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Thank you for your interest. Please carefully read these HxDR terms of use (the “Terms of Use“). They apply when you buy a subscription or use HxDR.
By submitting an Order Form, by clicking an accept button or by using or accessing HxDR, you as a Customer or User (as defined below) agree to be bound by these Terms of Use, which also incorporate Hexagon’s Privacy Policy and Acceptable Use Policy (as defined below). If you accept these Terms of Use on behalf of a company, you represent that you have the authority to bind that company to these Terms of Use. If you do not have such authority, or if you do not agree to these Terms of Use, you must not accept these Terms of Use and may not use HxDR. All rights and obligations of the Customer under these Terms of Use shall apply mutatis mutandis to all Users (as defined below).
3………… Scope and Application of the Terms of Use
4………… Services Rendered by Hexagon’s Subsidiaries and Affiliates
9………… Use of HxDR by the Customer
10………. Customer Responsibilities and Obligations
11………. Rights granted to the Customer by Hexagon
12………. Hexagon’s Right to Use Customer Content
13………. Privacy and Personal Information
17………. Exclusion of Warranties
18………. Limitations of Liability
UNITED KINGDOM – COUNTRY ANNEX
HxDR is Leica Geosystem AG’s (“Hexagon“) cloud-based visualization and collaboration platform for spatial data and services.
These HxDR Terms of Use govern the relationship between Hexagon and the Customer and any of its Users (as defined below). The HxDR services offered under these Terms of Use are intended for commercial use by business customers only. These Terms of Use apply to both paid and free subscriptions to HxDR.
In these Terms of Use
These Terms of Use govern the Customer’s and its Users’ use of HxDR and the Parties’ respective rights and obligations. They do not replace any Hexagon terms and conditions between the Parties for any other Hexagon products or services.
Hexagon’s Privacy Policy (https://hexagon.com/legal/privacy-notice),,the Acceptable Use Policy (https://hxdr.app/acceptable-use-policy) and the Website Terms of Use (https://leica-geosystems.com/en-gb/global/terms-of-use) form an integral part of these Terms of Use in their current versions.
The Customer and its Users agree to be bound by these Terms of Use by submitting an Order Form, by clicking an accept button or by using or accessing HxDR. Hexagon is in no way bound by any contradictory or additional terms and conditions from the Customer or its Users.
Any inconsistency between these Terms of Use, the Order Form, the Subscription Plan or any other agreement between the Parties regarding HxDR shall be resolved by giving precedence in the following order:
Hexagon expressly reserves the right to make changes to the Terms of Use from time to time. Hexagon shall notify the Customer of the changes and shall make a new copy of the Terms of Use available to the Customer at least 30 days in advance.
Without objection by the Customer, the adapted terms enter into force on the date indicated by Hexagon. If the adapted terms are unacceptable to the Customer, the Customer must inform Hexagon thereof within 30 days of being notified. In case of an objection, the Customer may terminate the Agreement according to Section 15.1. If the Customer does not terminate the Agreement according to Section 15.1 at the next opportunity, the adapted terms apply from the automatic renewal of the Agreement after the next opportunity to terminate it in accordance with Section 15.1.
Sometimes, Subsidiaries and Affiliates as well as other third parties will be providing the services under the Agreement to the Customer on behalf of Hexagon. The Customer acknowledges and agrees that Hexagon shall be entitled to subcontract the provision of any part of the services provided under the Agreement to its Subsidiaries and Affiliates as well as other third parties (which shall be entitled to provide the services under the Agreement on behalf of Hexagon).
To access and use HxDR, the Customer and its Users need an Account. When opening an Account, the Customer must provide and will cause its Users to provide Hexagon with the information reasonably requested by Hexagon. Customer represents and warrants that the provided information will be accurate, complete and correct and Customer must keep such information accurate and correct throughout the term of the Agreement.
The provided information must be accurate and correct and must be kept accurate and correct throughout the term of the Agreement.
If the Customer registers for a free trial of HxDR, Hexagon will make the respective services available to the Customer on a trial basis free of charge until the earliest of (i) the end of the free trial period for which the Customer registered to use the respective service(s); (ii) the start date of any subscription to such service purchased by the Customer; or (iii) termination of the trial by Hexagon in its sole discretion. Trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms of Use by reference and are legally binding.
Any Customer Content uploaded to HxDR and any configurations or customizations made by the Customer during the free trial may be permanently lost unless the Customer purchases a subscription to the same service as covered by the trial, purchases the respective service or exports such Customer Content before the end or termination of the trial period.
Upon request, Customer may be granted the option to set up SSO for Users. By setting up SSO, Customer acknowledges and agrees that SSO allows Users to authenticate to HxDR through a third-party identity provider (“Third Party Identity Provider“) instead of current HxDR passwords. Customer understands and expressly agrees that, following the setting up of SSO, the relevant Users will not be able to login to HxDR with their HxDR passwords.
SSO allows Customers to connect and use the relevant Third Party Identity Provider’s products, services, or software (“Third Party Services“) in conjunction with Customer’s use of HxDR. Customer’s use of SSO is limited to integration with one Third Party Identity Provider. To enable SSO, Customer may be required to sign up or log into the services of such Third Party Identity Provider on its respective website or application.
Customer is responsible for maintaining the confidentiality of passwords and the Account, including the setting up of SSO and the configuration of Third Party Services. Customer represents that it has the requisite expertise to evaluate the suitability of the feature and it has in fact undertaken its own investigation of the suitability of the feature for the Customer’s purposes and it has relied upon its own skill and judgement in enabling SSO for its business purposes in accordance with and subject to the Agreement and any SSO documentation. To the maximum extent permitted by law, Hexagon will not be liable if Customer sets up SSO and an unauthorized person gets access to HxDR or Customer Content as a result of, or in connection with, the integration with the Third Party Service.
By enabling HxDR to access Third Party Services, Customer consents to Hexagon providing certain information to the Third Party Identity Provider and granting the Third Party Service permission to access or otherwise process such information for the purposes of enabling SSO. The Customer acknowledges that its use of such Third Party Service is governed solely by the terms and conditions and privacy policy of such Third Party Service. Hexagon does not endorse, is not liable for, and makes no representations as to the Third Party Service, or the manner in which such Third Party Service uses, stores, or processes Customer’s data. To the maximum extent permitted by law, Hexagon is not liable for any damage or loss arising from or in connection with the Customer’s enablement of such Third Party Service. To the maximum extent permitted by law, Hexagon is not responsible or liable for any changes to or deletion of Customer Content as a result of, or in connection with, the integration with the Third Party Service.
Hexagon will make available SSO to Customer in accordance with the Agreement, and grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable right to allow its Users to access and use SSO in accordance with any SSO documentation, solely for Customer’s business purposes.
The availability of SSO may depend on the availability of the Third Party Services and their features and functionality. Customer understands and agrees that Hexagon does not control Third Party Service features and functionality, and Third Party Services may change without any notice to Hexagon. If any Third Party Service stops providing access to some or all of certain features or functionality, Hexagon may stop providing access to certain features and functionality of HxDR. To the maximum extent permitted by law, Hexagon will not be liable to Customer for any refunds or any damage or loss arising from or in connection with any such change made by the Third Party Service.
Hexagon reserves the right to change the available Third Party Identity Provider(s) at any time during the term of the Agreement and/or to revoke SSO in accordance with Section 14.1 para. 3.
Customer understands and agrees that, if Customer switches off SSO in respect of any Users for any reasons or Hexagon no longer provides SSO in accordance with the above, then the relevant User(s) will be required to set up an HxDR password.
HxDR allows Customers to view, edit and process Hexagon Content, Hexagon Verified Content and Third Party Content to the extent and as specified in the Agreement. Hexagon or its licensors have the necessary rights in or to the Hexagon Content, the Hexagon Verified Content and the Third Party Content for providing the services under the Agreement.
Hexagon has the right to modify, take off-line or delete parts of or all Hexagon Content, Hexagon Verified Content and Third Party Content at any time without prior notice in its sole discretion.
HxDR allows the Customer and its Users to upload Customer Content to and view, edit, process and store it on HxDR to the extent and as specified in the Agreement.
Upon request by the Customer and to the extent reasonably possible, Customer Content will be deleted by Hexagon within a reasonable time, unless and to the extent Hexagon is compelled or permitted by law to store Customer Content for longer.
Hexagon has the right to refuse the Customer access to and delete any Customer Content if (i) said Customer Content violates the Agreement, any applicable law or third party rights or is otherwise unacceptable in Hexagon’s sole discretion; or (ii) a third party credibly claims such a violation.
The sharing of HxDR Content by the Customer and its Users with other customers, users or third parties is only possible and permitted if and to the extent specified in the Agreement.
The Customer is solely responsible for any HxDR Content it shares with other customers, users or third parties. Before sharing any HxDR Content with other customers,users or third parties, the Customer and its Users shall ensure that they have the right to share the HxDR Content and that the HxDR Content to be shared does not violate any applicable laws and regulations and/or third party rights. Hexagon reserves the right to disable access to shared content to Customer, Users, other customers, users or third parties temporarily for any reason. Hexagon may indefinitely disable access to such Content to Customer, Users, other customers, users or third parties for legitimate reasons, including the (potential) violation of any applicable laws, regulations and/or third party rights.
When the Customer shares Customer Content with other customers,users and/or third parties, they may be able to, on a worldwide basis, use, save, record, reproduce, broadcast, transmit, share and display Customer Content without compensating the Customer. If the Customer does not want other customers, users and/or third parties to have that ability, the Customer must not use HxDR to share Customer Content.
All HxDR Content merely represents reality to a certain degree. The Customer assumes all risks associated with using HxDR Content for any purposes whatsoever.
HxDR Content is not intended to be the sole basis for plans, technical drawings, models, feasibility studies or other construction or business decisions. The Customer must always verify the accuracy of any HxDR Content with other independent means and sources.
To the maximum extent permitted by law, Hexagon explicitly excludes any representations and warranties as to the quality, correctness, accuracy, reliability and fitness for a particular purpose of any Third Party Content.
During the term of the Agreement, Hexagon will make HxDR available to the Customer and its Users pursuant to the terms of the Agreement.
The exact Content and services available to the Customer and its Users are specified in the Agreement and depend on the Customer’s subscription level.
Hexagon may suspend the Customer’s or any of its Users’s right to access or use any portion or all of HxDR immediately upon notice if Hexagon determines that (a) the Customer’s or any of its Users’s use of HxDR (i) poses a security risk to HxDR or any third party, (ii) could adversely impact Hexagon’s systems, (iii) could subject Hexagon and its Subsidiaries and Affiliates or any third party to liability, or (iv) could be fraudulent; (b) the Customer or any User is in breach of the Agreement or any applicable law; (c) the Customer is in breach of its obligations under Section 14.
Hexagon does not guarantee any service availability for HxDR. However, Hexagon will use commercially reasonable efforts to make HxDR available 24 hours a day, 7 days a week, except for: (i) planned downtime, or (ii) any unavailability caused by circumstances beyond Hexagon’s reasonable control, including without limitation internet service provider failures or delays, denial of service attacks, failures in the Customer’s systems and/or infrastructure or other Force Majeure.
Hexagon will provide support for HxDR only if and as detailed in the Agreement. Any further support will be charged additionally.
Hexagon will further develop and improve HxDR and release upgrades and updates as deemed necessary by Hexagon. The contents and timing of all upgrades and updates of HxDR will be decided by Hexagon in its sole discretion.
Hexagon may enhance and/or change the features of HxDR at its discretion as long as it does not materially reduce the core functionality of HxDR. Hexagon will notify the Customer of any material change to or discontinuation of HxDR.
The HxDR Content and services available to customers may vary depending on their Territory. Hexagon reserves the right to limit the Customer’s access or use of HxDR to or from certain geographical areas or locations in line with Hexagon general policies and mandatory law.
The HxDR services offered under these Terms of Use are not intended for access or use by consumers. The Customer represents and warrants that it is a business customer.
All rights and obligations of the Customer under this Agreement shall apply mutatis mutandis to all Users.
The Customer assumes full responsibility for any Users’ use of HxDR (see Section 10.1). Use of HxDR by a User shall be considered for all intents and purposes as the Customer’s use. The Customer undertakes to ensure that only sufficiently qualified Users use HxDR.
The Customer is fully liable for its Customer Users’ use of HxDR. For Authorized Users’s use of HxDR, the Customer is jointly and severally liable with the Authorized Users. The Customer undertakes to make Users aware of the terms of the Agreement and to oblige them to fully comply with the terms of the Agreement at all times.
If the Customer becomes aware of any violation of its obligations caused by a User, the Customer must immediately suspend access to HxDR to such User or instruct Hexagon to do so.
In order to establish, evaluate and improve the functionality, reliability, performance, maintenance of and support for HxDR and in order to verify whether HxDR is used with a valid license and in accordance with the Agreement, Hexagon may track and evaluate the Customer’s and its Users’ use of HxDR, including by collecting geospatial information and information about the devices a Customer and its Users connect to HxDR.
The Customer shall use HxDR only for purposes and in a way that
The Customer’s use of HxDR shall conform with the restrictions set forth in the Order Form and the Subscription Plan for the level of subscription purchased by the Customer. Hexagon may monitor the Customer’s compliance with these limits and, if it detects overuse, require that the Customer upgrade to the appropriate higher subscription level.
The Customer shall not:
Except as explicitly permitted by the Agreement, the Customer shall not use any Hexagon Content, Hexagon Verified Content and Third Party Content outside of HxDR. In particular, the Customer shall not:
Hexagon may restrict the uploading of, or access to, Customer Content from certain geographical areas or locations (geo-fencing) in Hexagon’s sole discretion in line with mandatory law.
The Customer agrees to comply with all applicable laws with respect to export controls and economic sanctions. The Customer agrees in particular not to export or re-export, directly or indirectly, HxDR Content, software or technical data that are intended to be used for any purposes prohibited by the restrictions under the applicable laws, including but not limited to United States Government regulations or the EU Dual Use Regulations, including but not limited to nuclear and/or missile proliferation or chemical or biological weapons or weapons precursor development, unless the Customer first obtains written permission to do so from Hexagon. The Customer’s obligations in this Section shall survive the termination or expiration of the Agreement.
The Customer ensures, undertakes, represents, warrants and covenants that:
HxDR is intended for use with data obtained with Hexagon equipment. The uploading and processing of Customer Content obtained with other equipment is at the Customer’s sole risk and responsibility. Hexagon does not represent or warrant that Customer Content obtained with third party equipment can be stored on or processed by HxDR. Any representations and warranties in the Agreement regarding the quality of HxDR Content do not apply to HxDR Content which is based on or derived from Customer Content obtained with third party equipment.
The Customer is solely and fully responsible for the content of any Customer Content. The Customer ensures, undertakes, represents, warrants and covenants that all Customer Content is in full compliance with all applicable laws and regulations in the relevant jurisdictions. In particular, the Customer ensures, undertakes, represents, warrants and covenants with respect to all Customer Content that:
The Customer is solely responsible for:
During the term of the Agreement, Hexagon grants the Customer the non-exclusive, personal, non-transferable, non-assignable, non-sublicensable, revocable right to use and to permit its Users to use HxDR in the manner and to the extent specified in the Agreement. The right is subject to the Agreement, including but not limited to the limitations set forth in Section 0 of these Terms of Use (Use Restrictions).
During the term of the Agreement, Hexagon grants the Customer the non-exclusive, personal, non-transferable, non-assignable, non-sublicensable, revocable right to use and to permit its Users to use Hexagon Content in the manner and to the extent specified in the Agreement. The right is subject to the Agreement, in particular the limitations set forth in Section 0 of these Terms of Use (Use Restrictions).
To the extent Hexagon has rights in and to Hexagon Verified Content, during the term of the Agreement, Hexagon grants the Customer the non-exclusive, personal, non-transferable, non-assignable, non-sublicensable, revocable right to use and to permit its Users to use Hexagon Verified Content in the manner to the extent specified in the Agreement. The right is subject to the Agreement, in particular the limitations set forth in Section 0 of these Terms of Use (Use Restrictions).
Hexagon has no rights in and does not grant the Customer any right to use Third Party Content.
The Customer shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices, terms of use links, or Brand Features) displayed on or provided by HxDR and displayed in any HxDR Content.
In any work product created by the Customer or its Users that contains or reproduces
Hexagon claims no ownership over the Customer Content, and the Customer retains copyright and any other rights it already holds in the Customer Content. By uploading Customer Content to or displaying it through HxDR, the Customer to the fullest extent grants Hexagon a non-exclusive, worldwide, transferable, sub-licensable, perpetual, irrevocable, royalty-free right to integrate, to modify and to use the Customer Content in HxDR to (i) provide HxDR to the Customer and to protect the Customer and HxDR, and (ii) evaluate, improve and further develop HxDR and other products.
Hexagon’s data protection practices are outlined in its Privacy Policy (https://hexagon.com/legal/privacy-notice). The Customer agrees to the use of its data in accordance with Hexagon’s Privacy Policy.
After setting up the Account, the Customer in the course of using HxDR may only provide to Hexagon or upload to HxDR the following data with the respective person’s permission or where this is strictly necessary for using HxDR and permitted by the applicable data protection legislation:
The prices, features, and options of HxDR available to the Customer depend on the Subscription Plan selected as well as any changes instigated by the Customer. Certain features and options in a Subscription Plan may only be available upon a separate payment (in-app purchases).
Hexagon does not represent or warrant that a particular Subscription Plan will be offered indefinitely and reserves the right to change the prices for or alter the terms of a particular Subscription Plan.
Hexagon will notify the Customer of any intended changes of the Customer’s Subscription Plan at least 30 days in advance. Without objection by the Customer, the adapted terms enter into force on the date indicated by Hexagon. If the adapted terms are unacceptable to the Customer, the Customer must inform Hexagon thereof within 30 days of being notified. In case of an objection, the Customer may terminate the Agreement according to Section 15.1. If the Customer does not terminate the Agreement according to Section 15.1 at the next opportunity, the adapted terms apply from the automatic renewal of the Agreement after the next opportunity to terminate it in accordance with Section 15.1.
The pricing for certain HxDR services may be based on the Customer’s use or consumption (e.g. data usage). Prices may be per usage or consumption unit or for different usage or consumption tiers and limits. In case of usage or consumption tiers or limits, any usage or consumption exceeding the purchased tier or limit will be billed separately. Hexagon may apply a discount on the usage or consumption exceeding the purchased tier or limit, which discount will generally be in % of the price per usage or consumption unit for the tier or limit chosen by the Customer. The Customer may upgrade to a higher tier or limit upon renewal of the subscription. Upon the Customer reaching a usage or consumption tier or limit, Hexagon may make an offer for another tier, limit or additional use or consumption.
For data usage tiers or limits, any uploading of data to and downloading of data from HxDR counts as usage but not the streaming (viewing) of data on HxDR.
Some Content and services may only be accessed with HxDR Tokens.
HxDR Tokens may be provided to the Customer as part of a Subscription Plan and/or be acquired separately under conditions determined by Hexagon in its sole discretion.
HxDR Tokens may expire if not used within a certain term. The term of HxDR Tokens shall be indicated by Hexagon when the HxDR Tokens are provided to or acquired by the Customer.
HxDR Tokens may not be exchanged for cash, property or other economic benefits other than for the Content and services designated by Hexagon. The amount of HxDR Tokens required for receiving the Content or services shall be determined by Hexagon in its sole discretion and displayed in HxDR. It may be changed from time to time in Hexagon’s sole discretion.
HxDR Tokens purchased by Users will not be refunded for any reason whatsoever, provided, however, that the foregoing shall not apply if the applicable laws or regulations require otherwise. In such case, the method for refunding HxDR Tokens shall be determined by Hexagon in accordance with the applicable laws and regulations.
HxDR Tokens may only be used in the Account through which the User purchased such HxDR Tokens. HxDR Tokens may not be assigned or transferred to any other Account and/or User.
The Customer will timely pay Hexagon all fees associated with its Subscription Plan, Account, in-app purchases or use of HxDR, including, but without limitation, by Users. Except as expressly provided in the Agreement, the Customer’s payments are non-refundable.
When purchasing a Subscription Plan, the Customer must provide accurate and complete information for a valid payment method, such as a credit card, that the Customer is authorized to use. The Customer must promptly notify Hexagon of any change in its invoicing address and must update its Account with any changes related to its payment method.
By completing registration for a Subscription Plan, the Customer authorizes Hexagon or its agent to charge its payment method on a recurring (e.g. monthly, quarterly or yearly) basis for (i) the applicable Subscription Plan charges; (ii) any in-app purchases; (iii) any and all applicable taxes; and (iv) any other charges incurred in connection with the Customer’s use of HxDR. This authorization continues through the applicable term until the Agreement is terminated as set forth in Section 15 of these Terms of Use.
Hexagon will provide billing and usage information in a format of its choice, which may change from time to time.
All fees, prices, and other charges mentioned in the Agreement shall be exclusive of all value-added taxes and/or other applicable sales taxes. If Hexagon is obligated to collect or pay such taxes, the taxes will be invoiced to the Customer, unless the Customer provides Hexagon with a timely and valid tax exemption certificate authorized by the competent taxing authority.
The Customer shall make all payments free of deductions of any kind, such as (but not necessarily limited to) discounts, expenses, taxes, and dues. A payment shall only be deemed to be made when it has been made in full.
The Customer shall not set-off any payment due against any counterclaim and the Customer shall not be entitled to withhold payment on the grounds of any complaint or other claim, unless the Customer’s counterclaim is accepted by Hexagon or has been finally decided by a competent court or arbitral tribunal.
Upon expiry of the agreed date of payment, the Customer shall be deemed in default. All consequential costs due to default shall be at the Customer’s charge. Late payments bear interest at the rate of 5% per year. Hexagon reserves the right to suspend the Customer’s access to HxDR or terminate the Agreement for any late payments (see Sections 8.1 and 15.2).
Unless otherwise specified in the Order Form or the Subscription Plan, the initial term of the Agreement will begin upon Hexagon’s confirmation of the subscription after receipt of the Order Form and shall continue on a month-to-month basis until the Agreement is terminated.
Either party may terminate the Agreement by providing a prior notice of termination to the other party at least 30 days prior to the end of the then-current term.
The Agreement may be terminated for cause:
Upon termination of the Agreement:
The Customer will use at least the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, to (i) not use any Confidential Information of Hexagon for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by Hexagon in writing, limit access to Confidential Information of Hexagon to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are under confidentiality obligations with the Customer not materially less protective than those herein. The Customer shall destroy Confidential Information in its possession upon termination of this Agreement.
The Customer may disclose Confidential Information of Hexagon to the extent compelled by law to do so, provided the Customer gives Hexagon prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at Hexagon’s cost, if Hexagon wishes to contest the disclosure.
The Customer’s use of HxDR and any HxDR Content is entirely at its own risk and HxDR as well as all HxDR Content are provided “as is” and “as available”. Unless otherwise explicitly specified in the Agreement, to the maximum extent permitted by law, Hexagon does not represent or warrant to the Customer that:
Any representations and warranties regarding the quality and geometrical accuracy of Customer Content shall only apply if and to the extent such Customer Content was obtained with Hexagon equipment (see Section 10.2) and was obtained and processed by qualified personnel and suitable state of the art equipment. Any recommendations or best practices provided to the Customer by Hexagon regarding the generating, recording, transfer, storing and processing of data are mere recommendations and do not express or imply any statement about or guarantee of a certain result or quality.
To the maximum extent permitted by law, Hexagon explicitly excludes any representations and warranties as to the quality, correctness, accuracy, reliability and fitness for a particular purpose of any Third Party Content (see Section 7.4).
In case any representations or warranties explicitly specified in the Agreement are not met by Hexagon, the Customer has the right to request Hexagon to cure the defect within a reasonable period of time of at least 14 days. If Hexagon fails to cure the defect on the second independent attempt, as the sole and exclusive remedies, the Customer has the right to (i) terminate the Agreement with immediate effect (see Section 15.2f)), and/or (ii) claim damages for any direct damage caused by the defect limited to the price of the Customer’s Subscription Plan for one year.
Hexagon’s and its Subsidiaries’ and Affiliates’ and their employees’ and other auxiliary persons’ liability for any direct damage caused to the Customer and its Users shall be limited to the price of the Customer’s Subscription Plan for one year.
To the maximum extent permitted by law, Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users for any indirect, incidental, subsidiary, punitive and consequential damage or loss, including for loss of profit or business of any kind, loss of, or damage to, or corruption of, data and third-party claims or punitive damages. This shall apply even if Hexagon has been informed of the possibility of the occurrence of said damage.
For any free trial of HxDR (see Section 5.2), Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users to the maximum extent permitted by law.
The Customer shall hold harmless, defend and indemnify Hexagon and its Subsidiaries and Affiliates, directors, officers, employees, strategic partners, licensors, and their suppliers against and for all liabilities, damages, losses, costs, fees (including legal fees and attorney’s fees), and expenses relating to any allegation, claim, complaint, regulatory action or third-party legal proceedings arising from:
The Customer will cooperate as fully as reasonably required in the defense of any allegation, claim, complaint, regulatory action or third-party legal proceedings. Hexagon reserves the right, at its own expense, to assume the exclusive control and defense of any indemnified matter under this Section 19.
In the event of Force Majeure preventing a party from discharging its obligations under this Agreement, neither party shall be in default or liable to the other party to the extent that performance is prevented, hindered or delayed by such an event.
The party invoking Force Majeure shall promptly inform the other party and keep the other party reasonably apprised of the development. The party having declared Force Majeure shall be held to co-operate in any reasonable manner in order to mitigate the consequences of such Force Majeure. Should Force Majeure circumstances continue to prevent the servicing of the Agreement for more than three consecutive months, either Party shall have the right to terminate the Agreement with immediate effect. In the event of such termination, claims for loss and damages under any and all titles between the parties to this Agreement shall be excluded to the maximum extent permitted by law.
Force Majeure includes, without limitation, non-delivery or delays in delivery of goods and services of Hexagon. Force Majeure of suppliers of Hexagon shall be deemed to be Force Majeure of Hexagon.
HxDR may include hyperlinks to other websites, content or resources. Hexagon has no control over any websites or resources that are provided by companies or persons other than Hexagon. Hexagon is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products, or other materials on, or available from, such websites or resources.
The Parties shall provide each other with an e-mail address to receive any notices and notifications under the Agreement (the “E-Mail Address“). The Parties are responsible to ensure that e-mails sent to the E-Mail Address are received and read and shall notify the other party of any changes in the E-Mail Address.
Notices under the Agreement shall be deemed to be properly given when given by email with confirmation of receipt by email, except that any notice under the Agreement sent by Hexagon to the Customer’s E-Mail Address shall be deemed to be properly given.
No amendment to the Agreement shall be effective unless made in text form.
Hexagon shall not be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.
The Customer may not assign, novate or otherwise transfer any or all of its rights, benefits or claims under the Agreement without the prior written consent of Hexagon.
If any provision or part of a provision of the Agreement shall be, or be found by any authority or court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of the Agreement, all of which shall remain in full force and effect. The Parties shall use their best endeavours to substitute for any provision so declared to be illegal, void or enforceable a provision which shall be as closely as possible of a similar nature, but which shall be legally enforceable.
These Terms of Use and the Agreement shall be governed by and construed in accordance with the substantive laws of Switzerland. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
All disputes arising out of or in connection with the Agreement shall be exclusively and finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The seat of the arbitration shall be Zurich, Switzerland. The arbitral proceedings shall be conducted in English. Chapter 12 of the Swiss International Private Law Act shall be the applicable lex arbitri.
The Parties shall have the right but no obligation to mutually agree on another forum after a dispute arises.
* * *
Leica Geosystems AG
Heinrich-Wild-Strasse 201
9435 Heerbrugg
Switzerland
The parties acknowledge and agree that the following country specific annexes of these Terms of Use (“Country Annex”) apply to and shall be read in conjunction with the Terms of Use above. Customer acknowledges and agrees that, to the extent that Customer is located in a specific country or any transaction between Customer and Hexagon is based in a country for which a Country Annex is provided, then the specific Sections of that Country Annex shall override and supersede those specific and corresponding Sections in the Terms of Use.
For the sake of clarity, the law of that specific country relating to the Country Annex (e.g. German law for the Country Annex Germany) shall apply but only for the Sections specifically governed in said Country Annex. Where no specific Section is provided in a Country Annex, the corresponding Terms of Use shall apply and shall be governed by Swiss Law and – for the sake of clarity – Sections 23 and 24 of the Terms of Use shall remain in full force.
“Territory means the country in which the Customer is incorporated, unless otherwise defined in the Agreement.”
“HxDR allows Customers to view, edit and process Hexagon Content, Hexagon Verified Content and Third Party Content to the extent and as specified in the Agreement. Hexagon or its licensors have the necessary rights in or to the Hexagon Content, the Hexagon Verified Content and the Third Party Content for providing the services under the Agreement.
Hexagon has the right to modify, take off-line or delete parts of or all Hexagon Content, Hexagon Verified Content and Third Party Content at any time without prior notice in its sole discretion.
For the avoidance of doubt, the Customer acknowledges and agrees that all intellectual property rights in and to the Hexagon Content are owned by or licensed to Hexagon and, unless otherwise expressly provided in the Agreement, you do not obtain any right, title or interest in or to the Hexagon Content.”
“All HxDR Content merely represents reality to a certain degree. The Customer assumes all risks associated with using HxDR Content for any purposes whatsoever.
HxDR Content is not intended to be the sole basis for plans, technical drawings, models, feasibility studies or other construction or business decisions. The Customer must always verify the accuracy of any HxDR Content with other independent means and sources.
To the maximum extent permitted by law, Hexagon explicitly excludes any representations and warranties as to the quality, correctness, accuracy, reliability and fitness for a particular purpose of any Third Party Content.
For the avoidance of doubt, nothing in this Section 7.4 (or elsewhere in the Agreement) will operate to exclude or restrict any liability of a party that by law cannot be excluded or restricted, including under the Competition and Consumer Act 2010 (Cth).”
“After setting up the Account, the Customer in the course of using HxDR may only provide to Hexagon or upload to HxDR the following data with the respective person’s permission or where this is strictly necessary for using HxDR and permitted by the applicable data protection legislation:
The Customer’s use of HxDR and any HxDR Content is entirely at its own risk and HxDR as well as all HxDR Content are provided “as is” and “as available”. Unless otherwise explicitly specified in the Agreement, to the maximum extent permitted by law, Hexagon does not represent or warrant to the Customer that:
Any representations and warranties regarding the quality and geometrical accuracy of Customer Content shall only apply if and to the extent such Customer Content was obtained with Hexagon equipment (see Section 10.2) and was obtained and processed by qualified personnel and suitable state of the art equipment. Any recommendations or best practices provided to the Customer by Hexagon regarding the generating, recording, transfer, storing and processing of data are mere recommendations and do not express or imply any statement about or guarantee of a certain result or quality.
To the maximum extent permitted by law, Hexagon explicitly excludes any representations and warranties as to the quality, correctness, accuracy, reliability and fitness for a particular purpose of any Third Party Content (see Section 7.4).
In case any representations or warranties explicitly specified in the Agreement are not met by Hexagon, the Customer has the right to request Hexagon to cure the defect within a reasonable period of time of at least 14 days. If Hexagon fails to cure the defect on the second independent attempt, as the sole and exclusive remedies the Customer has the right to (i) terminate the Agreement with immediate effect (see Section 15.2f), and/or (ii) claim damages for any direct damage caused by the defect limited to the price of the Customer’s Subscription Plan for one year.
For the avoidance of doubt, nothing in this Section 17 (or elsewhere in the Agreement) will operate to exclude or restrict any liability of a party that by law cannot be excluded or restricted, including under the Competition and Consumer Act 2010 (Cth).
To the extent that any consumer guarantee or warranty under any statute, at common law or otherwise is read into these Terms of Use, our liability for failure to comply with any such guarantee is limited, at our sole discretion, to one or more of:
iii) the payment of the cost of replacing the relevant goods or of acquiring equivalent goods; and/or
“Hexagon’s and its Subsidiaries’ and Affiliates’ and their employees’ and other auxiliary persons’ liability for any direct damage caused to the Customer and its Users shall be limited to the price of the Customer’s Subscription Plan for one year.
To the maximum extent permitted by law, Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users for any indirect, incidental, subsidiary, punitive and consequential damage or loss, including for loss of profit or business of any kind loss of, or damage to, or corruption of, data and third-party claims or punitive damages. This shall apply even if Hexagon has been informed of the possibility of the occurrence of said damage.
For any free trial of HxDR (see Section 5.2) Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users to the maximum extent permitted by law.
For the avoidance of doubt, nothing in this Section 18 (or elsewhere in the Agreement) will operate to exclude or restrict any liability of a party that by law cannot be excluded or restricted, including under the Competition and Consumer Act 2010 (Cth).”
“22.6 Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22.7 Entire Agreement
The Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous statements, representations, agreements and understandings between the parties with respect to its subject matter, whether oral or written.
22.8 Interpretation
The headings used in the Agreement are used for convenience only and are not to be considered in construing or interpreting the Agreement. The Agreement will not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of the Agreement.”
“Hexagon claims no ownership over the Customer Content, and the Customer retains copyright and any other rights it already holds in the Customer Content. By uploading Customer Content to or displaying it through HxDR, the Customer to the fullest extent grants Hexagon a non-exclusive, worldwide, transferable, sub-licensable, perpetual, irrevocable, royalty-free right to produce, reproduce, publish, integrate, to modify and to use the Customer Content in HxDR to (i) provide HxDR to the Customer and to protect the Customer and HxDR, and (ii) evaluate, improve and further develop HxDR and other products. You waive any and all moral rights in favour of Hexagon in any way related to any User Communications.”
“After setting up the Account, the Customer in the course of using HxDR may only provide to Hexagon or upload to HxDR the following data with the respective person’s permission or where this is strictly necessary for using HxDR and permitted by the applicable data protection legislation:
“Hexagon will provide billing and usage information in a format of its choice, which may change from time to time. Without prejudice to any shorter payment term that may be agreed between the Parties, the payment term must not exceed sixty (60) days from the date of issuance of the invoice.”
“Upon expiry of the agreed date of payment, the Customer shall be deemed in default. All consequential costs due to default shall be at the Customer’s charge. Hexagon reserves the right to suspend the Customer’s access to HxDR or terminate the Agreement for any late payments (see Sections 8.1 and 15.2 of the Terms of Use). If payment is not made in full by the due date, late payment interest will be added to the outstanding sums, ipso jure and without the need for prior formal notice or reminder, at a rate equal to the interest rate applied by the European Central Bank (ECB) to its most recent refinancing operation, plus ten (10) percentage points. These penalties apply to the amount of the debt including VAT and are payable from the day following the payment date shown on the invoice, until the date on which the Customer has released payment.
In addition, in accordance with article L441-10 of the French Commercial Code, in the event of late payment, the Customer will also be liable, for each invoice not paid on time, for a fixed indemnity for collection costs of 40 EUROS.”
“HxDR allows Customers to view, edit and process Hexagon Content, Hexagon Verified Content and Third Party Content to the extent and as specified in the Agreement. Hexagon or its licensors have the necessary rights in or to the Hexagon Content, the Hexagon Verified Content and the Third Party Content for providing the services under the Agreement.
Hexagon has the right to modify, take off-line or delete parts of Hexagon Content, Hexagon Verified Content and Third Party Content, including but not limited to cases it contains (i) illegal content, (ii) infringing content and/or (iii) military relevant information, at any time without prior notice in its sole discretion.
“Upon expiry of the agreed date of payment, the Customer shall be deemed in default. All consequential costs due to default shall be at the Customer’s charge. Late payments bear interest at the rate of 9 percentage points over the German base interest rate (Basiszinssatz) per year. Hexagon reserves the right to suspend the Customer’s access to HxDR or terminate the Agreement for any late payments (see Sections 8.1 and 15.2 of the Terms of Use).”
“Any representations and warranties regarding the quality and geometrical accuracy of Customer Content shall only apply if and to the extent such Customer Content was obtained with Hexagon equipment (see Section 10.2 of the Terms of Use) and was obtained and processed by qualified personnel and suitable state of the art equipment. Any recommendations or best practices provided to the Customer by Hexagon regarding the generating, recording, transfer, storing and processing of data are mere recommendations and do not express or imply any statement about or guarantee of a certain result or quality.
In case any representations or warranties explicitly specified in the Agreement are not met by Hexagon, the Customer has the right to request Hexagon to cure the defect within a reasonable period of time of at least 14 days. If Hexagon fails to cure the defect on the second independent attempt, as the sole and exclusive remedies the Customer has the right to (i) terminate the Agreement with immediate effect (see Section15.2 f)), and/or (ii) claim damages as provided by Section 4 of the Germany – Country Annex.”
“Hexagon shall be liable without limitation for intent and gross negligence. With regard to slight negligence, the liability of Hexagon shall be limited and restricted to the foreseeable damage that might typically occur under the contract if an obligation is violated, the fulfilment of which is essential for the proper performance of the contract and on the compliance with which the customer may regularly rely (cardinal duty).
The foregoing liability limitations or exclusions shall not apply to claims resulting from fraudulent concealment of a defect, acceptance of a guarantee and claims pursuant to the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG) and to damage arising from injuries to life, body or health.
Insofar as Hexagon’s liability is excluded or limited, such exclusion or limitation shall also apply to the personal liability of its employees, workers, representatives, and vicarious agents.
Liability for data loss shall be limited to the typical recovery costs that would have been incurred if the Customer had made regular backups in accordance with the associated risk profile.”
“Hexagon claims no ownership over the Customer Content, and the Customer retains copyright and any other rights it already holds in the Customer Content. By uploading Customer Content to or displaying it through HxDR, the Customer to the fullest extent grants Hexagon a non-exclusive, worldwide, transferable, sub-licensable, perpetual, irrevocable, royalty-free right to integrate, to modify and to use the Customer Content in HxDR to (i) provide HxDR to the Customer and to protect the Customer and HxDR, and (ii) evaluate, improve and further develop HxDR and other products.
To the extent permitted by law, Customer waives all moral rights it may have in relation to the rights it grants to Hexagon under this Section 12.”
“After setting up the Account, the Customer in the course of using HxDR may only provide to Hexagon or upload to HxDR the following data with the respective person’s consent which is valid under the applicable data protection legislation or where this is strictly necessary for using HxDR and permitted by the applicable data protection legislation:
“7.5 Obligation to Comply with the Geospatial Information Laws and Regulations of the Republic of Indonesia
7.5.1 Customer, that uses spatial data that is based on the actual geospatial data of the territory of the Republic of Indonesia shall comply with the prevailing law and regulations regarding geospatial information in Indonesia.
7.5.2 The Customer, in producing or otherwise making available Customer Content that incorporates geospatial data of the territory of the Republic of Indonesia, shall:
7.5.2.1 use the basic geospatial information (“BGI”) that is organized or otherwise made available by the Indonesian Geospatial Agency (“GIA”) and/or any parties that cooperate with or receive a delegation from GIA, as the base of its Customer Content;
7.5.2.2 align the Customer Content with the most recent BGI.
7.5.2.3 in the event that the BGI is yet to be provided, obtain approval from GIA to:
7.5.3 The Customer must not acquire geospatial data from the security or defence areas within the jurisdiction of the Republic of Indonesia.
7.5.4 The Customer’s obligations and prohibitions regarding the geospatial information shall also extend to its Users.
“In order to establish, evaluate and improve the functionality, reliability, performance, maintenance of and support for HxDR and in order to verify whether HxDR is used with a valid license and in accordance with the Agreement, Hexagon may track and evaluate the Customer’s and its Users’ use of HxDR, including by collecting geospatial information and information about the devices a Customer and its Users connect to HxDR.
The Customer and its Users herewith grant their consent to Hexagon for the collection of the foregoing geospatial information and the use and modification of such geospatial information.“
“HxDR is intended for use with data obtained with Hexagon equipment. The uploading and processing of Customer Content obtained with other equipment is at the Customer’s sole risk and responsibility. Hexagon does not represent or warrant that Customer Content obtained with third party equipment can be stored on or processed by HxDR. Any representations and warranties in the Agreement regarding the quality of HxDR Content do not apply to HxDR Content which is based on or derived from Customer Content obtained with third party equipment.
The Customer is solely and fully responsible for the content of any Customer Content. The Customer ensures, undertakes, represents, warrants and covenants that all Customer Content is in full compliance with all applicable laws and regulations in the relevant jurisdictions. In particular, the Customer ensures, undertakes, represents, warrants and covenants with respect to all Customer Content that:
“After setting up the Account, the Customer in the course of using HxDR may only provide to Hexagon or upload to HxDR the following data with the respective person’s permission or where this is strictly necessary for using HxDR and permitted by the applicable data protection legislation:
“15.4 Waiver of Article 1266 and 1267 of the Indonesian Civil Code
The Parties hereby waive Article 1266 and 1267 of the Indonesian Civil Code to the extent such articles require judicial approval of any termination of this Terms of Use.
15.5 Retention after Termination
Hexagon shall retain the Customer and its Users data for 5 (five) years from the termination of this Terms of Use.”
“Hexagon’s and its Subsidiaries’ and Affiliates’ and their employees’ and other auxiliary persons’ liability for any direct damage caused to the Customer and its Users shall be limited to the price of the Customer’s Subscription Plan for one year.
To the maximum extent permitted by law, Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users for any indirect, incidental, subsidiary, punitive and consequential damage or loss, including for loss of profit or business of any kind loss of, or damage to, or corruption of, data and third-party claims or punitive damages. This shall apply even if Hexagon has been informed of the possibility of the occurrence of said damage.
For any free trial of HxDR (see Section 5.2) Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users to the maximum extent permitted by law.
For the avoidance of doubt, nothing in this Section shall exclude any party’s liability that cannot be limited or excluded according to the laws and regulations.”
“If any provision or part of a provision of the Agreement shall be, or be found by any authority or court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of the Agreement, all of which shall remain in full force and effect. The Parties shall use their best endeavours to substitute for any provision so declared to be illegal, void or enforceable a provision which shall be as closely as possible of a similar nature, but which shall be legally enforceable.”
“Hexagon claims no ownership over the Customer Content, and the Customer retains copyright and any other rights it already holds in the Customer Content. By uploading Customer Content to or displaying it through HxDR, the Customer to the fullest extent permitted by the mandatory provisions of the applicable law grants Hexagon a non-exclusive, worldwide, transferable, sub-licensable, perpetual (i.e. until the relevant rights cease to exist), irrevocable, royalty-free right to integrate, to modify and to use the Customer Content in HxDR to (i) provide HxDR to the Customer and to protect the Customer and HxDR, and (ii) evaluate, improve and further develop HxDR and other products.”
“Hexagon’s and its Subsidiaries’ and Affiliates’ and their employees’ and other auxiliary persons’ liability for any direct damage caused to the Customer and its Users shall be limited to the price of the Customer’s Subscription Plan for one year.
To the maximum extent permitted by law, Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users for any indirect, subsidiary and consequential damage or loss, including for loss of profit or business of any kind and third-party claims. This shall apply even if Hexagon has been informed of the possibility of the occurrence of said damage.
For any free trial of HxDR (see Section 5.2 of the Terms of Use) Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users to the maximum extent permitted by law.
Nothing in these Terms of Use or Agreement shall exclude Hexagon’s liability for damages as a result of Hexagon’s willful misconduct, gross negligence or breach of obligations arising from Italian rules of public order.”
“Hexagon claims no ownership over the Customer Content, and the Customer retains copyright and any other rights it already holds in the Customer Content. By uploading Customer Content to or displaying it through HxDR, the Customer to the fullest extent grants Hexagon a non-exclusive, worldwide, transferable, sub-licensable, perpetual, irrevocable, royalty-free right to produce, reproduce, publish, integrate, to modify and to use the Customer Content in HxDR to (i) provide HxDR to the Customer and to protect the Customer and HxDR, and (ii) evaluate, improve and further develop HxDR and other products. You waive any and all moral rights in favour of Hexagon in any way related to any Customer Content.”
“HxDR allows Customers to view, edit and process Hexagon Content, Hexagon Verified Content and Third Party Content to the extent and as specified in the Agreement. Hexagon or its licensors have the necessary rights in or to the Hexagon Content, the Hexagon Verified Content and the Third Party Content for providing the services under the Agreement.
Hexagon has the right to modify, take off-line or delete parts of or all Hexagon Content, Hexagon Verified Content and Third Party Content at any time without prior notice in its sole discretion.
Hexagon will give Customer at least 30 days’ notice before modifying, taking off-line, or deleting parts or all of any Hexagon Content or Hexagon Verified Content, or Third Party Content, where doing so would materially change HxDR.”
“Hexagon may enhance and/or change the features of HxDR at its discretion as long as it does not materially reduce the core functionality of HxDR. Hexagon will give the Customer at least 30 days’ notice of any material change to or discontinuation of HxDR.
“After setting up the Account, the Customer in the course of using HxDR may only provide to Hexagon or upload to HxDR the following data with the respective person’s permission or where this is strictly necessary for using HxDR and permitted by the applicable data protection legislation:
The Customer acknowledges that it is in trade and will use HxDR in trade. The Customer agrees that:
will not apply to this Agreement. The Customer agrees that it is fair and reasonable that it is bound by the provisions of this clause titled “New Zealand-specific legislation”.
The terms of this clause will apply only if and to the extent that it is legally permitted to contract out of the Consumer Guarantees Act 1993 or the Fair Trading Act 1986, as applicable.
“Hexagon claims no ownership over the Customer Content, and the Customer retains copyright and any other rights it already holds in the Customer Content. By uploading Customer Content to or displaying it through HxDR, the Customer to the fullest extent grants Hexagon a non-exclusive, worldwide, transferable, sub-licensable, perpetual, irrevocable, royalty-free right to integrate, to modify and to use the Customer Content in HxDR to (i) provide HxDR to the Customer and to protect the Customer and HxDR, and (ii) evaluate, improve and further develop HxDR and other products.
To the extent permitted by law, Customer waives all moral rights it may have in relation to the rights it grants to Hexagon under this clause 11.”
“The Customer will timely pay Hexagon all fees associated with its Subscription Plan, Account, in-app purchases or use of HxDR, including, but without limitation, by Users. Except as expressly provided in the Agreement, the Customer’s payments are non-refundable.
The terms of this clause will apply only if and to the extent permitted by law.”
“Territory means the country in which the Customer is incorporated, unless otherwise defined in the Agreement.”
“After setting up the Account, the Customer in the course of using HxDR may only provide to Hexagon or upload to HxDR the following data with the respective person’s permission or where this is strictly necessary for using HxDR and permitted by the applicable data protection legislation:
“All fees, prices, and other charges mentioned in the Agreement shall be exclusive of all goods and services taxes and/or value-added taxes and/or other applicable sales taxes. If Hexagon is obligated to collect or pay such taxes, the taxes will be invoiced to the Customer, unless the Customer provides Hexagon with a timely and valid tax exemption certificate authorized by the competent taxing authority.”
“Hexagon’s and its Subsidiaries’ and Affiliates’ and their employees’ and other auxiliary persons’ liability for any direct damage caused to the Customer and its Users shall be limited to the price of the Customer’s Subscription Plan for one year.
To the maximum extent permitted by law, Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users for any indirect, incidental, subsidiary, punitive and consequential damage or loss, including for loss of profit or business of any kind loss of, or damage to, or corruption of, data and third-party claims or punitive damages. This shall apply even if Hexagon has been informed of the possibility of the occurrence of said damage.
For any free trial of HxDR (see Section 5.2) Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users to the maximum extent permitted by law.
For the avoidance of doubt, nothing in this Section 18 (or elsewhere in the Agreement) will operate to exclude or restrict any liability of a party that by law cannot be excluded or restricted, including under the Unfair Contract Terms Act 1977 of Singapore.”
“Force Majeure means any act of God, natural disaster, government order, rule or decision, fire, war or armed conflict or the serious threat of the same, strike or labor dispute (but not where relating to the staff or personnel of the party subject to the relevant strike or labor dispute), pandemic, attack by viruses, worms or Trojan horses or any other cause beyond the reasonable control of the affected Party;”
“All HxDR Content merely represents reality to a certain degree, Subject always to the provisions of Section 6 of the UNITED KINGDOM – COUNTRY ANNEX, the Customer assumes all risks associated with using HxDR Content for any purposes whatsoever.
HxDR Content is not intended to be the sole basis for plans, technical drawings, models, feasibility studies or other construction or business decisions. The Customer must always verify the accuracy of any HxDR Content with other independent means and sources.
To the maximum extent permitted by law, and subject always to Section 6 of the UNITED KINGDOM – COUNTRY ANNEX, Hexagon explicitly excludes any representations and warranties as to the quality, correctness, accuracy, reliability and fitness for a particular purpose of any Third Party Content.”
“This Section is subject to Section 6 of the UNITED KINGDOM – COUNTRY ANNEX.
HxDR is intended for use with data obtained with Hexagon equipment. The uploading and processing of Customer Content obtained with other equipment is at the Customer’s sole risk and responsibility. Hexagon does not represent or warrant that Customer Content obtained with third party equipment can be stored on or processed by HxDR. Any representations and warranties in the Agreement regarding the quality of HxDR Content do not apply to HxDR Content which is based on or derived from Customer Content obtained with third party equipment.
The Customer is solely and fully responsible for the content of any Customer Content. The Customer ensures, undertakes, represents, warrants and covenants that all Customer Content is in full compliance with all applicable laws and regulations in the relevant jurisdictions. In particular, the Customer ensures, undertakes, represents, warrants and covenants with respect to all Customer Content that:
“The Customer shall make all payments free of deductions of any kind, such as (but not necessarily limited to) discounts, expenses, taxes, and dues. A payment shall only be deemed to be made when it has been made in full.
Neither party shall set off any payment due against any counterclaim and neither party shall be entitled to withhold payment on the grounds of any complaint or other claim, unless the other party’s counterclaim is accepted by the other or has been finally decided by a competent court or arbitral tribunal.”
“The Customer’s use of HxDR and any HxDR Content is entirely at its own risk and HxDR as well as all HxDR Content are provided “as is” and “as available”. Unless otherwise explicitly specified in the Agreement, to the maximum extent permitted by law, and subject always to the provisions of Section 6 of the UNITED KINGDOM – COUNTRY ANNEX, Hexagon does not represent or warrant to the Customer that:
Any representations and warranties regarding the quality and geometrical accuracy of Customer Content shall only apply if and to the extent such Customer Content was obtained with Hexagon equipment (see Section 3 of the UNITED KINGDOM – COUNTRY ANNEX) and was obtained and processed by qualified personnel and suitable state of the art equipment. Any recommendations or best practices provided to the Customer by Hexagon regarding the generating, recording, transfer, storing and processing of data are mere recommendations and do not express or imply any statement about or guarantee of a certain result or quality.
To the maximum extent permitted by law, Hexagon explicitly excludes any representations and warranties as to the quality, correctness, accuracy, reliability and fitness for a particular purpose of any Third Party Content (see Section 2 of the UNITED KINGDOM – COUNTRY ANNEX).
In case any representations or warranties explicitly specified in the Agreement are not met by Hexagon, the Customer has the right to request Hexagon to cure the defect within a reasonable period of time of at least 14 days. If Hexagon fails to cure the defect on the second independent attempt, as the sole and exclusive remedies the Customer has the right to (i) terminate the Agreement with immediate effect (see Section 15.2f) of the Terms of Use), and/or (ii) claim damages for any direct damage caused by the defect limited to the price of the Customer’s Subscription Plan for one year.”
“Hexagon’s and its Subsidiaries’ and Affiliates’ and their employees’ and other auxiliary persons’ liability for any direct damage caused to the Customer and its Users shall be limited to the price of the Customer’s Subscription Plan for one year.
To the maximum extent permitted by law, Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users for any indirect, incidental, subsidiary, punitive and consequential damage or loss, including for loss of profit or business of any kind loss of, or damage to, or corruption of, data and third-party claims or punitive damages and third-party claims. This shall apply even if Hexagon has been informed of the possibility of the occurrence of said damage.
For any free trial of HxDR (see Section 5.2 of the Terms of Use) Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users to the maximum extent permitted by law.
For the avoidance of doubt, nothing in this Agreement will operate to exclude or restrict any Liability of a party: (a) that cannot be excluded or restricted in this Agreement in respect of death or personal injury resulting from negligence by operation of Section 2(1) Unfair Contract Terms Act 1977; (b) for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable; (c) for breach of its obligations arising under Section 2 Supply of Goods and Services Act 1982; (d) for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.”
“Territory means the country in which the Customer has its seat (I.e. where the Customer is organized or incorporated), unless otherwise defined in the Agreement.”
“Upon request by the Customer and to the extent reasonably possible, Customer Content will be deleted by Hexagon within a reasonable time, unless and to the extent Hexagon is compelled or permitted by law to store Customer Content for longer. Hexagon has the right to refuse the Customer access to and delete any Customer Content if (i) said Customer Content violates the Agreement, any applicable law or third party rights or is otherwise unacceptable in Hexagon’s sole discretion; or (ii) a third party credibly claims such a violation. Nothing in this subsection alters Hexagon’s obligations under applicable data protection laws.”
“Customer acknowledges and agrees that certain of the services, software, and technology used in connection with the Agreement may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. Customer acknowledges and agrees that HxDR, HxDR Content, software, or technical data made available in connection with the Agreement shall not, in violation of such export controls, be used, provided, exported, or re-exported in, to, or by any country as to which the United States maintains an embargo at any time relevant to the Agreement or any national or resident of any such country, or any person or entity that, at any time relevant to this Agreement, is on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders.”
“All fees and other amounts payable by Customer under the Agreement are exclusive of taxes, levies, duties, and similar assessments. Customer is responsible for paying all taxes, levies, duties, and similar assessments, including all sales, use, and excise taxes, and any other similar taxes of any kind imposed by any governmental or regulatory authority and associated with Customer’s use of HxDR or other activity hereunder, including those that Hexagon is legally obligated to collect from Customer (subject to any valid tax exemption certificate authorized by the appropriate taxing authority).”
“Upon expiry of the agreed date of payment, the Customer shall be deemed in default. Customer shall reimburse Hexagon for all reasonable costs incurred by Hexagon in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. Late payments bear interest at the rate of 5% per year or, if lower, the highest rate permitted under applicable law. Hexagon reserves the right to suspend the Customer’s access to HxDR or terminate the Agreement for any late payments (see Sections 8.1 and 15.1 of the Terms of Use).
“Customer acknowledges that the Hexagon may suffer irreparable injury, for which remedies at law would be inadequate, if Customer or any User breaches (or attempts or threatens to breach) its confidentiality obligations under the Agreement. Therefore, Customer and each User agrees that Hexagon shall have the right to obtain, in addition to any other remedies available at law or in equity, injunctive or other equitable relief in a court of competent jurisdiction to enjoin such acts or threats.”
“Without limiting the generality of the other disclaimers and exclusions in the Agreement, Hexagon specifically disclaims any implied warranty of merchantability, fitness for a particular purpose, title, or non-infringement. Nothing in these Terms of Use shall affect any statutory warranty, guarantee, or rights that Customer cannot contractually agree to alter or waive.”
“Hexagon’s and its Subsidiaries’ and Affiliates’ and their employees’ and other auxiliary persons’ maximum aggregate liability in any and all actions, however based, for all damages and losses caused to or incurred by the Customer and its Users in connection with the Agreement, whether arising under or related to breach of contract, tort (including negligence), strict liability, or any other legal or equitable theory, shall be limited to the price of the Customer’s Subscription Plan for one year. The foregoing limitations apply even if any remedy fails of its essential purpose.
To the maximum extent permitted by law, Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users for any indirect, incidental, subsidiary, punitive and consequential damage or loss, including for loss of profit or business of any kind and third-party claims, whether arising under or related to breach of contract, tort (including negligence), strict liability, or any other legal or equitable theory. This shall apply even if Hexagon has been informed of the possibility of the occurrence of said damage or such damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
For any free trial of HxDR (see Section 5.2 of the Terms of Use) Hexagon, its Subsidiaries and Affiliates and their employees and other auxiliary persons exclude any liability towards the Customer and its Users to the maximum extent permitted by law.
Each party is a sophisticated person and acknowledges and agrees that the allocation of risk in the Agreement is reflected in the fees and expenses charged under the Agreement, and that higher charges would be made but for the limitations of liability set forth in the Agreement, and that the allocation of risk under the Agreement is reasonable and appropriate under the circumstances.”
Certain states and/or jurisdictions do not allow the limitation of liability for incidental, consequential or certain other damages. The limitations of liability and exclusions set forth herein will not apply to the extent prohibited by applicable law.”
“If any provision or part of a provision of the Agreement shall be, or be found by any authority or court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of the Agreement, all of which shall remain in full force and effect, and such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s).”
“22.6 Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22.7 Third Party Rights
Except as specified in the Agreement, the Agreement does not create, confer or purport to confer any benefit or right enforceable by any person or entity not a party to it except that a person or entity who is a permitted successor to or assignee of the rights of a party to the Agreement is deemed to be a party to the Agreement.
22.8 Entire Agreement
The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings between the parties with respect to such matters, whether oral or written. No terms stated in any other Customer purchase order, privacy agreement, vendor agreement or other Customer form agreement will be incorporated into or form any part of the Agreement, unless such document is signed by an officer of Hexagon, explicitly references that Agreement, and states that it is intended to modify the Agreement.
22.9 Interpretation
The headings used in the Agreement are used for convenience only and are not to be considered in construing or interpreting the Agreement. The parties agree that the terms and conditions of the Agreement are the result of negotiations between the parties and that the Agreement will not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of the Agreement. For purposes of the Agreement, unless the context requires otherwise: (a) the words “include,” “includes,” “in particular,” and “including” are deemed to be followed by the words “without limitation”, and (b) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole.”
“23.3 Class Action Waiver
Any arbitration proceeding under this Section 24 of the Terms of Use will take place on an individual basis. Class arbitrations and class or representative proceedings of any kind are not permitted, and Customer expressly waives its ability to participate in a class or representative proceeding against Hexagon or its Subsidiaries and Affiliates. If the arbitration Section is found inapplicable to Customer’s dispute with Hexagon, this class waiver will continue to apply in litigation. Customer agrees that this class waiver is an essential element of the agreement between Customer and Hexagon and that this class waiver may not be severed. In the event that this class waiver is deemed invalid or unenforceable, then the entire agreement to arbitrate in this Section 24 of the Terms of Use will be null and void.”
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