Terms of Service: Trimble Ag Developer Network
Last Updated: August 27, 2015
Welcome to the Trimble Ag Developer Network provided by Trimble Navigation Limited and its affiliates (“Trimble,” “we,” “us,” or “our”). Please read these terms of service (these “Terms”) carefully as they form a contract between Trimble and you that governs your access and use of: the Trimble Ag Developer Website located at http://www.agdeveloper.trimble.com (the “Site”). If you represent and are using the Site on behalf of a company or other entity, you agree that you have the ability to bind such company or other entity to these Terms.
1. Acceptance of Terms; Changes to Terms
BY USING THE SITE OR CLICKING THE CHECK BOX INDICATING YOUR AGREEMENT TO THESE TERMS, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE THE SITE.
Please note that Trimble reserves the right to update and change these Terms from time to time in its discretion. Please check these Terms periodically for changes. Your continued use of the Site following the posting of any changes to these Terms will confirm your acceptance of those changes. A current copy of these Terms can be accessed and viewed at any time at http://www.agdeveloper.trimble.com/terms-of-service.
2. Access and use of the Site
Subject to your compliance with these Terms, you may use the Site, on a non-exclusive basis, solely in strict compliance with these Terms, any policies and any written or electronic documentation provided or made available by Trimble (“Documentation”) and all applicable laws. Trimble reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Site at any time. We may add or remove functionalities or features of the Site.
3. SDK License
The software development kit (“SDK”) may be downloaded through the Site. Your use of the SDK is subject to the terms and conditions of the SDK license located at http://www.agdeveloper.trimble.com/sdk-license (the “SDK License”). In the event of any conflict or inconsistency between these Terms and the SDK License with respect to the SDK, the SDK License will govern.
The Site contains functionality that allows you to submit ideas for software programs that you may develop by using components of the SDK (“Applications”) and to submit completed Applications for review by Trimble. Upon submission of any ideas for Applications, you agree to the Mutual Nondisclosure Agreement located at http://www.agdeveloper.trimble.com/mutual-non-disclosure-agreement (the “NDA”). In addition, the submission of completed Applications will be subject to the Mobile Application Distribution Agreement located at http://www.agdeveloper.trimble.com/mobile-application-distribution-agreement (the “Distribution Agreement”). In the event of any conflict or inconsistency between these Terms and the Distribution Agreement with respect to the submission and distribution of the Application, the Distribution Agreement will govern.
Prior to obtaining access to certain functionality on the Site, you may be required to obtain an account with Trimble (become a “Registered User”), by completing a registration form and designating a user ID and password. Until you apply for and are approved by Trimble to become a Registered User, in Trimble's sole discretion, your access to the Site will be limited to the areas of the Site, that Trimble makes available to the general public or permits its customers to make available unregistered users. When registering with Trimble you must: (a) provide true, accurate, current and complete information about yourself as requested by the Site (such information being the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Trimble may withdraw such approval at any time in its sole discretion, with or without cause.
You must keep your account and passwords confidential and not authorize any third party to access or use the Site on your behalf, unless we provide an approved mechanism for such use. You may allow your third party contractors to access the Site in compliance with these Terms solely for your benefit. You will be fully liable for any and all use of the Site by your contractors. You must contact us right away if you suspect misuse of your account or any security breach in the Site. You are responsible for all activities that take place with your account. Trimble will not be liable for any loss or damage arising from any unauthorized use of your accounts.
5. Submitted Content
If you submit files, materials, data, text images or other content (collectively, “Content”) to Trimble, you hereby grant to Trimble and its contractors a non-exclusive, perpetual, worldwide, irrevocable, transferable, sublicensable, royalty-free right, to use, modify, adapt, reproduce, store, transmit, distribute, make available, display and disclose Content posted on the Site solely to the extent necessary to provide the Site, the services in connection with the Site, or as otherwise permitted by these Terms.
You represent and warrant that: (a) you have all the rights in the Content necessary for you to grant the rights in this Section; and, (b) the storage, use or transmission of the Content doesn't violate any law or these Terms or infringe or violate the intellectual property, publicity, privacy or other rights of any third party.
You will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with these Terms, your policies, and any and all applicable laws, and regulations. Trimble will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.
You must immediately notify Trimble in writing of any unauthorized use of any account or the Site that comes to your attention. In the event of any such unauthorized use by any third party that obtained access through you, you will take all steps necessary to terminate such unauthorized use. You will provide Trimble with such cooperation and assistance related to any such unauthorized use as Trimble may reasonably request.
6. Consent to Electronic Communications and Solicitation.
By registering with Trimble, you understand that we may send you communications or data regarding the use of the Site including but not limited to (a) notices about your use of the Site, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding Trimble’s products and services, via electronic mail. We give you the opportunity to opt-out of receiving electronic mail from us by following the opt-out instructions provided in the message.
7. Suspension and Termination of Customer's Use of The Site
You may stop using the Site at any time. We reserve the right, to temporarily suspend or terminate your access to the Site or services provided through the Site at any time in our sole discretion, with or without cause, and with or without notice, without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Site or services provided through the Site for: (a) the actual or suspected violation of these Terms; (b) the use of the Site in a manner that may cause Trimble to have legal liability or disrupt others’ use of the Site; (c) the suspicion or detection of any malicious code, virus or other harmful code by you or in your account; (d) scheduled downtime and recurring downtime; (e) use of excessive storage capacity or bandwidth; or (f) unplanned technical problems and outages. If, in Trimble’s determination, the suspension might be indefinite and/or Trimble has elected to terminate your access to the Site, Trimble will use commercially reasonable efforts to notify you through the Site. You acknowledge that if your access to the Site is suspended or terminated, you may no longer have access to the Content that is stored with the Site.
Upon termination by Trimble or at your direction, we will make your Content available for download by you upon your request. You must make such request no later than 30 days following termination of these Terms or the date you stop using the Site. Trimble will have no obligation to maintain, and may delete, any data stored in your account 30 days following the termination of these Terms or the expiration of your subscription.
The following Sections will survive any termination of these Terms: 5 (Submitted Content), 7 (Suspension and Termination), 11 (Trimble Proprietary Rights), 12 (Indemnification), 13 (No Warranty), 14 (Limitation of Liability), 17 (Choice of Law and Forum), 18 (Contacting Trimble), 20 (General Provisions).
8. Acceptable Use
You must not use the Site to harm others, the Site or any services provided through the Site. For example, you must not use the Site to harm, threaten, or harass another person, organization, or Trimble. You must not: damage, disable, overburden, or impair the Site (or any network connected to the Site); resell or redistribute the Site or any part of it; use any unauthorized means to modify, reroute, or gain access to the Site or attempt to carry out these activities; or use any automated process or Site (such as a bot, a spider, or periodic caching of information stored by Trimble) to access or use the Site. In addition, you promise that you will not and will not encourage or assist any third party to:
(a) modify, alter, tamper with, repair or otherwise create derivative works of any software used in connection with or distributed through the Site;
(b) reverse engineer, disassemble or decompile the software used to provide or access the Site or attempt to discover or recreate the source code used to provide or access the Site, except and only to the extent that the applicable law expressly permits doing so;
(d) sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Site to any third party;
(e) remove, obscure or alter any proprietary rights notice pertaining to the Site;
(f) access or use the Site in a way intended to exceed usage limits or quotas;
(g) use the Site in connection with the operation of nuclear facilities, aircraft navigation, communication systems, medical devices, air traffic control devices, real time control systems or other situations in which the failure of the Site could lead to death, personal injury, or physical property or environmental damage;
(h) use the Site to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) store or transmit inappropriate Content, such as Content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (iv) store or transmit any Content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party;
(i) interfere with or disrupt servers or networks used by Trimble to provide the Site or used by other users to access the Site, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of the Site;
(j) access or attempt to access Trimble’s other accounts, computer systems or networks not covered by these Terms, through password mining or any other means;
(k) cause, in Trimble’s sole discretion, inordinate burden on the Site or Trimble’s system resources or capacity; or
(l) share passwords or other access information or devices or otherwise authorize any third party to access or use the SDK or the Site.
9. Additional Terms May Apply.
These Terms apply only to the Site. Certain Trimble products and services may be provided to you through the Site pursuant to a separate agreement (e.g., SDK License discussed in Section 4). If you obtain a product or service from Trimble that is not part of the Site and that Trimble product or service is provided without additional terms, that product or Site is provided "AS-IS" with no warranties whatsoever, express or implied, and your use of that product or service is at your own risk.
10. Third Party Sites and Content
The Site may contain features and functionalities linking you or providing you with certain functionality and access to third party content, including web sites, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole; you acknowledge that we are not responsible for such content or services. Any such activities, and any terms associated with such activities, are solely between you and the applicable third-party. Trimble shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You are solely responsible for your dealings with any third party related to the Site. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible unless the problem was the direct result of our breaches.
11. Trimble Proprietary Rights
As between Trimble and you, Trimble or its licensors own and reserve all right, title and interest in and to the Site and all hardware, software and other items used to provide the Site, other than the rights explicitly granted to you to use the Site in accordance with this Terms. All rights not explicitly granted to you are reserved by Trimble. No title to or ownership of any proprietary rights related to the Site is transferred to you pursuant to these Terms. In the event that you provide comments, suggestions and recommendations to Trimble with respect to the Site (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Site) (collectively, “Feedback”), you hereby grant to Trimble a world-wide, royalty-free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Site.
Notwithstanding anything to the contrary herein, you agree that Trimble and its affiliates may use, process, manipulate, modify, copy, publicly perform and display, compile, and create derivative works from the Content and any other data related to the Site, including, but not limited to, using such data for any internal business purpose, and for the improvement, support, and operation of the Site, and/or the development of other products or services. You hereby acknowledge and agree that Trimble and its affiliates may disclose to third parties aggregate data derived from the Content or from any other data related to the Site, so long as such aggregate data is not personally identifiable with respect to you or any Authorized Users. All data, usage data, and other data that does not identify you or any Authorized User and any data that is derived from the Content and all data, reports, derivative works, compilations, modifications and other materials created by Trimble from or with use of such data will be, in each case, the sole and exclusive property of Trimble; and you, on your behalf and on behalf of your Authorized Users, hereby assign all of your and such Authorized Users’ right, title and interest, if any, in and to such items to Trimble without any fees and without rights to future royalties.
UPON REQUEST BY TRIMBLE, YOU WILL DEFEND, INDEMNIFY, AND HOLD HARMLESS TRIMBLE AND ITS AFFILIATES, AGENTS, AND THIRD PARTIES, AND ITS AND THEIR EMPLOYEES, CONTRACTORS, OFFICERS, AND DIRECTORS FROM ALL DAMAGES, LIABILITIES, CLAIMS, AND EXPENSES, INCLUDING ATTORNEYS’ FEES, THAT ARISE FROM (A) YOUR USE OR MISUSE OF THE SITE, OR (B) INTELLECTUAL PROPERTY INFRINGEMENT BY YOUR CONTENT. TRIMBLE RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU AGREE TO COOPERATE WITH TRIMBLE IN ASSERTING ANY AVAILABLE DEFENSES. YOU MAY NOT SETTLE ANY CLAIM WITHOUT THE PRIOR WRITTEN CONSENT OF TRIMBLE IN EACH CASE.
13. No Warranty
THE SITE AND THE SDK ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY BY TRIMBLE OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, OR FITNESS FOR A PARTICULAR PURPOSE.
14. Limitation of Liability
IN NO EVENT WILL TRIMBLE, ITS SUPPLIERS OR OTHER DEVELOPERS BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OF OR INABILITY TO USE THE SITE, EVEN IF TRIMBLE, ITS SUPPLIERS OR OTHER DEVELOPERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE EXCLUSION OF DAMAGES IS INDEPENDENT OF ANY REMEDY PROVIDED UNDER THESE TERMS AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER DAMAGES ARISE FROM BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION. TO THE EXTENT THAT APPLICABLE LAW DOES NOT PROHIBIT SUCH EXCLUSIONS AND LIMITATIONS, IN NO EVENT WILL TRIMBLE’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED ONE HUNDRED DOLLARS ($100 USD) OR THE AMOUNT YOU PAID FOR THE USE OF THE SITE OR SDK, WHICHEVER AMOUNT IS LESS.
Trimble does not assume and will not have any liability arising from events beyond Trimble’s control or the control of its subcontractors, other developers, business partners or licensors, including events such as acts of God, acts of any governmental entity, acts of a public enemy, strikes, natural disasters, or failure or diminishment of power or telecommunications or data networks or services.
15. Copyright and Trademark Information
Copyright information and a current list of United States trademarks owned by Trimble is set forth at http://www.trimble.com/copyrights.aspx. Any questions concerning their use, or whether a trademark that does not appear on this list is a trademark of Trimble, should be referred to Trimble's Intellectual Property department at U.S. +1 408 481 8000.
16. U.S. Government Restricted Rights
Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in these Terms, and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14(ALT III), as applicable.
17. Choice of Law and Forum
These Terms are governed by and construed in accordance with the laws of the State of California and applicable United States federal law, without reference to "conflicts of laws" provisions or principles. The exclusive jurisdiction for any claim or action arising out of or relating to these Terms or your use of the Site will lie exclusively in, or be transferred to the courts of the County of Santa Clara and/or the Northern District of California; and you will submit to the exercise of personal jurisdiction of such courts for the purpose of adjudicating any such claim or action. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
18. Contacting Trimble
Information on how to contact Trimble may be found at http://www.trimble.com/Corporate/Contacts.aspx. Any notice or other communication given by you to Trimble regarding these Terms will be deemed given and served when personally delivered, delivered by reputable international courier requiring signature for receipt, or five business days after mailing (postage prepaid), addressed to Trimble at its notice address. Trimble’s notice address is: Trimble Navigation Limited, Attn: General Counsel, 935 Stewart Drive, Sunnyvale, CA 94085, USA.
19. Digital Millennium Copyright Act
Notice and Procedure for Making Claims of Copyright Infringement
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Trimble’s DMCA administrator the written information specified below, as required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2).
• A description of the copyrighted work that you claim has been infringed upon;
• A description of where the material that you claim is infringing is located in the Site;
• Your address, telephone number, and e-mail address;
• A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
• Your electronic or physical signature.
Trimble's DMCA administrator for notice of claims of copyright infringement on the Site can be reached as follows:
Trimble Navigation Limited
935 Stewart Drive
Sunnyvale, CA 94085
20. General Provisions
Except as otherwise specified herein, these Terms constitute the entire agreement between you and Trimble with respect to your use of the Site and supersede all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between you and Trimble with respect to use of the Site. Trimble may assign these Terms to a third party. These Terms, and any rights and licenses granted under these Terms, may not be transferred or assigned by you to a third party, except that these Terms may be assigned, without the consent of Trimble, as part of a merger, or sale of substantially all your assets. Any rights not otherwise expressly granted by these Terms are reserved by Trimble, its suppliers or other developers. The failure of Trimble to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any part of these Terms are held invalid or unenforceable by a court of competent jurisdiction that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site must be filed within one year after such claim or cause of action arose or be forever barred. The official language of these Terms is English. If there is a conflict between the English language version and any translation, the English language version will control. Any breach by a party of these Terms or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
Last Updated: August 27, 2015
Mobile Application Distribution Agreement
This Mobile Application Distribution Agreement, including all exhibits and attachments hereto (collectively, this “Agreement”) is made by and between Trimble Navigation Limited, a California, USA corporation (which, with its Affiliates, including Trimble Europe B.V., is referred to herein as “Trimble”), and you or, in the case that you represent and are providing a mobile application to Trimble on behalf of a company or other entity, that company or other entity (in either case, “Company” or “You”). This Agreement sets forth the terms under which Company will provide its mobile application to Trimble for distribution with certain Trimble devices or through Trimble’s Ag Developer Network Website (the “Site”).
BY PROVIDING A MOBILE APPLICATION THROUGH THE SITE OR CLICKING THE CHECK BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT PROVIDE A COMPANY APPLICATION TO TRIMBLE FOR USE OR DISTRIBUTION WITH A DEVICE.
1. Definitions. The following capitalized terms shall have the meanings set forth below:
1.1 “Affiliate” means a party’s parent or subsidiary company or a corporate affiliate that controls, is controlled by or under common control with such party.
1.2 “Company Application” means the machine-readable binary code version of the Company Application or Company Applications which are provided to Trimble through the Site in accordance with this Agreement, and any modifications or updates to the Company Application that Company may make available to Trimble hereunder from time to time, or that Company makes generally available.
1.3 “Company Application Service” means the Web-based service which is hosted and made available by Company to End Users accessing the Company Application through a Device.
1.4 “Device” means the TMX-2050 which is enabled by Trimble to display the Company Application and used by an End User to access the Company Application.
1.5 “End User(s)” means an end user customer of the Device.
1.6 “End User Data” means any information relating to an End User’s identity, account information, billing or credit information, usage of Web-based services including the Company Application Service or location-based information, any other personally identifying information relating to an End User, any information about another person or persons that an End User provides or that a party to this Agreement otherwise obtains in connection with an End User’s use of the Device, Company Application or Company Application Service, and any other information that, either individually or when combined with other information, could be used to derive information specific to a particular person.
1.8 “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other like proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
1.9 “ODM” means an original device manufacturer that manufactures the Device for Trimble.
1.10 “Territory(ies)” means the country or countries in which distribution of the Company Application is permitted under the applicable Launch Addendum (as defined in Section 2.1.1 below).
1.11 “Trademarks” means the trade names, trademarks, service marks, logos, domain names and other distinctive brand features of each party as owned by such party from time to time.
2. Company Applications.
2.1 License Grant.
2.1.1 Applications. Subject to the terms and conditions of this Agreement, Company hereby grants to Trimble a non-transferable, non-sublicensable (except as otherwise provided for herein), nonexclusive license during the Term to: (a) use, demonstrate, display and reproduce each of (and/or any total number of) the Company Applications to the extent necessary to exercise the right granted in (b), (b) distribute each of (and/or any total number of) the Company Applications for no cost to End Users directly or indirectly via multiple tiers of Trimble’s distribution channel (which may include Trimble customers of the Device). Company Applications may be distributed through the Site or pre-loaded on a Device. The pre-loading of a Device with Company Applications shall be pursuant to an applicable launch addendum provided by Trimble (“Launch Addendum”). The parties will work in good faith and in a timely manner with each other with respect to the implementation of Company Applications on Trimble’s Devices for distribution.
2.1.2 Documentation License and Documentation Derivatives. Subject to the terms and conditions of this Agreement Company grants to Trimble a nontransferable, non-sublicensable (except as provided for herein), nonexclusive license to reproduce, and create derivative works of: (a) Company documentation for the Company Applications, which may be provided by Company to Trimble for (i) distribution with the Company Application or (ii) insertion into Trimble written or electronic manuals or documentation related to the operation of a Device; and (b) Company Applications in the form of screen shots of Company Applications on Devices for insertion into Trimble written manuals or documentation related to the operation of Devices.
2.1.3 Sublicensing. Notwithstanding anything herein to the contrary, (i) Trimble may sublicense the licenses granted to it by Company pursuant to Section 2.1.1 to its ODMs for manufacturing; (ii) Trimble may sublicense the documentation licenses granted to it by Company pursuant to Section 2.1.2 to its vendors and suppliers, provided that such ODMs, vendors or suppliers, as the case may be, are deemed to be and subject to the same requirements as described in Section 2.1.4 with respect to Contractors.
2.1.4 Delegation to Contractors. Except as otherwise specifically set forth in this Agreement, Trimble may delegate the exercise and/or performance of all or a portion of its rights and/or obligations set forth in this Agreement to its contractors and/or ODMs (each, a “Contractor”), provided that such Contractors are each bound in writing to an agreement with Trimble where each such agreement is at least as protective of Company as this Agreement. For clarity, it is understood that Trimble need not mention Company by name in any such written agreement.
2.2 License Grant Restrictions. Trimble shall not, and shall not authorize any third party to: (a) disassemble, de-compile or otherwise reverse engineer the Company Applications or otherwise attempt to learn the source code or algorithms underlying the Company Applications absent Company’s consent to do so (except and to the extent applicable law prohibits or restricts reverse engineering restrictions); (b) create derivative works from or based on the Company Applications; (c) except as expressly set forth in this Agreement, provide, sell, license, distribute, lease, lend, or disclose the Company Applications to any third party; or (d) ship, divert, transship, transfer, export or re-export the Company Applications, or any component thereof, into any country or use it in any manner prohibited by any export control laws, restrictions, or regulations administered by the U.S. Commerce Department’s Bureau of Export Administration, the U.S. Department of Treasury’s Office of Foreign Assets Control or any other applicable government agency.
2.3 Delivery. Company will provide the Company Application with all of the information requested the app submission guidelines provided by Trimble. Trimble may display information provided by Company in the app submission guidelines (e.g., name, phone and email) in connection with the distribution of the Company Application on the Site. If the Company Application will be pre-loaded on a Device, Company shall deliver the Company Applications to Trimble for integration with the Device in the manner and timeframes as mutually agreed. For the sake of clarity, the parties acknowledge and agree that Company has no obligation to develop or deliver any Company Application and Trimble has no obligation to distribute the Company Application through the Site or integrate any Company Application into a Device, and that any such development, distribution or integration, as the case may be is at each party’s sole discretion.
2.4 Integration, Verification Testing and Approval.
Company will be responsible for development, production and verification testing of the Company Applications in accordance with applicable specifications, and for furnishing complete versions of the Company Applications complying with those specifications to Trimble. To the extent required and as agreed by Trimble, Trimble will be responsible for modifying its Device to allow End Users to access and use the Company Application through the Device.
Company will provide free access to all necessary Application Programming Interfaces (“API”s) and associated data in order to allow Trimble to integrate the Company Application with its Device and to optimize the operation and presentation of the Company Application with the Device. In addition to providing any specific materials, information or services as may be requested by Trimble, each party agrees to provide the other party with such reasonable engineering assistance or access to technical information or resources within its respective area of technical expertise relative to the Company Application or Device (as the case may be) as may be necessary or reasonable to enable the other party’s efficient performance of its integration and verification testing activities hereunder. A party’s technical assistance may be provided primarily via email and telephone.
2.5 Final Acceptance and Launch
Approval of any final release version of the Company Application as integrated with the Device or otherwise used with a Device (“Final Approval”) is in the sole discretion of Trimble. Trimble shall exercise its approval authority in good faith and within a reasonable time following delivery of the final, fully operational Company Application conforming to applicable specifications and the requirements of this Agreement. Trimble will provide Company with written notification of its Final Approval of the Company Application for distribution with a Device or distribution through the Site, as applicable. Following Final Approval, Trimble will begin distribution and implementation in accordance with the terms of this Agreement (each, “Launch” or “Launch Date”). If a Company Application will just be distributed through the Site, Trimble’s placement of the Company Application on the Site will be deemed Final Approval.
2.6. Fixes and Updates. Company will deliver all bug fixes, patches, and other updates to the Company Application, together with any related Company documentation, as soon as they become available to Trimble. Approval of any update to the Company Application will be in Trimble’s sole discretion. If Trimble receives an updated version of a Company Application and approves its use with the Device, Trimble will place the updated Company Application on the Site for distribution. If Trimble approves the updated version of the Company Application for integration and distribution with the Device, Trimble will use commercially reasonable efforts to integrate and distribute the updated version of the Company Application with the next release of Device firmware, provided that the Company Application is received no less than six (6) months prior to the firmware release. Should future versions of the Devices be enabled to accept over-the-air updates then the parties will cooperate to establish a process by which the Company Application may be updated in that manner and by which advance notice thereof is given to Trimble.
2.7 Privacy. To the extent that the Company Application or Company Application Service stores, tracks or transmits End User Data, the Company shall clearly and conspicuously notify the End Users that Company will collect, use and transmit such information and Company shall post its privacy rights policies in an easily customer-findable location (e.g., on Company’s Website home page) and note both the existence of such policy and location in the End User License Agreement, as well as on any other mutually agreed to location. Company will (in the manner described under Section 10 below) defend, indemnify and hold Trimble harmless against any liability (including reasonable attorneys' fees) arising out of Company's failure to comply with the terms of this Section 2.7.
2.8 Discontinuing Company Applications. To the extent that Company wishes to discontinue or make inoperable any Company Application previously provided hereunder, (“Discontinued Software”), Company shall provide Trimble with no less than six (6) months advance written notice of such Discontinued Software and shall continue to support the Discontinued Software during such notice period; provided, however, that Company may support the Discontinued Software for a shorter period if the decision to discontinue or make inoperable such the Discontinued Software arises from applicable law or other factors outside of Company’s control. The parties will discuss in good faith the timing for the discontinuation of any distribution of Company Applications that are licensed pursuant to this Agreement, however, Company acknowledges and agrees that where the Discontinued Software has been integrated into Device firmware Trimble shall not be required to remove or cease distribution of the Discontinued Software prior to commercial release of the next Device firmware release. Additionally, should Company cease supporting prior versions of a Company Application Trimble may notify End Users of such discontinued support.
3. Additional Responsibilities of the Parties.
3.1 Costs and Payments. Each party will be responsible for its own costs associated with the performance of its activities under this Agreement except as otherwise mutually agreed to by the parties in writing. Trimble and Company shall each retain any and all revenue generated from provision of their respective products or services. For the sake of clarity, except as expressly set forth in this Agreement, neither party shall be required to account to the other or otherwise make any payment to the other regarding the Company Applications, the Device or any revenue generated from them.
3.2 Data Collection and Reporting. Each party’s applicable privacy and security policies shall apply with respect to any End User Data or other user information collected by it. And each party shall comply with all applicable data privacy legislation in respect to its use of such data and information. Neither party will be obliged to share any End User Data it collects with the other party.
3.3 Points of Contact. Trimble and Company shall each appoint one or more of its personnel who will be the point(s) of contact for all issues concerning this Agreement (“Contact(s)”), and each shall notify the other party of its designated Contact(s) in writing. A party’s Contacts may be changed at any time upon notice to the other party.
3.4 Periodic Review Meetings. The parties’ Contacts or their designees will meet on a periodic basis during the Term for the purposes of reviewing the general business relationship and the performance by each party of its activities and obligations under the Agreement, implementing changes, business planning, sharing Product and other business information, and for such other purposes as the parties may agree. The timing, frequency and location of these periodic review meetings between Trimble and Company will be determined by the parties. Meetings may be telephonic.
4. Term and Termination.
4.1 Term. The term of this Agreement will be a period of two (2) years commencing on the Effective Date, and will automatically renew for additional one (1) year renewal periods thereafter (the “Term”), unless earlier terminated as provided in this Agreement.
(a) Either party may suspend performance or terminate this Agreement if (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after written notice; or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days.
(b) Notwithstanding the foregoing, either party may terminate this Agreement immediately upon written notice upon a breach of Sections 2.1 to 2.2 (License Grant and Restrictions), Section 5.1 (Confidentiality) or Section 6 (Trademarks), or as set forth in Section 11.5 (Change of Control).
(c) Notwithstanding anything to the contrary, in the event that the government or controlling body of any country or territory in which the Company Applications are distributed or made available imposes any law, restriction or regulation that makes it illegal to distribute or make available the Company Applications, or any portion thereof, into such country or territory, or if any such law, restriction or regulation places a substantial commercial burden on a party, then either party shall have the right to suspend the distribution and/or availability of such Company Application in such country or territory.
(d) In addition, either party may terminate distribution of a Company Application and/or this Agreement for its convenience upon not less than 60 days prior written notice to the other party.
4.3 Effect of Termination. Upon expiration or termination of this Agreement:
(a) except as otherwise set forth herein, all rights and licenses granted hereunder will immediately cease (provided that all rights granted to End Users will not be terminated);
(b) Trimble will stop reproducing, offering or distributing the Company Applications, except as set forth in Section 4.4 below); and
(c) each party shall return or destroy (and certify such destruction in writing) all copies of the Company Application (in the case of Trimble) and any other Confidential Information in its possession which it is aware and to which it has access and is reasonably able to destroy or delete (which, for the avoidance of doubt, does not include archived back-up copies which are not in live working use and which are no longer easily accessible or retrievable), including from all hard disks and memory. Neither party will be liable to the other for any damages resulting solely from termination of this Agreement as permitted hereunder.
4.4 Wind-down Period. Notwithstanding the provisions of Section 4.3 above, for a period of six (6) months following expiration or termination of this Agreement (“Wind-down Period”), Trimble shall have the continuing right to distribute all Company Applications with Devices and use the Company Trademarks in connection therewith, each in accordance with the terms and conditions of this Agreement.
4.5 Survival. The provisions of Sections 1 (Definitions), 2.2 (License Grant Restrictions), 4.5 (Survival), 5 (Confidentiality and Publicity), 7 (Proprietary Rights), 8.2 (Disclaimer), 9 (Limitation of Liability), 10 (Indemnification) and 11 (Miscellaneous Terms) shall survive expiration or termination of this Agreement.
5. Confidentiality and Publicity.
(a) Definition. “Confidential Information” is information disclosed by one party to the other party under this Agreement that is marked as confidential or would normally under the circumstances be considered confidential information of the disclosing party. Confidential Information does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was rightfully given to the recipient by another party. In addition Confidential Information does not include Company Applications that are submitted for distribution or information submitted with the app submission guidelines (discussed in Section 2.3).
(b) Confidentiality Obligations. The recipient will not disclose the Confidential Information, except to Affiliates, employees, and agents who need to know it and who have agreed in writing to keep it confidential. The recipient, its Affiliates, employees, and agents may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to discloser.
5.2 Publicity. Neither party shall make public statements about the other party, without the other party’s prior written consent, except to the extent such information is required to be disclosed under operation of law, by a court order, or by a governmental agency with jurisdiction, provided that the announcing party notifies the other party promptly in writing and cooperates with the other party, at the other party’s request and expense, to contest or limit the scope of such required disclosure.
6.1 General. Each party shall own all right, title and interest, including without limitation all Intellectual Property Rights, relating to its Trademarks. Except to the limited extent expressly provided in this Agreement, neither party grants, and the other party shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to any Trademarks of the first party; and all rights not expressly granted herein are deemed withheld. All use by a party of the other party’s Trademarks (including any goodwill associated therewith) shall inure to the benefit of owning party. No party shall challenge or assist others to challenge the Trademarks of the other party (except to protect such party’s rights with respect to its own Trademarks) or the registration thereof by the other party, nor shall either party attempt to register any Trademarks or domain names that are confusingly similar to those of the other party.
6.2 License to Company Trademarks. Subject to the terms and conditions of this Agreement, Company grants to Trimble a limited, nonexclusive and non-sublicensable (except as otherwise provided for herein, e.g., Section 2.1.4) license during the Term to use and display those Company Trademarks provided by Company to Trimble (whether as part of the Company Application or otherwise), solely for the purposes expressly set forth in this Agreement as well as for advertising and marketing the Company Applications on Devices, subject to any restrictions listed in each Launch Addendum.
7. Proprietary Rights.
(a) Trimble acknowledges that, as between the parties, Company (and/or its licensors) retains all right, title and interest, including without limitation all rights in copyrights, trademarks, trade secrets, patents and knowhow, in and to the Company Applications and the Company Trademarks. Trimble has, and shall acquire, no rights in the foregoing except those expressly granted by this Agreement. Company shall not be restricted from selling, licensing, modifying, or otherwise distributing the Company Applications and/or the Company Trademarks to any third party.
(b) Company acknowledges that, as between the parties, Trimble (and/or its licensors) retains all right, title and interest, including without limitation all rights in copyrights, trademarks, trade secrets, patents and know-how, in and to the Device and the Trimble Trademarks. Company has, and shall acquire, no rights in the foregoing except those expressly granted by this Agreement. Except as set forth in this Agreement, Trimble shall not be restricted from selling, licensing, modifying, or otherwise distributing the Device and/or the Trimble Trademarks to any third party.
8. Representations, Warranties and Disclaimer.
8.1 Representations and Warranties. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement, and that the execution and delivery of this Agreement, and the performance of its obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which such party or any of its Affiliates are a party or violate any rights of any third parties arising therefrom. Company warrants that the Company Application(s) will operate substantially in accordance with and conform to its/their applicable specifications when used with the Device and in accordance with Company’s documentation for the Company Applications (as delivered to Trimble). Company further represents and warrants that it has and will maintain throughout the Term all rights, authorizations and licenses that are required with respect to the Company Application and any Company content or services, and that the their use, distribution, sale and license, do and shall continue to comply with all applicable national, federal, state, provincial and local laws, rules and regulations in the Territories.
8.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EITHER EXPRESS OR IMPLIED, AND EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
9. Limitation of Liability.
9.1 Limitation on Indirect Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE 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 THE PARTY IS AWARE OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, AND EVEN IF ANY LIMITED REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9.2 Exceptions to Limitations. The preceding limitations of liability do not apply to (a) a party’s breach of its confidentiality obligations, (b) a party’s indemnity obligations under this Agreement, or (c) to any liabilities that cannot be excluded or limited by applicable laws, such as in the event of statutorily mandated liability (including liability under applicable product liability law) or in the event of personal injury arising from a party’s gross negligence or willful misconduct.
10.1 By Company. Upon the request of Trimble, Company will at its own expense defend any third party lawsuit or proceeding brought against Trimble based upon or otherwise arising out of: (a) any breach or claimed breach of the first sentence of Section 8.1; (b) any claim in a Territory that the Company Applications or associated services provided by Company, Company Trademarks, or Company’s server-side technology used to deliver a Company Application to a Device (if applicable) infringe or misappropriate any Intellectual Property Right of such third party, or (c) personal injury or property damage arising from the use, sale or distribution of the Company Application or associated services provided by Company; and will indemnify and hold Trimble harmless from and against any and all costs, expenses, losses, liability and damages (collectively, “Damages”) incurred as a result thereof. Company shall have full control over and authority over the defense, provided that it shall not settle any claim without Trimble’s prior written consent if the settlement requires the Trimble to take any action, refrain from taking any action, or admit any liability. If Company does not diligently pursue resolution of any such claim or provide Trimble will reasonable assurances that it will do so, Trimble may defend against the claim at Company’s expense without limiting its other rights and remedies hereunder. In addition, Trimble may join in the defense with its own counsel at its own expense.
Notwithstanding the foregoing, in no event shall Company have any obligations or liability under this Section 10.1 arising from: (i) Trimble’s breach or claimed breach of the first sentence of Section 9.1, (ii) modifications of the Company Applications or the Company Trademarks by any party other than Company or combination of the Company Applications or the Company Trademarks with any other software or products if the claimed infringement or misappropriation would not have occurred but for such modifications or combination; and (iii) third party claims and associated Damages to the extent that they arise from Trimble’s negligence or willful misconduct.
10.2 Distribution Remedy. If any Company Application or Company Trademark furnished under this Agreement: (i) is held to constitute an infringement and its use enjoined; or (ii) in Company’s good faith opinion or, in the case of a Company Trademark, in Trimble’s good faith opinion, is likely to become the subject of a claim of intellectual property infringement then Company or Trimble, as the case may be, shall provide written notice indicating the affected or potentially affected Company Application, or Company Trademark to the other party, and, at Company’s own expense and option (as relates to options (a) and (b) below), Company may: (a) procure for Trimble the right to continue using the affected or potentially affected Company Application or Company Trademark; (b) replace or modify the affected or potentially affected Company Application or Company Trademark with a functional, non-infringing, substantially equivalent version, where the parties agree that this indemnity will extend to any such replacement or modified version; or (c) terminate the affected license(s) granted under this Agreement only for those jurisdictions where the use of the affected or potentially affected Company Application or Company Trademark constitutes or allegedly constitutes an infringement.
11. Miscellaneous Terms.
11.1 Independent Development. The parties acknowledge and agree that this Agreement shall not preclude a party from independently developing and marketing products or services involving technology or ideas similar to those disclosed, provided that the receiving party does not violate any of its obligations under this Agreement in connection with such activities. The parties agree that nothing in this Agreement prohibits competition of the parties in the marketplace.
11.2 Notices. Any notice which may be or is required to be given under this Agreement must be in writing and addressed to the other party. Notice will be deemed to have been received: a) when delivered personally, b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or c) when verified by written receipt if sent by reputable international courier or overnight courier with written verification of receipt. Notices to Trimble should be sent to Trimble Navigation Limited, Attn: General Counsel, 935 Stewart Drive, Sunnyvale, CA 94085 USA. Either party may change its notice address by written notice to the other party.
11.3 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, failure or diminishment of power or of telecommunications or data networks or services or Internet disturbance) that was beyond the party’s reasonable control, provided that the non-performing party promptly notifies the other party of the force majeure event and acts diligently to remedy the delay or failure.
11.4 Assignment. The rights and obligations of each party under this Agreement may not be transferred or assigned directly or indirectly without the prior written consent of the other party; except that either party may assign its rights and obligations hereunder, in whole or in part, (i) to an Affiliate, or (ii) in the event of a sale of all, or substantially all of such party's assets related to this Agreement, whether by merger, reorganization, operation of law or otherwise, provided that such assignee or transferee assumes or is otherwise fully bound by all of the obligations of the assigning party under this Agreement and provides written notice of such assignment to the other party. An assigning party shall give prompt written notice of the permitted assignment to the other party. Any attempt to assign this Agreement other than as permitted above will be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto.
11.5 Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction), (a) the party experiencing the change of control will provide written notice to the other party within 30 days after the change of control, and (b) the other party may immediately terminate this Agreement any time between the change of control and 30 days after it receives the written notice in subsection (a) of this Section 11.4.
11.6 No Waiver; Severability; No Agency; No Third-Party Beneficiaries. Failure to enforce any provision will not constitute a waiver. If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose and will not affect the validity or enforceability of the remaining provisions of this Agreement. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture. There are no third-party beneficiaries to this Agreement.
11.7 Governing Law; Dispute Resolution. This Agreement and any dispute, controversy, or claim arising out of or in connection with this Agreement (a “Dispute”) will be governed by and construed in accordance with the laws of the State of California, USA, without reference to conflict of laws and provisions or principles or the United Nations Convention on Contracts for the International Sale of Goods. In the event of Dispute, the parties agree to work together in good faith to resolve the matter internally by reference to their respective senior management promptly following written notice given by any party to the other party. If the parties are unable to internally resolve the dispute within 30 days after such notice, either party may submit such dispute to the International Centre for Dispute Resolution (“ICDR”) of the American Arbitration Association (“AAA”) and shall be finally settled under the Rules of Arbitration of the AAA in effect at the time of applying for arbitration. The place of arbitration will be San Francisco, California. The arbitration tribunal will comprise one (1) arbitrator. The language to be used in the arbitral proceedings will be English. The arbitrator’s award will be final and binding and enforceable in any court of competent jurisdiction. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence, without prejudice, however, to the right to a party to submit petition and documents to a judicial court to obtain an interim relief or to enforce the arbitral award. The foregoing notwithstanding, neither party will be precluded from seeking interim relief (including, but not limited to, interlocutory injunctive relief) in any court of competent jurisdiction. After the institution of the arbitration, however, any request for interim relief must be first presented to the arbitration tribunal. Jurisdiction and venue in any action for interim relief will lie exclusively in, or be transferred to, the courts of the City and County of San Francisco, California and/or the United States District Court for the Northern District of California. Each party hereby submits, consents, and agrees not to contest such jurisdiction and venue. The prevailing party in any legal proceeding brought by one party against the other party in a Dispute shall be entitled to recover its legal expenses including, but not limited to, the costs of any court or arbitration proceeding and reasonable attorneys’ fees.
11.8 Entire Agreement; Amendments; Counterparts. This Agreement is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. Any amendment must be in writing and expressly state that it is amending this Agreement. The parties may execute this Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.
11.9 Official Language. The official language of this Agreement is English. For purposes of interpretation, or in the event of a conflict between English and versions of this Agreement in any other language, the English language version shall be controlling.
EXHIBIT A – Company Applications and Device Requirements
In addition to the requirements set forth in the body of this Agreement the following terms set forth in this Exhibit A will apply to each Company Application.
1. Company Applications and Requirements:
(b) Company shall ensure that the End User License Agreement for the Company Application Service includes at a minimum the terms set forth in Attachment 1 to Exhibit A below.
(c) Company shall further ensure that Company’s contact information be displayed in each Company Application and displayed on the Company Application Service detail page in order to make it available to End Users for customer support purposes.
(d) Where Company specifies a specific version of a Company Application to be distributed in a certain Territory, Company shall be solely responsible for translation of the Company Application and associated documentation into the local language, and for all costs in connection therewith.
2. Devices and Requirements
(a) Trimble shall distribute the approved Company Applications via the following distribution methods: Trimble shall preload the Company Applications on the Devices and after preload, an icon representing each Company Application will appear on the Device display, or Trimble will distribute the Company Application through the Site.
(b) Branding on the hardware (including user interface) of the Devices will be determined by Trimble, and will not include any Company branding or Company Trademarks, unless specifically agreed to in writing by the parties.
3. Additional Terms
(a) Limitations. Company acknowledges that preload by Trimble of a Company Application will be limited to installation by Trimble of the Company Application, and shall not involve launch or activation of the Company Application Service. End User selection on the Device of an icon representing an already preloaded Company Application will effect launch/activation of the Company Application Service by enabling Internet access via the Device modem. Company will remain solely responsible for operation and maintenance of the Customer Application Service.
(b) Coverage and Data Transmission. Company acknowledges that an End User’s use of the Company Application via a Device is dependent on the availability and coverage of wireless networks and the availability of the Internet, which are owned and operated by third parties. Wireless coverage areas are approximate and do not cover significant portions of the United States and/or other countries. The accessibility of the Company Application and thus the Company Application Service is conditioned upon the availability of the wireless network and positioning system with which the Devices are designed to operate. Wireless networks and coverage areas may be interrupted, terminated or restricted or the quality of the transmission may be diminished at any time. Actual coverage and operation of the Company Application may depend on system availability and capacity, system and equipment upgrades, repairs, maintenance, modifications and relocation, terrain, signal strength, structural conditions, weather and atmospheric conditions, governmental regulations, acts of God and other conditions beyond Trimble’s reasonable control. Trimble will not be responsible for the unavailability, termination or performance degradation of or limits in wireless networks, wireless coverage, positioning systems or the Internet which may affect use of Company’s Application Service by an End User.
(c) Support. Company is solely responsible for customer care and support of End Users using the Company Application Service and Company Application, and acknowledges and agrees that Trimble shall have no responsibility to support End Users in connection with their use. Company shall provide such End Users support for Company Applications and the associated Company Application Service as is made available to users of the Company Application Service generally, and shall do so in a timely and workmanlike manner. Further, during the Term and any Wind-down Period Company shall provide Trimble with direct technical assistance and support services for the Company Application as may be necessary or appropriate to enable continued interoperability of the Company Applications with the Devices.
Without limiting the foregoing, Company’s support for the Customer Application and Customer Application Service will include the following:
(i) Telephone and Email. Company will provide 24 hours a day/7 days a week telephone assistance and email assistance at for general advice and technical support, as well as technical assistance and remediation for operational issues as further described below;
(ii) Service Problems. Company will use best efforts to promptly correct all Company Application and Company Application Service operational problems that are reported by Trimble or of which Company otherwise becomes aware;
(iii) Monitoring. Company will monitor Company’s servers and network environment through which Company furnishes the Company Application Service and Company Application twenty-four (24) hours a day and seven (7) days a week by trained personnel and automated monitoring systems. Appropriate personnel from Company and Trimble will be notified if there are errors in the Company Application Service, Company Application or supporting systems that may adversely affect End User access and use of the Company Application and Company Application Service, and in any event Company shall notify Trimble promptly if at any time there is a failure of service availability.
(iv) Downtime. Company will use best efforts to inform Trimble of any Company Application Service outages or downtime promptly and, to the extent possible, in advance. From time to time, Company may schedule downtime periods in which maintenance to the Company Application Service or associated servers and network is performed. Planned upgrades and maintenance shall be detailed to Trimble, and Company will provide Trimble with at least seven (7) days prior written notice of any such planned outage. Such notice will be provided to End-Users in a designated location in the Company Application Service user interface and shall also be sent via email to Trimble’s designated representative. Such notice shall set forth the planned completion time for the maintenance performed during the Scheduled Downtime. Company shall use its good faith efforts to schedule and perform scheduled downtime on days and times appropriate for the global region being served.
Attachment 1 to Exhibit A
Minimum Company Application End User License Agreement Terms
1. Acknowledgement: Company and the End User of the Company Application and Company Application Service must acknowledge that the EULA for the Company Application and Company Application Service is concluded between the Company and the End User only, not with Trimble; and that the Company, not Trimble, is solely responsible for the Company Application or Company Application Service and their content.
2. Scope of License: The license granted to an End User for use of the Company Application and Company Application Service must be limited to a non-transferable license to use the Company Application and Company Application Service on any applicable device that the End User owns or controls.
3. Maintenance and Support: The Company must be solely responsible for providing any maintenance and support services with respect to the Company Application and Company Application Service, as specified in the EULA, or as required under applicable law. The Company and the End User must acknowledge that Trimble, as a third party licensee, has no obligation whatsoever to furnish any maintenance and support services with respect to the Company Application and Company Application Service.
4. Warranty: The Company must be solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. The EULA must provide that, Trimble will have no warranty obligation whatsoever with respect to the Company Application and Company Application Service, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the Company’s sole responsibility.
5. Product Claims: The Company and the End User must acknowledge that the Company, not Trimble, is responsible for addressing any claims of the End User or any third party relating to the Company Application and Company Application Service or the End User’s possession and/or use of the Company Application and Company Application Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Company Application or Company Application Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. The EULA may not limit the Company’s liability to the End User beyond what is permitted by applicable law.
6. Intellectual Property Rights: The Company and the End User must acknowledge that, in the event of any third party claim that the Company Application or Company Application Service or the End User’s possession and use of them infringes that third party’s intellectual property rights, the Company, not Trimble, shall be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. Company Name and Address: The Company must state in the EULA the Company’s name and address, and the contact information (telephone number; E-mail address) to which any End User questions, complaints or claims with respect to the Company Application and Company Application Service should be directed.
Last Updated: August 27, 2015
Mutual Nondisclosure Agreement
This Mutual Nondisclosure Agreement (this “Agreement”) is between Trimble Navigation Limited (“Trimble”) and you or, in the case that you represent and are providing application ideas on behalf of a company or other entity, that company or other entity (in either case, “Company” or “You”). Trimble and Company are each a “Party” and collectively the “Parties.”
BY SUBMITTING AN APPLICATION IDEA (INCLUDING ASSOCIATED INFORMATION) TO TRIMBLE THROUGH THE TRIMBLE’S AG DEVELOPER WEBSITE OR CLICKING THE CHECK BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT PROVIDE ANY APPLICATION IDEAS INFORMATION TO TRIMBLE.
The Parties desire to assure the protection and preservation of the confidential and/or proprietary nature of information, which may be disclosed or made available to each other for the limited purpose of internally evaluating, discussing and pursuing a prospective business relationship concerning the potential distribution of an application in connection with the TMX-2050 (the “Purpose”). In the course of the Parties’ discussions relating to the Purpose, the Parties expect that each is or may become a recipient of the other Party’s Confidential Information, as defined below. The Parties intend by this Agreement, among other things, to limit the manner and extent to which each recipient may use or disclose the other Party's Confidential Information.
1. Confidential Information. "Confidential Information" means any non-public information or material relating to the existing or prospective business and/or technology of a Party, its Affiliates (defined below), or third party commercial partners. Confidential Information includes, but is not limited to, a Party’s product and roadmap information, business and marketing plans, financial/pricing information, employee or contractor information, customer and vendor related data, strategies, plans, software, techniques, drawings, designs, processes, specifications, technical data, research and development, inventions, intellectual property and know-how. Each disclosing Party shall affix or incorporate in any written Confidential Information it discloses a statement identifying the information as the disclosing Party's Confidential Information, such as "[name of Party] Confidential Information" or words of like meaning. If the Confidential Information is orally disclosed, the disclosing Party must indicate the confidential nature of the information at the time of disclosure and confirm in writing, that such information was confidential and proprietary within thirty (30) days of making such oral disclosure. Notwithstanding the foregoing, Confidential Information shall be deemed to include information that would reasonably be understood to be of a confidential nature, given the circumstances surrounding the disclosure and nature of the information.
2. Obligations of Confidence. Except as expressly permitted or further restricted by Section 3 below, each Party agrees as recipient of a disclosing Party's Confidential Information that it will: (a) not disclose such Confidential Information to any third parties, and (b) exercise the same degree of care to protect such Confidential Information from any possession, use or disclosure not expressly permitted by this Agreement, that the recipient Party generally uses to protect its own information of similar nature, but no less than a reasonable standard of care.
3. Permitted Use and Disclosure. Each disclosing Party's Confidential Information may be possessed, used and disclosed by the recipient Party only as follows:
a. Possession and Use: The recipient Party may possess, use and reproduce such Confidential Information solely for the Purpose defined above. The Purpose shall not include disclosure except as expressly permitted below. Recipient shall not use the Confidential Information for any other purpose. Recipient shall not disassemble, decompile or otherwise reverse engineer any samples, prototypes, software or other tangible objects provided by the disclosing Party hereunder. If the recipient Party is provided with a copy of the disclosing Party’s software/firmware or hardware products, recipient Party may use and operate such products solely for its own internal testing and evaluation regarding the Purpose. Any information derived from testing and evaluating disclosing Party’s products will be deemed Confidential Information, and the sole property, of the disclosing Party.
b. Disclosure: The recipient Party may disclose such Confidential Information to its, or its Affiliates’, employees, legal and financial advisors, and consultants on a strict "need to know" basis and solely for the Purpose, provided that each such person to whom such disclosure is made is notified of the confidential nature of the disclosure and is under an obligation to hold the Confidential Information in confidence under terms and conditions at least as restrictive as the terms and conditions of this Agreement. “Affiliate” means a Party’s parent or subsidiary company or a corporate affiliate that controls, is controlled by or under common control with such Party. Recipient Party shall be responsible for any breach by its Affiliates of the terms set forth in this Agreement.
c. Legally Required Disclosure: Disclosure of any Confidential Information by a Party hereunder shall not be precluded if such disclosure is required by the recipient Party pursuant to court or administrative order, but only to the extent required and provided that the recipient in each instance before making such disclosure first (i) promptly upon receipt of such order notifies the other party of such order; and (ii) reasonably cooperates with the other Party in making, if available under applicable law, a good faith effort to obtain a protective order or other appropriate determination against or limiting disclosure or use of the Confidential Information, at no cost to the recipient Party.
4. Return or Destruction of Confidential Information. Upon the earlier of: the expiration of this Agreement or the request (at any time) of the disclosing Party, the recipient Party shall, at the disclosing Party’s option, either: (a) promptly destroy all copies of the written Confidential Information in its and its representatives possession and confirm such destruction to the disclosing Party in writing, or (b) promptly deliver to the disclosing Party all copies of the written Confidential Information in its and its representatives’ possession.
5. Exceptions to Confidentiality. Notwithstanding any other provisions of this Agreement, each Party acknowledges that Confidential Information shall not include any information which:
a. is now or becomes part of the public domain through no fault or omission of the recipient Party;
b. is already known by the recipient Party prior to the disclosure without restriction on disclosure;
c. is lawfully received, without obligation of confidentiality, by the recipient Party from others; or
d. is independently developed by or for the recipient Party without use of or reference to the disclosing Party’s Confidential Information.
6. Right to Disclose; No Other Warranties. Each Party represents that it has the right to disclose all Confidential Information provided under this Agreement. Except for the foregoing, the Parties agree that the Confidential Information provided by either Party to the other Party is provided “as is.” No other representations or warranties with respect to Confidential Information, either express or implied, are made by either Party.
7. Term; Term of Confidentiality. This Agreement shall be effective as of the date You accept the Agreement and shall continue for a period of one (1) year thereafter unless terminated earlier by written notice from one Party to the other. Either Party may terminate this Agreement at any time with or without cause upon thirty (30) days written notice to the other Party. Notwithstanding the expiration or termination of this Agreement, all provisions of this Agreement relating to the rights and obligations concerning Confidential Information disclosed prior to the expiration or termination of this Agreement shall continue for a period of three (3) years from the date of expiration or termination of this Agreement; provided, however, that any trade secret information disclosed hereunder by a disclosing Party (including, without limitation, Trimble’s technical information and information related to Trimble’s proprietary software, interfaces, and systems architecture and any software or software development kits) shall be treated as Confidential Information indefinitely until it becomes part of the public domain through no act or omission of recipient Party.
8. Disclaimers. Nothing in this Agreement shall operate to create or transfer an ownership or other interest in any Confidential Information, nor require the disclosure by a disclosing Party of any of its Confidential Information, nor restrict, inhibit or encumber any disclosing Party's right or ability to dispose of, use, distribute, disclose or disseminate in any way its own Confidential Information. Neither party acquires any patent, copyright, mask work or trademark rights under this Agreement. Nothing herein shall obligate either Party to (a) enter into any business arrangements or agreements with the other Party, or (b) reimburse the other Party for costs and expenses for any effort expended by such Party. Each Party shall bear its own costs and expenses in connection with this Agreement and the Purpose.
9. Independent Development. The Parties acknowledge and agree that this Agreement shall not preclude a Party from independently developing and marketing products or services involving technology or ideas similar to those disclosed, provided that the receiving Party does not violate any of its obligations under this Agreement in connection with such activities. The Parties agree that nothing in this Agreement prohibits competition of the Parties in the marketplace.
10. Miscellaneous. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf. The recipient Party acknowledges that remedies at law may be inadequate to protect the disclosing Party against any actual or threatened breach of this Agreement by the recipient Party or its representatives and, without prejudice to any other rights and remedies otherwise available to the disclosing Party, recipient Party agrees to the granting of injunctive or other equitable relief in the disclosing Party’s favor, without proof of actual damages or the requirement of posting a bond or other security. Each Party certifies and warrants that such Party will not export, directly or indirectly, the other Party's Confidential Information or any portion thereof in violation of any relevant law or regulation, including without limitation any law or regulation of the United States government or any agency thereof. Should any provision of this Agreement be deemed illegal or otherwise unenforceable, that provision shall be severed and the remainder of this Agreement shall remain in full force and effect. Neither Party may assign or otherwise transfer its rights, duties or obligations under this Agreement to any other person or entity, in whole or in part, without the prior written consent of the other Party. This Agreement binds and inures to the benefit of the Parties and their permitted successors and assigns. This Agreement shall be governed by the laws of the State of California, U.S.A., without reference to conflict of laws principles or provisions. No waiver or modification of this Agreement will be binding upon either Party unless made in writing and signed by a duly authorized representative of each Party. This Agreement contains the sole and entire agreement between the Parties related to the subject matter hereof, and supersedes all prior and contemporaneous understandings and agreements relating thereto.