Spectra Precision Survey Pro v5.4 - Manual (Page 4)

United States or foreign agency or authority. You agree to the foregoing and war-
rant that you are not located in, under the control of, or a national or resident of
any such prohibited country or on any such prohibited party list. The Software
is further restricted from being used for the design or development of nuclear,
chemical, or biological weapons or missile technology, or for terrorist activity,
without the prior permission of the United States government.
12.General.
12.1.Assignment. This Agreement will bind and inure to the benefit of each par-
ty’s permitted successors and assigns. Licensor may assign this Agreement to
any affiliate or in connection with a merger, reorganization, acquisition or other
transfer of all or substantially all of Licensor’s assets or voting securities. You
may not assign or transfer this Agreement, in whole or in part, without Licensor’s
written consent. Any attempt to transfer or assign this Agreement without such
written consent will be null and void.
12.2.Severability. If any provision of this Agreement shall be adjudged by any
court of competent jurisdiction to be unenforceable or invalid, that provision
shall be limited to the minimum extent necessary so that this Agreement shall
otherwise remain in effect.
12.3.Governing Law; Jurisdiction and Venue.
• 12.3.1.Unless you obtained this Software in Canada or the European
Union, this Agreement is governed by the laws of the State of California and
the United States without regard to conflicts of laws provisions thereof, and
without regard to the United Nations Convention on the International Sale
of Goods. In such case the jurisdiction and venue for actions related to the
subject matter hereof are the State of California and United States federal
courts located in Santa Clara County, California, and both parties hereby
submit to the personal jurisdiction of such courts.
• 12.3.2.If you obtained this Software in Canada, this Agreement is governed
by the laws of the Province of Ontario, Canada, excluding its rules govern-
ing conflicts of laws and without regard to the United Nations Convention
on the International Sale of Goods. In such case jurisdiction and venue for
actions related to the subject matter hereof are the courts of the Judicial
District of York, Province of Ontario and both parties hereby submit to the
personal jurisdiction of such courts.
• 12.3.3.If you obtained this Software in the European Union, this Agree-
ment is governed by the laws of The Netherlands, excluding its rules gov-
erning conflicts of laws and without regard to the United Nations
Convention on the International Sale of Goods. In such case each jurisdic-
tion and venue for actions related to the subject matter hereof are the
courts of The Hague, The Netherlands and both parties hereby submit to
the personal jurisdiction of such courts.
12.4.Attorneys’ Fees and Costs. The prevailing party in any action to enforce
this Agreement will be entitled to recover its attorneys’ fees and costs in con-
nection with such action.
12.5.Notices and Reports. Any notice or report hereunder shall be in writing. If
to Licensor, such notice or report shall be sent to Licensor at the address above
to the attention of “Legal Department”. If to you, such notice or report shall be
sent to the address you provided upon placing your order. Notices and reports
shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt
if sent by certified or registered U.S. mail (return receipt requested); or (c) one
day after it is sent if by next day delivery by a major commercial delivery service.
12.6.Amendments; Waivers. No supplement, modification, or amendment of
this Agreement shall be binding, unless executed in writing by a duly authorized
representative of each party to this Agreement. No waiver will be implied from
conduct or failure to enforce or exercise rights under this Agreement, nor will
any waiver be effective unless in a writing signed by a duly authorized represen-
tative on behalf of the party claimed to have waived.
12.7.Entire Agreement. This Agreement is the complete and exclusive state-
ment of the mutual understanding of the parties and supersedes and cancels all
previous written and oral agreements and communications relating to the sub-
ject matter of this Agreement. No provision of any purchase order or in any other
business form employed by you will supersede the terms and conditions of this
Agreement, and any such document issued by a party hereto relating to this
Agreement shall be for administrative purposes only and shall have no legal ef-
fect. Notwithstanding the foregoing, if you have entered into a separate written
license agreement signed by Licensor for use of the Software, the terms and con-
ditions of such other agreement shall prevail over any conflicting terms or con-
ditions in this Agreement.
12.8.Independent Contractors. The parties to this Agreement are independent
contractors. There is no relationship of partnership, joint venture, employment,
franchise or agency created hereby between the parties. Neither party will have
the power to bind the other or incur obligations on the other party’s behalf with-
out the other party’s prior written consent.
12.9.Force Majeure. Neither party shall be liable to the other for any delay or
failure to perform any obligation under this Agreement (except for a failure to
pay fees) if the delay or failure is due to unforeseen events, which occur after
the signing of this Agreement and which are beyond the reasonable control of
the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, re-
fusal of license by the government or other governmental agencies, in so far as
such an event prevents or delays the affected party from fulfilling its obligations
and such party is not able to prevent or remove the force majeure at reasonable
cost.
12.10.Government End-Users. The Software is commercial computer software.
If the user or licensee of the Software is an agency, department, or other entity
of the United States Government, the use, duplication, reproduction, release,
modification, disclosure, or transfer of the Software, or any related documenta-
tion of any kind, including technical data and manuals, is restricted by a license
agreement or by the terms of this Agreement in accordance with Federal Acqui-
sition Regulation 12.212 for civilian purposes and Defense Federal Acquisition
Regulation Supplement 227.7202 for military purposes. The Software was de-
veloped fully at private expense. All other use is prohibited.
12.11.Third-Party Software. If designated in the Documentation, the Software
may contain or be provided with certain Third-Party Software (including software
which may be made available to you in source code form). Such Third-Party
Software is not licensed hereunder and is licensed pursuant to the terms and
conditions (“Third-Party License”) indicated in the Documentation and/or on
the Third-Party Software. Except as may be set forth in the Third-Party License,
neither Licensor nor Licensor Suppliers offer any warranty in connection with
any Third-Party Software and neither Licensor nor Licensor Suppliers shall be
liable to you for such Third-Party Software.
If an executed agreement exists between you and Licensor at any time regarding
the Software, the terms of that agreement shall supersede the terms of this
Agreement in its entirety. Thus, if you enter into a separate written agreement
with Licensor regarding the Software, that agreement (not this one) will control
your use of the Software; and further if that agreement is terminated, you will
not have the right to use the Software under the terms of this Agreement after
termination. Notwithstanding the foregoing, pre-printed terms and conditions
on your Order form shall not supersede this Agreement.
Trimble Navigation Limited d/b/a Spectra Precision
10355 Westmoor Drive
Westminster, Colorado 80021
Data Collector Warranty Program
Spectra Precision would like to make you aware of the warranty program. A new
data collector that has been purchased and is still under the one year factory
warranty or under an extended warranty will be authorized for software updates.
Data collectors that are not currently under a warranty plan are eligible to pur-
chase an extended warranty. There are Survey Pro software only warranties that
will authorize the data collector for software updates, and there are warranties
that cover both the data collector hardware and Survey Pro software. The extend-
ed warranties are a good way to protect your investment in your equipment.
The Survey Pro installation program will use your internet connection to compare
the data collector's serial number against a data base that contains the warranty
status on all units. If the unit is under a valid warranty, the installation will pro-
ceed. If the unit is not covered under warranty, then a message will be displayed
informing you of this and the installation will stop.
To receive Survey Pro minor improvement releases, identified by the version
numbering system, you only need to be on the current version of the latest minor
update. In other words, if you have version 5.0.x you are authorized for a version
5.0.5 improvement release automatically. For minor updates, 5.0 to 5.1 for ex-
ample, it is now required that the data collector or Survey Pro software be on a
current warranty plan.
The warranty plans are listed on Spectra Precision price lists. Data collector se-
rial numbers are required in order to generate the proper registration codes for
your unit and to log the warranty plan into the database.