The following agreements apply to the access and use of the MAGNET web-based services and MAGNET Software that you have acquired the right to use. Included below are:

1. I. MAGNET SERVICE TERMS
2. II. MAGNET SOFTWARE END USER LICENSE AGREEMENT
3. III. MAGNET SOFTWARE SERVICE PLAN

 

I. MAGNET SERVICE TERMS

Updated: December 21, 2018

This Magnet Service Terms (the “Terms”) is between Topcon Positioning Systems, Inc. or one of its Affiliates (“Topcon”) and the individual or entity accepting its terms and conditions (“Customer”) by clicking the “I Accept” button, by creating an account, or by logging in.

BY CLICKING THE “I ACCEPT” BUTTON OR INITIATING USE OF THE SERVICE CUSTOMER AGREES TO THE FOLLOWING TERMS GOVERNING THE USE OF THE SERVICE.

IF AN INDIVIDUAL IS ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, SAID INDIVIDUAL REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO BIND SUCH ENTITY. TOPCON RESERVES THE RIGHT TO IMMEDIATELY TERMINATE OR SUSPEND THE SERVICE FOR FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT.

IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE TERMS AND CONDITIONS OF ANY OTHER AGREEMENT BETWEEN THE PARTIES RELATING TO THE ACQUISITION OF A SUBSCRIPTION TO THE SERVICE, INCLUDING TOPCON’S STANDARD TERMS OF PURCHASE, THIS AGREEMENT SHALL CONTROL.

1. Definitions. As used in this Agreement:

1. 1.1. “Affiliate” means an entity that controls, is controlled by or is under common control with another entity, where “control” refers to ownership or the right to direct more than 50% of the outstanding shares or securities representing the right to vote for the election of directors or other managing authority of another entity.
2. 1.2. “Agreement” means the Terms, which may be updated by Topcon from time to time in its sole discretion, and the applicable Purchase Certificate.
3. 1.3. “Applicable Privacy Laws” means, in relation to any Personal Information that is processed in the provision of the Services, the applicable legislation on the protection of identifiable individuals, including where applicable the Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and/or other applicable data protection or national/federal or state/provincial/emirate privacy legislation in force, including where applicable, statutes, decisions, guidelines, guidance notes and codes of practice issued from time to time by courts, data protection authorities and other applicable government authorities.
4. 1.4. “Content” means the audio and visual information, documents, software, products and services contained or made available to Customer in the course of using the Service.
5. 1.5. “Customer Data” means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or any User and received and processed by the Service.
6. 1.6. “Effective Date” means the earlier of: (a) the Subscription start date described in the Purchase Certificate, or (b) the date a Subscription is activated.
7. 1.7. “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
8. 1.8. “Personal Information” means any information that by itself or in combination does or can identify a specific individual or as defined in the Applicable Privacy Laws.
9. 1.9. “Privacy Statements” means the Topcon privacy statements/policies available at: https://www.topconpositioning.com, https://magnet-enterprise.com, https://collage.magnet-enterprise.com and https://www.magnetsystems.com.
10. 1.10. “Purchase Certificate” means each Topcon software/service purchase certificate, purchase confirmation or other order document acknowledging and/or confirming Customer’s purchase or renewal of a Subscription.
11. 1.11. “Sensitive Information” means any confidential or personal information that is protected by law and that requires the highest level of access control and security protection, whether in storage or in transit. Sensitive Information includes but is not limited to: electronic protected health information, credit, debit or payment card information regulated by the payment card industry, information subject to the Children’s Online Privacy Protection Act of 1998, 15 U.S.C. 6501-6505, and information classified as “sensitive data” (or similar term) under Applicable Privacy Laws.
12. 1.12. “Service” means the Topcon service to which Customer has purchased as specified in the relevant Purchase Certificate.
13. 1.13. “Subscription” means the right to access the Service purchased by a Customer for the applicable Term under the terms of the Agreement.
14. 1.14. “Term” means the initial term of a Subscription or any renewal term for the Service as set forth on the applicable Purchase Certificate or renewal confirmation.
15. 1.15. “Terms of Use” means the terms of use governing the use of the website through which Customer accesses the applicable Service.
16. 1.16. “Usage Limits” means the specific number of Users, licenses and license configurations specifically ordered and paid for by Customer as described in the Purchase Certificate(s) associated with a Subscription.
17. 1.17. “User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service.

 

2. Agreement; Order of Precedence. The Agreement governs the use by Customer and its Users of the subject Service. In the event of a conflict between a Purchase Certificate and the Terms, the Terms will take precedence, except for any matter that the Terms expressly permit to be established or modified in a Purchase Certificate. Customer agrees that the terms of this Agreement supersede the terms of any purchase order issued by Customer.

3. Service Access License Grant and Restrictions.

1. 3.1. Access License Grant. Topcon hereby grants to Customer a non-exclusive, non-transferable, right to access and use the Service during the Term, solely for Customer’s own internal business purposes subject to the Usage Limits and the terms and conditions of this Agreement. Usage Limits may be increased subject to a separate agreement in writing. Usage Limits may not be reduced, except as otherwise agreed in writing. All rights not expressly granted to Customer are reserved by Topcon and its licensors.
   1. 3.1.1. Educational License. If Customer has acquired a Subscription as an Educational License Customer can use and access the Service only for academic research projects. This explicitly excludes projects which are contracted to Customer by any third party for a fee, or projects that are done in collaboration with a third party that is funding the research in whole or in part.
   2. 3.1.2. Not for Resale License. Dealers may acquire Not for Resale (NFR) Subscriptions to the Service subject to the Magnet NFR policy in effect at the time of purchase. NFR Subscriptions may only be used for demonstration purposes.
   3. 3.1.3. Trial License. Trial licenses are available. Use of the Service under a trial license is limited to evaluation and trial (non-commercial) use for the limited period identified by Topcon at the time of acquisition.
2. 3.2. Restrictions. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any Content or the Service in any way that is deemed by Topcon to be outside of the intended use of the Service; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (iv) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes ; or (v) reverse engineer or access the Service or its underlying code in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Customer shall not loan, or share its passwords, or allow third party access to the Service or any related materials without prior written authorization from Topcon.
3. Customer may use the Service only for its internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

 

4. Customer Responsibilities. Customer is responsible for all activity occurring under its Subscriptions and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) notify Topcon immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Topcon immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer or its Users to be in violation of the restrictions in Section 3.2; and (iii) not impersonate another user or provide false identity information to gain access to or use the Service.

Customer, on its behalf and on behalf of its employees and those making use of the Subscription(s), expressly consents to the provision and collection of location-based information in connection with the use and operation of the Service. Customer acknowledges that it shall clearly and conspicuously and upon a regular and ongoing basis notify all employees and end users of the Service that location information is gathered and processed in connection with the operation of the Service. Such information is processed and managed as described in Section 18 below.

5. Modifications and Availability/Security.

1. 5.1. Modifications. Topcon reserves the right, in its sole discretion, to make changes to the Terms, Terms of Use, Privacy Policies and other published policies, including, without limitation, changes required to comply with applicable law. It is Customer’s responsibility to regularly check the applicable Topcon website for updates. Topcon may make new applications, tools, features or functions available from time to time through the Service, the use of which may be conditioned on Customer’s agreement to additional terms.
2. 5.2. Availability/Security. During the Term Topcon will use commercially reasonable efforts to ensure that the Service is available to Customer at all times (other than during the times which Topcon may conduct scheduled maintenance and times of unavailability due to Force Majeure events and/or third-party conduct or services). Topcon will use commercially reasonable efforts to prevent unauthorized access to Customer Data by third parties (except where such access is required by applicable law or an order of a court of competent jurisdiction). From time to time Topcon may connect to the Topcon web-based license manager to validate Customer’s right to use the Service and/or any other related activities.

 

6. Ownership.

1. 6.1. Topcon. As between Topcon and Customer, all right, title and interest in the Service and Software, and all suggestions, ideas and feedback proposed by Customer regarding the Service and Software, including all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Topcon or its licensors, as applicable. Customer hereby does and will irrevocably assign to Topcon all evaluations, ideas, feedback and suggestions made by Customer to Topcon regarding the Service and Software (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback. The Topcon name and logo, the Service name and logo, and the product names associated with the Service are trademarks of Topcon and no right or license is granted to use them.
2. 6.2. Customer Data. As between Topcon and Customer, all right, title and interest in the Customer Data and all Intellectual Property Rights therein, belong to and are retained solely by Customer. Customer, not Topcon, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Topcon shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
   1. 6.2.1. License to Customer Data. Customer hereby grants to Topcon a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Topcon to provide the Service to Customer, subject to compliance by Topcon with its confidentiality obligations under Section 13 (Confidentiality).

 

7. Third-Party Features.

1. 7.1. Google Maps. As part of the Service, Topcon has licensed, and pursuant to the Terms, sublicenses to Customer for Customer’s use, certain map services (“Map Services”) from Google. Access to and use of the Map Services is subject to the following terms and conditions which are agreed to by Customer:
   1. 7.1.1. Use of Google Maps is subject to the then-current Google Maps/Google Earth Additional Terms of Service at https://maps.google.com/help/terms_maps.html and Google Privacy Policy at https://www.google.com/policies/privacy/.
   2. 7.1.2. Unless Google specifically agrees in writing, Customer will not: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Map Services (except to the extent such restriction is expressly prohibited by applicable law); (b) sublicense, transfer, or distribute any of the Map Services; (c) sell, resell, or otherwise make the Services available as a commercial offering to a third party; or (d) access or use the Map Services: (i) for High Risk Activities; (ii) in a manner intended to avoid incurring Fees; (iii) for activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (iv) on behalf of or for the benefit of any entity or person who is legally prohibited from using the Services; or (v) to transmit, store, or process Protected Health Information (as defined in and subject to HIPAA).
   3. 7.1.3. Customer agrees not to, and not to allow third parties to use the Services:
      1. 7.1.3.1. to violate, or encourage the violation of, the legal rights of others (for example, this may include allowing Customer End Users to infringe or misappropriate the intellectual property rights of others in violation of the Digital Millennium Copyright Act);
      2. 7.1.3.2. to engage in, promote or encourage illegal activity;
      3. 7.1.3.3. for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
      4. 7.1.3.4. for any Customer Applications related to sexual content, services, or paraphernalia (for example, escort services, erotic massage services, pornographic images, or sex-related devices);
      5. 7.1.3.5. to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
      6. 7.1.3.6. to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users;
      7. 7.1.3.7. to disable, interfere with or circumvent any aspect of the Services;
      8. 7.1.3.8. to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisements, or other solicitations (“spam”); or
      9. 7.1.3.9. to use the Services, or any interfaces provided with the Services, to access any other Google product or service in a manner that violates the terms of service of such other Google product or service.
   4. 7.1.4. Data Use, Protection, and Privacy. To provide the Map Services through the Service, Google must receive and collect data from end users and Topcon, including search terms, IP addresses, and latitude/longitude coordinates. Customer acknowledges and agrees that Google and its Affiliates may use and retain this data to provide and improve Google products and services, subject to the Google Privacy Policy at https://www.google.com/policies/privacy/.
   5. 7.1.5. Certain components of the Services (including open source software) are subject to third-party copyright and other Intellectual Property Rights, as specified in: (a) the Google Maps/Google Earth Legal Notices at https://www.google.com/help/legalnotices_maps.html; and (b) separate, publicly-available third-party license terms, which Google will provide to Customer on request.
2. 7.2. Autodesk and Bentley Accessibility. The Service allows Customer to access Customer’s Autodesk and Bentley accounts/services from within the Service.
   1. 7.2.1. Process. In order to access Customer’s Autodesk and Bentley accounts/services from within the Service Customer enters and saves its Autodesk/Bentley account information (user name/password) and the URL to the applicable Autodesk/Bentley repository (the “Account Info”) into the Data Manager within the Service and is processed and managed as described in Section 18 below. When Customer directs the service to access to the relevant Autodesk/Bentley account the Account Info is deployed to allow access. The Account Info is stored in the Data Manager and Customer may change or delete the Account Info at its discretion. If the user no longer has access to either, then the connection will fail.
   2. 7.2.2. Disclaimer. Customer acknowledges and agrees that any Autodesk and/or Bentley services/solutions are being provided to you by third-parties and not by Topcon. Customer further acknowledges and agrees that its access or use of any such services is not governed by this Agreement but, instead would be governed by such third-party suppliers’ terms of use, license agreement or other like agreement. TOPCON MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE THIRD-PARTY SERVICE OF ANY SORT. TOPCON CANNOT AND SHALL NOT BE RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY LIABILITY, OF ANY KIND, IN CONNECTION WITH CUSTOMER’S ACCESS TO ANY THIRD-PARTY SOFTWARE/SERVICES, OR CUSTOMER’S USE (OR ANY USER’S USE) THEREOF, INCLUDING, BUT NOT LIMITED TO CUSTOMER’S ACCESS AND USE OF ITS AUTODESK AND/OR BENTLEY ACCOUNTS/SERVICES IN CONNECTION WITH THE SERVICE.

 

8. Fees and Payment; Renewal.

1. 8.1. Fees and Payment. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Topcon’s income. Customer shall pay all fees or charges to Customer’s account as set forth in the applicable Purchase Certificate in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Topcon charges and collects in advance for use of the Service. All payment obligations are non-cancelable, and all amounts paid are nonrefundable. Topcon reserves the right to modify its fees and charges and to introduce new charges at its discretion. Unless Topcon in its discretion determines otherwise, entities will be billed in U.S. dollars. Overdue amounts are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.
2. 8.2. Excess Data Storage/Transfer/Processing Fees. Customer may be provided disk storage space and/or data transfer/processing services in connection with a Subscription. Additional storage and transfer/processing plans may be available for purchase upon the execution of a separate agreement. Topcon reserves the right to establish or modify its general practices and limits relating to storage and processing of Customer Data.
3. 8.3. Automatic Renewal; Billing. The Service provides Customer with the option to automatically renew a Subscription by allowing Topcon to charge the credit card that Customer has authorized for billing. The automatic renewal option Topcon will automatically renew the subject Subscription for a term of equal length to the immediately preceding Term and bill Customer’s credit card at the then current fee schedule no earlier than 30 days prior to the end of the subject Term. The automatic renewal option will be activated upon initial activation and can be disabled at any time at Customer’s discretion. Customer is responsible for providing accurate and current payment information. Topcon shall not be responsible for any gaps in the Service if a Customer fails to renew or does not keep payment information updated.

 

9. Term and Termination.

1. 9.1. Term. This Agreement commences on the Effective Date and will remain in in effect for the Term, unless renewed through the purchase of a new Term or automatic renewal as described in Section 8.3 above.
2. 9.2. Termination for Cause. Either party may terminate a Subscription for cause (i) on 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period (or immediately if the material breach is not capable of being remedied); or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or an assignment for the benefit of creditors. In addition, Topcon may terminate a Subscription, on written notice in the event (A) Customer fails to pay any amounts due hereunder, and such failure continues more than 10 days after written notice by Topcon; or (B) Customer infringes Topcon’s Intellectual Property Rights, including without limitation through use of a Service in excess of the license to use or access granted in this Agreement, including any limitation on scope, nature, type, term, purpose, consumption, or users. Customer is solely responsible for its actions and the actions of its Users.
3. 9.3. Discontinuation of Service/Termination for Convenience. Topcon may discontinue a Service in whole or in part, and/or terminate this Agreement with or without notice for any reason at any time. In the event the Service is discontinued, or this Agreement is terminated during the Term by Topcon other than for cause under Section 9.2 above by, Customer shall be entitled to be reimbursed in an amount equal to the amount of fees paid by Customer for the number of full months remaining in the then current Term. For example, assuming that Customer have advanced payment for a full 1-year Term, if Topcon terminates the Service in the 7^th month of the 1-year term Customer would be entitled to be reimbursed for the amounts paid for the remaining 5 months of the Term. Such reimbursement shall not be available for instances where a Subscription is not activated within 1 year of the date of purchase.
4. 9.4. Effect of Termination or Expiration. On termination or expiration of a Subscription and/or a Purchase Certificate, Customer’s rights of access to the subject Service will terminate and Customer will immediately cease to use the Service. Topcon will make any Customer Data stored in the Service available on request by Customer in the format in which it is stored in the Service for 60 days following the effective date of termination. After such 60-day period, Topcon will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.

 

10. Warranties. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement and (ii) its acceptance of and performance under this Agreement will not breach any oral or written agreement with any third party or any obligation owed by it to any third party.

11. Disclaimer of Warranties.

USE OF THE SERVICE IS AT CUSTOMER’S SOLE RISK. CUSTOMER ACCEPTS THE SERVICE ON AN “AS-IS” AND “AS-AVAILABLE BASIS”. TOPCON, ITS LICENSORS AND WIRELESS SERVICE PROVIDERS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. TOPCON AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TOPCON AND ITS LICENSORS.

THE SERVICE(S) MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC/WIRELESS COMMUNICATIONS. TOPCON IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

12. Indemnification. CUSTOMER SHALL INDEMNIFY AND HOLD TOPCON, ITS LICENSORS AND EACH SUCH PARTY’S SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND COSTS) ARISING OUT OF OR IN CONNECTION WITH: (I) ANY ALLEGATION THAT USE OF THE CUSTOMER DATA INFRINGES, MISAPPROPRIATES OR VIOLATES THE PRIVACY OR INTELLECTUAL PROPERTY RIGHTS OF, OR HAS CAUSED HARM TO, A THIRD PARTY; (II) A BREACH BY CUSTOMER OR CUSTOMER’S USERS OF ANY TERM, OBLIGATION AND/OR COVENANT UNDER THIS AGREEMENT; OR (III) ANY USE OR MISUSE OF THE SERVICE.

13. Confidentiality.

1. 13.1. Confidential Information. “Confidential Information” means any and all non-public information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is designated confidential or proprietary, or that a reasonable person should understand is confidential or proprietary. Confidential Information includes, but is not limited to: the terms of this Agreement, information related to either party’s technology, products, know-how, trade secrets, whether or not patentable or copyrightable, specifications, customers, business plans, pricing information, promotional and marketing activities, finances and other business affairs, Topcon products and anything else created or developed by Topcon in connection with this Agreement and the Services. Customer will not remove or destroy any proprietary markings or restrictive legends placed upon or contained in the Service and/or related materials.
2. 13.2. Nondisclosure Obligations. The Receiving Party will not use the Confidential Information of the Disclosing Party for any purpose other than as necessary to fulfill its obligations or to exercise its rights under this Agreement, and by Topcon to improve the Service (the “Purpose”). The Receiving Party will not disclose Confidential Information of the Disclosing Party to any third party; provided that the Receiving Party may disclose Confidential Information to its partners, officers, directors, employees, contractors, Affiliates, agents, advisors, or representatives who need access to such Confidential Information for the Purpose and who are subject to written confidentiality obligations at least as stringent as the obligations set forth in this Section 13. Each party accepts responsibility for the actions of its partners, officers, directors, employees, contractors, Affiliates, agents, advisors and representatives, and will protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but with no less than reasonable care. The Receiving Party will promptly notify the Disclosing Party upon becoming aware of a breach or threatened breach hereunder and will cooperate with any reasonable request of the Disclosing Party in enforcing its rights.
3. 13.3. Exceptions to Confidential Information. “Confidential Information” does not include information which: (i) is known by the Receiving Party prior to receipt from the Disclosing Party, without any obligation of confidentiality; (ii) becomes known to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) lawfully becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, but only after it notifies the Disclosing party (if legally permissible) to enable the Disclosing party to seek a protective order or otherwise to contest such required disclosure, at Disclosing Party’s expense.
4. 13.4. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

 

14. Use of Aggregate or Anonymized Data. Notwithstanding anything else in this Agreement or otherwise, Topcon may, in accordance with Applicable Privacy Laws, monitor use of the Service by its customers and use the data in the aggregate in the pursuit of its legitimate commercial interests, including for industry analysis, benchmarking, analytics, and marketing. Customer agrees that Topcon may collect, use and disclose such information that does not incorporate Customer Data or Personal Information, or otherwise identify Customer or its Users.

15. Limitation of Liability.

IN NO EVENT WILL TOPCON BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY TORT, CONTRACT OR ANY OTHER LIABILITY ARISING IN CONNECTION WITH THE USE OF THE SERVICE, THE WEBSITE, OR ANY TOPCON WEBSITE, OR RELIANCE ON ANY INFORMATION OR SERVICES PROVIDED BY TOPCON, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION (REGARDLESS OF CAUSE) IN THE CONTENT, REGARDLESS OF THE FORM OF ACTION, INCLUDING, WITHOUT LIMITATION, FOR ANY LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER, EVEN IF TOPCON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL TOPCON OR ITS AFFILIATES, AGENTS, EMPLOYEES, OR LICENSORS (INCLUDING THIRD PARTY PROVIDERS) BE LIABLE FOR ANY DAMAGES OF ANY KIND THAT RESULT FROM (i) THE USE, UNAUTHORIZED USE OR THE INABILITY TO USE THE SERVICE; (ii) THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY CUSTOMER DATA; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER DATA.

IN ADDITION, WITHOUT LIMITING THE FOREGOING, IN ALL EVENTS THE REMEDIES AVAILABLE TO CUSTOMER SHALL BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY CUSTOMER TO TOPCON FOR THE RIGHT TO USE THE SERVICE FOR THE THEN CURRENT TERM OR $100.

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to Customer.

16. Force Majeure. Any delay in or failure of performance by Topcon under this Agreement shall not be considered a breach of this Agreement if and to the extent caused by events beyond the reasonable control of Topcon, including, but not limited to, acts of God, embargoes, governmental restrictions, strikes, riots, terrorist attacks, wars, or other military action, civil disorders, rebellion, fires, floods, vandalism, power outages, or sabotage.

17. Local Laws and Export Control.

The Service provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. Customer agree that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, Customer represent and warrant that Customer are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

Topcon and its licensors make no representation that the Service is appropriate or available for use in other locations. If Customer uses the Service from outside the United States of America, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited.

18. Data Protection and Security.

1. 18.1. As between Topcon and Customer, Customer is the data controller of the Personal Information and Topcon shall process Personal Information only as a data processor acting on behalf of Customer in order to perform its obligations under this Agreement.
2. 18.2. In connection with the sale and provision of the Service, Topcon may, from time to time, collect, maintain, process and use Customer’s company name, User’s name, address, email address, credit card information, login credentials (user name, password), IP address, diagnostic, technical, location, usage and related information.
3. 18.3. Topcon will process Personal Information in accordance with the terms of this Agreement and its Privacy Policies. The parties agree that the Customer’s complete and final instructions are set out in this Agreement. Processing outside the scope of these instructions (if any) will require prior written agreement between Customer and Topcon with additional instructions for processing. In the event of a conflict between the terms of this Agreement and the Privacy Policies, the terms of this Agreement will control with respect to the Subscription being purchased under this Agreement.
4. 18.4. Topcon has implemented and will maintain and follow appropriate technical and organizational measures intended to protect Personal Information against accidental, unauthorized or unlawful access, disclosure, damage, alteration, loss, or destruction. Notwithstanding the above, Customer is responsible for its secure use of the Subscription, including securing its account authentication credentials, protecting the security of Personal Information when in transit to and from the Subscription and taking any appropriate steps to securely encrypt or backup any Personal Information uploaded to the Subscription.
5. 18.5. If Topcon becomes aware of any unlawful access to any Personal Information stored on Topcon equipment or in a Topcon facility, or unauthorized access to such equipment or facilities resulting in loss, disclosure, or alteration of Personal Information (each a “Security Incident”), Topcon will (1) promptly notify Customer of the Security Incident (provided that such notification may be delayed as required by a law enforcement agency); (2) take reasonable steps to address any Security Incident and prevent any further Security Incident; and (3) at Customer’s request and cost, take commercially reasonable steps to assist Customer in complying with its obligations under Applicable Privacy Laws pertaining to responding to a Security Incident.
6. 18.6. Notification(s) of Security Incidents will be delivered to one or more of Customer’s administrators by any means Topcon selects including via email. It is Customer’s sole responsibility to ensure Customer’s administrators maintain accurate contact information on the online portal or as otherwise required by Topcon in a written notice to Customer’s administrator(s). Topcon’s obligation to report or respond to a Security Incident under this Section is not an acknowledgement by Topcon of any fault or liability with respect to the Security Incident. Customer must notify Topcon promptly about any possible misuse of its accounts or authentication credentials or any security incident related to the Subscription.
7. 18.7. Topcon may transfer Customer Personal Information to its Affiliates entities in connection with the performance of its obligations under this Agreement. For a list of Topcon locations, please see company locations found at https://www.topconpositioning.com. Customer expressly acknowledges that Personal Information may be transferred to the United States, and Customer authorizes Topcon (where applicable) to transfer Personal Information to and process it in the United States or any other country as set forth above, which may not have the same level of data protection as the country from which the Personal Information originated.
8. 18.8. Customer represents and warrants that it has the authority to provide the Personal Information to Topcon for processing as contemplated by this Agreement. If any applicable law requires a data subject to receive notice of or to provide consent to the processing and/or transfer of his/her Personal Information, Customer will provide such notice and obtain such consent from the applicable data subjects.
9. 18.9. Topcon will abide by Applicable Privacy Laws pertaining to any relevant individual’s exercise of his or her rights to access, correct, or object to the processing of Personal Information. Notwithstanding the foregoing, unless otherwise required by Applicable Privacy Laws, Topcon will promptly notify Customer if Topcon receives a request from a data subject to have access to Personal Information or any other complaint or request relating to Customer’s obligations under Applicable Privacy Laws. Topcon will provide reasonable assistance to Customer to facilitate Customer’s ability to respond to such request or complaint (including, without limitation, by allowing data subjects to have access to their Personal Information if such access is required by the applicable data protection laws, and where the Personal Information is not already available to the Customer).
10. 18.10. Customer consents to Topcon engaging third party sub-processors to process the Personal Information for the permitted purpose provided that: (i) Topcon maintains an up-to-date list of its sub-processors which is available upon request; (ii) Topcon imposes data protection terms on any sub-processor it appoints that require it to protect the Data to the standard required by Applicable Privacy Laws; and (iii) Topcon remains liable for any breach of this Section that is caused by an act, error or omission of its sub-processor. Customer may object to Topcon’s appointment or replacement of a sub-processor prior to its appointment or replacement, provided such objection is based on reasonable grounds relating to data protection. In such event, Topcon will either not appoint or replace the sub-processor or, if this is not possible, Customer may suspend or terminate this Agreement (without prejudice to any fees incurred by Customer prior to suspension or termination).
11. 18.11. If Topcon believes or becomes aware that its processing of Personal Information is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall inform Customer and provide reasonable cooperation to Customer (at Customer’s expense) in connection with any data protection impact assessment that may be required under Applicable Privacy Laws.
12. 18.12. Customer only will provide Topcon with the Personal Information necessary for Topcon to perform its obligations under this Agreement. Customer acknowledges that the Services do not require the need to process Sensitive Information; therefore, under no circumstances will Customer upload or otherwise provide to the Service any Restricted Information. In the event that Customer uploads Sensitive Information inadvertently, it will be treated in the same manner that Personal Information is treated under this Agreement.
13. 18.13. Following termination or expiry of the Term, Topcon will, where required by Applicable Privacy Laws and at the option of the Customer, return to Customer or securely delete all Personal Information processed in connection with the subject Subscription. This requirement shall not apply to the extent that Topcon is required by applicable law to retain some or all of the Personal Information, or to Personal Information it has archived on back-up systems, in which event Topcon shall securely isolate and protect from any further processing except to the extent required by such law.
14. 18.14. If there is new guidance or a change in the Applicable Privacy Laws that renders all or part of the Service or this Agreement illegal, Topcon may notify Customer of such modifications to this Section 18 as it reasonably deems necessary in light of such new guidance or change in Applicable Privacy Laws. If the Customer does not wish to accept the new terms in this Section 18, the Customer may terminate this Agreement within 15 days of the date such notice is given.

 

19. Notice. Topcon may give notice by means of a general notice on the Service, electronic mail to Customer’s e-mail address on record in Topcon’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Topcon’s account information. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first-class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). Customer may give notice to Topcon (such notice shall be deemed given when received by Topcon) at any time by any of the following: letter sent by confirmed facsimile to Topcon at the following fax number: (201) 599-5248; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Topcon at the following address: 111 Bauer Drive Oakland, New Jersey 07436, in either case, addressed to the attention of: General Counsel.

20. Assignment; Change in Control. This Agreement may not be assigned by Customer without the prior written approval of Topcon. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Customer that results or would result in a direct competitor of Topcon directly or indirectly owning or controlling 50% or more of Customer shall entitle Topcon to terminate this Agreement for cause immediately upon written notice.

21. General. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflicts of laws provisions. If for any reason any provision of this Agreement, or a portion thereof, shall be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. Any action concerning this Agreement shall take place in state or federal courts located in Alameda County, California. This Agreement constitutes the entire agreement between us and Customer with respect to the Service and it supersedes all prior or contemporaneous communications, agreements and understandings between Topcon and Customer with respect to the subject matter hereof. No joint venture, partnership, employment, or agency relationship exists between Customer and Topcon as a result of this agreement or use of the Service. The failure of Topcon to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Topcon in writing. A printed version of this Agreement shall be admissible in judicial or administrative proceedings.

 

II. MAGNET SOFTWARE END USER LICENSE AGREEMENT

Updated: December 21, 2018

IMPORTANT: PLEASE READ CAREFULLY. The software product provided to you by Topcon Positioning Systems, Inc. (“Topcon”) along with its associated manuals and documentation (collectively, the “Software”) is owned by Topcon and your use is subject to the terms and conditions of this Software System License Agreement (“Agreement”) set forth below. The Software is intended for use on and/or as embedded in a personal computer or Topcon product upon which the Software is intended to be installed and used (each a “Device”). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you may not use the Software. Topcon also reserves the right to immediately terminate this Agreement for failure to comply with the terms provided herein.

By clicking the “ACCEPT” button below, and/or or by installing or using the Software or any Device in which the Software is embedded, you agree to be bound by the terms and conditions of this Agreement. If you do not agree, you will not be authorized to use the Software.

1. Grant of License to Software. If you have purchased or otherwise received Software from Topcon or as embedded in a Device, Topcon grants you a personal, non-exclusive, non-transferable (except as expressly set forth herein) license for the applicable Term (as defined below) to use the Software under the terms stated herein and in any case only with a single Device running a validly licensed copy of the operating system for which the Software was designed (e.g., Linux, Android, iOS, Windows). “Term” means the period during which you may use the Software associated with the applicable Topcon part number assigned to the Software license you acquired and/or as set forth in the applicable purchase confirmation. The Term shall commence on the earlier of: (i) the date set forth in the applicable purchase confirmation or (ii) the date you initially activate the Software. If you have acquired the product as an educational license you can use the Software only for academic research projects. This explicitly excludes projects which are contracted to you by any third party for a fee, or projects that are performed in collaboration with a third party that is funding the research in whole or in part.

2. Restrictions on Use and Transfer. You may not: (i) modify, adapt, translate, reverse engineer, decompile, or disassemble the Software: (ii) modify, translate, adapt, arrange, or create derivative works based on the Software Application for any purpose: (iii) remove, modify or hide or otherwise make unreadable or non-viewable any notice, legend, advice, watermark trademark, service mark, or other designation contained on the Software, component thereof, documentation, or output therefrom; (iv) distribute registered copies of the Software to third parties, including, without limitation, rent, lease, or lend the Software to third parties; (v) install or access, or allow the installation or access of, the Software over the Internet, including, without limitation, use in connection with a Web hosting or similar service, or make the Software available to third parties via the Internet on your computer system or otherwise; (vi) use or export the Software outside of the country of purchase for any reason; (vii) use, permit the use, or use the Software in violation of any U.S. Federal, state, or local laws or regulations or any foreign law or regulation, including laws regarding intellectual property rights in or laws or regulations regarding the trading or exchange of securities or concerning the Software. You further agree to use the Software solely for its intended purpose; (viii) assign, give or transfer the Software to another individual or entity, without the prior written consent of Topcon.

You are prohibited from (a) timesharing, service bureau, subscription service or rental use of the Software or (b) passing title to the Software any other individual or (c) publication of any results of benchmark tests run on the Software.

You shall not copy the Software except: (i) as necessary to read the Software from the media into the memory of a computer solely for the purpose of executing it on a single machine (whether a stand-alone computer or a workstation component of a multi-terminal system), or (ii) to create an archival copy. You agree that any such copies of the Software shall contain the same proprietary notices which appear on and in the Software.

The Software and all related information you may come to learn related to the Software and Topcon’s operations in connection therewith is confidential in nature. You agree to take all reasonably necessary precautions to protect Topcon’s confidential information and exercise at least the same degree of care in safeguarding the confidential information as you would with your own most valuable confidential information.

Topcon shall be entitled to audit your use of the Software in relation to compliance with this Agreement, upon reasonable notice and on reasonable terms and report such use to its licensors.

3. Pass-Through of Open Source Terms. Notwithstanding the foregoing license grant and restrictions, you acknowledge that certain components of the Software may be covered by so-called “open source” software licenses (“Open Source Components”), which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format. Topcon shall provide a list of Open Source Components for a particular version of the Software upon your request (the current list is found in Appendix A). To the extent required by the licenses covering Open Source Components, the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement. To the extent the terms of the licenses applicable to Open Source Components prohibit any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of the licenses applicable to Open Source Components require Licensor to make an offer to provide source code or related information in connection with the Software, such offer is hereby made. Any request for source code or related information should be directed only to: Topcon via email at OSinquiry@topcon.com.

4. Termination. This Agreement is effective until expiration of the Term or terminated as provided herein. You may terminate the license at any time by destroying the Software and related documentation. Without prejudice to any other rights of Topcon, Topcon may terminate your license if you fail to comply with the terms and conditions of this Agreement. In such event, you must destroy all copies of the Software in your possession.

5. Safety. IMPROPER USE OF A TOPCON PRODUCT CAN LEAD TO INJURY TO PERSONS OR PROPERTY AND/OR MALFUNCTION OF THE PRODUCT. THE PRODUCT SHOULD ONLY BE REPAIRED BY AUTHORIZED TOPCON WARRANTY SERVICE CENTERS. USERS SHOULD REVIEW AND HEED THE SAFETY WARNINGS IN THE DOCUMENTATION ACCOMPANYING THE PRODUCT.

6. Ownership of the Software. The Software is owned by Topcon and its respective licensors and is protected by United States and international copyright laws and other intellectual property laws.

7. Professional Use. The Software is designed to be used by a professional. The user is required to be a professional surveyor or have a good knowledge of surveying and be familiar with the safe use of such products, in order to understand the user instructions before operating the Software.

8. Maintenance/Support. Maintenance and support services are available through the Topcon Magnet Software Service Plan (the “Service Plan”). Topcon agrees to provide maintenance and support services as described in and pursuant to the Service Plan to you for a period of 1 year from the date of commencement of the Term, at no additional charge. Following the first year, and for successive years thereafter, in order to receive continued maintenance and support service, you must pay the applicable Service Plan fee at the start of each annual period as set forth by Topcon... A copy of the current Service Plan is available from Topcon upon request. Service Plan terms and conditions are subject to change from time to time as determined by Topcon.

9. Crash; Bug Reporting and Feedback. The Software provides you with the ability to report performance issues/feedback and suggestions to Topcon. In the event that you chose to report any performance issues to Topcon the Software will gather the relevant job file and Device and Software settings and save to a file that you may forward to Topcon. Such information and feedback shall be used by Topcon to develop, provide and improve Topcon’s products and services, resolve bugs and faults, and to facilitate the provision of Software updates, product development, management and support and other services to you (if any) related to the Software. You hereby grant to Topcon a perpetual license to use, perform, copy, modify of the information that you supply to Topcon under the process and for the purposes described in this Section 9.

10. Disclaimers. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE AND ANY FEATURES/SERVICES PERFORMED BY OR ACCESSED THROUGH THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND ERROR IS WITH YOU.

THE SOFTWARE AND RELATED FEATURES ARE PROVIDED “AS IS.” TOPCON MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, REGARDING OR RELATING TO THE SOFTWARE AND RELATED FEATURES (INCLUDING, WITHOUT LIMITATION, THAT THE SOFTWARE WILL BE ERROR-FREE OR AVAILABLE FOR USE AT ALL TIMES) OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE, AND TOPCON SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SAID MATERIALS OR THE USE THEREOF. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, THE UNIFORM COMMERCIAL CODE OR OTHER UNIFORM LAWS SHALL NOT APPLY TO THIS AGREEMENT.

TOPCON DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, THAT ANY SERVICES/FEATURES WILL CONTINUE TO BE AVAILABLE, THAT THE SOFTWARE OR SERVICES/FEATURES WILL BE CORRECTED, OR THAT THE SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES.

11. Trademarks. The Topcon name, the Topcon logo, and the product names associated with the Service are trademarks of Topcon and no right or license is granted to use them. Product and company names mentioned herein may be trademarks of their respective owners.

12. Third-Party Features. The Software includes features/services available under license from certain third-parties (“Third-Party Features”). Topcon does not guarantee the ongoing availability of any Third-Party Features, which are subject to immediate termination at the discretion of Topcon. In the event that any Third-Party Feature is terminated you shall have no further right to access/use the subject feature under this Agreement and your access to such Third-Party Feature may be permanently disabled. Notifications of availability/termination of Third-Party Features may be posted from time to time on the Topcon website.

1. 12.1. Bing Maps Feature. Microsoft Bing maps feature. Additional End User Terms relating thereto are found below in Appendix B.
2. 12.2. RealDWG Feature. You are hereby notified that Autodesk, Inc. 111 McInnis Parkway, San Rafael, CA 94903 (“Autodesk”) is a third-party beneficiary to this Agreement. Such provisions are made expressly for the benefit of Autodesk and are enforceable by Autodesk in addition to Topcon.

 

13. Limitation of Liability. TOPCON, ITS DISTRIBUTORS, LICENSORS AND SUPPLIERS SHALL NOT BE LIABLE FOR TECHNICAL OR EDITORIAL ERRORS OR OMISSIONS CONTAINED IN THE SOFTWARE, ITS DOCUMENTATION AND/OR FEATURES. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, IN NO EVENT SHALL TOPCON, ITS DISTRIBUTORS, LICENSORS, OR SUPPLIERS BE LIABLE UNDER ANY CLAIM, DEMAND OR ACTION ARISING OUT OF OR RELATING TO THE SOFTWARE, ITS USE, INSTALLATION OR THEIR PERFORMANCE OR LACK THEREOF UNDER THIS AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, DEMAND OR ACTION. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL Topcon OR ITS AFFILIATES, AGENTS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND THAT RESULT FROM (i) THE USE OR THE INABILITY TO USE THE SOFTWARE AND/OR ANY FEATURES THEREOF (INCLUDING THIRD PARTY FEATURES/SERVICES; (ii) THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY DATA, COMMUNICATIONS OR SETTINGS; (iii) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES; OR (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, WITHOUT LIMITING THE FOREGOING, IN ALL EVENTS THE REMEDIES AVAILABLE TO YOU SHALL BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY YOU TO TOPCON FOR THE RIGHT TO USE THE SOFTWARE OR $100.

14. Indemnification. YOU SHALL INDEMNIFY AND HOLD TOPCON, ITS DISTRIBUTORS, LICENSORS AND SUPPLIERS AND THEIR RESPECTIVE AGENTS, OFFICERS, MANAGERS, EMPLOYEES AND MEMBERS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, SUITS, JUDGMENTS AND EXPENSES (INCLUDING REASONABLE LEGAL FEES AND EXPENSES) ARISING OUT OF OR RELATING TO: (A) THE BREACH BY YOU OF YOUR OBLIGATIONS UNDER THIS AGREEMENT; (B) YOU VIOLATION OF ANY LAW, REGULATION OR THIRD-PARTY RIGHTS; AND/OR (C)INTELLECTUAL PROPERTY MISAPPROPRIATION OR INFRINGEMENT CLAIMS BY ANY THIRD PARTY BASED ON, OR RELATING TO, YOUR USE OF THE SOFTWARE. YOU AGREE TO GIVE TOPCON PROMPT NOTICE OF SUCH CLAIMS AND TO PERMIT TOPCON TO CONTROL THE DEFENSE OR SETTLEMENT THEREOF.

15. Export Control. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction(s) in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.

16. Government End Users. If the Software is supplied to or purchased by or on behalf of the United States Government, then the Software is deemed to be a Commercial Item, as that term is defined in 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 or 48 C.F.R. -227.7202, as applicable. Consistent with 48 C.F.R. -12.212 or 48 C.F.R. -227.7202-1 through 227.7202-4, as applicable, such Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions set forth in this Agreement.

17. Website; Other Statements. No statement contained at the Topcon website (or any other web site) or in any other advertisements or Topcon literature or made by an employee or independent contractor of Topcon shall modify this Agreement.

18. Privacy Policy. At all times personally identifiable information will be treated in accordance with Topcon’s Privacy Policies, which can be viewed at: https://www.topconpositioning.com, https://magnet-enterprise.com, https://www.magnetsystems.com and https://collage.magnet-enterprise.com.

19. General. This Agreement may be amended, modified, superseded, or canceled, at any time by Topcon. This Agreement shall be governed by and construed and enforced in accordance with the laws of the state of California, without regard to conflicts of laws provisions. Any action concerning this Agreement shall take place in the state or federal courts located in San Francisco, California. If for any reason any provision of this Agreement, or a portion thereof, shall be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. This Agreement constitutes the entire agreement between us and you with respect to the Software and it supersedes all prior or contemporaneous communications, agreements and understandings between Topcon and you with respect to the subject matter hereof. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any other agreement between the parties relating to the acquisition of a license to the Software or support thereof, including Topcon’s standard terms of purchase, the terms and conditions of this Agreement shall control. No joint venture, partnership, employment, or agency relationship exists between you and Topcon as a result of this agreement or use of the Service. The failure of Topcon to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Topcon in writing. A printed version of this Agreement shall be admissible in judicial or administrative proceedings.

Appendix A

Open Source Components

 

Appendix B

MICROSOFT BING MAPS END USER MINIMUM TERMS

Microsoft has licensed the Services (defined below) to Topcon. By using the Software, you accept these terms. If you do not accept them, do not use the Software.

1. Definitions.

1. “Asset” means one of any of the following classes: vehicle, device or another mobile object.
2. “Content” means the maps, images and other data and third-party content that Bing Map licensors are authorized to access via the Services.
3. “Premium Services” means, collectively, the Bing Maps Distance Matrix API, Bing Maps Isochrone, Bing Maps Snap to Road API and Bing Maps Truck Routing API.
4. “Services” means the Bing Maps Platform APIs (except Premium Services) to be provided by Microsoft.

 

2. License. Topcon provides you a license to access the Services (except Premium Services) from within the Software provided by Topcon only.

3. Additional Restrictions.

You may overlay administrative boundaries or other map content provided in the Software, provided that you do not use the Software for:

1. (1) loading additional map content layers of any kind;
2. (2) editing or creating map content. For avoidance of doubt, simple annotations such as a line, arrow, polygon or circle to highlight an area are allowed and not considered to be map content under this restriction; and
3. (3) executing any spatial query other than proximity (find the nearest), point-in-polygon, distance between two points or as provided by the find

 

and route services. For avoidance of doubt, Software may not perform Geofences, buffers or query a spatially enabled database.

4. General Restrictions. Microsoft does have some restrictions on your use of the Software supplied by Topcon. In using the Services provided with the Software, you may not:

1. (a) Upload or incorporate any content to the Services via the Software, or use the Software to display or use any content:
   1. • for which you do not have all necessary permissions from the copyright holder(s);
   2. • which includes nudity or is obscene, indecent, pornographic;
   3. • which is intended to exploit minors in any way;
   4. • which incites, advocates, or expresses hatred, bigotry, racism, or gratuitous violence; or
   5. • which is intended to threaten, stalk, defame, defraud, degrade, victimize, or intimidate an individual or group of individuals for any reason, including on the basis of age, gender, disability, ethnicity, sexual orientation, race, or religion, or to incite or encourage anyone else to do so.
2. (b) Copy, store, archive, or create a database of the Content.
3. (c) Use Content, including geocodes, other than in conjunction with the Software.
4. (d) Present or alert a user to individual maneuvers of a route in any way that is synchronized with the user’s sensor-based position along the route (e.g. turn by turn navigation that tracks the user’s position using GPS and communicates a maneuver as the user approaches the location for such maneuver).
5. (e) Change, obscure, or minimize any logo, trademark, copyright or other notice of Microsoft or its suppliers, or digital watermarks in the Content; except that we may make alternative logo, trademark and copyright attribution requirements available for use with small maps or on small devices; if available you will find them here: http://go.microsoft.com/fwlink/?LinkID=229258.
6. (f) Use the Services for business asset tracking, fleet management, or dispatch including, without limitation, to monitor or track the location or movement of Asset(s), including to provide guidance based on the position or routing of multiple objects tracked using GPS or other sensor- generated methods.
7. (g) Use Content other than in combination with the Services and not separately.
8. (h) Use Content that consists of points of interest data to generate sales leads information in the form of ASCII or other text-formatted lists of category-specific business listings which (i) include complete mailing address for each business; and (ii) contain a substantial portion of such listings for a particular country, city, state or zip code region.
9. (i) Transmit, sell, license or deliver any infringing, defamatory, offensive, or illegal products, services or materials.
10. (j) Violate any applicable U.S. Export Administration Regulations or end user, end-use and destination restrictions issued by U.S. and other governments. The Services are subject to U.S. export jurisdiction.
11. (k) Use the Services in any way that threatens the integrity, performance or reliability of the Services including performance or stress testing, or in any manner that works around any technical limitations in the Services.
12. (l) Syndicate, redistribute, resell or sublicense access to the Services or Content on a standalone basis.
13. (m) Falsify or alter any unique referral identifier in, or assigned to, a Software, or otherwise obscure or alter the source of queries coming from a Software.
14. (n) Reverse engineer, decompile or disassemble the Services, except and only to the extent that applicable law expressly permits, despite this limitation.
15. (o) Integrate road maps from the Services with road maps supplied by any third party. You may not replace aerial imagery from the Services with imagery supplied by any other mapping platform.
16. (p) Use the Services or Content with a vehicle’s dashboard, or a device connected to a vehicle’s dashboard, systems or sensors, except that the device may be connected to the vehicle power source for charging purposes.
17. (q) Use bird’s eye aerial imagery (if it is made available through the Bing Maps Platform APIs) to reveal latitude, longitude, altitude or other metadata.
18. (r) Save, download, print, distribute, transmit or manipulate bird’s eye imagery, or offer others that ability, through your Software.
19. (s) Use bird’s eye imagery of the United States, Canada, Mexico, New Zealand, Australia, and/or Japan if you are a government entity.
20. (t) Use Content from Ordnance Survey.

 

5. Intellectual Property and Reservation of Rights. All rights to the Services and the Content, including rights of use, not specifically granted under these End User Minimum Terms or your agreement with Topcon are reserved by Microsoft and its suppliers. Except as set forth in your agreement with your Topcon, these End User Minimum Terms do not grant Microsoft any right or license to any Software or your intellectual property, including intellectual property that you licensed from third parties. Except for material that Microsoft may license to you, Microsoft does not claim ownership of the content you post or otherwise provide to us, which is hosted by Microsoft or a third-party hosting provider on Microsoft’s behalf, related to the Services (called a “Submission”). However, by posting or otherwise providing your Submission (and for the avoidance of doubt, where Microsoft hosts content on your behalf including by a third party hosting provider, this constitutes a Submission, but where you host or a third party hosts content on your behalf, other than Microsoft or a third party hosting provider on behalf of Microsoft, this does not constitute a Submission), you are granting to Microsoft free permission to use, copy, distribute, display, publish, transcode and otherwise modify your Submission, each in connection with the Services, and sublicense these rights to others in order to provide the Services. For every Submission you make, you must have all rights necessary for you to grant the permissions in this section.

Additional Rights and Restrictions for End Users.

1. (i) Support or SLA. Microsoft does not provide any support or SLA directly to end users for Software provided to an end user by Topcon.
2. (ii) Termination Rights. Microsoft reserves the right terminate access to the Software to any end user who is in breach of any restriction included in these End User Terms or Topcon’s terms with you related to use of the Services, and who fails to cure such breach within thirty (30) days after written notice thereof.
3. (iii) No Warranty by Microsoft to End Users. Microsoft does not make any representation or warranty (express, implied, statutory, or otherwise) with respect to the Services or otherwise.

 

 

III. MAGNET SOFTWARE SERVICE PLAN

Updated: December 21, 2018

The following terms and conditions describe and apply to the MAGNET Software Service Plan (the “Service Plan”) for Magnet Software licensed to Customer by Topcon:

1. Term. The Service Plan is provided on an annual subscription basis subject to the payment of applicable fees. For the first year following the purchase of a perpetual or annual subscription Software license (the “Initial Term”) the Service Plan will be included free of charge. Thereafter, the Service Plan shall automatically renew for successive one (1) year periods (each referred to as a “Renewal Term”) upon the same terms and conditions as set forth herein in exchange for the payment of the applicable annual support fee (the “Service Plan Fee”) unless either party provides notice of its intent not to renew no later than thirty (30) days prior to the expiration of the Initial Term or then current Renewal Term. If neither party issues a notice of non-renewal then Topcon, or one of its resellers, may issue an invoice for the payment of the applicable annual Service Plan fee, which shall be due and payable thirty (30) days from the date of the invoice. The Initial Term and any Renewal Term may be referred to as the “Term” herein.

2. Services. During the Term Topcon will provide Customer the following services for the Software:

1. 2.1. Updates/Upgrades. Free Upgrades and/or Updates to the Software, if such Upgrades and/or Updates are released within the Term, the use of which shall be subject to the terms and conditions of the license agreement relating to the Software. The term, “Upgrade” means a new version of the Software that adds substantial new features and functionality in addition to the original functional characteristics of the Software and is generally designated by a change in the version number to the left of the decimal point (e.g., Version 1.1 to Version 2.1). The term, “Updates” as used herein means bug fixes, corrections, and enhancements to the Software that are made available by Topcon to its customers at no additional fee. Some Updates and Upgrades may require more advanced or larger capacity equipment and/or third-party software. Meeting other equipment and software compatibility requirements shall be solely Customer’s responsibility. Updates do not include any software that Topcon licenses separately such as major upgrades that contain substantive new features or functionality not provided by the Software originally licensed by Customer. Topcon shall take commercially reasonable steps to correct and/or provide workarounds for programming defects in the Software reported by Customer’s designated contacts to Topcon, if Topcon, in its sole discretion, recognizes them as having a detrimental effect on the operation of the Software.
2. 2.2. Email Support. Unlimited use of Topcon’s e-mail support to receive technical assistance regarding the Software and for which Customer has purchased a Service Plan.
3. 2.3. Error Support. During the Term Topcon provide Error Support as described in Exhibit B.
4. 2.4. Training. Training is not provided as part of the Service Plan. Training is available subject to separate mutually acceptable terms and conditions.

 

3. MAGNET Enterprise. During the Term Customer shall be entitled to a single-user subscription to the MAGNET Enterprise web service, conditioned on Customer’s acceptance of and compliance with the then current Magnet Service Terms.

4. Customer Responsibilities.

1. 4.1. Customer Contacts. Customer shall provide Topcon with the names and contact information for the permitted number of Customer’s designated contacts for the Service Plan. Customer may change such designated contacts from time to time and shall provide notice to Topcon upon making such changes. Customer’s designated contacts shall familiarize themselves with the use and operation of the Software and review the accompanying product documentation.
2. 4.2. Cooperation. Customer shall reasonably cooperate with Topcon to enable Topcon to effectively perform its obligations hereunder and Customer shall provide Topcon access to their systems, software, data, etc., as may be reasonably requested by Topcon to perform the services.
3. 4.3. Compliance. Customer shall remain in full compliance with all license agreements applicable to the Software.

 

5. Charges. Service Plan fees are described in the Order Form or applicable Topcon price/fee schedules. All invoices for shall be paid by Customer within 30 days of the date of receipt of Topcon’s invoice. Service Plan fees do not cover any support services related to third party software programs, which may be required to run the Software. If a Service Plan expires and is not renewed within 60 days, Topcon may charge an additional reinstatement fee.

6. Exclusions. The Service Plan does not include, and Topcon shall have no obligation to respond to or resolve, problems arising from, related to or caused by:

1. 6.1. Matters excluded from the definition of “Errors” in Exhibit B.
2. 6.2. Customer’s failure to perform a material obligation under Section 3, above.
3. 6.3. Provision, installation and/or support of new versions and/or enhancements to Third-party Software. “Third-party Software” is any software that is not developed by Topcon and includes without limitation, operating system software, word processing, spreadsheet, and reporting and/or database software.
4. 6.4. Performing the installation and configuration of the Software or Updates and Upgrades to the Software.
5. 6.5. Upgrading hardware on the system on which Customer uses the Software to an unsupported hardware configuration.
6. 6.6. If Customer is using Topcon products that require Third-party Software, Customer must remain current on maintenance requirements for all such products for as long as the Software is in use to assure the integrity of the Software. Customer acknowledges that cancellation of the Service Plan as to any one system may cause incompatibilities with related products, and performance of the Software could be adversely affected. Similarly, Customer also acknowledges that Updates or any Upgrades to the Software may require upgrades to Third-party Software, hardware or other equipment used by Customer. Topcon shall not be responsible for any problems arising from
7. 6.7. Repair of the Software if the failure, as reasonably determined by Topcon, is directly a result of:
   1. 6.7.1. Third-party Software or third-party equipment or supplies Customer is using that are not supplied by Topcon.
   2. 6.7.2. Misuse or neglect of the Software including, but not limited to, failure to perform scheduled data backups using a prudent method of media rotation.
   3. 6.7.3. Anyone other than a member of Topcon’s staff making any alteration to the Software or to the system files, without the guidance or direction of Topcon, which adversely affects the Software.
   4. 6.7.4. Customer’s gross negligence, abuse, misapplication or use of the Software other than for its intended purpose.
   5. 6.7.5. The inappropriate use of Third-party Software that adversely affects the Software and but for such inappropriate use, the Software would not be affected as determined on a case-by-case basis.
   6. 6.7.6. Changes to the operating system, hardware or environment that adversely affect the Software as determined on a case-by-case basis.

 

Topcon reserves the right to charge additional fees at its then standard rates for services performed in connection with reported incidents that are later determined to have been due to problems described in Section 6.6 or for services that extend beyond the scope of this Service Plan. Such services shall be supplied at Topcon’s, or the involved Topcon dealer’s, then current rates plus reasonable expenses. Notwithstanding the foregoing, Topcon has no obligation to perform support services in connection with issues resulting from hardware or software not supplied by Topcon.

7. Software Modifications. Any unauthorized modifications that Customer makes to the Software, including any modifications to any licensed Third-party Software included with or embedded in the Software, will render any obligations under this Service Plan null and void. Topcon will not be liable, in any respect, for any such unauthorized modifications or any errors, losses or damage resulting from such modifications.

8. Warranty; Disclaimer of Warranties; Limitation of Liability.

1. 8.1. Warranty. Topcon represents, warrants and covenants that the services provided hereunder will be performed by qualified and skilled personnel in a workmanlike manner.
2. 8.2. Disclaimer. TOPCON DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY CUSTOMER IN RECEIVING THE SERVICES, OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TOPCON EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES WITH RESPECT TO THE SERVICE PLAN, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
3. 8.3. LIMITATION OF LIABILITY. IN NO EVENT WILL TOPCON BE LIABLE TO CUSTOMER FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR OTHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE DELIVERY OF SERVICES OR ANY DELAY IN DELIVERY OF THE SERVICES. EXCEPT FOR LIABILITY ARISING FROM A VIOLATION OF A PARTY’S CONFIDENTIALITY OBLIGATIONS SET FORTH HEREIN, AND/OR WILLFUL MISCONDUCT AND GROSS NEGLIGENCE. TOPCON’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, SHALL IN NO EVENT EXCEED THE SERVICE PLAN FEES FOR THE ANNUAL TERM DURING WHICH SUCH LIABILITY ARISES.

 

9. Confidentiality.

All Confidential Information (as defined below) that is disclosed by either party (a “disclosing party”) to the other (a “receiving party”) in relation to this Service Plan or the relationship created by this Service Plan shall be held in strict confidence by the receiving party and only used in connection with this Service Plan. Any disclosure or provision of Confidential Information to the receiving party shall be made in reliance on this promise.

“Confidential Information” means all information related to a party that such party identifies as confidential or proprietary and discloses to the other party which relates to their past, present or future research, development, technology, know-how, business activities and programs, financial information and patient information. Confidential Information shall also include any unannounced product(s) or service(s) of either party, and any other information or materials provided to a receiving party and designated by the disclosing party as confidential or proprietary. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. The parties do not wish to receive any Confidential Information that is not necessary to achieve the purpose of this Service Plan.

Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and warrants and represents on their own behalf that all of their own officers, employees, and agents who have access to Confidential Information of the other party are aware of (or will, prior to their being given access to any Confidential Information under this Service Plan, be made aware of) the terms of this Service Plan so that they may sufficiently protect the considerable interest of the other party’s Confidential Information.

Each party acknowledges and agrees that it may suffer irreparable injury not compensable by money damages and therefore may not have an adequate remedy at law in the event of an authorized use or disclosure of Confidential Information in breach of the provisions of this Service Plan. Accordingly, a disclosing party shall be entitled to injunctive relief to prevent or curtail any such breach, threatened or actual, by a receiving party. The foregoing shall be in additional and without prejudice to such other rights as each party may have at law or in equity.

The parties agree that the terms of this Section shall survive the termination of this Service Plan.

10. Miscellaneous.

The obligations of either party under this Service Plan may be impacted by conditions beyond the control of such party or its agents, including but not limited to, acts of God, acts of any public enemy, fire, flood, epidemic or quarantine restrictions, strikes, riots or civil commotion, freight or other embargoes, and weather conditions.

This Service Plan will be governed by and interpreted in accordance with the laws of the State of California and the parties agree to attorn to the jurisdiction of the courts therein.

Topcon shall support the latest version of the Software. If Customer chooses not to install the latest version of the Software, Topcon reserves the right to reasonably limit the scope of the services provided.

Neither party shall assign, in whole or in part, any of its right or obligations under this Service Plan without the prior written consent of the other party; provide however, that either party may assign this Service Plan to any entity which controls, is controlled by, or is under its common control, or in the event of any merger or consolidation with or into any person, or any conveyance, transfer, lease or other disposition (whether in one transaction or a series of transactions) of all or substantially all of such party’s assets, or any other change in control of such party.

This Service Plan (together with any Exhibits or attachments referred to herein) sets forth the entire understanding of the parties with respect to the subject matter of this Service Plan, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Any amendment to this Service Plan must be in writing signed by both parties.

The waiver or failure of either party to exercise in any respect any right provided for in this Service Plan shall not be deemed a waiver of any further right under this Service Plan.

If any provision of this Service Plan is invalid, illegal or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.

Topcon has no other responsibilities with respect to services other than those specified in this Service Plan.

 

Exhibit A

MAGNET Software Service Plan Overview

Key Benefits

Email support during normal business hours. Unlimited number of support requests

Online access to:

Documentation and technical resources

Knowledge base of common resolutions

Product upgrades and updates

At a Glance

Feature	Services
E-mail support	To access Customer shall complete the support request form located at magnetsystems.com
Length of Service	Annual (following balance of year of purchase of Software (renewed annually)
Product Upgrades and Updates	Included
Products Supported	MAGNET
Access Channels	-/Email/Web
Number of Support Requests	Unlimited
Committed Response Time	See Exhibit B

 

Contact Topcon MAGNET Software Support

1. • Online Support Request Form:

https://www.magnetsystems.com/contact-us

1. • Topcon Web Sites:

https://www.topconpositioning.com

 

Exhibit B

Customer Support

1. Definitions.

1. 1.1. “Error” means a failure of the Software to substantially conform to the applicable Software documentation made available by Topcon.
2. The term “Error” does not include, and Topcon shall have no obligation to resolve problems arising from, related to or caused by: (i) feature requests or product enhancement requests; (ii) altered or modified Software or any portion of the Software incorporated with or into other software; (iii) negligence, abuse, misapplication or use of the Software other than as specified in the applicable Topcon documentation or as otherwise suggested or recommended by Topcon; (iv) accidents, acts of nature or other causes beyond the reasonable control of Topcon; (v) failure to timely install all Updates made available by Topcon; (vi) changes to the operating system, hardware or environment which have not been reviewed with Topcon and that adversely affect the Software; or (vii) versions of the Software that are more than one major release older than the then-current version. By way of example, when Software version 3.x is commercially available, Topcon will discontinue support of Software version 1.x. Service Plans do not include diagnosis at or travel to any facilities other than Topcon premises, or re-creation of data lost for any reason whatsoever. For Topcon’s efforts to address any of the foregoing or other problems caused by Customer’s or any Third-party Software or products, Topcon will be entitled to time and materials compensation from Customer at its then standard rates for services.
3. 1.2. “Major Error” is any Error that either fully or repeatedly or substantially impairs the use or operation of the Software by Customer or Customer’s customers.
4. 1.3. “Minor Error” is any Error that is outside of the Major Error definition.

 

2. Error Support Responsibilities.

1. 2.1. Customer Responsibilities. Customer will be responsible for providing Level 1 and 2 support for the Software to its customers and Customer may contact Topcon time to time by phone or email to efficiently and effectively address such issues.
   1. 2.1.1. Level 1. Customer will be responsible for direct customer interface and problem isolation and determination to the extent possible.
   2. 2.1.2. Level 2. Customer will be responsible for problem resolution, to the extent that Customer can resolve the problem with reference to information and resources made available to Customer by Topcon.
2. 2.2. TPS Responsibilities. Topcon will provide Customer with Level 1 and Level 2 supplementary support on an as needed basis for Customer. Topcon shall have no obligation to provide any support to Customer’s customers or end users.
   1. 2.2.1. During the Term of this Service Plan, should Topcon be notified by Customer of any reproducible Errors in the Software, Topcon shall promptly take appropriate measures and use reasonable efforts to correct such Errors and to provide such corrections in accordance with the process set forth below:
      

      Major Error Response	Correction
      During Topcon normal business hours Topcon shall provide acknowledgment of the Error and a description of a course of action within twenty-four (24) business hours of notification by Customer.	Topcon shall employ best efforts to provide a work-around or patch within seven (7) business days.
      Minor Error Response	Correction
      Topcon acknowledgment and description of course of action within five (5) business days of notification by Customer.	Topcon shall employ best efforts to provide a work around or patch within fourteen (14) business days.