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