Spectra Precision Survey Pro v5.1 - Manual (Page 3)

Software and that irrespective of any use of the words “purchase”, “sale” or like
terms hereunder no ownership rights are being conveyed to you under this Agree-
ment or otherwise.
4.Payment
You shall pay all fees associated with the Software licensed and any services pur-
chased hereunder as set forth in the applicable Order Form. All payments shall
be made in U.S. dollars within thirty (30) days of your receipt of the applicable
invoice, unless otherwise specified in writing by the Licensor Supplier. Except
as expressly set forth herein, all fees are non-refundable once paid. You shall be
responsible for all taxes, withholdings, duties and levies arising from the order
(excluding taxes based on the net income of the Licensor Supplier). Any late
payments shall be subject to a service charge equal to 1.5% per month of the
amount due or the maximum amount allowed by law, whichever is less.
5.Term of Agreement
5.1.Term. This Agreement is effective as of the Effective Date and expires at
such time as all license and service subscriptions hereunder have expired in ac-
cordance with their own terms (the “Term”). Either party may terminate this
Agreement (including all related Order Forms) if the other party: (a) fails to cure
any material breach of this Agreement within thirty (30) days after written notice
of such breach; (b) ceases operation without a successor; or (c) seeks protection
under any bankruptcy, receivership, trust deed, creditors arrangement, compo-
sition or comparable proceeding, or if any such proceeding is instituted against
such party (and not dismissed within sixty (60) days)). If you have entered into
a separate written agreement with Licensor which governs the Software and that
agreement is terminated, then this Agreement automatically terminates and you
shall no longer have any right to use the Software. Termination is not an exclu-
sive remedy and the exercise by either party of any remedy under this Agreement
will be without prejudice to any other remedies it may have under this Agree-
ment, by law, or otherwise. For clarity, even if you have entered into an Order
Form with a Licensor distributor or reseller, Licensor is a third party beneficiary
to that Order Form and has the right to terminate this Agreement as set forth in
this Section 5 (Term of Agreement).
5.2.Termination. Upon any expiration or termination of this Agreement, you
shall cease any and all use of any Software and Evaluation Software and destroy
all copies thereof and so certify to Licensor in writing.
5.3.Survival. Sections 2.4 (License Restrictions), 3 (Ownership), 4 (Payment),
5 (Term of Agreement), 6.3 (Disclaimer of Warranties), 9 (Limitation of Reme-
dies and Damages), 10 (Confidential Information), 11 (Export Compliance) and
12 (General) shall survive any termination or expiration of this Agreement.
6.Limited Warranty and Disclaimer
6.1.Limited Warranty. Licensor warrants to you that for a period of ninety (90)
days from the Effective Date (the “Warranty Period”) the Software shall operate
in substantial conformity with the Documentation. Licensor does not warrant
that your use of the Software will be uninterrupted or error-free or that any se-
curity mechanisms implemented by the Software will not have inherent limita-
tions. Licensor’s sole liability (and your exclusive remedy) for any breach of this
warranty shall be, in Licensor’s sole discretion, to use commercially reasonable
efforts to provide you with an error-correction or work-around which corrects the
reported non-conformity, or if Licensor determines such remedies to be imprac-
ticable within a reasonable period of time, to refund the license fee paid for the
Software. A Licensor Supplier other than Licensor may fulfill Licensor’s warran-
ty obligations hereunder on behalf of Licensor. Licensor Suppliers shall have no
obligation with respect to a warranty claim unless notified of such claim within
the Warranty Period.
Because the Software is inherently complex and may not be completely free of
nonconformities, defects or errors, you are advised to verify your work. Licensor
does not warrant that the Software will operate error free or uninterrupted, that
it will meet your needs or expectations, that all nonconformities can or will be
corrected, or the results obtained through use of the Software.
6.2.Exclusions. The above warranty shall not apply: (a) if the Software is used
with hardware or software not specified in the Documentation; (b) if any modi-
fications are made to the Software by you or any third party; (c) to defects in the
Software due to accident, abuse or improper use by you; (d) to Software provided
on a no charge or evaluation basis; (e) to any Third Party Software; or (f) to any
Software obtained as freeware, whether from Licensor, a Licensor Supplier or
otherwise.
6.3.Disclaimer of Warranties. THIS SECTION 6 IS A LIMITED WARRANTY AND,
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SOFTWARE
AND ALL SERVICES ARE PROVIDED “AS IS.” NEITHER LICENSOR NOR ITS
SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDER-
TAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING
BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU MAY HAVE
OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED
BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY,
SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. YOU ASSUME THE
ENTIRE RISK AS TO RESULTS AND PERFORMANCE OF THE SOFTWARE.
7.Support & Maintenance
Licensor shall provide the support and maintenance services, if any, as separate-
ly purchased by you and specified in the applicable Order Form. All support and
maintenance shall be provided pursuant to Licensor’s standard service terms
which are available upon request from Licensor. Licensor Suppliers may provide
additional support services under separate written agreement, but Licensor is
not responsible for any such support unless it is the contracting party.
8.Professional Services.
The Licensor Supplier shall provide the number of person-days, if any, of profes-
sional consulting services (“Professional Services”) purchased in the applicable
Order Form and related Statement of Work. If Licensor is providing Professional
Services, unless agreed in a separate written agreement all Professional Services
shall be provided pursuant to Licensor’s standard service terms which are avail-
able upon request from Licensor. If your Order Form is with a Licensor Supplier
other than Licensor, that party (and not Licensor) is solely responsible for pro-
viding Professional Services and Licensor has no liability related to such servic-
es.
9.Limitation of Remedies and Damages.
9.1.NEITHER LICENSOR NOR LICENSOR’S SUPPLIERS SHALL BE LIABLE
FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS,
INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL,
OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS),
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF IN-
FORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2.NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, LI-
CENSOR AND ITS SUPPLIERS’ ENTIRE LIABILITY TO YOU UNDER THIS
AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO
LICENSOR UNDER THIS AGREEMENT.
9.3.THE SOFTWARE IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MAN-
UFACTURED OR INTENDED FOR USE IN LIFE SUPPORT, MEDICAL, EMER-
GENCY, MISSION CRITICAL OR OTHER STRICT LIABILITY OR HAZARDOUS
ACTIVITIES (“HIGH RISK ACTIVITIES”). LICENSOR SPECIFICALLY DIS-
CLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK
ACTIVITIES. YOU REPRESENT AND WARRANT THAT YOU WILL NOT USE THE
SOFTWARE (OR PERMIT IT TO BE USED) FOR HIGH RISK ACTIVITIES, AND
AGREE THAT LICENSOR WILL HAVE NO LIABILITY FOR USE OF THE SOFT-
WARE IN HIGH RISK ACTIVITIES. YOU AGREE TO INDEMNIFY AND HOLD
HARMLESS LICENSOR FOR ANY DAMAGES, LIABILITIES OR OTHER LOSSES
RESULTING FROM SUCH USE.
9.4.The parties agree that the limitations specified in this Section 9 will survive
and apply even if any limited remedy specified in this Agreement is found to
have failed of its essential purpose.
10.Confidential Information.
Any software, documentation or technical information provided by Licensor (or
its agents) shall be deemed “Licensor Confidential Information” without any
marking or further designation. Except as expressly authorized herein, you will
hold in confidence and not use or disclose any Licensor Confidential Informa-
tion. You acknowledge that disclosure of Licensor Confidential Information
would cause substantial harm to Licensor that could not be remedied by the pay-
ment of damages alone and therefore that upon any such disclosure by you, Li-
censor shall be entitled to appropriate equitable relief in addition to whatever
remedies it might have at law.
11.Export Compliance
You acknowledge that the Software may be subject to export restrictions by the
United States government and import restrictions by certain foreign govern-
ments. You shall not, and shall 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 Software
or any direct product thereof: (a) into (or to a national or resident of) any embar-
goed or terrorist-supporting country; (b) to anyone on the U.S. Commerce De-
partment’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 re-
stricted or prohibited, or as to which the United States government or any agen-
cy 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) oth-
erwise in violation of any export or import restrictions, laws or regulations of any