION 1.0 (LAST UPDATED JUNE 7, 2018)

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.

IF YOU ARE USING THE SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO.  THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

These InsightHQ Terms of Service (this “Agreement”) are entered into as of the Effective Date between Trimble Inc., a Delaware corporation, and its affiliates (“Trimble”) and you (“Customer” or “you”), an individual or entity accessing or using Trimble’s InsightHQ software-as-a-service solution (the “Service”).  This Agreement consists of the terms and conditions set forth below and any Order Forms (as defined below) that reference this Agreement.  

Entry into the Agreement.  The “Effective Date” of this Agreement is the date on which you initially gain access to the Service.

Order Forms.  Customer may enter into order forms, quotations, change orders, sales agreements, or any other document with a(which may consist of an online provisioning, registration or order process or separate Trimble order forms; each, an “Order Form”) with Trimble or a Reseller (as defined below) for Customer’s purchase of a subscription to the Service. The version of this Agreement in effect at the time you deliver the Order Form will govern Customer’s purchase of the Service specified therein.

Purchase from Reseller.  If Customer purchases the Service from an authorized distributor or reseller of Trimble (“Reseller”), Customer’s use of the Service shall be governed by this Agreement, subject to Section 12 (Purchase from Reseller) below, including with respect to Reseller’s access rights to Customer’s account, and you acknowledge and agree that your Subscription Term begins on the date your Reseller activates a subscription on your behalf.

Changes to this Agreement.  From time to time, Trimble may modify this Agreement. Unless Trimble specifies otherwise, 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 Service during the renewal Subscription Term will constitute acceptance of the amended Agreement).  If Trimble specifies that changes will become effective before the next renewal of Customer’s Subscription Term, Customer may terminate this Agreement upon at least thirty (30) days’ written notice to Trimble and receive as its sole and exclusive remedy a refund of any fees Customer has pre-paid for use of the Service for the terminated portion of the applicable Subscription Term.  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 Service.  

 

TERMS AND CONDITIONS

1. THE SERVICE

1.1. Overview.  The Service is a software-as-a-service analytics and reporting solution designed to enable Customer to monitor and generate reports on productivity and utilization of equipment used in quarry operations.

1.2. Dependencies.

1.2.1 Trimble ID. Use of the Service requires a Trimble ID, a universal login for Trimble products and services.

1.2.2 Compatible Devices.  The Service is intended for use with data reported by Trimble Loadrite scales and other compatible devices identified in the Help documentation (collectively, “Devices”).  Customer must separately obtain one or more Devices in order to use the Service.

1.3. Access to the Service.  The Service is provided on a subscription basis for a set term designated on any applicable Order Form or for such time as Customer continues to access the Service and maintain its Subscription Fee (each, a “Subscription Term”). Customer may access and use the Service solely for its own benefit and in accordance with the terms and conditions of the Agreement, the end user technical documentation provided with the Service (“Documentation”) and any number of Permitted Users, number of Devices, specified location or other scope of use restrictions, if any, designated in the applicable Order Form.  Use of and access to the Service is permitted only by employees of Customer (“Permitted Users”). If Customer is given passwords to access the Service, Customer will require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person; for the avoidance of doubt, Resellers are not Permitted Users for purposes of the foregoing and should not be provided access to any passwords of Customer.  User IDs are granted to individual, named persons and may not be shared. Customer will be responsible for any and all actions taken using Customer’s accounts and passwords. In the event that any Permitted User who has access to a user ID is no longer an employee of Customer, Customer will be solely responsible for de-activating such Permitted User’s access, and may re-allocate such Permitted User’s access to a different employee. Further, Customer may transfer Permitted User status from one employee to another at any time, provided that Customer remains compliant with this Section 1.3, including without limitation by limiting the number of Permitted Users to the number specified in the applicable Order Form.

1.4. Contractors and Affiliates. Customer may permit its independent contractors and consultants who are not competitors of Trimble (“Contractors”) and Affiliates (as defined below) 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 the Agreement and any such use of the Service by such Contractor or Affiliate is for the sole benefit of Customer. Use of the Service by the Affiliates, Contractors and Customer in the aggregate must be within the restrictions in the applicable Order Form. “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. The Affiliate rights granted in this section will not apply to any “enterprise wide” licenses unless Affiliate usage is designated in the applicable Order Form.

1.5. General Restrictions.  Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Service to a third party; (b) use the Service to provide, or incorporate the Service into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Trimble); (d) copy or modify the Service or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); or (f) publicly disseminate information regarding the performance of the Service.

1.6. Third Party Terms.  Trimble may use third party products and services in its provisioning of the Service, 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 the Agreement.  NEITHER TRIMBLE NOR TRIMBLE’S SUPPLIERS OFFER ANY WARRANTY IN CONNECTION WITH ANY THIRD PARTY OFFERINGS 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.  

1.7. Trial Subscriptions.  Where indicated in the applicable Order Form, Customer may receive free access or a trial or evaluation subscription to the Service (a “Trial Subscription”). If Customer receives a Trial Subscription, then Customer may use the Service in accordance with the terms and conditions of the Agreement and the applicable Order Form for the period designated in such Order Form or otherwise by Trimble (and if not designated, then for two (2) months) (“Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a full subscription to the Service. Customer may not use a Trial Subscription for any other purpose, including without limitation for competitive analysis. At the end of the Trial Period, the Trial Subscription will expire and Customer will have the option to purchase a full subscription to the Service. If Customer purchases a full subscription, all of the terms and conditions in the Agreement will apply to such purchase and the use of the Service unless otherwise specified in the Order Form for the Trial Subscription. Trimble has the right to terminate a Trial Subscription at any time for any reason. The Service may have a mechanism that limits access during the Trial Period and Trimble may otherwise restrict certain product functionality during the Trial Period. Customer will not attempt to circumvent any such mechanism or restriction. Trimble has no obligation to retain Customer Data used with a Trial Subscription during or after the Trial Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DURING THE TRIAL PERIOD THE SERVICE IS PROVIDED “AS IS” AND TRIMBLE WILL HAVE NO WARRANTY OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS UNLESS OTHERWISE SPECIFIED IN THE APPLICABLE ORDER FORM.    

2. CUSTOMER DATA

2.1. Definition.  “Customer Data” means any business information or other data of any type that is input by or on behalf of Customer into the Service, including without limitation information manually input by Permitted Users or imported via a third party product or service.  

2.2. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Trimble.  Subject to the terms of the Agreement, Customer hereby grants to Trimble a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and publicly perform and display the Customer Data solely to the extent necessary to provide the Service to Customer.  All Customer Data accessed by Trimble or otherwise stored on the Service shall be and remain subject to Trimble’s Privacy Policy which is available at https://www.trimble.com/Corporate/Privacy.aspx.  Furthermore, if you reside outside of North America, when we transfer your Customer Data from the European Economic Area (“EEA”) or Switzerland to a non-EEA country, we rely on your providing your consent to do so.  If the Customer Data that your store on the Service contains the personal information of individuals from the EEA, you agree that you have the legal authority to transfer such personal information to us, including the transfer to countries such as the United States where the privacy protections and rights of authorities to access personal data may not be equivalent to those in the EEA.

2.3. Storage of Customer Data. Trimble does not provide an archiving service.  Trimble agrees only that it will not intentionally delete any Customer Data from the Service prior to termination of Customer’s applicable Subscription Term, and will store all Customer Data on the Service for a period of thirteen (13) months from the date it is generated.  Storage subscriptions requiring Trimble to host Customer Data for longer periods may be available at additional cost. Trimble expressly disclaims all other obligations with respect to storage.

2.4. Customer Obligations.  

2.4.1. In General.  Customer will ensure that the Customer’s use of the Service and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.  Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Trimble that Customer has sufficient rights in the Customer Data to grant the rights granted to Trimble in Section 2.2 above and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.

2.4.2. Health Information. Customer specifically agrees not to submit to the Service any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations (“Health Information”) and acknowledges that Trimble is not a Business Associate or subcontractor (as those terms are defined in HIPAA) and that the Service is not HIPAA compliant.  “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.  Trimble will have no liability under the Agreement for Health Information, notwithstanding anything to the contrary herein.

2.4.3. Misuse. Customer agrees that Customer will not misuse the Service, including without limitation in the submission of Customer Data.  Misuse includes, but is not limited to:

  • Using the Service to disseminate or convey inappropriate, defamatory, obscene, salacious, or unlawful information, images or materials; or to defame, harass, stalk, threaten or otherwise violate the legal rights of others.
  • Using the Service in such a manner so as to interfere unreasonably with its use by others; or attempting or assisting another to access, alter, or interfere with the communications and/or information of another user.
  • Subscription fraud or unauthorized access.
  • Uploading, or otherwise making available, files that contain text, images, photographs, software or other materials owned by others that are protected by intellectual property laws (e.g., copyright, trademark, rights of privacy or publicity) and for which Customer has not received all necessary and legal consents for their use.
  • Using any information, images or other materials available through the Service in any manner that infringes any copyright, trademark, patent, trade secret or other proprietary right of any party.
  • Advertising, offering to sell or buy goods, or using the Service for business promotional purposes.
  • Violating any code of conduct associated with the Service, or any applicable laws or regulations.
  • Taking any action that imposes an unreasonable or disproportionately large load on the Service infrastructure; or uploading files that contain viruses, Trojan horses, worms, or other similar software or programs that cause damage to computers or property of others.  

2.5. Indemnification by Customer.  Customer will indemnify, defend and hold harmless Trimble and its affiliates from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Data, (b) any breach or alleged breach by Customer of Section 1.6 (Third Party Terms) or Section 2.4 (Customer Obligations), or (c) any service or product offered by Customer in connection with or related to the Service.  This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Trimble at Customer’s expense.

3. OWNERSHIP.  

3.1. Trimble Technology. This is a subscription agreement for access to and use of the Service. Customer acknowledges that it is obtaining only a limited right to the Service and that irrespective of any use of the words “purchase”, “sale” or like terms in the Agreement no ownership rights are being conveyed to Customer under the Agreement. Customer agrees that Trimble or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all of the Service, Documentation, Professional Services deliverables and any and all related and underlying technology and documentation, and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Trimble Technology”). Except as expressly set forth in the Agreement, no rights in any Trimble Technology are granted to Customer. Further, Customer acknowledges that the Service is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of the Service.  

3.2. Feedback.  Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Trimble product or service to Trimble (“Feedback”). Trimble may freely use or exploit Feedback in connection with any of its products or services.

3.3. Aggregated Anonymous Data.  Notwithstanding anything to the contrary herein, Customer agrees that Trimble and its affiliates may use, process, manipulate, modify, copy, publicly perform and display, compile, and create derivative works from Customer Data and any other data related to the Service, including, but not limited to, using such data for any internal business purpose, and for the improvement, support, and operation of the Service, and/or the development of other products or service capabilities. Customer hereby acknowledges and agrees that Trimble and its affiliates may disclose to third parties aggregate data derived from Customer Data or from any other data related to the Service, so long as such aggregate data is not personally identifiable with respect to Customer. Further, all service data, usage data, and other data that does not identify Customer and any data that is derived from the Customer Data and all data, reports, derivative works, compilations, modifications and other materials created by Trimble from or with use of such data will be, in each case, the sole and exclusive property of Trimble; and Customer, on Customer’s behalf and on behalf of Customer, hereby assigns all of Customer’s, title and interest, if any, in and to such items to Trimble without any fees and without rights to future royalties.

4. SUBSCRIPTION TERM, FEES & PAYMENT    

4.1. Renewals.  At the end of each Subscription Term, the Subscription shall renew automatically unless either of the parties gives at least thirty (30) days notice of non-renewal; notwithstanding the foregoing, the parties (including Customer, by way of their Reseller) may  renew the Subscription Term at any time for a length and at pricing as mutually agreed by the parties in writing.

4.2. Fees and Payment.  All fees are as set forth in the applicable Order Form and will be paid by Customer within thirty (30) days of invoice, unless otherwise specified in the applicable Order Form.  Except as expressly set forth in Section 6 (Limited Warranty), all fees are non-refundable. The rates in the Order Form are valid for the initial Subscription Term. Customer is required to pay all sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Trimble.  Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

4.3. Suspension of Service.  If Customer's or Customer’s Reseller’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 Service (and any related services) without liability to Customer until such amounts are paid in full.  

5. TERM AND TERMINATION

5.1. Term.  The Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.  

5.2. Termination for Cause.  Either party may terminate the Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of the Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).  

5.3. Effect of Termination.  Upon any expiration or termination of the Agreement, Customer will immediately cease any and all use of and access to the Service (including any and all related Trimble Technology) and delete (or, at Trimble’s request, return) any and all copies of the Documentation, any Trimble passwords or access codes and any other Trimble Confidential Information in its possession. Except where an exclusive remedy is specified, the exercise of either party of any remedy under the Agreement, including termination, will be without prejudice to any other remedies it may have under the Agreement, by law or otherwise.  

5.4. Survival.  The following Sections of the Agreement will survive any expiration or termination of the Agreement: 1.5 (General Restrictions), 2.3 (Storage of Customer Data), 2.5 (Indemnification by Customer), 3 (Ownership), 4.2 (Fees and Payment), 5 (Term and Termination), 6.2 (Warranty Disclaimer), 6.3 (Warnings; Additional Disclaimers), 9 (Limitation of Remedies and Damages), 10 (Confidential Information), 12 (Purchase from Reseller) and 13 (General Terms).  

6. LIMITED WARRANTY

6.1. Limited Warranty.  Trimble warrants, for Customer’s benefit only, that the Service, when used by Customer during the Term, will operate in substantial conformity with its applicable Documentation.  Trimble does not warrant that Customer’s use of the Service will be uninterrupted or error-free, nor does Trimble warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss.  Trimble’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Trimble to use commercially reasonable efforts to correct the reported non-conformity, or if Trimble determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term.  The limited warranty set forth in this Section 6.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse or unauthorized modifications of the Service, (iii) if the error was caused by Customer or third-party hardware, software or services, or (iv) to use and access provided during a Trial Period.

6.2. Warranty Disclaimer.  EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.1, THE SERVICE IS PROVIDED “AS IS”. NEITHER TRIMBLE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. TRIMBLE DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES TRIMBLE WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. TRIMBLE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF TRIMBLE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

6.3. Warnings; Additional Disclaimers. TRIMBLE SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE OUTPUT OBTAINED THROUGH THE USE OF THE SERVICE OR CUSTOMER’S RELIANCE ON SUCH OUTPUT. CUSTOMER IS RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF CUSTOMER’S USE OF THE SERVICE. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE SERVICE AND THE SELECTION OF THE SERVICE AND OTHER PROGRAMS TO ACHIEVE INTENDED RESULTS. CUSTOMER IS ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY OUTPUT OF THE SERVICE.

7. SUPPORT AND SERVICE LEVELS.  During the Subscription Term, Trimble will provide the support, including service levels, specified on the applicable Order Form, if any.

8. PROFESSIONAL SERVICES.  If the applicable Order Form indicates that Trimble will provide any professional consulting services (“Professional Services”) to Customer, then Trimble’s provision of and Customer’s receipt of such Professional Services will be governed by Trimble’s standard Professional Services terms, available at http://www.trimble.com/legal/tandcforservices or a successor URL, unless otherwise mutually agreed by the parties in writing.   

9. LIMITATION OF REMEDIES AND DAMAGES

9.1. Consequential Damages Waiver.  EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.    

9.2. Liability Cap.  TRIMBLE’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO TRIMBLE DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.     

9.3. Excluded Claims.  “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 1.5 (General Restrictions), Section 1.6 (Third Party Terms), or Section 10 (Confidential Information); or (b) under Section 2 (Customer Data).

9.4. Nature of Claims and Failure of Essential Purpose.  The parties agree that the waivers and limitations specified in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

10. CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure.  The Trimble Technology, performance information relating to the Service, and the terms and conditions of the Agreement will be deemed Confidential Information of Trimble without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under the 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 13.8), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.  The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, unauthorized access by third parties to any Confidential Information will not be deemed a breach of this Section 10.

11. CO-MARKETING.  Customer agrees that Trimble may disclose Customer as a customer of Trimble. Customer and Trimble may participate in joint marketing activities (including, without limitation, issuance of a joint press release) as mutually agreed by the parties.

12. PURCHASE FROM RESELLER.  Notwithstanding anything to the contrary in this Agreement, if Customer purchased the Service through a Reseller, the following terms are applicable and shall prevail in event of any conflict with any other provisions of this Agreement.

a)    The terms of this Agreement constitute the only terms applicable to the provision of the Service to Customer and no terms between Customer and Reseller shall apply to Customer’s access to or use of the Service.  

b)    Reseller has no authority to make any statements, representations, warranties or commitments on Trimble’s behalf and any such statements, representations, warranties or commitments are null and void.  

c)    Customer may place orders for the Service by executing an Order Form with Reseller and paying Reseller fees as specified therein.  Customer acknowledges and agrees that the Subscription Term begins on the date Reseller activates a Subscription on Customer’s behalf.

d)    In the event Customer is entitled to a refund under this Agreement, Customer must request such refund through Reseller.  Any request sent directly to Trimble may be redirected to Reseller. Trimble will refund any applicable fees to Reseller and Reseller shall be solely responsible for refunding such fees to Customer.  Trimble shall have no further liability to Customer in the event Reseller fails to refund such fees to Customer.

e)    If Reseller fails to pay Trimble applicable fees for Customer’s use of the Service, Trimble reserves the right to terminate this Agreement including all rights granted hereunder.

f)    Unless otherwise set forth in the Order Form, Customer may purchase renewal subscriptions under this Agreement directly from Trimble pursuant to an Order Form.

g)    Customer acknowledges and agrees that Reseller will have administrative access to Customer’s account on the Service.  This means that Reseller will be able to activate Permitted Users and Devices and to view Customer Data and configure reports on Customer’s behalf.  Reseller will be deemed to be a “Contractor” of Customer for such purposes. If Customer no longer wishes for Reseller to have such permissions or access, Customer must notify Trimble in writing in order for Trimble to deactivate Reseller’s access.

h)    Unless otherwise set forth in the Order Form, Customer shall receive front-line end user support directly from Reseller during the applicable Subscription Term in accordance with the terms of this Agreement.

i)    If Reseller is providing Customer with consulting or other professional services related to the Service, such services shall be provided under the terms of a separate agreement between Reseller and Customer.

j)     This Agreement shall survive any termination of Customer’s agreement with Reseller so long as Trimble has received payment for Customer’s current Subscription Term.

13. GENERAL TERMS

13.1. Assignment. The Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.  Customer may not assign the Agreement, by operation of law or otherwise, except upon the advance written consent of Trimble.  Any attempt to transfer or assign the Agreement except as expressly authorized under this Section 13.1 will be null and void.

13.2. Severability. If any provision of the 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 the Agreement will otherwise remain in effect.  

13.3. 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.

13.4. Notices and Electronic Communications. By registering with Trimble, Customer understands that Trimble may send Customer communications or data regarding the Service, including but not limited to (a) notices about Customer’s use of the Service, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding Trimble’s products and services, via electronic mail.  Trimble provides Customer the opportunity to opt-out of receiving promotional and marketing-related electronic mail from us by following the opt-out instructions provided in the message. Any notice or other communication given by Customer to Trimble regarding the 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.

13.5. Amendments; Waivers. No supplement, modification, or amendment of the Agreement will be binding, unless executed in writing by a duly authorized representative of each party to the Agreement.  No waiver will be implied from conduct or failure to enforce or exercise rights under the 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 the Agreement, and any such document relating to the Agreement will be for administrative purposes only and will have no legal effect.  

13.6. Entire Agreement.  The 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 the Agreement.  Customer acknowledges that the Service is an online, subscription-based offering, and that in order to provide improved customer experience Trimble may make changes to the Service, and Trimble will update the applicable Documentation accordingly.  Any support terms described in the applicable Order Form may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Trimble’s obligations as compared to those reflected in such terms as of the Effective Date). Any contrary terms or conditions appearing on Customer orders or associated purchase documentation will be of no effect.

13.7. Force Majeure.  Neither party will be liable to the other for any delay or failure to perform any obligation under the Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of the 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.

13.8. Subcontractors. Trimble may use the services of subcontractors and permit them to exercise the rights granted to Trimble in order to provide the Service and Professional Services under the Agreement, provided that Trimble remains responsible for (i) compliance of any such subcontractor with the terms of the Agreement and (ii) for the overall performance of the Service as required under the Agreement.  

13.9. Subpoenas.  Nothing in the 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.

13.10. Independent Contractors.  The parties to the 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.

13.11. Export Control.  The Service is administered by Trimble from its offices or those of its affiliates at various locations within the United States of America. In Customer’s use of the Service, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions.  Without limiting the foregoing: (a) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) Customer will not (and will not permit any of its users to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction; and (c) Customer will not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations. Trimble may also make use of its U.S. or foreign affiliates or one or more external service providers to host the Service. Consequently, data is collected, sent, processed and stored in the United States and may be collected, sent, processed and stored outside the United States. Customer acknowledges that in the event of conflict of privacy laws or practices in the Customer’s jurisdiction and those in the domicile of the entity hosting Service the law applicable in the domicile of the hosting entity will have precedence at all times. Trimble makes no representation that the Service is appropriate or available for use in locations outside the United States, and accessing them from territories where they are illegal is prohibited. Customer may not use or export or re-export the Service or any copy or adaptation in violation of any applicable laws or regulations including, without limitation, United States export laws and regulations. If Customer chooses to access the Service from locations outside the United States, Customer does so on its own initiative and is responsible for compliance with applicable local laws.

In addition to the foregoing, if Customer is located in a country identified in the U.S. Department of Commerce Country Group D list, then it (1) acknowledges that the Service is subject to the Export Administration Regulations (EAR) and the jurisdiction of the U.S. Department of Commerce or subject to the International Traffic in Arms Regulations (ITAR) and the jurisdiction of the U.S. Department of State; (2) certifies that the export, re-export, resale, and/or transfer to any party who is listed by the government of the United States as prohibited from receiving the Service or other restrictions to any destination, end-user, or for any end use prohibited by the laws of the United States, or any other applicable law where such law does not conflict with the laws of the United States, will not be violated; (3) certifies that the Service will not be resold, transferred, or re-exported without prior authorization from the U.S. Government, to any military entity on the U.S. Department of Commerce Country Group D list; (4) certifies that the Service will not be used in designing, developing, production of or using rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (including cruise missile systems, target drones and reconnaissance drones); (5) certifies that the Service will not be used in the design, development, production, stockpiling, or using chemical or biological weapons, or precursors; (6) certifies that the Service will not be used in the design, development, production, or testing of nuclear weapons or nuclear explosive devices; (7) certifies that the Service will not be exported/re-exported to Cuba, Iran, North Korea, Sudan and Syria or any other country under an export embargo/sanction by the U.S. Department of Treasury or U.S. Department of Commerce at the time of export; (8) acknowledges that U.S. law prohibits the sale, transfer, export, or re-export or other participation in any transaction involving products with individuals or companies listed in the U.S. Commerce Department's table of Denial Orders, the U.S. Department of State's list of individuals debarred from receiving Munitions List items or other entity lists published by agencies of the U.S. Government; and (9)  agrees that the export control requirements in this Section 13.11, 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 13.11.  Customer’s failure to comply with any term of this Section 13.11 constitutes a material breach of this Agreement and entitles Trimble to immediately terminate this transaction for Customer’s use of the Service in addition to any other remedy available at law or equity.

13.12. Government End-Users. Elements of the Service are commercial computer software.  If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of the Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense.  All other use is prohibited.