[Rev. April 2016]
- Definitions. "Products" means hardware products purchased from the eCommerce Solution and any related documentation. "Software" means any software, library, utility, tool, or other computer or program code purchased from the eCommerce Solution, in object (binary) or source-code form, and any related documentation. Software includes Product firmware, software locally installed on your systems, and software accessed by you through the Internet or other remote means (such as websites, portals, and software-as-a-service and other "cloud-based" solutions (“SaaS”)).
- Payment. In the event of a conflict or inconsistency between the provisions of this Section 2 (Payment) and the provisions of a User Agreement, the provisions of this Section 2 will control.
2.1. All payment for Products and Software will be made using a credit card following an order confirmation on the eCommerce Solution, and you agree to Trimble charging your credit card the amount set forth on the order confirmation. You will make payment in the currency indicated on the order confirmation. Unless otherwise specified in the applicable User Agreement, there will be no refunds of any fees paid for Products or Software.
2.2. All credit card information will be collected and used by Trimble in accordance with our online Privacy Statement.
2.3. For all purchases of Products and Software, you are required to pay the fees shown in the applicable order confirmation, as well as all applicable sales taxes, Value Added Tax, export or import charges, transportation or insurance charges, customs and duty fees, personal property taxes or similar charges shown on the order confirmation.
2.4. Certain Products and Software may require you to purchase products or services from third parties in order to use them (e.g., you may need to purchase pre-paid communications carrier services in order to utilize certain Software). If these third party products and/or services are not included in your order confirmation, you will need to purchase them separately from the applicable third party providers. For the avoidance of doubt, (i) you are solely responsible for the purchase and use of such third-party products and/or services and (ii) Trimble shall have no liability related thereto for your use or the failure of any such third-party products and/or services.
- Product Delivery; Acceptance; Inspection; Returns. Unless otherwise specified in an applicable User Agreement, the following shall apply:
3.1 Delivery. Delivery times for Products are established when Trimble accepts your order in writing. We will use commercially reasonable efforts to meet your requested delivery dates, unless you are in default under these Terms or our performance is otherwise excused. We are not liable for late or delayed delivery. Late delivery is not a basis for your cancellation of any order. Title and risk of loss or damage to Products passes to you when we deliver the Products to the shipping carrier ("Delivery"). Unless otherwise agreed, we will deliver the Product freight prepaid, provided that you pay or reimburse us for all applicable costs of carriage, freight, insurance (if applicable), taxes, duty and other related shipping charges. We have the right to make partial deliveries.
3.2. Acceptance, Inspection, Notice of Nonconformance. Your acceptance of ordered Products is deemed to occur upon our Delivery of the Products to the shipping carrier. You are responsible for giving prompt written notice of identified damage or nonconformance of Products. You must inspect the condition of the packaging and the Products upon receipt and indicate any evident damage to the carrier on the delivery note, have the carrier's agent sign the document and, within two (2) days of receipt of the damaged or non-conforming Products, send all documents by e-mail or fax to our facility from which shipment took place, together with the carrier's references. Concealed Product damage claims must be made by you to the carrier directly and you must also provide us with written notice and a copy of any such claim within 10 days of receipt of the affected Products. Likewise you must notify us within 10 days of receipt of incorrect Products. If you retain the Product without giving notice within the designated notice period, you will be deemed to have waived your right to reject the Product.
3.3. Return of Product. All Product returns are subject to our prior written consent and must comply with our product return (RMA) procedures then in effect. For general information log on to http://support.trimble.com and submit a support case detailing your question. Before returning or exchanging a Product, you must contact us directly to obtain an authorization number to include with your return. You must return Products to us in their original or equivalent packaging, and you are responsible for risk of loss, as well as shipping fees back to Trimble. Products received but not eligible for return will be sent back to you freight collect. For approved returns you will receive credit equal to the lesser of the Product’s invoice price or its current replacement value, less any applicable charges or fees.
- Software Acceptance; Subscriptions. Unless otherwise specified in an applicable User Agreement, the following shall apply:
4.1. Acceptance. Your acceptance of ordered Software is deemed to occur when the Software is activated or otherwise made available for your access or use, whichever date is earlier. Software may be delivered electronically at Trimble’s option.
4.2. Software Subscriptions.
4.2.1. Software Subscriptions. Certain Software offerings (including without limitation SaaS offerings) are provided on a subscription basis. For such Software, you will pay for a set term (“Subscription Term”) upfront. Charges for additional subscriptions or seats purchased by you or your organization and activated during any Subscription Term may be pro-rated to allow Trimble to bill for all of your subscriptions on the same date. At expiration of each Subscription Term, the Software subscription will automatically renew for an additional Subscription Term of equal duration unless you affirmatively cancel the applicable Software subscription prior to renewal via the Software (if cancellation is available through the Software itself) or eCommerce Solution or by contacting technical support. You authorize Trimble to charge your credit card for any renewals, and you must maintain current credit card information with Trimble at all times. In the event your credit card information is not current and this results in your failure to pay in a timely manner, in addition to any of its other rights or remedies, Trimble reserves the right to suspend or terminate your subscription and access and/or license to the Software.
4.2.2. Fee Adjustments. Trimble may increase the fees it charges for its Software subscriptions at any time, but any increase in the fees will not take effect until the beginning of your next Subscription Term. Trimble may provide notice of such increases through the Software subscription, including without limitation via Section 14(B) below. Your renewal of your Software subscription following such a pricing increase (including automatic renewal) will constitute confirmation of your acceptance of the pricing increase.
- No Warranty. Unless otherwise expressly set forth in the applicable User AGREEMENT, THE PRODUCTS AND SOFTWARE ARE PROVIDED "AS-IS" AND WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND, EITHER BY US OR ANYONE WHO HAS BEEN INVOLVED IN ITS CREATION, PRODUCTION, INSTALLATION, OR DISTRIBUTION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NONINFRINGEMENT. ADDITIONALLY, WE MAKE NO EXPRESS OR IMPLIED WARRANTY THAT SOFTWARE PROVIDED TO YOU IN CONNECTION WITH THESE TERMS IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, FREE OF ERRORS, OR FREE OF VIRUSES OR OTHER MALWARE OR PROGRAM LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY OR FULLY APPLY TO YOU.
- Limitation of Liability. OUR ENTIRE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS IS LIMITED TO THE AMOUNTS YOU ACTUALLY PAID TO US UNDER THESE TERMS. FURTHER, NEITHER WE NOR OUR SUPPLIERS ARE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, RELIANCE, PUNITIVE DAMAGES OR OTHER DAMAGES, OR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE, UNDER BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, RELATED TO THESE TERMS. YOU AND TRIMBLE AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR TRIMBLE’S SALE OF PRODUCTS TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIFIED OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY, OR MAY NOT FULLY APPLY TO YOU.
- Intellectual Property Ownership. You agree that Trimble owns all intellectual property rights in the Products and Software and any information derived from the foregoing. You shall take reasonable precautions to prevent unauthorized access and use of the Software by third parties. To the extent permitted by relevant law, you shall not, nor shall you allow any third party to, copy, decompile, disassemble or otherwise reverse engineer the Products or Software, or attempt to do so. You are prohibited from, and shall prevent any third party from, removing, covering or altering any of our patent, copyright or trademark notices placed upon, embedded in or displayed by the Products or Software or their packaging and related materials. We reserve all rights in the Products and Software not specifically granted to you under the applicable User Agreement. You acknowledge that all Software obtained from the eCommerce Solution is licensed to you or provided to you as SaaS, and irrespective of any use of the words “purchase”, “sale” or like terms hereunder, no ownership rights in Software are being conveyed to you under these Terms or otherwise.
- No Responsibility for Lost Data. Trimble is not responsible for any modification or damage to, or loss of, any programs, data, or other information stored on any media or any part of any Product serviced by us, or stored or hosted by us in connection with any Software we provide, or for the consequences of such damage or loss (such as business loss in the event of system, program or data failure). You are solely responsible for backing up data and removing all features, parts, alterations, and attachments not covered by warranty prior to releasing the Product to Trimble for service or seeking Software support. Any Product or Software sent to Trimble for support may be returned to you configured as originally provided to you by Trimble.
- Government End Users-Restricted Rights. If you are purchasing Software, then without limiting any terms in the applicable User Agreement, the following terms apply:
The Software and its associated documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 12.227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software and documentation with only those rights set forth in the User Agreement for such Software.
- Export Control. Without limiting any terms in the applicable User Agreement, the following terms apply:
You are responsible for complying with all applicable export and import regulations and obtaining all necessary export and import licenses or permits for the direct or indirect export or import of any Products or Software. Without limiting the generality of the foregoing, you hereby acknowledge and agree that Products or Software are subject to the U.S. Export Administration Regulations and were exported from the United States, if at all, in accordance with those regulations. In the exercise of your rights, and the performance of your obligations under these Terms, you shall comply strictly with all U.S. export control laws and regulations applicable to the Products and Software, and shall not export, re-export, transfer, divert or disclose any such Products and Software, or any direct product thereof, to any destination restricted or prohibited by U.S. export control laws, or to any national or resident thereof. You will defend, indemnify and hold Trimble harmless against any liability (including attorneys’ fees) arising out of your failure to comply with the terms of this paragraph. Your failure to comply with any term of this paragraph will constitute a material breach of these Terms and entitle Trimble to immediately terminate this transaction for your purchase and use of the Products and Software in addition to any other remedy available at law or equity.
In addition to the foregoing, if you are located in a country identified in the US Department of Commerce Country Group D list, then you (1) acknowledge that the Products and/or Software received from Trimble are subject to the Export Administration Regulations (EAR) and the jurisdiction of the U.S. Department of Commerce or subject to the International Traffic in Arms Regulations (ITAR) and the jurisdiction of the US Department of State; (2) certify that the export, re-export, resale, and/or transfer to any party who is listed by the government of the United States as prohibited from receiving the Products and/or Software or other restrictions to any destination, end-user, or for any end use prohibited by the laws of the United States, or any other applicable law where such law does not conflict with the laws of the United States, will not be violated; (3) certify that the Products and/or Software will not be resold, transferred, or re-exported without prior authorization from the U.S. Government, to any military entity on the US Department of Commerce Country Group D list; (4) certify that the Products and Software will not be used in designing, developing, production of or using rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (including cruise missile systems, target drones and reconnaissance drones); (5) certify that the Products and/or Software will not be used in the design, development, production, stockpiling, or using chemical or biological weapons, or precursors; (6) certify that the Products and/or Software will not be used in the design, development, production, or testing of nuclear weapons or nuclear explosive devices; (7) certify that the Products and/or Software will not be exported/re-exported to Cuba, Iran, North Korea, Sudan and Syria or any other country under an export embargo/sanction by the US Department of Treasury or US Department of Commerce at the time of export; (8) acknowledge that U.S. law prohibits the sale, transfer, export, or re-export or other participation in any transaction involving products with individuals or companies listed in the U.S. Commerce Department's table of Denial Orders, the U.S. Department of State's list of individuals debarred from receiving Munitions List items or other entity lists published by agencies of the U.S. Government; and (9) agree that the export control requirements in this Section 10, including without limitation (1)-(8) above, shall survive the completion, early termination, cancellation or expiration for these Terms.
- Contracting Party; Governing Law; Venue.
If you are domiciled in:
Courts having exclusive jurisdiction:
Trimble Navigation Limited
California and applicable United States federal law
Federal and California state courts located in Santa Clara County, CA
Rest of World
Trimble Europe B.V.
Courts located in the Netherlands
The United Nations Convention on Contracts for the International Sale of Goods and any “conflicts of laws” principles will not apply. No dispute or legal action arising under these Terms may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the applicable invoice.
If there is an applicable User Agreement, for the avoidance of doubt, the applicable Trimble entity, governing law, and venue provisions of such User Agreements shall control with respect to your use of the applicable Products and/or Services, and may differ from the above.
- Severability. These Terms may be severable and the invalidity, illegality or unenforceability in whole or in part of any provision does not affect the validity of other provisions.
- Force Majeure. Neither party will be liable for non-performance (except for payment obligations) due to causes beyond its reasonable control, provided that such party promptly notifies the other in writing of such occurrence and make reasonable efforts to promptly eliminate the effect thereof.
- Notices. (A) Any notice or other communication given by either party to the other regarding these Terms will be deemed given and served when personally delivered, delivered by reputable international courier requiring signature for receipt, or five (5) business days after mailing (postage prepaid), addressed to the party at its notice address. Either party may change its notice address by written notice to the other. Your notice address will be the billing address appearing on the applicable order confirmation. Our notice address is: Trimble Navigation Limited, Attn: General Counsel, 935 Stewart Drive, Sunnyvale, CA 94085, USA. (B) Either party may send non-legal notices via email, and all such notices for you will be sent to the email address associated with your Trimble account for the applicable Product or Software, and all such notices for Trimble will be sent to the Trimble support e-mail address for the applicable Product or Software. Any notice sent via email will be deemed given and served when it is received.
- Official Language. The official language of these Terms is English. If there is a conflict between versions of these Terms in any other language, the English language version controls.