1. INTRODUCTION

1.1 Welcome to http://conx.leica-geosystems.com (“Web Site”) brought to you by Leica Geosystems AG, Switzerland (“Leica Geosystems”). These terms of use (“Terms of Use”) together with our Privacy Policy set out how you (“Customer”) may use our Web Site and the services (“Services”) provided by our Web Site.

1.2 By accessing or using the Web Site and the Services, the Customer agrees to be bound by these Terms of Use. The Privacy Policy is an essential part of these Terms of Use and by accepting these Terms of Use the Customer also accepts and consents to our Privacy Policy [https://conx.leica-geosystems.com/static/landing/privacy-policy.html].

1.3 If the Customer has entered into an order (e.g. quotation, order form, sales order) (“Order”) for the purchase of the Services, or if the Services are part of a customer care agreement (“CCA”), these Terms of Use constitute an addendum, which is an integrated part of the Order or the CCA, as the case may be. The Order and/or the CCA (and any specifications or other documentation referred to therein) and these Terms of Use form a contract (“Contract”) between Leica Geosystems and the Customer in relation to the Web Site and the Services.

1.4 In the event that there are inconsistencies or contradictions between these Terms of Use and other parts of the Contract in relation to the use of the Web Site and the Services these Terms of Use shall prevail.

1.5 Leica Geosystems reserves the right to make changes from time to time to these Terms of Use in Leica Geosystems’s sole discretion, upon 14 days prior written notice. The Customer has, subject to clause 15.1.3, the right to terminate the Contract within said 14-day period unless the change is required or necessary to comply with any applicable law or to conform to any applicable safety, statutory or regulatory requirement or otherwise.

1.6 The most current version of these Terms of Use, which supersedes all previous versions, can be reviewed by clicking on the “Terms of Use” hyperlink located at the bottom of every page on the Web Site.

2. ABOUT US

This Web Site is owned and operated by Leica Geosystems, a company incorporated under the laws of Switzerland. If the Customer would like to make a complaint about anything contained on the Web Site, please contact us using the following details:

Leica Geosystems AG Heinrich Wild Strasse CH-9435 Heerbrugg St. Gallen, Switzerland

Phone: + 41 71 727 3131 Fax: + 41 71 727 4674

Contact Form [http://www.leica-geosystems.com/en/Feedback-Form_4169.htm]

3. SERVICES

3.1 The Web Site provides users with access to a collection of on-line resources and Services relating to Leica Geosystems’s construction telematics product offerings. The Services can, among other things, be used to update the latest design models on the vehicle/unit over the web, remotely support vehicle/unit operators from the site office, contribute a web-based tracking overview of all vehicles/units in the Customer’s fleet and provide access to the Customer’s construction telematics data. The Customer understands and agrees that the Services are provided “as is” and that Leica Geosystems assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications.

3.2 The Services that will be provided pursuant to the Contract are specified in the documentation for the Services (as updated from time to time) found on the Web Site (“Documentation”).

3.3 In order to access the Services the Customer must receive an account and login credentials from Leica Geosystems as set out in clause 5.1. In addition, certain functionality of the Services require that a valid license (as issued by Leica Geosystems) is mapped by the Customer against specific hardware as further set out in the Documentation.

3.4 Leica Geosystems reserves the right at any time to modify or discontinue the Web Site or the Services (or any parts thereof) for any reason or no reason whatsoever. If the changes have a material adverse affect on the Customer, the Customer has the right to terminate the Contract subject to clause 15.1.3.

3.5 Notwithstanding clause 3.4, Leica Geosystems may always make any change of the provision of the Web Site or the Services which is required or necessary for maintenance work or to comply with any applicable law or to conform to any applicable safety, statutory or regulatory requirement or added functionality; or which does not materially affect the quality or performance of the Web Site or the Services. If Leica Geosystems changes, suspends or terminates the provision of the Services or ability to use the Web Site for any reason set out in this clause 3.5, Leica Geosystems shall have no liability or responsibility to the Customer or any third party and the Customer shall not be entitled to a refund of any sums paid under the Contract.

4. USE AND RESTRICTIONS OF USE

4.1 The Customer will comply with these Terms of Use and all applicable laws (including export control and privacy laws), regulations and rules when the Customer uses the Web Site and the Services.

4.2 The Services are only intended to be used by the Customer and any representatives and/or employees authorised to use the Services by the Customer, for its internal business, and is not intended to be distributed to, or used by, third parties. The Customer may not, sell, transfer, reverse engineer, distribute, modify, transmit, reuse, repost, use, or create derivative works based on the content of the Web Site or the Services in whole or in part for any purpose, without written permission from Leica Geosystems.

4.3 The Customer is prohibited from violating or attempting to violate the security of the Web Site, including, without limitation, (a) accessing data not intended for the Customer or logging into a server or account that the Customer is not authorized to access, (b) attempting to probe, scan or test the vulnerability of the system or network or to breach security or authentication measures without proper authorization, (c) attempting to interfere with any Service to any user, host or network, including, without limitation, via means of submitting a virus to the Web Site, overloading, “flooding,” “spamming,” “mailbombing” and the like. Violations of system or network security may result in civil or criminal liability. Leica Geosystems will investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.

4.4 The Customer agrees to comply with all reasonable instructions that Leica Geosystems may give the Customer regarding the Customer’s use of the Web Site and the Services. Moreover, the Customer shall ensure and be responsible for compliance with Leica Geosystems’s Documentation in respect of the Services. The Customer shall ensure and be responsible for that each of its employees and representatives who uses the Services, the account or operates the vehicle(s)/unit(s) complies with the Contract, the Documentation and any instructions, recommendations and guidelines set out on the Web Site or otherwise provided to the Customer.

4.5 The Customer is responsible for obtaining (at the Customer’s own cost) all necessary equipment and telecommunications services required to access the Web Site and the Services. Moreover, the Customer is responsible for any registration, termination, recording or communication of data in respect of each vehicle/unit and its drivers/users effected by its personnel or other persons undertaking such activities on behalf of the Customer. The Customer is also responsible for ensuring that no person uses the Customer’s equipment to access the Web Site without the Customer’s permission. Leica Geosystems will be entitled to assume that anyone who accesses the Web Site using the Customer’s credentials or equipment is authorised (e.g. a representative or employee) by the Customer to do so and the Customer will be liable for any charges, costs or liabilities that may be incurred by any such persons.

5. ACCOUNTS

5.1 In order for an account to be created the Customer must upon Leica Geosystems’s request provide accurate and complete information necessary to complete the registration process. Leica Geosystems will thereafter create the account and send the login credentials to the Customer, so that the Customer can access the Services. If any information provided by the Customer changes, the Customer must notify Leica Geosystems as soon as practically possible.

5.2 Accounts are password protected. The Customer will be responsible for all activities that occur under the Customer’s account and all use of the Customer’s password, including, without limitation, any use by any unauthorized third party. The Customer must notify Leica Geosystems immediately if the Customer believes that the Customer’s password has been or may be obtained or used by any unauthorized person or entity. In addition, the Customer must notify Leica Geosystems immediately if the Customer becomes aware of any other breach or attempted breach of the security of the Web Site or its Services.

5.3 Leica Geosystems reserves the right to suspend or terminate the Customer’s account or ability to use the Web Site at any time in case of unauthorised, or suspected unauthorised use of the Web Site or Services whether in contravention of the Contract or otherwise. If Leica Geosystems suspends or terminates the Customer’s account or ability to use the Web Site for any reason set out in this clause, Leica Geosystems shall have no liability or responsibility to the Customer or any third party and the Customer shall not be entitled to a refund of any sums paid under the Contract.

6. FEES AND PAYMENT

6.1 The fee for the Services will be the fee (or fees) set out in the Contract. Unless stated otherwise in the Contract: (a) All fees are exclusive of VAT and any other applicable sales tax or duty which will be added to the sum in question; and (b) Payment shall be made within 30 days of the date of the invoice (“Payment Term”).

6.2 The Customer’s right to access and use the Services is subject to the Customer having paid, and Leica Geosystems having received, the agreed fees for the Services within the Payment Term. If Leica Geosystems has not received payment within the Payment Term Leica Geosystems has the right to suspend or terminate access to the Web Site and the Services. Upon expiration of the period for which payment has been made, the Customer is no longer entitled to use the Services and Leica Geosystems may suspend the Services.

6.3 All payments to be made by the Customer under the Contract will be made in full without any set-off, restriction or condition and without any deduction for or on account of any counterclaim.

6.4 If any sum payable under the Contract is not paid when due then, without prejudice to Leica Geosystems’s other rights under the Contract, that sum will bear interest from the due date until payment is made in full. The late payment fee shall be based on an interest rate equal to the late payment interest rate under the Swedish Interest Act (Sw. räntelagen (1975:635)).

7. LINKS

Leica Geosystems has not reviewed any or all of the web sites linked to the Web Site and is not responsible for the content of any off-site pages or any other sites linked to the Web Site. Leica Geosystems welcomes links to the Web Site. The Customer is free to establish a hypertext link to this Web Site so long as the link and use of the link does not state or imply any sponsorship, endorsement or affiliation of the Customer or the Customer’s site by Leica Geosystems. Without the prior written permission of Leica Geosystems, the Customer may not frame any of the content of the Web Site, or incorporate into another web site or other service the intellectual property of Leica Geosystems or any of its licensors.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 Copyright, trademarks etc.

8.1.1 Leica Geosystems, or any of its affiliates, solely and exclusively owns (or is using with permission) all intellectual property rights, title and interest in and to the Web Site and the Services, and Leica Geosystems will have the sole and exclusive right to obtain trademark and copyright registrations, patents and other protection, and the Customer will not acquire any right, title or interest therein, under the Contract or otherwise.

8.1.2 The Customer should assume that everything the Customer sees, reads, downloads etc. on/from the Web Site or Services is copyright or trademark protected unless otherwise noted, and may not be used except as provided in these Terms of Use without the written permission of Leica Geosystems. Leica Geosystems neither warrants nor represents that the Customer’s use of the Services or of materials and information displayed on the Web Site will not infringe rights of third parties not owned by or affiliated with Leica Geosystems.

8.2 Leica Geosystems’s use of user generated content

8.2.1 Any communication or material the Customer transmits to the Web Site by electronic mail or otherwise as part of the Services, including any data, questions, comments, suggestions or the like is, and will be treated as, non-confidential and non-proprietary, unless the material provided is marked as confidential information by the Customer.

8.2.2 By transmitting or posting anything to Leica Geosystems or the Web Site as part of the Services, the Customer grants Leica Geosystems and its affiliates an irrevocable, worldwide, royalty-free nonexclusive license to use, reproduce or modify such materials, in whole or in part for any purpose. Leica Geosystems will disclose and share telematics data it collects as part of the Services to affiliates and partners (such as vehicle/unit vendors) for the purpose of, among other things, improving the Services. However, Leica Geosystems will never share personal data or data that will indentify the Customer. All data that is shared with a third party will be made anonymous prior to being shared.

9. NO WARRANTIES

9.1 The Customer’s use of the Services and browsing on the Web Site is at the Customer’s risk. The Customer understands and agrees that the Web Site and the Services provided are based on software and that software is never free from errors and, therefore, that Leica Geosystems makes no warranties or representations to the Web Site nor the Services and assumes no responsibility for the timeliness, deletion or mis-delivery of any communications.

9.2 Everything on the Web Site and the Services are provided to the Customer “as is” and “as available” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement.

10. LIMITATION OF LIABILITY

10.1 The following provisions of this clause 10 reflect the scope of the Contract and the price for the Services and the Customer is advised of and accepts that, without these provisions, Leica Geosystems would need to charge a higher price.

10.2 Nothing in these Terms of Use limits or excludes Leica Geosystems liability for: (a) gross negligence or wilful misconduct; (b) death or personal injury caused by Leica Geosystems’s negligence; or (c) any loss suffered by the Customer as a result of the Customer’s reliance on any fraudulent misrepresentation made by Leica Geosystems to the Customer.

10.3 Subject to clause 10.2, to the maximum extent possible, Leica Geosystems, any of its affiliates, its directors, officers and employees, and any other party involved in creating, producing, or delivering the Web Site or the Services are not liable for any direct, incidental, consequential, indirect loss or damage, or punitive damages arising out of the Customer’s access to, use of, or inability to use the Web Site or the Services. For the sake of clarity, and without limiting the generality of the foregoing, Leica Geosystems will not be liable (whether in contract, tort, negligence, statute or otherwise) for any loss of profits, loss of business, loss of data, wasted management time or costs of data reconstruction or recovery, irrespective of whether such loss arises directly or indirectly. These limitations shall apply even if Leica Geosystems has been previously advised of the possibility of such loss or damage, whether in an action under contract, negligence, or otherwise, arising out of or in connection with the use, inability to use, or performance of the Web Site or Services.

10.4 In no event will the liability of Leica Geosystems for any claim arising out of or in connection with the Contract exceed the amount paid by the Customer to Leica Geosystems for the 12 months immediately preceding the event that gives rise to such liability.

10.5 Leica Geosystems also assumes no responsibility, and shall not be liable for, any damage to, or viruses that may infect, the Customer’s computer equipment or other property as a result of the Customer’s access to the Web Site or use of the Services.

10.6 The Customer agrees to indemnify Leica Geosystems and its affiliates against any claims or legal proceedings that may arise through or in connection with the Customer’s use of the Web Site or the Services or from any breach of the Contract by the Customer.

11. CONFIDENTIALITY

The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by Leica Geosystems, its employees, agents or subcontractors, and any other confidential information concerning Leica Geosystems’s business or its products or its services which the Customer may obtain. The Customer shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Customer’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Customer.

12. PRIVACY POLICY AND DATA PROTECTION

12.1 Leica Geosystems as data controller

The Customer agrees that Leica Geosystems has a right to collect and process personal information in accordance with the Leica Geosystems Privacy Policy. For more information, please refer to the full Leica Geosystems Privacy Policy that can be accessed by clicking on the “Privacy Policy” hyperlink located at the bottom of every page on this Web Site.

12.2 Leica Geosystems as data processor

12.2.1 The Customer is aware of and accepts that in order to provide the Services it is necessary to record various information about vehicles/units and the drivers/users, some of which constitutes personal data (“Telematics Data”). Such Telematics Data is collected and transferred to a Leica Geosystems’s server and used by Leica Geosystems and its affiliated companies to provide the Services. The parties agree that to the extent such Telematics Data is a part of the Services, the Customer is the data controller and Leica Geosystems is the data processor on behalf of the Customer.

12.2.2 Leica Geosystems assumes and presupposes that the Customer has obtained valid consent from any and all employees, representatives and/or other affected data subjects to, or that the Customer has another valid legal basis for, the processing of their Telematics Data in connection with and as a result of the Services. When the Customer is the data controller and Leica Geosystems is the data processor on behalf of the Customer, Leica Geosystems is aware of and accepts that Leica Geosystems shall implement technical and organisational measures to attain a suitable level of security to protect the Telematics Data, taking into consideration the technical possibilities available, the cost to implement the measures, specific risks associated with the processing of the Telematics Data and the degree of sensitivity of the Telematics Data. Leica Geosystems shall process the Telematics Data in accordance with the Customer’s instructions (as applicable from time to time) and in accordance with legislation, regulations and ordinances (as applicable from time to time).

12.2.3 If Leica Geosystems cannot provide the Services as agreed between the parties due to being restricted by the Customer in processing Telematics Data as reasonably necessary to fulfil its obligations under the Contract, then Leica Geosystems has the right to terminate the Contract with immediate effect. If Leica Geosystems terminates the Contract for any reason set out in this clause, Leica Geosystems shall have no liability or responsibility to the Customer or any third party and the Customer shall not be entitled to a refund of any sums paid under the Contract.

13. EXPORT CONTROL AND INTERNATIONAL USE

Software and other materials from this Web Site may be subject to export controls of Sweden and/or such other country whose export restriction may apply. Export control laws prohibit the export of certain technical data and software to certain countries or territories. No software from this Web Site may be downloaded or exported to any such country or territory, companies and/or individuals that may be subject to such export restrictions. Leica Geosystems does not authorize the downloading, use or export of any software or technical data from this Web Site or the Services to any jurisdiction prohibited by applicable export control laws.

14. TERM AND TERMINATION

14.1 The validity of the Contract commences on the date Leica Geosystems accepts the Terms of Use. The Contract will continue to be in force until it is terminated in accordance with clause 1.5, 3.4, 12.2.3 or this clause 14.

14.2 Either party may terminate the Contract by providing the other party notice at least 60 days prior to the termination date. A notice shall be provided in accordance with clause 17 below.

14.3 Failure by the Customer to pay any sum due under the Contract is a breach of contract which entitles Leica Geosystems to terminate the Contract with immediate effect unless the Customer has paid the sum(s) within 15 days after the date of a reminder having been sent to the Customer.

14.4 Either party may by written notice according to clause 17 terminate the Contract with immediate effect (a) if the other is in material breach of the Contract, and (if such breach is remediable) fails to remedy that breach within 15 days of that party being notified in writing of the breach, or (b) if the other party enters into insolvency, bankruptcy, any arrangement with its creditors or any other arrangement or situation which has a like effect.

15. CONSEQUENCES OF TERMINATION

15.1 If the Contract expires or is terminated, the following shall apply after the date of expiry or termination:

15.1.1 The Customer’s right to use or otherwise benefit from the Web Site and the Services terminates simultaneously with the expiry or termination (wholly or partly) of the Contract.

15.1.2 Upon termination of the Contract, these Terms of Use and all provisions (and/or parts of provisions, as the case may be) in an Order or CCA solely relating to the Services will be terminated and cease to have effect. Other provisions (and/or parts of provisions, as the case may be) in the Order or CCA not relating to the Web Site or the Services (as the case may be) will continue to be in force.

15.1.3 Upon termination of the Contract for whatever reason Leica Geosystems shall have no liability or responsibility to the Customer or any third party, the Customer shall not be entitled to a refund of any sums paid under the Contract and the Customer shall forthwith pay Leica Geosystems any sums accrued due under the Contract. Leica Geosystems shall, however, provide the Customer with a refund in case of pre-paid Services if (a) the Customer terminates the Contract according to clause 1.5, within the 14-day period, due to Leica Geosystems’s decision, in accordance with clause 1.5, to change the Terms of Use beyond what is permitted or necessary for compliance or conformity as stated in clause 1.5, (b) Leica Geosystems decides, in accordance with clause 3.4, to modify or discontinue the Web Site or the Services beyond what is permitted under clause 3.5, provided that the changes have a material adverse effect on the Customer, or (c) Leica Geosystems terminates the Contract according to clause 14.2. The refund shall in such case be in proportion to the reduced use of the Services during the remaining period and shall exclude any other compensation to the Customer, such as costs, expenses and damages for lost business, and loss of profit.

15.1.4 The termination of the Contract howsoever arising is without prejudice to the rights, duties and liability of either party accrued prior to termination. The conditions which expressly or impliedly are capable of having effect after termination will continue in force notwithstanding termination, including but not limited to clause 10 (Limitation of liability) and clause 11 (Confidentiality).

16. FORCE MAJEURE

Leica Geosystems will not be liable to the Customer for any failure or delay or for the consequences of any failure or delay in performance of the Contract, if it is due to any act, event or omission beyond the reasonable control and contemplation of Leica Geosystems including, without limitation, default of suppliers, subcontractors or third party service providers (including but not limited to mobile telecommunication operators), acts of God, fire, flood, tempest, explosion, war, riot, industrial disputes, labour disputes (including but not limited to strikes, industrial action or lock-outs, whether involving the workforce of Leica Geosystems, its affiliates or any other party), protests, compliance with any law or governmental order, rule, regulation or direction, accident, an act of terrorism and national emergencies.

17. NOTICES

Any notice in connection with the Contract shall be in writing addressed to the other party at its registered office, or principal place of business and will be delivered by hand, pre-paid, first class post or special delivery post or e-mail. The address and e-mail address to the contact person provided by the Customer in the Order or CCA shall be deemed to be considered the relevant address for notices hereunder to the Customer, and the address and e-mail address to the relevant sales unit, as stated on the Order or in the CCA, shall be the relevant address for notices hereunder to Leica Geosystems. A notice will always be deemed to have been duly served, if delivered by hand, when left at the proper address for service or if made by pre-paid, first class post or special delivery post, 48 hours after being posted, or if delivered by e-mail, 12 hours after sending.

18. MISCELLANEOUS

18.1 The Contract constitutes the entire agreement between the Customer and Leica Geosystems regarding use of the Web Site and the Services, superseding any prior agreement between the Customer and Leica Geosystems regarding use of the Web Site or the Services. The Customer may also be subject to additional terms and conditions that may apply when the Customer uses affiliate services, third-party content or third-party software provided from the Web Site.

18.2 Any cause of action or claim the Customer may have with respect to the Web Site or the Services must be commenced within one (1) year after the claim or cause of action arises. Leica Geosystems’s failure to insist upon or enforce strict performance of any provision of the Contract shall not be construed as a waiver of any provision or right.

18.3 The invalidity or unenforceability of any provision (or part of any provision) of the Contract will not affect the validity or enforceability of any other provision of the Contract, all of which will remain in full force and effect.

18.4 The Contract is personal to the Customer who may not assign, transfer, delegate, charge, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without Leica Geosystems’s prior written consent.

18.5 Leica Geosystems may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any affiliated company or group company.

19. GOVERNING LAW AND DISPUTES

Any dispute, controversy or claim arising out of or in connection with the Contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral tribunal shall be composed of three arbitrators. The seat of arbitration shall be Stockholm. The language to be used in the arbitral proceedings shall be English. This Contract shall be governed by the laws of Sweden without giving regard to its choice of law principles.