eCommerce Transaction Terms
Version 1.2 [Rev. December 2020]
These eCommerce Transaction Terms (these “Terms”) govern your purchase of Products and Professional Services (as each are defined below) through Trimble’s eCommerce solution (the “eCommerce Solution”). These Terms do not apply to purchases of Products and Professional Services that did not occur through the eCommerce Solution.
“Trimble” means the applicable Trimble entity as set forth in Section 13 (Contracting Party; Governing Law; Venue). “You” means the individual or entity that has made a purchase of Products or Services through the eCommerce Solution. If you are an employee of an entity, then you represent that you are authorized to, and by accepting these Terms hereby agree to, bind such entity to these Terms.
1. Definitions.
“Hardware” means any hardware products purchased through the eCommerce Solution.
“Hardware Terms” means any applicable warranties, disclaimers, limitations of liability, and other terms and conditions that may be included with the Hardware or otherwise made available by Trimble.
"Products" means Hardware and Software purchased through the eCommerce Solution.
"Software" means any software, library, utility, tool, or other computer or program code purchased through the eCommerce Solution, in object (binary) or source-code form. Software includes firmware, software locally installed on your systems, and software accessed by you through the Internet or other remote means (such as websites, portals, and software-as-a-service and other "cloud-based" solutions (“SaaS”)).
“Software Terms” means any applicable license agreements, terms of service, subscription, master, or other agreements that may accompany the Software.
“Professional Services” means training and/or education services on how to use Products purchased through the eCommerce Solution.
“Product Terms” means the Software Terms and Hardware Terms.
2. Products; Product Terms
2.1 Product Terms. Products purchased through the eCommerce Solution are also subject to additional terms and conditions in any applicable Product Terms. Copies of any applicable Product Terms are available at Trimble eCommerce Terms and Conditions or upon written request of Trimble. If there is a conflict or inconsistency between any provisions in these Terms and in the Product Terms, the provisions of the Product Terms will control, unless otherwise expressly set forth in these Terms.
3.2. Third-Party Products and Services. Certain Products may require you to purchase products or services from third parties in order to use them (e.g., you may need to purchase pre-paid communications carrier services in order to utilize certain Software). If these third party products and/or services are not included in your order confirmation, you will need to purchase them separately from the applicable third party providers. For the avoidance of doubt, (i) you are solely responsible for the purchase and use of such third-party products and/or services and (ii) Trimble shall have no liability related thereto for your use or the failure of any such third-party products and/or services.
3. Payment.
In the event of a conflict or inconsistency between the provisions of this Section 3 (Payment) and of any payment provisions in any applicable Product Terms, the provisions of this Section 3 will control.
3.1. All payment for Products and Services will be made using a credit or debit card following an order confirmation on the eCommerce Solution, and you agree to Trimble charging your credit or debit card the amount set forth on the order confirmation. You will make payment in the currency indicated on the order confirmation. All credit card information will be collected and used in accordance with the Trimble Privacy Notice. See Section 5.2.2 (Credit or Debit Card Payments for Subscription Renewals) below for additional information regarding the use of credit or debit cards for renewals of Software subscriptions.
3.2. For all purchases, you are required to pay for the Product and/or Professional Services fees, as well as any applicable foreign exchange fees, sales taxes, Value Added Tax, export or import charges, transportation or insurance charges, customs and duty fees, personal property taxes or similar charges shown on the order confirmation.
3.3 Unless otherwise specified in the applicable Product Terms, there will be no refunds of any fees paid for Products and/or Professional Services.
4. Software.
4.1 Software Terms; Applicable Sections of these Terms. All Software purchased from the eCommerce Store shall be governed by the Software Terms, and the following Sections these Terms: 1 (Definitions), 2 (Products; Product Terms), 3 (Payment), 4 (Software), 13 (Contracting Party; Governing Law; Venue), 14 (Notices), and 15 (Miscellaneous). In case of conflict, such sections of these Terms shall supersede any corresponding terms in the Software Terms. All other sections of these Terms shall be of no force or effect.
4.2. Acceptance. Your acceptance of ordered Software is deemed to occur when the Software is activated or otherwise made available for your access, download, installation or use, whichever date is earlier. Software shall be delivered electronically, unless otherwise specified by Trimble in writing.
4.3. Subscriptions. Certain Software offerings (including without limitation SaaS offerings) are provided on a subscription basis. For such Software, you will pay for a set term (“Subscription Term”) upfront.
4.3.1. Automatic Renewals.
(a) At expiration of each Subscription Term, notwithstanding anything in the Product Terms to the contrary, the subscription will automatically renew for additional Subscription Terms at the then-current pricing (which may have changed) unless you affirmatively opt out of such renewal at least 15 days prior to the renewal date via the eCommerce Solution.
(b) Notwithstanding the foregoing, if you have previously purchased a subscription for a particular Software (the first such subscription purchased, the “Initial Software Subscription”), and you subsequently purchase an additional subscription to the same Software while at least one prior subscription is active (an “Additional Software Subscription”), then
(i) the first renewal Subscription Term, and corresponding subscription fee for the Additional Software Subscription for that first renewal Subscription Term, will be prorated to the remainder of the then-current term of the Initial Software Subscription, so that the Initial Software Subscription and Additional Software Subscription will eventually have the same renewal date; and
(ii) At expiration of each subsequent Subscription Term for the Additional Software Subscription, notwithstanding anything in the Product Terms to the contrary, the Additional Software Subscription will automatically renew for additional Subscription Terms equal in length to the Subscription Term for the Initial Software Subscription, at the then-current pricing (which may have changed) unless you affirmatively opt out of such renewal at least 15 days prior to the renewal date via the eCommerce Solution.
4.3.2 Credit or Debit Card Payments for Subscription Renewals. You authorize Trimble to store your credit/debit card information and to automatically charge the then-current subscription price (which may have changed) plus tax on the renewal date(s). You must maintain current credit/debit card information with Trimble at all times. In the event your credit or debit card information is not current and this results in your failure to pay in a timely manner, in addition to any of its other rights or remedies, Trimble reserves the right to suspend or terminate your subscription and access and/or license to the Software.
4.3.3. Fee Adjustments. Trimble may increase the fees it charges for its Software subscriptions at any time (including automatic renewals), but any increase in the fees will not take effect until the beginning of your next Subscription Term. Trimble may provide notice of such increases through the Software subscription, including without limitation via Section 14(B)(Notices) below. Your renewal of your Software subscription following such a pricing increase (including automatic renewal) will constitute confirmation of your acceptance of the pricing increase.
4.3.4 Trimble Opt Out of Automatic Renewal. Trimble may opt out of automatic renewals by providing you with written notice at least 15 days prior to the renewal date, which can be via the Software as described in Section 14(B)(Notices).
5. Hardware. Unless otherwise specified in the applicable Hardware Product Terms, the following shall apply:
5.1 Internal Use Only. Hardware purchased through the eCommerce Solution are solely for your internal use, and may not be used for resale or incorporation into (or integration with) your own offerings.
5.2 Delivery. Anticipated delivery times for Hardware may be in your order confirmation. Trimble will use commercially reasonable efforts to meet the anticipated delivery dates, unless you are in default under these Terms or Trimble’s performance is otherwise excused. Trimble is not liable for late or delayed delivery. Late delivery is not a basis for your cancellation of any order. Title and risk of loss or damage to Hardware passes to you when Trimble delivers the Hardware to the initial shipping carrier ("Delivery"). Unless otherwise indicated by Trimble in writing, Trimble will deliver Hardware freight prepaid, provided that you pay or reimburse Trimble for all applicable costs of carriage, freight, insurance (if applicable), taxes, duty and other related shipping charges. Trimble may make partial deliveries.
5.3. Acceptance, Inspection, Notice of Nonconformance. Your acceptance of Hardware is deemed to occur upon Trimble’s Delivery of the Hardware to the initial shipping carrier. You are responsible for giving prompt written notice of identified damage or nonconformance of the Hardware. If you believe you have an issue, please see go to Contact Us in order to contact Product Technical Support (via phone or e-mail) to begin the notification process. You must inspect the condition of the packaging and the Hardware upon receipt and indicate any evident damage to the carrier on the delivery note, have the carrier's agent sign the document and, within two (2) days of receipt of the damaged or non-conforming Hardware, send all documents to Trimble, together with the carrier's references. Concealed Hardware damage claims must be made by you to the carrier directly and you must also provide Trimble with written notice and a copy of any such claim within 10 days of receipt of the affected Products. Likewise you must notify Trimble within 10 days of receipt of incorrect Hardware. If you retain the Hardware without giving notice within the designated notice period, you will be deemed to have waived your right to reject the Hardware.
5.4. Return of Product. All Hardware returns are subject to Trimble’s prior written consent and must comply with its Hardware return material authorization (RMA) procedures then in effect. If you believe you have an issue, please go to Contact Us in order to contact Product Technical Support (via phone or e-mail) and begin the process of submitting a support case. Before returning or exchanging Hardware, you must contact Trimble directly to obtain an authorization number to include with your return. You must return Hardware in the original or equivalent packaging, and you are responsible for risk of loss, as well as shipping fees back to Trimble. Hardware received but not eligible for return will be sent back to you freight collect. For approved returns you will receive credit equal to the lesser of the Hardware’s invoice price or its current replacement value, less any applicable charges or fees.
6. Professional Services.
6.1. Scheduling and Scope. Trimble will contact you with additional details regarding scheduling and other details related to any Professional Services. All Professional Services must be provided within 1 year of the purchase date, or otherwise are forfeit.
6.2 Trimble Materials; Feedback. To the extent in the course of providing Professional Services Trimble provides you with any documentation, manuals, presentations or other Trimble materials (“Trimble Materials”), Trimble hereby grants you a perpetual, worldwide, royalty-free, non-exclusive license to use the Training Materials but only for internal purposes and otherwise in accordance with any restrictions set forth by Trimble. Trimble owns and will retain ownership (including all intellectual property rights) in and to the Training Materials and any modifications, improvements and derivative works thereof (including any such materials to the extent incorporating any ideas, feedback or suggestions of Client (“Feedback”). Client acknowledges that Trimble is free to exploit, use, license and distribute, any Feedback provided to Trimble as it sees fit, without obligation of compensation or attribution.
7. Limited Warranty; Disclaimers.
7.1 Limited Warranty
7.1.1 Hardware Products. The warranty for Hardware, if any, shall be as set forth in the applicable Product Terms, if any, subject to any and all terms and conditions thereof.
7.2.2 Professional Services. Trimble will perform the Professional Services in a professional and workmanlike manner. Trimble will, as its sole liability and obligation to you for failure to provide Professional Services or meeting this warranty, re-perform the non-conforming Professional Services at no additional cost to you if Trimble is notified of the non-conformity within thirty (30) days of delivery of the applicable Professional Services. If Trimble determines such remedies to be impracticable within a reasonable period of time, Trimble may refund the portion of fees attributable to such non-conforming Professional Services.
7.2 Disclaimers. UNLESS OTHERWISE EXPRESSLY SET FORTH IN SECTION SECTION 7.1 (LIMITED WARRANTY) ABOVE, THE PRODUCTS AND PROFESSIONAL SERVICES ARE PROVIDED "AS-IS" AND WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND, EITHER BY TRIMBLE OR ANYONE WHO HAS BEEN INVOLVED IN ITS CREATION, PRODUCTION, INSTALLATION, OR DISTRIBUTION, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT. ADDITIONALLY, TRIMBLE MAKES NO EXPRESS OR IMPLIED WARRANTY THAT SOFTWARE PROVIDED TO YOU IN CONNECTION WITH THESE TERMS IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, FREE OF ERRORS, OR FREE OF VIRUSES OR OTHER MALWARE OR PROGRAM LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY OR FULLY APPLY TO YOU.
8. Limitation of Liability. UNLESS OTHERWISE EXPRESSLY SET FORTH IN ANY APPLICABLE PRODUCT TERMS, TRIMBLE’S ENTIRE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS IS LIMITED TO THE AMOUNTS YOU ACTUALLY PAID TO TRIMBLE UNDER THESE TERMS. FURTHER, NEITHER TRIMBLE NOR ITS SUPPLIERS ARE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, RELIANCE, PUNITIVE DAMAGES OR OTHER DAMAGES, OR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE, UNDER BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, RELATED TO THESE TERMS. YOU AND TRIMBLE AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR TRIMBLE’S SALE OF PRODUCTS TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIFIED OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY, OR MAY NOT FULLY APPLY TO YOU.
9. Intellectual Property Ownership. As between the parties, you agree that Trimble owns all intellectual property rights in the Products (including in any related documentation), and Professional Services and any information derived from the foregoing. You shall take reasonable precautions to prevent unauthorized access and use of any Products by third parties. To the extent permitted by relevant law, you shall not, nor shall you allow any third party to, copy, decompile, disassemble or otherwise reverse engineer the Products, or attempt to do so. You are prohibited from, and shall prevent any third party from, removing, covering or altering any of Trimble’s patent, copyright or trademark notices placed upon, embedded in or displayed by the Products or their packaging, documentation and related materials. Trimble reserves all rights in the Products not specifically granted to you under the applicable Product Terms. All firmware on Products is licensed to you, and irrespective of any use of the words “purchase”, “sale” or like terms hereunder, no ownership rights in any such firmware are being conveyed to you under these Terms or otherwise.
10. No Responsibility for Lost Data. Notwithstanding anything in any applicable Product Terms to the contrary, Trimble is not responsible for any modification or damage to, or loss of, any programs, data, or other information stored on any media or any part of any Hardware serviced by Trimble, or stored or hosted by Trimble in connection with any Products provided by Trimble, or for the consequences of such damage or loss (such as business loss in the event of system, program or data failure). You are solely responsible for backing up data and removing all features, parts, alterations, and attachments not covered by warranty prior to releasing any Hardware to Trimble for service. Any Hardware sent to Trimble for support may be returned to you configured as originally provided to you by Trimble.
11. Government End Users-Restricted Rights. To the extent the Hardware includes any firmware or other software, then this Section applies:
Such firmware or other software and their associated documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 12.227.7202-1 through 227.7202-4, all U.S. Government end users acquire the such such firmware or other software and documentation with only those rights set forth herein.
12. Compliance; Export Control.
12.1 Generally. You are responsible for complying with all applicable laws, regulations and codes of practice in your use of the Products.
12.2 Export Restrictions. You acknowledge that the Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not, and shall not allow any third-party to, remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department Entity or other Restricted Party Lists or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You agree to the foregoing and warrant 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 Products are 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. 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 provision. Your obligations under this paragraph will survive the termination of this License Agreement for any reason whatsoever.
13. Contracting Party; Governing Law; Venue.
Notwithstanding any Product Terms to the contrary, the Trimble entity that is the contracting party to these Terms is as set forth below. In the event of any dispute regarding these Terms or any transaction you make on the eCommerce Solution, these Terms and any such dispute will be governed exclusively by, and construed and enforced exclusively in accordance with, the laws of the jurisdiction set forth below as “Governing Law”, without regard to or application of its conflicts-of-laws provisions. The parties hereby agree that any legal proceeding arising out of or related to these Terms will be subject to the sole and exclusive jurisdiction listed below as “Venue/Jurisdiction,” to the exclusion of all others. Each party irrevocably consents and submits to the personal jurisdiction thereof. The United Nations Convention on Contracts for the International Sale of Goods and any “conflicts of laws” principles will not apply. No dispute or legal action arising under these Terms may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the applicable invoice.
14. Notices.
(A) Any notice or other communication given by either party to the other regarding these Terms will be deemed given and served when personally delivered, delivered by reputable international courier requiring signature for receipt, or five (5) business days after mailing (postage prepaid), addressed to the party at its notice address. Either party may change its notice address by written notice to the other. Your notice address will be the billing address appearing on the applicable order confirmation. Trimble’s notice address is: Trimble Inc., Attn: General Counsel, 935 Stewart Drive, Sunnyvale, CA 94085, USA.
(B) Either party may send non-legal notices via email, and all such notices for you will be sent to the email address associated with your Trimble account for the applicable Product, and all such notices for Trimble will be sent to the Trimble support e-mail address for the applicable Product. Any notice sent via email will be deemed given and served when it is received.
15. Miscellaneous
15.1. Severability. These Terms may be severable and the invalidity, illegality or unenforceability in whole or in part of any provision does not affect the validity of other provisions.
15.2. Force Majeure. Neither party will be liable for non-performance (except for payment obligations) due to causes beyond its reasonable control, provided that such party promptly notifies the other in writing of such occurrence and make reasonable efforts to promptly eliminate the effect thereof.
15.3. Amendments. No waiver, modification, or addition to these Terms shall be valid or binding on Trimble unless in writing and signed by an authorized Trimble representative.
15.4. No Third Party Beneficiaries. These Terms do not confer any rights or remedies upon any third party except to the extent expressly set forth in these Terms.
15.5. Official Language. The official language of these Terms is English. If there is a conflict between versions of these Terms in any other language, the English language version controls.
15.6 Entire Agreement. These Terms and any applicable Product Terms, constitute the complete statement of the mutual understanding of the parties regarding the purchase and use of Products and Services.