Software End User License Agreement

The following agreements apply to the access and use of the MAGNET web-based services and MAGNET Software that you have acquired the right to use. Included below are:

I. MAGNET SERVICE TERMS

II. MAGNET SOFTWARE END USER LICENSE AGREEMENT

III. MAGNET SOFTWARE SERVICE PLAN

I. MAGNET SERVICE TERMS

Updated: November 1, 2020

This Magnet Service Terms (the “Terms”) is between Topcon Positioning Systems, Inc. or one of its Affiliates (“Topcon”) and the individual or entity accepting its terms and conditions (“Customer”) by clicking the “I Accept” button, by creating an account, or by logging in.

BY CLICKING THE “I ACCEPT” BUTTON OR INITIATING USE OF THE SERVICE CUSTOMER AGREES TO THE FOLLOWING TERMS GOVERNING THE USE OF THE SERVICE.

IF AN INDIVIDUAL IS ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, SAID INDIVIDUAL REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO BIND SUCH ENTITY. TOPCON RESERVES THE RIGHT TO IMMEDIATELY TERMINATE OR SUSPEND THE SERVICE FOR FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT.

IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE TERMS AND CONDITIONS OF ANY OTHER AGREEMENT BETWEEN THE PARTIES RELATING TO THE ACQUISITION OF A SUBSCRIPTION TO THE SERVICE, INCLUDING TOPCON’S STANDARD TERMS OF PURCHASE, THIS AGREEMENT SHALL CONTROL.

1. Definitions. As used in this Agreement:

2. Agreement; Order of Precedence. The Agreement governs the use by Customer and its Users of the subject Service. In the event of a conflict between a Purchase Certificate and the Terms, the Terms will take precedence, except for any matter that the Terms expressly permit to be established or modified in a Purchase Certificate. Customer agrees that the terms of this Agreement supersede the terms of any purchase order issued by Customer.

3. Service Access License Grant and Restrictions.

3.2. Restrictions. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any Content or the Service in any way that is deemed by Topcon to be outside of the intended use of the Service; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (iv) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or (v) reverse engineer or access the Service or its underlying code in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Customer shall not loan, or share its passwords, or allow third party access to the Service or any related materials without prior written authorization from Topcon.

Customer shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

4. Customer Responsibilities. Customer is responsible for all activity occurring under its Subscriptions and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) notify Topcon immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Topcon immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer or its Users to be in violation of the restrictions in Section 3.2; and (iii) not impersonate another user or provide false identity information to gain access to or use the Service.

Customer expressly consents to the provision and collection of location-based information in connection with the use and operation of the Service. Customer hereby represents that any Personal Information uploaded or otherwise made available through the Service has been collected and processed in a lawful and legitimate manner, in accordance with the requirements of Applicable Privacy Laws. Customer shall clearly and conspicuously, and upon a regular and ongoing basis, notify all customers and Users of the Service that location information is gathered and processed in connection with the operation of the Service. Such information is processed and managed as described in Section 20 below.

5. Modifications and Availability/Security.

6. Ownership.

7. Third-Party Features.

8. Fees and Payment; Renewal.

9. Term and Termination.

10. Warranties. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement and (ii) its acceptance of and performance under this Agreement will not breach any oral or written agreement with any third party or any obligation owed by it to any third party.

11. Disclaimer of Warranties.

USE OF THE SERVICE IS AT CUSTOMER’S SOLE RISK. CUSTOMER ACCEPTS THE SERVICE ON AN “AS-IS” AND “AS-AVAILABLE BASIS”. TOPCON, ITS LICENSORS AND WIRELESS SERVICE PROVIDERS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. TOPCON AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TOPCON AND ITS LICENSORS.

THE SERVICE(S) MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC/WIRELESS COMMUNICATIONS. TOPCON IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

12. Indemnification. CUSTOMER SHALL INDEMNIFY AND HOLD TOPCON, ITS LICENSORS AND EACH SUCH PARTY'S SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COSTS) ARISING OUT OF OR IN CONNECTION WITH: (I) ANY ALLEGATION THAT USE OF THE CUSTOMER DATA INFRINGES, MISAPPROPRIATES OR VIOLATES THE PRIVACY OR INTELLECTUAL PROPERTY RIGHTS OF, OR HAS CAUSED HARM TO, A THIRD PARTY; (II) A BREACH BY CUSTOMER OR CUSTOMER’S USERS OF ANY TERM, OBLIGATION AND/OR COVENANT UNDER THIS AGREEMENT; OR (III) ANY USE OR MISUSE OF THE SERVICE.

13. Confidentiality.

14. Use of Aggregate or Anonymized Data. Notwithstanding anything else in this Agreement or otherwise, Topcon may, in accordance with Applicable Privacy Laws, monitor use of the Service by its customers and use the data in the aggregate in the pursuit of its legitimate commercial interests, including for industry analysis, benchmarking, analytics, and marketing. Customer agrees that Topcon may collect, use and disclose such information that does not incorporate Customer Data or Personal Information, or otherwise identify Customer or its Users.

15. Limitation of Liability.

IN NO EVENT WILL TOPCON BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY TORT, CONTRACT OR ANY OTHER LIABILITY ARISING IN CONNECTION WITH THE USE OF THE SERVICE, THE WEBSITE, OR ANY TOPCON WEBSITE, OR RELIANCE ON ANY INFORMATION OR SERVICES PROVIDED BY TOPCON, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION (REGARDLESS OF CAUSE) IN THE CONTENT, REGARDLESS OF THE FORM OF ACTION, INCLUDING, WITHOUT LIMITATION, FOR ANY LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, OR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER, EVEN IF TOPCON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL TOPCON OR ITS AFFILIATES, AGENTS, EMPLOYEES, OR LICENSORS (INCLUDING THIRD PARTY PROVIDERS) BE LIABLE FOR ANY DAMAGES OF ANY KIND THAT RESULT FROM (i) THE USE, UNAUTHORIZED USE OR THE INABILITY TO USE THE SERVICE; (ii) THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY CUSTOMER DATA; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER DATA.

IN ADDITION, WITHOUT LIMITING THE FOREGOING, IN ALL EVENTS THE REMEDIES AVAILABLE TO CUSTOMER SHALL BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY CUSTOMER TO TOPCON FOR THE RIGHT TO USE THE SERVICE FOR THE THEN CURRENT TERM OR $100.

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to Customer.

16. Force Majeure. Any delay in or failure of performance by Topcon under this Agreement shall not be considered a breach of this Agreement if and to the extent caused by events beyond the reasonable control of Topcon , including, but not limited to, acts of God, embargoes, governmental restrictions, strikes, riots, terrorist attacks, wars, or other military action, civil disorders, rebellion, fires, floods, vandalism, power outages, or sabotage.

17. Local Laws and Export Control.

The Service provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. Customer agree that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, Customer represent and warrant that Customer are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

Topcon and its licensors make no representation that the Service is appropriate or available for use in other locations. If Customer uses the Service from outside the United States of America, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited.

18. Data Protection and Security.

19. Notice. Topcon may give notice by means of a general notice on the Service, electronic mail to Customer’s e-mail address on record in Topcon's account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Topcon's account information. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first-class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). Customer may give notice to Topcon (such notice shall be deemed given when received by Topcon ) at any time by any of the following: letter sent by confirmed facsimile to Topcon at the following fax number: (201) 599-5248; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Topcon at the following address: 111 Bauer Drive Oakland, New Jersey 07436, in either case, addressed to the attention of: General Counsel.

20. Assignment; Change in Contro. This Agreement may not be assigned by Customer without the prior written approval of Topcon. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Customer that results or would result in a direct competitor of Topcon directly or indirectly owning or controlling 50% or more of Customer shall entitle Topcon to terminate this Agreement for cause immediately upon written notice.

21. General. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflicts of laws provisions. If for any reason any provision of this Agreement, or a portion thereof, shall be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. Any action concerning this Agreement shall take place in state or federal courts located in Alameda County, California. This Agreement constitutes the entire agreement between us and Customer with respect to the Service and it supersedes all prior or contemporaneous communications, agreements and understandings between Topcon and Customer with respect to the subject matter hereof. No joint venture, partnership, employment, or agency relationship exists between Customer and Topcon as a result of this agreement or use of the Service. The failure of Topcon to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Topcon in writing. A printed version of this Agreement shall be admissible in judicial or administrative proceedings.

II. MAGNET SOFTWARE END USER LICENSE AGREEMENT

Updated: November 1, 2020

IMPORTANT: PLEASE READ CAREFULLY. The software product provided to you by Topcon Positioning Systems, Inc. ("Topcon") along with its associated manuals and documentation, if any (collectively, the “Software”) is owned by Topcon and your use is subject to the terms and conditions of this Magnet Software End User License Agreement (“Agreement”) set forth below. The Software is intended for use on and/or as embedded in a personal computer or Topcon product upon which the Software is intended to be installed and used (each a “Device”). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "you" or "your" shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you may not use the Software. Topcon also reserves the right to immediately terminate this Agreement for failure to comply with the terms provided herein.

By clicking the “ACCEPT” button below, and/or or by installing or using the Software or any Device in which the Software is embedded, you agree to be bound by the terms and conditions of this Agreement. If you do not agree, you will not be authorized to use the Software.

1. Grant of License to Software. If you have installed, purchased or otherwise received Software from Topcon or as embedded in a Device, Topcon grants you a personal, non-exclusive, non-transferable (except as expressly set forth herein) license for the applicable Term (as defined below) to use the Software under the terms stated herein and in any case only with a single Device running a validly licensed copy of the operating system for which the Software was designed (e.g., Linux, Android, iOS, Windows). “Term” means the time period during which you may use the Software associated with the applicable Topcon part number assigned to the Software license you acquired and/or as set forth in the applicable purchase confirmation. The Term shall commence on the earlier of: (i) the date set forth in the applicable purchase confirmation or (ii) the date you initially activate the Software. If you have acquired the product as an educational license you can use the Software only for academic research projects. This explicitly excludes projects which are contracted to you by any third party for a fee, or projects that are performed in collaboration with a third party that is funding the research in whole or in part.

2. Restrictions on Use and Transfer. You may not: (i) modify, adapt, translate, create derivative works of, reverse engineer, decompile, or disassemble the Software; (ii) remove, modify or hide or otherwise make unreadable or non-viewable any notice, legend, advice, watermark trademark, service mark, or other designation contained on the Software, component thereof, documentation, or output therefrom; (iii) distribute registered copies of the Software to third parties, including, without limitation, rent, lease, or lend the Software to third parties; (iv) install or access, or allow the installation or access of, the Software over the Internet, including, without limitation, use in connection with a Web hosting or similar service, or make the Software available to third parties via the Internet on your computer system or otherwise; (v) use or export the Software outside of the country of installation or purchase for any reason; (vi) use, permit the use, or use the Software in violation of any U.S. Federal, state, or local laws or regulations or any foreign law or regulation, including laws regarding intellectual property rights in or laws or regulations regarding the trading or exchange of securities or concerning the Software. You further agree to use the Software solely for its intended purpose; (vii) assign, give or transfer the Software to another individual or entity, without the prior written consent of Topcon.

You are prohibited from (a) timesharing, service bureau, subscription service or rental use of the Software or (b) passing title to the Software any other individual or (c) publication of any results of benchmark tests run on the Software.

You shall not copy the Software without prior written consent from Topcon. You agree that any such copies of the Software shall contain the same proprietary notices which appear on and in the Software.

Topcon shall be entitled to audit your use of the Software in relation to compliance with this Agreement, upon reasonable notice and on reasonable terms and report such use to its licensors.

3. Pass-Through of Open Source Terms. Notwithstanding the foregoing license grant and restrictions, you acknowledge that certain components of the Software may be covered by so-called “open source” software licenses (“Open Source Components”), which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format. The Software includes a text file listing the Open Open Source Components and Topcon shall provide a list of Open Source Components for a particular version of the Software upon your request. To the extent required by the licenses covering Open Source Components, the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement. To the extent the terms of the licenses applicable to Open Source Components prohibit any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of the licenses applicable to Open Source Components require Licensor to make an offer to provide source code or related information in connection with the Software, such offer is hereby made. Any request for source code or related information should be directed only to: Topcon via email at OSinquiry@topcon.com.

4. Termination. This Agreement is effective until expiration of the Term or terminated as provided herein. You may terminate the license at any time by destroying the Software and related documentation. Without prejudice to any other rights of Topcon, Topcon may terminate your license if you fail to comply with the terms and conditions of this Agreement. In such event, you must destroy all copies of the Software in your possession.

5. Safety. IMPROPER USE OF A TOPCON PRODUCT CAN LEAD TO INJURY TO PERSONS OR PROPERTY AND/OR MALFUNCTION OF THE PRODUCT. THE PRODUCT SHOULD ONLY BE REPAIRED BY AUTHORIZED TOPCON WARRANTY SERVICE CENTERS. USERS SHOULD REVIEW AND HEED THE SAFETY WARNINGS IN THE DOCUMENTATION ACCOMPANYING THE PRODUCT.

6. Ownership of the Software. The Software is owned by Topcon and its respective licensors and is protected by United States and international copyright laws and other intellectual property laws.

7. Professional Use. The Software is designed to be used by a professional. The user is required to be a professional surveyor or have a good knowledge of surveying and be familiar with the safe use of such products, in order to understand the user instructions before operating the Software.

8. Maintenance/Support. Maintenance and support services are available through the Topcon Magnet Software Service Plan (the “Service Plan”). Topcon agrees to provide maintenance and support services as described in and pursuant to the Service Plan to you for a period of 1 year from the date of commencement of the Term, at no additional charge. Following the first year, and for successive years thereafter, in order to receive continued maintenance and support service, you must pay the applicable Service Plan fee at the start of each annual period as set forth by Topcon... A copy of the current Service Plan is available from Topcon upon request. Service Plan terms and conditions are subject to change from time to time as determined by Topcon.

9. Crash; Bug Reporting and Feedback. The Software provides you with the ability to report performance issues/feedback and suggestions to Topcon. In the event that you chose to report any performance issues to Topcon the Software will gather the relevant job file and Device and Software settings and save to a file that you may forward to Topcon. Such information and feedback shall be used by Topcon to develop, provide and improve Topcon’s products and services, resolve bugs and faults, and to facilitate the provision of Software updates, product development, management and support and other services to you (if any) related to the Software. You hereby grant to Topcon a perpetual license to use, perform, copy, modify of the information that you supply to Topcon under the process and for the purposes described in this Section 9.

10. Disclaimers. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SOFTWARE AND ANY FEATURES/SERVICES PERFORMED BY OR ACCESSED THROUGH THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND ERROR IS WITH YOU.

THE SOFTWARE AND RELATED FEATURES ARE PROVIDED “AS IS.” TOPCON MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, REGARDING OR RELATING TO THE SOFTWARE AND RELATED FEATURES (INCLUDING, WITHOUT LIMITATION, THAT THE SOFTWARE WILL BE ERROR-FREE OR AVAILABLE FOR USE AT ALL TIMES) OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO YOU PURSUANT TO THIS AGREEMENT OR OTHERWISE, AND TOPCON SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SAID MATERIALS OR THE USE THEREOF. To THE MAXIMUM EXTENT ALLOWABLE BY LAW, THE UNIFORM COMMERCIAL CODE OR OTHER UNIFORM LAWS SHALL NOT APPLY TO THIS AGREEMENT.

TOPCON DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, THAT ANY SERVICES/FEATURES WILL CONTINUE TO BE AVAILABLE, THAT THE SOFTWARE OR SERVICES/FEATURES WILL BE CORRECTED, OR THAT THE SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES.

11. Trademarks. The Topcon name, the Topcon logo, and the product names associated with the Service are trademarks of Topcon and no right or license is granted to use them. Product and company names mentioned herein may be trademarks of their respective owners.

12. Third-Party Features. The Software includes features/services available under license from certain third-parties (“Third-Party Features”). Topcon does not guarantee the ongoing availability of any Third-Party Features, which are subject to immediate termination at the discretion of Topcon. In the event that any Third-Party Feature is terminated you shall have no further right to access/use the subject feature under this Agreement and your access to such Third-Party Feature may be permanently disabled. Notifications of availability/termination of Third-Party Features may be posted from time to time on the Topcon website.

13. Limitation of Liability. ToPCON, ITS DISTRIBUTORS, LICENSORS AND SUPPLIERS SHALL NOT BE LIABLE FOR TECHNICAL OR EDITORIAL ERRORS OR OMISSIONS CONTAINED IN THE SOFTWARE, ITS DOCUMENTATION AND/OR FEATURES. To THE MAXIMUM EXTENT ALLOWABLE BY LAW, IN NO EVENT SHALL TOPCON , ITS DISTRIBUTORS, LICENSORS, OR SUPPLIERS BE LIABLE UNDER ANY CLAIM, DEMAND OR ACTION ARISING OUT OF OR RELATING TO THE SOFTWARE, ITS USE, INSTALLATION OR THEIR PERFORMANCE OR LACK THEREOF UNDER THIS AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, DEMAND OR ACTION. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL Topcon OR ITS AFFILIATES, AGENTS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND THAT RESULT FROM (i) THE USE OR THE INABILITY TO USE THE SOFTWARE AND/OR ANY FEATURES THEREOF (INCLUDING THIRD PARTY FEATURES/SERVICES; (ii) THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY DATA, COMMUNICATIONS OR SETTINGS; (iii) THE COST OF GETTING SUBSTITUTE GOODS AND SERVICES; OR (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, WITHOUT LIMITING THE FOREGOING, IN ALL EVENTS THE REMEDIES AVAILABLE TO YOU SHALL BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY YOU TO TOPCON FOR THE RIGHT TO USE THE SOFTWARE OR $100.

14. Indemnification. YOU SHALL INDEMNIFY AND HOLD TOPCON, ITS DISTRIBUTORS, LICENSORS AND SUPPLIERS AND THEIR RESPECTIVE AGENTS, OFFICERS, MANAGERS, EMPLOYEES AND MEMBERS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, SUITS, JUDGMENTS AND EXPENSES (INCLUDING REASONABLE LEGAL FEES AND EXPENSES) ARISING OUT OF OR RELATING TO: (A) THE BREACH BY YOU OF YOUR OBLIGATIONS UNDER THIS AGREEMENT; (B) YOU VIOLATION OF ANY LAW< REGULATION OR THIRD-PARTY RIGHTS; AND/OR (C)INTELLECTUAL PROPERTY MISAPPROPRIATION OR INFRINGEMENT CLAIMS BY ANY THIRD PARTY BASED ON, OR RELATING TO, YOUR USE OF THE SOFTWARE. YOU AGREE TO GIVE TOPCON PROMPT NOTICE OF SUCH CLAIMS AND TO PERMIT TOPCON TO CONTROL THE DEFENSE OR SETTLEMENT THEREOF.

15. Export Control. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction(s) in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.

16. Government End Users. If the Software is supplied to or purchased by or on behalf of the United States Government, then the Software is deemed to be a Commercial Item, as that term is defined in 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 or 48 C.F.R. -227.7202, as applicable. Consistent with 48 C.F.R. -12.212 or 48 C.F.R. -227.7202-1 through 227.7202-4, as applicable, such Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions set forth in this Agreement.

17. Website; Other Statements. No statement contained at the Topcon website (or any other web site) or in any other advertisements or Topcon literature or made by an employee or independent contractor of Topcon shall modify this Agreement.

18. Privacy Policy. At all times personally identifiable information will be treated in accordance with Topcon’s Privacy Policies, which can be viewed at: https://www.topconpositioning.com, https://magnet-enterprise.com, https://collage.magnet-enterprise.com and https://www.magnetsystems.com.

19. General. This Agreement may be amended, modified, superseded, or canceled, at any time by Topcon. This Agreement shall be governed by and construed and enforced in accordance with the laws of the state of California, without regard to conflicts of laws provisions. Any action concerning this Agreement shall take place in the state or federal courts located in San Francisco, California. If for any reason any provision of this Agreement, or a portion thereof, shall be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. This Agreement constitutes the entire agreement between us and you with respect to the Software and it supersedes all prior or contemporaneous communications, agreements and understandings between Topcon and you with respect to the subject matter hereof. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any other agreement between the parties relating to the acquisition of a license to the Software or support thereof, including Topcon’s standard terms of purchase, the terms and conditions of this Agreement shall control. No joint venture, partnership, employment, or agency relationship exists between you and Topcon as a result of this agreement or use of the Service. The failure of Topcon to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Topcon in writing. A printed version of this Agreement shall be admissible in judicial or administrative proceedings.

Appendix A

MICROSOFT BING MAPS END USER MINIMUM TERMS

Microsoft has licensed the Services (defined below) to Topcon. By using the Software, you accept these terms. If you do not accept them, do not use the Software.

1. Definitions.

2. License. Topcon provides you a license to access the Services (except Premium Services) from within the Software provided by Topcon only.

3. Additional Restrictions.

You may overlay administrative boundaries or other map content provided in the Software, provided that you do not use the Software for:

and route services. For avoidance of doubt, Software may not perform Geofences, buffers or query a spatially enabled database.

4. General Restrictions. Microsoft does have some restrictions on your use of the Software supplied by Topcon. In using the Services provided with the Software, you may not:

5. Intellectual Property and Reservation of Rights. All rights to the Services and the Content, including rights of use, not specifically granted under these End User Minimum Terms or your agreement with Topcon are reserved by Microsoft and its suppliers. Except as set forth in your agreement with your Topcon, these End User Minimum Terms do not grant Microsoft any right or license to any Software or your intellectual property, including intellectual property that you licensed from third parties. Except for material that Microsoft may license to you, Microsoft does not claim ownership of the content you post or otherwise provide to us, which is hosted by Microsoft or a third-party hosting provider on Microsoft’s behalf, related to the Services (called a “Submission”). However, by posting or otherwise providing your Submission (and for the avoidance of doubt, where Microsoft hosts content on your behalf including by a third party hosting provider, this constitutes a Submission, but where you host or a third party hosts content on your behalf, other than Microsoft or a third party hosting provider on behalf of Microsoft, this does not constitute a Submission), you are granting to Microsoft free permission to use, copy, distribute, display, publish, transcode and otherwise modify your Submission, each in connection with the Services, and sublicense these rights to others in order to provide the Services. For every Submission you make, you must have all rights necessary for you to grant the permissions in this section.

6. Additional Rights and Restrictions for End Users.

III. MAGNET SOFTWARE SERVICE PLAN

Updated: November 1, 2020

The following terms and conditions describe and apply to the MAGNET Software Service Plan (the “Service Plan”) for Magnet Software licensed to Customer by Topcon:

1. Term. The Service Plan is provided on an annual subscription basis subject to the payment of applicable fees. For the first year following the purchase of a perpetual or annual subscription Software license (the “Initial Term”) the Service Plan will be included free of charge. Thereafter, the Service Plan shall automatically renew for successive one (1) year periods (each referred to as a “Renewal Term”) upon the same terms and conditions as set forth herein in exchange for the payment of the applicable annual support fee (the “Service Plan Fee”) unless either party provides notice of its intent not to renew no later than thirty (30) days prior to the expiration of the Initial Term or then current Renewal Term. If neither party issues a notice of non-renewal then Topcon, or one of its resellers, may issue an invoice for the payment of the applicable annual Service Plan fee, which shall be due and payable thirty (30) days from the date of the invoice. The Initial Term and any Renewal Term may be referred to as the “Term” herein.

2. Services. During the Term Topcon will provide Customer the following services for the Software:

3. MAGNET Enterprise. During the Term Customer shall be entitled to a single-user subscription to the MAGNET Enterprise web service, conditioned on Customer’s acceptance of and compliance with the then current Magnet Service Terms.

4. Customer Responsibilities.

5. Charges. Service Plan fees are described in the Order Form or applicable Topcon price/fee schedules. All invoices for shall be paid by Customer within 30 days of the date of receipt of Topcon’s invoice. Service Plan fees do not cover any support services related to third party software programs, which may be required to run the Software. If a Service Plan expires and is not renewed within 60 days, Topcon may charge an additional reinstatement fee.

6. Exclusions. The Service Plan does not include, and Topcon shall have no obligation to respond to or resolve, problems arising from, related to or caused by:

Topcon reserves the right to charge additional fees at its then standard rates for services performed in connection with reported incidents that are later determined to have been due to problems described in Section 6.6 or for services that extend beyond the scope of this Service Plan. Such services shall be supplied at Topcon’s, or the involved Topcon dealer’s, then current rates plus reasonable expenses. Notwithstanding the foregoing, Topcon has no obligation to perform support services in connection with issues resulting from hardware or software not supplied by Topcon.

7. Software Modifications. Any unauthorized modifications that Customer makes to the Software, including any modifications to any licensed Third-party Software included with or embedded in the Software, will render any obligations under this Service Plan null and void. Topcon will not be liable, in any respect, for any such unauthorized modifications or any errors, losses or damage resulting from such modifications.

8. Warranty; Disclaimer of Warranties; Limitation of Liability.

8.1. Warranty. Topcon represents, warrants and covenants that the services provided hereunder will be performed by qualified and skilled personnel in a workmanlike manner.

9. Confidentiality.

All Confidential Information (as defined below) that is disclosed by either party (a “disclosing party”) to the other (a “receiving party”) in relation to this Service Plan or the relationship created by this Service Plan shall be held in strict confidence by the receiving party and only used in connection with this Service Plan. Any disclosure or provision of Confidential Information to the receiving party shall be made in reliance on this promise.

“Confidential Information” means all information related to a party that such party identifies as confidential or proprietary and discloses to the other party which relates to their past, present or future research, development, technology, know—how, business activities and programs, financial information and patient information. Confidential Information shall also include any unannounced product(s) or service(s) of either party, and any other information or materials provided to a receiving party and designated by the disclosing party as confidential or proprietary. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. The parties do not wish to receive any Confidential Information that is not necessary to achieve the purpose of this Service Plan.

Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and warrants and represents on their own behalf that all of their own officers, employees, and agents who have access to Confidential Information of the other party are aware of (or will, prior to their being given access to any Confidential Information under this Service Plan, be made aware of) the terms of this Service Plan so that they may sufficiently protect the considerable interest of the other party’s Confidential Information.

Each party acknowledges and agrees that it may suffer irreparable injury not compensable by money damages and therefore may not have an adequate remedy at law in the event of an unauthorized use or disclosure of Confidential Information in breach of the provisions of this Service Plan. Accordingly, a disclosing party shall be entitled to injunctive relief to prevent or curtail any such breach, threatened or actual, by a receiving party. The foregoing shall be in additional and without prejudice to such other rights as each party may have at law or in equity.

The parties agree that the terms of this Section shall survive the termination of this Service Plan.

10. Miscellaneous.

The obligations of either party under this Service Plan may be impacted by conditions beyond the control of such party or its agents, including but not limited to, acts of God, acts of any public enemy, fire, flood, epidemic or quarantine restrictions, strikes, riots or civil commotion, freight or other embargoes, and weather conditions.

This Service Plan will be governed by and interpreted in accordance with the laws of the State of California and the parties agree to attorn to the jurisdiction of the courts therein.

Topcon shall support the latest version of the Software. If Customer chooses not to install the latest version of the Software, Topcon reserves the right to reasonably limit the scope of the services provided.

Neither party shall assign, in whole or in part, any of its right or obligations under this Service Plan without the prior written consent of the other party; provide however, that either party may assign this Service Plan to any entity which controls, is controlled by, or is under its common control, or in the event of any merger or consolidation with or into any person, or any conveyance, transfer, lease or other disposition (whether in one transaction or a series of transactions) of all or substantially all of such party’s assets, or any other change in control of such party.

This Service Plan (together with any Exhibits or attachments referred to herein) sets forth the entire understanding of the parties with respect to the subject matter of this Service Plan, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Any amendment to this Service Plan must be in writing signed by both parties.

The waiver or failure of either party to exercise in any respect any right provided for in this Service Plan shall not be deemed a waiver of any further right under this Service Plan.

If any provision of this Service Plan is invalid, illegal or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.

Topcon has no other responsibilities with respect to services other than those specified in this Service Plan.

Exhibit A

MAGNET Software Service Plan Overview

Key Benefits

Email support during normal business hours. Unlimited number of support requests

Online access to:

Documentation and technical resources

Knowledge base of common resolutions

Product upgrades and updates

At a Glance

Feature Services
E-mail support To access Customer shall complete the support request form located at magnetsystems.com
Length of Service Annual (following balance of year of purchase of Software (renewed annually)
Product Upgrades and Updates Included
Products Supported MAGNET
Access Channels -/Email/Web
Number of Support Requests Unlimited
Committed Response Time See Exhibit B

Contact Topcon MAGNET Software Support

• Online Support Request Form:

• Topcon Web Sites:

Exhibit B

Customer Support

1. Definitions.

2. Error Support Responsibilities.

Major Error Response Correction
During Topcon normal business hours Topcon shall provide acknowledgment of the Error and a description of a course of action within twenty-four (24) business hours of notification by Customer. Topcon shall employ best efforts to provide a work-around or patch within seven (7) business days.
Minor Error Response Correction
Topcon acknowledgment and description of course of action within five (5) business days of notification by Customer. Topcon shall employ best efforts to provide a work around or patch within fourteen (14) business days.