Standard Terms AND Conditions

For  OnLINE SHOP

Shop.hexagonmi.com/NA

These Hexagon Manufacturing Intelligence Standard Terms and Conditions for Hexagon’s Online Shop (“Terms”) exclusively apply to the sale of Goods and/or Services by Hexagon to Customer through the Online Shop and will form an integral part of any quotation or Contract.  As used herein, “Contract” means any contract for sale of Goods and/or Services entered into between Hexagon and Customer through the Online Shop resulting from Customer’s placement of an order through the Online Shop and Hexagon’s acceptance of such order.  These Terms shall be the exclusive basis of Hexagon’s deliveries, performance and Services, even if Hexagon does not expressly oppose any conflicting terms and conditions of purchase.  Customer’s ordering of Goods or Services from Hexagon on the Online Shop shall constitute acceptance of these Terms.  Hexagon hereby expressly objects to and rejects any additional or different terms and conditions contained in any Customer purchase order (or other Customer-issued document). 

This Online Shop and the Goods and Services through the Online Shop are for business use only, and not for consumer use.  The individual using the Online Shop account and ordering on behalf of the Customer represents that he/she is an employee of the Customer authorized to act on behalf of and bind the Customer to the Contract.   

Each sales transaction shall be deemed a separate and independent Contract.

For Customers in Germany and Austria, additional or different Country-Specific Terms as set forth in Exhibit B hereto apply, and replace in their entirety Sections 16 and 17 in the body of these Terms.   

1. ADDITIONAL DEFINITIONS
   1. “Affiliate” means, with respect to Hexagon, any other entity within the Hexagon Group. 
   2. “Customer” means the sole proprietorship or legal entity ordering the Goods or Services through the Online Shop. 
   3. “Goods” means accessories, spare parts, Software, or other goods Hexagon offered through the Online Shop. 
   4. “Hexagon” or “Seller” means the specific Hexagon Group legal entity entering into the Contract with Customer, as identified in Exhibit A attached hereto, or as otherwise identified in the Hexagon quotation, order acknowledgement, or invoice. 
   5. “Online Shop” means the Hexagon Manufacturing Intelligence  Online Shop at SHOP.HEXAGONMI.COM/ (or successor URL).  
   6. “Party” means Hexagon or Customer and “Parties” means both of them. 
   7. “Services” means services offered through the Online Shop. 
   8. “Software” means software supplied as part of Goods or offered separately under the Contract.  Software includes application software, system software (including firmware), and any other software Hexagon supplies under the Contract, as well as any related User Manuals made available for the Software. 
   9. “User Manuals” means installation or operations guides, user manuals, or other end-user documentation, if any, the manufacturer,  developer, or licensor makes generally available with the Goods.      

2. ORDERS, CREDIT, ERRORS
   1. Acceptance of Order.  Hexagon reserves the right to accept or reject any order submitted by Customer.   Customer will receive an order confirmation through email, containing the details of the order.  Email confirmation of shipment of Goods or Services shall constitute acceptance of Customer’s order.  
   2. In-Country Purchase and Use Only.  Unless otherwise agreed by Hexagon, Customer may only purchase Goods and Services through the Online Shop for use only in the country for which the Customer is registered in the Online Shop.         
   3. Credit.  Hexagon reserves the right to demand advanced payment (e.g., via credit card).  Credit approval, modification, or suspension is at Hexagon’s sole discretion. 
   4. Clerical Errors.  Hexagon reserves the right to correct clerical errors in any quotation, order confirmation, or other Contract documentation. 

3. PRICE, TAXES, OTHER CHARGES
   1. Prices are as set forth in the Online Shop and are subject to change at any time. Prices are exclusive of all applicable value-added, sales, use, goods and services taxes, and other taxes (and all applicable tariffs, customs duties and similar charges), and Customer will be responsible for payment of all such taxes (other than taxes based on the net income of Hexagon), tariffs, duties and charges (and any related penalties and interest), payable in connection with the Contract or the provision of Goods or Services.  If Customer is claiming tax exemption status, Customer must provide a valid tax exemption certificate.  
   2. Unless otherwise agreed to in writing by Hexagon, prices are also exclusive of any applicable freight and handling, shipment, delivery, transit insurance, transportation, moving, loading and unloading, installation, disposal of packing materials, travel charge reimbursement, or other incidental charges, all of which shall be the responsibility of and paid by Customer.  

4. PAYMENT
   1. Payment is due, without deduction or set-off, in accordance with the payment terms set forth in the Online Shop, as confirmed by the order confirmation email or invoice. 
   2. Hexagon reserves the right to charge interest on overdue amounts at a rate 8% p.a. above the relevant base interest rate of the European Central Bank (or the maximum amount permitted by applicable law, if less) from the contractual payment date until actual payment is made in full.  In addition, Customer will pay to Hexagon a lump sum of forty (40) Euros for the compensation of recovery costs.

5. Shipment and Delivery. 
   1. Goods shall be delivered EX WORKS (Incoterms 2010).  Hexagons reserves the right to select the carrier and shipping route.  The carrier and tracking number for shipment of Goods are typically provided in the shipment confirmation email.  Hexagon will invoice Customer for applicable shipping charges.
   2. Any shipping and delivery dates are estimated dates only. Hexagon shall not be liable for any loss or expense incurred by Customer if Hexagon fails to meet a delivery schedule.  Partial deliveries shall be accepted and paid for by Customer at Contract prices and terms.  Partial deliveries may be invoiced separately. 
   3. Hexagon reserves the right to have Customer orders fulfilled by Hexagon Affiliates and third-party contractors and suppliers, including without limitation through Hexagon Affiliate, m&h Inprocess Messtechnik GmbH in Germany.  

6. RISK OF LOSS.   Risk of damage to or loss of the Goods (and insurance responsibilities) shall pass to the Customer at the time of delivery to or collection from (as applicable) the delivery location, other than where the Customer wrongfully fails to take delivery in which case, risk of loss shall pass to the Customer at the time when delivery has been tendered.

7. Inspection and Acceptance.  Customer shall promptly inspect all Goods upon receipt.  Customer shall be deemed to have accepted Goods at the earlier of: (i) ten (10) days from tender of delivery to Customer unless Hexagon receives written notification of rejection for non-conformance from Customer within this ten-day period; or (ii) first commercial use.  If Hexagon is timely notified of Customer‘s express rejection of non-conforming Goods, and Hexagon determines the non-conformance is covered under warranty, Hexagon will, at its option, either: (i) repair the non-conforming Goods to become conforming; (ii) replace the non-conforming Goods with conforming Goods; or (iii) credit or refund amounts paid for the Goods back to the Customer and accept its return.  THE REMEDIES UNDER THIS SECTION ARE CUSTOMER’S EXCLUSIVE REMEDIES, AND HEXAGON’S ENTIRE LIABILITY, FOR THE DELIVERY OF NON-CONFORMING GOODS.

8. REturn OF GOODS. 
   1. Nonconforming Goods returned in accordance with Section 7 will be returned in accordance with Hexagon’s instructions.     
   2. All sales are final, non-cancellable, and fees paid non-refundable.  In exceptional cases, where Hexagon, in its sole discretion, accepts return of conforming Goods, Hexagon reserves the right to charge a handling surcharge of up to 30% of the Goods value or EUR 30.00, whichever is higher, for such accepted returns.  Any such accepted returns must be in the original packaging (or equivalent). The Goods will be inspected by Hexagon for defects and wear and tear. 

9. RETENTION OF TITLE.
   1. Retention of Title.  Notwithstanding delivery and the passing of risk in the Goods, or any other provision of the Contract, to the extent permitted by law, title to Goods purchased by Customer, shall not pass to the Customer until Hexagon has received in cash or cleared funds payment in full of the purchase price and all ancillary fees, charges, costs, and expenses.  Until such time as title in the such Goods passes under this paragraph: (a) Customer shall hold the Goods as Hexagon’s fiduciary agent, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured, but shall be entitled to resell or use the Goods in the ordinary course of its business; (b) if Goods are damaged or destroyed by an insured risk prior to the same being paid for by the Customer, the Customer shall receive the proceeds of any such insurance as trustee for Hexagon; (c) if payment is not made in time or in full, Hexagon shall be entitled, without prejudice to other right and remedies, at any time to require the Customer to deliver up the Goods to Hexagon and if the Customer fails to do so forthwith, to enter upon any premises of the Customer or third party where the Goods are stored and mark, identify and repossess the Goods and the Customer grants Hexagon and its agents an irrevocable license to enter any premises of the Customer for such purposes; and (d) Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Hexagon, but if the Customer does so all monies owing by the Customer to Hexagon shall (without prejudice to any other right or remedy of Hexagon) forthwith become due and payable. Should it be necessary to record the retention of title in a public register or should the validity of the retention of title otherwise require the cooperation of the Customer, Customer will give its approval for registration of the retention of title, and unconditionally authorizes Hexagon or its legal representatives to effect the registration, and Customer agrees to undertake the necessary cooperative action. 
   2. Title to Software.  Notwithstanding anything to the contrary elsewhere, title to Software shall at all times remain with Hexagon, its Affiliates, or third-party suppliers (as applicable).  

10. Occupational Safety and Health.  It is Customer’s responsibility to prepare for, install and use Goods in a safe and legal manner and to provide all proper devices, tools and means to protect all personnel from bodily injury that may result from Customer’s particular use, operation, set-up or service of the Goods. Customer is advised to consult the applicable User Manuals, safety standards, laws and regulations. Customer shall install and use the Goods at all times in compliance with the applicable User Manuals, safety standards, laws and regulations, and general standards of care.

11. RIGHTS TO SUSPEND PERFORMANCE.  If Customer fails to pay any invoice when due, or otherwise breaches the Contract, Hexagon may, without prejudice to any other right or remedy available to Hexagon, suspend its performance until Customer cures such breach.

12. SOFTWARE LICENSE.   Any references to the “sale” of or “selling” or “purchase” of Software shall mean sale or purchase of a license to use such Software; Software is licensed and not sold.  Hexagon, its Affiliates, or third-party suppliers (as applicable) retain ownership in all worldwide intellectual property rights in the Software, related User Manuals and other materials made available or delivered by or on behalf of Hexagon, and all modifications, enhancements or other derivative works thereof.  Software and its User Manuals shall be subject to the terms and conditions of the applicable end-user/software license agreement (“EULA”) accompanying that Software or otherwise made available by Hexagon, its Affiliates or third-party suppliers.  In the event there is any conflict between these Terms and the EULA, the terms and conditions of the applicable EULA will control in relation to its subject-matter.  Without prejudice to any other right or remedy available to Hexagon under the EULA, Hexagon may cause early termination of Software licenses (and related Maintenance) if Customer fails to pay in full, when due, any applicable fees or charges, or otherwise breaches the Contract.  Software may only be used on the computer or machine for which they are acquired, unless otherwise authorized by Hexagon or the applicable EULA.  Copies of certain Software EULAs are available at https://www.hexagonmi.com/en-US/about-us/terms-of-sale/terms-of-sale (or successor URL).    

13. Software Maintenance Agreements.  If Customer acquires Maintenance for a Software application under the Contract, during the applicable Maintenance term, unless otherwise agreed, Customer will be entitled to the Software maintenance updates (if any) and remote technical support services made generally available to similarly situated end-user customers of the Software who are on Maintenance.  Customer shall only be entitled to Software Maintenance on those Software application features for which Customer has acquired Maintenance and has a current right to Maintenance.  Software Maintenance shall not entitle Customer to any release, option, module, or future product, which Hexagon licenses separately or offers for an additional fee.  Technical support is limited to reasonable remote assistance in response to Customer’s technical support inquiries regarding: (i) Software installation, (ii) Software errors, and (iii) general questions regarding the usage of Software features.  Technical support does not include training, consulting, on-site services, or the provision of engineering judgment for a customer-specific situation.  If Software Maintenance lapses (or was not initially acquired), and Customer wishes to procure Software Maintenance, the Customer will be assessed additional back maintenance fees for the period the Software was not maintained, as well any applicable reinstatement fees, in accordance with Hexagon's then-current policies.  Any updates, service packs, or new releases to the Software made available to Customer under Software Maintenance will be subject to terms and conditions of the underlying EULA, unless accompanied with their own EULA.  To the extent any Software Maintenance acquired by Customer is offered by Hexagon under separate Software Maintenance Agreement (“SMA”) terms and conditions, such SMA terms and conditions will control in relation to their subject-matter.  

14. SPECIAL TERMS.  Certain offerings made available by Hexagon to Customer may be subject to additional or different terms and conditions by Hexagon, its Affiliates or third-party suppliers (“Special Terms”).  These Special Terms may be presented by Hexagon to Customer, or may accompany the offering, such as in the form of an embedded EULA, online terms, terms in User Manuals, documentation, or read-me files.  Customer shall comply with applicable Special Terms (if any).  In the event there is any conflict between these Terms and Special Terms, the Special Terms will control in relation to their subject-matter.           

By way of example, any HxGN SFx Cloud Services offerings made available by Hexagon shall be governed by the terms and conditions of the HxGN SFx Cloud Services Agreement (and related terms), available at https://www.hexagonmi.com/en-US/about-us/terms-of-sale/terms-of-sale (or successor URL).  HxGN SFx Cloud Services offerings are subscription based.  Customers ordering or accessing HxGN SFx Cloud Services accept the then-current HxGN SFx Cloud Services Agreement, and if so requested, shall promptly execute related terms and forms as ordinarily required by Hexagon for HxGN SFx Cloud Services offerings. 

15. AdDITIONAL SERVICES TERMS. 
    1. Performance of Services.  Hexagon, in its sole discretion, will determine the personnel assigned to perform the Services, and may provide the Services through third-party representatives and subcontractors.
    2. Cooperation. Customer will cooperate fully and in good faith with Hexagon in the performance of Services by, without limitation, providing or obtaining for Hexagon, in a timely manner and at no charge to Hexagon: (a) such access and use of Customer’s premises or other facilities as reasonably required for Hexagon to perform the Services, if onsite performance of Services is agreed to; (b) such access and use of Customer’s equipment, software, drawings, models, parts, data, information or tools (“Customer Materials”) reasonably required for Hexagon to perform the Services; (c) complete, accurate and timely information, data and feedback as reasonably required to perform the Services; (d) all required licenses and consents to comply with all applicable law in relation to the Services to the extent that such licenses and consents relate to Customer's business, premises, staff and/or Customer Materials; (e) complete information related to any restrictions on technical data, including export restrictions, that may impact Hexagon’s selection of personnel to perform the Services; and (f) any Customer deliverables and other obligations required for the performance of the Services.  Hexagon’s performance obligations are contingent upon Customer’s compliance with Customer’s obligations.  Hexagon shall not be responsible for failures or delays in performing Services due to Customer’s delays or failure to comply with Customer’s obligations.  Customer acknowledges and agrees that, in performing the Services, Hexagon is entitled to base its conclusions on and rely on the accuracy and completeness of the information, data, material, and assumptions that are furnished by or on behalf of Customer, without any independent investigation or verification.  In addition to any other remedies available, Hexagon is entitled to compensation for costs and expenses (such as travel expenses, cancellation and rebooking costs, non-productive labor hours and other personnel costs, and third-party expenses incurred by Hexagon), resulting from delays or re-scheduling caused by Customer.   
    3. Training Materials.  Where training materials are delivered by or on behalf of Hexagon, subject to Customer’s continued compliance with the terms and conditions of the Contract, and payment of all applicable fees and charges, Hexagon grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use such training materials solely for internal personal training use by Customer’s personnel for whom the training was purchased, and subject to any other terms and restrictions identified by Hexagon or accompanying the training materials. Any further use, such as copying, modification, distribution, marketing and disclosure to third parties, is not permitted without the consent of Hexagon.

16. Limited WarrantIES AND DISCLAIMERS.
    1. For Goods (excluding Software):  Unless otherwise agreed by Hexagon in writing, Hexagon warrants to Customer that Goods purchased will be free from defects in workmanship and materials for a period of twelve (12) months from the date of delivery.
    2. Software.  The above warranties do not apply to Software. Unless it is specifically stated in the Software’s applicable EULA, SOFTWARE IS PROVIDED “AS IS” WITH NO WARRANTY OF ANY KIND. 
    3. For Services:  Hexagon warrants to Customer that the Services will be performed in a professional manner consistent with generally accepted industry practice. This warranty shall expire thirty (30) days after the applicable Services completion date or the termination of the Services schedule, whichever occurs first.  Hexagon’s sole and exclusive obligation for breach of warranty will be, at Hexagon’s option, to (a) use commercially reasonable efforts to re-perform the Services in a manner that conforms to the warranty, or (b) refund to Customer the fees paid by Customer to Hexagon for the nonconforming Services. The remedies set forth in this paragraph are Customer’s sole and exclusive remedies for breach of warranty under this paragraph.  NOTWithstanding the foregoing, Applications Services, Training, Part Programming, and MEASURING SERVICES carry no warranty, express or implied, and ARE PROVIDED ON AN AS-IS BASIS.
    4. Limitations and Exclusions. 
       1. Warranties are non-transferable and non-assignable. No warranty claim may be made after the expiration of the warranty period.  With respect to warranty claims properly made during the warranty period, Hexagon will replace or repair, at Hexagon’s option, free of charge, any Goods which upon examination Hexagon finds defective in workmanship or materials, provided that, on Hexagon’s request, the Goods are returned to Hexagon’s plant or premises, and provided further, that there is satisfactory documentation that the Goods have been installed, used and maintained in accordance with instructions in the User Manuals.  All Goods that are replaced become the property of Hexagon.  The foregoing warranty will not apply to or cover: (i) Goods exported by the Customer out of the ultimate country of destination (as identified in the Contract or related end user certifications); or (ii) consumable items, such as reflectors, bulbs, fuses, batteries, and filters; in either case no warranty is provided.
       2. The following conditions are excluded from the above warranties: (a) damage caused by failure to continuously provide a suitable installation environment as prescribed by the manufacturer’s User Manuals or recommendations including, but not limited to, the failure to provide, or the failure of, adequate electrical power, air conditioning or humidity control, or vibration isolation; (b) damage caused by uses other than those purposes for which Product was designed; (c) damage caused by accident or disaster, which shall include but is not limited to fire, flood, water, transportation, earthquake, wind and lightning, negligence or misuse, or alterations which shall include any deviation from manufacturer’s design; and (d) damage caused by performance of maintenance or repair work not done by Hexagon.
       3. Preventative maintenance or planned onsite visits are not included in the above warranties.
    5. Third Party Warranties.  Notwithstanding anything to the contrary elsewhere, the warranties contained in this Section 16 shall not apply to non-Hexagon Group branded Goods (“Third Party Goods”). For information on warranty coverage for Third Party Goods (including without limitation, any third party manufactured peripherals such as personal computers, printers, computer monitors), please refer to the applicable third-party manufacturer’s standard end user warranty terms. Hexagon provides Third Party Goods on an “AS IS” basis, with no warrantY of any kind. 
    6. HEXAGON MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NONINFRINGEMENT, DESIGN OR SUITABILITY, QUALITY OF SERVICE, as well as any warranty arising by statute, operation of law, course of dealing or performance, or usage of trade.  THE REMEDIES DESCRIBED IN THIS SECTION 16 ARE THE EXCLUSIVE REMEDY OF CUSTOMER FOR BREACH OF WARRANTY.  HEXAGON DOES NOT WARRANT THAT THE OPERATION OF ANY GOODS WILL BE UNINTERRUPTED OR ERROR-FREE.

17. LIMITATION OF LIABILITY
    1. NEITHER HEXAGON NOR ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE (DIRECTLY OR INDIRECTLY) FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES; FOR LOSS OF USE, PROFITS, REVENUE, SAVINGS, OR DATA; OR FOR DOWNTIME OR BUSINESS INTERRUPTION; ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THE GOODS, SERVICES, OTHER MATERIALS OR THE CONTRACT, whether such liability is based upon contract (including breach of a representation or warranty), tort (including negligence or strict liability), or other legal theory whatsoever, even if Hexagon had notice of the possibility of such damages and even if any warranty or remedy is held to have failed in its essential purpose.  UNDER NO CIRCUMSTANCE WILL Hexagon’s, OR ITS AFFILIATES’ OR SUPPLIERS’, LIABILITY UNDER OR IN CONNECTION WITH THE GOODS, SERVICES, OTHER MATERIALS AND THE CONTRACT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IN THE AGGREGATE, EXCEED THE AMOUNT ACTUALLY RECEIVED UNDER THE CONTRACT FOR the PRODUCT, PART, SERVICE, OR OTHER MATERIAL THAT IS THE SUBJECT MATTER OF, OR IS DIRECTLY RELATED TO THE CAUSE OF ACTION.  NO CLAIM, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED. TO THE EXTENT ANY APPLICABLE LAW LIMITS THE SCOPE OF THIS SECTION 17.1, THE CONTRACT SHALL BE INTERPRETED TO CONFORM TO SUCH LAW IN A MANNER THAT LIMITS Hexagon’S AND ITS AFFILIATES’ AND SUPPLIERS’ LIABILITY TO THE FULLEST EXTENT ALLOWED BY LAW.
    2. Nothing in these Terms shall limit or exclude liability for any matter to the extent it would be unlawful for Hexagon to exclude or restrict liability.

18. Intellectual Property.  The Contract does not transfer or assign to Customer any intellectual property rights. Hexagon, its Affiliates and third-party suppliers shall retain ownership of all intellectual property they had prior to the Contract. All new intellectual property conceived or created by or on behalf of Hexagon or its Affiliates in the performance of the Contract shall be owned exclusively by Hexagon (or its Affiliates, as applicable). Customer will not: (a) decode, reverse engineer, or decompile the Goods or Services, in whole or in part, unless expressly permitted by applicable law without the possibility of contractual waiver; (b) reproduce, copy, distribute, make derivative works or publicly perform any intellectual property of Hexagon or its Affiliates (“Hexagon Intellectual Property”) manifested in a tangible medium of expression (including, without limitation, any Software, or training materials), without prior written consent of Hexagon; (c) circumvent, directly or indirectly, any technical measures or devices securing Hexagon Intellectual Property; or (d) otherwise access or manipulate the Hexagon Intellectual Property, except as expressly permitted in writing by Hexagon. 

19. INDEMNITY.  Customer hereby agrees to defend, indemnify and hold Hexagon, Hexagon Affiliates, suppliers, contractors and representatives (collectively, “Indemnitees”) harmless from and against all claims, demands, suits and causes of action for property damage, personal injury or death, and all loss, cost, damage and expense (including reasonable attorneys’ fees) relating to the Goods and/or Services, arising out of: i) Customer’s modification to, or change of the Goods or Services as originally delivered; ii) Customer’s failure to purchase, install, provide or implement any safety part or practice customary in the industry (including, but not limited to, a mechanical, electrical or software interlock or other safety device); or iii) Customer’s misconduct, negligence, violation of law or other fault.  Customer further agrees to defend, indemnify and hold Indemnitees harmless from and against all claims made by third parties relating to Customer’s own Goods or data.

20. TERMINATION.  Hexagon may suspend or terminate the Contract (or any affected portion thereof) immediately for cause if Customer (i) materially breaches the Contract, including, but not limited to, failure or delay in Customer making any payment when due, or fulfilling any payment conditions, or (ii) is insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for it or any of its assets, or files or has filed against it a proceeding under any bankruptcy or insolvency laws. Customer shall pay all reasonable expenses incurred by Hexagon in connection with a suspension, including, but not limited to, expenses for repossession, fee collection, and costs of storage during suspension. The schedule for Hexagon’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension. The following Sections in these Terms shall survive termination or cancellation of the Contract: Sections 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 14, 16, 17 through 23, Exhibits A and B, and any other provisions which by their nature are intended to survive. 

21. USE OF INFORMATION.  Customer shall maintain in confidence any non-public commercial information disclosed to Customer by or on behalf of Hexagon, and Customer shall not disclose such information to any third party and shall not use any such information for a purpose other than as agreed by the Parties and in relation to the Contract.  Customer agrees that Hexagon may disclose Customer’s information, including without limitation, contact information and technical information, to Hexagon Affiliates, and suppliers, channel partners and subcontractors, wherever they do business, in furtherance of the Contract and Hexagon’s business relationship with the Customer.  For information on processing of personal data by Hexagon, see Hexagon Manufacturing Intelligence online privacy statement, as may be updated from time to time, available at https://www.hexagonmi.com/en-US/about-us/privacy-policy (or successor URL).  If Customer provides Hexagon or Hexagon Affiliates with feedback, recommendations, or suggestions about the Goods or Services (“Feedback”), then, Hexagon and its Affiliates may use such Feedback without obligation to Customer, and Customer hereby irrevocably grants to Hexagon and its Affiliates a perpetual, irrevocable, worldwide, sublicensable, royalty-free right and license to use that Feedback.  

22. TRADE COMPLIANCE.  Hexagon’s performance under the Contract is subject to the issuance of any required export license or other necessary government authorization or requirements.  Hexagon has the right to terminate without liability any Contract if Hexagon determines such sale, export or delivery may violate applicable law, or that the necessary government authorization may not be granted.  Termination will not affect the right of Hexagon to recover the Contract price for any unpaid Goods or Services already delivered.  Customer shall comply with all applicable customs, export control, and sanctions laws and regulations.  Customer shall not trans-ship, re-export, divert or direct the Goods or Services (or any related technical data) other than in and to the ultimate country of destination declared by Customer and specified as the country of ultimate destination in the Contract. Customer represents and warrants that Customer: (i) is not a national of or located within Cuba, Iran, Syria, North Korea, or the Crimean region; (ii) is not identified on any E.U., U.S., or other applicable government restricted party lists, (iii) will not, unless otherwise authorized under applicable export control laws, use the Goods or Services (or any related technical data) in connection with any restricted end use.  Customer shall indemnify and hold harmless Hexagon and Hexagon Affiliates from and against any claim, action, proceeding, fine, loss, liabilities, cost and damages arising out of or relating to Customer’s noncompliance with this Section.   

23. GENERAL
    1. Entire Agreement.  The Contract constitutes the entire agreement between Hexagon and Customer with respect to the subject-matter hereof, and supersede all prior or contemporaneous agreements or representations, written or oral, with respect to the subject-matter. The Contract may not be modified except in a writing signed by the authorized representatives of the Parties, or as otherwise permitted herein. 
    2. No Waiver.  Hexagon shall have the benefit of all rights and remedies provided by law or equity.  Failure of Hexagon to exercise or reserve any right or remedy shall not be construed as a waiver thereof or of any other right or remedy.
    3. Severability.  If any term within these Terms is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
    4. Force Majeure. Neither Hexagon nor its Affiliates or suppliers will be liable or responsible for delay or failure to perform any obligations under the Contract occasioned by any cause beyond their reasonable control, including but not limited to war; terrorist acts; civil disturbance; epidemic; labor unrest; shortage of raw materials; fire; flood; earthquake; acts or defaults of common carriers or suppliers; governmental laws, acts, regulations, embargoes or orders; or any other cause, contingency or circumstance not subject to their reasonable control.
    5. Assignment.  The Contract shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and permitted assigns.  Customer may not assign or transfer, by operation of law or otherwise, the Contract (or any rights or obligations hereunder), without Hexagon’s prior written consent. Any attempted assignment or transfer in violation of the foregoing shall be void.  Hexagon may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under the Contract without Customer’s consent.
    6. Electronic Signatures.  Signed copies of the Contract transmitted via facsimile transmission, by electronic mail in .pdf or other reliable electronic form, will have the same effect as physical delivery of the paper document bearing the original signature.  The Parties agree that electronic signatures may be used and shall be treated, for purposes of validity, enforceability as well as admissibility, the same as written signatures. 
    7. Notices.  Notices required under the Contract shall be in writing.  Notices shall be effective upon receipt.   
    8. Governing Language. In the event of translation of these Terms to a language other than English, the English language version shall govern in the event of a conflict. 
    9. Governing Law; Jurisdiction.  These Terms and any disputes arising out of or in connection with these Terms (and the Contract) shall be governed by the Governing Law set forth in Exhibit A below, without reference to conflict-of-laws principles and excluding the UN Convention on Contracts for the International Sale of Goods.  Customer agrees to submit to the exclusive jurisdiction of, and venue in, the Jurisdiction for Disputes set forth in Exhibit A below, in any dispute arising out of or relating to this Agreement.  Notwithstanding the foregoing or anything to the contrary, Hexagon shall have the right to bring claims in any court of competent jurisdiction to enforce any payment rights, intellectual property rights and/or protect any confidential information.  

Exhibit A

Exhibit B

Country-Specific Terms

For Customers in Germany and Austria only, Sections 16 (“LIMITED WARRANTIES AND DISCLAIMERS”) and 17 (“LIMITATION OF LIABILITY”) of the above Terms are deleted in their entirety and replaced with the following:

16.       Warranty

16. 1    Hexagon warrants that the Goods are free from defects that void or substantially reduce its value or fitness for use as provided in the Contract. There are no further warranties or guarantees. In particular, Hexagon does not promise any possibility of use or application in connection with other products, in particular software and hardware products. Such investments by Customer shall be made solely at Customer’s risk.

16.2     Defects must be reported to Hexagon immediately in writing, by fax or e-mail together with a brief description of the nature of the defect. Customer must inspect the Goods for evident defects upon delivery. Evident defects shall be reported immediately and objected to as defects, otherwise the warranty shall expire with regard to such defects.

16.3     Defects shall be remedied by Hexagon within a reasonable period of time after written notification, at Hexagon’s option, either by rectification of the defect or by subsequent delivery. If Hexagon’s inspection does not reveal any defects that have been objected to, or if the defects are due to faulty operation or malfunctions for which Hexagon is not responsible, the costs of the inspection or the additional costs thus incurred shall be borne by Customer.

16.4     Hexagon warrants that Customer’s use of the Goods in accordance with the Contract does not infringe any rights of third parties. In the event of defects in title, Hexagon warrants that it will provide Customer with a legally flawless way to use the Goods or an equivalent good. Customer shall inform Hexagon immediately in writing if third parties assert property rights to the Goods against Customer.

16.5     Withdrawal, fee reduction or the assertion of damages in lieu of performance shall only be possible if Customer has specifically objected to the defect within the scope of its possibilities and has unsuccessfully set Hexagon a reasonable deadline for subsequent performance. Subsequent performance shall only be deemed to have failed after two unsuccessful attempts. The provision of § 323 para. 2 BGB shall remain unaffected. The declaration of withdrawal or reduction as well as the assertion of damages in lieu of performance must be made in writing.

16.6     If the Goods are extended or modified by Customer or by third parties, the warranty shall expire unless Customer can prove that the respective modification or extension is not the cause or contributory cause of the defect. No warranty is given for faults, malfunctions or damage caused by improper operation, use of unsuitable equipment/supplies or unusual operating conditions.

16.7     The warranty period (liability for defects) shall be one year. The limitation to one year shall not apply if the law prescribes longer periods pursuant to § 438 para. 1 no. 2, § 479 para. 1 and § 634 a para. 1 no. 2 BGB as well as in cases of injury to life, body or health, in the case of an intentional or grossly negligent breach of duty by Hexagon and in the case of fraudulent concealment of a defect. The period shall commence at the time of passing of risk. The statutory provisions on suspension of expiry, suspension and recommencement of the periods shall remain unaffected.

17.       Liability

17.1     Hexagon and its vicarious agents shall only be liable for (a) intent and gross negligence, furthermore in the case of at least negligent injury to life, body or health of a person as well as in the case of liability according to the German Product Liability Act (Produkthaftungsgesetz) without limitation and in accordance with the relevant statutory provisions;

17.2     for simple and slight negligence only for the breach of an obligation the performance of which is essential for the proper execution of the contract and on the performance of which Customer regularly relies and is entitled to rely (“Material Contractual Obligation”), but only to the extent of the typical and foreseeable damage, but not exceeding the amount of the fees paid. This liability shall not include indirect damages, consequential damages, damages due to futile expenses for other products or loss of profit.

            Apart from the foregoing, any liability of Hexagon shall be excluded.

17.3     Hexagon shall be entitled to invoke the objection of contributory negligence. In the event of loss of data, Hexagon shall only be liable for the damage that would have occurred even if data had been properly backed up.

17.4     To the extent that Customer is entitled to claims for damages due to defects, these claims shall become subject to limitation upon expiry of the warranty period applicable to claims for material defects in accordance with Section 16.7 of this Exhibit B.  In the case of claims for damages under the Product Liability Act, the statutory limitation provisions shall apply.