PROJECT DATA APPS
SOFTWARE LICENSE AGREEMENT
important, Read this agreement carefully.BY INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT USE OR ACCESS THE SOFTWARE.
IF YOU WISH TO USE the Software AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
If an executed agreement exists between you and Trimble 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 Trimble 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.
This Software License Agreement (“Agreement”) is entered into by and between Trimble Inc. (“Trimble”) and the customer that has downloaded or otherwise procured the licensed Software (as defined below) (“you”). This Agreement covers any Software and supporting user or technical documentation provided with the Software (“Documentation”).
If you obtained the Software through a third-party app store, marketplace or other site or service (each, an “Application Store”), your use of the Software shall be governed by this Agreement, subject to Section 12 (Purchase from Application Store) below.
1. The Software.
1.1. Overview. The Software is designed to organize and manage data associated with construction projects.
“Effective Date” means the earlier of (a) the date on which the Software is first made available to you or (b) the date of your purchase of the Software through any online provisioning, registration or order process.
“Software” means the Trimble software product specified at the time of download or purchase and provided in connection with this Agreement in object code form. The Software may include the Trimble Contractor, Site Boss, Tradies or Dollars applications for mobile computing devices. “Software” shall also include any maintenance releases provided by Trimble. Unless otherwise noted, the Software and Documentation are referred to collectively herein as “Software.”
2.1. Grant of License. Subject to all of the terms and conditions of this Agreement, Trimble grants you a non-transferable, non-sublicensable, non-exclusive license during the License Term specified below to use the Software in machine-readable form on a compatible device that you own or control, but solely: (a) for your own internal business purposes; (b) in accordance with the Documentation; and (c) in accordance with any additional user, seat, computer, field of use, location or other restrictions specified upon purchase. All licenses shall commence, and delivery shall be deemed to occur, as of the Effective Date.
2.2. License Term. Unless otherwise specified at the time of download or purchase, the Software is provided on a perpetual basis.
2.3. License Model. You may copy and install the Software on any number of devices, but the Software may only be used at any one time by you. You may also make a reasonable number of copies of the Software for back-up and archival purposes.
2.4. License Restrictions. You shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), and then only with prior written notice to Trimble; (b) distribute, sell, sublicense, rent, lease, or use the Software (or any portion thereof) for time sharing, hosting, service provider, or like purposes; (c) remove any product identification, proprietary, copyright, or other notices contained in the Software; (d) modify or translate any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by Trimble; (e) attempt to circumvent or disable the security key mechanism that protects the Software against unauthorized use (except and only to the extent that applicable law prohibits or restricts such restrictions); (f) publicly disseminate information regarding the performance of the Software; (g) use or attempt to use the Software for competitive analysis or benchmarking; or (h) use or host the Software in a virtual server environment.
2.5. Free Software and Evaluation Software.
2.5.1. Free Software. Where indicated at the time of download, Customer may receive access to a free version of the Software (“Free Software”). There is no fee for use of Free Software in accordance with this Agreement.
2.5.2. Evaluation Software. Subject to the terms and conditions of this Agreement and during the term of this Agreement, Trimble may, in its discretion, provide you with pre-release, beta or other Software on an evaluation basis (“Evaluation Software”). You may use Evaluation Software solely for internal evaluation purposes for 30 days from receipt of the Evaluation Software (unless otherwise agreed by Trimble in writing) (the “Evaluation Period”). Unless you pay the applicable license fee for the Software, the Evaluation Software may become inoperable and, in any event, your right to use the Evaluation Software automatically expires at the end of the Evaluation Period. Evaluation Software shall be subject to all restrictions on Software set forth in this Agreement. You shall treat all Evaluation Software as Confidential Information of Trimble and shall return or destroy any copies of Evaluation Software upon expiration of the applicable Evaluation Period. Any and all suggestions, reports, ideas for improvement and other feedback of any type you provide regarding the Evaluation Software are the sole property of Trimble, and Trimble may use such information in connection with any of its products or services without any obligation or restriction based on intellectual property rights or otherwise.
2.5.3. Disclaimers for Free Software and Evaluation Software. The Software may have a mechanism that limits access, and Trimble may otherwise restrict certain product functionality, for Free Software or Evaluation Software. Customer will not attempt to circumvent any such mechanism or restriction. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY FREE SOFTWARE OR EVALUATION SOFTWARE IS PROVIDED “AS IS” AND TRIMBLE WILL HAVE NO WARRANTY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO FREE SOFTWARE OR EVALUATION SOFTWARE UNLESS OTHERWISE SPECIFIED THROUGH THE APPLICABLE ONLINE PROVISIONING, REGISTRATION OR ORDER PROCESS.
2.5.4. Termination. Trimble may terminate your license to use Free Software or Evaluation Software at any time in its sole discretion.
2.6. External Services. The Software may support integrations with certain software or services not provided by Trimble such as Microsoft OneDrive (“External Services”). In order for the Software to communicate with such External Services, you may be required to input credentials for the External Service. By enabling use of the Software with any External Service, you authorize Trimble to access your accounts with such External Service to authenticate such integrations. You are solely responsible for complying with any relevant terms and conditions of the External Services and maintaining appropriate accounts in good standing with the providers of the External Services.
3. Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Trimble and/or its suppliers, as applicable, have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise.
4. Payment. Your license to use the Software is contingent on your payment of any applicable fees, and any use of the Software without payment of the applicable fees constitutes a material breach of this Agreement. All fees are as set forth at the time of purchase and must be paid in accordance with the payment terms presented at that time. Except as expressly set forth in Section 12 (Purchase from Application Store) and Section 13 (Apple-Specific Terms), all fees are non-refundable once paid.
5. Term of Agreement.
5.1. Term. This Agreement is effective as of the Effective Date and expires when all licenses granted under this Agreement have expired in accordance with their own terms or have been terminated. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). If you have entered into a separate written agreement with Trimble which governs the Software and that agreement is terminated, then this Agreement automatically terminates and you shall no longer have any right to use the Software. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. For clarity, even if you obtained the Software through an Application Store, you agree that Trimble has the right to terminate this Agreement as set forth in this Section 5 (Term of Agreement).
5.2. Termination. Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software and destroy all copies thereof and so certify to Trimble in writing.
5.3. Survival. Sections 2.4 (License Restrictions), 2.5.3 (Disclaimers for Free Software and Evaluation Software), 3 (Ownership), 4 (Payment), 5.3 (Survival), 6 (Limited Warranty and Disclaimers), 8 (Limitation of Remedies and Damages), 9 (Confidential Information), 10 (Export Compliance; Compliance with Laws), 11 (General), 12 (Purchase from Application Store) and 13 (Apple-Specific Terms) shall survive any termination or expiration of this Agreement.
6. Limited Warranty and Disclaimers.
6.1. Limited Warranty. Unless Trimble agrees otherwise in the Order Form, Trimble warrants to you that, for a period of ninety (90) days from the Effective Date (the “Warranty Period”), the Software shall operate in substantial conformity with the Documentation. Trimble does not warrant that your use of the Software will be uninterrupted or error-free or that any security mechanisms implemented by the Software will not have inherent limitations. Trimble’s sole liability (and your exclusive remedy) for any breach of this warranty shall be, in Trimble’s sole discretion, to use commercially reasonable efforts to provide you with an error-correction or work-around which corrects the reported non-conformity, or if Trimble determines such remedies to be impracticable within a reasonable period of time, either party may terminate this Agreement and you will receive as your sole remedy a refund of any license fees you have paid for the Software. Trimble shall have no obligation with respect to a warranty claim unless notified of such claim within thirty (30) days after the date on which you first noticed the non-conformity.
6.2. Exclusions. The above warranty shall not apply: (a) if an issue arises after the Warranty Period; (b) if the Software is used with hardware or software not specified in the Documentation; (c) if any modifications are made to the Software by you or any third party; (d) to defects in the Software due to accident, abuse or improper use by you; or (e) to Software provided on a no charge or evaluation basis.
6.3. Disclaimer of Warranties. THIS SECTION 6 CONTAINS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS.” NEITHER TRIMBLE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF title, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.TRIMBLE MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD-PARTY SOFTWARE.
6.4. Warnings; Additional Disclaimers. THE SOFTWARE IS A TOOL ONLY AND IS NOT A SUBSTITUTE FOR PROFESSIONAL JUDGEMENT. ANY USE BY YOU OF THE SOFTWARE IS SOLELY AT YOUR OWN RISK AND YOU AGREE THAT TRIMBLE WILL HAVE NO LIABILITY FOR SUCH USE. yOU ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF THE SOFTWARE. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE SOFTWARE AND THE SELECTION OF THE SOFTWARE AND OTHER PROGRAMS TO ACHIEVE INTENDED RESULTS.
8. Limitation of Remedies and Damages.
8.1. Consequential Damages Waiver. NEITHER TRIMBLE NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2. Liability Cap. TRIMBLE’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO TRIMBLE DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
8.3. High Risk Activities. THE SOFTWARE IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN LIFE SUPPORT, MEDICAL, EMERGENCY, MISSION CRITICAL OR OTHER STRICT LIABILITY OR HAZARDOUS ACTIVITIES (“HIGH RISK ACTIVITIES”). TRIMBLE SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU REPRESENT AND WARRANT THAT YOU WILL NOT USE THE SOFTWARE (OR PERMIT IT TO BE USED) FOR HIGH RISK ACTIVITIES, AND AGREE THAT TRIMBLE WILL HAVE NO LIABILITY FOR USE OF THE SOFTWARE IN HIGH RISK ACTIVITIES. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS TRIMBLE FOR ANY DAMAGES, LIABILITIES OR OTHER LOSSES RESULTING FROM SUCH USE.
8.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 8 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9. Confidential Information. Any software, documentation or technical information provided by Trimble (or its agents) shall be deemed “Trimble Confidential Information” without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any Trimble Confidential Information. You acknowledge that disclosure of Trimble Confidential Information would cause substantial harm to Trimble that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, Trimble shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
10. Export Compliance; Compliance with Laws.
10.1. Export Compliance. You are responsible for complying with all applicable export and import regulations and obtaining all necessary export and import licenses or permits for the direct or indirect export or import of any Software. Without limiting the generality of the foregoing, you hereby acknowledge and agree that the Software and any associated Confidential Information are subject to the U.S. Export Administration Regulations and were exported from the United States, if at all, in accordance with those regulations. In the exercise of its rights, and the performance of its obligations under this Agreement, you shall comply strictly with all U.S. export control laws and regulations applicable to the Software, and shall not export, re-export, transfer, divert or disclose any such Software, or any direct product thereof, to any destination restricted or prohibited by U.S. export control laws, or to any national or resident thereof. Your obligations under this paragraph will survive the termination of this Agreement for any reason whatsoever. You will defend, indemnify and hold Trimble harmless against any liability (including attorneys’ fees) arising out of your failure to comply with the terms of this paragraph. Your failure to comply with any term of this paragraph will constitute a material breach of this Agreement and entitle Trimble to immediately terminate this Agreement in addition to any other remedy available at law or equity.
10.2. Compliance with Laws. You are responsible for complying with all applicable laws, regulations and codes of practice in your use of the Software and any results derived from the Software.
11.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Trimble may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Trimble’s assets or voting securities related to the subject matter of this Agreement. You may not assign or transfer this Agreement, in whole or in part, without Trimble’s written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
11.2. 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.
11.3. Governing Law; Jurisdiction and Venue.
11.3.1. 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.
11.3.2. If you obtained this Software in Canada, this Agreement is governed by the laws of the Province of Ontario, Canada, excluding its rules governing conflicts of laws 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 courts of the Judicial District of York, Province of Ontario and both parties hereby submit to the personal jurisdiction of such courts.
11.3.3. If you obtained this Software in the European Union or in any other part of the world other than Canada or the United States of America, this Agreement is governed by the laws of The Netherlands, excluding its rules governing conflicts of laws 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 courts of Amsterdam, The Netherlands and both parties hereby submit to the personal jurisdiction of such courts.
11.4. Notices and Reports. Any notice or report hereunder shall be in writing. If to Trimble, such notice or report shall be sent to Trimble at the address above to the attention of “Legal Department” with an additional copy as follows: Trimble Inc., Attn: General Counsel - Important Notice, 935 Stewart Drive, Sunnyvale, CA 94085 USA. 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.
11.5. 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 representative on behalf of the party claimed to have waived.
11.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject 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 effect.
11.7. 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 without the other party’s prior written consent.
11.8. 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, refusal of license or changes in law or regulations 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 event at reasonable cost.
11.9. Audit. Upon Trimble’s written request, you shall certify in a signed writing that your use of the Software is in full compliance with the terms of this Agreement (including any restrictions in the applicable Order Form). Trimble, or its authorized representative, may, upon prior reasonable notice of at least ten (10) days, inspect and audit your records and use of the Software to confirm your compliance with this Agreement. All such inspections and audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with your business activities. You are responsible for such audit costs only in the event the audit reveals that your use is not in accordance with the licensed scope of use and for unpaid license fees.
11.10. Publicity/Press Releases.
Trimble may advertise verbally and in writing that you are a customer of Trimble subject to any trademarks and service marks guidelines you provide us. Nothing herein shall grant either party any right, title or interest in the other party’s trademarks or service marks. With your consent, which may not be unreasonably withheld or delayed, Trimble may issue a press release describing the parties’ relationship under this Agreement.
You shall not issue or make any press releases, publications or public references regarding your relationship with Trimble unless you first inform Trimble of such proposed publicity, submit all proposed publicity materials to Trimble for review and obtain Trimble’s prior consent in writing, in each particular instance.
11.11. 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 documentation 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 Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.
11.12.1. Each party agrees it shall comply with all applicable domestic, foreign and local laws and regulations, including but not limited to the U.K. Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 as amended pursuant to the 1988 Amendments and the International Anti-Bribery and Fair Competition Act of 1998), and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, all however, to the extent such laws and regulations may be applied within the jurisdiction of the domicile of the party.
11.12.2. Without limiting the generality of the foregoing obligation, each party will not make, authorize, offer or promise to make or give any money or anything of value to any government official or employee (including employees of government corporations and employees of public international organizations), political party, political official, candidate for political office (“Official”), or to any intermediary for payment to any of the foregoing, while knowing or having reason to know that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to any of such Official.
11.12.3. Each party represents and warrants that neither it nor any of its officers, directors, or employees is an Official, and that it will not retain any Official in connection with the performance of its activities hereunder.
11.13. Third-Party Software. If specified in this Agreement or in the Documentation, the Software may utilize or include certain third party-produced software, including without limitation software that is subject to open source and third-party license terms (“Third-Party Software”). You acknowledge and agree that your limited license right to use such Third-Party Software as part of the Software is subject to and governed by the terms and conditions of the end user terms or open source or third-party licenses applicable to such Third-Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein (“Third-Party Terms”). Any noncompliance by you with any Third-Party Terms will be deemed a material breach of this Agreement. NEITHER TRIMBLE NOR ANY ITS SUPPLIERS OFFER ANY WARRANTY IN CONNECTION WITH ANY THIRD-PARTY SOFTWARE AND NEITHER TRIMBLE NOR ITS SUPPLIERS WILL BE LIABLE TO YOU FOR SUCH THIRD-PARTY SOFTWARE. In the event of a conflict between this Agreement and any Third-Party Terms, the Third-Party Terms will control with regard to your use of the relevant Third-Party Software. The applicable Third-Party Terms with respect to the Software (including, without limitation, any open source software) are specified in the Documentation and are incorporated into this Agreement by reference.
12. Purchase from Application Store. Your download of the Software may be subject to other terms as specified by the operator of the Application Store from which you downloaded the Software. Notwithstanding the foregoing or anything to the contrary in this Agreement, if you obtained the Software through an Application Store, the following terms are applicable and shall prevail in event of any conflict with any other provisions of this Agreement.
12.1. The terms of this Agreement constitute the only terms applicable to the license of the Software to you and, except for terms of purchase, no terms between you and the Application Store shall apply to your use of the Software.
12.2. The Application Store has no authority to make any statements, representations, warranties or commitments on Trimble's behalf and any such statements, representations, warranties or commitments are null and void.
12.3. In the event you are entitled to a refund under this Agreement, you must request such refund through the Application Store. Any request sent directly to Trimble may be redirected to the Application Store. Trimble will refund any applicable fees to the Application Store and the Application Store shall be solely responsible for refunding such fees to you. Trimble shall have no further liability to you in the event the Application Store fails to refund such fees to you.
12.5. If the Application Store fails to pay Trimble applicable fees for your use of the Software, Trimble reserves the right to terminate this Agreement including all rights granted hereunder.
12.6. This Agreement shall survive any termination of your agreement with the Application Store so long as Trimble has received payment of any fees due for the Software.
13. Apple-Specific Terms. If you downloaded the Software from Apple Inc.’s (“Apple’s”) Application Store, the following terms are part of this Agreement:
13.1. This Agreement is between you and Trimble, and not with Apple. However, as required by Apple, Apple and its subsidiaries will be third party beneficiaries of this Agreement and will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary.
13.2. As set forth in Section 6.1 (Limited Warranty), Trimble offers a refund in certain circumstances following a breach of Trimble’s limited warranty for the Software. If you are entitled to such a refund, you may notify Apple and Apple will refund the purchase price (if any) for the Software to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation with respect to the Software, and, as between Apple and Trimble, any other claims, losses, liabilities, damages, costs or expenses attributable to a failure to conform to a warranty will be Trimble’s responsibility. Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Software.
13.3. As between Trimble and Apple, Trimble is solely responsible for the Software and for addressing any claims you or any third parties have about the Software or your possession or use of the Software, including without limitation (i) product liability claims, (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that the Software or your possession or use of the Software infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement or discharge of such claim.