220158-CI DRAFT CONTRACT 2-1-22 (002) (SIG EXECUTED 02.02.22).PDF
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PRINCIPAL CONTRACTING DOCUMENT
This Master Agreement (also, “Agreement”) is made and entered into by and between
Maricopa County, a political subdivision of the State of Arizona, (“County” or Customer”) and
Intergraph Corporation, through its Hexagon Safety, Infrastructure and Geospatial division
(“Hexagon”) [hereafter, “Party” or “Parties”]; and supersedes that certain contract numbered
11086-RFP dated February 22, 2012 (the “Contract”) between the Parties.
WHEREAS, the Parties entered into that certain contract numbered 11086-RFP
whereby Hexagon would license to County and implement for County a Computer Aided
Dispatch (“CAD”), Mobile for Police System (“MPS”) and Records Management System
(“RMS”) and related software; and
WHEREAS, CAD and MPS cutover to live production use on September 24,
2013 and County has been actively using CAD and MPS since that time; and
WHEREAS, the Parties entered Amendments # 1 through 5 for various contract
changes and clarifications, including multiple extensions of the term of the Contract; and
WHEREAS, the term of the Contract is due to expire on February 28, 2022; and
WHEREAS, the Parties agree that as the manufacturer of the software products,
Intergraph Corporation, through its Hexagon Safety, Infrastructure & Geospatial division provides
unique value in supporting the elements of the software directly provided by Hexagon; and
WHEREAS, the Parties agree that only Hexagon may directly provide the maintenance
and support services for all of these products to County; and
WHEREAS, the Parties seek to continue that unique relationship whereby
Hexagon will make available to County certain proprietary software, including related
proprietary Documentation; software maintenance services; Equipment/Content;
DevTools; Cloud Programs; and professional services; and other items, which will be
provided to County pursuant to the attached Master Terms.
NOW THEREFORE, in consideration of the foregoing and the mutual promises and
agreements set forth herein, the receipt and sufficiency of which is hereby acknowledged,
Hexagon and County, by their signatures below, agree Hexagon will make available to County
certain proprietary software, including related proprietary Documentation; software maintenance
services; Equipment/Content; DevTools; Cloud Programs; professional services; and other items,
which will be provided to County pursuant to the attached Master Terms and those Terms and
Conditions set forth in this Primary Contracting Document; which shall supersede all previous
Terms and Conditions.
The parties further agree to the following Terms and Conditions:
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1. DUTIES
1.1 Hexagon shall perform all duties stated in this Agreement and its Exhibits or as
otherwise directed in writing by the Procurement Officer and agreed to by Hexagon.
1.2 During the contract term, County shall provide Hexagon’s personnel with adequate
workspace as may be required by Hexagon to carry out its contractual obligations.
2 SOURCE CODE ESCROW REQUIREMENT
2.1 Hexagon shall provide all source code and any updates or fixes for Hexagon Commercial
Off the Shelf (“COTS”) application software that County has purchased from Hexagon
for safekeeping with Iron Mountain Intellectual Property Management (“IMIPM”); an
escrow agent located at 2100 Norcross Parkway, Suite 150, Norcross, Georgia 30071.
The software source deposited with the escrow agent will be a snapshot of all source code
maintained by Hexagon in the form of a Microsoft Visual Source Safe Archive. In this
way, as beneficiary of the escrow agreement between Hexagon and IMIPM, County will
have access to all source code of the products that they license for all versions of the
software. Upon taking possession of the source code, County will have the right to use
the source for products that they license in the versions currently installed on the System
or any subsequent versions in the archive. Hexagon will make a deposit of the Source
Safe Archive with the escrow agent once every six (6) months.
2.2 County hereby agrees to pay the yearly standard fee for a beneficiary of the source code
2.3 County shall have access to the source code only in the event Hexagon becomes unable
to, or otherwise fails to, maintain the software during the warranty period or during the
maintenance period, or if Licensor decides to stop support of the software application(s),
or Hexagon becomes bankrupt.
2.4 Upon County taking possession of the source code, County hereby agrees as follows:
2.4.1 County accepts full and total responsibility for the safekeeping of the source
code. County agrees that such source code shall be subject to the restrictions of
transfer, sale, and reproduction placed on the software itself as stated in the
software license signed by all parties.
2.4.2 County agrees to only use source code related to applications for which they
own a license. There will be source from other applications in the archive.
2.4.3 County agrees that any unauthorized release of the source code will cause
irreparable harm to Hexagon. Therefore, County agrees to compensate
Hexagon for any and all damages Hexagon suffers, to include reasonable
attorney’s fees, resulting directly or indirectly from, but not limited to, the
mishandling, misuse, or theft of the source code, regardless of intent, or the
absence thereof, by County, its employees, former employees, agents and third-
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party associates if so, ordered by the court. Notwithstanding the foregoing,
County agrees that Hexagon is entitled to an immediate injunction to stop any
further alleged or actual disclosure.
2.4.4 No license under any trademark, patent, copyright, or any other intellectual
property right, is either granted or implied by the disclosure of the source code
to County. Hexagon’s disclosure of the source code to County shall not
constitute any representation, warranty, assurance, guarantee or inducement by
Hexagon to County of any kind, and, in particular, with respect to the non-
infringement of trademarks, patents, copyrights, or any other intellectual
property rights, or other rights of third persons or of Hexagon.
2.4.5 Hexagon will not be responsible for maintaining the source code. Furthermore,
Hexagon will not be liable for any consequences related to the use of source
code modified by County.
3. BACKGROUND CHECK
Hexagon’s employees may be required to pass multiple background checks (e.g., Sheriff’s
Office, County Attorney's Office, Courts, as well as Maricopa County general government)
to determine if they are acceptable to do business with the County. This applies to, but is
not limited to, the company, subcontractors, and employees, and the failure to pass these
checks shall deem the respondent non-responsible. County is responsible for any expenses
associated with these checks.
4. RIGHT TO AUDIT RECORDS
4.1 The County may, at reasonable times and places, audit the financial books, records, and
back-up documentation of Hexagon related to this Agreement. Hexagon shall maintain the
books, records, accounts, statements, reports, files, and other records and back-up
documentation that relate to the Agreement for six (6) years from the date of final payment
under the Agreement or until after the resolution of any audit questions, whichever is latest.
4.2 The County is entitled to audit the books, records, account statements, reports, files and
other records and back-up documentation of Hexagon or any subcontractor under this
Agreement to the extent that the books, records, and back-up documentation relate to the
performance of the Agreement. Hexagon and any subcontractors shall maintain the books,
records, accounts, statements, reports, files, and other records and back-up documentation
that relate to the Agreement for six (6) years from the date of final payment under the
Agreement or until after the resolution of any audit questions, whichever is latest.
4.3 If at any time it is determined that a cost for which payment has been made is a disallowed
cost, the County shall notify Hexagon in writing of the disallowance. Upon agreement, or
other resolution in accordance with the Master Terms, the Parties may make an adjustment
to a future invoice, provide County a credit, or reimburse the County as necessary.
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5. NON-DISCRIMINATION
Contractor agrees to comply with all provisions and requirements of Arizona Executive
Order 2009-09, including flow down of all provisions and requirements to any
subcontractors. Executive Order 2009-09 supersedes Executive Order 99-4 and amends
Executive Order 75-5 and is hereby incorporated into this contract as if set forth in full
herein. During the performance of this contract, Contractor shall not discriminate against
any employee, client, or any other individual in any way because of that person’s age, race,
creed, color, religion, sex, disability, or national origin. (Executive Order 2009-09 can be
downloaded at:
http://azmemory.azlibrary.gov/cdm/singleitem/collection/execorders/id/680/rec/1.)
6. CERTIFICATIONS
6.1 Hexagon certifies by its signature below that it is not currently engaged in and agrees for
the duration of this agreement to not engage in, a boycott of goods or services from
Israel.
6.2 Hexagon certifies by its signature below that it has procured all permits, insurance and
licenses and pay the charges and fees necessary and incidental to the lawful conduct of its
business and completed any requirements to maintain compliance and remain in good
standing; and will continue to do so for the duration of this Agreement. Hexagon
acknowledges its responsibility to keep fully informed as to and comply with all such
regulations.
6.3 Hexagon certifies by its signature below that it has not made any effort to influence an
employee or agent to breach the Maricopa County Ethical Code of Conduct as outlined in
the Maricopa County Procurement Code and, by said signature, Hexagon’s understanding
that any such effort may be grounds for suspension or disbarment under MC1-902.
6.4 Hexagon certifies by its signature below as to any insurance written on a claims-made basis
that the retroactive date under the policy precedes the effective date of this Agreement and
coverage will be maintained for a period two years beyond the time work under this
contract is completed.
7. Maintenance Pricing
For the Term of this agreement, other than those increased obligations associated with
changes to the Covered Software Products subject to Maintenance Services, the cost of
Maintenance Services shall not increase more than five percent (5%) per year for each year
of the Term.
The Parties further agree that this Agreement represents the entire and integrated
agreement between the parties and supersedes all prior negotiations, proposals, communications,
understandings, representations, or agreements, whether oral or written, express or implied.
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This Agreement may be executed in counterparts, each of which when so executed shall
be deemed an original and all of which when taken together, shall constitute one and the same
instrument. This Amendment shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties reflected hereon as
the signatories hereto.
IN WITNESS WHEREOF, this Agreement is executed on the date set forth
below.
Intergraph Corporation
Maricopa County
Signature:
Signature:
BY: Debra T. Huser
BY:
TITLE: Americas Finance Director
TITLE: Chairman Board of Supervisors
DATE:
DATE:
Attested (Maricopa County)
Approved as to Form:
Signature:
Signature:
BY:
BY:
TITLE: Clerk of the Board
TITLE: Deputy County Attorney
DATE:
DATE:
February 8, 2022
Randall B. Pennington
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MASTER TERMS AND CONDITIONS
These Master Terms and Conditions (the “Master Terms”) by and between Maricopa County, Arizona
(“County” or “Customer”) and Intergraph Corporation, through its Hexagon Safety, Infrastructure and
Geospatial division (“Hexagon”) govern transactions and relations between County and Hexagon (each a
“Party” and collectively the “Parties”).
Hexagon will make available to County certain proprietary software, including related proprietary
Documentation; software maintenance services; Equipment/Content; DevTools; Cloud Programs; and
professional services; and other items, which will be provided to County pursuant to these Master Terms
and an Order. Before Hexagon will provide any items or services (including the Services), County must
agree to these Master Terms and to the terms of a corresponding Order. The Parties agree these Master
Terms will govern each Order. To the extent the Master Agreement purports to impose obligations,
restrictions, or limitations upon County’s Affiliates or Users, County shall be responsible to Hexagon for
County’s Affiliates’ and Users’ compliance with such terms and shall procure County’s Affiliates and Users
compliance.
These Master Terms consist of the following:
x
The General Terms and Conditions set forth below;
x
Exhibit A – End User License Agreement;
x
Exhibit B – Maintenance Terms and Conditions for Software;
x
Exhibit C – Sample Project Deliverable Sign-Off Form;
x
Exhibit D – Cloud Program Conditions;
x
Exhibit E – Subscription License Terms;
x
Exhibit F – COTS Training Program Terms; and
x
Exhibit G – Common Terms Glossary.
GENERAL TERMS AND CONDITIONS
1
Definitions. All capitalized terms not otherwise defined herein shall have the meaning set forth in
Exhibit G (Common Terms Glossary). Words used herein in the singular, where the context so permits,
shall be deemed to include the plural, and vice versa.
2
Elements of an Order.
2.1
Order Composition. Each Order will be comprised of Order Documents, including any applicable
Schedule(s). An Order is formed only once both Parties accept the Order Documents, which the Customer
shall do by executing the Order Documents and/or issuing a PO in connection with the Order Documents.
Orders shall be effective as of the date both Parties accept the Order Documents except where the Order
is for a term-based offering (e.g., Subscription License), in which case the Order shall commence as of the
date specified in the Order Documents, if provided.
2.2
Schedules. Any Schedules applicable to Products or items purchased in an Order are incorporated
and are either included in the Order Documents or, in the absence thereof, accessible via hyperlinks
contained within Exhibit G. If a Product or item is not listed in the document(s) accessed via hyperlinks
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provided in Exhibit G, and related Schedule(s) are not otherwise included in the Order Documents, then
that Product or item does not have a corresponding Schedule.
2.3
Pricing. Order Documents shall describe basic pricing and include other details relevant to the
offerings included in the Order.
2.4
Change Control. During the course of Hexagon’s performance under an Order, either Party may
request a change in the scope of the Order in writing, delivered to the other Party. Any changes in price,
schedule, or other terms must be documented either by an amendment or Change Order. No change, as
contemplated in this paragraph, shall become effective until set forth in a mutually executed writing.
2.5
Acceptance. Acceptance will occur based upon the following:
2.5.1
For Fixed Price Project Assignments, not governed by Exhibit F, acceptance shall occur
when the applicable Task Acceptance Criteria has been satisfied in accordance with the Task
Acceptance Process.
2.5.2
For Time and Materials Project Assignments and Maintenance Services, the Services are
accepted as performed.
2.5.3
For a Cloud Program, acceptance occurs when the License Keys are provided to
County.
2.5.4
For all Orders not described more specifically above, acceptance occurs once the ordered
item has been delivered or access to the ordered item has been provided.
3
Composition of the Master Agreement.
3.1
Components. The agreement between the Parties (herein referred to as the “Master Agreement”)
consists of: (1) the Primary Contracting Document, (2) these Master Terms (including the General Terms
and Conditions and all Exhibits), (3) any amendments to the Master Agreement, (4) Orders, together with
any Change Orders, that may be delivered, prepared, or issued after the Effective Date, and (5) all
documents, including applicable Schedules and documents referenced via hyperlink, incorporated by
reference in the documents identified in this Section. For certain Third-Party Software, Third Party Terms
will also be applicable and be considered as part of the Master Agreement.
3.2
Order of Precedence. In the event of any conflict or inconsistency among documents forming the
Master Agreement, the following order of precedence shall be used to determine the resolution of the
discrepancy, unless the Parties mutually agree in writing to an alternative decision:
(1) Any amendments to the Master Agreement;
(2) The Primary Contracting Document;
(3) Applicable Schedules;
(4) These Master Terms (excluding Exhibits);
(5) Exhibits to these Master Terms; and
(6) Order Documents, if any, in addition to items specifically identified in this Section 3.2 above.
For only Third-Party Software subject to Third Party Terms, the Third-Party Terms shall have precedence
in the event of a conflict between the Third-Party Terms and any other terms of the Master Agreement.
4
Invoicing and Payment.
4.1
Invoices. Invoices shall be issued based upon the contents of the Order.
4.1.1
For Fixed Price Project Assignments Hexagon may invoice County upon completion of a
payment milestone identified in the Order Documents, or when applicable, in accordance with
Exhibit F; provided however, if this type of Order also includes Subscription Licenses or Cloud
Program(s), the fees for such shall be due in accordance with Exhibits E and D, respectively.
4.1.2
For Product(s) or items not included within an Order for a Fixed Price Project Assignment
or otherwise more specifically addressed in this Section 4, Hexagon may invoice County for the full
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amount set forth in the Quote in addition to any applicable freight/shipping charges upon delivery
of or access having been provided to any of the Product(s) or items identified in the Order
Documents.
4.1.3
Time and Materials Project Assignments shall be billed and invoiced monthly as the hours
are expended and Onsite Fees are incurred, or after all hours set forth in the Order Documents
have been expended, whichever occurs first.
4.1.4
Maintenance Services not included within an Order for a Fixed Price Project Assignment
or Product Order shall be billed and invoiced in accordance with Exhibit B.
4.1.5
Cloud Program(s) (even if included within a Fixed Price Project Assignment) shall be billed
and invoiced in accordance with Exhibit D.
4.2
Payment. County shall make payment for any invoices issued by Hexagon within thirty (30)
calendar days of the date the invoice was issued.
4.2.1
Objection to Payment. Subject to the terms and conditions as set forth in section 4.1, if
County contests some part of an invoice, County shall notify Hexagon in writing of that objection,
including sufficient details of the basis for that objection, within ten (10) business days.
4.2.2 Payment shall be made to Hexagon by Accounts Payable through the Maricopa County
Vendor Express Payment Program. This is an Electronic Funds Transfer (EFT) process. After
Award Hexagon shall fill out an EFT Enrollment form located on the Maricopa County Department
of Finance Website (https://www.County.gov/5169/Vendor-Information.)
EFT payments to the routing and account numbers designated by Hexagon will include the details
on the specific invoices that the payment covers. Hexagon is required to discuss remittance delivery
capabilities with their designated financial institution for access to those details.
4.3
Late Payment. If County does not make timely payment, an interest charge of two percent (2%)
per Month (or the maximum allowed by law, whichever is less), compounded monthly, will be due on any
unpaid and overdue amounts. To the extent County is the subject of an applicable prompt pay act statute
or ordinance, County shall be subject to the terms set forth in that statute(s) and/or ordinance(s) in lieu of
the prior sentence. As it pertains to Equipment, Hexagon shall retain a security interest in the Equipment.
If County is late or otherwise in default of its payment obligations for Equipment, then Hexagon may, in
addition to any other remedies available, exercise remedies of a secured party regarding the Equipment.
4.4
Taxes. The purchase price is exclusive of all federal, state, and/or local taxes. Any taxes applied
to this sale by a federal, state, and/or local taxing authority will be the responsibility of County. Such taxes
do not include franchise taxes or taxes based on net income. If County is claiming tax-exempt status, it
must submit the proper documentation satisfactory to Hexagon evidencing its tax-exempt status.
Applicable taxes may be invoiced at any time such taxes become fixed and certain.
5
Term and Termination.
5.1
Term. The Term of the Master Agreement shall begin on the Effective Date and remain in effect
for a period of twenty-four (24) consecutive Months or until the Master Agreement is earlier terminated
pursuant to the terms set forth herein or by mutual agreement of the Parties. County may, at its option
and at the County’s sole discretion, renew the Term of this Master Agreement for an additional year.
County shall notify Hexagon in writing of its intent to extend the Master Agreement Term at least sixty (60)
calendar days prior to the expiration of the original Term. An Order that is executed prior to the expiration
of the Term of the Master Agreement shall be governed by the Master Agreement even if the Master
Agreement Term expires during the performance of the Order. To the extent County executes an Order
pursuant to later issued master terms, then this Master Agreement shall terminate upon completion of all
Orders executed hereunder regardless of the amount of time remaining in the Term.
5.2
Termination for Convenience. Either Party may terminate the Master Agreement or an Order in its
sole discretion at any time upon providing the other Party with thirty (30) days written notice. As to
AVAILABILITY OF FUNDS, if any actions are taken by any state agency, Federal department, or any other
agency or instrumentality to suspend, decrease, or terminate its fiscal obligations under or in connection
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with this Agreement, County may terminate its obligations under, or in connection with, this agreement
within its rights of termination for convenience, as set forth below.
The Parties acknowledge that pursuant to Arizona Revised Statutes §38-511 County may cancel
this Agreement without penalty or further obligation within three years after execution of the contract, if any
person significantly involved in initiating, negotiating, securing, drafting or creating the contract on behalf of
County is an employee or agent of any other party to the Agreement in any capacity or consultant to any
other party of the Agreement with respect to the subject matter of the Agreement during the Term of the
agreement. Additionally, pursuant to A.R.S §38-511 the County may recoup any fee or commission paid or
due to any person significantly involved in initiating, negotiating, securing, drafting or creating the contract
on behalf of the County from any other party to the contract arising as the result of the Contract.
In the event of a termination pursuant to Section 5.2, County agrees to pay Hexagon for the Work
performed and Product(s) or items delivered and provided, plus the cost of any labor and/or Product(s) or
items ordered in good faith prior to notice of termination that could not be canceled, less amounts previously
paid by County for such Work and/or Product(s) or items. Hexagon is entitled to retain all amounts paid
under any Order prior to termination. To the extent a Party exercises its right to terminate a specific Order,
that termination shall have no effect upon the remaining Master Agreement, which, along with any other
active Orders, shall remain in full force and effect. If a Party desires to terminate the Master Agreement,
then the Parties shall proceed to wind down all ongoing work under the respective Orders in effect under
the Master Agreement by the termination date. Each Party shall take commercially reasonable steps to
bring the work to a close and to reduce its costs and expenditures.
5.3
Termination for Cause. Either Party may terminate the Master Agreement or a specific Order, as
the case may be, in the event the other Party materially breaches a material term of the Master Agreement
or any Order.
5.3.1
In the event a Party materially breaches an Order, the non-breaching Party may terminate
the Order only after providing a sixty (60) calendar day cure period to cure such breach and the
breach has not been cured, except for material breaches arising from non-payment. During the
sixty (60) day cure period, the Parties shall try to determine a mutually agreeable plan to cure such
breach. If such breach cannot be cured or an acceptable plan is not provided within the sixty (60)
day cure period, the non-breaching Party may, but does not have the obligation to, terminate the
Order.
5.3.2
In the event a Party materially breaches the Master Agreement or multiple Orders, the non-
breaching Party may terminate the Master Agreement only after providing a sixty (60) calendar day
cure period to cure such breach and the breach has not been cured except for material breaches
arising from non-payment. During the sixty (60) day cure period, the Parties shall try to determine
a mutually agreeable plan to cure such breach. If such breach cannot be cured or an acceptable
plan is not provided within the sixty (60) day cure period, the non-breaching Party may, but does
not have the obligation to, terminate the Master Agreement. If the Master Agreement is terminated
pursuant to this paragraph, by the termination date, Hexagon will stop all Work pursuant to any
Orders arising under the Master Agreement.
5.3.3
If the Master Agreement or any one or more Orders is terminated pursuant to paragraphs
5.3.1 or 5.3.2, Hexagon will stop all Work with respect to impacted Orders as soon as practicable
and shall be entitled to payment for all Work performed as well as Product(s) provided on all
impacted Orders up to the termination date, less amounts previously paid by County under the
affected Orders.
5.3.4
Notwithstanding the foregoing, Hexagon may suspend its performance of or terminate any
Order or the Master Agreement for cause if payment is not received within thirty (30) days following
the date when payment was due unless the County has advised Hexagon in accordance with
Paragraph 4.2.1. In the event an Order is suspended or terminated for cause, Hexagon shall be
entitled to, and County agrees to pay Hexagon, payment for Work performed and/or Product(s)
delivered on said Order up to the suspension or termination date, less amounts previously paid by
County under the affected Orders. Hexagon is entitled to retain all amounts paid under any Order
prior to its termination. If Hexagon suspends an Order under this paragraph, then it may thereafter
terminate the Order upon giving written notice to County.
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5.3.5
Notwithstanding the foregoing, if Hexagon’s material breach of the terms and conditions of
the Master Agreement or any Order thereunder is caused or partially caused by County’s
negligence or failure to perform its obligations, a termination for default shall be treated by the
parties as a termination for convenience.
6
Ownership.
6.1
County acknowledges Hexagon will retain ownership and title of Hexagon IP made or provided
pursuant to any Order. All Software (including Software embedded within Equipment) provided under the
Master Agreement is licensed to County in accordance with Exhibit A (End User License Agreement),
except as it is inconsistent with the terms set forth herein. Third Party Software, including any Software
developed by a third party embedded within Equipment, is licensed to County pursuant to Third Party Terms
or as otherwise specified in the applicable E/C Schedule.
6.2
As it pertains to any Equipment, and only Equipment, provided to County under an Order, County
shall receive title to and ownership of the Equipment identified in the Order Documents, excluding any IPR
pertaining to the Equipment and Software provided with the Equipment, FOB place of origin and subject to
County’s payment of all amounts owed for the Equipment.
6.3
County shall own Customer Data. County grants Customer Data Rights to Hexagon, to, among
other things, facilitate Hexagon’s performance of its obligations.
7
Warranties.
7.1
Software. The Software Products licensed under Exhibit A are warranted to meet Minimal
Operations Levels for a period of thirty (30) days from the initial installation; provided that Software Products
covered by a Maintenance Contract between County and Hexagon shall instead be warranted and
supported as stated in the Maintenance Contract.
7.2
Subsystem Warranty Coverage. For, and only for, new Subsystems procured/implemented
pursuant to an Order under these Master Terms, the warranty coverage shall be set forth in the applicable
Order Documents, which shall be in lieu of the warranty coverage set forth in Section 7.1.
7.3
Equipment Warranty Coverage. If Equipment supplied by Hexagon is provided with a warranty or
other Equipment support, then the extent of the Equipment support is provided within the corresponding
E/C Schedule or other Order Documents.
7.4
Third-party Warranty Coverage. To the extent no warranty or Equipment support is described in
the applicable E/C Schedule or other Order Documents, third-party products supplied by Hexagon, are
provided with a pass-through-warranty from the original manufacturer, if any.
7.5
Disclaimer. Any product information Hexagon has shared with County during the proposal and/or
contract activities to date was to provide an understanding of Hexagon’s current expected direction,
roadmap, or vision and is subject to change at any time at Hexagon’s sole discretion. Hexagon specifically
disclaims all representations and warranties regarding future features or functionality to be provided in any
Software or Deliverable(s). Hexagon does not commit to developing the future features, functions, and/or
products discussed in this material beyond that which is specifically committed to being provided by
Hexagon pursuant to a valid Order. County should not factor any future features, functions, or products
into its current decisions since there is no assurance that such future features, functions, or products will
be developed. When and if future features, functions, or products are developed, they may be made
generally available for licensing by Hexagon.
7.6
Warranty Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS ARTICLE, HEXAGON
DISCLAIMS (TO THE FULLEST EXTENT PERMITTED BY LAW) ALL WARRANTIES ON PRODUCTS
FURNISHED PURSUANT TO THE MASTER AGREEMENT, INCLUDING ALL WARRANTIES OF
MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, HIGH RISK USE, AND
NON-INFRINGEMENT. ALL WARRANTIES PROVIDED PURSUANT TO THIS MASTER AGREEMENT
ARE VOID IF FAILURE OF A WARRANTED ITEM RESULTS DIRECTLY OR INDIRECTLY FROM AN
UNAUTHORIZED USE OR MISUSE OF A WARRANTED ITEM, INCLUDING, WITHOUT LIMITATION,
USE OF A WARRANTED ITEM UNDER ABNORMAL OPERATING CONDITIONS OR UNAUTHORIZED
MODIFICATION OR REPAIR OF A WARRANTED ITEM OR FAILURE TO ROUTINELY MAINTAIN A
WARRANTED ITEM. THE WARRANTIES SET FORTH IN THIS ARTICLE 7 ARE IN LIEU OF ALL OTHER
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WARRANTIES, EXPRESSED OR IMPLIED, AND, EXCEPT AS SET FORTH IN ARTICLE TITLED
“INDEMNIFICATION PROVISIONS” BELOW, REPRESENT THE FULL AND TOTAL WARRANTY
OBLIGATION AND/OR LIABILITY OF HEXAGON.
8
LIMITATION OF LIABILITY
In no event shall Hexagon be liable for any indirect, incidental, consequential, special, or punitive
damages regardless of the legal theory under which such damages (including, but not limited to,
lost profits, loss of use or production, loss of revenue, loss of data, or claims of third parties) are
incurred arising out of or in connection with the performance of this Agreement. Hexagon's total
liability for any and all damages whatsoever arising out of or in any way related to the Contract from
any cause shall not exceed the amounts paid by the County under the Maintenance Agreement or
amounts paid by the County within the past twelve months prior to the event giving rise to a claim
exclusive of payments made pursuant to an Order for Maintenance, whichever is greater.
Except as otherwise provided by applicable law, no claim, regardless of form, arising out of, or in connection
with this Agreement may be brought by the County more than two (2) years after the incident giving rise to
the cause of action has occurred.
9
Indemnification Provisions.
9.1
Subject to the limitation of liability provisions in the Master Agreement, Hexagon will defend, at its
expense, a third party action, suit, or proceeding against County ("Claim"), and indemnify County from any
judgments, settlements, and reasonable attorney's fees resulting therefrom, to the extent such Claim is (i)
attributable to bodily injury, death, or physical damage to tangible property caused by Hexagon's negligent
acts or omissions arising under the Master Agreement; or (ii) based upon an allegation that a Software
Product, Customized Software, Cloud Application, or Services Deliverable as of its delivery date under the
Master Agreement, infringes a valid United States: patent, copyright, or trademark, or misappropriates a
third party's trade secret ("Infringement Claim").
9.2
Hexagon's defense and indemnification obligations are conditioned upon:
9.2.1
County providing prompt written notice to Hexagon of any Claim;
9.2.2
Hexagon having primary control of the defense of any actions and negotiations related to
the defense or settlement of any Claim, understanding Hexagon may not settle a claim without
County’s consent if such settlement assigns fault or culpability to County; and
9.2.3
County cooperating fully in the defense or settlement of any Claim.
9.3
Hexagon will have no obligation to defend County or to pay any resulting costs, damages, or
attorneys' fees for any Infringement Claims alleging direct or contributory infringement of the Software
Product, Cloud Program, or Service Deliverable (i) by the combination of or integration with a product,
process, or system not supplied by Hexagon; (ii) by material alteration by anyone other than Hexagon or
its subcontractors; (iii) by use after County has been notified of possible infringement; (iv) by use after
modifications are provided to County; (v) by use after a return for refund as described below is ordered by
Hexagon; (vi) if the creation of which was pursuant to specifications provided by County; or (vii) by use
other than as specified in the Documentation associated with the Software Product.
9.4
In connection with any Infringement Claims, Hexagon, at its own expense and option, may either
(i) obtain rights for County to continue using the allegedly infringing Hexagon supplied item; (ii) replace the
item with a non-infringing alternative, or modify the allegedly infringing elements of the item, while
maintaining substantially similar software functionality or data/informational content; or (iii) refund to County
a prorated portion of the license fees paid by County for the infringing item(s); provided that proration for
perpetually licensed software shall be based on a five (5)-year, straight-line depreciation basis beginning
from the initial date of delivery. In the event of a prorated return, County will uninstall, cease all use of and
return to Hexagon the infringing item(s).
9.5
In no event will the indemnification for Infringement Claims apply to any Beta Software, or sample,
hot fix, royalty free, or evaluation software delivered pursuant to the Master Agreement.
9.6
This section provides the sole and exclusive remedies of County and Hexagon’s entire liability in
the event of a Claim. County has no right to recover, and Hexagon has no obligation to provide any other
SERIAL 220158-CI
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Maricopa County, Arizona
Page 12
or further remedies, whether under another provision of the Master Agreement or any other legal theory or
principle in connection with a Claim.
10
Insurance.
10.1
Policies and Coverage Amounts. Hexagon agrees to procure and maintain in force during the term
of the Master Agreement, at its own cost, the following policies and amounts of coverage from companies
authorized to do business in Arizona and possessing an AM Best, Inc. category ranking of at least B++:
10.1.1 Workers' Compensation Insurance as required state statute or regulation; to include
Employer’s Liability coverage of $1,000,000 for each accident and $1,000,000 for each disease
and $1,000,000 disease policy limit.
10.1.2 Commercial General Liability Insurance with minimum combined single limits of ONE
MILLION DOLLARS ($2,000,000) each occurrence and FOUR MILLION DOLLARS ($4,000,000)
general aggregate. The policy shall be applicable to all premises and operations. The policy shall
include coverage for bodily injury, broad form property damage, products and completed operations
and personal injury.
10.1.3 Automobile Liability Insurance with minimum combined single limits for bodily injury and
property damage of not less than ONE MILLION DOLLARS ($1,000,000) for any one occurrence,
with respect to each of Hexagon's owned, hired or non-owned vehicles assigned to or used in
performance of the services or work under the Master Agreement.
10.1.4 Technology Errors and Omissions Insurance with minimum combined single limits of FIVE
MILLION DOLLARS ($5,000,000) for any one occurrence, with respect to damages and defense
costs for an actual or alleged negligent act, error, omission, breach of duty or misstatement
committed or omitted in the performance of technology professional services under this Master
Agreement.
10.1.5 Cyber, Network Security, and Privacy Liability Insurance with minimum combined single
limits of FIVE MILLION DOLLARS ($5,000,000) for any one occurrence, with respect to network
risks arising solely from a failure of Hexagon’s network security (such as data breaches,
unauthorized access or use, and ID theft of data), and invasion of privacy arising solely from a
failure of Hexagon’s network security (regardless of the type of media involved in the loss of private
information). Coverage for Hexagon includes privacy notification and crisis management costs,
emergency response costs, regulatory investigations, business interruption, loss of electronic data,
loss of physical documents, loss mitigation, payment of outstanding fees, trial attendance costs,
third-party technology liability, third-party multi-media liability and third-party security and privacy
liability.
10.1.6 Umbrella/Excess Coverage with minimum combined single limits of ONE MILLION
DOLLARS ($1,000,000) per occurrence.
10.1.7 As to the policies referenced in 10.1.2 and 10.1.3, each of the described policies shall by
proper endorsement include Customer as an additional insured and each of the described policies
shall by proper endorsement provide Customer a waiver of subrogation.
10.1.8 Hexagon’s insurance shall be the primary insurance as respects the County, and any
insurance or self-insurance maintained by County shall not contribute to it.
10.1.9 Any failure to comply with the claim reporting provisions of the insurance policies or any
breach of an insurance policy warranty may affect the County’s right to coverage afforded under
the insurance policies. However, it will not exclude the County’s right to recover from Hexagon as
otherwise set forth in this Agreement.
10.2
Certificate of Insurance. If required or requested at any time during performance of this contract,
a Certificate of Insurance shall be completed by Hexagon’s insurance agent(s) as evidence that policies
providing the required coverage amounts, conditions, and minimum limits are in full force; and, the
completed Certificate of Insurance shall identify Maricopa County and be sent as follows:
Maricopa County
c/o Risk Management
SERIAL 220158-CI
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Maricopa County, Arizona
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301 W. Jefferson St, Suite 910
Phoenix, AZ 85003
If any policy were to expire during the term of this Agreement, a renewal certificate will be forwarded
promptly to County. Hexagon shall provide County at least thirty (30) days’ notice of any cancellation or
material change to the policies or endorsements, to the extent that Hexagon has knowledge of such
cancellation or material change.
10.3
Insurance Deductible. Hexagon shall be solely responsible for any deductible losses under the
policies required above.
11
Security and Breach Notification.
11.1
Hexagon shall take reasonable industry action to prevent, detect, identify, report, track and respond
to Security Incidents. In the event of a Security Incident, Hexagon will provide a Security Incident report to
the Customer or its Affiliates via the Designated Portal. The report shall be provided within twenty-four (24)
Business Hours following Hexagon’s discovery, confirmation, and investigation of a Security Incident.
12
Dispute Resolution.
12.1
Resolution Protocol. The Parties shall exercise their best efforts to negotiate and settle promptly
any dispute that may arise with respect to the Master Agreement or Order made pursuant to the Master
Agreement (“Dispute”) in accordance with the provisions set forth herein. If either Party disputes any
provision of the Master Agreement (the “Disputing Party”), or the interpretation thereof, or any conduct by
the other Party under the Master Agreement, the Disputing Party shall bring the matter to the attention of
the other Party at the earliest possible time in order to resolve the Dispute, except for Disputes for non-
payment. If such Dispute is not promptly resolved by the employees responsible for the subject matter of
the Dispute, the Disputing Party shall be permitted to deliver to the non-disputing Party’s contact person
identified in the Primary Contracting Document a written notice of the Dispute, whereupon the Parties shall
endeavor in good faith to escalate the Dispute to appropriate executives for each Party for resolution within
fifteen (15) Business Days, or such longer period as to which the Parties may mutually agree.
12.2
Mediation. To the extent a Dispute is not resolved through the process outlined in the previous
section and remains unresolved, the Parties agree to enter into non-binding mediation to resolve the
Dispute. Within sixty (60) calendar days, of the issuance of the Dispute notice, or such longer period that
is mutually agreeable to the Parties, the Parties agree to identify a mutually acceptable mediator who shall
mediate the Dispute. If, after making reasonable efforts to identify a mutually acceptable mediator and no
later than fifty (50) calendar days after the issuance of the Dispute Notice, the Parties are unable to identify
such a mediator, the Disputing Party shall provide the non-disputing Party with a list of five (5) proposed
mediators. The non-disputing Party shall have five (5) Business Days from receipt of such list from the
Disputing Party to identify one proposed mediator on the list to use as a mediator. If the non-disputing
Party fails to identify and communicate its choice to the Disputing Party in the time allotted, then the
Disputing Party shall be permitted to unilaterally identify the mediator from the list of five (5) mediators
previously given who shall mediate the Dispute. The mediator shall be an attorney licensed to practice law
in the state courts identified in section below titled “Governing Law.” Subject to the mediator’s availability,
the Parties agree to mediate the Dispute within thirty (30) days after the Parties have identified a mediator
who has agreed to mediate the Dispute. To the extent the mutually identified mediator is unavailable,
unwilling, or unable to mediate the Dispute, the Parties shall utilize the same steps listed above to identify
a new mutually agreeable mediator. To the extent the Disputing Party had to prepare a list of proposed
mediators previously, it shall prepare and transmit a revised list within five (5) Business Days of receiving
notice of the proposed mediator’s unavailability. Subject to the mediator’s requirements, the Parties agree
they shall be permitted to attend the mediation via telephone or video conferencing. The Parties agree to
pay in equal shares the mediator’s fee and expenses unless otherwise agreed to pursuant to a settlement
agreement.
12.3
Prerequisites to Litigation. Except for Disputes for non-payment, only after the Parties have
endeavored to resolve the Dispute through the processes outlined in the immediately preceding two
sections, and after Hexagon has submitted a claim and received a denial of the claim, in whole or part, by
the Contract Administrator or Procurement Officer in accordance with the Maricopa County Procurement
Code, Section MC1-906, may a Party commence litigation to resolve the dispute.
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12.4
Injunctive Relief. Notwithstanding the foregoing, either Party may, before or during the exercise of
the informal dispute resolution procedures set forth above, apply to a court identified in the section titled
“Governing Law” for a temporary restraining order or preliminary injunction where such relief is necessary
to protect its interests pending completion of such informal dispute resolution procedures.
13
Notices.
All notices given between the Parties shall be in writing and shall be considered properly sent by postage
prepaid United States Mail or overnight carrier to the Customer and/or Hexagon representative, as
applicable and identified in the Primary Contracting Document, or such substitutes as identified below or
may hereafter be disclosed by proper notification.
For County
For Intergraph
Maricopa County
Intergraph Corporation
Office of Procurement Services
Attn: William Starnes
Attn: Chief Procurement Officer
Divisional Counsel
160 S. 4th Avenue
305 Intergraph Way
Phoenix, AZ 85003-2494
Madison, AL 35758
14
Force Majeure.
Neither Party shall be deemed to be in default of any provision of the Master Agreement or an Order or be
liable for any delay, failure in performance, or interruption of service resulting from acts of war, acts of
terrorism, criminal acts, acts of God, natural disaster, fire, lightning, acts of or restriction imposed by civil or
military authority, pandemics, epidemics, cyber-attack, labor disruption, civil disturbance, expropriation,
embargo, lawful export restriction, or any other cause beyond its reasonable control. This section does not
relieve or suspend a Party’s obligation to pay money to the other Party under the terms of the Master
Agreement.
15
Place of Performance.
To the extent necessary, County agrees to provide appropriate workspace and workplace
accommodations; computer equipment; software; access to relevant data, documents, plans, reports, and
analyses; and necessary access for Hexagon personnel to perform work on an Order. To the extent work
is performed remotely, County must provide VPN or secured remote connectivity (including a login and
password) to all servers and workstations requiring installation/configuration by Hexagon.
16
Amendments.
Any and all amendments to the Master Agreement shall be in writing specifically reference the fact the
amendment is intended to alter these Master Terms and executed by authorized representatives of both
Parties. No Order or Change Order shall affect these Master Terms, unless expressly stated in such
document. Any amendments must be approved by the Maricopa County Office of Procurement Services.
17
Confidential Information.
The Parties agree not to disclose Confidential Information provided to it by the Disclosing Party to the
maximum extent allowable under applicable law unless it first obtains the Disclosing Party’s written consent
to such disclosure. It is further understood and agreed that money damages may not be a sufficient remedy
for any breach of this provision of the Master Agreement by the Receiving Party and the Disclosing Party
may seek equitable relief, including injunction and specific performance, as a remedy for any such breach.
Such remedies shall not be deemed to be the exclusive remedies for a breach of this provision of the Master
Agreement but will be in addition to all other remedies available at law or equity. The covenants set forth
herein and the rights and obligations related thereto shall continue for a period of five (5) years from the
date of disclosure.
Under Arizona law, all offers submitted and opened are public records and must be retained by the County
at the Maricopa County Office of Procurement Services. Offers shall be open to public inspection and
copying after contract award and execution, except for such offers or sections thereof determined to contain
proprietary or confidential information by the Office of Procurement Services. If Hexagon believes that
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information should not be released in response to a public record request, under Arizona law, Hexagon
shall indicate the specific information deemed confidential or proprietary and submit a statement detailing
the reasons that the information should not be disclosed. Such reasons shall include the specific harm or
prejudice which may arise from disclosure. The records manager of the Office of Procurement Services
shall determine whether the identified information is confidential pursuant to the Maricopa County
Procurement Code.
18
Personal Data.
18.1
Where Personal Data is provided by the County to Hexagon, County shall act as the data controller
and shall be responsible for complying with all applicable data protection laws. Hexagon shall act as the
data processor in respect of such Personal Data and shall process the Personal Data in accordance with
applicable data protection laws. County acknowledges and agrees that Hexagon is not capable of being a
data controller due to Hexagon’s inability to determine the purpose and means of the processing of Personal
Data provided by County to Hexagon. To the extent that: (a) Personal Data of Users or Authorized Cloud
Users provided by County to Hexagon pursuant to the Master Agreement is subject to the European Union
General Data Protection Regulation 2016/679, as may be amended from time to time (“GDPR”); and (b)
County and Hexagon do not have a separate, written data processing agreement, then County and
Hexagon agree that the terms of Hexagon’s Data Processing Addendum, as updated from time to time,
shall
apply;
which
may
be
found
at:
https://www.hexagonsafetyinfrastructure.com/-
/media/Legal/Hexagon/SI/Policies/DPA/DPALP/DPA_LP_08-2019.pdf.
18.2
Where County is responsible for providing Personal Data on behalf of Users or Authorized Cloud
Users directly to Hexagon, County will secure and maintain all necessary consents and make all necessary
disclosures before including Personal Data in Customer Data input to, or otherwise supplied to Hexagon.
In the event County, including all its Users, does not consent to Personal Data being processed as a result
of the Master Agreement, County acknowledges Hexagon may be unable to provide Services, Product(s),
Maintenance Services, and/or Cloud Program (or part thereof).
18.3
Hexagon will only process Customer supplied Personal Data in accordance with the Customer’s
lawful instructions and to the extent and as necessarily required to provide the applicable goods and
services under the Master Agreement and for no other purpose. Except as may be otherwise required by
law, contract, or judicial order, after expiration or earlier termination of the Master Agreement, Hexagon will
destroy all Customer-supplied Personal Data in accordance with applicable data protection laws.
18.4
If Hexagon supplies maintenance, support, or subscription services to County with respect to third-
party products, and if the third-party supplier or proprietor of such requires County be party to any data
processing agreement in connection therewith, and if County has not separately executed an instrument to
satisfy such requirement, then County and Hexagon agree that the terms of the applicable third-party data
processing
agreement,
as
updated
from
time
to
time,
found
at
https://www.hexagonsafetyinfrastructure.com/-
/media/Legal/Hexagon/SI/Policies/DPA/DPALP/DPA_LP_08-2019.pdf, shall apply.
19
Assignment.
Neither Party shall assign, sublet, or transfer all or any portion of the Master Agreement, nor any interest in
the Master Agreement, without the express written consent of the non-assigning Party, which consent may
be granted or withheld in the sole discretion of the non-assigning Party. Notwithstanding the foregoing,
Hexagon may assign its rights and obligations under the Master Agreement, without the approval of County
to: (1) an Affiliate or (2) another business entity in connection with a merger, consolidation, or reorganization
of Hexagon or any of its subsidiaries.
20
Cooperative Purchasing.
As County is a government entity, another government entity (referred to in this paragraph as a cooperative
purchaser) may, with prior written consent of Hexagon, use the Master Agreement, excluding Orders to
which it is not a party, as a contract vehicle for its purchases from Hexagon; provided that in such event the
term “Customer” shall refer solely to the relevant cooperative purchaser with respect to its transaction and
shall not refer to the cooperative purchaser with respect to transactions not for its direct benefit. Product(s)
and services will be priced and scoped upon request of the cooperative purchaser and dependent upon the
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Maricopa County, Arizona
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scope of the intended project. To the extent this clause is exercised by any cooperative purchaser with
Hexagon’s consent, Hexagon shall deal directly with the cooperative purchaser regarding the scope and
pricing of the project. Cooperative purchasers shall make their own legal determination as to whether the
collective purchasing permitted by this clause is consistent with laws, regulations, and other policies
applicable to the cooperative purchaser; and, County shall have no liability with respect to obligations of
any cooperative purchaser utilizing the terms of this section 20 to place Orders under the Master
Agreement.
21
Export.
Equipment/Content, and Hexagon IP, including any technical data related to Software, Services,
Maintenance Services, or Cloud Programs, are subject to the export control laws and regulations of the
United States. Diversion contrary to United States law is prohibited. Equipment/Content and/or Hexagon
IP, including any technical data related to Software, Services, Maintenance Services, or Cloud Programs,
shall not be exported or re-exported, directly or indirectly (including via remote access), under the following
circumstances:
x
To Cuba, Iran, North Korea, Syria, the Crimean region of Ukraine or any national of these countries
or territories;
x
To any person or entity listed on any United States government denial list, including, but not limited
to, the United States Department of Commerce Denied Persons, Entities, and Unverified Lists, the
United States Department of Treasury Specially Designated Nationals List, and the United States
Department of State Debarred List (http://export.gov/ecr/eg_main_023148.asp);
x
To any entity if County knows, or has reason to know, the end use is related to the design,
development, production, or use of missiles, chemical, biological, or nuclear weapons, or other
unsafeguarded or sensitive nuclear uses; and/or
x
To any entity if County knows, or has reason to know, that a reshipment contrary to United States
law or regulation will take place.
County agrees to comply with all applicable export control laws and regulations. User shall not request
information or documentation where the purpose of such request is to support, give effect to or comply with
a boycott of any country that is not sanctioned by the United States, including but not limited to the Arab
League boycott of Israel. Any questions regarding export or re-export of the Software should be addressed
to Hexagon’s Export Compliance Department at 305 Intergraph Way, Madison, Alabama, 35758, USA or
at exportcompliance@intergraph.com. If the Software County received is identified on the media as being
ITAR-controlled, the Software has been determined to be a defense article subject to the U.S. International
Traffic in Arms Regulations (“ITAR”). Export of the Software from the United States must be covered by a
license issued by the Directorate of Defense Trade Controls (“DDTC”) of the U.S. Department of State or
by an ITAR license exemption. The Software may not be resold, diverted, or transferred to any country or
any end user, or used in any country or by any end user other than as authorized by the existing license or
ITAR exemption. Subject to the terms of the EULA included herein, such Software may be used in other
countries or by other end users if prior written approval of DDTC is obtained.
If Customer is located outside the United States, Customer is responsible for complying with any local laws
in Customer’s jurisdiction which might impact Customer’s right to import, export or use the Software, and
Customer represents that Customer has complied with any and all regulations or registration procedures
required by applicable law related to the use and importation of the Software.
22
Non-Solicitation of Employees.
County agrees it will not, without the prior written consent of Hexagon, directly solicit any Hexagon
employee, or induce such employee to leave Hexagon’s employment, directly or indirectly, during the Term
and for a period of twelve (12) Months after the Master Agreement expires or is terminated. This restriction
does not preclude a Hexagon employee applying for an open solicitation and accepting an offer of
employment from the County.
23
Miscellaneous.
23.1
Authority. Each Party represents and certifies to the other Party it has the requisite legal authority
to enter into and be bound by the Master Agreement and all Orders arising from the Master Agreement.
Any individual purporting to execute or accept a Quote, Primary Contracting Document, or any Order
SERIAL 220158-CI
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Maricopa County, Arizona
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Documents governed by the Master Terms on behalf of a Party represents and warrants to the other Party
that such individual has the authority to bind, and does bind, the Party on whose behalf such individual
purports to execute or accept such instrument(s). By issuance of a Quote to County without the word
“DRAFT” or similar markings thereon, Hexagon represents it has the requisite legal authority to enter into
and be bound by the Master Agreement and the Order intended to result from the Quote. By executing the
Quote and returning it to Hexagon or otherwise entering into an Order, County represents and certifies to
Hexagon it has the requisite legal authority to enter into and be bound by the Master Agreement and the
Order associated therewith.
23.2
Survival. In addition to other provisions that are specifically identified as surviving termination of
this Master Agreement, the rights and obligations in sections titled “IP Ownership,” “Limitation of Liability,”
“Dispute Resolution,” “Confidential Information,” “Export,” and the terms of any license or access granted
pursuant to the Master Agreement (including, but not limited to, Exhibit A, Exhibit D, Exhibit E, and/or Exhibit
F), shall survive and continue after expiration or termination of the Master Agreement, shall remain in effect
until fulfilled, and shall apply to any permitted successors and assigns. Upon termination of the Master
Agreement, the provisions of the Master Agreement, including those in the preceding sentence, which by
their express terms survive termination, shall remain in full force and effect.
23.3
Waiver. The waiver by either Party of any of its rights or remedies in enforcing any action or breach
under the Master Agreement in a particular instance shall not be considered as a waiver of the same or
different rights, remedies, or actions for breach in subsequent instances.
23.4
Severability. If any provision of the Master Agreement or an Order is void, voidable, unenforceable,
or illegal in its terms, but would not be so if it were rewritten to eliminate such terms that were found to be
voidable, unenforceable, or illegal and such rewrite would not affect the intent of the provision, then the
provision must be rewritten to be enforceable and legal.
23.5
Headings. Numbered topical headings, articles, paragraphs, subparagraphs or titles in the Master
Agreement are inserted for the convenience of organization and reference and are not intended to affect
the interpretation or construction of the terms thereof.
23.6
Governing Law. The Master Agreement shall for all purposes be construed and enforced under
and in accordance with the laws of the state of Arizona. The Parties agree any legal action or proceeding
relating to the Master Agreement shall be instituted in a Maricopa County Superior Court or in the United
States District Court for the District of Arizona, sitting in Phoenix, Arizona. The Parties agree to submit to
the jurisdiction of and agree that venue is proper in these courts in any such legal action or proceeding.
The Parties waive the application of the United Nations Commission on International Trade Law and United
Nations Convention on Contracts for the International Sale of Goods as to the interpretation or enforcement
of the Master Agreement.
23.7
Verification Regarding Compliance with A.R.S. Section 41-4401 and Federal Immigration Law. By
entering into the Agreement, Hexagon warrants compliance with the Immigration and Nationality Act (INA
using E-verify) and all other federal immigration laws and regulations related to the immigration status of
its employees and A.R.S. §23-2 l 4(A). Hexagon shall obtain statements from its subcontractors certifying
compliance and shall furnish the statements to the Procurement Officer upon request. These warranties
shall remain in effect through the term of the Agreement. Hexagon and its subcontractors shall also maintain
Employment Eligibility Verification forms (I-9) as required by the Immigration Reform and Control Act of
1986, as amended from time to time, for all employees performing work under the Agreement and verify
employee compliance using the E-verify system and shall keep a record of the verification for the duration
of the employee's employment or at least three years, whichever is longer. I-9 forms are available for
download at USCIS.GOV.
Subject to Hexagon’s security requirements and to the extent permitted by law, County retains the legal
right to inspect Hexagon and subcontractor employee documents performing work under this Agreement
to verify compliance with Section 23.7. Hexagon and any of its subcontractors shall be given reasonable
notice of County's intent to inspect and shall make the documents available at the time and date specified.
Should County suspect or find that Hexagon or any of its subcontractors are not in compliance, County will
consider this a material breach of the Agreement and may pursue any and all remedies allowed by law,
including, but not limited to: suspension of work, termination of the Agreement for default, and suspension
and/or debarment of Hexagon. All costs necessary to verify compliance are the responsibility of County.
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23.8
Independent Contractor. The Parties agree that Hexagon is an independent contractor, that
nothing in the Master Agreement shall be construed as establishing or implying a relationship of master
and servant between the Parties, or any joint venture or partnership between the Parties, and that nothing
in the Master Agreement shall be deemed to constitute either of the Parties as the agent of the other Party
or authorize either Party to incur any expenses on behalf of the other Party or to commit the other Party in
any way whatsoever. Hexagon and its agents, employees, or subcontractors shall at no time be deemed
to be agents, employees, or subcontractors of County or be deemed to be under the control or supervision
of County when carrying out the performance of its obligations in the Master Agreement. Without the prior
written consent of County, Hexagon shall not carry on any activity that could be construed as being on
behalf of County.
23.9
Limitation on Claims. Except as otherwise prohibited from applicable law, no claim, regardless of
form, arising out of or in connection with the Master Agreement may be brought by County more than two
(2) years after the event giving rise to the cause of action has occurred.
23.10
Anti-Bribery. Each Party hereby certifies it shall comply with all applicable laws in carrying out its
duties under the Master Agreement, including, but not limited to, the United States Foreign Corrupt
Practices Act (“FCPA”). In particular, County, on behalf of itself and its Affiliates, and Hexagon, each
severally represent and agree that: such party is familiar with the FCPA and its purposes and agrees to
comply with the acts; specifically, such party is aware of and will comply with the FCPA’s prohibition of the
payment or the gift of any item of value, either directly or indirectly, to an official of a government, political
party or party official, candidate for political office, or official of a public international organization, for the
purpose of influencing an act or decision in his/her official capacity, or inducing him/her to use his/her
influence with the government to assist a company in obtaining or retaining business for, with, or in that
country or directing business to any person; such party has not made, and will not make, payments to third
parties which such party knows or has reason to know are illegal under the FCPA, or the laws of any
applicable jurisdiction; and the method of making payment to Hexagon as provided hereunder is not in
violation of the law of any applicable jurisdiction. Either Party has the right to terminate the Master
Agreement upon any violation of the FCPA or similar laws by the other Party.
24
Entire Agreement.
The Master Agreement constitutes the entire agreement between the Parties with regard to the subject
matter hereof. Except as otherwise provided in the Primary Contracting Document, the Master Agreement
supersedes any and all prior discussions and/or representations, whether written or oral, and no reference
to prior dealings may be used to in any way modify the expressed understandings of the Master Agreement.
The Master Agreement may not be amended or modified unless so done in a writing signed by authorized
representatives of both Parties. The pre-printed terms and conditions of County’s PO or any other terms
and conditions of a County PO shall be void, even if issued subsequent to the effective date of the Master
Agreement and shall not be deemed to constitute a change to the Master Agreement.
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EXHIBIT A
END-USER LICENSE AGREEMENT
IMPORTANT—READ CAREFULLY: This EULA is a legal agreement by and between User and
Hexagon. Software is also subject to Use Terms. Any software, including, without limitation, any
third-party components and/or Updates, associated with a separate end-user license agreement is
licensed to User under the terms of that license agreement. Use Terms applicable to an Update shall
apply to the Update. All use of the Software is subject to applicable Order Documents.
1
LICENSE GRANT. Provided User is not in breach of any term or condition of this EULA, Hexagon
hereby grants User a limited, non-exclusive license up to the quantity of Software licenses
purchased by User to: (i) install and use the Software, in object code form only; (ii) use, read, and
modify Documentation prepared by Hexagon and delivered to User pursuant to the Order
Documents; and/or (iii) view and/or use Hexagon audio-visual training materials provided to User
pursuant to the Order Documents; provided all of the foregoing shall be strictly for User’s internal
use and strictly in accordance with this EULA and the applicable Order Documents. The license is
non-transferable, except as specifically set forth in this EULA. User assumes full responsibility for
the selection of the Software to achieve User’s intended results, and for the installation, use and
results obtained from the Software.
2
UPDATES. If the Software is an Update to a previous version of the Software, User must possess
a valid license to such previous version to use the Update. Neither the Software nor any previous
version may be used by or transferred to a third party. All Updates are provided to User on a
license exchange basis and are subject to all of the terms and conditions of the EULA provided
with the Update. By using an Update, User (i) agrees to voluntarily terminate User’s right to use
any previous version of the Software, except to the extent that the previous version is required to
transition to the Update; and (ii) acknowledges and agrees that any obligation that Hexagon may
have to support the previous version(s) of the Software will end upon availability of the Update. If
an Update is provided, User will take prompt action to install such Update as directed by Hexagon.
If User fails to do so, User acknowledges that the Software may not work correctly or that User will
not be able to take advantage of all the Software’s available features. In such event, Hexagon will
not be liable for additional costs User incurs because of User’s failure to install such Update. For
Third Party Software, please read carefully the applicable Third-Party Terms regarding concurrent
use of an Update and the prior version of Software during transition to the Update as the Third-
Party Terms may differ from terms applicable to Hexagon Software Products.
3
RIGHTS AND LIMITATIONS.
3.1
The Following are Permitted for User’s License:
User may make one copy of Software media in machine readable or printed form and solely
for backup purposes. Hexagon retains ownership of all User created copies. User may
not transfer the rights to a backup copy unless User transfers all rights in the Software and
license as provided for in Section 3.2.1 below. Any other copying of the Software, any use
of copies exceeding the number of copies User has been authorized to use and has paid
for, and any distribution of the Software not expressly permitted by this EULA, is a violation
of this EULA and of federal and/or applicable governing law.
3.2
The Following are Prohibited for User’s License:
3.2.1
User shall not sell, rent, license, lease, lend or otherwise transfer the Software, or
any copy, modification, or merged portion thereof without Hexagon’s express
written consent for such transfer, which consent may not be unreasonably
withheld. Any such unauthorized transfer will result in automatic and immediate
termination of the license.
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3.2.2
The Software is licensed as a single product. User shall not, and User shall not
authorize anyone else to: (i) decompile, disassemble, or otherwise reverse
engineer the Software; (ii) work around any technical limitations in the Software;
(iii) publish the Software for others to copy or use; (iv) use, copy, modify, distribute,
disclose, license or transfer the Software, or any copy, modification, or merged
portion, in whole or in part, except as expressly provided for in this EULA; (v) re-
use the component parts of the Software with a different software product from the
one User is licensed to use or on different computers; (vi) circumvent any license
mechanism in the Software or the licensing policy; (vii) publish to a third party any
results of benchmark tests run on the Software; (viii) use or view the Software for
any purposes competitive with those of Hexagon; (ix) use the Software except as
expressly set forth in this EULA; and (x) unless otherwise specifically permitted in
writing by Hexagon, use the Software outside the country in which it is licensed.
3.3
Fault Tolerance.
The Software is not one hundred percent (100%) fault tolerant. Unless the Software’s
Documentation expressly provides the contrary, the Software is not designed or intended for use
in any situation where failure or fault of any kind of the Software could lead to death or serious
bodily injury of any person, or to severe physical, property or environmental damage (“High-Risk
Use”); and, User is not licensed to use the Software in, or in conjunction with, any High-Risk Use.
High-Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following:
operation of aircraft or other modes of human mass transportation, nuclear or chemical facilities,
and Class III medical devices. User hereby agrees not to use the Software in, or in connection with,
any High-Risk Use. High Risk Use shall not mean use of the Software for purposes for which it is
regularly marketed and sold (e.g., public safety and utility dispatch software may be used to
dispatch police, fire, emergency medical services, and emergency utility services).
3.4
Licensing Mechanism Disclaimer.
Without waiver of any of its rights herein, Hexagon may at its sole discretion provide User who is
operating public safety Software a licensing mechanism to allow such Software to be available for
use even when User has accessed all of its purchased licenses. Regardless of whether it receives
the licensing mechanism, User acknowledges it is permitted to use the Software only up to the
number of licenses it has purchased. Any usage of Software beyond the amount purchased by
User will be subject to the payment of additional fees by User to Hexagon at then current prices for
the Software in like manner as provided in Section 6.2 below (Audit).
4
USER OBLIGATIONS.
4.1
The Software may require User’s System to comply with specific minimum software,
hardware, and/or Internet connection requirements. The specific minimum software,
hardware, and/or Internet connection requirements vary by Software and type of license
and are available from Hexagon upon request.
4.2
User is responsible, and bears the sole risk, for backing up all systems, software,
applications, and data, as well as properly using the Software.
4.3
At all times, User must keep, reproduce and include all copyright, patent, trademark and
attribution notices on any copy, modification or portion of the Software, including, without
limitation, when installed, used, checked out, checked in, and/or merged into another
program.
4.4
User shall comply with the Use Terms, including limitations that apply to specific types of
licenses identified therein.
5
TERM.
5.1
For a Perpetual License, this EULA is effective until terminated (i) by User, by returning to
Hexagon the original Software or by permanently destroying the Software, together with all
copies, modifications, and merged portions in any form; (ii) by Hexagon, upon User’s
breach of any of the terms hereof or User’s failure to pay the appropriate license fee(s); or
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(iii) upon User’s installation of an Update that is accompanied by a new license agreement
covering the Software Update. User agrees upon the termination of this EULA to cease
using and to permanently destroy the Software (and any copies, modifications and merged
portions of the Software in any form, and all of the component parts of the Software), and
to certify such destruction in writing to Hexagon.
For a Subscription License, this EULA is effective until the User’s Subscription Term
expires without being renewed; by Hexagon upon User’s breach of any of the terms hereof;
User’s failure to pay the appropriate Subscription License fee(s); or, the Subscription is
otherwise terminated. User agrees upon the termination of this EULA or expiration of
User’s Subscription to cease using and to permanently destroy the Software (and any
copies, modifications, and merged portions of the Software in any form, and all of the
component parts of the Software), and to certify such destruction in writing to Hexagon.
6
AUDIT.
6.1
Hexagon shall have the right to:
6.1.1
Audit User’s use of the Software and User’s compliance with the provisions of this
EULA during User’s normal Business Hours. Hexagon will provide User with thirty
(30) days prior written notice of an audit under this Section. Hexagon’s right to
conduct this type audit shall be limited to twice per calendar year. Prior to the start
of an audit, Hexagon’s personnel will sign a reasonable non-disclosure agreement
provided by User. During the audit, User shall allow Hexagon’s personnel to be
provided reasonable access to both User’s records and personnel.
6.1.2
Obtain certain documentation from User, as follows. If the Software includes
logging mechanisms intended to track usage volume or quantity, User shall
transmit log files associated therewith to Hexagon upon Hexagon’s demand and
in accordance with Hexagon’s reasonable transmission instructions. Hexagon will
not demand the transmission of usage tracking log files more frequently than four
(4) times in any calendar year.
6.2
In the event the results of the audit in Section 6.1.1 other documentation provided by User
in Section 6.1.2 determines that User has used unlicensed Software or quantities thereof,
and User has had a reasonable opportunity to review and respond to the audit. User to
promptly pay Hexagon: (i) the current list price for each unlicensed Software used by User;
(ii) interest of two percent (2%) per month or the highest rate allowed by applicable law
for each month, commencing with the initial month of unlicensed usage of the Software);
and (iii) the costs for the audit in Section 6.1.1. If User disputes the audit findings, the
matter shall be resolved in accordance with the Dispute Resolution procedures set forth
in Section 12 of the Master Terms.
END OF EXHIBIT A
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EXHIBIT B
MAINTENANCE TERMS AND CONDITIONS FOR SOFTWARE
These terms and conditions (“Maintenance Terms”) govern the provision of maintenance and support
services by Hexagon with respect to Covered Products.
1. DEFINITIONS.
All capitalized terms not otherwise defined herein shall have the meaning set forth in the associated Exhibit
titled “Common Terms Glossary.”
2. TERM.
2.1. Term. The Maintenance Contract shall begin, retroactively (if applicable), on the first calendar
day of the first Month of the Coverage Period and shall expire on the last calendar day of the last
Month of the Coverage Period. The Coverage Period shall be for whole Months only.
2.2. Renewal. Prior to expiration of the Coverage Period, Hexagon may submit to County a renewal
quote with pricing for extension of the Coverage Period. The Parties may extend the Coverage
Period pursuant to Order Documents.
2.3. Lapse. In the event of a Lapse: (i) Hexagon shall, at any time, be entitled to discontinue
Maintenance Services, in whole or in part, for the affected Covered Products; (ii) Hexagon shall
be relieved of any previously provided pricing commitments or options for Maintenance Services,
if any, related to time periods following the Lapse; and, (iii) Hexagon may permit County to
reinstate support for Covered Products pursuant to Hexagon’s then current policies and
practices, including any policies or practices related to payment of reinstatement fees.
3. SCOPE OF COVERAGE FOR COVERED SOFTWARE PRODUCTS.
Maintenance Services described in this Section apply to Covered Software Products only. Maintenance
Services for Covered Third Party Products are separately stated.
Hexagon offers three levels of Maintenance Services for Covered Software Products, dependent upon the
Software Product and other factors. Under all levels of Maintenance Service, Hexagon shall provide
reasonable commercial efforts to aid in the diagnosis of Defects. Under all levels of Maintenance Services,
but only until the subject Software Product version reaches Version Limitation I or Version Limitation II,
Hexagon shall provide reasonable commercial efforts to aid in correction of Defects. After a Software
Product version reaches Version Limitation I, but only until the subject Software Product reaches Version
Limitation II, Hexagon shall provide reasonable commercial efforts to aid in correction of Level One Defects
only. The level of Maintenance Services for each Software Product is identified in the Order Documents,
subject however to Version Limitations. Defect corrections provided by Hexagon shall, unless otherwise
agreed by Hexagon, be delivered within Hexagon’s product releases, and in accordance with Hexagon’s
standardized release cycles. Levels of Maintenance Services are as follows:
3.1. Advantage Support. Advantage Support will include and be limited to the diagnostic and Defect
correction support as described above, and the following: Out-of-the-box functionality support
via the support help desk (telephone or eService via the Designated Portal; and, access to any
available Hexagon problem knowledge base online self-help tool. Phone support is available
Monday through Friday from 8AM – 5PM at County’s local time, excluding Hexagon-observed
holidays. Local variances in support hours will be posted online or can be determined by
contacting County’s local Hexagon office.
3.2. Standard Support. Standard Support will include and be limited to the following:
3.2.1.
All features of Advantage Support.
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3.2.2.
Access to available Updates of Covered Software Products. Hexagon will notify County
when Updates are made available for any Covered Software Products for which
Maintenance Services have been purchased, by way of posting notices of such to the
“Support Notices and Announcements” section on the Designated Portal site, where
available, or via direct notification by Hexagon. Updates are shipped to County upon
County’s request logged in the Designated Portal site. Hexagon is not obligated to
produce any Updates. For avoidance of doubt, a Customer’s entitlement to Updates
shall not include entitlement to any therein embedded or otherwise related module or
function which is licensed and priced separately from Covered Products for which
Customer has purchased an entitlement to Updates.
3.3. Premium Support. Premium Support will include all features available under Standard Support
(subject to Version Limitations). Additionally, for a Level One Defect, phone support is also
available after-hours and on Hexagon-observed holidays.
3.4. Product Change Requests will be reported in like manner as set forth in Section 3.1. Hexagon
will review Product Change Requests and at its sole discretion decide whether to make the
requested change to the Covered Product(s) through an Update. Product Change Requests not
accepted may be the subject of a separate Order between the Parties. For the avoidance of
doubt, to the extent Hexagon agrees to make a requested change to a Covered Product pursuant
to a Product Change Request, any and all IPR resulting from the Update, including the change
or modification is and shall remain the property of Hexagon.
4. MINIMUM SYSTEM REQUIREMENTS; CUSTOMER’S OBLIGATIONS.
Performance of Maintenance Services by Hexagon is specifically conditioned upon the following minimum
system requirements and fulfillment by Customer of the following obligations (collectively, minimum system
requirements and customer obligations hereinafter referred to as “Customer Obligations”):
4.1. System Requirements. Customer is responsible for ensuring: the System Equipment and
network infrastructure meet minimum system requirements specified by Hexagon and made
available to Customer upon request; its System Equipment and network infrastructure are
adjusted as required to accommodate Updates of Covered Products; compatibility of non-
Hexagon provided products with products provided by Hexagon; and, its systems, software, and
data are adequately backed up. Hexagon is not liable for lost data.
4.2. Hexagon Access and Customer Cooperation. Customer’s system and/or System Equipment
must have input and output devices that enable the use of Hexagon’s diagnostic programs and
supplemental tests. Customer will permit Hexagon to electronically access Customer’s system
via Secure Access Tool. Customer will ensure availability of its own system technical support
personnel so that Hexagon can fulfill its Maintenance Services obligations. When reporting
problems to Hexagon’s support help desk, Customer will provide a complete problem description,
along with all necessary documents and information that is available to Customer and required
by Hexagon to diagnose and resolve the problem. Customer will grant all necessary access to
all required systems as well as to the Covered Products, and any other reasonable assistance
needed. Customer will carry out any reasonable instructions and will install any necessary
patches, Defect corrections, or Updates. Customer will appoint a minimum of two and a
maximum of five contact people who are each authorized to make use of the Maintenance
Services (“Authorized Contacts”). Customer is obligated to select only those personnel for this
task who are suitable for it by means of training and function, and who have knowledge of
Customer’s operating system, network, and hardware and software. Customer agrees to
promptly notify Hexagon of any replacement of an Authorized Contact. Customer must ensure
Authorized Contacts have adequate expertise, training, and experience to provide professionally
accurate descriptions of malfunctions and facilitate Hexagon’s efficient response. Authorized
Contacts must have successfully completed Hexagon product training, or complete it at the next
available scheduled opportunity, for those products for which formal training is available.
Customer will bear the cost of this training. Customer will enter and/or log requests for assistance
in such systems, and utilizing such forms, as Hexagon may designate from time to time.
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5. EXCLUDED SOFTWARE SERVICES.
Services for the following are outside the scope of the Maintenance Contract and may be available
under separate Order at an additional charge (collectively “Excluded Services”):
5.1. Installation of any Covered Product, Update, or interface software;
5.2. Network configuration;
5.3. Configuration or customization of Covered Products to County or other third-party requirements
(except as necessary to remedy a Defect);
5.4. System-level tuning and optimization and system administration support;
5.5. Training;
5.6. Services required because the Authorized Contact is not available or is not trained;
5.7. On-site services (unless waived by Hexagon, in its sole discretion);
5.8. Services required due to modifications of Covered Products by County;
5.9. Services required due to use other than in the ordinary manner intended for the Covered
Products, or use in a manner that contravenes terms hereunder, or County’s disregard of the
installation and operating instructions according to the Documentation provided with the Covered
Products;
5.10. Services required due to failure of software or hardware that is not a Covered Product;
5.11. Services required due to County’s use of hardware or software that does not meet Hexagon
specifications or failure of County to maintain or perform industry standard maintenance on
County’s hardware or software;
5.12. Services required due to software or portions thereof that were (i) incorrectly installed or
configured (other than by Hexagon), (ii) used in an environment inconsistent with the support
environment specified by Hexagon, and/or (iii) used with peripherals, operational equipment or
accessories not conforming to Hexagon’s specifications;
5.13. Services required due to cases of force majeure, especially lightning strikes, fire or flood, third-
party criminal acts, or other events not caused through Hexagon’s fault;
5.14. Services required due to County’s failure to fulfill the Customer Obligations; and/or
5.15. Services required due to faulty or incomplete Customer data.
6. COVERED THIRD PARTY PRODUCTS.
Support and Updates of Covered Third Party Products shall be provided in the fashion and to the extent or
duration that Hexagon is authorized to provide such by the third-party manufacturer of the Covered Third-
Party Products, and such Covered Third-Party Products and related services may be subject to additional
terms and conditions of the third-party manufacturer of the Third-Party Software.
Services and updates for any Third-Party Software not listed in the Order Documents as Covered Products
must be obtained from the third-party owner of the products or their designated representative.
7. REQUIRED COVERAGE.
7.1. Multiple or Interdependent Licenses. If County holds multiple licenses for any Covered Product,
all held licenses must be included as Covered Products in the Maintenance Contract.
7.2. Prerequisite Licenses. All prerequisite licenses for Software Products necessary to operate the
Covered Products, together with all licenses of Software Products interoperating with Covered
Products in a single solution, must be included as Covered Products in the Maintenance
Contract.
8. ADDITIONS AND REMOVALS OF COVERED PRODUCTS.
8.1. Additions of Covered Products. Software Products licensed from Hexagon during the term of the
Maintenance Contract may be added as Covered Products, if such addition is addressed through
additional related Order Documents. If Software Products are not added as Covered Products by
commencement of Production use thereof, Hexagon may permit County to add them as Covered
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Products, but subject to additional fees payable pursuant to Hexagon’s then current policies or
practices.
8.2. Removal of Covered Products from Maintenance. Either Party may provide written notice to the
other Party at least sixty (60) calendar days prior to the end of any Coverage Period Anniversary
of its intent to remove any individual Covered Products from the Maintenance Contract at the end
of the then current and contracted Coverage Period or any Coverage Period Anniversary.
Neither Party may remove Covered Products except upon Coverage Period renewal or extension
or Coverage Period Anniversary; provided that Hexagon may additionally remove Covered
Products as part of a general discontinuance program at any time upon one hundred eighty (180)
days’ written notice. County may not remove from the Maintenance Contract individual software
licenses of a Covered Product for which County has multiple copies under Maintenance Services
or for Covered Products that are being used interdependently, unless County has first certified
to Hexagon on a “Software Relinquishment Agreement” that it surrenders and relinquishes all
rights in and to the applicable Software licenses and the copies of the Covered Product for which
County desires to cease Maintenance Services (the “Relinquished Licenses”) for the renewal
Coverage Period have been uninstalled and removed from its System(s). Should County desire
to resume usage of the Relinquished Licenses at a later date, County must re-purchase the
licenses at the then current list price.
9. PAYMENT.
9.1. Terms of Payment. Charges for Maintenance Services are due and payable annually and in
advance. All charges are due net thirty (30) calendar days from the date of invoice or prior to the
beginning of the applicable Coverage Period, whichever is earlier. Charges for Covered Software
Products added during a Coverage Period shall be prorated to the remaining Months of the
Coverage Period, in whole Month increments only, and such charges shall be due and payable
in full upon receipt of invoice. Covered Third Party Products added during a Coverage Period are
subject to Section 6 of these Maintenance Terms.
9.2. Past Due Accounts. HEXAGON RESERVES THE RIGHT TO REFUSE SERVICE TO ANY
CUSTOMER WHOSE ACCOUNT IS PAST DUE. At the discretion of Hexagon, Customers who
have not paid any charges when due (i) under the Maintenance Contract, (ii) under any other
agreement between the Parties, or (iii) under any agreement between Hexagon and Customer’s
parent and/or subsidiary, may not be rendered Maintenance Services until all undisputed past
due charges are paid in full. The start of the Coverage Period shall not be postponed due to
delayed payment of any charges.
9.3. County’s Responsibilities Concerning Invoice Questions. Subject to applicable law, if County
intends to dispute a charge or request a credit, County must contact Hexagon within ten (10)
calendar days of the date on the invoice. County waives any right to dispute a charge or receive
a credit for a charge for Maintenance Services that County does not report within such period.
10. CUSTOMER ACKNOWLEDGEMENTS.
During the Coverage Period, County commits to the following:
10.1. County shall have reviewed the Order Documents and by executing the Order Documents
confirms the Order Documents accurately reflects all Hexagon software in its possession or
control.
10.2. County acknowledges and confirms that for all Covered Products supported under the
Maintenance Contract, all licenses of a Covered Product for which County has multiple copies in
its possession and all prerequisite licenses necessary to operate Covered Products, are
accounted for in the Order Documents. If all like Covered Products or prerequisite software
licenses are not accounted for in the Order Documents, County agrees to notify Hexagon so that
Hexagon may issue a revised Quote to County.
10.3. County acknowledges and confirms Maintenance Services provided herein shall be utilized only
for the quantity of Covered Products licenses listed in the Order Documents.
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11. ADDITIONAL TERMS.
11.1. Pass-Through Third-Party Warranties. Covered Third Party Products are only warranted
pursuant to a pass-through warranty to County from the applicable Third-Party Software
manufacturer and only to the extent warranted by the applicable Third-Party Software
manufacturer.
11.2. Remedies. In the event a warranted Maintenance Service, Covered Product, or Update provided
pursuant to the Maintenance Contract does not substantially comply with the limited warranties
set forth in the Maintenance Contract, Hexagon’s entire liability and County’s exclusive remedy
shall be, in Hexagon’s sole and absolute discretion, either (i) providing of a Service, Covered
Product, or Update which conforms substantially with the warranty; or (ii) a refund of the purchase
price of the particular warranted Service, Covered Product, or Update for the period of time that
the warranted Service, Covered Product, or Update did not substantially conform to the limited
warranties set forth in the Maintenance Contract.
Hexagon is acting on behalf of its suppliers for the sole purpose of disclaiming, excluding and/or
limiting obligations and liability as provided in the Maintenance Contract, but in no other respects
and for no other purpose.
11.3. WARRANTY DISCLAIMERS. In addition to the Warranty Disclaimer provided in the Master
Terms, Hexagon does not warrant that any Services, Covered Products, and Updates provided
pursuant to the Maintenance Contract will meet County’s requirements, and under no
circumstances does Hexagon warrant that any Services, Covered Products, and Updates will
operate uninterrupted or error or Defect free.
11.4. Third Party Providers. Hexagon reserves the right to provide Maintenance Services through a
third-party provider.
END OF EXHIBIT B
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EXHIBIT C
PROJECT DELIVERABLE SIGN-OFF FORM
CUSTOMER NAME, CUSTOMER CITY – PROJECT NAME
Submission Date:
Month/Day/Year
Sign-Off Target Date:
Month/Day/year
Submitted By:
Hexagon Contact Name
Submitted To:
Customer Contact Name
Customer Contract #:
Customer Contract Number
Customer/Project #:
Hexagon Project Number
TYPE OF DELIVERABLE
SOW Tasks
Payments
Plans/Designs
Training
Other
DELIVERABLE INFORMATION
DELIVERABLE DESCRIPTION $AMOUNT OF PYMT
THIS SECTION DESCRIBES THE DELIVERABLE (If applicable)
With the deliverable described above complete, the Customer shall have ten (10) Business Days after receipt of a written request from
Hexagon, to either sign-off that the Task Acceptance Criteria has been satisfied or state in writing to Hexagon the reason the Task
Acceptance Criteria has not been satisfied.
Sign-off of the Task shall be based solely upon satisfaction of the Task Acceptance Criteria stated in the Contract between Hexagon and
CUSTOMER NAME dated Month/Day/Year and shall be indicated by the Customer signing the Project Deliverable Sign-off Form. If the
Customer does not provide such sign-off or rejection within the ten (10) Business Days after delivery, then the Task will be deemed to
have been accepted.
The signature below acknowledges that Task Acceptance Criteria described in the Statement of Work and listed above has been
satisfied and the Task is accepted.
Authorized Customer Representative
Customer Contact Name
_________________________________ ___________________________________
SIGNATURE DATE
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END OF EXHIBIT C
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EXHIBIT D
CLOUD PROGRAM CONDITIONS
These terms and conditions (“Cloud Conditions”) govern the provision of the Cloud Program by Hexagon
to County under a Cloud Program Order. Any additional terms in any Cloud Services Schedule(s) also
apply.
1. DEFINITIONS.
Capitalized terms used and not otherwise defined herein have the meanings assigned in the Common
Terms Glossary.
2. SCOPE OF CLOUD PROGRAM.
2.1
From the Cloud Program Start Date and for the duration of the Cloud Term, Hexagon will provide
the License Key(s) to County in the amount specified in the Quote with respect to the Cloud
Program purchased by County to use the Cloud Program subject to the provisions of these Cloud
Conditions. Except for the Cloud Services, no other service, including Cloud Consulting Services,
are provided by Hexagon pursuant to a Cloud Program Sales Order.
2.2
Hexagon may from time to time provide or otherwise make available Local Software. Local
Software may include mobile applications obtainable from an online applications store,
applications owned by a third-party, or other facilitating applications. In the event Hexagon
provides or makes available such applications, the same shall be made available to County and
owned by Hexagon (or the relevant third party) and used subject to these Cloud Conditions. If
not sooner terminated, the license to use such Local Software shall terminate upon expiration of
the Cloud Term.
3. CLOUD SERVICES AUTHORIZATION.
During the Cloud Term, Hexagon grants County and its Affiliates the right to access and use components
of the Cloud Program listed in the quantities reflected on the Quote solely for County’s and Affiliates’ own
internal business purposes and subject to these Cloud Conditions.
4. TERM, TERMINATION AND SUSPENSION.
4.1
The Cloud Program Order commences on the Effective Date of the Order and shall continue for
the Cloud Term, unless earlier terminated in accordance with the Master Terms and these Cloud
Conditions. To the extent any optional renewals are identified in the Quote, County must issue a
PO or a notice to proceed to extend the Cloud Term and at the prices set forth in the Quote not
less than sixty (60) days prior to the end of the Cloud Term. Prior to the end of the Cloud Term,
County may renew the Cloud Program Order and/or have Customer Data Offboarded.
4.2
In addition to the rights and remedies set forth in the Master Terms, once notified in writing of an
overdue payment, County acknowledges Hexagon may, without further notice, reduce the Cloud
Services to the lowest tier of Cloud Services offered by Hexagon. During such time, Hexagon or
the Third-Party Service Provider is not obligated to facilitate or provide any services related to
Onboarding or Offboarding. Without waiver of its right to terminate the Master Agreement and/or
Cloud Program Order or seek additional remedies, if full payment has not been received by
Hexagon within thirty (30) days following written notice, Hexagon may suspend providing the
Cloud Program to County until all outstanding Cloud Program Fees together with any applicable
interest has been paid to and received by Hexagon. Suspension of the Cloud Program for non-
payment shall not prejudice Hexagon’s rights hereunder or relieve County from the obligation to
pay Cloud Program Fees associated with the period of suspension.
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4.3
Termination shall not relieve County of the obligation to pay any Cloud Program Fees accrued or
payable to Hexagon prior to the date of termination. Unless otherwise agreed to in writing by
Hexagon, in the event Hexagon terminates a Cloud Program Order due to any of the conditions
set forth in Section 4.2 above, then under no circumstances whatsoever shall County be entitled
to any refund of Cloud Program Fees paid in advance to Hexagon pursuant to the terms of the
Master Agreement.
5. AVAILABILITY. Hexagon shall reasonably endeavor to deliver Availability in accordance with the
Service Level specified in the applicable Cloud Services Schedule. “Availability” or “Available” means
the ability to connect to the Cloud Portal, connect to the Customer Cloud Environment for Production,
launch Cloud Application(s), and access Customer Data contained in the Customer Cloud Environment
for Production. Availability does not include the availability of third-party portals or Cloud Optional
Services. Availability of Cloud Application(s) shall be determined by launching the main application for
the applicable Cloud Application. For purposes of calculating Availability time, the following is excluded:
time expended for Planned Maintenance; downtime required to perform Cloud Consulting Services;
time expended due to the inability for Customer to connect to the Cloud Portal due to problems with
the Customer’s infrastructure or the internet; unavailability arising from Customer exceeding Customer
purchased Cloud Application capacity; and, time expended due to any other circumstances beyond
Hexagon’s reasonable control, including Customer’s or any User’s use of third-party materials or use
of the Cloud Program other than in compliance with the express terms of the Master Agreement and
Hexagon’s reasonable instructions (collectively “Exception(s)”).
6. CRITICAL SERVICE LEVELS. The purchased Service Level classifications are set forth in the Cloud
Service Schedule. “Service Operational Time” means the time, expressed in a percentage as set forth
below, that the Cloud Application is Available for a given Month during the service. The method of
calculating the Service Operational Time is:
Hours of Cloud Program Availability for a given Month
x 100
Hours of Cloud Program Availability + downtime hours for such Month which are not related to
an Exception
7. SERVICE CREDITS.
7.1
If in any Month the Service Operational Time in a Cloud Environment for Production falls below
the purchased Service Level (a “Service Incident”), a “Return to Green Plan” shall be initiated
for the Customer’s Production Environment. Hexagon shall have: (i) the remainder of the Month
in which the Customer notified Hexagon of the Service Incident by way of a Cloud Service
Request, which notified Hexagon of the problem which resulted in the Service Operational Time
falling below the applicable Service Level, plus (ii) one (1) additional Month (collectively, the “Go
Green Period”), to return the Service Operational Time to such Service Level.
7.2
Subject to Section 7.3 below, if the Service Operational Time does not rise to the applicable
Service Level within the Go Green Period, then the Service Credit provided in the Cloud Service
Schedule will be applied against each Month in which the Service Operational Time remains
below such Service Level.
7.3
Service Credits apply:
7.3.1 Only as specified within the applicable Cloud Services Schedule;
7.3.2 Only to the extent that the affected Customer Environment is used in Production;
7.3.3 In strict accordance with Section 5;
7.3.4 Only if a Customer has logged a Cloud Service Request which notified Hexagon of the
problem that causes the Critical Service Level to fall below the identified Availability percentage
in the applicable Cloud Services Schedule (“Green”); and
7.3.5 Only where Customer is compliant with the AUP.
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7.4
To the extent applicable and properly noticed by Customer in accordance with Section 7.1 above,
Service Credits shall be credited against the next invoice until such applicable Service Credits
have been used. If the Master Agreement is terminated or Customer elects not to renew the
Master Agreement before an ensuing invoice is issued, then such Service Credits are forfeited.
Customer shall have no right to receive any monetary remuneration in exchange for unused
Service Credits. Notwithstanding anything herein to the contrary, in no event shall Service Credits
for any given year during the Cloud Term exceed twenty percent (20%) of the amount of Cloud
Program Fees payable by Customer to Hexagon pursuant to the Quote for the annual period in
which the Service Credit accrued.
7.5
The Customer’s exclusive remedy for not meeting the Critical Service Level specified in the
applicable Cloud Services Schedule shall be the Service Credits as set forth in this Section.
8. CLOUD SERVICES SUPPORT.
8.1
As part of Cloud Services, Hexagon will provide the Cloud Services Support described within
this Section 8.
8.2
Cloud Services Support is available at the times specified in the applicable Cloud Services
Schedule. Cloud Service Requests and Product Change Requests can be directed by an
Authorized Cloud User to Hexagon by: (i) the Designated PortalWe, or (ii) telephoning Hexagon
support at the times permitted within the Cloud Services Schedule.
8.3
When reporting a Cloud Service Request, if an Error, an Authorized Cloud User shall assign the
Cloud Service Request a priority level based upon the criteria set forth in the Designated Portal
. The Authorized Cloud User shall provide a brief justification as to the criticality of the Cloud
Service Request and a description of the Error giving rise to the Cloud Service Request, to
include a statement of steps necessary to produce the Error. Hexagon shall respond to the Cloud
Service Request and provide commercially reasonable efforts to aid and address the Cloud
Service Request. If Hexagon disagrees with the priority of the Cloud Service Request, it shall
discuss the matter with Customer, but Hexagon, in its sole discretion, reserves the right to revise
the initially reported priority level of the Cloud Service Request.
8.4
Product Change Requests will be reported in like manner as set forth in Section 8.3. Hexagon
will review Product Change Requests and at its sole discretion decide whether to make the
requested change to the Cloud Program. Product Change Requests not accepted may be the
subject of a separate contract between the Parties. For the avoidance of doubt, to the extent
Hexagon agrees to make a requested change to the Cloud Program pursuant to a Product
Change Request, any and all IPR resulting from such change or modification is and shall remain
the property of Hexagon.
8.5
Customer acknowledges and agrees that, as part of providing Cloud Services Support, Hexagon
is permitted to make necessary changes to the Cloud Program, without notice if necessary, to
perform Emergency Maintenance. Hexagon shall be permitted to access the Customer Cloud
Environment in the event Hexagon deems Emergency Maintenance is necessary.
8.6
As it relates to, and only to, Local Software, which is listed on the Quote, Hexagon shall provide
support in like manner as is provided for Cloud Applications except Customer will permit Hexagon
to electronically access the Local Software in the Local Environment via Secure Access Tool.
Support for Local Software listed on the Quote is included within Cloud Services Support except
as is otherwise rendered commercially unreasonable due to the Local Software being hosted by
Customer.
8.7
Except as otherwise necessary, as determined by Hexagon in its sole discretion, to satisfy the
requirements of Sections 8.3 and 8.4, Cloud Services Support does not include: (i) training; (ii)
configuration of Cloud Application(s), Cloud Optional Services, Cloud Portal, Third Party
Software Products, Software Products, or other components of the Cloud Program; (iii) Customer
Cloud Administration; (iv) programming or software development; (v) modifications to the Cloud
Applications or Cloud Optional Services not accepted as a Product Change Request; (vi) onsite
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services; or (vii) services required because Customer has not performed its obligations under the
Master Agreement.
8.8
Updates.
8.8.1 As part of Cloud Services Support, Customer is entitled to receive all Updates to the
purchased Cloud Application(s) and Local Software that Hexagon makes available. Cloud
Consulting Services may be necessary to Update Cloud Optional Services, which is not part of
Cloud Services Support.
8.8.2 From time to time, Hexagon may notify Customer through the Designated Portal that
Hexagon has developed an Update for the purchased Cloud Application(s) and intends to deploy
said update, including any applicable Third-Party Software Products. On the date specified in
the notification, Hexagon will deploy the Update to the Cloud Development Environment for
Customer testing and review, which Customer shall complete within the time prescribed in the
notification of the availability of the Update, but not less than thirty (30) days thereafter (the
“Testing Period”). In the event no Material Adverse Effect is reported by Customer within the
Testing Period, then on a subsequently specified date by Hexagon, Hexagon will, at its discretion,
deploy the update to Customer Cloud Environment for Production.
8.8.3 In the event Customer provides written notice to Hexagon, within the Testing Period, of a
Material Adverse Effect as a result of Customer’s testing of the Update in accordance with
Section 8.8.2 above, Hexagon shall discuss the matter with Customer and use commercially
reasonable efforts to address any reasonable workarounds to such Material Adverse Effect, such
agreed upon workaround to be subject to the same protocols set forth in Section 8.8.2 and this
Section 8.8.3; provided, however, if Hexagon reasonably finds that no Material Adverse Effect
exists, Hexagon may deploy the Update to the Customer Cloud Environment for Production.
8.8.4 As it relates to implementing Updates for Local Software that is included within the Cloud
Program, Customer shall permit Hexagon to electronically access the Local Software on
Customer’s System Equipment via Secure Access Tool to implement the Update in conjunction
with the updating of the Cloud Applications and provide any other reasonable support and
cooperation required by Hexagon to update the Cloud Program.
9. CUSTOMER RESPONSIBILITIES.
9.1
Customer shall be responsible for all activities that occur in Authorized Cloud Users’ and Users’
accounts, including, but not limited to, its Affiliates’ accounts, and for Authorized Cloud Users’
and Users’ compliance with the Master Agreement. Customer shall:
9.1.1 Have sole responsibility for the accuracy, quality, integrity, reliability and appropriateness
of all Customer Data that is placed into the Customer Cloud Environment;
9.1.2 Use commercially reasonable efforts to prevent unauthorized access to or use of Cloud
Program, including preventing utilization of more Credentials than otherwise reflected by the
License Key(s) set forth in the Quote, and notify Hexagon of any such unauthorized access or
use;
9.1.3 Provide and maintain its own System Equipment, third party software, networks, internet
access, and communication lines, including any public lines required to properly access the Cloud
Portal and use the Local Software, including content or data and ensure such meet the minimum
standards required to interoperate with the Cloud Program as communicated by Hexagon to
Customer via the Cloud Portal or as otherwise determined by Hexagon; and
9.1.4 Abide by and comply with the Acceptable Use Policy, Documentation, and other
requirements of these Cloud Conditions.
9.2
Customer shall reasonably cooperate with Hexagon as it pertains to Planned Maintenance.
10. CLOUD SERVICE PROGRAM FEES.
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10.1 Generally. Subject to Section 10.2 below, in consideration of the Cloud Program provided by
Hexagon, Customer shall pay to Hexagon the Cloud Program Fees.
10.2 Adjustment. It is the Customer’s responsibility to monitor its usage of License Key(s) and/or
Cloud Application capacity it has purchased. Hexagon may periodically review the Customer’s
usage of the Cloud Program to determine whether Customer’s usage is consistent with the
quantity of License Key(s) and/or Cloud Application capacity purchased. If the usage shows the
Customer has used more License Key(s) than are specified in the Quote, then Customer shall
pay Cloud Program Fees corresponding to the number of License Key(s) used in excess of the
purchased quantity. If a Cloud Application is subject to capacity limitations (e.g., a limited number
of transactions in a period), as expressly set forth in the applicable Cloud Services Schedule, the
Cloud Application may be configured to cease or degrade some or all functions upon Customer
reaching those capacity limitations and/or may be configured to permit additional usage for
additional fees, all as and if described in the applicable Cloud Services Schedule(s).
11. TERMS OF PAYMENT.
The invoice corresponding to the first year of Cloud Program Fees shall be provided to Customer upon
Hexagon’s issuance of License Key(s) to Customer. For purposes of clarity, once the first License Key(s)
is issued for any Cloud Environment, the annual Cloud Program Fee will be due and payable in full.
Invoices for subsequent years included within the Cloud Term as specified in the Quote (as may be
adjusted pursuant to Section 10.2 above) will be issued prior to the Cloud Anniversary.
12. ACCEPTABLE USE POLICY (AUP).
12.1 The AUP forms part of these Cloud Conditions and is incorporated by reference. It may be found
at
the
following
site:
https://www.hexagonsafetyinfrastructure.com/-
/media/Legal/Hexagon/SI/Policies/AUP/Cloud_AUP-L.pdf. The Customer and any Authorized
Cloud User or User shall comply with the AUP. A User or Authorized Cloud User will be prompted
with review and acceptance of the AUP to gain access to the Cloud Application(s). Any update
to the AUP will require each User or Authorized Cloud User to re-accept the modified AUP.
Failure to comply with the AUP may result in the suspension of the Cloud Program or termination
of the Cloud Program Order as provided in Section 5 of the Master Terms. During any period of
suspension, the Customer will still be liable for payment of the applicable Cloud Program Fees.
12.2 Hexagon reserves the right to change the AUP at any time, but to the extent within the control of
Hexagon, it will give Customer thirty (30) days’ notice in accordance with the Master Terms and
the Primary Contracting Document of any such changes by posting notice of the upcoming
change in the AUP on the Cloud Portal or as otherwise determined by Hexagon, unless otherwise
required by law or where a Third Party Service Provider requires a change to be made to the
AUP and is unable to provide such period of notice. If a Third-Party Service Provider requires a
change to be made to the AUP, Hexagon shall provide the equivalent period of notice as is
provided by the Third-Party Service Provider to Hexagon.
12.3 Without waiver of any other requirement or limitation set forth herein, Customer’s use of any third-
party software in conjunction with the Cloud Application, Cloud Optional Services, and Hexagon
Software Products that is not certified by Hexagon to operate in conjunction with the same is
solely at Customer’s risk. Addressing service requests arising from the use of uncertified third-
party software is not included within Cloud Services Support or the Cloud Program.
13. OWNERSHIP AND INTELLECTUAL PROPERTY.
13.1 In accordance with Section 6 of the Master Terms, Hexagon owns all right, title and interest in
and to Cloud Application(s), Cloud Optional Services, the Software Products, Local Software,
Documentation written by Hexagon, and any other data and information provided as part of the
Cloud Program (except for data and information being owned by a third party), and all copies of
all or any part thereof, are and shall remain vested in Hexagon. Third parties shall retain any and
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all IPR in and to their intellectual property that may be provided as part of the Cloud Program.
Customer and its Affiliates do not have, and shall not attempt to decompile, disassemble, or
otherwise attempt to gain access to any source code for the Cloud Application, Cloud Optional
Services, any other Hexagon Software Product, or Third-Party Software. Customer, for itself and
its Affiliates acknowledges and agrees the Cloud Program is comprised of trade secrets,
proprietary information, and Confidential Information, and that Customer, and its Affiliates shall
not use, distribute, copy, perform, amend, alter, modify, create derivative works, reverse
engineer, exploit, sublicense, or assign the Cloud Program or any component thereof except as
expressly permitted by Hexagon (which permission may in some instances, subject to stated
limitations, be contained in a Cloud Services Schedule with respect to a particular Cloud
Application). Without Hexagon’s express, written permission, Customer shall ensure that no User
transfers or assigns any Credentials to any other person or entity that is not an employee of
Customer.
13.2 Customer and its Affiliates, respectively, shall retain their respective full ownership and all rights
associated therewith solely to Customer Data to the extent they own IPR to said information, as
well as work product input or output generated by the Cloud Program. This ownership shall not
extend to any formats or other Intellectual Property provided by Hexagon under the Master
Agreement that makes a particular data file intelligent or that structures output, said formats and
Intellectual Property which shall remain the property of Hexagon or the respective third party that
owns said format or Intellectual Property.
14 PERSONAL DATA.
14.1 Hexagon reserves the right, but does not assume the obligation, to investigate any violation of
this Exhibit D (Cloud Program Conditions) and/or AUP or misuse of the Cloud Services or Cloud
Program. Hexagon may: (a) investigate violations of this Exhibit D (Cloud Program Conditions)
and/or AUP or misuse of the Cloud Services or Cloud Program; and (b) remove, disable access
to, or modify any content or resource that violates this Exhibit D (Cloud Program Conditions)
and/or AUP. Hexagon may report any activity that Hexagon suspects violates any law or
regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.
Hexagon’s reporting may include disclosing appropriate information related to Customer or any
User. Hexagon also may cooperate with appropriate law enforcement agencies, regulators, or
other appropriate third parties to help with the investigation and prosecution of illegal conduct by
providing network and systems information related to alleged violations of this Exhibit D (Cloud
Program Conditions) and/or AUP.
14.2 Unless Customer Specified Data Center(s) are included in the Cloud Services as identified in the
Quote, Hexagon and its Third-Party Service Provider shall have sole discretion of the location of
the Data Center(s).
15 SECURITY & BREACH NOTIFICATION.
15.1 Hexagon shall take reasonable industry action to prevent, detect, identify, report, track and
respond to Security Incidents.
15.2 Hexagon Response to Security Incident. In the event of a Security incident, Hexagon will provide
a Security Incident report to the Customer or its Affiliates (as applicable) via the Designated
Portal, or otherwise. The report shall be provided within twenty-four (24) Business Hours following
Hexagon’s discovery, confirmation, and investigation of a Security Incident.
15.3 Additional Requirements for Personal Data. With respect to any Personal Data in the possession
or under the control of Hexagon, which does not include Customer Data within the Customer
Cloud Environment, and in order to protect Personal Data from unauthorized access, destruction,
use, modification or disclosure, Hexagon shall:
15.3.1 Develop, implement, and maintain reasonable security procedures and practices
appropriate to the nature of the information to protect Personal Data from unauthorized access,
destruction, use, modification, or disclosure; and
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15.3.2 Develop, implement, and maintain data privacy and security programs with
administrative, technical, and physical safeguards appropriate to the size and complexity of
Hexagon’s business and the nature and scope of Hexagon’s activities to protect Personal Data
from unauthorized access, destruction, use, modification, or disclosure.
16 WARRANTIES, DISCLAIMER AND INDEMNITIES.
16.1 During the Cloud Term, Hexagon does not warrant the Cloud Application(s) purchased by
Customer will meet the Service Level specified in the applicable Cloud Services Schedule. The
Cloud Program may be subject to limitations, delays and other problems inherent in the use of
the internet, electronic communications, and Customers’ IT infrastructures. Hexagon will not be
responsible for any delays, delivery failures, or other damage.
16.2 Hexagon does not warrant the Cloud Application(s) and Third-Party Software accessed via Cloud
Services will perform substantially in accordance with the Documentation provided. To the extent
an Error should be discovered, Customer shall report such Error to Hexagon as provided in
Section 8 of the Cloud Program Conditions and Hexagon will respond as provided therein.
16.3 Cloud Services will use industry standard Virus detection software to avoid transmission to the
Customer and its Affiliates any Viruses (except for any Viruses contained in Customer Data
uploaded or Onboarded by Customer).
16.4 Hexagon does not warrant the Cloud Program (to the extent accessed by Customer under the
Master Agreement) will meet the Customer’s or any of its Affiliates’ requirements or that it will run
uninterrupted or be Error free. Customer and its Affiliates are responsible for the results obtained
from the use of the Cloud Program.
16.5 The warranties set forth herein are in lieu of all other warranties, expressed or implied, and
represents the full and total warranty obligation and/or liability of Hexagon
17 ACCESS TO THE MASTER AGREEMENT BY CUSTOMER’S AFFILIATES.
If Customer’s Affiliate accesses or utilizes any or all components of the Cloud Program, the Affiliate shall
be deemed to have agreed to be bound by the terms and conditions of these Cloud Program Conditions.
The Affiliate, in accessing the Cloud Program (or any part thereof), and Customer, in permitting the Affiliate’s
access, each represent to Hexagon they have entered into an agreement by which Affiliate is permitted to
use the Cloud Program and is bound to the terms herein. Except for Affiliates and employees of Affiliates,
no other person, including any third parties not authorized by Hexagon, may access the Cloud Program or
be provided with Credentials.
END OF EXHIBIT D
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EXHIBIT E
SUBSCRIPTION TERMS AND CONDITIONS
These Subscription Terms and Conditions (“Subscription Terms”) govern the licensing and support for the
Subscription.
1. DEFINITIONS. All capitalized terms not otherwise defined herein shall have the meaning set forth in
Exhibit G (Common Terms Glossary).
2. SERVICES PROVIDED.
2.1
Access. Subject to an Order and these Master Terms, including Exhibit A (End User License
Agreement), Hexagon will make the Subscription Licenses available to County for County’s use
during the Subscription Term. Any renewal or extension of the Subscription Term shall be subject
to such terms and product components as reflected in the applicable renewal or extension Quote
issued by Hexagon (the “Renewal Quote”). County acknowledges and agrees that County shall
compensate Hexagon for County’s continued use of a Subscription after expiration or termination
of a Subscription Term, at a rate equitably and proportionately calculated based upon the
Renewal Quote and based upon the period of such extended use; provided that if no Renewal
Quote is issued prior to expiration or termination of the Subscription Term, the initial Quote shall
be substituted in the calculations set forth in this Section 2.1.
2.1.1 As it pertains to Metered Licenses, the Customer’s right to use the Metered Licenses shall
end upon the earlier of: (i) expiration of the Subscription Term, or (ii) Customer’s use of its
allotment of units of service as set forth in the Quote.
2.2
Maintenance and Support. During the applicable Subscription Term, Hexagon will provide
maintenance services and support to County for the Subscription Licenses in accordance with
Exhibit B (Maintenance Terms and Conditions) of these Master Terms.
2.3
Services. These Subscription Terms only provide for the licensing and support of the
Subscription. If County desires for Hexagon to provide Services for implementation,
configuration, training, or other work in relation to the Subscription, then County may contract
with Hexagon pursuant to these Master Terms for Services.
3. INVOICES. Hexagon shall invoice County for the full amount set forth in the Quote upon delivery of or
access having been provided for any of the Subscription Licenses identified in the Quote. To the extent
the Quote includes multiple types of Subscription Licenses, Hexagon shall invoice County when the
first type of Subscription License is allowed to be invoiced as provided in this section.
4. CUSTOMER OBLIGATIONS.
4.1
Customer Control. County and its authorized Users of the Subscription shall at all times comply
with Exhibit A (End User License Agreement). County will be solely responsible for administering
and monitoring the use of login IDs and passwords provided by County to authorized Users
pursuant to the Subscription, or by Hexagon on behalf of County. Upon the termination of
employment of any authorized User, County will terminate that individual’s login ID and
password. Hexagon is not responsible for any damages resulting from County’s failure to
manage the confidentiality of its login ID and passwords and County is responsible for any actions
arising out of use or misuse of County’s login IDs.
4.2
Security. County shall take commercially reasonable security precautions to prevent
unauthorized or fraudulent use of Hexagon IP by County, County’s employees, consultants,
agents, or any other third parties authorized by County to access the Subscription on County’s
behalf.
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END OF EXHIBIT E
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EXHIBIT F
COTS Training Program Terms
These terms and conditions (“COTS Training Program Terms”) govern the provision of the Training
Curricula by Hexagon to County under a Fixed Price Project Assignment. Any additional terms in a Training
Program Statement also apply; and, notwithstanding the order of precedence stated in the Master Terms,
but without otherwise modifying such order of precedence, any conflict between these COTS Training
Program Terms and any applicable Training Program Statement shall be resolved in favor of the Training
Program Statement.
1. DEFINITIONS.
Capitalized terms used and not otherwise defined herein have the meanings assigned in the Common
Terms Glossary.
2. SCOPE OF TRAINING PROGRAM.
Hexagon will provide the Training Curricula specified in the Quote and purchased by County, in accordance
with and subject to the provisions of these COTS Training Program Terms and the applicable Training
Program Statement(s). The Training Program Statements(s) and Quote shall describe the duration and
delivery method for the Training Curricula; provided that if no duration is otherwise stated for a Training
Curricula delivered by online means, County shall cease use thereof twelve (12) months following the date
the Order was placed for the Training Curricula.
3. FEES AND PAYMENT.
Unless otherwise expressly provided in applicable Training Program Statement(s) corresponding to the
Order, fees for Training Curricula delivered by a live instruction method shall be invoiced as and when the
Training Curricula is delivered; and fees for Training Curricula delivered by an online on-demand method
shall be invoiced upon first delivery to County of the initial ability to access any portion of the Training
Curricula.
4. SPECIFIC ONLINE TERMS.
4.1
Assignment of Credentials. For Training Curricula delivered by an online on-demand method,
County acknowledges and agrees that: each specific student/user must be assigned individual
credentials, thereby consuming one of the overall quantity of credentials available to County
under the terms of the Order, and student/user credentials may not be shared or used by more
than one student/user. Upon request, and subject to processing and any requirements of the
Third-Party Service Provider, credentials may be subject to reassignment to a new student/user
and from a student/user no longer requiring access to the Training Curricula. The period of
availability of an online on-demand Training Curricula shall not be extended due to delays in
County's assignment of available credentials or in any reassignment of credentials.
4.2 Use Restrictions. County shall comply, and assure all students/users comply, with terms of use
of the Training Curricula and the platform through which it is provided, including without limitation,
each of the following: the platform and assets associated therewith shall never be used to
perform unlawful activity or activity which interferes with networks, systems, or facilities
associated with operation of the platform; the platform shall not be used to store, process, or
publish threatening, disparaging, or offensive material, or material that constitutes Spam/E-
Mail/Usenet abuse or to create a security risk or an infringement of privacy or IPR; the platform
shall not be used for any activity intended to directly or indirectly circumvent security measures
of the Third Party Service Provider or Hexagon; and, the platform shall be used solely within the
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use requirements of the Third Party Service Provider and solely for the purpose of consuming
the Training Curricula.
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5. OWNERSHIP AND INTELLECTUAL PROPERTY.
In accordance with Section 6 of the Master Terms, Hexagon owns all right, title and interest in and to
Training Curricula, and any other data and information provided as part of Training Curricula (except for
data and information being owned by a third party), and all copies of all or any part thereof, are and shall
remain vested in Hexagon. Third parties shall retain any and all IPR in and to their intellectual property that
may be provided as part of the Training Curricula, to include without limitation the Third-Party Service
Provider’s retention of intellectual property associated with the platform through which any online on-
demand Training Curricula is provided. County and its Affiliates shall not attempt to decompile,
disassemble, obtain any source code for, or record Training Curricula, in whole or in part. County, for itself
and its Affiliates and their respective personnel accessing the Training Curricula, acknowledges and agrees
the Training Curricula is comprised of trade secrets, proprietary information, and Confidential Information,
and that County, and its Affiliates shall not use, distribute, copy, record, perform, amend, alter, modify,
create derivative works, reverse engineer, exploit, sublicense, or assign the Training Curricula or any
component thereof except as expressly permitted by Hexagon. The Customer acknowledges Hexagon shall
retain sole custody and control of the underlying online Training Curricula and any documents and
information displayed therein. Unless otherwise set forth in the Training Program Statement, Hexagon shall
only provide electronic copies of any specified Documentation. Without Hexagon’s express, written
permission, County shall ensure student/user credentials issued to County are only assigned and/or used
only by County’s employees.
6. CUSTOMER OBLIGATIONS.
County shall at all times be responsible for administering and monitoring the use of Training Curricula by
its students/users. Training Curricula shall be used solely for County’s internal training purposes. Upon the
termination of employment of any student/user, County will terminate that individual’s access to Training
Curricula. County shall be responsible for supplying all components necessary to supply of the Training
Curricula not expressly specified in the Training Program Statement as a deliverable by Hexagon.
Depending upon the nature and delivery method of the particular Training Curricula, components to be
supplied by County may include, by way of example only, computers or software for use by students/users,
internet connectivity, or training space at the County’s site.
END OF EXHIBIT F
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EXHIBIT G
COMMON TERMS GLOSSARY
“Acceptable Use Policy (AUP)” means the Acceptable Use Policy identified as such within Exhibit D
(Cloud Program Conditions).
“Activity” or “Activities” means a single work activity/event or collection of work activities/events by a
Party or by both Parties under a specified Task.
“Affiliate” means, for business entities, the parent business entity of a Party and any business entities in
which a Party or its parent company directly or indirectly hold a controlling ownership interest. “Affiliates”
means, for government entities which are Customers, an entity which has entered into an intergovernmental
agreement with Customer which: (i) relates to or addresses the subject matter of the Primary Contracting
Document; and (ii) was disclosed to, and acknowledged by, Hexagon (A) prior to the Effective Date for any
existing intergovernmental agreements, and (B) prior to any renewal date of such Primary Contracting
Document for any intergovernmental agreements entered into after the Effective Date. “Control” for the
purposes of this definition means that Customer owns in excess of fifty percent (50%) of the ownership
interest of the Affiliate or owns a majority of the voting shares of the Affiliate. For purposes of Section 9 in
the General Terms and Conditions, an Affiliate is not a third party.
“Authorized Cloud User” means an individual user authorized by the Customer to use an entire Cloud
Program on behalf of the Customer and for whom an account is set up by which the Authorized Cloud User
can utilize Cloud Services Support and log Cloud Service Requests and Product Change Requests.
“Auxiliary System License” means the license(s) of Software Product made available by Hexagon for
select Software Products to augment Production System Licenses. Each Auxiliary System License requires
a corresponding Production System License, and the term of the Auxiliary System License shall not exceed
the term of the applicable Production System License.
“Beta Software” means any version of Software Product prior to a generally available commercial release
of such Software Product.
“Business Day” means any day other than a weekend or public holiday in the country listed on the Quote.
“Business Hour” means an hour occurring during a Business Day and during the generally recognized
eight (8) working hours comprising the Business Day at the Customer’s location.
“Catastrophic Event” means a rare circumstance in which mass casualties and/or significant property
damage has occurred or is imminent (e.g., September 11th, hurricanes greater than Category 2 on the
Saffir-Simpson scale, earthquakes greater than 6.1 on the Richter scale).
“Change Order” means a document executed or accepted in writing by both Parties that modifies the
scope, price, milestones, and/or project schedule of an Order.
“Client” means a computing device connected to a Server.
“Cloud Anniversary” means the anniversary of the date on which Hexagon provided the License Key(s)
to Customer.
“Cloud Application(s)” means the Hexagon software applications, including without limitation application
programming interfaces made available by Hexagon through the Cloud Portal as part of the Cloud Program.
Cloud Application(s) are subject to Cloud Services Schedules.
“Cloud Consulting Services” means Services that relate to the Cloud Program including, but not limited
to, implementation, configuration, customization, data conversion, Onboarding, design, training, and or
enhancement of the Cloud Program.
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“Cloud Cutover” means the point in time when Customer first uses the Cloud Program for its generally
marketed purpose.
“Cloud Development Environment” means a logical group of virtual or physical computers comprised
within the Cloud Environment to which the Customer will be provided with access and use for the limited
purpose of making modifications, as specifically permitted herein, to the Cloud Application. For purposes
of clarity, the Cloud Development Environment cannot be used in Production or for training purposes.
“Cloud Environment” means the collection of remote environments provided to Customer on which the
Cloud Application(s) operates and that is supported by Hexagon.
“Cloud Optional Services” means those certain Hexagon Software Products that provide ancillary
functionality or capability to the Cloud Applications, including, but not limited to, interfaces and custom forms
and functionality. Unless specific Cloud Optional Services are identified in the Quote with a corresponding
purchase commitment from Customer, Cloud Program does not include Cloud Optional Services.
“Cloud Portal” means the website through which Customer accesses and uses the Cloud Program. The
Cloud Portal provides access to the Cloud Program according to Customer’s rights, and further provides
access to additional Cloud Services, as made available by Hexagon.
“Cloud Program” means the combination of Cloud Services, Cloud Application(s), Local Software, Third
Party Software, and Cloud Optional Services provided pursuant to the Order Documents. The components
of the Cloud Program are specifically identified in the Quote and for purposes of this definition shall mean
only those components and not any other components not specifically listed in the Quote.
“Cloud Program Fees” means, collectively, any of the fees payable by Customer to Hexagon for the Cloud
Program (or any part thereof). Cloud Program Fees shall be in the amount described in the Quote and/or
Cloud Services Schedule, and shall be invoiced on an annual basis, except to the extent otherwise
expressly provided in the Primary Contracting Document or the Cloud Services Schedule.
“Cloud Program Start Date” means the date on which the first License Key(s) are provided to the
Customer. For Cloud Program Fees purposes, Cloud Program use by Customer will be assumed to be for
the entire Month in which the Cloud Program Start Date falls regardless of the actual date in such Month
that access to the applicable Cloud Application began.
“Cloud Service Request” means a request made to the first level support service to diagnose and address
an Error in a Cloud Application or to report the purchased Cloud Application(s) is not Available.
“Cloud Services” means the services, service levels, Cloud Services Support, Customer Cloud
Environment, and Third-Party Service Provider’s hosting services (which are more particularly described in
the Cloud Services Schedule(s)), for Cloud Application(s), Cloud Optional Services, and Third-Party
Software and ordered by the Customer.
“Cloud Services Schedule” means a document(s) titled “Cloud Services Schedule” related to one or more
Cloud Application(s) that contains additional details regarding the Cloud Services being provided to
Customer with respect to the applicable Cloud Program components purchased by Customer. In the
absence of Cloud Service Schedule(s) being included within the Order Documents, Cloud Services
Schedules
may
be
found
at
https://www.hexagonsafetyinfrastructure.com/-
/media/Legal/Hexagon/SI/TPS/CSS-LLP.pdf, which Schedules are incorporated into the Order as if fully set
forth therein.
“Cloud Services Support” means the service specified as such in the Cloud Conditions through which
Customer can report Cloud Service Requests and Product Change Requests.
“Cloud Staging Environment” or “Cloud Testing Environment” means a logical group of virtual or
physical computers comprised within the Cloud Environment to which the Customer will be provided with
access and use for the limited purposes of testing modifications and training, as specifically permitted
herein, to the purchased Cloud Application(s). For purposes of clarity, the Cloud Staging Environment
cannot be used in Production.
“Cloud Term” means the duration of a Cloud Program Order.
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“Confidential Information” means any data or information, tangible or intangible, disclosed or made
available by either Party (the "Disclosing Party") to the other Party (the "Receiving Party") that the Disclosing
Party considers confidential or proprietary and is not generally known in the industry or to competitors of
the Disclosing Party and which shall include: (i) tangible information marked by the Disclosing Party with
the word "Confidential" or otherwise identified by an appropriate stamp or legend indicating its confidential
nature; (ii) information disclosed orally or visually and identified by the Disclosing Party as confidential when
disclosed, and confirmed by the Disclosing Party in a written notice within thirty (30) days following
disclosure, which notice shall include markings similar to those outlined above; and (iii) all other information
that, notwithstanding the absence of markings or designations, would be understood by the Parties,
exercising reasonable business judgment, to be confidential. The term Confidential Information does not
include information that: (i) is or becomes available in the public domain through no act of the Receiving
Party; (ii) has been received on a non-confidential basis from a third party without breach of the Primary
Contracting Document, where the Receiving Party has no reason to believe that such third party is bound
by any confidentiality obligation to the Disclosing Party; (iii) was developed independently by the Receiving
Party without reliance on the disclosed Confidential Information, provided that such independent
development can be substantiated; (iv) was within the Receiving Party’s possession prior to its being
furnished by the Disclosing Party, where the Receiving Party has no reason to believe that such third party
was bound by any confidentiality obligation to the Disclosing Party, or (v) is confirmed in writing by the
Disclosing Party as not being confidential.
“Core” means a physical processor on a computer Server that can respond to and execute the basic
instructions that drive the computer. A Central Processing Unit (“CPU”) may have one or more Cores, and
a given Server may have multiple CPU sockets that may each contain multiple Cores.
“COTS” means commercial off the shelf Intellectual Property in the form generally released and distributed
to Hexagon’s customers and not including any functionality or features requiring source code changes.
“COTS Documentation” means commercial off the shelf Documentation in the form generally released
and distributed to Hexagon’s customers and not including or requiring changes thereto.
“Coverage Period” means the period of performance of Maintenance Services with respect to a Covered
Product, as stated in the Order Documents. Coverage Periods may differ for discrete Covered Products.
“Coverage Period Anniversary” means the anniversary of the date on which the Coverage Period
commenced.
“Covered Products” means collectively, Covered Software Product(s) and Covered Third Party Products.
“Covered Software Product(s)” means Software Product(s) and Developer Tools identified in the Order
Documents as software for which Maintenance Services are to be provided by Hexagon. Covered Software
Products shall not include Third Party Software or any Cloud Program.
“Covered Third Party Products” means Software Product(s) identified in the Order Documents as Third-
Party Software for which Maintenance Services are to be provided by Hexagon. Covered Third Party
Products shall not include Software Products or any Cloud Program.
“Credentials” means the unique log-in identifier by which a person could access a service or benefit, such
as, without limitation, a Cloud Program or Training Curricula.
“Customer” means the non-Hexagon party to the Primary Contracting Document.
“Customer Cloud Administration” means providing User’s access to the Cloud Application(s) purchased
by Customer, managing User accounts, providing Credentials to Users, and any system administration
beyond User interface.
“Customer Cloud Environment” means a logical group of virtual or physical computers comprised within
the Cloud Environment and Local Environment to which the Customer will be provided with access and use
of as part of the Cloud Program. A Customer Cloud Environment consists of a Cloud Development
Environment and Production Environment.
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“Customer Data” means all electronic data or information: (i) provided by Customer to Hexagon in
connection with the Deliverables provided pursuant to an Order; and/or (ii) created by Customer and/or
submitted to the Cloud Environment by Customers, Users, and/or Authorized Cloud Users. “Customer Data”
shall not mean data which (i) is not particular to Customer, and/or (ii) is of value to the general
implementation, development, operation, or use of Hexagon products or services for the benefit of other
customers. For the avoidance of doubt, Customer Data shall not include the Cloud Application(s), Software
Products, Cloud Optional Services, Documentation written by Hexagon, DevTools, Content, Equipment and
Software intentionally designed and embedded with Equipment or Special Purpose Items, and any other
data and information provided as part of the Cloud Program or constituting a Hexagon Deliverable.
“Customer Data Rights” means: (i) the right to use Customer Data that contains Customer’s Confidential
Information to perform Hexagon’s obligations within the Order; (ii) the right to use, alter, modify, and
disclose Customer Data that does not include Customer’s Confidential Information to perform Hexagon’s
obligations and other business purposes for which the information may be disclosed to third parties; and
(iii) except as otherwise provided in the EULA or Developer Tools Schedule, a worldwide, royalty-free,
irrevocable license to use, replicate, sell, modify, enhance, and distribute any works created by the
Customer through its use of Developer Tools.
“Customer Specified Data Center” means a data center used in the provision of a Cloud Environment,
whose location has been specified by the Customer and agreed to by Hexagon and identified in the Quote.
Additional Cloud Program Fees may be payable for a Customer Specified Data Center.
“Customized Software” means those Services Deliverables that are software or computer code, whether
in source code or object code.
“Cutover” means the point in time in which a Software Product(s) is first used by User for its generally
marketed purpose.
“Data Center(s)” means the data center(s) from which the Cloud Program (or part thereof) will be stored
as determined by Hexagon or its Third-Party Service Provider.
“Defect” means a reproducible instance of an adverse and incorrect functioning of a Software Product or
Cloud Application that impacts the ability to use functionality intentionally integrated in the design of the
Software Product or Cloud Application, assuming proper usage of the Software Product or Cloud
Application in its required operating environment. Defects are further classified into four levels as follows:
Level
Impact of Defect
Level One
No workaround available and either:
Productive use prohibited, or
Aborts.
Level Two
No workaround available and either:
Primary purpose compromised, or
Productive use significantly impacted
Level Three
Productive, but incomplete operation
Level Three Defects generally have a workaround
or do not otherwise substantially impair productive
use.
Level Four
Defects not qualifying as Level One, Two, or Three,
including defects of a cosmetic nature and defects
not materially limiting complete productive use
Customer shall classify a Defect in accordance with the foregoing; provided that, Hexagon shall reclassify
the Defect as appropriate following its review thereof.
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“Deliverable(s)” means all Services Deliverables, software, hardware, Cloud Programs, and other items
delivered or to be delivered by Hexagon to Customer and identified in the Order.
“Designated Portal” means the portal(s), website(s), platform(s), or other similar channels designated by
Hexagon from time to time to be used for specific collaboration(s), information dissemination(s), or
communications(s).
“Developer Tools” or “DevTools” means any software intended for use by developers to create (i)
software for (a) redistribution, or (b) interfacing two or more of the following: Software, Cloud Applications,
E/C; or (ii) specific customizations for which the Developer Tool is intended and designed. Developer Tools
are subject to Developer Tools Schedules.
“Developer Tools Schedule” or “DevTools Schedule” means a document relating to certain DevTools
provided by Hexagon listed in the Order Documents that identifies particular details, limitations, licensing,
and other parameters relating to the DevTools. In the absence of DevTools Schedule(s) being included
within
the
Order
Documents,
DevTools
Schedules
may
be
found
at
https://www.hexagonsafetyinfrastructure.com/-/media/Legal/Hexagon/SI/TPS/DT-LLP.pdf,
which
Schedules are incorporated into the Order as if fully set forth therein.
“Documentation” means, whether in electronic or printed form, any user's guides, reference guides,
administrator's guides, configuration guides, release guides, installation guides, and help guides made
available through the Designated Portal. Not all of the types of Software Products or Cloud Applications
are provided with Documentation or with similar Documentation.
“Effective Date” means the date and time the last Party is on notice that all Parties have accepted the
Primary Contracting Document.
“Emergency Maintenance” means all maintenance performed when a Cloud Service Request demands
immediate, unplanned attention, as reasonably determined by Hexagon.
“Equipment” means tangible, personal property to be provided by Hexagon identified in Order Documents,
including, but not limited to computing hardware, computer-related equipment, computer devices, furniture,
sensors, equipment, unmanned aerial vehicles, and instruments.
“E/C” or “Equipment/Content” means digital content identified in an E/C Schedule and/or any Equipment
supplied by or through Hexagon. For purposes of clarity, the term “E/C” excludes Maintenance Services,
Cloud Program, Software (except Software intentionally designed and embedded with Equipment), and
Services. E/C is subject to E/C Schedules.
“E/C Schedule” means a document relating to certain E/C provided by Hexagon listed in the Order
Documents that address some or all of the following depending upon the offering being addressed: licensing
requirements for any embedded Software, maintenance parameters and limitations, warranty, and support
provisions. In the absence of E/C Schedule(s) being included within the Order Documents, E/C Schedules
may
be
found
at
https://www.hexagonsafetyinfrastructure.com/-/media/Legal/Hexagon/SI/TPS/EC-
LLP.pdf, which Schedules are incorporated into the Order as if fully set forth therein.
“Error” means a Defect with a purchased Cloud Application, Cloud Optional Service, or Third-Party
Software causing a purchased Cloud Application to fail to materially conform to its designed functionality or
Documentation. Errors are further classified into the same four levels as corresponding to the definition for
“Defect.”
“EULA” means the certain Hexagon End-User License Agreement set forth in these Master Terms as
Exhibit A and/or that is delivered with Software and which must be accepted prior to Software installation.
“Exchanged Product” means a later released Software Product which the Customer will receive pursuant
to its Maintenance Contract and supplants the Replaced Product.
“Fixed Price Project Assignment” means a type of Order where Hexagon will provide Services with or
without accompanying Product(s) for a fixed price.
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“Hexagon” means the entity that is a member of the Hexagon Group of companies that is identified in the
Order Documents; provided however, as used in the EULA, “Hexagon” means Intergraph Corporation.
“Hexagon IP” means Hexagon or Hexagon Affiliate developed, created, or prepared Intellectual Property.
Additional information regarding Hexagon patents, including a list of registered patents associated with the
Software Products, is available at www.intergraph.com/patents and/or www.uspto.gov.
“Intellectual Property” or “IPR” means all forms of intellectual property including, but not limited to,
patents, trademarks, copyrights, trade secrets, methodologies, logos, techniques, processes, know-how,
formulae, algorithms, logic designs, screen displays, schematics, source and object code computer
programs or software, declaring code, implementing code, Documentation, mask work rights, digital data
content, design, ideas, product information, inventions and improvements thereto, and all works of
authorship fixed in any medium of expression (including any form of online, digital, or electronic medium),
whether or not copyrightable and whether registered or not.
“Lapse” means an occurrence of any period of time, regardless of duration, during which (i) a Covered
Product is not the subject of an active Order for Maintenance Services or other Maintenance Contract and
an active Coverage Period, and/or (ii) payment is past due to Hexagon under a Maintenance Contract.
Extension of a Coverage Period and/or payment to Hexagon after the occurrence of a Lapse shall not
negate a Lapse, absent Hexagon’s express written waiver.
“License Key(s)” means certain unique data string(s) verifying authorized access to the Cloud
Application(s), which are purchased by the Customer and provided by Hexagon, as set forth on the Quote.
“Local Environment” means the collection of environments provided and supported by Customer (e.g.,
providing System Equipment, etc.) in which the Local Software operates.
“Local Software” means software applications incidental to the Cloud Program which are designed to
operate natively on devices outside the Cloud Portal and in the Local Environment.
“Maintenance Contract” means a contract under which Hexagon provides Maintenance Services to
Customer in relation to Covered Products and under which Customer is to compensate Hexagon therefor.
“Maintenance Services” means only those services described in the document titled “Maintenance Terms
and Conditions for Software” provided by Hexagon with respect to Software and other Deliverables licensed
to Customer and identified in the Order Documents as the subject of Maintenance Services.
“Material Adverse Effect” means a change that individually or collectively in aggregate with other changes
has the impact of (i) negatively and materially reducing the Customer’s and/or its Affiliates and/or its/their
Authorized Cloud Users’ or Users’ access and/or usage rights in respect of the Cloud Program and which
render the Cloud Program unusable for its primary intended purpose; or (ii) making the Cloud Program
materially less secure which results in increased risk to Customer Data or to data belonging to other
Hexagon customers. For clarity, a Material Adverse Effect is a condition which would render the Cloud
Program un-usable or materially less secure for intended users generally, and not merely as a result of
individual characteristics associated with Customer or its specific implementation or operation.
“Metered License” means a specific type of Subscription License that allows the Customer to use the
Subscription License up to the number of hours set forth in the Quote during the Subscription Term. For
reference, a Subscription License that is a Metered License shall have the word “Metered” in the Software
Product name and/or have the letters “MTR” at the end of the product number for the Software Product
instead of the other identifiers corresponding to an unmetered Subscription License referenced in its
definition.
“Minimal Operations Levels” means operation of a Software Product without a Level One Defect.
“Modern Release” means a version of a Software Product published by Hexagon no more than eighteen
(18) months prior to Customer’s first use thereof in Production.
“Month” means, unless otherwise stated in the applicable provision, a calendar month.
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“Network Requirements” means (i) the minimum requirements, including but not limited to software
and/or hardware, internet connection, latency or other requirements, which must be met by Customer in
order to access the Cloud Portal and use the Cloud Program; and (ii) network recommendations to the
Customer which describe general and specific recommendations for the network connection requirements
of the Cloud Program in order to enable the Cloud Program to function as designed. The Network
Requirements may be updated from time to time and Customer will be notified of such update via posting
in the Cloud Portal or as otherwise determined by Hexagon.
“Offboarding” or “Offboarded” means the process for offboarding the Customer Data (or part thereof)
from the Customer Cloud Environment and relocating or facilitating relocation of Customer Data to another
Customer-designated location.
“Onboarding” or “Onboarded” means the process of loading Customer Data into the Customer Cloud
Environment.
“Onsite Fee” means a fixed fee encompassing Hexagon’s travel expenses for an individual trip (an
individual trip means to travel from the Hexagon resource’s primary duty station in furtherance with an Order
and lasting no more than five (5) consecutive days).
“Order” means each individual purchase transaction in which the Parties engage, as evidenced by Order
Documents.
“Order Documents” shall mean written documents, the terms of which include Hexagon’s commitment to
provide specific products, licenses, and/or services at a specified price, subject to the terms and conditions
of the Primary Contracting Document. Order Documents may consist of a single document executed by
the parties or a combination of documents that together form an Order. Any Schedule applicable to the
Order is incorporated into the Order Documents as if fully set forth therein.
“Perpetual License” means a type of license for Software Product which allows the User to use the
Software Product in perpetuity so long as the User does not otherwise violate the terms of the EULA. For
reference, a Perpetual License on a Quote is denoted by its absence of either the terms “Subscription,”
“SaaS,” or “Metered” and/or the absence of the letters” SU,” “UB,” “CLD,” or “MTR” at the end of the
Software Product number or the letters “HCL” at the beginning of the Software Product number.
“Personal Data” means data, including but not limited to criminal justice information, and other information
which corresponds to a living individual person defined to be Personal Data under the applicable Personal
Data protection laws of the Customer’s jurisdiction.
“Planned Maintenance” means maintenance planned and communicated in advance by Hexagon to
Customer for the maintenance of the Cloud Program.
“Primary Contracting Document” means the contract document accepted by the Parties which
references and incorporates this Common Terms Glossary and/or references and incorporates a document
to which this Common Terms Glossary is an exhibit or attachment.
“Product Change Request” means a request for additional functionality or modification to the purchased
Cloud Application(s) or Covered Products.
“Product Order” means a type of an Order that involves only the sale of Products from Hexagon. A
Product Order may include the sale of Maintenance Services or maintenance for Equipment so long as the
subject of the services is also included in the Product Order. This type of Order does not include Services
or Cloud Programs.
“Product(s)” means either or the combination of Software (including Subscription Licenses), E/C, or other
goods, and excluding Services, Maintenance Services, or a Cloud Program.
“Production” means, as applicable, where a Subsystem or Cloud Program is used in production/operation
with an aim to accomplish one or more of its ultimate intended purposes. Operation solely for testing or
training is not Production.
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“Production Environment” means a logical group of virtual or physical computers comprised within the
Cloud Environment to which the Customer will be provided with access and use the purchased Cloud
Application(s) in production and for its generally marketed purpose.
“Production System License” means the license(s) of Software Product provided to User for general
production use.
“Product-Specific Terms” modify the EULA, and (ii) in the event of a conflict between the EULA and
Product-Specific Terms, Product-Specific Terms shall govern for the applicable Software. In the event of
a conflict of terms between the EULA, any prior Product-Specific Terms (including any product-specific
terms delivered in the form of an addendum to the EULA), and later Product-Specific Terms, the later
Product-Specific Terms shall take precedence over the EULA and any prior Product-Specific Terms
regarding the subject Software.
“Purchase Order” or “PO” means a document issued by Customer to Hexagon to authorize the delivery
of certain Product(s), Services, Deliverables, or Cloud Programs.
“Quote” means a document issued by Hexagon reflecting Product(s), Services, Maintenance Services,
Deliverables, and/or Cloud Programs, which Hexagon offers to provide Customer, as well as the prices and
fees therefor, the Customer’s name and location, and any applicable Schedule(s). To the extent any
document or information is identified in the Quote with the intention of it being incorporated into the Quote,
it will form part of the Quote.
“Replaced Product” means an earlier Software Product which will be replaced pursuant to a Maintenance
Contract for an Exchanged Product.
“Schedule” means one or more of: E/C Schedule(s), Cloud Services Schedule(s), DevTools Schedule(s),
Training Program Statement(s), and/or Special Purpose Schedule(s).
“Secure Access Tool" is a tool designated by Hexagon for providing secure, auditable remote access to
Customer utilized environments in order for Hexagon support personnel to effectively perform services.
“Security Incident” means an event or set of circumstances resulting in a compromise of the security,
confidentiality, or integrity of Customer Data under Hexagon’s control. Examples of Security Incidents
include: (i) security breaches to Hexagon’s network perimeter or to internal applications resulting in
compromise of Customer Data; (ii) severe degradation of, Hexagon’s security controls, methods, processes
or procedures that result in compromise of the security, confidentiality or integrity of Customer Data; and
(iii) the unauthorized disclosure of Customer Data.
“Server” means a computer or computer program which manages access by Clients to a centralized
resource or service in a network.
“Server-based Software Product” means Server-based software that is accessed by one or more Clients.
“Services” means the work, services, projects, assignments, or tasks Hexagon shall perform pursuant to
an Order. Services do not include Maintenance Services, Cloud Programs, or XaaS (anything as a service).
“Services Deliverable” means any data, document, information, Customized Software, Third Party
Software, or material provided to Customer as a product of Hexagon’s performance of Services pursuant
to an Order. Cloud Programs are not Services Deliverables.
“Software” means the software and DevTools owned by Hexagon or an Affiliate and Third-Party Software
that is licensed to Customer. For the avoidance of doubt, Cloud Programs and their contents are not
“Software” as that term is used herein.
“Software Product” means the Hexagon or Hexagon Affiliate software product(s) identified in the Order
Documents, which includes (i) any associated Hexagon files, sample data, demo data, or media with which
the software is provided, (ii) any associated templates, data, printed materials, and “online” or electronic
Documentation, and (iii) any Updates of such Software Products not made the subject of a separate license
agreement. The term Software Products shall not include, and no rights of use are granted to User for, third
party components, Hexagon products, or dependencies unnecessary to operate products made the subject
of the Order Documents, but incidentally delivered within the same files or media. Software Product shall
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not mean any Third-Party Software. For the avoidance of doubt, Cloud Programs and their contents are
not “Software Products” as that term is used herein. For avoidance if doubt, Software Product does not
include Developer Tools. Software Products are subject to all of the terms and conditions of the EULA
which the Parties agree will apply to the same; and in the absence of such agreement, then the terms of
the EULA provided with the Software Product.
“SOW” means a statement of work setting forth the scope of Services being provided pursuant to an Order.
“Special Purpose Item” means an item identified in Order Documents as due to be delivered by Hexagon,
which item is subject to certain unique terms, conditions, restrictions, or requirements identified in a Special
Purpose Schedule.
“Special Purpose Schedule” means a document identifying terms, conditions, and restrictions applicable
to a Special Purpose Item. In the absence of Special Purpose Schedule(s) being included within the Order
Documents, Special Purpose Schedules may be found at https://www.hexagonsafetyinfrastructure.com/-
/media/Legal/Hexagon/SI/TPS/SPS-LLP.pdf.
“Subscription” means the collection of Subscription License(s) identified on the Quote and or purchased
by the Customer.
“Subscription License” means a particular type of license to a Software Product that allows a Customer
to use the Software Product for a specified period of time identified in the Quote. For reference, a Software
Product that is a Subscription License shall have the word “Subscription” in the Software Product name
and/or have the letters “SU” at the end of the product number for the Software Product.
“Subscription Term” means the period of time during which Users are authorized to use the Subscription
License as set forth on the applicable Quote beginning on the date the Subscription Licenses are provided
to the User or the User is provided license keys or access to the Subscription License, unless otherwise
noted in the Order Documents.
“Subsystem” means a Hexagon solution that is designed to provide a specific capability independent of
the procurement of any other Subsystem. Hexagon’s computer aided dispatch system (“I/CAD” or “OnCall
Dispatch”), records management system (“RMS” or “OnCall Records”), and G/Technology (G/Tech) are
each an example of a Subsystem.
“System” means a physical or operational location where the Software resides and operates on an
individual Server or where a single operational identification number (“Site ID”) has been assigned by
Hexagon.
“System Equipment” means all computer-related hardware, including but not limited to, servers,
workstations, cables, mice, keyboards, cameras, and SAN’s; operating system software; database
software; and other third-party software.
“Task” means an Activity or combination of Activities of any nature whether tangible or intangible, whether
onsite or remote, or an event, as further identified in an SOW.
“Task Acceptance” means the event when the Task Acceptance Criteria has been satisfied in accordance
with the Task Acceptance Process.
“Task Acceptance Criteria” means the criteria by which a Task will be evaluated for completion as
described in an SOW.
“Task Acceptance Process” means the process by the Customer and Hexagon verify completion of the
Task Acceptance Criteria as further described below. Once Hexagon believes the Task Acceptance Criteria
has been successfully completed, Hexagon shall submit for execution by Customer’s project manager a
sign-off form in substantial conformity with Exhibit C, “Project Deliverable Sign-off Form.” Within ten (10)
Business Days of receipt of the applicable Project Deliverable Sign-off Form for the completed milestone
or Task, Customer’s project manager will either: (i) execute the Project Deliverable Sign-off Form provided
by Hexagon, or (ii) provide a written description of all deficiencies to Hexagon. If Customer fails to perform
either action identified in the preceding sentence within ten (10) Business Days, or if the Deliverable,
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including the Software contained in the Fixed Price Project Assignment Order, is placed into Production or
utilized in a live environment, then the Task or milestone shall be deemed accepted.
“Term” means the duration of performance under the contract into which this Common Terms Glossary is
incorporated by reference.
“Third Party Service Provider” means the third-party service provider with whom Hexagon enters into a
subcontract with respect to the hosting of a cloud platform, Training Curricula, and/or other services to
provide an element of the Cloud Program, Training Curricula, or other service to Customer (if applicable)
on behalf of Hexagon.
“Third Party Software” means computer software or other technology in which any person or entity, other
than Hexagon or Hexagon’s Affiliate, has any right, title or interest, including any restrictions or obligations
(such as obligations to obtain consents or approvals and restrictions that may be eliminated only by
obtaining such consents or approvals) applicable to the computer software or technology, but does not
include software embedded in the Software Products by license from third parties. The use of Third-Party
Software is subject to all of the terms and conditions of the Third-Party Terms. “Third Party Software
Products” also means, where applicable, pre-requisite third party software products used by Hexagon in
order for Customer to receive other components of the Cloud Program or licensed by Hexagon and used
by the Customer to use Cloud Application or Cloud Optional Services.
“Third Party Terms” means for certain Third-Party Software additional terms and conditions provided with
the Order Documents and/or cited in the Use Terms, or otherwise made available to the Customer or any
User.
“Time and Materials Project Assignment” means Hexagon will perform the Services set forth in an Order
on an hourly basis until the project is either completed or the authorized hours are exhausted, whichever
comes first. Unless otherwise specified in the Order Documents, a Time and Materials Project Assignment
shall end six (6) months after formation of the Order.
“Training Curricula” means one or more training classes or resources provided by Hexagon to Customer
as a service over a limited time period. Training Curricula are subject to Training Program Statements.
“Training Program Statement” means document(s) titled “Training Program Statement” containing
additional details regarding the Training Curricula parts being provided to Customer, including, but not
limited to: whether the training is provided live on-site, live but remotely, or by way of recorded or static
online content; and, certain other pertinent details; provided that “Training Program Statement” may
alternatively refer to only those specific terms of an SOW containing additional details regarding Training
Curricula being provided to Customer. In the absence of Training Program Statement(s) being included
within
the
Order
Documents,
Training
Program
Statements
may
be
found
at
https://www.hexagonsafetyinfrastructure.com/-/media/Legal/Hexagon/SI/TPS/TPS-LLP.pdf,
which
Training Program Statements are incorporated into the Order as if fully set forth therein.
“Update” means any upgrade, modified version, new release, fix, patch and/or update of the Software.
Updates can require full installation and a new License Key. Updates are subject to all of the terms and
conditions of the EULA provided with User’s then current version of the Software; provided that if a new
EULA is delivered with an Update, acceptance thereof is a requirement for its use.
“User” means Customer and/or an individual employed by Customer and authorized by Hexagon to use a
particular Software, Cloud Application, Third Party Software, or Cloud Optional Services on behalf of the
Customer. A User may also include Customer’s contractor who requires temporary use in order to provide
services on Customer’s behalf. A person can only be authorized and a User if the person is an employee
or designee of Customer and Customer has purchased the requisite number of licenses, or in the case of
Cloud Programs, the requisite number of License Key(s) to provide Credentials for that User.
“Use Terms” means the Hexagon Product Usage Policy and Product Specific Terms accessible from
https://www.hexagonsafetyinfrastructure.com/-/media/Legal/Hexagon/SI/Licenses/LLP/LLP_08-2019.pdf
which are incorporated herein. For purposes of clarity, the Use Terms corresponding to the date of the
Order shall apply to that specific Order and the Software provided thereunder.
SERIAL 220158-CI
Hexagon Master Terms and Conditions
Maricopa County, Arizona
Page 51
“Version Limitation I” is a status reached by a Software Product on the earlier of the (i) the third
anniversary of the Customer’s first operation of that Software Product in a live Production environment or
(ii) the fifth anniversary of Hexagon’s first actual delivery of the Software Product to the Customer for
implementation; provided that each time Customer upgrades the version of the Software Product used in
Production to a Modern Release, a reset shall occur, such that Version Limitation I shall thereafter be
reached upon the third anniversary of the Customer’s first operation of such Modern Release in a live
Production environment.
“Version Limitation II” is a status reached by a Software Product on the earlier of (i) the fourth anniversary
of the Customer’s first operation of that Software Product in a live Production environment or (ii) the sixth
anniversary of Hexagon’s first actual delivery of the Software Product to the Customer for implementation;
provided that each time Customer upgrades the version of the Software Product used in Production to a
Modern Release, a reset shall occur, such that Version Limitation II shall thereafter be reached upon the
fourth anniversary of the Customer’s first operation of such Modern Release in a live Production
environment.
“Version Limitations” means, separately and collectively, limitations on Services to be provided
hereunder based upon a Covered Product reaching Version Limitation I and/or Version Limitation II.
“Virus” means any thing or device (including any software, code, file or program) which may: (i) prevent,
impair or otherwise adversely affect the operation of any computer software, hardware or network, any
telecommunications service, equipment or network or any other service or device; (ii) prevent, impair or
otherwise adversely affect access to or the operation of any program or data, including the reliability of any
program or data (whether by rearranging, altering or erasing the program or data in whole or part or
otherwise); or (iii) adversely affect the user experience or security, including worms, Trojan horses, viruses
and other similar things or devices.
“Work” means, as applicable, the performance or providing of Services, Maintenance Services, or Cloud
Services.
“XML Files” means the XML (Extensible Markup Language) files generated by the Software Product,
where applicable.
“XSL Stylesheets” means the XSL (Extensible Stylesheet Language) presentation of a class of XML Files
which, when included with the Software Product, describe how an instance of the class is transformed into
an XML (Extensible Markup Language) document that uses the formatting vocabulary.
END OF EXHIBIT G