HxDR Terms of Use

HxDR Terms of Use

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, Acceptable Use Policy and the Documentation (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).

 

1............ Introduction

2............ Definitions

3............ Scope and Application of the Terms of Use

4............ Services Rendered by Hexagon's Subsidiaries and Affiliates

5............ HxDR Customer Account

6............ Content and Services

7............ Hexagon Deliverables

8............ Use of HxDR by the Customer

9............ Customer Responsibilities and Obligations

10.......... Rights granted to the Customer by Hexagon

11.......... Hexagon's Right to Use Customer Content

12.......... Privacy and Personal Information

13.......... Pricing and Payment

14.......... Term and Termination

15.......... Confidentiality

16.......... Exclusion of Warranties

17.......... Limitations of Liability

18.......... Indemnities

19.......... Force Majeure

20.......... Third Party Resources

21.......... General Legal Terms

22.......... Applicable Law

23.......... Dispute Resolution

 

Introduction

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.

Definitions

In these Terms of Use

a)    Acceptable Use Policy means Hexagon's Acceptable Use Policy for HxDR available at www.hxdr.com/acceptable-use-policy ;

b)    Account means the Customer's and/or the Users' HxDR user account;

c)     Agreement means collectively the Order Form, the Subscription Plan, these Terms of Use and any other agreements of the Parties in text form regarding HxDR;

d)    Authorized User means any individual natural person or legal entity not belonging to the Customer's organization who is registered or permitted by the Customer to use HxDR subject to the Agreement;

e)    Brand Features means trade names, trademarks, logos, domain names, and other distinctive brand features, whether registered or not;

f)      Confidential Information means all information disclosed by Hexagon to a Customer or its Users, whether orally or in writing, that is designated as confidential or that relates to HxDR, including the terms of this Agreement (including pricing). Confidential Information excludes any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Hexagon, (ii) was known to the Customer or its Users prior to its disclosure by Hexagon without breach of any obligation owed to Hexagon, (iii) is received from a third party without breach of any obligation owed to Hexagon, or (iv) was independently developed by the Customer or its Users;

g)    Content means any data, including but not limited to electronic data, text, messages, communications, documents, physical world data, including but not limited to (i) stereo, ortho-rectified, and/or oblique aerial imagery; (ii) point cloud, elevation, and/or digital surface model data; (iii) various derivative natural or human made geographic feature data; and (iv) associated metadata or attribute information and other information and data;

h)    Customer Content means Content uploaded to and stored on HxDR by the Customer and/or its Users;

i)      Customer means the individual or entity who subscribes to and uses HxDR solely for business purposes and/or is specified as the business customer in the Order Form;

j)      Customer User means any individual natural person belonging to the Customer's organization who is registered or permitted by the Customer to use HxDR subject to the Agreement;

k)     Documentation means the HxDR technical documentation provided by Hexagon, available at www.hxdr.com/documentation ;

l)      E-Mail Address means the Customer's and Hexagon's e-mail address to which any notices and notifications under the Agreement shall be sent according to Section 21.1;

m)   Equipment means any equipment and ancillary services needed by the Customer and its Users to connect to, access or otherwise use HxDR, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like;

n)    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, pandemic, attack by viruses, worms or Trojan horses or any other cause beyond the reasonable control of the Parties;

o)    Hexagon Content means Content made available or stored on HxDR that was recorded or generated by or on behalf of Hexagon and to which Hexagon has rights of use;

p)    Hexagon means Leica Geosystems AG, Heinrich-Wild-Strasse 201, 9435 Heerbrugg, Switzerland;

q)    Hexagon Verified Content means Content made available or stored on HxDR that was not recorded or generated by or on behalf of Hexagon but has been verified by Hexagon;

r)     HxDR Content means any Content made available or stored on, uploaded to or generated or processed by HxDR;

s)     HxDR means Hexagon's Digital Reality platform and any related services;

t)      Order Form means any online, written or otherwise in text form registration, subscription order form or contract for HxDR submitted by the Customer to Hexagon either during an online subscription or registration process or separately signed by the Customer and submitted to and confirmed by Hexagon, and any future registration, purchase order, contract, or order form that refers to these Terms of Use and which is confirmed by Hexagon;

u)    Parties means Hexagon and the Customer together;

v)     Privacy Policy means Hexagon's privacy policy available at https://leica-geosystems.com/de-ch/global/privacy-policy;

w)    Subscription Plan means the terms for a defined subscription level for the use of HxDR;

x)     Subsidiaries and Affiliates means Hexagon's subsidiaries and affiliated legal entities around the world, regardless of whether Hexagon owns a controlling interest in such legal entity or not;

y)     Terms of Use means these HxDR terms of use;

z)     Territory means the country in which the Customer has its seat, unless otherwise defined in the Agreement.

aa)  Third Party Content means Content made available or stored on HxDR by third parties;

bb)  User means both Customer Users and Authorized Users;

Scope and Application of the Terms of Use

Scope of the 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://leica-geosystems.com/de-ch/global/privacy-policy), the Acceptable Use Policy (www.hxdr.com/acceptable-use-policy) and the Documentation (www.hxdr.com/documentation) form an integral part of these Terms of Use in their current versions.

Accepting the Terms of Use

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.

Order of Precedence

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:

a)    The Order Form and/or any other agreement in text form regarding HxDR between the Parties;

b)    The Subscription Plan;

c)     The Terms of Use;

d)    The Hexagon Privacy Policy;

e)    The Acceptable Use Policy

f)      The Documentation.

Changes to the Terms of Use

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 14.1. If the Customer does not terminate the Agreement according to Section 14.1 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 14.1.

Services Rendered by Hexagon's Subsidiaries and Affiliates

Sometimes, Subsidiaries and Affiliates as well as 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 third parties (which shall be entitled to provide the services under the Agreement on behalf of Hexagon).

HxDR Customer Account

Account

To access and use HxDR, the Customer and its Users need an Account. When opening an Account, the Customer and its Users must provide Hexagon with the information reasonably requested by Hexagon. The provided information must be accurate and correct and must be kept accurate and correct throughout the term of the Agreement.

Trial Account

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 earlier 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 of the trial period.

Content and Services

Hexagon Content, Hexagon Verified Content and Third Party 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.

Customer Content

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 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.

Sharing of Content

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.

Accuracy of HxDR 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.

Hexagon Deliverables

Access to HxDR

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 User's right to access or use any portion or all of HxDR immediately upon notice if Hexagon determines that (a) the Customer or any of its User'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 13.

Service Levels

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, or failures in the Customer's systems and/or infrastructure.

Support

Hexagon will provide support for HxDR only if and as detailed in the Agreement. Any further support will be charged additionally.

Maintenance

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.

Changes to 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 notify the Customer of any material change to or discontinuation of HxDR.

Territory

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.

Use of HxDR by the Customer

Use by Business Customers Only

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 and uses the HxDR services under these Terms of Use only in the course of running its business.

Use by Users

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 9.1). 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 User's use of HxDR, the Customer is jointly and severally liable with the Authorized Users. The Customer undertakes to make Authorized 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.

Tracking of Use

In order to evaluate the functionality, reliability and performance of HxDR, Hexagon may track and evaluate the Customer's and its Users' use of HxDR.

Permitted Use

The Customer shall use HxDR only for purposes and in a way that

a)    are permitted by and in compliance with the Agreement;

b)    are permitted by all applicable laws and regulations in the relevant jurisdictions.

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's use of HxDR must comply with the separate Website Terms of Use as updated by HxDR from time to time and available on https://leica-geosystems.com/de-ch/global/terms-of-use.

Use Restrictions

General Restrictions

The Customer shall not:

a)    distribute, sell, or otherwise make any part of HxDR, including the user interface and any HxDR Content, available to third parties except as permitted by the Agreement.

b)    perform an action with the intent of introducing to HxDR any viruses, worms, defects, Trojan horses, malware, or any items which negatively affect HxDR.

c)     interfere with or disrupt HxDR or the servers or networks providing HxDR.

d)    reverse engineer or attempt to extract the source code from HxDR or any related software, except to the extent that this is expressly allowed by applicable law.

e)    rely solely on HxDR Content or services available on HxDR for any plans, technical drawings, models, feasibility studies or other construction or business decisions and activities where the use or failure of HxDR, including any HxDR Content, could lead to death, personal injury, or environmental damage.

f)      gain access to HxDR and any HxDR Content with means other than the Account.

g)    remove, obscure, or alter any Hexagon terms of service, or any links to or notices of those terms or any Hexagon Brand Features.

h)    access all or any part of HxDR in order to build a product or service which competes with HxDR.

i)      infringe Hexagon or its Subsidiaries and Affiliates' intellectual property rights or those of any third party.

j)      infringe or breach any applicable laws and regulations.

Restrictions on the Use of Content Outside of HxDR

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:

a)    export, copy or save any Hexagon Content, Hexagon Verified Content and Third Party Content to another system, platform or service.

b)    disclose or otherwise make available to third parties any Hexagon Content, Hexagon Verified Content and Third Party Content or copies thereof for any purpose whatsoever and by any means whatsoever, except for sharing them with other Customers in line with Section 6.3 above.

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.

Export Control Restrictions

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 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 Integrator first obtains written permission to do so from Hexagon. Integrator's obligations in this clause shall survive the termination or expiration of the Agreement.

Customer Responsibilities and Obligations

Compliance

The Customer ensures, undertakes, represents and warrants that:

a)    its and its Users' use of HxDR complies with the Agreement, all applicable laws and regulations and all regulations policies and procedures of networks connected to HxDR.

b)    it uses all reasonable endeavours to prevent, and immediately notify Hexagon of, and terminate any unauthorized use of or access to the Customer's and its Users' Accounts or HxDR.

Customer Content

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 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 and warrants 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 and warrants with respect to all Customer Content that:

a)    the Customer was legally entitled to obtain and/or generate the Customer Content, in particular that it has all necessary permits or other rights to obtain and/or generate data about the respective objects or areas.

b)    the Customer obtained express consent of all persons whose personal data, including their picture, car number plates, nameplates on doors or any other identifying characteristics, is visible in the Customer Content or that it lawfully processes and shares with Hexagon such personal data in accordance with the applicable legislation.

c)     the Customer Content does not violate the Agreement, any applicable laws and regulations or any intellectual property or other rights.

Customer Equipment, Security and Backup

The Customer is solely responsible for:

a)    obtaining and maintaining the Equipment;

b)    maintaining the security of the Equipment, its and its Customer Users' Accounts, passwords and other data;

c)     taking the measures necessary to secure and preserve its Customer Content and other data in the Customer's sphere of influence, including by making back-ups.

Rights granted to the Customer by Hexagon

Right to Use HxDR

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, in particular the limitations set forth in Section 8.5 of these Terms and Conditions (Use Restrictions).

Right to Use Hexagon 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 Content to the extent and as specified in the Agreement. The right is subject to the Agreement, in particular the limitations set forth in Section 8.5 of these Terms and Conditions (Use Restrictions).

Right to Use Hexagon Verified Content

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 to the extent and as specified in the Agreement. The right is subject to the Agreement, in particular the limitations set forth in Section 8.5 of these Terms and Conditions (Use Restrictions).

Right to Use Third Party Content

Hexagon has no rights in and does not grant the Customer any right to use Third Party Content.

Proprietary Rights Notices

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

a)    Hexagon Content, the Customer shall give notice that the Hexagon Content is "Copyright 2020 Hexagon" or as adjusted to the then current year or such other notice as Hexagon may instruct from time to time in text form;

b)    HxDR Content, the Customer or its Users must display any proprietary rights notices displayed in the HxDR Content.

Hexagon's Right to Use Customer Content

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 grants Hexagon a non-exclusive, worldwide, transferable, sub-licensable, perpetual, royalty-free right to integrate and to use the Customer Content in HxDR, in particular to (i) generate HxDR Content, including models and derivatives, and (ii) to evaluate, improve and further develop HxDR and other products.

Privacy and Personal Information

Hexagon' Privacy Policy

Hexagon's data protection practices are outlined in its Privacy Policy (https://hexagon.com/privacy-policy). The Customer agrees to the use of its data in accordance with Hexagon's Privacy Policy.

Personally Identifiable Information or Personal Data

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:

a)    any personally identifiable information or device identifiers; or

b)    any person's personal data, including in particular personal data as defined in the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 and the California Consumer Privacy Act [CCPA]).

Pricing and Payment

Subscription Plans and In-App Purchases

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 14.1. If the Customer does not terminate the Agreement according to Section 14.1 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 14.1.

No Refunds

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.

Recurring Charges

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 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 14 of these Terms of Use.

Invoices

Hexagon will provide billing and usage information in a format of its choice, which may change from time to time.

Taxes

All fees, prices, and other charges mentioned in the Agreement shall be exclusive of all value-added taxes. If Hexagon is obligated to collect or pay value-added 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.

No Deductions or Set-Off

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.

Default

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 7.1 and 14.2).

Term and Termination

Term and Ordinary Termination

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.

Extraordinary Termination

The Agreement may be terminated for cause:

a)    immediately by either party if proceedings are initiated for the other party's liquidation or insolvency or a negotiated settlement with the other party's creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors;

b)    by either party in case of breach of the Agreement by the other party, if the breach has not been stopped or removed during 30 calendar days after receipt of a notice from the aggrieved party asking to do so;

c)     immediately by either party if Force Majeure circumstances continue to prevent the servicing of the Agreement for more than three consecutive months as specified in Section 19;

d)    immediately by Hexagon if the Customer is in default with any payment due under the Agreement;

e)    immediately by Hexagon if it has the right to suspend the User's use of HxDR under Section 7.1;

f)      immediately by the Customer if Hexagon fails to cure a defect as specified in Section 16.

Effects of Termination

Upon termination of the Agreement:

a)    All payments then due and payable to Hexagon must be paid in full;

b)    The Customer shall be denied access to HxDR and any Customer Content stored thereon;

c)     Hexagon may delete the Customer Content and the Account from the production environment;

d)    Hexagon may but is not obliged to keep a copy of any Customer Content and Account information or give it to a third party for secure storage in line with the applicable data protection legislation.

Confidentiality

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.

Exclusion of Warranties

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:

a)    HxDR or any HxDR Content will meet the Customer's requirements or are fit for a particular purpose;

b)    HxDR will be uninterrupted, timely, secure, or error-free;

c)    HxDR or any HxDR Content will be correct, accurate or reliable;

d)    defects in the operation or functionality of HxDR or any software provided to the Customer as part of HxDR will be corrected; and

e)    HxDR or any HxDR Content or other data will be available or be made available to the Customer at any point in time.

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 9.2) and was obtained and processed by qualified personnel and suitable state of the art equipment.

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 6.4).

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 14.2f), 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.

Limitations of Liability

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) 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.

Indemnities

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 expenses relating to any allegation, claim, complaint, regulatory action or third-party legal proceedings arising from:

a)    the Customer's use of HxDR or Content in breach of the Agreement or any applicable law;

b)    the Customer's Content and any derivatives generated by HxDR based thereon, including any claim that the Customer's Content and the models generated based thereon infringe third parties' rights or breach any applicable law.

The Customer will cooperate as fully as reasonably required in the defence 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 defence of any indemnified matter under this Section 18.

Force Majeure

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.

Third Party Resources

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.

General Legal Terms

Notices

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.

Amendments in Text Form

No amendment to the Agreement shall be effective unless made in text form.

No Waiver

Hexagon shall not be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.

Assignment

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.

Severability

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.

Applicable Law

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.

Dispute Resolution

Arbitration

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.

Right to Mutually Agree on Another Forum

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