BY INSTALLING, COPYING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE PRODUCT OR DOCUMENTATION, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU SHOULD NOT PROCEED WITH USING OR COPYING THE PRODUCT OR ANY ASSOCIATED DOCUMENTATION.
“You” will refer to the entity that is the licensee of the Product under this Agreement. “Authorized Users” are limited to Your employees or Approved Contractors who are authorized by You to exercise Your rights to use the Product as granted by this Agreement. “Approved Contractors” are consultants or other independent contractors under contract with You that (a) are performing services for You that require their use of the Product, (b) that have a written agreement with You whereby they agree to abide by the same terms and conditions of this Agreement that apply to You, and (c) are not engaged in the business of developing or selling products or services that are competitive with TerraGo’s products and services. Individuals signing on behalf of an entity represent and warrant to TerraGo that they have the authority to bind the entity that they represent.
1. GRANT OF LICENSE. Subject to Your compliance with the terms of this Agreement and applicable law, TerraGo grants You a non-exclusive, nontransferable, revocable, limited license to access, install and use the Product and Documentation during the Subscription Term (defined in Section 2 below), solely for Your business purposes consistent with the terms of this Agreement, the Documentation and any limitations on the TerraGo website. The scope of Your rights to use the Product and Documentation will depend on which of the following categories of license rights You have acquired, as specified in Your Order:
1.1. “Named User License” means that You will have the right to install the Product on one (1) server on Your network that will permit the number specified in Your Order of named and authorized users to connect remotely to the Product and interact with the Product through desktop devices via Internet browser or mobile devices operating TerraGo’s proprietary mobile application called Terrago Edge (the “App”) (up to 3 such desktop/ mobile devices per named user). Users become authorized to interact with the Product through the Product’s settings and through the App’s authentication process.
1.2 “Trial Subscription" means that You will have the same rights to the Product and Documentation as a Named User License, but the Product cannot be used for any productive or commercial purpose, except if the Trial Subscription is paid. Such Trial Subscription may be paid or unpaid. If You do not opt to purchase an ongoing subscription to the Product and Documentation at the end of the trial period authorized by TerraGo, any files (without limitation) created that relate in any manner to Your use of the Product or Documentation must be either returned or destroyed, and You agree to provide a signed affidavit to TerraGo stating that You have either returned or destroyed each Product and Documentation. Any further distribution of the Product or Documentation by You is strictly prohibited. The right to use trial versions of the Product is limited to the Trial Subscription term permitted by TerraGo, and only for the limited purpose of evaluating such Product and establishing Your desire to purchase a subscription to such Product. By ordering a Trial Subscription, You represent that You are a bona fide potential customer of such Product and are evaluating whether to license such Product for deployment in Your own business and not for competitive or other purposes.
2. SUBSCRIPTION TERMS. The time period that You are authorized to use the Product (the “Subscription Term”) is specified in Your Order and is limited in duration.
2.1. Subscription Terms.
(a) The limited time period that You are authorized to use the Product (the “Subscription Term”) will commence on the date that You enter into an Order and will continue for the initial Subscription Term specified in the relevant Order, except as terminated earlier in accordance with this Agreement.
(b) Renewal. Except as otherwise specified in the applicable Order, the subscription for the Product shall automatically renew for additional periods equal to the expiring Subscription Term or one (1) year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the applicable Subscription Term.
(c) Payment Terms. Upon submission of Your Order, you will pay the combined subscription and, if applicable, for the initial Subscription Term, or if applicable the fee for the Trial Subscription. Thereafter, except for Trial Subscriptions, TerraGo will invoice you annually in advance for subsequent Subscription fees, which you will pay within 30 days following the date of the invoice. You agree that, during the Subscription Term, you may only terminate this Agreement in accordance with Section 5 of this Agreement, and your obligation to make payment does not depend on your continued use of the Product.
2.2 Trial Subscriptions. If You are being provided access to the Product for trial evaluation purposes, the trial period shall be the period specified in your trial Order; provided, however that the trial period may be extended up to ninety (90) days upon written authorization by TerraGo.
3. ADDITIONAL LIMITATIONS. Under no circumstances may You use the Product in order to create a product that competes with the Product or any other product or service of TerraGo. Without prior written consent from TerraGo, which it may withhold in its sole discretion, You may not (a) modify, adapt, reverse engineer, decompile, disassemble, de-encrypt, copy, make derivative works of, translate the Product or Documentation or otherwise attempt to discover the source code of the Product except to the extent that such actions are necessary for You to exercise your express subscription rights under Section 1, (b) rent, lease, lend, transfer, assign or redistribute the Product or Documentation or Your subscription to the Product or Documentation (except if you have a third party host the Product solely for your benefit), or (c) host the Product for third parties without prior written consent from TerraGo. The Product, including (without limitation) any component parts, are licensed as one (1) product. The Product may include copy protection technology to prevent the unauthorized copying of the Product or may require original media for use of the Product. You may not make copies of the Product or any components of the Product, or circumvent (or attempt to circumvent) any copy protection technology included in the Product. All rights not expressly granted to You are reserved and retained by TerraGo. This Agreement does not grant You any Intellectual Property Rights (defined below) in the Product. Any rights that You acquire with regard to the Product and Documentation are through a license and not through a sale of the Product or Documentation to You.
4. THIRD PARTY SOFTWARE. TerraGo represents that it currently has in place, or will obtain, a license to use any third party software that is embedded in the Product, and TerraGo grants a sublicense to You to use the third party software during the Subscription Term pursuant to the terms of this Agreement and any third party license terms.
5. TERMINATION. In addition to expiration of any Subscription Term in accordance with Section 2.1 and 2.2, this Agreement may be terminated as set forth in this Section 5 or Section 8 below.
5.1 If either party defaults in the performance of any material obligations under this Agreement, and such default is not corrected within thirty (30) days after receipt of written notification of the default from the non-defaulting party, then the non-defaulting party may terminate this Agreement immediately upon delivery of the written notice of termination to the defaulting party.
5.2 TerraGo may terminate this Agreement immediately if You materially violate Section 1 or Section 3 of this Agreement.
5.3 This Agreement shall terminate, immediately and without notice, if You: (a) file in any court pursuant to any statute of the United States or any individual state, a petition in insolvency or for the appointment of a receiver or trustee of You or of your assets; (b) propose a written agreement for the composition or extension of Your debts; (c) are served with an involuntary petition against you, filed in any insolvency proceeding, and such petition shall not be dismissed within 60 days after the filing thereof; (d) propose or become a party to any dissolution or liquidation; or (e) make an assignment for the benefit of creditors.
5.4 TerraGo may terminate a Trial Subscription upon at least five (5) days prior written notice to You and require You to promptly return any copies of the Product and remove all copies of such Product (as applicable) from Your systems and devices unless You have purchased a license or subscription to the applicable Product prior to such termination. If TerraGo terminates a paid Trial Subscription, it will refund you the pre-paid portion of the fees relating to the unused Trial Subscription period.
5.5 Within one month after the date of termination of this Agreement, You will return to TerraGo or destroy (at TerraGo's option) the original and all copies, in whole or in part as then remaining, in any form, of all Product copies and Documentation that are the subject of such termination, and an officer of Your company will certify to the foregoing in writing delivered to TerraGo.
5.6 You will pay all charges required under this Agreement, including unpaid license fees or any subscription fees for the balance of any Subscription Term (unless You terminate this Agreement for TerraGo’s uncured material breach pursuant to Section 5.1 or unless TerraGo terminates a paid Trial Subscription as provided in Section 5.4 hereof), immediately upon the date of termination.
6. INTELLECTUAL PROPERTY RIGHTS. All rights, title and interest (including all Intellectual Property Rights) in and to the Product, the App and Documentation, and any copies and derivative works of them, are owned solely by TerraGo or its third party licensors. “Intellectual Property Rights” are, collectively, copyrights, patents, trade secrets, trademarks and other proprietary rights wherever recognized in the world, and any applications and registrations with respect to these rights. All right, title and interest in and to any content that is not contained in the Product, but that may be accessed through use of the Product, is the property of the respective content owner(s) and may be protected by applicable copyright laws, international treaty provisions, or other intellectual property laws. You may not remove, alter or obscure any trademark, trade name, copyright, or other proprietary notices, legends, symbols or labels (“IP Notices”) appearing on or in the Product or Documentation and You must accurately reproduce these IP Notices on all copies of the Products. The Product is owned by TerraGo and its suppliers, and their structure, organization and code are the valuable trade secrets of TerraGo and its suppliers.
7. EXPORT RESTRICTIONS. You acknowledge that the Product is of U.S. origin. You agree to comply with all applicable foreign, federal, state and local laws and regulations governing Your use of the Product. Without limiting the foregoing, in the event that this Agreement permits export of the Product outside the U.S., You will be solely responsible for compliance with all applicable U.S. Export Administration regulations and any other applicable U.S. export laws, regulations or restrictions (collectively, “Export Laws”). The Product and Documentation may not be exported or re-exported to those countries that are on the list of embargoed countries (the “Embargoed Countries”) promulgated by the Office of Foreign Asset Control (“OFAC”) or provided to persons or entities prohibited from receiving U.S. exports (including those (a) on the Bureau of Industry and Security Denied Parties List or Entity List, (b) on the OFAC list of Specially Designated Nationals and Blocked Persons, and (c) involved with missile technology or nuclear, chemical or biological weapons). In addition, if the Product is identified as an export controlled item under the Export Laws, You represent and warrant that You are not a citizen, or otherwise located within, an Embargoed Country and that You are not otherwise prohibited under the Export Laws from receiving the Products. All rights to use the Products are granted on condition that such rights are forfeited if You fail to comply with the terms of this Agreement.
8. LIMITED WARRANTY
8.1 Warranty. For all subscriptions and licenses other than Trial Subscriptions, TerraGo warrants that for a period of sixty (60) days from the commencement date of the Subscription Term (the “Warranty Period”), under normal use, the Product will perform substantially in conformance with the specifications published in the Documentation. During the Warranty Period, and as TerraGo’s sole obligation and Your sole remedy for a breach of the warranty provided in this Section, if You provide written notice of the warranty breach to TerraGo within the Warranty Period, TerraGo will use commercially reasonable efforts to correct the nonconformity in the Product. In addition, if TerraGo determines that it is not commercially reasonable to correct the nonconformity, TerraGo may elect to terminate Your subscription to the Product and Documentation. Upon receipt of the Product and Documentation from You, TerraGo will return to You all license or subscription fees paid to TerraGo by You for that Product. The warranty in this Section 8.1 does not apply to, and TerraGo shall have no obligation with respect to, any non-conformity arising as a result of (a) use of the Product other than as specified under this Agreement and the related Documentation, (b) any modification or alteration of the Product performed other than by TerraGo, or (c) transfer of the Product to any computer or mobile device other than Yours, except as permitted in this Agreement. This warranty does not apply to any third party owned components in the Product. Third party components are warranted, if at all, by the third party.
8.2 AS-IS Warranty for Trial Subscriptions. Any Product provided pursuant to a Trial Subscription is provided “AS IS” without any warranty of any kind. TerraGo disclaims all warranties, indemnities, obligations, and other liabilities in connection with any Trial Subscription or use of the Product on a trial or evaluation basis.
8.3 Disclaimer. THE FOREGOING SECTIONS 8.1 AND 8.2 STATE THE SOLE AND EXCLUSIVE REMEDIES FOR TERRAGO’S BREACH OF WARRANTY. Other than the warranty set forth in Section 8.1 above, and to the maximum extent permitted by applicable law, TerraGo, its authorized resellers and their respective affiliates provide the Product and Documentation and any services related to the Product AND THE APP AS IS AND WITH ALL FAULTS, and they hereby disclaim all other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of (a) merchantability, (b) fitness for a particular purpose, (c) accuracy or completeness, (e) results that might be obtained through use of the product, (D) workmanlike effort, (E) freedom from viruses, (H) lack of negligence or (H) uninterrupted or error-free operation of the Product, (i) noninfringement, and (j) the provision of or failure to provide services.
9.1 TerraGo Obligations. Subject to the provisions of Section 9.2 and 9.3, TerraGo agrees to defend, indemnify and hold You harmless against any third party claim, suit or proceeding (each, a “Claim”) alleging that the Product infringes any copyright, trade secret, trade or service mark, or US or European patent. For clarity, in addition to its defense obligation, TerraGo will pay all of those fees and costs, including attorney’s fees, resulting from such Claim, as well as all damages awarded against You, or any amounts agreed to by TerraGo in a monetary settlement, in connection with such Claim.
9.2 Additional Terms. TerraGo may, at its expense, attempt to resolve any Claim described in Section 9.1 by: (a) modifying the Product to avoid the alleged infringement; (b) obtaining a license to permit Your use of the Product as contemplated by this Agreement; or (c) terminating the license grant set forth in this Agreement with respect to the Product and giving You a refund attributable to the remainder of the then-effective Subscription Term. You will cooperate fully with TerraGo in the implementation of any above-described resolution. TerraGo will have no liability if the applicable Claim to the extent based on: (i) the combination of the Product with non-TerraGo products data or business processes; (ii) use of any release of the Product when use of a newer version would avoid the infringement; or (iii) use of the Product outside the scope of the license granted herein.
9.3 Conditions. As conditions of TerraGo’s obligations under this Section 9, You must: (a) promptly notify TerraGo in writing of such claim and furnish a copy of each communication or notice relating to the alleged infringement; (b) give TerraGo sole control over the defense and negotiation of any settlement of such claim; and (c) give TerraGo, at TerraGo’s expense, all reasonable assistance as requested by TerraGo.
9.4 Limitation. This Section 9 sets forth TerraGo’s entire liability to You, and Your sole and exclusive remedy, with respect to the Claims described in this Section 9. Each party agrees that any and all implied indemnification obligations that may apply to this Agreement are hereby excluded.
10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TERRAGO, ITS SUPPLIERS, ITS AUTHORIZED RESELLERS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR (A) LOSS OF PROFITS, (B) LOSS OF REVENUE, (C) LOSS OF SAVINGS, (D) LOSS OF CONFIDENTIAL OR PRIVATE OR PROTECTED INFORMATION OR DATA, (E) BUSINESS INTERRUPTION, (F) PERSONAL INJURY, (G) LOSS OF PRIVACY, (H) FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, (I) NEGLIGENCE, AND (J) FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT, THE APP OR DOCUMENTATION, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS LICENSE, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF TERRAGO, EVEN IF TERRAGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to You. To the extent permissible, any implied warranties are limited to ninety (90) days. This warranty gives You specific legal rights. You may have other rights, which vary from state to state or jurisdiction to jurisdiction.
11. REMEDIES. Notwithstanding any damages that You might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of TerraGo, its resellers and their respective affiliates under any provision of this Agreement, and Your exclusive remedy for all of the foregoing will be limited to the lesser of the amount actually paid by You for the Product or USD $500.00. The foregoing limitations, exclusions and disclaimers will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
12. NOTICE TO U.S. GOVERNMENT END USERS. The Products, including all components thereof, and Documentation, qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, You may provide to a Government end user or, if this Agreement is direct, Government end user will acquire, the Products and Documentation with only those rights set forth in this Agreement. Use of either the Products or Documentation or both constitutes agreement by the Government that the Products and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
13. GOVERNING LAW. This Agreement will be governed by and construed in accordance with the substantive laws of the Commonwealth of Virginia excluding that body of laws known as conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Commonwealth of Virginia and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
14. ASSIGNMENT. You may not assign this Agreement or any right or interest under this Agreement, by operation of law or otherwise, without TerraGo’s express prior written consent. Any attempt to assign this Agreement, without that consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and assigns.
15. INDEMNITY; CUMULATIVE REMEDY. You agree to indemnify, defend and hold TerraGo harmless from and against any losses, damages, claims, actions or judgments resulting from or arising out of or in connection with any breach of this Agreement by You or any negligence, willful misconduct or violation of law. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
16. ELECTRONIC SOFTWARE DELIVERY. With respect to all the Products licensed by you hereunder, You have requested that TerraGo deliver such updates, programs or modules via Electronic Software Delivery (“ESD”). TerraGo shall use commercially reasonable efforts to secure all file transfers via ESD. You acknowledge that, despite such efforts by TerraGo to effect a secure file transfer, including using a non-public server and transferring by appointment only, there remains some level of risk of invasive activity by unknown third parties.
17. PARTIAL ENFORCEMENT; SEVERABILITY. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. Any provision or sub-provision of this Agreement that is determined by a court of proper jurisdiction to be unenforceable will be deemed severed from this Agreement and will not impair the enforceability of any other provisions or sub-provisions of this Agreement.
18. NOTICES. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed email or facsimile transmission, by overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable ordering document or invoice or to such other address as may be specified by either party to the other in accordance with this section.
19. STATUTORY RIGHTS OF CONSUMERS. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer.
20. ENGLISH VERSION INTERPRETATION. The English version of this Agreement shall be the version used when interpreting or construing this Agreement.
21. THIRD PARTY BENEFICIARY. TerraGo’s third party licensors, including without limitation Adobe, are third party beneficiaries of this Agreement.
22. FORCE MAJEURE. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy or supplies, war, terrorism, riot, or acts of God. Force Majeure may not be used to excuse any payment obligation of a party under this Agreement.
23. WAIVER. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
24. ENTIRE AGREEMENT. Unless explicitly specified in writing by TerraGo and You that terms of this Agreement are superseded or to be survived by the terms of a different agreement, this Agreement and any Order constitutes the entire and exclusive agreement between the parties with respect to its subject matter. Without such an explicitly written statement to the contrary, the terms and conditions contained in any customer purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by TerraGo and will be deemed null and of no effect.
25. COMPLIANCE WITH LICENSES. If You are a business, company or organization, You agree that upon request from TerraGo, its authorized reseller or their respective affiliates You will within thirty (30) days fully document and certify that use of any and all Product at the time of the request is in conformity with Your valid licenses from TerraGo. You agree that with reasonable prior notice to You, TerraGo will have the right to audit your books, records and facilities for the sole purpose of determining whether You are using the Product and Documentation in compliance with the requirements of this Agreement.