TRIMBLE SKETCHUP WEB TERMS OF SERVICE
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VERSION 1.0 (LAST UPDATED MARCH 31, 2018)
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU ARE USING THE SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
These SketchUp Web Terms of Service (this Agreement) are entered into as of the Effective Date between Trimble Inc., a Delaware corporation, and its affiliates (Trimble) and you (Customer or you), an individual or entity accessing or using Trimbles online software-as-a-service solution specified in the applicable Order Form (in each case, the Service). This Agreement consists of the terms and conditions set forth below and any Order Forms (as defined below) that reference this Agreement.
Entry into the Agreement. The Effective Date of this Agreement is the date which is the earlier of (a) Customers initial access to the Service or (b) the effective date of the Order Form referencing this Agreement.
Order Forms. Customer may enter into order forms, quotations, change orders, sales agreements, or any other document referencing this Agreement (which may consist of an online provisioning, registration or order process or separate Trimble order forms; each, an Order Form) with Trimble or a Reseller (as defined below) for Customers purchase of a subscription to the Service. The version of this Agreement posted at https://app.sketchup.com/tos.html as of the Effective Date of the Order Form will govern Customers purchase of the Service specified therein.
Purchase from Reseller. If Customer purchases the Service from an authorized distributor or reseller of Trimble (Reseller), Customers use of the Service shall be governed by this Agreement, subject to Section 14 (Purchase from Reseller) below.
Changes to Agreement. Trimble may modify this Agreement (including Service pricing and plans) from time to time by giving notice to Customer by email or through the Service. The modifications become effective on the date specified by Trimble. If Customer has a paid subscription to the Service and notifies Trimble in writing within thirty (30) days receipt of such notice that it objects to such modifications, Trimble (at its option and as Customers exclusive remedy) will either: (a) permit Customer to continue under the prior version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a refund of any fees Customer has pre-paid for use of the Service for the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Service, and in any event (unless otherwise agreed by Trimble above) continued use of the Service after the updated version of this Agreement goes into effect will constitute Customers acceptance of such updated version. The then-current version of this Agreement can be accessed and viewed at any time at https://app.sketchup.com/tos.html.
TERMS AND CONDITIONS
1. THE SERVICE.
1.1 Overview. The Service is intended to help users design, store, and share three-dimensional digital images and models (Models).
1.2 Access to the Service. The Service is provided on a subscription basis for a set term designated on the applicable Order Form (each, a Subscription Term). Customer may access and use the Service during the term of this Agreement, but only for its own benefit and in accordance with (a) any user or similar scope of use restrictions specified by Trimble, (b) the terms and conditions of this Agreement and (c) the end user technical documentation provided with the Service (Documentation). Customer may permit its employees and contractors acting on its behalf (Permitted Users) to use the Service as permitted herein and subject to any limits on the number of Permitted Users specified in the applicable Order Form, provided that Customer remains responsible for its Permitted Users compliance with the terms and conditions of this Agreement. Each Permitted User must be at least 13 years of age. Customer will ensure that all Permitted Users keep their user IDs and passwords for the Service strictly confidential and will remain responsible for any and all actions taken using Customers accounts. If any Permitted User no longer works for Customer, Customer is responsible for removing such Permitted Users access to the Service.
1.3 General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, copy, provide access to or sublicense the Service to a third party; (b) use the Service to provide, create or develop, or incorporate the Service into, any other product or service; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Trimble); (d) modify the Service or the Documentation, or create any derivative product from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); (f) publicly disseminate information regarding the performance of the Service; or (g) attempt to gain unauthorized access to any systems, networks or data of Trimble or interfere with or disrupt the integrity or performance of any such systems, networks or data.
1.4 Third Party Providers. Trimble may make available content (Third Party Content) provided through services operated by third parties (each, a Third Party Provider) through the Service. Subject to payment of any applicable fees, Customer may use Third Party Content with the Service during the term of this Agreement, but only in accordance with (a) any quota or other restrictions specified by Trimble, and (b) any terms for such use specified by the applicable Third Party Provider. Customer acknowledges that Trimble has no obligation to continue to make available Third Party Content from any particular Third Party Provider. Trimble may cease offering any Third Party Content at any time for any reason or no reason in Trimbles sole discretion, without liability.
1.5 Free Offerings. Where indicated in the applicable Order Form, Customer may receive access to a free version of the Service (a Free Offering) under a Free Subscription. There is no fee for use of Free Offerings in accordance with this Agreement. Without limiting any other restrictions in this Agreement, Customer may only use a Free Offering in a non-production environment for non-commercial purposes. Either party may terminate a Free Subscription, for any reason or no reason, immediately upon written notice to the other party.
1.6 Trial Subscriptions. Where indicated in the applicable Order Form, Customer may receive a trial or evaluation subscription to the Service (a Trial Subscription). If Customer receives a Trial Subscription, then Customer may use the Service in accordance with the terms and conditions of this Agreement and the applicable Order Form for the period designated in such Order Form or otherwise by Trimble, or if not designated, then for thirty (30) days (the Trial Period). Trial Subscriptions are permitted solely for Customers use to determine whether to purchase a paid subscription to the Service. Customer may not use a Trial Subscription for any other purpose, including without limitation for competitive analysis. At the end of the Trial Period, the Trial Subscription will expire and Customer will have the option to purchase a full subscription to the Service. If Customer purchases a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Service unless otherwise specified in the Order Form for the Trial Subscription. Trimble has the right to terminate a Trial Subscription at any time for any reason. If Customer does not enter into a paid Subscription Term, this Agreement and customers right to access and use the Service will terminate at the end of the Trial Period. Trimble has no obligation to retain Customer Data used with a Trial Subscription during or after the Trial Period.
1.7 Disclaimers for Free Offerings and Trial Subscriptions. The Service may have a mechanism that limits access, and Trimble may otherwise restrict certain product functionality, for Free Offerings or Trial Subscriptions. Customer will not attempt to circumvent any such mechanism or restriction. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DURING ANY TRIAL PERIOD OR FREE SUBSCRIPTION THE SERVICE IS PROVIDED AS IS AND TRIMBLE WILL HAVE NO WARRANTY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO FREE OFFERINGS OR TRIAL SUBSCRIPTIONS UNLESS OTHERWISE SPECIFIED IN THE APPLICABLE ORDER FORM.
1.8 Usage Data. Customer acknowledges that Trimble may collect information about Customers use of the Service, e.g. features used and session length (Usage Data). Usage Data is anonymized and does not contain any personally-identifiable information of any individual. Trimble may use Usage Data to provide the Service and related services, improve its products and services and develop aggregate statistics.
2. USE OF OTHER TRIMBLE SERVICES.
2.1 Trimble Connect. The Service implements Trimble Connect, Trimbles proprietary cloud-based storage service, to enable Customer to store Models. Customers storage of Models is subject to the Trimble Connect Terms of Service, available at https://connect.trimble.com/tos.html or a successor URL.
2.2 3D Warehouse. Customer may use Trimbles 3D Warehouse to share Models with other Trimble customers. All use of the 3D Warehouse is subject to the 3D Warehouse Terms of Use, available at https://3dwarehouse.sketchup.com/tos or a successor URL.
2.3 SketchUp Community. Customer may access and use SketchUp Community, Trimbles support and discussion forums devoted to SketchUp products, available at http://forums.sketchup.com/ or a successor URL. All access and use of SketchUp Community is subject to the terms set forth at http://www.trimble.com/Corporate/Terms_of_Use.aspx.
2.4 Applicable Terms. For the avoidance of doubt, Customers use of its Trimble ID, Trimble Connect, 3D Warehouse, SketchUp Community and any other features that are not part of the Service are governed by those offerings respective terms of service and not by this Agreement.
3. CUSTOMER DATA.
3.1 Definition. Customer Data means, collectively, (a) any business information or other data of any type that is input by or on behalf of Customer into the Service and (b) any Models created by Customer using the Service.
3.2 Rights in Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Trimble. Subject to the terms of this Agreement, Customer hereby grants to Trimble a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and publicly perform and display the Customer Data solely to the extent necessary to provide the Service to Customer.
3.3 Storage of Customer Data. Trimble does not provide an archiving service. Trimble agrees only that it will not intentionally delete any Customer Data from the Service prior to termination of Customers applicable Subscription Term. Trimble expressly disclaims all other obligations with respect to storage of Customer Data.
3.4 Customer Obligations. Customer shall ensure that Customers use of the Service and all Customer Data is at all times compliant with Customers privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy, data transfer, international communications and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Trimble that Customer has sufficient rights in the Customer Data to grant the rights granted to Trimble in Section 3.2 (Rights in Customer Data) above and the Customer Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party. In addition, Customer specifically agrees not to submit to the Service any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations (Health Information) and acknowledges that Trimble is not a Business Associate or subcontractor (as those terms are defined in HIPAA) and that the Service are not HIPAA compliant. HIPAA means the Health Insurance Portability and Accountability Act, as amended and supplemented. Trimble shall have no liability under this Agreement for Health Information, notwithstanding anything to the contrary herein.
3.5 Indemnification by Customer. Customer will indemnify, defend and hold harmless Trimble and its subsidiaries, affiliates, officers, agents, and employees from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Data, (b) any breach or alleged breach by Customer of Section 3.4 (Customer Obligations), or (c) any service or product offered by Customer in connection with or related to the Service. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Trimble at Customers expense.
4. SUPPORT. During the Subscription Term, Trimble will provide the support specified on the applicable Order Form, if any, in accordance with the terms available at https://sketchup.com/sub-support-policy (the Support Policy). Trimble may update the Support Policy from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Trimbles obligations as compared to those reflected in such terms as of the Effective Date).
5. SKETCHUP LEARNING SITE. If specified on the applicable Order Form, Trimble will provide Customer access to content about Trimbles SketchUp family of products and related topics on Trimbles learning platform located at [http://learn.sketchup.com/] (the Learning Site). The Learning Site is deemed part of Service under this Agreement except under Sections 4 (Support) and 10.1 (Limited Warranty). Customers access to the Learning Site is subject to the following terms:
5.1. Course Format. Trimble offers Courses through the Learning Site that consist of access to: (i) one or more on-demand Lessons comprising streaming videos, text, images, interactive content, quizzes, and other hosted content; and (ii) related downloadable images, SketchUp model files, or other Downloadable Files.
5.2. Access to Courses. During the applicable Subscription Term and subject to the terms of this Agreement, Customer may (i) access and view the Lessons for Courses and (ii) download and use any Downloadable File provided with a Lesson, in each case for Customers personal, non-commercial, educational use only. Customer may not use a Downloadable File as part of any product or service Customer provides to any third party or otherwise share a Downloadable File with anyone else.
5.3. Additional Restrictions. In addition to the restrictions set forth in Section 1.3 (General Restrictions), with respect to the Learning Site, Customer will not (and will not permit any third party to): (a) copy or modify any part of any Course or the Service, or create any derivative work from any of the foregoing (except for personal use of Downloadable Files as expressly allowed hereunder); (b) record audio, video, screen images or other elements of any Lesson, or otherwise distribute, frameset, transmit, share or broadcast any part of any Course or the Service; or (c) disable, interfere, or try to get around any of the features of the Service related to security, preventing or restricting use or copying of any Lesson, Downloadable File or other element of the Service, or enforcing the limits on access to elements of the Service.
5.4. Availability of Courses and the Service. From time to time Trimble may add, remove or change any Lesson, Downloadable File or other element of a Course or the Learning Site. Customer will be entitled to access any new versions of a Course Trimble releases during Customers Subscription Term. Trimble will use reasonable efforts to notify Customer of any removal of Courses. Trimble makes no assurance that Courses will remain on the site for any period of time or that additional Courses will be added. Customer acknowledges that temporary interruptions in the availability of the Service may occur from time to time as normal events.
5.5. Learning Site Usage Data. Trimble may collect information about Customers use of the Learning Site, including but not limited to (i) number of active and total Permitted Users, (ii) time spent on the Service and (iii) information about Customers completion of Lessons, which shall be considered Usage Data under this Agreement.
5.6. Learning Site Disclaimers. THE LEARNING SITE (INCLUDING EACH COURSE) IS PROVIDED ON AN AS IS AND AS AVAILABLE BASIS WITHOUT ANY WARRANTY, SUPPORT, SERVICE LEVEL, OR INDEMNITY OBLIGATIONS OF ANY KIND. TRIMBLE MAKES NO WARRANTY AS TO THE ADEQUACY, ACCURACY, COMPLETENESS, OR CURRENCY OF OUR COURSES OR THE SERVICE. CUSTOMER USES THE COURSES AT ITS OWN RISK.
6. CONFIDENTIAL INFORMATION. The parties may disclose to each other information identified at the time of disclosure as confidential or which should be reasonably known by the receiving party to be confidential (Confidential Information), which may include information concerning their respective businesses and technology. The Service (including the performance characteristics of the Service) and the Documentation are Confidential Information of Trimble. Except as authorized herein, the receiving party will (i) hold in confidence and not disclose any Confidential Information to third parties and (ii) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a need to know (including, for Trimble, the subcontractors referenced in Section 14), provided that such representatives are bound to confidentiality obligations no less protective of the disclosing party than this Section 6 and that the receiving party remains responsible for compliance by any such representative with the terms of this Section 6. These restrictions on disclosure will not apply to any information that: (a) is or becomes generally known or publicly available through no act or omission of the receiving party; (b) is known by the receiving party without confidentiality restriction at the time of receiving such information, as shown by written records; or (c) is furnished to the receiving party by a third party without confidentiality restriction. The receiving party may make disclosures to the extent required by law or court order, provided the receiving party notifies the disclosing party in advance and cooperates in any effort to obtain confidential treatment. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
7. OWNERSHIP.
7.1 Intellectual Property Rights. Customer acknowledges that it is obtaining only a limited right to the use the Service and that no ownership rights are being conveyed to Customer. Trimble or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Service, all related and underlying technology and documentation, and any derivative works or modifications of any of the foregoing, including without limitation as may incorporate Feedback (collectively, Trimble Technology). Further, Customer acknowledges that the Service is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any code underlying the Service. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to Trimbles products and services to Trimble (Feedback). Trimble may freely use, copy, disclose, prepare derivative works based on, publicly perform or display, distribute and exploit any Feedback, bug reports or suggestions Customer provides to Trimble regarding the Service or other Trimble products and services, without any obligation, royalty or restriction based on intellectual property rights or otherwise.
7.2 Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Trimble and its affiliates may use, process, manipulate, modify, copy, publicly perform and display, compile, and create derivative works from Customer Data and any other data related to the Service, including, but not limited to, using such data for any internal business purpose, and for the improvement, support, and operation of the Service, and/or the development of other products or service capabilities. Customer hereby acknowledges and agrees that Trimble and its affiliates may disclose to third parties aggregate data derived from Customer Data or from any other data related to the Service (including information regarding Customers interaction with the Service and Models), so long as such aggregate data is not personally identifiable with respect to Customer. Further, all service data, Usage Data and other data that does not identify Customer and any data that is derived from the Customer Data and all data, reports, derivative works, compilations, modifications and other materials created by Trimble from or with use of such data will be, in each case, the sole and exclusive property of Trimble; and Customer hereby assigns all of Customers title and interest, if any, in and to such items to Trimble without any fees and without rights to future royalties.
8. SUBSCRIPTION TERM, FEES AND PAYMENT.
8.1 Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for additional periods of the same duration as the initial Subscription Term unless either party gives the other written notice of termination (which may be submitted through the Service) at least two (2) days prior to expiration of the then-current Subscription Term.
8.2 Return Policy. Without limiting Section 10.1 (Limited Warranty), Customer may terminate its initial Subscription Term under this Agreement, for no reason or any reason, by providing notice of termination to Trimble no later than fourteen (14) days after the Effective Date. In the event Customer terminates its initial Subscription Term under this Section 8.2, at Customers request, Trimble will refund Customer any amounts paid for the initial Subscription Term. This termination and refund right applies only if Customer exercises its termination right within the period specified above.
8.3 Fees and Payment. All fees are as set forth in the applicable Order Form and will be paid by Customer within thirty (30) days of invoice, unless otherwise specified in the applicable Order Form. Except as expressly set forth in Sections 8.2 (Return Policy) and 10.1 (Limited Warranty), all fees are non-refundable. The rates in the Order Form are valid for the initial Subscription Term. Customer is required to pay all sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Trimble. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
8.4 Suspension of Service. If Customers account is five (5) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Trimble reserves the right to suspend Customers access to the Service (and any related services) without liability to Customer until such amounts are paid in full.
9. TERM AND TERMINATION.
9.1 Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
9.2 Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of the Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
9.3 Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Service (including any and all related Trimble Technology) and delete (or, at Trimbles request, return) any and all copies of the Documentation, any Trimble passwords or access codes and any other Trimble Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data input into the Service, and that Trimble may delete any such data as may have been stored by Trimble at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
9.4 Survival. This Section 9 and Sections 1.6 (Disclaimers for Free Offerings and Trial Subscriptions); 3.4 (Customer Obligations), 3.5 (Indemnification by Customer), 5.6 (Learning Site Disclaimers), 6 (Confidential Information), 7 (Ownership), 8.3 (Fees and Payment), 10.2 (Warranty Disclaimer), 10.3 (High Risk Use), 10.4 (Other Disclaimers), 11 (Limitation of Remedies and Damages), 12 (International; Export Control), 13 (Governing Law; Dispute Resolution), 14 (Purchase from Reseller) and 15 (General) will survive any expiration or termination of this Agreement.
10. WARRANTY AND DISCLAIMERS.
10.1 Limited Warranty. Trimble warrants, for Customers benefit only, that the Service, when used by Customer during the applicable Subscription Term, will operate in substantial conformity with its applicable Documentation. Trimbles sole liability (and Customers sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Trimble to use commercially reasonable efforts to correct the reported non-conformity, or if Trimble determines such a remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of the Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 10.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse or unauthorized modifications of the Service, (iii) if the error was caused by Customer or third-party hardware, software or services, or (iv) to use and access provided as part of a Free Offering or Trial Subscription.
10.2 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 10.1, THE SERVICE IS PROVIDED AS IS. NEITHER TRIMBLE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. TRIMBLE DOES NOT WARRANT THAT CUSTOMERS USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES TRIMBLE WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. TRIMBLE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF TRIMBLE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10.3 High Risk Use. THE SERVICE IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN LIFE SUPPORT, MEDICAL, EMERGENCY, MISSION CRITICAL OR OTHER STRICT LIABILITY OR HAZARDOUS ACTIVITIES ("HIGH RISK ACTIVITIES"). TRIMBLE SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. CUSTOMER REPRESENTS AND WARRANTS THAT CUSTOMER WILL NOT USE THE SERVICE (OR PERMIT IT TO BE USED) FOR HIGH RISK ACTIVITIES, AND AGREES THAT TRIMBLE WILL HAVE NO LIABILITY FOR USE OF THE SERVICE IN HIGH RISK ACTIVITIES.
10.4 Other Disclaimers. TRIMBLE SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE MODELS CREATED THROUGH THE USE OF THE SERVICE OR CUSTOMERS RELIANCE ON OR USE OF SUCH MODELS.
11. LIMITATION OF REMEDIES AND DAMAGES.
11.1 Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
11.2 Liability Cap. TRIMBLES AND ITS SUPPLIERS ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO TRIMBLE DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
11.3 Excluded Claims. Excluded Claims means any claim arising (a) from Customers breach of Section 1.3 (General Restrictions), (b) under Section 3.4 (Customer Obligations) or 3.5 (Indemnification by Customer); or (c) from a partys breach of its obligations in Section 6 (Confidential Information) (but excluding claims relating to Customer Data).
11.4 Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 11 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
12. INTERNATIONAL; EXPORT CONTROL. The Service is administered by Trimble from its offices or those of its affiliates at various locations within the United States of America. In Customers use of the Service, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing: (a) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a terrorist supporting country; (b) Customer will not (and will not permit any of its users to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction; and (c) Customer will not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations. Trimble may also make use of its U.S. or foreign affiliates or one or more external service providers to host the Service. Consequently, data is collected, sent, processed and stored in the United States and may be collected, sent, processed and stored outside the United States. Customer acknowledges that in the event of conflict of privacy laws or practices in the Customers jurisdiction and those in the domicile of the entity hosting Service the law applicable in the domicile of the hosting entity will have precedence at all times. Trimble makes no representation that the Service is appropriate or available for use in locations outside the United States, and accessing them from territories where they are illegal is prohibited. Customer may not use or export or re-export the Service or any copy or adaptation in violation of any applicable laws or regulations including, without limitation, United States export laws and regulations. If Customer chooses to access the Service from locations outside the United States, Customer does so on its own initiative and is responsible for compliance with applicable local laws.
In addition to the foregoing, if Customer is located in a country identified in the U.S. Department of Commerce Country Group D list, then it (1) acknowledges that the Service is subject to the Export Administration Regulations (EAR) and the jurisdiction of the U.S. Department of Commerce or subject to the International Traffic in Arms Regulations (ITAR) and the jurisdiction of the U.S. Department of State; (2) certifies that the export, re-export, resale, and/or transfer to any party who is listed by the government of the United States as prohibited from receiving the Service or other restrictions to any destination, end-user, or for any end use prohibited by the laws of the United States, or any other applicable law where such law does not conflict with the laws of the United States, will not be violated; (3) certifies that the Service will not be resold, transferred, or re-exported without prior authorization from the U.S. Government, to any military entity on the U.S. Department of Commerce Country Group D list; (4) certifies that the Service will not be used in designing, developing, production of or using rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (including cruise missile systems, target drones and reconnaissance drones); (5) certifies that the Service will not be used in the design, development, production, stockpiling, or using chemical or biological weapons, or precursors; (6) certifies that the Service will not be used in the design, development, production, or testing of nuclear weapons or nuclear explosive devices; (7) certifies that the Service will not be exported/re-exported to Cuba, Iran, North Korea, Sudan and Syria or any other country under an export embargo/sanction by the U.S. Department of Treasury or U.S. Department of Commerce at the time of export; (8) acknowledges that U.S. law prohibits the sale, transfer, export, or re-export or other participation in any transaction involving products with individuals or companies listed in the U.S. Commerce Department's table of Denial Orders, the U.S. Department of State's list of individuals debarred from receiving Munitions List items or other entity lists published by agencies of the U.S. Government; and (9) agrees that the export control requirements in this Section 12, including without limitation (1)-(8) above, will survive the completion, early termination, cancellation or expiration for this Agreement.
Customer will defend, indemnify and hold Trimble and its affiliates harmless against any liability (including attorneys fees) arising out of Customers failure to comply with the terms of this Section 12. Customers failure to comply with any term of this Section 12 constitutes a material breach of this Agreement and entitles Trimble to immediately terminate this transaction for Customers use of the Service in addition to any other remedy available at law or equity.
13. GOVERNING LAW; DISPUTE RESOLUTION.
13.1 Governing Law. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods.
13.2 Dispute Resolution. In the event of a dispute, controversy, or claim under or in any manner related to this Agreement (a Dispute), the parties agree to work together in good faith to resolve the matter internally by reference to their respective senior management promptly following written notice given by any party to the other party. If the parties are unable to internally resolve the dispute within 30 days after such notice, either party may submit such dispute to the American Arbitration Association (AAA) to be finally settled under the Rules of Arbitration of the AAA in effect at the time of applying for arbitration. The place of arbitration will be San Francisco, California, or such other location mutually agreed to by the parties. The arbitration tribunal will comprise one (1) arbitrator. The language to be used in the arbitral proceedings will be English. The arbitrators award will be final and binding and enforceable in any court of competent jurisdiction. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence, without prejudice, however, to the right to a party to submit petition and documents to a judicial court to obtain an interim relief or to enforce the arbitral award. The foregoing notwithstanding, neither party will be precluded from seeking interim relief (including but not limited to interlocutory injunctive relief). After the institution of the arbitration, however, any request for interim relief shall be first presented to the arbitration tribunal. Jurisdiction and venue in any action for interim relief shall lie exclusively in, or be transferred to, the courts of City and County of San Francisco and/or the United States District Court for the Northern District of California. Each party hereby submits, consents, and agrees not to contest such jurisdiction and venue.
14. PURCHASE FROM RESELLER. Notwithstanding anything to the contrary in this Agreement, if Customer purchased the Service through a Reseller, the following terms are applicable and shall prevail in event of any conflict with any other provisions of this Agreement.
a) The terms of this Agreement constitute the only terms applicable to the provision of the Service to Customer and no terms between Customer and Reseller shall apply to Customers access to or use of the Service.
b) Reseller has no authority to make any statements, representations, warranties or commitments on Trimbles behalf and any such statements, representations, warranties or commitments are null and void.
c) Customer may place orders for the Service by executing an Order Form with Reseller and paying Reseller fees as specified therein.
d) In the event Customer is entitled to a refund under this Agreement, Customer must request such refund through Reseller. Any request sent directly to Trimble may be redirected to Reseller. Trimble will refund any applicable fees to Reseller and Reseller shall be solely responsible for refunding such fees to Customer. Trimble shall have no further liability to Customer in the event Reseller fails to refund such fees to Customer.
e) If Reseller fails to pay Trimble applicable fees for Customers use of the Service, Trimble reserves the right to terminate this Agreement including all rights granted hereunder.
f) Unless otherwise set forth in the Order Form, Customer may purchase renewal subscriptions under this Agreement directly from Trimble pursuant to an Order Form.
g) Unless otherwise set forth in the Order Form, Customer shall receive end user support directly from Trimble during the applicable Subscription Term in accordance with the terms of this Agreement.
h) If Reseller is providing Customer with consulting or other professional services related to the Service, such services shall be provided under the terms of a separate agreement between Reseller and Customer.
i) This Agreement shall survive any termination of Customers agreement with Reseller so long as Trimble has received payment for Customers current Subscription Term.
15. GENERAL. The parties are independent contractors and no employment, agency, or joint venture is created hereunder. Trimble may use the services of subcontractors in order to provide the Service under this Agreement, provided that Trimble remains responsible for compliance of any such subcontractor with the terms of this Agreement. All notices, requests and other communications under this Agreement must be in writing. Notices to Customer may be given via the billing address and/or the e-mail address provided by Customer at the time of registration or purchase. Notices to Trimble must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the following address: Trimble Inc., Attn: General Counsel Important Notice, 935 Stewart Drive, Sunnyvale, CA 94085 USA. All amendments must be in writing and signed by both parties. Waivers must be in writing and no waivers will be implied. This Agreement may not be assigned by Customer, and any purported assignment or amendment in violation of the foregoing will be void. Trimble may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Trimbles assets or voting securities. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof will be unaffected and remain in full force and effect. This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous understandings and agreements relating to such subject matter, whether oral or written. Elements of the Service are commercial computer software. If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.
16. GOOGLE CONTENT. The Service may include elements that are designed to be used in conjunction with Google's search and other services. Accordingly, Customers use of such elements of the Service is also governed by Googles Terms of Service located at http://www.google.com/intl/en/policies/terms and Googles Privacy Policy located at http://www.google.com/intl/en/policies/privacy.
As an example of the foregoing, the Service may allow Customer to access and view certain content, including photographic imagery sub-licensed to Trimble by Google Inc. (Google) and Googles licensors (the Google Content). By using the Service, Customer does not receive any ownership rights, and Google and/or its licensors retain all ownership rights in the Google Content. Customer may not use, access or allow others to use or access the Google Content in any manner not permitted under this Agreement, unless Customer has been specifically permitted to do so by Trimble, Google or by the owner of that Content, in a separate agreement.
17. DIGITALGLOBE CONTENT. The Service may include map content and other elements provided by DigitalGlobe, Inc. Accordingly, your use of such elements of the Service is also governed by DigitalGlobe, Inc.s End User DOWNLOAD License, available at https://mapsapidocs.digitalglobe.com/v2.0/docs/end-user-download-license, and you agree to be bound by such terms.
18. HERE CONTENT. The Service may include geocoding functionality and other elements provided by HERE Global B.V. and its affiliates and suppliers (collectively, HERE). Accordingly, your use of such elements of the Service is also governed by HEREs Service Terms, available at http://here.com/services/terms and HEREs privacy policy, available at http://here.com/privacy/privacy-policy. If you are a U.S. Government end user or other entity seeking or applying rights similar to those customarily claimed by the U.S. Government, the following additional Notice of Use applies with respect to the HERE elements of the Software:
NOTICE OF USE
CONTRACTOR (MANUFACTURER/SUPPLIER) NAME: HERE
CONTRACTOR (MANUFACTURER/SUPPLIER) ADDRESS: 425 W. Randolph St., Chicago, IL 60606
The HERE elements of the Service are collectively commercial items as defined in FAR 2.101 and are subject to the Agreement under which the HERE elements were provided.
1987-2017 HERE All rights reserved