HomeMy WebLinkAboutR2026-027 20260316RESOLUTION NO. R2026-27
A Resolution of the City Council of the City of Pearland, Texas, awarding a 3-
year contract (1-year initial term; two 1-year renewals) for a software service
maintenance contract to Azteca Systems, LLC, a Trimble company
(Cityworks), for a total amount not to exceed $681,886 for FY2026 through
FY2028.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That the City Council hereby approves the award of a (3) year software
service maintenance contract to Azteca Systems, LLC, a Trimble company (Cityworks), for FY2026
through FY2028.
Section 2. That funding for this contract shall be appropriated in the following amounts,
subject to annual budget approval:
•Fiscal Year 2026: $216,300.00
•Fiscal Year 2027: $227,115.00
•Fiscal Year 2028: $238,471.00.
Section 3. That the City Manager or his designee is hereby authorized to award a 3-year
software maintenance service contract with Azteca Systems, LLC, a Trimble company.
PASSED, APPROVED and ADOPTED this the 16th day of March, A.D., 2026.
_________________________________
J.KEVIN COLE
MAYOR
ATTEST:
________________________________
FRANCES AGUILAR, TRMC, MMC
CITY SECRETARY
APPROVED AS TO FORM:
________________________________
LAWRENCE G. PROVINS
CITY ATTORNEY
Docusign Envelope ID: 0B27859C-80D5-4438-95BE-FB1CB6D9F24A
TrimbIe.
ORDER FORM
Cityworks
p
Order Date:
Date of the last signature below
Trimble Entity Name ("Trimble")
and Address:
Azteca Systems, LLC, a Trimble company
10368 Westmoor Drive
Westminster, CO 80021 US
Customer Entity Name
("Customer") and Address:
Pearland, TX
3519 Liberty Dr
Pearland, TX 77581
Billing Contact Name and E -Mail
Address:
Daniel McGhinnis
dmcghinnis@pearlandtx.gov
Is Customer Tax Exempt?
Yes or No
Initial Term:
03/08/2026 - 03/07/2029
Validity:
This Order Form shall expire on 5/5/2026 (the "Validity Date"). If this Order Form is not executed by the
Customer by the Validity Date, Trimble reserves the right to not offer the pricing found in the Order Form.
Miscellaneous:
Purchase orders issued by Customer are issued for administrative purposes only; terms and conditions
contained in any such purchase order shall be null and void.
Disclaimer. Please be advised that the products associated with this Order Form may no longer be subject to
enhancements or maintenance. We urge you to consult the communication sent out concerning Cityworks's
Key Update and Timelines for Extended Support and Sunsetting. A copy of the communication can be
provided upon request. Customer signs this Order Form under the understanding that the products below are
subject to the communication sent out by Trimble.
Post -Termination Customer Data Access. For 30 days from the expiration or termination of the Agreement,
Trimble will make Customer Data available to Customer upon request for export or download as provided in
the Agreement for the applicable Product. Additional fees may apply.
Licensed Software:
Description
Number of Authorized
Users
Annual Term
Total
Server AMS Premium Cityworks Enterprise License
Agreement (ELA), Includes Unlimited Quantities of the
Identified Products:
Office
Respond
Mobile Native Apps (for iOS/Android)
--Includes the following Add-ons:
Storeroom
Equipment Checkout
Contracts
Cityworks for Excel
Cityworks Analytics AMS
eURL (Enterprise URL)
Operational Insights
Workload
Web Hooks
Unlimited
Year 1: 03/08/2026 - 03/07/2027
$216,300.00
Year 2: 03/08/2027 - 03/07/2028
$227,115.00
Year 3: 03/08/2028 - 03/07/2029
$238,471.00
CCTV Interface for PACP
Pavement Management
Performance Budgeting
Use of Cityworks AMS Application Programming
Interfaces (APIs) with commercially available Cityworks-
centric applications that are licensed and maintained by
authorized Cityworks partners Use of Cityworks AMS
Application Programming Interfaces (APIs) with third
party system integrations
Server PLL Premium Cityworks Enterprise License
Unlimited
Agreement (ELA), Includes Unlimited Quantities of the
Identified Products:
Respond
Mobile Native Apps (for iOS/Android)
Office (limited use for Admin and Reporting only)
--Includes the following Add-ons:
eURL (Enterprise URL)
Public Access for PLL
Cityworks Analytics PLL
Workload
Web Hooks
Use of Cityworks PLL Application Programming Interfaces
(APIs) with commercially available Cityworks-centric
applications that are
licensed and maintained by authorized Cityworks
partners
Use of Cityworks PLL Application Programming Interfaces
(APIs) with third party system integrations
All Licensed Software is for the indicated term and not perpetual. Annual fee herein is based on 100,001 -150,000 population range. Trimble
reserves the right to adjust the annual fee accordingly to align with the Customer's actual population range.
Addendums:
1. Trimble General Transaction Terms (the "General Terms")
2. Supplemental Terms for Software and Subscriptions (the "Software Terms")
3. Supplemental Terms for Support and Maintenance (the "Support Terms")
4. Supplemental Terms for Services (the "Services Terms")
S. Supplemental Terms for Hardware (the "Hardware Terms")
6. Supplemental Terms for U.S. Public Entities
7. Availability Service Level Agreement; Data Security and Restoration
TERMS AND CONDITIONS
1. Terms and Conditions. All offerings are made available by Trimble subject to the terms and conditions set forth in this Order and the above
referenced Addendums.
2. AUTOMATIC RENEWALS. This Order will automatically renew for subsequent 12 -month term(s) at then -current pricing, unless
either party provides the other with notice of cancellation at least 30 days prior to the expiration of the then -current term.
3. Payment Terms. All fees are due Net 30 from the date of the Trimble invoice.
o Annual Software Subscription: Trimble will invoice:
o Year 1 in the amount of $216,300.00 upon execution of this Order Form;
o Year 2 in the amount of $227,115.00 upon 02/08/2027; and
o Year 3 in the amount of $238,471.00 upon 02/08/2028.
4. Annual Price Increase. Upon the completion of the Yearly periods found above, Trimble has a right to increase the annual fees by the greater of (a)
CPI plus two percent (2%) or (b) eight percent (8%) at each renewal. "CPI" shall mean for all Urban Consumers, the U.S. City Average, for all items,
1982-84=100 (the "CPI -U"), as published by the Bureau of Labor Statistics, U.S. Department of Labor, and shall be for the prior twelve months as of
the date the calculation is made. Trimble will use commercially reasonable efforts to notify Customer of the new pricing no later than sixty (60) days
prior to the expiration of the prior term.
5. Electronic Invoices. Customer hereby consents to the receipt of invoices electronically at the indicated e-mail address(es) and accepts such invoices
as if received by mail. Customer's e-mail address may be changed by written notice given by Customer to Trimble at: customer_master@trimble.com.
Customer is responsible for maintaining a current e-mail address and shall under no circumstances be excused from payment of applicable charges by
its failure to access its designated e-mail address.
6. Due Authority. By signing below, the signatory represents that he/she (i) is an authorized representative of Customer and (ii) has the authority to
legally and functionally commit the Customer.
[Signature Page to Follow]
ACCEPTANCE
Accepted and agreed:
CUSTOMER:
TRIMBLE:
DDooc�luSSignedby:
Signature: y c�`� Signature: [" S g641AAA,
y2969BE0AABA49F...
Print Name: `-z,-wt L' G1eCh'DA- Print Name: Carlos Abaunza
Title: C1' 0 Title: Sr. Director, Legal
Date:
Date: 3/19/2026
Addendum #1
Trimble General Transaction Terms
Version 1.2 (Last updated: May 1, 2024)
Trimble's provision of Offerings is governed exclusively by these Trimble General Transaction Terms (the "General Terms"). The Order, the SOW,
these General Terms, any applicable Supplemental Terms, and all other terms referenced or incorporated therein, collectively constitute the
"Agreement". Any conflict or inconsistency in the Agreement will be resolved in the following order of precedence: (1) the Order, (2) any
applicable Supplemental Terms, (3) these General Terms, (4) the SOW, and (5) the Documentation.
1. Definitions. Capitalized terms have the meaning associated with them in this Section 1 (Definitions) or with the definition provided elsewhere
in the Agreement.
1.1. "Affiliate" means an entity that, directly or indirectly, owns or controls, is owned or controlled by or is under common
ownership or control with a party, where "ownership" means the direct or indirect ownership of more than fifty percent
(50%) of an entity's outstanding voting rights or other equivalent voting interests.
1.2. "Customer"is the entity or person identified in the Order or SOW.
1.3. "Dispute(s)" means any dispute, claim, or controversy arising from or related to the Agreement.
1.4. "Documentation" means Trimble's then -current usage guidelines, standard technical documentation, acceptable use
policies, support policies, service level commitments, or other policies referenced in the Agreement.
1.5. "Hardware" means hardware products specified in the Order.
1.6. "High Risk Activities" means any mission critical, hazardous, strict liability, or other activity(ies) where use or failure of the
Offerings could lead to death, personal injury, or physical or environmental damage. Examples of High Risk Activities include,
but are not limited to: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support
systems, implantable medical equipment, motor vehicles, autonomous vehicles, air traffic control, emergency services, or
weaponry systems. High Risk Activities do not include utilization of Offerings for administrative purposes, to store
configuration data, engineering and/or configuration tools, or other non -control applications, the failure of which would not
result in death, personal injury, or physical or environmental damage. These non -controlling applications may communicate
with the applications that perform the control, but must not be directly or indirectly responsible for the control function.
1.7. "Intellectual Property Rights" means any and all right, title and interest in and to any and all trade secrets, patents,
copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of
privacy, publicity, database rights and similar rights of any type, including any applications, continuations or other
registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental,
regulatory or judicial authority, and the right to sue for, settle and release past, present and future infringement of any of
the foregoing.
1.8. "Law(s)" means all applicable local, state/provincial, federal and international laws, rules, regulations, directives, ordinances
and conventions, including, but not limited to, those related to data privacy and data transfer, international communications
and export of technical or personal data.
1.9. "Licensed Software" means the object code form of Trimble's proprietary installed software product for deployment on
premises or on a device, as well as any Documentation, maintenance releases, and features and functionality enhancements,
and application programming interfaces (APIs), in each case as as may be made available pursuant to the Order. For clarity,
Licensed Software excludes firmware.
1.10. "Offerings" means Trimble's Hardware, Software, Services, Support, and other Trimble goods or services specified on an
Order or SOW.
1.11. "Order" means the quotation, proposal, sales agreement or similar documents provided by Trimble and accepted by
Customer.
1.12. "Services" means any services described in the Order or a Statement of Work, including, without limitation, training,
enablement, implementation, configuration, hosting, or content provision.
1.13. "Software" means the Licensed Software and/or Software -as -a -Service specified on an Order.
1.14. "Software -as -a -Service" or "SaaS" means a Trimble proprietary cloud service, as well as any Documentation, features and
functionality enhancements, and application programming interfaces, in each case as may be made available pursuant to
the Order.
1.15. "Statement of Work" or "SOW" means a statement of work or similar agreement governing the provision of Services.
1.16. "Supplemental Terms" are any additional Trimble terms and conditions referenced in the Order as "Supplemental Terms,
1.17. "Support" means support and/or maintenance for Software, and as may be further described in the applicable Supplemental
Terms, Documentation, or otherwise as specified by Trimble in writing.
1.18. "Trimble" means Trimble Inc. or its Affiliate identified on the Order or SOW, or if none is specified, as set forth in Exhibit A
(Trimble Entities; Governing Law; Exclusive Venue/Jurisdiction) based on the applicable Customer location.
1.19. "Trimble IP" means the Offerings, Documentation, and any written and electronic materials, proprietary information,
documentation, code, technology, systems, infrastructure, equipment, and trade secrets developed, provided or used by
Trimble or its subcontractors to produce and provide the Offerings together with all Intellectual Property Rights therein,
together with all modifications, improvements, changes thereto or derivative works thereof, including without limitation:
(a) proprietary electronic architecture and other non -literal elements of the Offerings developed by Trimble,
(b) functional and technical specifications and other technical, training, reference or service information, documentation and
manuals and updates thereto,
(c) APIs, customized applications and computer programs,
(d) processes, methods, algorithms, ideas, and other "know how,"
(e) data and information provided or sourced by Trimble,
(f) Offerings which Customer has the right to use via a subscription, and
(g) network equipment and architecture.
2. Orders; Validity. An Order is valid for acceptance by Customer within the period indicated in the Order and if no such period is provided, for
thirty (30) calendar days from the issue date. The Agreement is formed by Customer's execution of the Order. Changes to an Order or
belated acceptance by Customer are not valid unless Trimble accepts them in writing, and Trimble's partial or complete delivery against
an Order modified by Customer, or acceptance of payment, shall not be deemed to be an acceptance of the modification. Orders that
Customer has accepted cannot be canceled for any reason without Trimble's prior written consent. Notwithstanding anything to the
contrary, while Customer may issue a purchase order or similar document for administrative purposes, no provisions of Customer's
purchase orders, invoices, associated purchase documentation, or other business forms will apply to, modify, supersede or otherwise
alter the terms of this Agreement or Customer's payment obligations thereunder, and any such provisions will be of no force or effect.
3. Payment Terms; Invoicing
3.1. Fees are as set forth in the Order or SOW. Fees do not include applicable sales taxes, value added taxes, goods and services
taxes, export or import charges, transportation or insurance charges, customs and duty fees, personal property taxes,
surcharges and fees, or similar charges, all of which are Customer's responsibility to pay. Unless Customer provides Trimble
with direct payment authority or a valid exemption certificate for the appropriate jurisdiction, Customer will pay Trimble all
such taxes, charges, and fees invoiced by Trimble in connection with the Offerings. Customer will pay any foreign exchange
transaction fees and any foreign exchange profits or losses incurred on such transactions.
3.2. Trimble will issue invoices in accordance with the billing frequency stated in the Order or SOW. Customer consents to the
receipt of invoices electronically at the email address(es) it provided to Trimble for billing purposes, and accepts such
invoices as if received by mail. Customer is responsible for maintaining current email address(es) with Trimble. Trimble's
transmission of an invoice to the provided billing email address(es) (regardless of whether actually received by Customer)
shall be considered delivery of that invoice by Trimble. Trimble's failure to issue an invoice in accordance with this Section 3
(Payment Terms; Invoicing) shall not be deemed to be a waiver by Trimble of its right to receive payment pursuant to the
Agreement, but Customer shall not be obligated to make such payment until an invoice for such payment is issued by Trimble
to Customer.
3.3. Unless otherwise set forth in the Order or SOW, payments are due net 30 days from the date of invoice. Customer will make
payment in the currency indicated on the Order or SOW. Trimble is entitled to offset payments against prior debt balances
in Customer's account. Subject to any Laws to the contrary or as otherwise expressly stated in the Agreement, payments are
not refundable. No credit, carryover, or refund will be given for any unused Offerings (e.g., services hours, data usage)
allocated or available for use during an indicated period of time.
3.4. Delinquent payments not subject to a bona fide dispute will bear interest at the lesser of 1.5% per month or the maximum
rate permitted by applicable Law. If Customer does not object in writing to an invoiced amount by the invoice due date,
Customer will be deemed to have acknowledged the correctness of that invoice and to have waived its right to dispute that
invoice. A dispute as to a portion of any invoice or amount owed will give Customer the right to withhold or delay payment
of the disputed portion only. Customer will be liable for all costs of collection of past due amounts (including attorneys'
fees).
3.5. Trimble may suspend Customer's access to or Trimble's provision of Offerings, as applicable, on five (5) business days prior
notice if Customer fails to timely pay any invoice not subject to a bona fide payment dispute or fails to use diligent good
faith efforts to resolve a bona fide payment dispute (unless cured during the notice period).
3.6. For any breach of Customer's payment obligations under any Order(s), Trimble may, without limiting Trimble's other rights
and remedies, declare Customer's unbilled future fees under any and all Orders immediately due and payable.
3.7. Trimble has the continuing right to review Customer's credit and, if reasonably determined necessary by Trimble, change
Customer's payment terms, and may at any time demand advance payment, satisfactory security (such as, but not limited
to, a confirmed, irrevocable letter of credit acceptable to Trimble), or a guarantee of prompt payment prior to shipment or
service activation.
3.8. Offerings purchased or licensed under Trimble's United States General Services Administration ("GSA") Schedules are
subject to all of the pricing and other terms and conditions described in the applicable GSA Schedule.
4. Term and Termination
4.1. Term. The term and any renewals thereof applicable for an Offering (collectively, the "Term(s)") shall be as set forth in the
Order, SOW, or Supplemental Terms. Different Offerings may have different Terms.
4.2. Termination. Either party may terminate the Agreement if the other party (a) fails to cure a material breach of the
Agreement (including a failure to pay fees), or fails to provide a written plan of cure reasonably acceptable to the non -
breaching party, within thirty (30) days after the non -breaching party's receipt of written notice specifying such breach or
failure, (b) becomes designated by an applicable governmental entity as a business with which a party is prohibited from
doing business with (e.g., via governmental sanctions program), or (c) seeks protection under insolvency or comparable
proceeding, or if such proceedings are instituted against that party and not dismissed within sixty (60) days.
4.3. Survival. These Sections survive expiration or termination of the Agreement: 1 (Definitions), 3 (Payment Terms; Invoicing),
4.3 (Survival), 6 (Warranty Disclaimers), 7 (Limitations of Liability), 8 (Indemnification), 9 (Confidentiality), 11 (Personal
Information; Data Protection), 12 (Miscellaneous), any other provisions identified in any applicable Supplemental Terms
referencing this provision, and any other term or provision in the Agreement that applies to events occurring following
termination or expiration. Except where an exclusive remedy is provided, exercising a remedy under the Agreement,
including termination, does not limit other remedies a party may have.
5. Customer Obligations
5.1. High Risk Activities. Customer will not use the Offerings for High Risk Activities. Customer acknowledges that the Offerings
are not intended to meet any legal obligations for High Risk Activities. Trimble and its suppliers specifically disclaim any
responsibility for, and will not be liable in any manner arising from, any use of the Offerings in connection with High Risk
Activities.
5.2. Compliance with Laws. Customer shall comply with all Laws in connection with its use or receipt of the Offerings.
5.3. Dependencies and Compatibilities.
(a) Offerings may (i) require certain dependencies, including, without limitation, internet connection, electronic
communications, hardware, data connections, operating systems, third -party products and services, other Trimble products
and services, satellite signals, etc. (collectively, "Dependencies"), and (ii) allow compatibility and/or interoperability with
other products or services made available by Trimble, Customer, or a third party (collectively, "Compatibilities").
(b) Dependencies and Compatibilities may require payment of a separate fee and are governed by their respective terms of
service, end user license agreement, or other agreement, and not by the Agreement. Unless otherwise expressly agreed
upon by the parties in writing, Customer is responsible for all Dependencies and Compatibilities. Trimble may modify the
Offerings from time to time, and Trimble does not guarantee that the Offerings will continue to operate or be compatible
with any Dependencies or Compatibilities. Trimble makes no warranty or guarantee, and will have no liability or obligations
under the Agreement, with respect to any Dependencies, Compatibilities, or other factors outside of Trimble's control.
(c) Customer represents and warrants that it shall, and shall use best efforts to require any provider of any Dependencies and
Compatibilities to: (i) establish and maintain industry standard technical, organizational, physical, and administrative
safeguards designed to ensure the security and integrity of the Offerings; and (ii) comply with the security controls,
configuration requirements, and access limitations imposed by Trimble, as may be modified by Trimble from time to time.
6. WARRANTY DISCLAIMERS.THE LIMITED WARRANTY TERMS, IF ANY, EXPRESSLY SET FORTH IN ANY APPLICABLE SUPPLEMENTAL TERMS ARE
IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON TRIMBLE'S PART ARISING OUT OF, OR IN CONNECTION WITH, THE OFFERINGS, AT ANY
TIME EITHER DURING OR AFTER EXPIRATION OF THE APPLICABLE WARRANTY, AND STATE TRIMBLE'S ENTIRE LIABILITY AND CUSTOMER'S
EXCLUSIVE REMEDIES RELATING TO THEM. EXCEPT FOR ANY LIMITED WARRANTY TERMS EXPRESSLY PROVIDED IN ANY APPLICABLE
SUPPLEMENTAL TERMS, THE OFFERINGS ARE PROVIDED "AS -IS" AND WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY
KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NONINFRINGEMENT. SUPPLEMENTAL TERMS MAY HAVE ADDITIONAL
DISCLAIMERS. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO
THE ABOVE LIMITATION(S) MAY NOT APPLY OR FULLY APPLY TO CUSTOMER.
7. Limitations of Liability.
7.1. Waiver; Liability Cap.
(a) EXCEPT FOR EXCLUDED CLAIMS, (i) NEITHER PARTY (OR ITS SUPPLIERS) SHALL BE LIABLE FOR DAMAGES FOR LOSS OF
PROFIT OR REVENUE, DATA THAT IS LOST OR CORRUPTED, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF
BUSINESS, LOSS OF GOODWILL, OR ANY SPECIAL, INCIDENTAL, RELIANCE, INDIRECT, PUNITIVE, OR CONSEQUENTIAL
DAMAGES OF ANY KIND; AND (ii) EACH PARTY'S (AND EACH OF ITS SUPPLIER'S) ENTIRE LIABILITY FOR ANY AND ALL
DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID OR
PAYABLE BY CUSTOMER TO TRIMBLE DURING THE PRIOR 12 MONTHS UNDER THE AGREEMENT FOR THE APPLICABLE
OFFERING(S) GIVING RISE TO THE LIABILITY.
(b) "EXCLUDED CLAIMS" MEANS (i) CUSTOMER'S PAYMENT OBLIGATIONS UNDER THE AGREEMENT, (ii) DAMAGES PAYABLE
TO A THIRD PARTY (I.E., NOT AN INDEMNIFIED PARTY) EITHER AWARDED BY A COURT OF COMPETENT JURISDICTION OR
INCLUDED IN A SETTLEMENT AGREED TO BY THE INDEMNIFYING PARTY, WHICH DAMAGES ARE SUBJECT TO A PARTY'S
INDEMNIFICATION OBLIGATIONS IN SECTION 8 (INDEMNIFICATION), AND (iii) ANY ADDITIONAL "EXCLUDED CLAIMS"
EXPRESSLY IDENTIFIED IN ANY APPLICABLE SUPPLEMENTAL TERMS.
(c) THE ABOVE LIMITATIONS OF LIABILITY WILL APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF
SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF A PARTY HAS BEEN APPRAISED OF THE POSSIBILITY OF SUCH
DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN BREACH OF ANY ONE OR MORE
WARRANTIES, NON -CONFORMITY, IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY
DUTY, OR OTHERWISE.
(d) SOME JURISDICTIONS DO NOT ALLOW A LIMITATION OF LIABILITY FOR DEATH, PERSONAL INJURY, FRAUDULENT
MISREPRESENTATIONS, CERTAIN INTENTIONAL OR NEGLIGENT ACTS, VIOLATION OF SPECIFIC STATUTES, OR THE
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH AN EVENT, THE FOREGOING LIMITATION(S) WILL
NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
7.2. Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 7 (Limitations of Liability) are
agreed -upon allocations of risk constituting in part the consideration for Trimble's performance under the Agreement, and
will survive and apply even if any limited remedy in the Agreement fails of its essential purpose.
8. Indemnification. Customer will defend, indemnify, and hold harmless Trimble from and against any and all third -party claims, costs, damages,
losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with (a) use or modification
of any Offerings in breach of the Agreement, or in any manner not authorized by the Agreement or (b) Customer's violation of Laws or
the rights of a third party. Trimble will give Customer prompt written notice of any claim hereunder and will cooperate in relation to the
claim at Customer's expense. Customer will have the exclusive right to control and settle any claim, except that Customer may not settle
a claim without Trimble's prior written consent (not to be unreasonably withheld) if the settlement requires Trimble to admit any liability
or take any action or refrain from taking any action (other than ceasing use of infringing materials). Trimble may participate in the defense
of any claim at its expense.
9. Confidentiality.
9.1. Definition. "Confidential Information" means information disclosed to the receiving party under the Agreement that is
designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary
or confidential due to its nature and the circumstances of its disclosure. Trimble's Confidential Information includes, without
limitation, the terms and conditions of the Agreement, and any technical or performance information about the Offerings,
including the Documentation.
9.2. Obligations. As a receiving party, each party (a) will protect the confidentiality of the disclosing party's Confidential
Information using the same degree of care it uses for its own information of like importance (but not less than reasonable
care), (b) will not share the disclosing party's Confidential Information with third parties except as permitted in the
Agreement or with the disclosing party's prior written or electronic consent, and (c) will only use Confidential Information
to fulfill its obligations and exercise its rights in the Agreement. The receiving party may disclose Confidential Information to
its employees, agents, Affiliates, contractors, and other representatives (collectively, "Representatives") having a legitimate
need to know (including, for Trimble, its subcontractors), provided (i) the Representatives are subject to confidentiality
obligations no less protective than those in this Section 9 (Confidentiality), and (ii) the receiving party is responsible for any
breach of this Section 9 (Confidentiality) by the acts or omissions of its Representatives.
9.3. Exclusions. These confidentiality obligations do not apply to information that the receiving party can document
(a) is or becomes public knowledge through no fault of the receiving party or its Representatives,
(b) it rightfully knew or possessed on a non -confidential basis prior to receipt under the Agreement,
(c) it rightfully received from a third party without obligation of confidentiality, or
(d) it independently developed without using the disclosing party's Confidential Information.
(e) Supplemental Terms may have additional exclusions.
9.4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which remedies at
law (e.g., monetary damages) alone are an insufficient remedy. In the event of such actual or threatened breach by a party,
the other party may seek injunctive relief, in addition to other available rights and remedies, for breach or threatened breach
of this Section 9 (Confidentiality), without proof of actual damages or the requirement of posting a bond or other security.
9.5. Required Disclosures. Nothing in the Agreement prohibits either party from making disclosures if required by Law or
government or court order, provided (if permitted by Law) it notifies the other party in advance and reasonably cooperates
in any effort by the other party to obtain confidential treatment.
10. Intellectual Property Rights.
10.1. Trimble IP. As between the parties, except for any limited usage rights set forth in any Supplemental Terms, Trimble and its
suppliers have and will retain all Intellectual Property Rights in and to Trimble IP and all copies, modifications, and derivative
works thereof. No Intellectual Property Rights are granted by Trimble to Customer except as expressly provided under the
Agreement.
10.2. Feedback. Customer may from time to time provide suggestions, comments, or other feedback (collective, "Feedback") to
Trimble with respect to the Offerings. Both parties agree that all Feedback is and will be given entirely voluntarily, and shall
not be considered Confidential Information of Customer. Customer shall not provide any Feedback that is subject to license
terms that seek to require any of Customer's products, technology, service, or documentation incorporating or derived from
such Feedback, or any of Customer's intellectual property to be licensed or otherwise shared with any third party. Customer
hereby grants to Trimble and its Affiliates a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable,
royalty -free, fully paid up license to use and otherwise exploit the Feedback.
11. Personal Information; Data Protection.
11.1. This Section 11 (Personal Information; Data Protection) applies if Customer is a legal person (i.e., a business or legal entity).
All Laws relating to the protection of privacy and data protection are referred to as "Data Protection Legislation". "Personal
Information" is defined as in the Applicable Data Protection Legislation, or if no definition is provided, any personally
identifiable information which is either (a) provided by Customer or on its behalf, or (b) automatically collected through the
Offering on Customer's behalf. "Applicable", in this context, means the Data Protection Legislation applicable to Customer
at Customer's principal place of business or to Trimble at Trimble's principal place of business, and such Laws that the parties
mutually agree apply.
11.2. Each party will comply with all Applicable requirements of the Data Protection Legislation. This Section 11 (Personal
Information; Data Protection) is in addition to, and does not relieve, remove or replace, a party's obligations or rights under
the applicable Data Protection Legislation.
11.3. The parties acknowledge that: (a) when performing its obligations under the Agreement, Trimble processes Personal
Information on Customer's behalf, except for user registration and software licensing and usage data, for which Trimble acts
as responsible party, and (b) the Personal Information may be transferred or stored, and/or accessed from outside of the
country where Customer's principal place of business is located in order to provide the Software and Trimble's other
obligations under the Agreement.
11.4. Customer will ensure that it has all necessary appropriate consents and notices in place to enable (a) lawful transfer of the
Personal Information to Trimble for the duration and purposes of the Agreement and (b) Trimble to lawfully use, process
and transfer the Personal Information in accordance with the Agreement, including on Customer's behalf,
11.5. If the processing of Personal Information by Trimble is subject to the General Data Protection Regulation ((EU) 2016/679) or
the Data Protection Act 2018 of the United Kingdom, then, in addition, at the written request of Customer, the parties will
execute an applicable data processing addendum, available at https://www.trimb►e.com/privacy/DPA-TI-EuroSubs (or any
successor url). Transfers of Personal Information from Trimble entities located in Europe, acting as data exporter, to Trimble
entities in the USA, acting as data importer, are governed, for the benefit of Customer, by the Standard Contractual Clauses
available at the same url or upon written request to Trimble.
11.6. If the processing of Personal Information by Trimble is subject to US data protection laws, rules or regulations, then the US
Data Processing Addendum for Customer Personal Information (available at
https://dl.trimble.com/www/us dpa customer.pdf or any successor url) is herein incorporated by reference.
12. Miscellaneous.
12.1. Assignment. Trimble may assign the Agreement upon notice to Customer. Customer may not assign or transfer the
Agreement (by operation of law or otherwise) without the prior written consent of Trimble. Any non -permitted assignment
is void. The Agreement will bind and inure to the benefit of each party's permitted successors and assigns.
12.2. Amendments. Trimble may amend the Agreement from time to time with written notice to Customer. Such amendments
shall take effect upon the next renewal, if any, of the Agreement, unless Trimble indicates an earlier effective date. If Trimble
requires amendments with an earlier effective date and Customer objects in writing, then Trimble may permit such
amendments to take effect upon the next renewal; provided, however, if Trimble declines to permit such later effective
date, Customer's exclusive remedy is to terminate the Agreement with notice to Trimble, in which case Trimble will provide
Customer a refund of any applicable pre -paid fees for the terminated portion of the current Term. To exercise this
termination right, Customer must notify Trimble of its objections within thirty (30) days after Trimble's notice of the
amended Agreement. Once the amended Agreement takes effect, Customer's continued use of the Offerings constitutes its
acceptance of the modifications. Notwithstanding the foregoing, Trimble may modify Documentation upon written notice
to Customer to reflect new features or changing practices, provided that the modifications will not materially decrease
Trimble's overall obligations with respect to such Offering(s).
12.3. Waiver and Severability. No waiver of any provision or breach of the Agreement (a) will be effective unless made in writing,
or (b) will operate as or be construed to be a continuing waiver of such provision or breach. In the event any portion of the
Agreement is held to be invalid or unenforceable, such portion will be construed as nearly as possible to reflect the original
intent of the parties, or if such construction cannot be made, such provision or portion thereof will be severable from the
Agreement, provided that the invalidity, illegality, or unenforceability in whole or in part of any provision does not affect the
validity of other provisions.
12.4. Force Majeure. Neither party will be liable for any default, delay, or non-performance of its obligations under the Agreement
(except for payment obligations) due to causes beyond its reasonable control, including, without limitation, strikes,
blockades, war, terrorism, riot, Internet or utility failures, governmental orders or actions, national or regional emergency,
pandemics, or natural disasters, provided that such party promptly notifies the other in writing of such occurrence and uses
commercially reasonable efforts to resume performance of its affected obligations as soon as feasible. Delays or failures that
are excused as provided in this Section 12.4 (Force Majeure) will result in automatic extensions of dates for performance for
a period of time equal to the duration of the events excusing such delay or failure.
12.5. Notices. Any notice or other communication given by either party to the other regarding the Agreement will be deemed
given and served when personally delivered or delivered by reputable international courier requiring signature for receipt
addressed to the party at its notice address. Notice will be deemed effective upon delivery or refused delivery attempt.
Either party may change its notice address by written notice to the other. Customer's notice address will be the address
appearing on the Order or SOW. Trimble's notice address will be the applicable address on Exhibit A (Trimble Entities;
Governing Law; Exclusive Venue/Jurisdiction), or if the Trimble entity is not listed there, then on the Order. In addition, any
valid notice to Trimble shall include a required copy to: Trimble Inc., Attn: General Counsel - Important Legal Notice, 510 De
Guigne Drive, Sunnyvale, CA 94085, USA. Trimble may send operational notices to Customer by email or through the
Offering, including, without limitation, modifications of the Agreement or Documentation, suspension, collection, and
termination notices related to overdue fees.
12.6. Export Control. Customer acknowledges that the Offerings are subject to export restrictions by the United States
government and import restrictions by certain foreign governments. Customer will not, and will not allow any third party to,
remove or export from the United States or allow the export or re-export of any part of the Offerings or any direct product
thereof: (a) into (or to a national or resident of) any embargoed or terrorist -supporting country; (b) to anyone on the U.S.
Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals; (c) to
any country to which such export or re-export is restricted or prohibited, or as to which the United States government or
any agency thereof requires an export license or other governmental approval at the time of export or re-export without
first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, Laws of any United
States or foreign agency or authority. Customer warrants that it is not located in, under the control of, or a national or
resident of any such prohibited country or on any such prohibited party list. The Offerings are further restricted from being
used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity,
without the prior permission of the United States government. Customer will defend, indemnify, and hold Trimble harmless
against any liability (including attorneys' fees) arising out of Customer's failure to comply with the terms of this Section.
Customer's obligations under this Section 12.6 (Export Control) will survive the termination of the Agreement for any reason
whatsoever.
12.7. Anti -Corruption Compliance. Each party, and any third party acting on its behalf, will comply with all applicable United States
and international anti -corruption and anti -bribery laws and regulations, including, without limitation, the U.S. Foreign
Corrupt Practices Act, the U.K. Bribery Act, and others (collectively, "Anti- Corruption Laws"). Each party, and any third party
acting on its behalf, will not directly or indirectly offer, promise, or give any payment or anything of value to a government
official, or any other individual or entity, where the intent is to improperly influence any act or decision of the government
official, or other individual or entity, to obtain or retain business or some other benefit or commercial advantage for either
party. Each party, and any third party acting on its behalf, also will not solicit or accept any sort of payment or anything of
value from anyone, where the intent is to improperly influence any acts of a party or any third party acting on its behalf.
12.8. GSA. Offerings purchased or licensed under Trimble's United States General Services Administration ("GSA") Schedules are
subject to all of the pricing and other terms and conditions described in the applicable GSA Schedule.
12.9. Governing Law and Venue. The sole and exclusive governing Law, jurisdiction, and venue for the Agreement and all Disputes
shall be: (1) as set forth in the Order, if any, or (2) otherwise, as set forth on Exhibit A (Trimble Entities; Governing Law;
Exclusive Venue/Jurisdiction), in each case to the exclusion of all others; provided that Trimble may elect to bring action in
courts with jurisdiction for Customer's location. The United Nations Convention on Contracts for the International Sale of
Goods and any conflicts of laws provisions giving rise to a different result do not apply. No Dispute may be brought by either
party more than one (1) Year after such Dispute accrued, except that an action for nonpayment may be brought within two
(2) Years after the due date. Each party hereby waives, to the maximum extent permitted by law, any objection, including
any objection based on forum non conveniens, to the bringing of any such proceeding in such jurisdiction.
12.10. WAIVER OF JURY TRIAL - UNITED STATES CLAIMS. FOR ANY CLAIM BROUGHT IN A STATE, FEDERAL, OR OTHER COURT IN
ANY JURISDICTION WITHIN THE UNITED STATES, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING,
CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT BE ENFORCED OR ENFORCEABLE TO
THE EXTENT A WAIVER OF THE RIGHT TO A TRIAL BY JURY IS PROHIBITED BY, OR CONTRARY TO, THE PUBLIC POLICY OF
THE STATE IN WHICH SUCH LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM IS FILED.
12.11. Region -Specific Terms. Additional terms and conditions for specified regions are as set forth in Exhibit B (Region -Specific
Terms).
12.12. Publicity. Customer agrees that (a) Trimble may issue a press release in the form approved by the parties regarding the
parties' entry into the Agreement, and (b) Trimble may identify Customer (including through use of its name and logo) as
Trimble's customer, including on Trimble's website, and may include Customer in its customer list and marketing materials,
but will cease this use upon Customer's written request.
12.13. Headings; Language. The headings in the Agreement have been inserted for convenience only and shall have no substantive
effect. The language of all parts of the Agreement shall in all cases be considered as a whole, according to its fair meaning,
and not strictly for or against any of the parties. The parties hereby acknowledge and agree that the language of the
Agreement shall be considered jointly drafted.
12.14. Subcontractors. Trimble may use subcontractors in the performance of its obligations under the Agreement, and will be
responsible for the acts and omissions of its subcontractors in their performance of Trimble's obligations in the Agreement.
12.15. No Third -Party Beneficiaries. Except as may be expressly stated in any Supplemental Terms, there are no third -party
beneficiaries under the Agreement.
12.16. Independent Contractors. Each party is an independent contractor of, and is not an employee, agent, fiduciary, or authorized
representative of, the other party.
12.17. Entire Agreement. The Agreement sets forth the entire understanding between the parties in connection with its subject
matter, and supersedes all prior or contemporaneous proposals, communications, agreements, negotiations, and
representations, whether written or oral, regarding the subject matter thereof. Any additional, contrary, and/or pre-printed
terms or conditions appearing on Customer's acceptance, orders, or associated purchase documentation are hereby rejected
and will be of no effect.
12.18. Counterparts. The Agreement, or portions thereof, may be executed in several counterparts and, if applicable, by each party
on a separate counterpart, each of which, when so executed and delivered will be an original, but all of which together will
constitute but one and the same instrument. A signature, digital signature, or electronic signature delivered through other
means (e.g., email) shall have the same force and effect as an original ink signature.
Exhibit A
Trimble Entities; Governing Law; Exclusive Venue/Jurisdiction
Customer Location*
Trimble Entity and Notice
Address**
Governing Law
Exclusive
Venue/Jurisdiction
United States
Trimble Inc.
10368 Westmoor Drive
Westminster, CO 80021 USA
State of Delaware
State and Federal Courts
located in Wilmington,
Delaware, USA
Australia
Trimble Australia Pty. Ltd.
Deutsche Bank Place Level
5 126-130 Philip St.
Sydney, NSW 2000, Australia
New South Wales
Courts in Sydney, NSW,
Australia
Belgium
Trimble Belgium BV,
Geldenaaksebaan 329 3001
Leuven, Belgium
Belgium
Courts in Brussels,
Belgium
Canada
Trimble Canada Corporation
600-1741 Lower Water Street
Halifax, Nova Scotia B3J 0J2,
Canada
Province of Ontario, and the
federal laws of Canada
applicable therein
Provincial and federal
courts located in
Toronto, Ontario
Finland
Trimble Finland Oy,
Hatsinanpuisto 8,
02600 Espoo, Finland
Finland
Courts in Helsinki,
Finland
France
Trimble France S.A.S.
1 quai Gabriel Peri
94340 Joinville-le-Pont,
France
France
Courts in Paris, France
Germany
Trimble Germany
GmbH, Am Prime Parc
11, 65479 Raunheim
Germany
Germany
Courts in
Frankfurt/Main,
Germany
United Kingdom
Trimble UK Limited
1 Bath Street,
Ipswich,
Suffolk IP2 8SD
England and Wales
Courts of England and
Wales
Any other country or
geography not
specified above
Trimble Europe B.V.
Industrieweg 187a,
5683 CC Best,
The Netherlands
The Netherlands
Courts of Amsterdam,
the Netherlands
* Customer location is Customer's billing address specified on the Order, or if none, then the address provided by Customer
to Trimble when registering its online account.
** Addresses for Trimble entities not listed shall be as set forth on the Order or SOW. See additional required notice address
for Trimble in Section 12.5 (Notices).
Exhibit B
Region -Specific Terms
Table of Contents
•Australia
o France
oThe Netherlands
•Germany
Australia
For Customer who purchase Offerings in Australia, the following provisions apply:
(a) For the purposes of this section, "Australian Consumer Law" means the Australian Consumer Law set out at Schedule 2
to the Competition and Consumer Act 2010 (Cth), as amended from time to time, and "Non -excludable Condition"
means the consumer guarantees, warranties, rights, or remedies under the Australian Consumer Law that cannot be
limited, excluded, restricted, or modified, and to which Customer may be entitled.
(b) To the extent permitted by Law, Trimble's liability in relation to breach of any such Non -excludable Condition shall be
limited, at its option, as follows: (i) in the case of the goods, to repairing or replacing the goods, supplying equivalent
goods, or paying the costs of repairing or replacing the goods or acquiring equivalent goods; and (ii) in the case of the
services, to re -supplying the services or paying the cost of re -supplying the services.
(c) Nothing in the Agreement excludes, restricts or modifies any Non -excludable Condition.
(d) Nothing in the Agreement is intended to derogate from Trimble's obligations under the Privacy Act 1988 (Cth) as
amended from time to time.
(e) Where Order(s) are a "Small Business Contract" within the meaning of the Australian Consumer Law:
• Trimble shall not accelerate Customer's unbilled future fees under any Order(s);
Customer's indemnification obligations under the Agreement are reduced to the extent Trimble's acts or
omissions contributed to or caused the claims, costs, damages, losses, liabilities, and expenses suffered by
Customer;
Trimble's liability in relation to breach of any Non -excludable Condition will be an Excluded Claim; and
No dispute or legal action arising under the Agreement may be brought by either party more than three
years after such cause of action accrued.
France
Section 3.4 is hereby amended and restated to read as follows:
Section 3.4 Late payments will bear interest at the rate of 1.5% per month or the minimum rate allowed by Law (currently three
(3) times the legal interest rate), whichever is higher, measured from the date on which the sums concerned became due until
the date on which full payment is received. Collection fees of a minimum amount of 40 € will be added in accordance with Article
L. 441-10.11 of the Commercial Code. Customer will be liable for all other costs of collection of past due amounts (including court
costs and attorney's fees incurred by Trimble). If the Customer does not dispute an invoice amount in writing by the due date of
the invoice, the Customer shall be deemed to have acknowledged the accuracy of such invoice and waived its right to dispute it.
A dispute over part of an invoice or amount due shall entitle the Customer to withhold or delay payment of the disputed part
only.
The following is hereby added as Section 7.1 (e ):
(e) EACH PARTY HEREBY HAS AN OBLIGATION TO LIMIT THE DAMAGES IT MAY SUFFER IN THE EVENT OF A BREACH OF ITS
OBLIGATIONS BY THE OTHER PARTY.
The Netherlands
The provisions of Section 4.2 (Termination) are the sole grounds for the termination of the Agreement, and to the extent
permitted by Law, the right of Customer to rescind the Agreement and claim damages on the basis of statutory Law (including
but not limited to sec. 6:265 Dutch Civil Code) is excluded.
THE LIMITATION OF LIABILITY IN SECTION 7 FOR A PERIOD OF 12 MONTHS EXPRESSLY INCLUDES ANY OBLIGATION TO PAY
COMPENSATION UNDER A WARRANTY MENTIONED IN THESE TERMS OR RELATED CONTRACTS OR DOCUMENTS AND THE
RESTITUTION OBLIGATIONS (ONDEDAANMAKINGSVERPLICHTINGEN) AND INDEMNIFY FOR DAMAGES. LIABILITY FOR DEATH
OR PERSONAL INJURY SHALL NOT EXCEED EUR 1.250.000.
The applicability of section 6:227b subsection 1 and section 6:227c subsection 1 of the Dutch Civil Code are excluded in any
Agreement between Trimble and any person who is not a consumer.
Germany
If German law applies to this Agreement, the following terms are incorporated into the General Terms:
1. With regards to section 3.4, it is recorded that, according to applicable law and provided that no consumer is the
counterparty of the Agreement, the enforceable maximum interest rate is nine (9) percent above the base interest rate. The
maximum interest rate applies if the statutory requirements for default (Verzug) are fulfilled.
2. With regards to section Ziffer 4.2 it is clarified that the statutorily available rights to terminate extraordinarily or without
notice period remain unaffected.
3. The following applies regarding section 6: Section 6 will not apply. With regards to warranty (Gewahrleistung) the relevant
provisions of Trimble's Supplemental Terms apply. In addition, unless this is explicitly agreed in writing, it is not intended
that Trimble provides a guarantee that exceeds complements the statutory provisions (gesetzliche Gewahrleistung).
4. With regard to paragraph 7 :instead of Section 7 (limitation of liability) only the following provisions apply:
Trimble is liable for damages of the Customer that were caused intentionally or through gross negligence, that is the
result of failure to deliver on an explicit, written guarantee, that is based on a culpable breach of essential
contractual obligations (so-called cardinal obligations), that is the result of a culpable injury to health, body or life
or for which liability is provided for under the Product Liability Act or another mandatory legal regulation, in
accordance with the statutory provisions.
Cardinal obligations are those contractual obligations whose fulfillment makes the proper execution of the contract
possible in the first place and on whose compliance the customer can regularly rely, and whose violation, on the
other hand, endangers the achievement of the purpose of the contract.
In the event of a breach of a cardinal obligation, liability - to the extent that the damage is based solely on slight or
normal negligence and does not affect life, limb or health - is limited to damage that typically arises in the context
of the delivery of such software as purchased by the customer and must be expected foreseeably.
Any further liability — regardless of the legal basis — of both Trimble and Trimble's vicarious agents and vicarious agents
is excluded.
If damage to the customer results from the loss of data, Trimble is only liable if the damage could not have been
avoided if the customer had normally backed up the data in question.
5. Regarding Section 11 Deviating from Section 11.4, it is agreed that the parties also conclude the DPA linked under
https://www.trimble.com/privacy or a successor URL when concluding this Agreement. Upon request, the Customer can request
that a signed copy be sent. The transfer of personal data from Trimble facilities in Europe, acting as data exporter, to Trimble
facilities in the United States, acting as data importer, is governed by Standard Contractual Clauses, which are available at the
same URL or upon written request to Trimble.
6. With regard to clause 12.1 In addition to Section 12. 1, it is stipulated that in the event of a change, the customer is granted an
immediate and unconditional right of termination.
7. With regard to clause 12.9.
The following section applies instead of section 12.9.
• Governing Law and Venue; Waiver of Jury Trial. The Agreement and any dispute, claim or controversy
arising therefrom shall be governed exclusively by the laws of the jurisdiction applicable to Customer's
location as set forth in Appendix A (Trimble Entities; Governing Law; Exclusive Jurisdiction/Venue)
under "Governing Law", without Consideration or application of conflict of law provisions. The United
Nations Convention on Contracts for the International Sale of Goods does not apply. All claims, matters
and disputes arising from the agreement are subject to the customer if the customer is a merchant, a
legal entity under public law or a special fund under public law or he does not have a general place of
jurisdiction in the Federal Republic of Germany the sole and exclusive jurisdiction and venue set out in
Appendix A (Trimble Entities; Governing Law; Exclusive Jurisdiction/Venue) under "Exclusive
Jurisdiction/Venue".
Regarding paragraph 12.15.Clause 12.15 does not apply.
Addendum #2
Supplemental Terms for Software and Subscriptions
Version 1.2 (Last Updated: May 1, 2024)
1. Definitions. Capitalized terms not defined herein have the meanings given in the General Terms.
1.1. "Active Project" means any Project on which the Software may be used by Customer during any Annual Subscription Term.
1.2, "Annual Subscription Term" means each 12 -month period of a Subscription Term.
1.3. "Anonymized Data" means any data collected in connection with the Offerings (including Customer Data) that has been
aggregated and/or de- identified in such a manner that neither Customer nor any of its Authorized Users or any other individual
can be identified from the data when it is shared outside of Trimble or its Affiliates.
1.4. "Authorized User" means any employee of Customer and, unless prohibited by Trimble in the Order, Documentation, or any
Supplemental Terms, individuals who are contractors or consultants of Customer or employees, contractors, or consultants of
Customer's Affiliates authorized by Customer to access and use the Offerings on Customer's behalf in accordance with the
Agreement, including, without limitation, Section 6.6 (Third- Party Access) and Section 9 (Confidentiality).
1,5. "Correction Services" means subscription -based services that provide GNSS position correction data.
1.6. "Concurrent User" means any type of User authorized by Customer to access and use the Offerings on Customer's behalf
simultaneously at a given point in time.
1.7. "Customer Data" means any information, documents, materials, or other data of any type that is input by or on behalf of
Customer into the Offerings or that is created or generated by Customer through Customer's use of the Offerings, including without
limitation information or data that is submitted manually by Authorized Users or through a Third -Party Platform. For clarity,
Customer Data expressly excludes Usage Data.
1.8. "Customer Group" means Customer's business units, Affiliates, or Joint Ventures, if any, listed in the Order that may authorize
Authorized Users to use the Offerings on behalf of those business units, Affiliates, or Joint Ventures.
1.9. "Gross Annual Revenue" or "GAR" means Customer's (and Customer Group's, if applicable) income and revenue from all
sources, before expenses or taxes, calculated on an annual basis according to generally accepted accounting principles and as
reported in company financial statements. The various equivalent definitions may be used interchangeably.
1.10. "Joint Venture" means a business arrangement in which Customer and one or more other third parties agree to pool their
resources to accomplish a Project or other commercial enterprise.
1.11. "License Keys" means electronic passwords, authorization codes, or other enabling mechanisms provided for use with the
Offerings.
1.12. "Named User" means any type of Authorized User designated by Customer by name or other identifier to access and use the
Offerings on Customer's behalf.
1.13. "Prohibited Data" means any (a) patient, medical, or other protected health information regulated by the Health Insurance
Portability and Accountability Act (as amended and supplemented) ("HIPAA"); (b) credit, debit, or other payment card data subject
to the Payment Card Industry Data Security Standards (PCI DSS); (c) information subject to regulation or protection under the
Children's Online Privacy Protection Act or Gramm- Leach Bliley Act, or (d) any other information which is regulated under Laws
and is not required for use of the Software for its intended purpose.
1.14. "Project" means the initiation, delivery, operations, and maintenance of a construction project.
1.15. "Provision Date" means the date on which Trimble first provides access to the Offerings. For an Offering bundle comprised
of multiple Software, the Provision Date will be the date on which the entire Offering bundle becomes fully provisioned.
1.16. "Subscription" means access to any Software, Support, Correction Services, content, data, or other information, in each
case made available for the applicable Subscription Term(s).
1.17. "Support Terms" means the then -current Supplemental Terms for Support and
Maintenance available at https://www.trimble.com/en/legal/customer-terms or any
successor url.
1.18. "Third -Party Materials" means any third -party data, content, or proprietary software. Third -Party Materials is not part of
Software.
1.19. "Project Budget" means the total projected cost allocated to carry out, manage, and complete one or more Active
Project(s) over the entire Subscription Term. The various defined terms are equivalent and may be used interchangeably,
including in other defined terms.
1.20. "Total Project Value" or "Project Value" means Project Budget divided by the number of Annual Subscription Terms in the
Subscription Term (and not any renewal). The various defined terms are equivalent and may be used interchangeably, including
in other defined terms.
1.21. "Usage Limitations" means Customer's authorized scope of use for the Offerings as specified in the applicable Order,
Supplemental Terms, or Documentation, which may include any user (e.g., Named User, Concurrent User, etc.), seat, copy, instance,
data storage, CPU, computer, field of use, location, project, or other restrictions.
1.22. "Usage Data" means Trimble's technical logs, data, and learnings about Customer's use of the Offerings, excluding Customer
Data.
2. Generally
2.1 Offerings.
(a) Subscriptions (other than Licensed Software). Customer may access and use the Subscriptions during the Subscription Term only
for its internal business purposes in accordance with the Documentation, Usage Limitations, and the Agreement. Unless otherwise
specified by Trimble, any Licensed Software provided with a Subscription is subject to the terms applicable to Licensed Software
under the Agreement.
(b) Licensed Software. Trimble hereby grants Customer a non -transferable, non-sublicensable, non-exclusive license, during Term,
to install, copy, and use the Licensed Software on systems or devices under Customer's control only for its internal business
purposes in accordance with the Documentation, Usage Limitations, and the Agreement. Licensed Software is licensed, not sold.
Any Licensed Software deployed through hosting services delivered by Trimble are subject to the terms and conditions applicable
to Licensed Software.
2.2 Authorized Users. Only Authorized Users may access or use the Offerings. User IDs are granted to individual, named persons,
and each Authorized User will keep login credentials confidential and not share them with anyone else. Customer is responsible for
its Authorized Users' compliance with the Agreement and actions taken through their accounts. In the event an Authorized User is
no longer authorized to use an Offering on Customer's behalf, Customer will promptly de -activate such Authorized User's access.
Unless expressly permitted in the Order, Supplemental Terms, or Documentation, Customer may not transfer Authorized User
status from one individual to another. Customer will promptly notify Trimble if it becomes aware that any of its Authorized User
login credentials have been compromised.
2.3. Restrictions. Customer will not (and will not permit, encourage, or assist anyone else to) do any of the following: (a) provide
access to, distribute, sell, or sublicense the Offerings to a third party; (b) use the Offerings on behalf of, or to provide any product
or service outside of Customer's regular course of business, to, third parties; (c) use the Offerings to develop a similar or competing
product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to any
element of the Offerings, except to the extent expressly permitted by Law (and then only after providing prior written notice to
Trimble); (e) modify or create derivative works of the Offerings or copy any element of the Offerings (other than in connection with
making copies of Licensed Software authorized under the Agreement); (f) remove or obscure any proprietary notices in the
Offerings; (g) publish benchmarks or performance information about the Offerings, except to the extent expressly permitted by
Law;
(h) interfere with the Offerings' operation or its use by others, circumvent its access restrictions or, without the prior written
permission of Trimble, conduct any security or vulnerability test of the Offerings; (i) transmit any viruses or other harmful materials
to the Offerings; (j) submit to the Offerings any information that is inappropriate, defamatory, obscene, salacious, or unlawful, or
use the Offerings to defame, harass, stalk, threaten, or otherwise violate the rights of others; (k) use the Offerings to advertise,
offer to sell or buy goods, or otherwise for business promotional purposes;
(I) for Licensed Software, unless expressly permitted in the Order, Supplemental Terms, or the Documentation, use or host any
Licensed Software in a virtual server environment, or (m) for Corrections Services, re -broadcast the Corrections Services without
the prior written consent of Trimble.
2.4 Free Versions; Trials and Betas. "Free Versions" means any Offerings made available to Customer for use without a fee. "Trials
and Betas" means any Offerings or any features thereof made available on an evaluation or trial basis or as an alpha, beta, Labs or
other early access offering, in any case free or otherwise. Unless otherwise set forth in the Documentation or the Agreement,
Customer may only use Free Versions in a non -production environment and for non-commercial purposes, and Trials and Betas
may only be used solely for Customer's internal evaluation to determine whether to purchase a license or subscription to the
Offerings. The evaluation term for Trials and Betas shall be 30 days unless otherwise designated by Trimble in writing. Free Versions
and Trials and Betas are optional, and Trimble may cease making available such Offerings at any time for any reason. Trials and
Betas may be inoperable, incomplete, or include features that Trimble may never release, and their features and performance
information are Trimble's Confidential Information. In the event Customer has purchased Services related to any Free Version or
Trial and Beta, any unused Services upon any termination or expiration of the applicable term for the Free Version or Trial and Beta
shall be forfeit. Notwithstanding anything else in the Agreement: (a) Trimble has no obligation to retain Customer Data used
with Free Versions and Trials and Betas; (b) Trimble provides the Free Versions and Trial and Betas "AS -IS" with no warranty,
indemnity, service levels, or support; (c) Trimble's liability for Free Versions and Trials and Betas will not exceed US$50, and (d)
either party may terminate access to a Free Version or Trial and Beta, for any reason or no reason, immediately upon written
notice to the other party.
2.5 Educational Versions. For any version of the Offerings designated as "educational," or a similar term, Customer may use the
Offerings solely for educational purposes - e.g., by an instructor or a student at an educational institution and while engaged in
educational work. Such educational versions may not be used (a) by any other person; (b) by any educational institution for any
non -educational purposes; or (c) for any for-profit purpose, including professional work or training offered for a fee, or by
commercial entities.
2.6 Delivery. Offerings and License Keys, if any, will be delivered by electronic means unless otherwise specified on the applicable
Order. Delivery is deemed to occur on the date on which the Offering and License Key, if any, are first made available to Customer.
2.7 Software Activation and Metering; Audits.
(a) Offerings may gather and transmit to Trimble license usage, compliance, and activation data. Customer will not disable,
modify, or interfere with the operation of any such functionality of the Offerings. Trimble may use the foregoing
information to validate the authenticity of Authorized Users, to confirm Customer's compliance with the Agreement, to
register the Offerings, to monitor and validate compliance with Usage Limitations, for license metering, and to protect
Trimble against unlicensed or illegal use of the Offerings.
(b) Upon Trimble's written request, Customer shall certify in writing that its use of the Offerings is in full compliance with the
Agreement (including any Usage Limitations). In addition to the other license compliance monitoring rights in the
Agreement, Trimble, or its authorized representative, may, upon prior reasonable notice of at least ten (10) days, inspect
and audit Customer's records and use of the Offerings to confirm Customer's compliance with the Agreement. All such
inspections and audits will be conducted during regular business hours and in a manner that does not unreasonably
interfere with Customer's business activities. Customer is responsible for such audit costs only in the event the audit
reveals that the use is not in accordance with the Usage Limitations or other licensed scope of use and for unpaid fees.
Customer shall promptly pay all unpaid fees.
3. Data Usage and Ownership.
3.1 Ownership. Except for Trimble's limited rights set forth in the Agreement, as between the parties, Customer retains all
Intellectual Property Rights in Customer Data. Trimble owns all Intellectual Property Rights in Anonymized Data and Usage Data.
3.2. Limited Usage Rights. Customer hereby grants to Trimble and its Affiliates the non-exclusive, worldwide, irrevocable, royalty -
free right: (i) to use Customer Data during the Term to provide the Offerings, Support, and Services to Customer; (ii) to create
Anonymized Data; (iii) to use and disclose Customer Data as otherwise permitted pursuant to the Agreement or any written consent
or instructions of Customer; and, (iv) subject to Trimble's confidentiality obligations in Section 9 (Confidentiality) of the General
Terms and all applicable Data Protection Legislation, to use Customer Data in perpetuity to develop, maintain, and improve the
products, software, and services of Trimble or its Affiliates, including, without limitation, analytics, model training, and machine
learning.
3.3 Access. Customer will not have access to Customer Data after termination or expiration of the Term, unless otherwise
indicated in the Order, Supplemental Terms, or the Documentation, or the parties agree otherwise in writing.
3.4 Confidentiality. In the event of any conflict between the terms of Section 9 (Confidentiality) of the General Terms and this
Section 3 (Data Usage and Ownership), the terms of this Section 3 (Data Usage and Ownership) will control.
4. Customer Obligations.
4.1 Dependencies and Compatibilities. If Customer enables Dependencies or Compatibilities with an Offering, Trimble may access
and exchange Customer Data with the Dependencies or Compatibilities on Customer's behalf. Trimble will have no liability or
obligations under the Agreement with respect to how any Dependencies or Compatibilities uses or processes Customer Data. If
Trimble hosts any Dependency or Compatibilities at Customer's request, Customer represents and warrants to Trimble that
Customer has all rights necessary. Trimble may charge additional fees for such hosting services.
4.2 No Prohibited Data. Customer will not use the Offerings with Prohibited Data. Customer acknowledges that the Offerings are
not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Trimble is not a Business
Associate as defined under HIPAA.
4.3 Customer Data. Customer is responsible for its Customer Data, including its content, accuracy, and compliance with Laws.
Customer represents and warrants that it has made all disclosures and has all rights, consents, and permissions necessary to use
its Customer Data with the Offerings and grant Trimble the rights in Section 3 (Data Use and Ownership), all without violating or
infringing Laws, third -party rights (including intellectual property, publicity, or privacy rights), or any terms or privacy policies that
apply to its Customer Data. If Customer utilizes data fields available in the Offerings to store data not required for the normal use
and operation of the Offerings for their intended purpose, Customer agrees that Trimble is not responsible for, and will not be
liable in any manner for such data, and Customer assumes all risks associated with, and agrees to hold Trimble harmless from and
against any and all claims, losses, damages, liabilities, and expenses (including reasonable attorneys' fees) related to or arising from,
Customer's use of data fields to store such data.
4.4 Excluded Claims. In addition to the Excluded Claims stated Section 7 (Limitation of Liability) in the General Terms, the following
shall also be Excluded Claims for purposes of the Agreement: Section 10 (Indemnification) of these Software Terms and any
breaches of Sections 2.3 (Restrictions) or Section 4 (Customer Obligations) of these Software Terms.
4.5 License Compliance. Customer shall promptly notify Trimble if Customer become aware of (i) any breach of confidentiality
obligations regarding the Offerings, or (ii) any infringement (whether actual or alleged) of Trimble's intellectual property rights in
the Offerings, or (Hi) any unauthorized use of the Offerings by any person, and provide reasonable assistance to Trimble in
connection with any suit or proceeding relating to such events.
4.6. Usage Limitations. Customer will comply with all Usage Limitations. If Customer exceeds the Usage Limitations during the Term,
Trimble may invoice Customer for the use that exceeded the applicable Usage Limitations at Trimble's then -current list price, and
Customer shall pay in accordance with the Agreement. The parties may also agree on a Usage Limitation adjustment, in which case
Customer must sign a new Order and pay the applicable fees.
4.7 Fee Criteria. If the Order states Software is made available based on GAR, Project Budget, Total Project Value, population,
specific -department usage, Affiliate -limitations, or similar criteria (any such criteria, the "Fee Criteria"), the fees for that Software
are calculated based on that Fee Criteria as of the date of Order issuance by Trimble. Unless otherwise provided the Order, if the
Fee Criteria increases by more than 10% during the Subscription Term, (i) Customer shall promptly notify Trimble in writing, (H)
Trimble has the right to adjust such fees based on changes in the Fee Criteria and its then -current list price for that Software
(including on a prorated basis for the current term), and (Hi) Customer shall pay any applicable additional fees upon receipt of the
invoice in accordance with the Agreement. At the request of Trimble, Customer will promptly provide documentation satisfactory
to Trimble evidencing Customer's then -applicable Fee Criteria.
5. Suspension of Access. Trimble may suspend Customer's access to an Offering, without liability, and in whole or in part, if (a)
Customer breaches any Usage Limitations, Sections 2.2 (Authorized Users), 2.3 (Restrictions), 4 (Customer Obligations) or 6.2
(Offering Content); (b) Customer's account is five (5) business days or more overdue; or (c) immediately if Customer or any of its
Authorized Users' acts or omissions threaten the integrity, availability, or security of the Offerings or Trimble's systems, products,
or infrastructure (provided Trimble will use commercially reasonable efforts to provide Customer with advance notice of such
suspension where Trimble determines exigent circumstances do not exist). Trimble will lift such suspension once the related
issue or failure is cured to Trimble's reasonable satisfaction. Fees will continue to apply during the suspension period. Customer
may be prohibited from entering new Customer Data or processing or accessing existing Customer Data and data reports during
the suspension period. If Customer attempts to access or manipulate Customer Data utilizing third -party software during
suspension, Trimble disclaims and Customer holds Trimble harmless from any responsibility or liability relating to lost or altered
Customer Data or related damages.
6. Certain Features. The following provisions apply to the extent applicable to the Offerings.
6.1 Third -Party Materials. The Offerings may provide Customer with access to Third -Party Materials. Third -Party Materials are not
part of the Offerings. To the extent specified by Trimble (including in any Supplemental Terms or Documentation), use of the Third -
Party Materials may be subject to additional terms or restrictions ("Third -Party Terms"). Customer is solely responsible for its
compliance with any Third -Party Terms, and failure to comply with such terms may result in termination of Customer's right to
access any features of the Offerings that utilize such Third -Party Materials. If no Third -Party Terms are specified, Customer may use
Third -Party Materials solely in support of Customer's authorized use of the Offerings in accordance with the Agreement.
6.2 Offering Content. "Offering Content" shall be any Trimble IP or Third -Party Materials made available as data or information
through the Offering, whether included as part of the Offering or as a separate subscription. Any Offering Content that is Trimble
IP will be deemed part of the Offering. Any Offering Content that is Third -Party Materials shall be subject to any applicable Third -
Party Terms. If no Third -Party Terms apply, then unless otherwise authorized by Trimble in writing or the applicable Documentation,
such Third -Party Materials, and any derivative thereof, may only be used or accessed by an Authorized User. Third -Party Materials
will be used solely for Customer's internal purposes during the Term and must be accessed pursuant to a manual Authorized User
request. Customer will not: (i) access, extract, or download any Third -Party Materials, or portions thereof, in batch or en masse by
any means; (ii) use any device, software, or routine to bypass any hardware or software that prohibits volume requests for
information; (iii) sell, offer to sell, rent, sublicense, or transfer any copies of theThird-Party Materials, or portions thereof, to a third
party or allow a third party to use the Third -Party Materials; (iv) use the Third -Party Materials to develop services or products for
sale or include any portion of the Third -Party Materials in any product or service; (v) use any portion of the Third -Party Materials
to create a competitive service, product, or technology; (vi) recreate the Third -Party Materials or create otherwise a separate
database or other repository of Third -Party Materials; (vii) use Third -Party Materials to train, augment, or correct another database
or information repository; (viii) unless other specified in the Documentation, permit any individual other than an Authorized User
to access or use the Offering Content and any derivative thereof, or (ix) make any portion of the Third -Party Materials available to
the public in any manner. Upon notice from Trimble and/or any termination or expiration of the Term, Customer will immediately
cease using and delete/destroy all electronic and physical copies of Third -Party Materials.
6.3 Open Source. The Offerings may incorporate third -party open source software ("Open Source"), as listed in the Documentation
or otherwise made available by Trimble. To the extent the terms of the Open Source license prohibit the terms of the Agreement
from applying to the Open Source, the terms of the Open Source license will apply to the Open Source on a stand-alone basis
instead of the Agreement.
6.4 Third -Party Application Stores.
(a) Purchase from Application Store. If Customer obtains the Offering (or portions thereof) through a third -party application store,
marketplace, or other site or service (each, an "Application Store"), such Application Store is considered a reseller. All fees are non-
refundable once paid. Customer's download of the Offering may be subject to other terms as specified by the operator of the
Application Store from which Customer downloaded the Offering.
(b) Apple -Specific Terms. If Customer downloaded the Offering from Apple Inc.'s ("Apple") Application Store, the following terms
are part of the Agreement. The Agreement is between Customer and Trimble, and not with Apple. However, as required by Apple,
Apple and its subsidiaries will be third -party beneficiaries of the Agreement and will have the right (and will be deemed to have
accepted the right) to enforce the Agreement against Customer as a third -party beneficiary. To the maximum extent permitted by
Law, Apple will have no warranty obligation with respect to the Offering, and, as between Apple and Trimble, any other claims,
losses, liabilities, damages, costs, or expenses attributable to a failure to conform to a warranty will be Trimble's responsibility.
Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Offering. As between
Trimble and Apple, Trimble is solely responsible for the Offering and for addressing any claims Customer or any third parties have
about the Offering or Customer's possession or use of the Offering, including without limitation (i) product liability claims; (ii) any
claim that the Offering fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer
protection or similar legislation. In the event of any third -party claim that the Offering or Customer's possession or use of the
Offering infringes that third party's intellectual property rights, Apple will not be responsible for the investigation, defense,
settlement, or discharge of such claim.
6.5 Security for SaaS or Hosting Services for Licensed Software. This Section 6.5 (Security for SaaS or Hosting Services for Licensed
Software) applies to Offerings that are SaaS or hosting services for Licensed Software. During the Term, Trimble or its third party
hosting provider(s) will use commercially reasonable efforts to establish and maintain reasonable administrative, physical, and
technical safeguards designed to protect (a) the security, confidentiality, and integrity of Customer Data; (b) against anticipated
threats or hazards to the security, confidentiality, and integrity of Customer Data; (c) against unauthorized access to or use of
Customer Data; and (d) against unlawful processing, accidental destruction, or loss of Customer Data. In the event Trimble is not in
breach of the foregoing obligations and an unauthorized third party nonetheless gains access to the Customer Data, such disclosure
of Customer Data in such circumstances shall not be a breach of Section 9 (Confidentiality) of the General Terms. In the event of
any conflict between the terms of Section 9 (Confidentiality) of the General Terms and this Section 6.5 (Security for SaaS or Hosting
Services for Licensed Software), the terms of this Section 6.5 (Security for SaaS or Hosting Services for Licensed Software) will
control.
6.6 Third -Party Access.
(a) Generally. Customer authorizes Trimble to grant access to its instances of the Offerings and share Customer Data with any third -
party Authorized Users or as otherwise instructed by Customer. Customer is solely responsible for such third -parties' compliance
with the Agreement and for any and all acts or omissions of any such third parties. Such third parties are considered
Representatives, as that term is defined and used in Section 9 (Confidentiality) of the General Transaction Terms. Such third parties
are not intended third -party beneficiaries under the Agreement. Trimble shall have no liability for any act or omission of any such
third party, including by way of access or use of the Offerings or Customer Data. Such third -party access or use of the Offerings
must be solely and exclusively for the benefit of Customer (or its Affiliates, if applicable), and any other purpose is prohibited. For
clarity, as between Customer and any such third parties, any data or other information uploaded by such third party to the Offerings
on Customer's behalf will be deemed Customer Data of Customer.
(b) Customer as a Third -Party. In the event that Customer is invited to access an Offering as a third party, any data or other
information uploaded by Customer on behalf of such third party shall be deemed "Customer Data" of such third party.
7. Support. If Customer is eligible for Support and pays any applicable fees, Trimble will make such Support available in accordance
with the Support Terms or as Trimble may otherwise expressly provide in writing. Unless otherwise set forth in writing by Trimble,
Support is not available for Free Versions or Trials and Betas.
8. Term and Termination.
8.1 Perpetual License. If Customer purchases a perpetual license to Licensed Software, Customer's license to the Licensed Software
will continue in perpetuity subject to the terms and conditions of the Agreement. Support for Licensed Software is purchased
separately unless otherwise indicated by Trimble in writing or on an Order.
8.2 Subscriptions.
(a) Subscription Term. If Customer purchases access to a SaaS or a license to Licensed Software for a limited period of time, the
duration of the initial term and any renewals are as set forth in the Order (collectively, the "Subscription Term(s)"). Notwithstanding
anything to the contrary in the Order, the start date for each Subscription Term for each Offering will begin on the Provision Date
for that Offering. For clarity, each Offering may have a different Provision Date.
(b) Additional Subscriptions. If Customer previously purchased one or more Subscriptions for a particular Offering ("Existing
Subscription(s)") and subsequently purchases one or more additional Subscriptions (for any Offering) while the Existing
Subscription(s) is in effect (the "Additional Subscription(s)"), the duration of the Subscription Term for the Additional Subscription
will be as set forth in the Order. Unless otherwise set forth by Trimble in writing, all Customer's Subscriptions shall have the same
end date and Trimble may invoice all fees for all such Subscriptions on a single invoice.
8.3 Effect of Termination. Upon expiration or termination of the Agreement or the Order, Customer's right to use the Offerings will
cease and Customer will immediately cease any and all use of and access to the Offerings and will delete (or, upon request, return)
all copies of any Offerings. At the disclosing party's request upon expiration or termination of the Agreement, the receiving party
will delete all of the disclosing party's Confidential Information (excluding Customer Data, which is addressed in Section 3 (Date
Usage and Ownership)). Customer Data and other Confidential Information may be retained in the receiving party's standard
backups after deletion but will remain subject to the Agreement's confidentiality restrictions.
8.4 Survival. In reference to Section 4.3 of the General Terms (Survival), the following Sections of these Software Terms survive any
expiration or termination of the Agreement: 1 (Definitions), 2.3 (Restrictions), 3.1 (Data Usage and Ownership), 4 (Customer
Obligations), 8.3 (Effect of Termination), 8.4 (Survival), 9.3 (Additional Disclaimers), and 10 (Indemnification). Except where an
exclusive remedy is provided, exercising a remedy under the Agreement, including termination, does not limit other remedies a
party may have.
9. Warranties and Additional Disclaimers.
9.1 Limited Warranty. Subject to the Agreement and any mandatory Laws to the contrary, Trimble warrants to Customer that during
the Warranty Period, the Offerings will perform materially as described in the Documentation. The "Warranty Period" is (a) 90 days
for Licensed Software licensed on a perpetual basis, and (b) for the duration of the applicable Subscription Term, for any
Subscriptions. Notwithstanding the foregoing, Trimble makes no warranties with respect to Correction Services, which are provided
as -is and as -available.
9.2 Warranty Remedy.
(a) If the Offering fails to conform to Section 9.1 (Limited Warranty) during the Warranty Period, Customer may make a
reasonably detailed warranty claim within 30 days of discovering the issue. For any such claims reported by Customer
within such period that Trimble determines are valid, Trimble will correct such non -conformity by issuing corrected
instructions, a restriction, or a bypass, or by replacing the Offerings, at Trimble's option. Subject to any mandatory Laws
to the contrary, these procedures are Customer's exclusive remedy, and Trimble's entire liability, for the failure of the
Offerings to conform to the warranty in Section 9.1 (Limited Warranty).
(b) The foregoing limited warranty only applies if and to the extent that (i) any Offering associated with the warranty is
properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with the
Documentation, and (ii) any Offerings associated with the warranty is not modified or misused. The foregoing limited
warranty does not apply to (1) issues caused by unauthorized use or modifications; (2) unsupported or unauthorized
versions of any Offerings; (3) operating the Offerings under any specification other than, or in addition to, the
Documentation; (4) issues in or resulting from Dependencies, Compatibilities, or third -party systems, products, or
services; or (5) Free Versions, Trials and Betas or other similar versions.
9.3 Additional Disclaimers. Trimble makes the following disclaimers in addition to Section 6 (Warranty Disclaimer) in the General
Terms.
(a) General. TRIMBLE MAKES NO EXPRESS WARRANTY THAT CUSTOMER'S USE OF THE OFFERINGS WILL BE UNINTERRUPTED,
ERROR -FREE, OR FREE OF VIRUSES OR OTHER MALWARE OR PROGRAM LIMITATIONS; THAT TRIMBLE WILL REVIEW CUSTOMER
DATA FOR ACCURACY; OR THAT TRIMBLE WILL MAINTAIN CUSTOMER DATA OR OTHER DATA WITHOUT LOSS. TRIMBLE IS NOT
LIABLE FOR DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET, SATELLITES, ELECTRONIC COMMUNICATIONS,
OR OTHER SYSTEMS OUTSIDE TRIMBLE'S CONTROL. TRIMBLE WILL NOT BE LIABLE IN ANY MANNER FOR THE OUTPUT OBTAINED
THROUGH USE OF THE OFFERINGS OR CUSTOMER'S RELIANCE ON SUCH OUTPUT. CUSTOMER IS RESPONSIBLE FOR THE
SUPERVISION, MANAGEMENT, AND CONTROL OF CUSTOMER'S USE OF THE OFFERINGS. THIS RESPONSIBILITY INCLUDES THE
DETERMINATION OF APPROPRIATE USES FOR THE OFFERINGS AND THE SELECTION OF THE OFFERINGS TO ACHIEVE INTENDED
RESULTS. ANY FORMS, POLICIES, OR OTHER MATERIALS PROVIDED BY TRIMBLE THROUGH THE OFFERINGS OR DOCUMENTATION
ARE NOT INTENDED AND SHOULD NOT BE RELIED UPON AS LEGAL ADVICE OR LEGAL OPINION. CUSTOMER SHOULD CONSULT
ITS OWN LEGAL COUNSEL REGARDING THE USE OF ANY SUCH MATERIALS. CUSTOMER IS ALSO RESPONSIBLE FOR ESTABLISHING
THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY OUTPUT OF THE
OFFERINGS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE
LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD.
(b) Correction Services Disclaimers. Customer acknowledges that the Correction Services and related network access are subject
to transmission limitations caused by a variety of factors such as atmospheric conditions, topographical obstructions, limitations
or lack of coverage of the underlying carrier service and other natural or manmade conditions. Additionally, motor and ignition
noise, metal shielding, and interference by users of the same or adjacent radio channels may limit or interfere with Correction
Services. Trimble is not responsible for the operation or failure of operation of GNSS satellites or the availability of GNSS satellite
signals.
(c) Third -Party Materials. Third -Party Materials are provided "AS IS" and Customer assumes all risk and liability regarding any use
of (or results obtained through) Third -Party Materials. Trimble and its suppliers make no warranty or guarantee with respect to any
Third -Party Materials, including regarding their accuracy or continued availability or compatibility.
(d) Dependencies and Compatibilities. Trimble makes no warranty or guarantee with respect to any Dependencies, Compatibilities,
or other factors outside of Trimble's control, including their continued availability or compatibility.
(e) Prohibited Data. Trimble and its suppliers specifically disclaim any responsibility for, and will not be liable in any manner arising
from, any use of the Offerings in connection with Prohibited Data.
10. Indemnification. Customer will defend, indemnify, and hold harmless Trimble from and against any and all third -party claims,
costs, damages, losses, liabilities, and expenses (including reasonable attorneys' fees and costs) arising out of or in connection
with (a) any Customer Data, Dependencies, or Compatibilities, or (b) Customer's breach of Sections 2.3 (Restrictions), 4
(Customer Obligations), 6.1 (Third -Party Materials), 6.2 (Offering Content), or 6.4 (Third -Party Application Stores) (each, a
"Claim"). Trimble will give Customer prompt written notice of any Claim and will cooperate in relation to the Claim at Customer's
expense. Customer will have the exclusive right to control and settle any Claim, except that Customer may not settle a Claim
without Trimble's prior written consent (not to be unreasonably withheld) if the settlement requires Trimble to admit any
liability, pay any amounts or take any action or refrain from taking any action (other than ceasing use of infringing materials).
Trimble may participate in the defense of any Claim at its expense.
11. Government End -Users. Elements of the Offerings are commercial computer software. If the user or licensee of the Offerings
is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release,
modification, disclosure, or transfer of the Offerings or any related documentation of any kind, including technical data and
manuals, is restricted by the terms of the Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian
purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Offerings were developed
fully at private expense. All other use is prohibited.
12. Region -Specific Terms - France. Solely for purposes of Customers who's billing address is in France, the following shall apply:
Prohibited Data included any patient, medical or other protected health information regulated by the French Public Health Code
and the GDPR; and Customer's grant of rights in Section 3.1 (Generally) shall be for so long as the Customer Data is protected by
intellectual property law.
Addendum #3
Supplemental Terms for Support and Maintenance
Version 1.0 (Last Updated: April 3, 2023)
Capitalized terms not defined herein have the meanings given in the General Terms and the Software Terms.
1. Scope. Provided that Customer has paid the applicable fees, Trimble shall provide the Support described in these Support Terms during the
Maintenance Term (as defined below). The "Maintenance Term" shall be: (a) for Support for SaaS or Licensed Software licensed for a limited term,
the applicable Subscription Term, and (b) for Support for Licensed Software licensed on a perpetual basis, the term specified in the Order, or if not
specified, for a period of one (1) year.
2. Support.
2.1 During the applicable Maintenance Term, Trimble shall use reasonable efforts to correct or provide a workaround for any reproducible
programming error in the Software attributable to Trimble with a level of effort commensurate with the severity of the error, as reasonably
determined by Trimble. Upon identification of any programming error, Customer shall promptly notify Trimble of such error and shall provide
Trimble with enough information to reproduce the error, including a listing of output and any other data that Trimble may reasonably request in
order to reproduce the error and operating conditions under which the error occurred or was discovered. Trimble shall not be responsible for
correcting any errors not attributable to Trimble.
2.2 For certain Software, Trimble may provide additional or different support services or procedures as set forth in the applicable Documentation,
support handbook, or other written documentation provided by Trimble, if any (collectively, the "Additional Support Documentation"). If there is
any conflict between these Support Terms and such Additional Support Documentation with respect to the description of support services,
requirements or procedures, the provisions of such Additional Support Documentation will prevail. Customer agrees and acknowledges that
Trimble may use third parties to provide Support on its behalf. Customer expressly consents to Trimble permitting such third parties to access
Customer's information and data to perform the Support for Customer.
3. Licensed Software Updates and Upgrades. During the applicable Maintenance Term, Customer shall be entitled to receive all upgrades and
updates to the Software that are publicly released by Trimble. The contents and timing of all upgrades and updates will be decided by Trimble in its
sole discretion. Any such updates and upgrades will be deemed to be "Software" and licensed under the terms and conditions of the Agreement,
including any applicable software end user terms or license agreement. Updates and upgrades exclude (a) new versions of the Software (e.g., a
change to the left of the decimal in the version number [e.g., 1.x to 2.x] or otherwise designated by Trimble), and (b) any separate modules and
other functionality for which Trimble charges a separate fee.
4. Limitations and Exceptions. The following matters are not covered (and Trimble will not have any obligations with respect to such matters)
pursuant to these Support Terms:
4.1. Any Software for which applicable fees have not been paid;
4.2. Any problem resulting from the misuse, improper use, alteration, or damage of the Software;
4.2. Any problem resulting from improper or inadequate installation, maintenance, or storage of the Software;
4.3. Any problem caused by modifications of the Software not made or authorized by Trimble;
4.4. Any problem resulting from any hardware or software in either case not developed or supported by by Trimble, including, without limitation:
any computers, tablets, disk drives, operating systems, network hardware or software, database, or any other hardware or third -party software;
4.5. Any problem resulting from the combination of the Software with other programming or equipment to the extent that such combination has
not been approved by Trimble; and
4.6. Errors in any version of the Software other than the most recent release, provided that Trimble will continue to provide Support for
superseded releases for a reasonable period (not to exceed ninety (90) days).
Support excludes on -site visits, installation and training, file conversion, optional products and services, directories, consulting services, shipping
charges, or any recommended hardware.
5. Termination or Expiration. Support will automatically terminate with respect to any Software that is no longer licensed for use as a result of
expiration or termination of the Agreement, or replacement of the applicable Software with new releases.
Additional Support Documentation
Version 1.1
1. Generally.
1.1. Trimble shall use the applicable level of effort to correct or provide a workaround for any reproducible error in the Offering attributable to
Trimble commensurate with the severity of the error, as reasonably determined by Trimble in accordance with Section 3 (Severity Priority
Levels) below,
1.2. For certain Offerings as set forth in Section 2 below, Trimble may provide a customer support portal (the "Support Portal"), which may
allow Customer to submit support requests, report issues, view case histories, search the general knowledge database, and other features,
as applicable. In the event of any conflicts between the terms set forth herein and any set forth in the applicable Supportal Portal, the
terms herein shall govern.
1.3. For certain Offerings as set forth in Section 2 below, Trimble will provide support to Customer only by communication with the contacts
designated by Customer in the Support Portal or otherwise as instructed by Trimble (each, a "Authorized Support Contact"). Customer
may update Authorized Support Contact(s) from time to time as instructed by Trimble. Trimble may require the Authorized Support
Contact(s) to have the relevant technical knowledge regarding the Offerings necessary to assist Trimble as needed.
1.4. Upon identification of any error that cannot be resolved by Customer as first line of support (e.g., via the Support Portal, its internal staff,
etc.), then Customer (through its Authorized Support Contact(s)) shall promptly notify Trimble of such error and shall provide Trimble with
enough information, assistance, and cooperation to reproduce the error, including a listing of output and any other data that Trimble may
reasonably request in order to reproduce the error and operating conditions under which the error occurred or was discovered. Trimble
shall not be responsible for correcting any errors not attributable to Trimble.
2. Support Portals. Support portals with information about reporting and general availability are described below.
Offering
Support Portal*
Authorized
Support Contacts
Only?**
Cityworks
https:mycityworks.force.com
Yes
* Additional phone numbers and hours of availability for contacting Trimble with support requests may be listed in the Support
Portal.
** For any Products that do not require an Authorized Support Contact, any Authorized User of Customer may contact support.
*** Authorized Users of e -Builder Enterprise Government Edition may submit support requests by phone (866-254-1531) or email
(ebuilder-gov-support@trimble.com ). Hours of operation are Monday through Friday 8:00 AM to 6:00 PM Eastern Time. Non -urgent
and after-hours support requests should be submitted via email. All support requests submitted via email must include the following
information: 1) Authorized User name and email address, 2) Phone number, 3) Account Name, and 4) Brief description of the issue. e -
Builder Community and Salesforce are not currently available for the Government Edition.
3. Severity Priority Levels. As soon as reasonably practicable after Customer submits the relevant case information, Trimble will collect additional
information and categorize the issue into one of four classifications as set forth below in good faith. Upon Customer submission of the case
information, Trimble will use commercially reasonable efforts to issue a Response (as defined below) by the indicated target response goal set
forth below. Once the priority level is determined, Trimble will use the level of effort for resolution described below.
Priority Level*
Priority Criteria
Target Response
Goal**
Level of Effort for Resolution
P1
most urgent and impactful
% hour
Trimble and Customer will prioritize any
reasonably available resources to resolve
the situation or identify a work around.
P2
urgent and impactful, but usually has
an acceptable temporary
workaround
% hour
Trimble and Customer will prioritize any
reasonably available resources during
standard business hours to resolve the
situation or identify a work around.
P3
important, but not urgent and
impactful
4 hrs
Trimble and Customer will use generally
available resources during standard
business hours to resolve the situation or
identify a work around.
P4
a low priority, informational, or an
enhancement request
24 hrs
Trimble and Customer are willing to use
generally available resources during
standard business hours to provide
information or assistance.
* See Priority Matrix and definitions below. The main factors in determining priority level are urgency and impact. Trimble will also consider in good
faith any additional relevant facts and circumstances in consultation with Customer that may result in a mutually agreed upon change in priority
level.
** The use of the term "hour(s)" refers to business hours based on Trimble's regular business schedule, and excludes nights, weekends and locally -
observed holidays (e.g., 24 hrs equals 3 business days at 8 hrs a day). "Response" means acknowledgment of the issue via the creation of a case
number. Determination of priority level will occur as soon as practicable thereafter.
Priority matrix
Urgency Critical
High
Medium
Low
Impact
Urgency
Impact
Widespread Large Localized
P1 P1 P2
P1 P2 P2
P2
P4
Impact is a measure of the number of users,
sites, or devices affected.
Individualized
P2
P3
P3 P3 P3
P4
Definitions
Urgency is a measure of the severity of the issue
on the Customer's operations.
P4 P4
Widespread. More than three quarters of users or devices are
affected.
Large. (1) Multiple sites are affected or (2) between one-half and
three-quarters of users or devices are affected.
Localized. (1) A single site is affected or (2) less than one half of
users or devices are affected.
Individualized. A single or a small number of users or devices are
affected.
Critical. Use of Offering as a whole or core functionality is stopped
with no work around and with severe immediate impact to the
Customer's operations (e.g., outage).
High. Use of Offering as a whole or core functionality is severely
degraded or a work around is available, and with immediate impact
to the Customer's operations.
Medium. Use of Offering or any functionality is not working as
expected, and can be addressed through education, training, work
around, work order, or a future enhancement.
Low. All other requests that are not the above.
4. Additional Limitations and Conditions.
(a) Unless otherwise expressly provided by Trimble in writing, Trimble does not support: (i) use of the Offering in a manner other than as
authorized in the Agreement; (ii) conversions of Customer's databases to accommodate new hardware or software, (iii) Customer Data
debugging or manipulation, (iv) recurring support issues where Customer failed to initiate corrective actions previously recommended by
Trimble or to provide information requested by Trimble, (v) implementation, report creation, onsite support, customizations (e.g., scripting
or integration), or assistance with server migrations are not included as part of Support, but such services but may be purchased separately,
(vi) any Offering where Customer has failed to meet its obligations with respect to the Agreement, including, without limitation, as set forth
below.
(b) Customer must (i) require its personnel to obtain adequate training to operate the Offering, (H) if required by Trimble for the particular
Offering, designate Authorized Support Contacts who will submit all support cases to Trimble, (Hi) provide internet and/or network access
for Trimble when requesting support; and (iv) provide all information and assistance reasonably requested by Trimble related to the support
request.
(c) For Licensed Software not hosted by Trimble, Customer is responsible for (i) securing the server environment, local network, and system
security and protocols, including having staff qualified to assume responsibility for management administration and support for Customer's
hardware, database, and any Third -Party Materials, Dependencies, or Compatibilities, (H) maintaining regular and frequent data backups,
and recovering such data if necessary from backups maintained by Customer, (Hi) establishing a secure method of access to Customer's
network as well as maintaining security protocols for Customer's network; and (iv) incorporating Releases and any associated data
migration.
(d) If any Customer support request is subject to any of the foregoing, then Trimble reserves the right to impose support fees at its then
standard commercial time and materials rates for all such services, including pre -approved travel and per diem expenses to be reimbursed
consistent with Customer's policies. Trimble will notify Customer in advance of incurring any such fees.
Addendum 114
Supplemental Terms for Services
(Training, e -learning content, implementation, configuration, and other services)
Version 1.0 (Last Updated: April 3, 2023)
Capitalized terms not defined herein have the meanings given in the General Terms.
1. Generally. Trimble or its authorized service providers will use commercially reasonable efforts to provide Services to Customer as described
in an Order or SOW. Any changes in scope must be made in writing and approved by authorized representatives of Customer and Trimble.
2. Training and E -Learning. For any Services consisting of delivery of training or e -learning (e.g., videos, manuals, etc.), any content made
available by Trimble shall not be deemed a Deliverable (as defined below), notwithstanding anything in an Order or SOW to the contrary,
and no Intellectual Property Rights therein are assigned or transferred to the Customer. Unless an Order or Documentation states
otherwise, prepaid training and e -learning content will expire if not completed within six months from the effective date of the Order or
SOW. Trimble reserves the right to reschedule training if it determines in good faith that attendance is not sufficient or the originally
scheduled time or location are no longer feasible. If the Order states a date that Services must be completed by, such date is presented for
illustrative purposes. The actual completion date for such Services will be provided on the invoice.
3. Customer Materials. Customer shall provide Trimble with reasonable access to Customer's technical data, computer programs, files,
documentation, and/or other materials (collectively, "Customer Materials") and to Customer's resources, personnel, equipment, and
facilities to the extent necessary for the performance of Services. Client will be responsible for, and assumes the risk of any problems
resulting from the content, accuracy, completeness, competence, or consistency of Customer Materials or its personnel. To the extent that
Customer does not timely provide the foregoing access required for Trimble to perform the Services, Trimble shall be excused from
performance until such items or access are provided. Customer hereby grants Trimble a limited and revocable right to use the Customer
Materials for the purpose of performing the Services. Customer owns and will retain ownership (including all intellectual property rights)
in the Customer Materials.
4. Customer Premises. Customer shall provide Trimble with safe access to Customer's premises as reasonably required for Trimble to perform
the Services, if onsite performance of Services is needed and agreed to by Customer. Trimble personnel shall comply with the reasonable
written rules and regulations of Customer related to use of its premises, provided that such written rules and regulations are provided to
Trimble prior to commencement of the Services.
5. Customer Dependencies. Customer is responsible for taking all actions identified or described in the Agreement which are a condition for
Trimble to provide Services. Should Customer's failure to take such actions result in a delay of Trimble against a delivery schedule, or result
in additional provable costs incurred by Trimble, Trimble shall not be considered to be delayed in its obligations, and Trimble shall be
entitled to payment of such additional costs.
6. Deliverables. "Deliverable(s)" shall mean any Trimble deliverables as expressly set forth on a SOW or Order. Trimble hereby grants Customer
a worldwide, royalty -free, non-exclusive license to use the Deliverables for its internal business purposes in connection with the Offerings
associated with such Deliverables and only for the period of time that Customer has ownership or authorized use of such Offerings. Unless
expressly stated otherwise in the applicable Order or SOW, Trimble owns and will retain ownership (including all intellectual property
rights) in and to the Deliverables (excluding any Customer Materials) and any modifications, improvements, and derivative works thereof
(including to the extent incorporating any Feedback). If the parties have agreed that Trimble will assign ownership of Deliverables to
Customer, the relevant SOW must set forth the terms and conditions regarding such assignment.
7. Limited Warranty. Trimble will perform Services in a professional and workmanlike manner. If notified of a non -conformity within ten (10)
days of delivery of the applicable Services, and if Customer provides a sufficiently detailed justification to Trimble to allow Trimble to
identify the non -conforming Services, Trimble will, as its sole liability and obligation for failure to provide Services meeting this warranty,
either (a) re -perform the non -conforming Services at no additional cost to Customer, or (b) issue a credit for any Services which Trimble
identifies as non -conforming.
8. Travel Expenses. Trimble will invoice Customer for reasonable and pre -approved out-of-pocket travel expenses incurred in connection with
performing Services. Expenses may be invoiced separately from fees and may include, but are not limited to, airfare and other
transportation, lodging, and incidentals. Expenses may also include meals reimbursable per a flat per diem rate, available upon request.
9. Other Offerings. These Services Terms only apply to Services, and not to any other Offerings, even if such other Offerings are referenced in
an Order or SOW. For clarity, all such other Offerings shall not be considered a Deliverable hereunder, and the provision thereof shall be
governed by one or more separate agreements between Trimble and Customer.
10. Non -Solicitation. During the Term and for a period of 12 months thereafter, Customer, shall not, directly or indirectly, solicit, hire, engage,
or attempt to do any of the foregoing, any person who was an employee or independent contractor of Trimble who provided Services to
Customer, without Trimble's express prior written consent.
Addendum #5
Supplemental Terms for Hardware
Version 1.0 (Lost Updated: April 3, 2023)
Capitalized terms not defined herein have the meanings given in the General Terms.
1. Delivery. Delivery times for Hardware are established when an Order is received and accepted by Trimble. Trimble will use
commercially reasonable efforts to meet Customer's requested delivery dates, unless Customer is in default under the
Agreement or Trimble's performance is otherwise excused (e.g., force majeure, etc.). Late delivery is not a basis for
Customer's cancellation of any Order.
Title and risk of loss or damage to the Hardware will pass to Customer upon delivery to Trimble's shipping carrier..
Trimble will deliver any shipment FCA (Incoterms 2020) from its warehouse. Customer will pay or reimburse Trimble for all
costs of carriage, freight, insurance (if applicable), taxes, duty and other related shipping charges. Trimble may fulfill its
delivery obligations for Hardware through an Affiliate and/or authorized reseller. Trimble reserves the right to make partial
deliveries.
2. Acceptance, Inspection, Notice of Nonconformance. All Hardware will be deemed accepted by Customer upon delivery to
Trimble's shipping carrier, subject to Customer's right to inspect and reject damaged Hardware or Hardware that do not
conform to the Order within 10 days of delivery. It is Customer's responsibility to give Trimble prompt written notice of
identified damage or non-conformance to the Order. If Customer retains the Hardware without giving notice within the
designated period, it will be deemed to waive its right of rejection. The foregoing will not, however, prejudice Customer's
warranty remedies as described in the applicable Hardware Terms.
3. Limited Warranty. Unless the Hardware comes with a limited warranty that provides otherwise, Trimble warrants to
Customer, and only to Customer, that the Hardware is designed and manufactured to conform in all material respects to
Trimble's specifications and all parts are and will be free from defects in material and workmanship for a period of twelve
(12) months from date of shipment. During the warranty period, Trimble's obligations in Section 7 (Sole Remedy; Warranty
Procedure) are Customer's only and exclusive remedy for Hardware that Trimble reasonably determines does not meet the
limited warranty, and is made subject to these Hardware Terms.
4. Firmware. Trimble hereby grants Customer a personal, non-exclusive, revocable, non -assignable right to access and use
firmware solely as necessary to use the Hardware in accordance with the Documentation. During the limited warranty
period, Customer will be entitled to receive such Fixes (as defined below) to the firmware that Trimble releases and makes
commercially available and for which it does not charge separately, subject to the procedures for delivery to purchasers of
Trimble products generally. Minor Updates (as defined below), Major Upgrades (as defined below), new products, or
substantially new software releases, as identified by Trimble, are expressly excluded from this fix process and limited
warranty. Receipt of software fixes will not serve to extend the limited warranty period. "Fix(es)" means an error correction
or other update created to fix a previous software version that does not substantially conform to its Trimble specifications;
"Minor Update" occurs when enhancements are made to current features in software; and "Major Upgrade" occurs when
significant new features are added to software, or when a new product containing new features replaces the further
development of a current product line. Trimble reserves the right to determine, in its sole discretion, what constitutes a Fix,
Minor Update, Major Upgrade, new products, or substantially new software releases.
5. Non -Trimble Manufactured Products. Trimble will extend to Customer the manufacturer's warranty, if any, for all
equipment and/or software products manufactured by another manufacturer and furnished by Trimble to Customer under
such other manufacturer's brands. Customer acknowledges and agrees that Trimble shall not be responsible for separately
warranting or supporting the equipment or software products of such other manufacturers.
6. Warranty Exclusions. The foregoing Hardware limited warranty will only apply in the event and to the extent that (a) the
Hardware is properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with
the Documentation, and (b) the Hardware is not modified or misused. This limited warranty does not apply to, and Trimble
shall not be responsible for defects or performance problems resulting from (i) the combination or use of the Hardware with
hardware or software products, information, data, systems, interfaces or devices not made, supplied or specified by Trimble;
(ii) the operation of the Hardware under any specification other than, or in addition to, the Documentation; (iii) the
unauthorized installation, modification, repair or use of the Hardware; (iv) damage caused by accident, lightning or other
electrical discharge, fresh or salt water immersion or spray (outside Hardware specifications), or exposure to environmental
conditions for which the Hardware is not intended; (v) normal wear and tear on consumable parts (e.g., batteries) or (vi)
cosmetic damage. Trimble does not warrant or guarantee the results obtained through the use of the Hardware. TRIMBLE
MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO SERVICES, WHICH IF PROVIDED HEREUNDER ARE PROVIDED
"AS -IS."
7. Sole Remedy; Warranty Procedure. If the Hardware fails during the warranty period for reasons covered by this limited
warranty and Customer notifies Trimble of such failure during the warranty period, Trimble will at its option repair or replace
the nonconforming Hardware with new, equivalent to new, or reconditioned parts or Hardware or, if either of the foregoing
is commercially impractical in Trimble's determination, refund the Hardware purchase price paid by Customer (excluding
separate costs of installation, if any) upon Customer's return of the Hardware in accordance with Trimble's product return
procedures then in effect. Any repaired or replaced Hardware will be warranted for a period of thirty (30) days or the
remainder of the original warranty period, whichever is longer. Warranty service will be provided at a designated Trimble
service center or by an authorized Trimble service provider. Except as otherwise agreed by the parties, Customer shall be
responsible for all shipping charges to the designated Trimble service center or authorized Trimble service provider.
8. Determination of Warranty Applicability: Trimble reserves the right to refuse warranty services if the Hardware date of
purchase cannot be proven, if a claim is made outside the warranty period or if a claim is excluded from the warranty
pursuant to the Terms. Following Trimble's examination of Customer's claim, Trimble will notify Customer of warranty status
and the repair cost of any out -of -warranty Hardware. At such time Customer must issue a valid purchase order to cover the
cost of the non -warranted Hardware repair and return freight, or authorize return shipment of the Hardware at Customer's
expense as -is.
9. Non -responsibility for Lost Data. Trimble shall not be responsible for any modification or damage to, or loss of any
programs, data, or other information stored on any media or any part of any Hardware serviced by it or an authorized
Trimble service provider, or for the consequence of such damage or loss, e.g., business loss in the event of system, program
or data failure. It is Customer's responsibility, prior to servicing, to backup data and remove all features, parts, alterations,
and attachments not covered by warranty prior to releasing the Hardware to Trimble. The Hardware will be returned to
Customer configured as originally purchased.
10. Return of Hardware: All Hardware returns are subject to Trimble's prior written consent and must comply with its product
return (RMA) procedures then in effect. Before returning or exchanging Hardware, Customer must contact Trimble directly
to obtain an authorization number to include with the return. Customer must return Hardware to Trimble in their original
or equivalent packaging, and Customer is responsible for risk of loss, as well as shipping fees back to Trimble. Hardware
received but not eligible for return will be sent back to Customer freight collect. For approved returns, Customer will receive
credit equal to the lesser of the Hardware invoice price or its current replacement value, less any applicable charges or fees.
Addendum #6
Supplemental Terms for U.S. Public Entities
Version 1.0 (Last Updated: October 7, 2023)
Capitalized terms not defined herein have the meanings given in the General Terms and the Software Terms.
1. Scope. To the extent Customer is a public or governmental entity, these Supplemental Terms provisions apply to the extent Customer is a
public or governmental entity in the United States.
2. Intellectual Property Indemnification by Trimble. Trimble shall defend Customer from and against any claim of infringement of a U.S. patent,
U.S. copyright, or U.S. trademark asserted against Customer by a third party based upon Customer's use of the Offerings in accordance
with the terms of this Agreement, and pay any resulting settlement or final judgment. If Customer's use of any of the Offerings are, or in
Trimble's opinion are likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Trimble may, in
its sole discretion: (a) substitute for the Offerings substantially functionally similar programs and documentation; (b) procure for
Customer the right to continue using the Offerings; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and
refund to Customer the fee paid by Customer as reduced to reflect a five year straight-line depreciation from the applicable purchase
date. The foregoing indemnification obligation of Trimble will not apply: (1) if the Offerings are modified by any party other than Trimble;
(2) if the Offerings are combined with other non -Trimble products, but solely to the extent that the alleged infringement is caused by
such combination; (3) to any unauthorized use of the Offerings; (4) to any unsupported release of the Offerings; or (5) to any third -party
code, content, and/or data contained in and/or delivered with the Offerings.
3. Tax Exemption. If Customer is a tax-exempt entity and provides evidence of a tax-exempt certificate prior to executing this Agreement, then
Section 3.1 of the General Terms regarding Customer's responsibility to pay taxes shall be inapplicable.
4. No Indemnification by Customer. Section 8 (Indemnification) and the second to last sentence of Section 12.6 (Export Control) of the General
Terms shall be inapplicable.
5. Public Records Law. Customer's confidentiality obligations in Section 9 (Confidentiality) of the General Terms may be subject to applicable
public records law.
6. Limited Publicity. Provision (b) in Section 12.11 (Publicity) of the General Terms shall be inapplicable.
7. Termination for Convenience. Customer may terminate this Agreement for convenience on not less than sixty (60) days' written notice to
Trimble. If Customer terminates this Agreement under this paragraph, all fees for the Term shall immediately become due and payable.
All previously paid fees (both used and unused) shall be non-refundable and forfeited. Furthermore, all earned, but unpaid, fees for
professional services, if any, must be paid in full before the termination becomes effective.
8. Non -Appropriation of Funds. The Customer's funds for future and ongoing purchases are contingent on the availability of future
appropriations of funds. If funds are not appropriated for any payments due under this Agreement, the Customer will promptly notify
Trimble in writing and the applicable Order will terminate as of the date of the notice in accordance with Section 7 (Termination for
Convenience) above and the Customer will have no further obligation to make any payments with respect to the affected Order, provided
however that the Customer shall pay for any goods or services ordered prior to the date of the Customer's notice.
9. Piggyback. Trimble does business with many government entities whose applicable laws permit them to join an existing contract between
another governmental agency and vendor to acquire goods and services thereunder. In such circumstances and if allowable by applicable
law and contract, Customer expressly agrees to allow the other governmental agencies to acquire goods and services using this
Agreement ("Piggyback"), subject to applicable pricing of the Trimble offerings at the time of the piggyback purchase.
10. Governing Law. Notwithstanding Section 12.9 (Governing Law and Venue) of the General Terms, the Laws of the jurisdiction required by
applicable law shall exclusively govern this Agreement.
Addendum #7
Service Level Agreement; Data Security and Restoration
Version 1.0
1. Availability Service Level Agreement
For any Offering that is either (i) Software -as -a -Service or (ii) Licensed Software hosted by Trimble, the following will apply.
1.1. Target Availability. Trimble will use commercially reasonable efforts to make the Offering available with an uptime availability
(time periods during which Customer has general connectivity to the Offering) (the "Target Availability") as follows:
Offering
Target
Availability*
Cityworks
99.9%*
*Target Availability is generally for a calendar month; provided that Cityworks target availability will be calculated
on a quarterly basis.
1.2. Exclusions. The calculation of uptime will not include unavailability to the extent due to: (a) Customer's use of the Offering in
a manner not authorized in the Agreement or Documentation, (b) general Internet problems, force majeure events or other
factors outside of Trimble's reasonable control, including without limitation interruption or failure of telecommunications
or digital transmission links, hostile network attacks, network congestion, denial of service attack, (c) Customer's equipment,
software, network connections or other infrastructure, (d) any acts or omissions of Customer or any third -party that is not a
service provider of Trimble, (e) failure by Customer to pay any applicable fees under the Agreement, or (f) Scheduled
Maintenance or emergency maintenance.
1.3. Scheduled Maintenance. "Scheduled Maintenance" means Trimble's scheduled, routine, or other maintenance which (1)
occurs at such times as may be listed on Trimble's websites or Support Portal, or (2) Trimble notifies Customer with at least
two (2) days advance notice, which can be via the Support Portal, e-mail, or in the Offering. Trimble reserves the right to
schedule other maintenance periods on an as needed basis and will notify Customer in advance. Trimble will use
commercially reasonable efforts to perform Scheduled Maintenance during low usage times.
1.4. Service Credits. If there is a verified failure of the Offering to meet Target Availability in a particular month and Customer
makes a request for service credit within thirty (30) days after the end of such month, Customer will be entitled to a credit
based on the monthly fees due for the affected Offering in such month ("Service Credit"). The Service Credit will be
calculated as follows:
Service Credit = Pro Rata Fee * percentage of time that the Offering did not meet the Target Availability
The "Pro Rata Fee" means (1) for Target Availability measured monthly, one -twelfth of the total annual fee for the Offering
(excluding taxes, etc.), and (2) for Target Availability measured quarterly, one-fourth of the total annual fee for the Offering
(excluding taxes, etc). The Service Credit will be calculated to the nearest 30 -minute interval. The total Service Credits in a
month may not exceed 20% of the Monthly Fee.
Trimble will apply each Service Credit to Customer's next invoice, provided that Customer's account is fully paid up, without
any outstanding payment issues or disputes. Customer will not receive any refunds for any unused Service Credits.
1.5. Sole Remedy. Service Credits constitute liquidated damages and are not a penalty. The Service Credits set forth in this Section
are Customer's sole and exclusive remedy for any failure to meet the Target Availability.
2. Data Security and Restoration
2.1. Software -as -a -Service and Hosted License Software.
a) Trimble or its third -party hosting provider(s) shall use commercially reasonable efforts to establish and maintain
reasonable administrative, physical, and technical safeguards designed to (a) protect the security, confidentiality, and
integrity of Customer Data, (b) protect against anticipated threats or hazards to the security, confidentiality, and integrity
of Customer Data; (c) protect against unauthorized access to or use of Customer Data; and (d) protect against unlawful
processing, accidental destruction, or loss of Customer Data.
b) Trimble will use reasonable efforts to restore lost or damaged Customer Data for Offerings deployed through Trimble
hosting services or as Software -as -a -Service, as described in this paragraph, if the loss or damage was caused by Trimble.
Trimble will consult with Customer and provide information to Customer regarding the availability of backups and the
potential limitations of data restoration. Customer understands that some data loss may result upon restoration based
on the frequency and availability of backups. If Customer Data loss or damage is not caused by Trimble, Trimble will
provide support and technical assistance for data restoration subject to Trimble's availability and payment of applicable
fees at Trimble's then -current hourly rates.
2.2. On Premises Licensed Software. Trimble does not provide regular support or technical assistance for the repair or restoration
of lost or damaged Customer Data as part of support for Licensed Software not hosted by Trimble, regardless of the cause.
Assistance for restoration may be available subject to Trimble's availability and payment of applicable fees at Trimble's then -
current hourly rates.