Terms and Conditions of Leica Geosystems AG for the Development of Software for Leica Geosystems Products

The status as a "Registered and Authorized Software Developer for Leica”, the disposal of Leica Geosystems software developer kit necessary to develop a software solution for Leica Geosystems products and the software development and support itself are exclusively subject to the terms and conditions set forth below. Leica Geosystems AG (hereinafter “Leica Geosystems”) does not accept any contradictory or additional terms and conditions of Software Developer unless expressly accepted by Leica Geosystems in writing. Leica Geosystems is entitled to amend these T&C from time to time and will notify Software Developer of any those amendments for further acceptance.

Preamble
WHEREAS Leica Geosystems develops, manufactures and distributes on a worldwide basis optical, opto-electronic, combined mechanical and electronic and other hybrid precision instruments and systems in the fields of surveying, mapping, positioning and measuring under the registered trademark "LEICA" and other trademarks.

WHEREAS Leica Geosystems is, inter alia, a leading producer of laser distance meters which are being marketed under the registered trademark "Leica Geosystems".

WHEREAS Software Developer is an innovative specialist for the development and production of hightech software solutions, software enhancements and software applications (Apps).

WHEREAS Leica Geosystems and the Software Developer wish to combine their efforts to provide purchasers of Leica Geosystems products with state-of-the-art software solutions developed by the Software Developer to allow them to make best use of their Leica Geosystems -products. 

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and promises hereinafter contained, the Parties hereto agree as follows:

Terms and Conditions

  1. Status of the Software Developer / Certificate as Registered and Authorized Software Developer / Use of Leica Geosystems Logo
  2. Development of Software Solutions for Leica Geosystems Products
  3. Information on Internet, Advertisement
  4. Coming into Effect / Term / Termination
  5. Relationship of the Parties
  6. Intellectual Property Rights
  7. Links and Advertisers
  8. Compliance, Export Control
  9. Confidentiality
10. Applicable Law / Place of Jurisdiction
11. Final Provisions
12. Annexes
13. Notices and Procedures for Making Claims of Copyright Infringement
14. General Information

1. Status of the Software Developer / Certificate as Registred and Authorized Software Developer / Use of Leica Geosystems Logo

1.1 Status of the Software Developer
This Agreement shall grant the Software Developer a status as "Registered and Authorized Software Developer for Leica Geosystems" with the rights and obligations as further specified in this Agreement.

1.2 Use of Leica Geosystems Logo
The Software Developer shall further have the right to use Leica Geosystems trademarks, trade names, brands and logos expressly disclosed by Leica Geosystems in accordance with Leica Geosystems' Brand Guidelines for Distributors and Service Partners (the "Brand Guidelines") as set forth in www.leica-geosystems.com/about-us/compliance-standards/legal-for-distributors , as amended from time to time in Leica Geosystems' sole and absolute discretion. The Software Developer undertakes to promptly comply with any amendments, if any, to the Brand Guidelines upon receipt of a respective notice from Leica Geosystems. 

2. Development of Software Solutions for Leica Geosystems Products

2.1 Responsibilities of the Parties

2.1.1 In General
The Software Developer undertakes to develop a software solution (the "Software Solution") to new Leica Geosystems product with an interface to a computer (a "New Leica Geosystems Product") and to make such Software Solution available to Leica Geosystems users on the terms set forth in this Agreement. The development of the Software Solutions shall be the sole responsibility of the Software Developer. Except as explicitly stated in this Agreement, Leica Geosystems shall not have any obligations whatsoever with regard to the development of the Software Solution by the Software Developer, in particular shall not pay any remuneration.

2.2 Leica Products
At any time Leica Geosystems is entitled without further warning to define, change, expand or limit the Leica Products which the Software Developer is entitled to use.

2.3 Leica Geosystems Developer Kit
As soon as possible, if possible prior to the introduction of a New Leica Geosystems Product on any market Leica Geosystems will procure the Software Developer with a Leica Geosystems developer kit (the "Leica Geosystems Developer Kit"). Such Leica Geosystems Developer Kit contains all material related to the Software Solution developed by the Software Developer including, inter alia, the information required to develop the Software Solution, in particular the technical information relating to the New Leica Geosystems Product and a (technical) description of the interface or the application programming interface (API). The Leica Geosystems Developer Kit is free of charge.

The Software Developer undertakes not to use such Leica Geosystems Developer Kit for any purpose other than developing the Software Solution as further specified in this Agreement.

2.4 Information exchange, Changes to New Leica Geosystems Product

The Parties agree to immediately inform each other of any findings which might be of relevance for the other Party in connection with the development of a New Leica Geosystems Product or the relevant Software Solution.

The Software Developer shall be free to propose to Leica Geosystems any changes to the New Leica Geosystems Product, it being understood that under no circumstances Leica Geosystems shall be obliged to make any changes to any specification of a New Leica Geosystems Product to accommodate the Software Developer needs or wishes. Unless the Parties agree otherwise, Leica Geosystems shall be free to use the proposals made by the Software Developer, and any intellectual property rights, if any, and the exclusive right, title and interest thereto, which might arise from a proposal made by the Software Developer to change a New Leica Geosystems Product shall exclusively vest in Leica  Geosystems.

Leica Geosystems shall be free to make any changes to any specifications of a New Leica Geosystems Product without prior consultation with the Software Developer. In the case Leica Geosystems changes a New Leica Geosystems Product after having provided the Software Developer with the relevant Leica Geosystems Developer Kit, Leica Geosystems shall promptly inform the Software Developer of such changes and make available to the Software Developer any information reasonable requested by it.

2.5 Availability of Software Solution to End Users, Software Support
As soon as possible after the introduction of any New Leica Geosystems Product, the Software Developer shall make available to End Users of a New Leica Geosystems Product the Software Solution developed by it. As long as the New Leica Geosystems Product and/or Software Solution have not been replaced or ceased to be distributed and for a reasonable time - to be mutually agreed between the Parties - after the replacement or cessation of distribution of the New Leica Geosystems Product and/or Software Solution the Software Developer shall be obliged to provide proper software support, including updates, if any, to existing Software Solutions, for its Software Solution to End Users
and to Leica Geosystems.

2.6 Availability of Software Solution to Leica Geosystems
Prior to the launch of the Software Solution the Software Developer shall provide Leica Geosystems free of charge with a full package of the Software Solution including the Software Solution itself and any information relating thereto such as authorisation codes, descriptions, target groups, markets, language versions, brochures, pricelists etc.

3. Information on Internet, Advertisement
Upon the Software Developer's express written request Leica Geosystems shall publish information relating to the Software Solution developed by the Software Developer on Leica Geosystems' Webpage in the relevant New Leica Geosystems Product section. The information to be published by Leica Geosystems or via a hyperlink to a third party website may include, at the sole and absolute discretion of Leica Geosystems, pictures, a text describing the Software Solution and its use to End Users, as well as contact and support information of the Software Developer. The Software Developer undertakes to promptly provide Leica Geosystems with the information to be published on Leica Geosystems' Webpage and to update such information as and when needed. The Software Developer further undertakes to make available to Leica Geosystems at all times all relevant information required to allow End Users to get proper support in case needed for the Software Solution acquired by them.

Leica Geosystems shall be allowed to use the information described in the preceding paragraph, including links to Webpages maintained by the Software Developer, contact and support information etc. in its advertisements as well as in any New Leica Geosystems Product brochure, on its packaging materials and in its product manuals.

4. Coming into Effect / Term / Termination

4.1 Coming into Effect
This Agreement shall come into force when the Software Developer acknowledges that it has read and understand these T&C by clicking the ”I accept” button beside the Agreement on the website of Leica Geosystems and Leica Geosystems accepted the request of the Software Developer. 

4.2 Cancellation of old Registered and Authorized Software Developer Agreement 
If the Parties already have a Registered and Authorized Developer Agreement in place, such Registered and Authorized Developer Agreement shall be cancelled upon the Effective Date. The Agreement fully replaces the old Registered and Authorized Developer Agreement.

4.3 Term
The term of this Agreement shall be 24 (twenty-four) months from Effective Date and the Agreement shall be tacitly renewed for a further 12 (twelve) months on expiry of each subsequent 12 month period unless the Agreement is terminated in accordance with clause 4.4 herein.

4.4 Termination
Earliest as at the end of the 24 (twenty-four) months as of Effective Date and thereafter at any time, either Party may terminate this Agreement without cause subject to a 3 (three) months notice period.

Parties shall be entitled to terminate this Agreement at any time for cause such as, but not limited to, breach of contract or bankruptcy/insolvency of a Party, provided, however, the terminated Party has not remedied such cause for termination within a time period of sixty (60) days as of date of notice by the terminating Party.

5. Relationship of the Parties
The relationship of the Parties is that of independent contractors. Neither Party, nor its directors, agents and employees, (i) shall under any circumstances be deemed an agent or representative of the other Party and (ii) shall have authority to act for and/or bind the other Party in any way. This Agreement shall not be construed as any form of joint venture, agency or partnership between the Parties. 

6. Intellectual Property Rights
Any New Leica Geosystems Product and any Software Solution developed by the Software Developer shall always be deemed to be two separate products and all intellectual property rights, and the exclusive right, title and interest thereto, developed by Leica Geosystems in relation to a New Leica Geosystems Product or developed by the Software Developer in relation to the Software Solution shall exclusively vest in the respective Party.

7. Warranty and Indemnity
The Software Developer agrees and warrants that it is entitled to grant to End Users and Leica Geosystems all rights required to make appropriate use of the Software Solution. The Software Developer shall indemnify Leica Geosystems from, and defend it against, or assist Leica Geosystems to defend against, claims resulting from infringement of intellectual property rights in connection with the Software Solution, or from claims resulting from the non- or malfunction of the Software Solution. Leica Geosystems shall promptly notify the Software Developer in writing of any such claims resulting from infringement of intellectual property rights or from the non- or malfunction of the Software Solution of which it has received notice and shall not make any admission or enter into any settlement without Software Developer's prior written consent. The Software Developer represents, warrants and undertakes that it shall comply with all applicable legislation and export regulations in the performance of its obligations under this agreement.

8. Compliance, Export Control
Either Party agree to comply with all applicable laws with respect to Export Controls and Economic Sanctions, in particular not to export or re-export, directly or indirectly software, products or technical data that are intended to be used for any purposes prohibited by the United States Government regulations or the EU Dual Use Regulations, including but not limited to nuclear and/or missile proliferation or chemical or biological weapons or weapons precursor development, unless the Software Developer first obtains written permission. Fur-thermore the Parties agree not to further export or reexport products, software or technical data to any denied entities and denied individuals listed on any Denied Parties List or the Entity List. Additional compliance requirements may be imposed upon the Software Developer for third party product pursuant to a third party agreement. The obligations in this clause shall survive the termination or expiration of this Agreement. In case a software development or an exchange of software or technical data under this Agreement would infringe or at Leica Geosystems sole discretion risk to infringe any applicable export control law or economic sanctions, Leica
Geosystems would be entitled to terminate this Agreement immediately for cause without further notice period in accordance with § 4.4 herein.

Each Party warrants and represents that it has complied, and agrees that it will comply, with any and all anti-bribery laws and regulations that apply to its business, and further agrees not to knowingly take any action to expose the other Party to any liability under an anti-bribery law that is applicable to such other Party.

9. Confidentiality
The Mutual Confidentiality T&C entered into by the Parties by accepting this Agreement and attached hereto as Annex 2 shall form an integral part of this Agreement.

10. Applicable Law / Place of Jurisdiction

10.1 Applicable Law
This Agreement and all its annexes shall be governed and construed in all respects in accordance with the substantive laws of Switzerland, excluding the United Nations Convention on the International Sale of Goods dated 11 April 1980 (so-called CISG).

10.2 Place of Jurisdiction
The ordinary courts at the place of business of Leica Geosystems AG shall be competent.

11. Final Provisions

11.1 Entirety
This Agreement, together with all Annexes attached hereto, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties, and other than herein stated there are no warranties, representations or other agreements among the Parties in connection with the subject matter hereof.

11.2 Modifications
No alteration, deletion, addition or other modification to the terms and conditions of this Agreement shall be valid unless agreed in writing and signed by both Parties hereto.

11.3 Assignment
Except as otherwise expressly provided herein, neither Party may assign or transfer this Agreement or any right or interest under this Agreement, nor delegate any obligation to be performed under this Agreement, without express prior written consent of the other Party, such consent not to be unreasonably withheld. However, this clause 10.3 shall not apply to any transfer or assignment within the Leica Geosystems or the Software Developer's group of companies. 

11.4 Severability
In the event any provision of this Agreement or its Annexes is declared to be illegal, invalid or otherwise unenforceable by court of competent jurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid and enforceable, or otherwise deleted, and the remainder of this Agreement or its Annexes shall not be affected except to the extent necessary to reform or delete such illegal, invalid or unenforceable provision. In case of reform, the illegal, invalid or unenforceable provision shall be replaced by such legal, valid and enforceable provision which best serves the interest of the Parties as originally intended by the illegal, invalid or unenforceable provision.

12. Annexes

The following annexes shall be included by reference hereto and shall be integral part of this Agreement: Annex 1 Mutual Confidentiality Agreement

Mutual Confidentiality Agreement between Leica Geosystems AG and Software Developer

WHEREAS Software Developer and Leica Geosystems wish to disclose certain proprietary or confidential information to each other concerning the granting of the status as "Registered and Authorized Software Developer for Leica DISTO” and the disclosure of Leica DISTO developer kit required to develop the software solution for Leica DISTO products (hereinafter referred to as the "Project") and each of the parties wishes to protect such own and/or third parties' proprietary or confidential information;

NOW THEREFORE IT IS HEREBY AGREED as follows:

1. In this Agreement the term "Proprietary Information" shall mean any technical (including computer code, inventions, algorithms, know-how and ideas), business, financial, commercial and/or other information (whether in visual or machine readable form) disclosed by one party (the "Disclosing Party") to the other (the "Receiving Party") and identified by a suitable legend or marking as being "Confidential" or "Proprietary" as well as Proprietary Information disclosed orally by the Disclosing Party to the Receiving Party which was described as being proprietary or confidential at the time of disclosure and thereafter is reduced to writing, appropriately identified and a copy thereof sent to the Receiving Party within 15 working days of the original oral disclosure, PROVIDED, HOWEVER that Proprietary Information shall not include any information which the Receiving Party can show:

(i) is in or comes into the public domain otherwise than through a breach of this Agreement or the fault of the
Receiving Party; or
(ii) has been lawfully received from a third party without restriction as to its use or disclosure; or
(iii) was already in Receiving Party's possession free of any such restriction prior to receipt from the Disclosing
Party; or
(iv) was independently developed by the Receiving Party without making use of the Proprietary Information; or
(v) has been approved for release or use (in either case without restriction) by written authorization of the
Disclosing Party

2. The Receiving Party undertakes:
2.1 to keep such Proprietary Information confidential;
2.2 not to use such Proprietary Information otherwise than for the purposes of the Project unless such other use is specifically authorized in writing by the Disclosing Party;
2.3 not to disclose such Proprietary Information to any persons employed in its business (including persons employed by parents, subsidiaries or other affiliates under direct or indirect, common control) other than those having a need to know for the purposes of the Project, and then only on the understanding that such persons are made aware of and undertake to observe the provisions of this Agreement;
2.4 not to disclose Proprietary Information to any third party except for the purposes of the Project and with the prior written consent of the Disclosing Party (which consent shall not be unreasonably withheld) or to legal advisors, and then only on the understanding that such third party is made aware of and undertakes to observe the provisions of this Agreement; Receiving Party shall be responsible for any breach of the obligations under this Agreement by such a third party.
2.5 not to copy or reduce Proprietary Information to writing except as may be strictly necessary for the purposes of the Project; and
2.6 to return to the Disclosing Party on demand or upon expiration or termination of this agreement all copies of Proprietary Information reduced to writing (or other permanent form) and to destroy all notes and any other written reports or documents which may have been made by the Receiving Party to the extent they contain any part of or reference to the Proprietary Information in whole or part except as authorized in writing by the Disclosing Party or as is strictly necessary to complete any outstanding obligations relating to the Project whereafter such Proprietary Information shall be returned or destroyed as aforesaid.

3. Notwithstanding the foregoing, every party hereto shall be entitled to disclose Proprietary Information as required by law, regulation or legal process, provided that, to the extent practical, the party under such obligation to disclose gives prior notice to the other party of the reasons for and the proposed contents of such disclosure. 

4. All intellectual property, whether registered or not, such as, but not limited to, patents, rights granted under patent licenses, know-how, trademarks and copyrights ("Intellectual Property") that may be associated with Proprietary Information that either Party may disclose to the other Party remain owned exclusively in the Disclosing Party at all times and nothing herein shall be construed, expressly or implied, as to transfer any of the Intellectual Property rights from any of the Parties to the other.

5. Should either party hereto be the subject of merger or any other form of reorganization it is agreed that the successor in law to such party shall also be bound by the terms of this Agreement as if such party were an original party hereto. Subject to the aforesaid, neither party shall assign its rights, interests or obligations under this Agreement without the prior written consent of the other party. Any such assignment shall be void and of no effect.

6. The Receiving Party of Proprietary Information acknowledges that its obligations to protect all Proprietary Information is essential to the business interests of the Disclosing Party and that the disclosure of such Proprietary Information in breach of this Agreement would cause the Disclosing Party immediate, substantial and irreparable harm, the
value of which would be very difficult to determine. Accordingly, the Parties agree that, in addition to any other remedies that may be available in law, equity or otherwise for the disclosure or use of Proprietary Information in breach or threatened breach of this Agreement, the Disclosing Party shall be entitled to seek and obtain a temporary restraining order, injunctive relief or other equitable relief against the continuance of such breach or threatened breach of this Agreement, in addition to all other remedies available under law or equity.

7. This Agreement shall remain in force and effect until the occurrence of the later of (i) 3 years as of the Effective Date and (ii) 3 years as of the date as of which the Project has ended. 

8. This Agreement shall be governed by and construed in all respects in accordance with Swiss law. All disputes arising out of or in connection with the present agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. Unless the
parties agree otherwise, all proceedings shall be held in Zurich in the English language.

9. This Agreement may be executed in counterparts, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument.

(hereinafter the “Agreement”) Version 1, 2016