FORM OF SOFTWARE ORDER FOR
TOPODOT® ENTERPRISE 300 LICENSE
IMPORTANT – READ THIS SOFTWARE ORDER (this "Software Order") CAREFULLY AND COMPLETELY BEFORE CLICKING "ACCEPT" AND INSTALLING ANY SOFTWARE REFERENCED HEREIN. CLICKING "ACCEPT" AND/OR INSTALLING ANY SOFTWARE REFERENCED HEREIN CONSTITUTES ACCEPTANCE OF EACH AND EVERY TERM OF THE AGREEMENT AND THIS SOFTWARE ORDER.
This SOFTWARE ORDER is entered into by and between CERTAINTY 3D LLC, a Florida limited liability company (the "Licensor") and the and the party to which the software identified herein is provided by the Licensor (the "Licensee") under the Master Software License Agreement (the "Agreement") between the parties. The terms and conditions set forth in the Agreement shall have the same meaning when used as defined terms in this Software Order. In the event of any conflict between the provisions of the Agreement and of this Software Order, the provisions of this Software Order shall prevail.
Definitions. For the purposes of this Software Order, the following terms shall be defined as set forth below:
- A "Registered Workstation" is a workstation on which the TopoDOT® Processing Suite (the "TopoDOT® Processing Suite" or "TopoDOT®") has been installed that has been uniquely identified by the Licensor’s monitoring site. The Licensor will monitor TopoDOT® usage via the web for each Registered Workstation.
- A "User-Day" is any day (from 12:00 a.m. through 11:59 p.m.) in which the TopoDOT® Processing Suite has been accessed on a Registered Workstation. TopoDOT® access shall initiate a web connection sending the Licensee’s unique license key to the Licensor’s monitoring site for verification, authorization and recorded as a User-Day. Multiple TopoDOT® accesses occurring over a single day from one specific Registered Workstation are counted as one (1) User-Day.
- The "Account" is the number of TopoDOT® User-Days purchased by the Licensee (including User-Days initially purchased and all User-Days purchased from time to time in the event of an Account deficit).
- The "Account Balance" is difference between the User-Day Account and the number of User-Days used by a Licensee since December 31 of the previous year.
- A "TopoDOT® License Key" is a unique code provided by the Licensor to the Licensee. Each time TopoDOT® Processing Suite is accessed the TopoDOT® License Key is submitted over the web to the Licensor’s monitoring site for authentication.
The subject matter of this Software Order and the terms and conditions specifically applicable thereto are as follows:
- Licensed Software. This Software Order relates to the license of the TopoDOT® Processing Suite on an Enterprise basis to multiple users within a single organization (the "Enterprise TopoDOT® License"). The TopoDOT® Processing Suite is a comprehensive Bentley MicroStation tool suite application designed to import and process 3D image data such as, but not limited to, point clouds, calibrated images and survey data. The TopoDOT® Processing Suite is a Bentley MicroStation application that will only run on specified Bentley MicroStation versions, and this Software Order does not grant the Licensee any license to, or rights to the use of, Bentley MicroStation.
- License Type & Term. The Enterprise TopoDOT® License provides a perpetual (subject to the terms of this Software License and the Agreement) license to install and use the TopoDOT® Processing Suite on an unlimited number of Registered Workstations. There is no limitation to the number of TopoDOT® installations.
- License Fees. The Licensor shall purchase a quantity of User-Days as provided in Exhibit B: "Current TopoDOT® Price List." As reflected in Exhibit B: "Current TopoDOT® Price List," the Enterprise User-Day Level selected will determine the number of User-Days available to the Licensee each year (subject to the terms of the Agreement and this Software Order) and will also determine the price applicable for purchases of additional User Days in the event of any Account Balance deficit (as described below). The total number of purchased User-Days shall constitute the Licensee’s current Account Balance. As described in the Agreement, payment terms for the purchase of all such User-Days shall be net 30 days. The Licensee acknowledges that, subject to the terms of the Agreement and this Software Order, Exhibit B: "Current TopoDOT® Price List" may be amended from time to time by Licensor in its sole and absolute discretion.
Maintenance. The Enterprise TopoDOT® License purchased hereunder will initially include access to the TopoDOT® version upgrade, extended maintenance and technical support (collectively, the "TopoDOT® Maintenance"). The TopoDOT® Maintenance also provides access to the "Certainty 3D University" training website and certain direct support services provided by the Licensor pursuant to the terms of the TopoDOT® Maintenance program, and may, at the Licensor’s election, include other benefits established from time to time by the Licensor for the TopoDOT® Maintenance program.
Maintenance Fee. TopoDot® Maintenance services will be paid for annually on January 1st of each year. The first payment of fees for such services (the "Maintenance Fee") is due on the first occurring January 1st date after the Effective Date. The Maintenance Fee is calculated based on the total number of TopoDOT® User-Days actually attributed to the Licensee’s use over the preceding year. The Maintenance Fee is calculated as the Per Day Maintenance Rate (provided in Exhibit B: "Current TopoDOT® Price List") multiplied by the number of such User-Days.
- The Licensee may install TopoDOT® on any workstation. Each time TopoDOT® is accessed from any workstation the Licensee’s unique TopoDOT® License Key is submitted to the Licensor’s monitoring server for authentication. Once authenticated, one User-Day per day per workstation will be deducted from the Licensee’s current Account Balance.
- On January 1st of every year the Licensee will pay for any deficit (or negative Account Balance) with respect to such Licensee’s Account by purchasing at least exactly the amount of User-Days in deficit at the current Account Deficit User-Day Price applicable to the Licensee’s Enterprise User-Day Level provided in Exhibit B: "Current TopoDOT® Price List". Upon purchase of such additional User-Days in accordance with this requirement, these User-Days will be added to the Licensee’s Account, the Account Balance will be reset to zero, and the monitored User-Days will again be subtracted from the Account providing the Account Balance for the subsequent year.
- The Licensor reserves the right to update the Per Day Maintenance Rate at any time in its sole discretion; provided, however, that the Per Day Maintenance Rate shall not increase in any twelve-month period by more than the change for the same period of time in the Consumer Price Index for All Urban Consumers, U.S. City Average, All Items (the "CPI Index"), or any similar successor index thereto, plus two percent (2%). The applicable Per Day Maintenance Rate used for Maintenance Fees accruing on any January 1st will be that rate published by the Licensor as of the December 1st preceding such payment date.
- Should the Licensee elect not to purchase annual TopoDOT® Maintenance, the Licensor may take the following action:
The Licensee acknowledges that the Enterprise TopoDOT® License places complete responsibility for the use of the Enterprise TopoDOT® License and the Licensee’s TopoDOT® License Key on the Licensee. The Licensor will provide reasonable support to allow the Licensee to monitor use of the Licensee’s TopoDOT® License Key, including access to current User-Day Account Balance status. If requested by Licensee, a more detailed report consisting of specific Workstation information such as Hard Drive ID’s, usernames, etc. will be supplied in support of Licensee’s management of the use of its Enterprise TopoDOT® License and TopoDOT® License Key. However any misuse, unauthorized use, etc., of the Licensee’s Enterprise TopoDOT® License and/or TopoDOT® License Key resulting in deductions from the Licensee’s User-Day Account Balance remain solely the responsibility of the Licensee and subject to the rules and conditions of authorized TopoDOT® License Key use. Without limiting the foregoing, the Licensee acknowledges that the Licensor has no obligation to credit the Licensee’s Account, or make any other similar adjustments or credits, for any unauthorized use of the Licensee’s Enterprise TopoDOT® License and/or TopoDOT® License Key.
All installations and registrations of any Enterprise TopoDOT® License must be performed in accordance with all Licensor rules, regulations, and procedures, as such rules, regulations, and procedures may be amended by the Licensor from time to time. Without limiting the foregoing, the Licensee (i) acknowledges that proper use of the TopoDOT® Processing Suite for purposes of the Agreement requires an available web connection for each Registered Workstation at least once every fourteen (14) days, and (ii) agrees to provide the Licensor all reasonable and necessary support facilitating proper TopoDOT® integration into the Licensee’s operating environment. Such support may include, but is not limited to, "white-listing" the monitoring server on the Licensee’s firewall, providing required proxy server credentials and/or verification of the proper loading of TopoDOT® configuration variables.
Validity and Interpretation. The Licensee acknowledges that it has read this Software Order in its entirety, understands it, and agrees to be bound by its terms and conditions. The Licensee acknowledges and agrees that it desires to execute and accept this Software Order electronically in substitution for conventional paper-based documents for the Licensee’s convenience and desires for this Software Order to be regarded as legally valid and enforceable against the Licensee. The Licensee covenants and agrees not to contest the validity or enforceability of this Software Order under the provisions of any applicable law. The Licensee agrees that this Software Order shall be admissible as between the parties to the same extent and under the same conditions as other business records originated and maintained in documentary form.
- The Licensor may limit annual TopoDOT® usage such as not to allow User-Day deficits to the Account Balance.
- The Licensor may deny access to any upgrades and maintenance of the TopoDOT® Processing Suite (whether or not such upgrades or maintenance were previously scheduled);
- The Licensor may deny access to "Certainty 3D University" training website and other components of the TopoDOT® Upgrade (as herein defined); and
- The Licensor may deny access to any general support of the TopoDOT® Processing Suite previously provided to the Licensee.