SOFTWARE END USER LICENSE AGREEMENT FOR HEXCAL AND SERVICE UTILITIES

This End User License Agreement, including the Order Form which by this reference is incorporated herein (this "Agreement"), is a binding agreement between Hexagon Metrology Inc. ("Licensor") and the person or entity identified on the Order Form as the licensee of the Software ("Licensee").

 

LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT" BUTTON/CHECKING THE "ACCEPT" BOX ON THE ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT USE THE SOFTWARE OR DOCUMENTATION.

 

NO LICENSE IS GRANTED CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S SOFTWARE.

 

1.                  Definitions. For purposes of this Agreement, the following terms have the following meanings:

“Affiliates” means those entities controlled by or under common control. "Authorized Users" means the employees and contractors of Licensee. “Confidential Information” has the meaning ascribed to it in Section 8.

"Documentation" means user manuals, technical manuals, and Confidential Information (other than Software) to enable use of the Software to calibrate, adjust and verify coordinate measurement machines and any other materials provided by Licensor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.

"Licensee" has the meaning set forth in the preamble, and its Affiliates.

"License Fees" means the license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.

"Licensor" has the meaning set forth in the preamble, and its Affiliates.

"Order Form" means a purchase order or other order form filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee's purchase or receipt of the license for the Software granted under this Agreement.

"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

"Software" means the software programs known as HEXCAL and the Hexagon Metrology Service Utilities, for calibrating and verifying the calibration of coordinate measuring machines, and for which Licensee is purchasing a license, as it exists as of the date of the Order Form, and as expressly set forth in the Order Form.

"Term" has the meaning set forth in Section 9.

"Third Party" means any Person other than Licensee, Authorized Users or Licensor.

 

2.                  License Grant and Scope. Subject to and conditioned upon Licensee's payment of the License Fees and Licensee's strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non- sublicensable (other than to Authorized Users), limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee's Authorized Users, to:

(a)                Download, copy and install in accordance with the Documentation the Software on computers owned or leased, and controlled by, Licensee. All copies of the Software made by the Licensee:

 

(i)                 will be the exclusive property of the Licensor;

 

(ii)               will be subject to the terms and conditions of this Agreement; and

 

(iii)             must include all trademark, copyright, patent and other intellectual property rights  notices contained in the original.

 

(b)               Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee's internal business purposes.

 

3.                  Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:

 

(a)                use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;

 

(b)               provide any Third Party with access to or use of the Software or Documentation;

(c)                modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;

 

(d)               combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

 

(e)                reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

 

(f)                remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software or Documentation, including any copy thereof;

 

(g)               except as expressly set forth in Section 2(a), copy the Software or Documentation, in whole or in part;

 

(h)               rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;

 

(i)                 use the Software in violation of any federal, state or local law, regulation or rule;

or

 

(j)                 use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Licensor's commercial disadvantage.

 

4.                  Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement.

 

5.                  Compliance and Audit

 

(a)                On Licensor's written request, Licensee shall conduct a review of its use the Software and certify to Licensor in a written instrument signed by an officer of Licensee that it is in full compliance with this Agreement or, if Licensee discovers any noncompliance, Licensee shall immediately remedy such noncompliance and provide Licensor with written notice thereof. Licensee shall provide Licensor with all access and assistance as Licensor requests to further evaluate and remedy such noncompliance. If the Licensee's use of the Software exceeds the

number of copies or Authorized Users permitted under the license, Licensor shall have the remedies set forth in Section 5(c).

 

(b)               The Licensor may, in Licensor's sole discretion, audit the Licensee's use of the Software under this Agreement at any time during the Term to ensure Licensee's compliance with this Agreement, provided that (i) any such audit shall be conducted on not less than 30 days' prior notice to Licensee, and (ii) no more than one audit may be conducted in any twelve month period except for good cause shown. The Licensee shall reasonably cooperate with Licensor's personnel conducting such audits and provide all reasonable access requested by the Licensor to records, systems, equipment, information and personnel, including machine IDs, serial numbers and related information. Licensor shall only examine information directly related to the Licensee's use of the Software. Licensor may conduct audits only during Licensee's normal business hours and in a manner that does not unreasonably interfere with the Licensee's business operations.

(c)                If the audit or any of the measures taken or implemented under this Section 5 determines that the Licensee's use of the Software exceeds or exceeded the use permitted by this Agreement then Licensor shall also have the right to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to Licensee.

Licensor's remedies set forth in this Section 5(c) are cumulative and are in addition to, and not in lieu of, all other remedies the Licensor may have at law or in equity, whether under this Agreement or otherwise.

 

6.                  Collection and Use of Information.

 

(a)                Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used.

 

(b)               Licensee agrees that the Licensor may use such information for verifying Licensee's compliance with the terms of this Agreement and enforcing the Licensor's rights, including all intellectual property rights in and to the Software.

 

7.                  Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Licensor reserves and shall retain its entire right, title and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.

8.                  Confidentiality. The Software, Documentation, access codes and processes and procedures for using the Software are the confidential intellectual property and/or trade secrets of Licensor, whether or not disclosed prior to entry of this Agreement (collectively, "Confidential Information"). However, in no event shall Confidential Information include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of a confidentiality undertaking owed to Licensor; (ii) is or becomes available to the Licensee on a non-confidential basis from a third- party source, provided that such third party is not and was not prohibited from disclosing such information; (iii) was known by or in the possession of the Licensee prior to being disclosed by or on behalf of the Licensor; (iv) was or is independently developed by the Licensee without reference to or use of, in whole or in part, any information from Licensor that would otherwise qualify as Confidential Information; or (v) is required to be disclosed publicly pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction. The Licensee shall: (A) protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as the Licensee would protect its own confidential information, but in no event with less than a commercially reasonable degree of care; (B) not use the Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (C) not disclose any such Confidential Information to any person or entity, except to the Licensee’s representatives who need to know the Confidential Information to assist the Licensee, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Licensee shall be responsible for any breach of this Section 8 caused by any of its representatives. On the expiration or termination of this Agreement, the Licensee shall promptly return to the Licensor all copies, whether in written, electronic or other form or media, of the Confidential Information, or destroy all such copies and certify in writing to the Licensor that such Confidential Information has been destroyed.

9.                  Term and Termination.

 

(a)                This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until earlier/until terminated as set forth herein (the "Term").

 

(b)               Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation.

 

(c)                Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Licensor provides written notice thereof.

 

(d)               Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or

applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

 

(e)                Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee's obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Section 10(c)(ii).

 

10.              Limited Warranties, Exclusive Remedy and Disclaimer/Warranty Disclaimer.

 

(a)                Solely with respect to Software for which Licensor receives a License Fee, Licensor warrants that, for a period of one year following the license date set forth on the Order Form:

 

(i)                 any media on which the Software is provided will be free of material damage and defects in materials and workmanship under normal use; and

 

(ii)               the Software will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith.

 

(b)               The warranties set forth in Section 10(a)(i) and Section 10(a)(ii) will not apply and will become null and void if Licensee materially breaches any material provision of this Agreement, or if Licensee, any Authorized User or any other Person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this Agreement:

 

(i)                 installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Licensor in writing;

 

(ii)               modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or

 

(iii)             misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Licensor in writing.

 

(c)                If, during the period specified in Section 10(a), any Software covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to the Section 10(b), Licensor will, subject to Licensee's promptly notifying Licensor in writing of such failure, at its sole option, either:

(i)                 repair or replace the Software, provided that Licensee provides Licensor with all information Licensor reasonably requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure; or

 

(ii)               refund the License Fees paid for such Software, subject to Licensee's ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Software.

If Licensor repairs or replaces the Software, the warranty will continue to run from the initial date specified on the Order Form, and not from Licensee's receipt of the repair or replacement. The remedies set forth in this Section 10(c) are Licensee's sole remedies and Licensor's sole liability under this Agreement.

 

(d)               EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

11.              Limitation    of   Liability.    TO    THE    FULLEST   EXTENT    PERMITTED   UNDER APPLICABLE LAW:

 

(a)                IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO THE LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR  BREACHES IN SYSTEM  SECURITY, OR  FOR

ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

(b)               IN NO EVENT WILL LICENSOR'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT.

 

(c)                THE LIMITATIONS SET FORTH IN SECTION 11(a) AND SECTION 11(b) SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

 

12.              Export Regulation. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or Documentation available outside the US.

13.              US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48

C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

 

14.              Miscellaneous.

 

(a)                This Agreement shall be governed by and construed in accordance with the internal laws of the State of Rhode Island without giving effect to any choice or conflict of law provision or rule (whether of the State of Rhode Island or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Rhode Island. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted in the federal courts of the United States or the courts

of the State of Rhode Island in each case located in the city of Providence and County of Providence, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.

 

(b)               Licensor shall not be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond Licensor's reasonable control.

 

(c)                All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 14(c)).

(d)               This Agreement, together with the Order Form, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

 

(e)                  Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor's prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Licensor's prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 14(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.