TERRAFLEX ADDENDUM TO TRIMBLE CONNECT TERMS OF SERVICE
Last Updated: August 20 2019
This TerraFlex Addendum (“Addendum”) is entered into as of the Addendum Effective Date between Trimble Inc . or the Trimble affiliate identified in the Order Form (“Trimble”) and you (“Customer” or “you”), an entity accessing or using the Software (as defined below), and is an addendum to the current Terms of Service available at https://connect.trimble.com/terms_of_service.html (“Agreement”) for Trimble’s multi-platform Trimble Connect service generally (the “Service”). Capitalized terms not defined herein have the meanings given to them in the Agreement. If there is any conflict between the provisions of this Addendum and the Agreement, then this Addendum will prevail. The Agreement, as amended and modified by this Addendum, otherwise remains in full force and effect. Entry into the Addendum The “Addendum Effective Date” is the date which is the earlier of (a) Customer’s downloading of the Software or (b) 90 days from the effective date of the Order Form on which Customer orders licenses to the Software. This Addendum governs use of the Software no matter how accessed, including without limitation via a mobile or tablet device (“Device”). If the individual entering into this Addendum is an employee or agent of Customer, then such individual must be authorized to, and by agreeing to the terms of this Addendum hereby does, bind Customer to this Addendum. Changes to this Addendum From time to time, Trimble may modify this Addendum. Any changes will be effective upon the next renewal of Customer’s Subscription Term. Customer may elect not to renew its Subscription Term with respect to the Software if it does not agree to such changes (but use of the Software during the renewal Subscription Term will constitute acceptance of the amended Addendum). Trimble will use reasonable efforts to notify Customer of the changes through communications via the Software, email or other means. Customer may be required to click to accept or otherwise agree to the modified Addendum before continuing to use the Software.
BY INDICATING YOUR ACCEPTANCE OF THIS ADDENDUM OR ACCESSING OR USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS ADDENDUM AND IN THE AGREEMENT. IF YOU DO NOT AGREE TO THIS ADDENDUM OR THE AGREEMENT, PLEASE DO NOT USE THE SOFTWARE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS ADDENDUM AND THE AGREEMENT ARE LEGALLY BINDING UPON IT.
1. TerraFlex Overview. If indicated in the applicable Order Form, Customer’s use of the Service includes a license to Trimble’s TerraFlex mobile software application (the “Software”). The Software allows Customer to collect and submit geolocation information-based data to different Projects to which Customer has been granted access (and any data Customer submits to Projects using the Software is deemed to be “Content” for the purposes of the Agreement) and to access Content from Projects.
2. The Software includes a subscription to the Service. Any use of the Service is subject to the terms and conditions of the Agreement, except as amended hereby. Without limiting Section 2.2 (Access to the Service) of the Agreement, Customer’s use of the Software is permitted only by the number of Permitted Users for the Software specified on the applicable Order Form. The Software is deemed to be “Client Software” for the purposes of the Agreement. Notwithstanding any of the foregoing or anything to the contrary in the Agreement, the Software is not subject to the Trimble Connect Service Level Agreement. Notwithstanding the first sentence of the paragraph of the Agreement entitled “Entry in to this Agreement”, the Effective Date of the Agreement with respect to the Service shall be the same as the Addendum Effective Date. The Subscription Term for the Service shall be the Subscription Term for the Software.
3.1 Hardware. The Software may be used with data collection, antenna, and/or other hardware compatible with the Software and your device (the “Hardware”). The Hardware is not part of the Software and must be purchased separately.
3.2 Catalyst Service. Customer may be able to receive further enhanced location information Trimble’s Catalyst geolocation service (the “Catalyst Service”) through the Software if Customer has purchased a subscription to the service and Catalyst compatible Hardware. Use of the Catalyst Service is subject to Customer entering into a separate agreement with Trimble (“Catalyst Service Agreement”).
3.3 Your Devices. You are responsible for verifying that your device is compatible with the Software, the Hardware, and/or the Catalyst Service, and any other products and or services you use with the device and the Software.
4. Additional License Restrictions. In addition to the restrictions on Customer’s use of the Service set forth in Section 2.5 (General Restrictions) the Agreement, Customer will not (and will not permit any third party to): (i) merge the Software with any other data, information or content, (ii) circumvent mechanisms in the Software intended to limit Customer’s use, or (iii) use the Software other than as expressly permitted by the Agreement (as amended by this Addendum), including without limitation for commercial purposes such as redistribution or publication in exchange for a fee or other consideration, advertising, or for use in marketing and promotional materials. Customer acknowledges that Customer needs to obtain a separate distribution license from Trimble in order to distribute or publish the Software or any derivative in any form not expressly permitted in the Agreement.
5. License Fees. If stated on the applicable Order Form, Customer will be required to pay additional fees for Customer’s use of the Software, in accordance with Section 6.2 (Fees and Payment) of the Agreement. If there are no fees listed for Customer’s use of the Software, then Customer’s use of the Software is deemed to be a Trial Subscription, subject to Section 2.8 (Trial Subscriptions) of the Agreement.
6. Term and Termination; Renewals. The term of this Addendum will be the Subscription Term specified in the Order Form in which Customer has ordered licenses to the Software. If specified in the Order Form, the Subscription Term may renew in accordance with the terms and conditions of the Order Form, which may inclue automatic renewals. For the avoidance of doubt, this Addendum will terminate automatically if the Agreement terminates or expires. In addition to any post-termination obligations included in the Agreement, upon termination of this Addendum, Customer’s license to the Software will automatically terminate and Customer must cease using the Software, delete the Software and any data collected using the Software from Customer’s Devices, and provide Trimble with written certification that Customer has complied with the foregoing.
7. Audit. Upon request, Customer will provide assurances acceptable to Trimble that Customer is using the Software, including the satellite imagery contained therein, consistently with the terms of the Agreement (as amended by this Addendum). Upon notice, Trimble or its representatives may inspect Customer’s records, accounts and books relating to the use of the Software to ensure that the Software is being used in accordance with the Agreement.
8. Third-Party Components. The Software may contain or be provided with certain third-party components (including without limitation software subject to open source and third party license terms) (“Third Party Components”). If Trimble notifies Customer of any additional end user terms or open source or third party licenses (including, without limitation, in the Product Terms) for use of such products and services (“Third Party Terms”), then Customer agrees to comply with such Third Party Terms. Any noncompliance by Customer with any Third Party Terms will be deemed a material breach of the Agreement. NEITHER TRIMBLE NOR TRIMBLE’S SUPPLIERS OFFER ANY WARRANTY IN CONNECTION WITH ANY THIRD PARTY COMPONENTS AND NEITHER TRIMBLE NOR ITS SUPPLIERS WILL BE LIABLE TO CUSTOMER FOR SUCH THIRD PARTY COMPONENTS. In the event of a conflict between this Agreement and any Third Party Terms, the Third Party Terms will control with regard to Customer’s use of the relevant Third Party Components. The applicable Third Party Terms with respect to the Software (including, without limitation, any open source software) are listed on the Trimble Mapping & GIS Solutions Community, as may be updated from time to time and which are incorporated into this Agreement by this reference.
9. Use of Other Trimble Products and Services. The Service may support integrations with other software products and/or services provided by Trimble (“Trimble Products and Services”). Customer’s use of such Trimble Products and Services and any other features that are not part of the Service are governed by those offerings’ respective end user terms and conditions and not by this Agreement.
10. External Offerings. The Software may support integrations with hardware, software or services not provided by Trimble (“External Offerings”), including, without limitation, correction services to improve the accuracy of location data In order for the Service to communicate with such External Offerings, you may be required to input credentials for the External Offerings. By enabling use of the Software with any External Offerings, you authorize Trimble to access your accounts with such External Offerings to authenticate such integrations. You are solely responsible for complying with any relevant terms and conditions of the External Offerings and maintaining appropriate accounts in good standing with the providers of the External Offerings. NEITHER TRIMBLE NOR ITS SUPPLIERS OFFER ANY WARRANTY IN CONNECTION WITH ANY EXTERNAL OFFERINGS AND NEITHER TRIMBLE NOR ITS SUPPLIERS WILL BE LIABLE TO YOU IN ANY WAY RELATED TO SUCH EXTERNAL OFFERINGS.
11. Network Coverage, GNSS Satellites, Interruption of Service. IN ADDITION TO ANY OTHER LIMITATIONS OF LIABILITY SET FORTH IN THE AGREEMENT, TRIMBLE IS NOT RESPONSIBLE FOR THE OPERATION OR FAILURE OF OPERATION OF GLOBAL POSITIONING SYSTEM (“GPS”) OR GLOBAL NAVIGATION SATELLITE SYSTEM (“GNSS”) SATELLITES OR BASE STATIONS OR THE AVAILABILITY OF GPS OR GNSS SATELLITE SIGNALS. YOU ACKNOWLEDGE THAT THE SERVICE AND NETWORK ACCESS ARE SUBJECT TO TRANSMISSION LIMITATIONS CAUSED BY A VARIETY OF FACTORS SUCH AS ATMOSPHERIC CONDITIONS, TOPOGRAPHICAL OBSTRUCTIONS, LIMITATIONS OR LACK OF COVERAGE OF THE UNDERLYING CARRIER SERVICE AND OTHER NATURAL OR MANMADE CONDITIONS. ADDITIONALLY, MOTOR AND IGNITION NOISE, METAL SHIELDING, INTERFERENCE BY USERS OF THE SAME OR ADJACENT RADIO CHANNELS MAY LIMIT OR INTERFERE WITH COVERAGE. TRIMBLE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF TRIMBLE.