Master Subscription Agreement
[Last Updated on January 30, 2020]
This Master Subscription Agreement (“Agreement”) is made and entered into by and between, HokuApps LLC, a Delaware limited liability company, with an office at 5102 Heather Meadow Lane, Sugar Land TX 77479 (“Hoku” or the “Company”; in each case also referred to as “We”, “Us” or “Our”) and the undersigned (the “Client”; also referred to as “You” or “Your”) as of the date set forth on the time stamp collected when accepting this Agreement online (the “Effective Date”).
THIS AGREEMENT GOVERNS YOUR RIGHTS AND RESPONSIBILITIES RELATING TO ACCESS AND USE OF THE SERVICES MADE AVAILABLE BY THE COMPANY TO CLIENT. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, FREE SERVICES, OR ACCESS TO ANY BETA SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN SUCH FREE TRIAL, FREE SERVICES, AND BETA SERVICES.
THIS AGREEMENT CONTAINS A WAIVER OF JURY TRIAL AND A WAIVER OF CLASS ACTION TYPE RELIEF.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A RELATED PURCHASE ORDER THAT REFERENCES THIS AGREEMENT, OR BY ACCESSING THE SERVICES, YOU REPRESENT THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE YOU HAVE READ THIS AGREEMENT AND YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT (AND THE CONDITIONS OF ANY RELATED PURCHASE ORDER YOU SIGN), IN WHICH CASE THE TERMS “CLIENT”, "YOU" OR "YOUR" SHALL REFER TO YOU AND TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, OR IF YOU ARE A DIRECT COMPETITOR WITHOUT OUR CONSENT TO USE THESE SERVICES OR IF YOU PLAN ON USING THE SERVICES FOR THE SOLE PURPOSE OF MONITORING THE QUALITY OR PERFORMANCE OF THE SERVICES OR FOR ANOTHER BENCHMARKING OR COMPETITIVE PURPOSE, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
IF YOU USE THIS SERVICE, YOU ARE PROHIBITED FROM PROVIDING OR USING DATA IN CONJUNCTION WITH THIS AGREEMENT THAT IS SUBJECT TO ANY RELEVANT FEDERAL LAWS OF THE UNITED STATES RELATED TO DATA PRIVACY OR DATA PROTECTION SUCH AS (THE GRAMM-LEACH-BLILEY ACT AND THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA), OR THE EU LAWS SUCH AS GDPR RELATING TO EU CITIZENS OR DATA RELATED TO ANY DATA PRIVACY OR DATA PROTECTION LAWS.
This Agreement may be updated by Us from time to time and, if it is updated, we will notify you and either provide you with a copy via email or direct you to the updated version posted on Our web site. Each such update is effective between You and Us as of the date of Your accepting this Agreement again in any manner specified above in our notice or automatically upon Your subsequent or continued engagement of Us for or use of Our Services or Subscription.
Table of Contents
2. Free Trial
3. Subscription of Services
4. Use of Services and Content
5. Non-Hoku Providers
6. Fees and Payment for Purchased Services
7. Proprietary Rights and Licenses
9. Representations, Warranties, Exclusive Remedies and Disclaimers
11. Limitation of Liability
12. Term and Termination
13. Notices, Governing Law, Jurisdiction and Waivers
14. General Provisions
In this Agreement:
1.1. "Affiliate" means any entity which is at least majority owned directly or indirectly by a common shareholder or directly or indirectly controls, is controlled by, or is under common control with the subject entity or person, and for avoidance of doubt includes its direct and indirect parent entities and persons. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity or the right to appoint a majority of the directors (or its equivalent) of such entity.
1.2. “Agreement” means this Master Subscription Agreement and any related Purchase Order, including all attachments, annexes, schedules and other ancillary documents that relate to it, as well as any other attachments, annexes, schedules and other ancillary documents referred to in this Agreement.
1.3. “Beta Services” means Hoku services or functionality that may be made available to Clients to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
1.4. "Client" means You and, if applicable, the company or other legal entity which has contracted with HOKU for any Purchased Service subscriptions to use the applicable Service(s) or such other products and services provided by HOKU, subject to the terms and conditions of this Agreement.
1.5. “Content” means any data or information obtained by Hoku from publicly available sources or third party content providers and made available to Clients along with the Services, Beta Services or pursuant to an Purchase Order, as more fully described in the Documentation.
1.6. “Data Protection & Privacy Laws” has the meaning set forth in Section 3.2.
1.7. “Disclosing Party” has the meaning set forth in Section 8.1.
1.8. “Documentation” means the applicable Service’s documentation, and its usage guides and policies, as updated from time to time, accessible via https://www.hokuapps.com/ login to the applicable Service.
1.9. "IP Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.10. “Losses” has the meaning set forth in Section 10.1.
1.11. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.12. “Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, or the Hoku add-ons and any successor websites.
1.13. “Non-Hoku Application” means a Web-based, mobile, offline or other software application functionality that is provided by You or a third party and interoperates with the Service, including, for example, an application that is developed by or for You, is listed on a Marketplace, or is identified as a Hoku component or by a similar designation.
1.14. “Purchase Order” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into a Purchase Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
1.15. “Purchased Services” means Services that You or Your Affiliate purchase under a Purchase Order, as distinguished from those provided pursuant to a free trial or Beta Services
1.16. “Receiving Party” has the meaning set forth in Section 8.1.
1.17. “Services” means the products and services that are ordered by You under this Agreement and any related Purchase Order or provided to You under a free trial or as Beta Services, and made available online by Us, that are offered on a subscription basis, including associated Hoku offline or mobile components, as described in the Documentation. “Services” exclude Content and Non-Hoku Applications.
1.18. “Statements” has the meaning set forth in Section 9.4.
1.19. “Taxes” has the meaning set forth in Section 6.6.
1.20. “User” means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
1.21. “We,” “Us” or “Our” means the HokuApps LLC and shall include its Affiliates.
1.22. “You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have signed Purchase Orders.
1.23. “Your Data” means all electronic data and information submitted by or for Client in the course of the use of the Services or other products and services of HOKU, excluding Content and Non-Hoku Applications.
2. FREE TRIAL
2.1. If You register on Our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or (c) termination by Us in Our sole discretion prior to the initially stated end of the free trial period offered by Us. Additional free trial terms and conditions may appear on the free trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.2. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES REQUIRED BY OR SUGGESTED BY OR FOR YOU AND CREATED OR IMPLEMENTED BY US, DURING YOUR FREE TRIAL WILL BE OUR PROPERTY AND WILL NOT BE AVAILABLE TO YOU AFTER THE EXPIRY OR TERMINATION OF THE FREE TRIAL PERIOD UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, IN EACH CASE, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL NO LONGER BE AVAILABLE TO YOU.
3. SUBSCRIPTION OF SERVICES
3.1. Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Purchase Orders, (b) provide applicable Hoku standard support for the Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts in an attempt to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, problems caused by a Non-Hoku Application, denial of service attacks, or any other type of unintentional failure or breach affecting the Services.
3.2. Protection of Your Data. We act solely as a data intermediary in the storing and processing of personal data and other data provided by You in the course of providing the Services to You. We are not obliged to ensure Your compliance with the applicable personal data protection or privacy laws, including but not limited to the Personal Data Protection Act of Singapore 2012, the General Data Protection Regulation 2016/679, the California Consumer Privacy Act (as amended), or any other governmental privacy laws of any other jurisdictions, in each case if applicable (the “Data Protection & Privacy Laws”). You remain solely responsible for compliance with applicable Data Protection & Privacy Laws in relation to Your usage of the Services. Your acceptance of this Agreement shall be treated as Your consent for Our usage of Your Data and any other information provided by You directly to Us or through use of the Services or observed by Us in relation to Your use of the Services. You shall inform Us immediately if You become aware of any breach involving personal data or breach of protection or privacy laws by You or others in the course of or during the period of Your use of the Services.
3.3. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.4. Beta Services. From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services or not in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered to be “Services” under this Agreement, however, all restrictions, Our sole ownership, all reservation of rights by Us, and Your obligations concerning the use of the Services and the use of any related Non-Hoku Applications and Content, shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date, the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation, or termination by Us in Our sole discretion at any time. We may discontinue Beta Services at any time in Our sole discretion and may choose to never make them generally available. We have no obligation to make any or all Beta Services available to You. Even if we do make such Beta Services available to You, we have no obligation to continue making such Beta Services available to You, or to make subsequent Beta Services available to You, even if requested by You. We will have no liability for any harm or damage to You that may arise out of or in connection with a Beta Service.
4. USE OF SERVICES AND CONTENT
4.1. Subscriptions. Unless otherwise provided in the applicable Purchase Order or Documentation, (a) Services and access to Content are purchased as subscriptions, (b) additional subscriptions may be added during a subscription term at whichever pricing parameters that We deem are applicable at the time You request such additional subscriptions, prorated for the portion of the term of the base subscriptions remaining at the time the subscriptions are added, and (c) any the term of any added subscriptions will terminate on the same date as the underlying base subscriptions terminate and may be renewed on the same periodicity as the underlying base subscriptions.
4.2. Usage Limits. Services and Content are subject to usage limits specified in Purchase Orders and Documentation or related pricing documentation we may provide to You at the time of signing up for one or more subscriptions. We will bill You at a premium rate for any usage that exceeds the limit. Unless otherwise specified, (a) a quantity in a Purchase Order relating to the maximum number of Users covered for the Services and related price specified may not be exceeded except by purchasing an additional subscription that includes the higher number of authorized users (no refund for the use by a lower number of authorized users than the maximum allowed will be provided), (b) an authorized user’s password may not be shared with any other individual, and (c) except as set forth in a Purchase Order, an authorized user’s identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content after You provide the updated authorized user information to Us in writing. If You exceed a contractual usage limit and request our assistance to reduce Your usage to a point that is within the limit purchased, We may work with You to in an attempt to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by the usage limit specified in the applicable Purchase Order, You will execute a new Purchase Order for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with the provisions of Section 6.2 (Invoicing and Payment).
4.3. Your Responsibilities. You will (a) be responsible for all authorized users’ compliance with this Agreement, Documentation and Purchase Orders, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Beta Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Beta Services and Content only in accordance with this Agreement, Documentation, Purchase Orders and applicable laws and government regulations, including all applicable Data Protection & Privacy Laws, and (e) comply with terms of service of any Non-Hoku Applications which You use as part of or in conjunction with the Services or Beta Services or Content.
4.4. Usage Restrictions. You will not (a) make any Service or Beta Services or Content available to, or use any Service or Beta Services or Content for the benefit of, anyone other than You or other authorized users, unless expressly stated otherwise in a Purchase Order or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Beta Services or Content, or include any Service or Beta Services or Content in a service bureau or outsourcing offering, (c) use a Service or Beta Services or Non-Hoku Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or any applicable Data Protection & Privacy Laws, (d) use a Service or Beta Services or Non-Hoku Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or Beta Services or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Beta Services or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Beta Services or Content in a way that circumvents a contractual usage limit, or use any of Our Services or Beta Services to access or use any of Our intellectual property except as permitted under this Agreement, a Purchase Order, or the Documentation, (h) copy a Service or Beta Services or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in a Purchase Order or the Documentation, (j) frame or mirror any part of any Service or Beta Services or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Beta Services or Content in order to build a competitive product or service or to benchmark with a Non-Hoku product or service, or (l) reverse engineer any Service or Beta Service (to the extent such restriction is permitted by law). Any use of the Services or Beta Services in breach of this Agreement, Documentation or Purchase Orders, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services or Beta Services.
4.5. External-Facing Services. If You subscribe to a Service (or are provided access to a Beta Service) for sending electronic messages or for the creation and hosting of, or for posting content on, external-facing websites, such use is subject to Our policies from time to time as may be applicable to a Service or a Beta Service (“External Facing Services Policies”), and You are solely responsible for complying with applicable law in Your use of any cookies or other tracking technologies.
4.6. Removal of Content and Non-Hoku Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We will notify You and You will immediately respond by promptly removing such Content from Your systems. If We receive information that a Non-Hoku Application used with or as part of or in conjunction with Service or Beta Service by You may violate Our External-Facing Services Policies or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-Hoku Application or modify the Non-Hoku Application to eliminate the potential violation. If You do not take required action in accordance with the above or if any actions You do take do not adequately eliminate the violation, We may disable the applicable Content, Service, Beta Service and/or Non-Hoku Application until the potential violation is eliminated.
5. NON-HOKU PROVIDERS
5.1. We or third parties may make available third-party products or services that are intended to interoperate with the Services, including, for example, Non-Hoku Applications and other software products or services. Any use by You, or acquisition by You, of such products or services, and any exchange of data between You and any third party provider, product or service is solely between You and the applicable third party provider. We do not warrant or support Non-Hoku Applications or other third party products or services, whether or not they are designated by Us as “certified” or otherwise, unless expressly provided for in a Purchase Order.
5.2. Non-Hoku Applications and Your Data. If You choose to use a Non-Hoku Application with a Service or Beta Service, You grant Us (and the third party provider) permission to allow the Non-Hoku Application to access Your Data as required for the interoperation of that Non-Hoku Application with the Service or Beta Service. We are not responsible for any Losses associated with any claim relating to disclosure, modification, deletion of Your Data resulting from access by such Non-Hoku Application or its third party provider.
5.3. Integration with Non-Hoku Applications. The Services or Beta Services may contain features that are able to interoperate with Non-Hoku Applications. To use such features, You may be required to enter into licenses with third party providers in order to obtain access to such Non-Hoku Applications, and You may be required to grant Us access to Your account(s) on, or Your Data provided to, such Non-Hoku Applications. We cannot guarantee the continued availability of such Service or Beta Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Hoku Application ceases to make the Non-Hoku Application available for interoperation with the corresponding Service or Beta Service features in a manner acceptable to Us.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fees. You will pay all fees specified in Purchase Orders. Except as otherwise specified herein or in the applicable Purchase Order, (i) fees are based on Purchased Services and purchased Content subscriptions and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the Services and authorized user quantities purchased cannot be decreased during the relevant subscription term.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information or may opt to pay us by check or wire transfer directly into our bank account. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Purchase Order for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). If You opt to pay us by wire transfer, we will provide you with our bank wiring information and You authorize Us to collect fees for all Purchased Services listed in the Purchase Order for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Purchase Order. If the Purchase Order specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Purchase Order. Unless otherwise stated in the Purchase Order, invoiced charges are due net 15 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3. Overdue Charges. If any invoiced amount is not received by Us by the due date (if paying by check, funds must clear by the due date to be considered “received by Us by the due date”), then without limiting Our rights or remedies, (a) those charges may accrue late interest fee at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Purchase Orders on payment terms on a schedule that results in payment further in advance or in a timeframe from invoicing that is shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our Services is 10 or more days overdue (or 7 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card or for which you have opted for bank wire transfer of funds), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under this or such other agreement so that all such obligations become immediately due and payable, and suspend Our Services to You until such amounts are paid in full.
6.5. Payment Disputes. We will not impose a late interest fee on late amounts under Section 6.3 (Overdue Charges) or suspend Your access to Services and Content under Section 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute, provided that if the amount in dispute exceeds one month charges in the aggregate, we shall have the right to terminate the Agreement or suspend performance of any services under this Agreement until the dispute is fully resolved.
6.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are only responsible for taxes assessable against Us based on Our income, property and employees.
6.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7.1. Ownership of Intellectual Property. We, Our Affiliates and Our licensors own all rights, titles and interests in and to all IP Rights including copyright rights, trademark rights, patent rights, design rights, trade secret rights in and to the Services, Beta Services, and Content that resides on or is used within Our site (except for Your Data), as well as to any work output, and all further developments, updates, upgrades, enhancements, modifications or derivative works which are developed on or out of the Services or Beta Services by any party. We retain all ownership rights (including all intellectual property rights) in the Services and Beta Services associated with this Agreement. No rights are granted to You hereunder other than as expressly set forth in Section 7.2 herein. In the event that You make suggestions to Us regarding features, functionality or performance or translations of the Services or Beta Services ("Suggestions"), such Suggestions shall be and remain the sole and exclusive property of Ours. We have no obligation to implement any Suggestions. You hereby assign to Us any and all rights, title and interest You might have in and to any such Suggestions including all associated IP Rights.
7.2. Access to and Use of Services, Beta Services, and Content. You have the right to access and use applicable Services and Beta Services and Content solely for Your internal business purposes and subject to the terms of applicable Purchase Orders, this Agreement and the Documentation, during the applicable term. Nothing in this Agreement, the applicable Purchase Order or Documentation, will be deemed to restrict or limit Our right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party.
7.3. License to Your Data and Applications. You hereby grant Us, Our Affiliates and applicable contractors a worldwide, irrevocable, fully paid up non-exclusive, license to use, host, copy, transmit, display, and create derivative works of Your Data, and any Non-Hoku Applications and program code created by or for You using a Service or Beta Service, or for use by You with the Services or Beta Services. For avoidance of doubt, any derivative works of Your Data that are created by Us or You shall be and remain the sole property of Hoku. You hereby assign to Us any and all rights, title and interest You might have in and to any such derivative works including all associated intellectual property rights.
7.4. Ownership of Data. Any background data that We use or provide as part of the Services under this Agreement including any Purchase Order and SOWs that specifically refer to and specify that they are part of this Agreement, including all cited times, schedule information including milestones and all deliverables (“Our Background Data”) is, and shall remain Our sole property. We hereby provide to You a limited license to use Our Background Data solely in connection with Your use of the Services. Any data provided by You to Us in relation to or during use of the Services We provide to You under this Agreement, including any data entered into or provided in association with the Services including any employee and contractor information, is, and shall remain, Your sole property (“Your Data”); except that, any of Your data (including any derivative works of Your data that You or We create) that we use to provide, construct, improve, build, modify, redesign, patch, fix or repair, our Services or any of other products or services, including any specifications You provide and Suggestions You provide, whether We use all or part of such data to provide or as part of the Services (the “Implemented Data”) shall be Our property. You hereby irrevocably assign all right, title and interest in and to the Implemented Data to Us. For avoidance of doubt, We hereby provide to You a limited license to use Implemented Data solely in connection with Your use of the Services. You shall not have any interest in the Implemented Data except the license provided by Us hereunder and we shall be the sole owners of all Implemented Data.
7.5. Restrictions. You hereby represent, warrant and covenant that You (i) have the authority to sign this agreement for an entity (if applicable), (ii) you are not a direct competitor to US and, if you are, You have obtained Our written permission to use our Professional Services (if applicable), (iii) You will not use the Professional Services for the sole purpose of monitoring the quality or performance of the Professional Services or for any other benchmarking or competitive purpose, (iv) You will not use the Processional Services in conjunction with or otherwise provide data subject to any Data Protection & Privacy Laws, and (v) You will only use the Services provided by Us under this Agreement if You are allowed and, if so, only as allowed under the terms and conditional of this Agreement and You shall only use Our Background Data and Our Implemented Data as allowed under the terms of this Section 7 and this Agreement.
8.1. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Purchase Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Except as allowed relating to the ownership rights and licenses included in Section 7 herein, the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Purchase Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Purchase Order to a subcontractor or Non-Hoku Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so. Correspondingly, each party represents and warrants that the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate actions on its behalf, and this Agreement has been duly executed and delivered and is a legal, valid and binding Agreement. You hereby warrant that no data or material You provide for use with or in connection with the Services or Beta Services infringes, misappropriates or misuses, or will infringe, misappropriate and misuse, any third party's IP Rights, including any copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy, or violate any applicable law, statute or regulation for its subscription term.
9.2. Warranty Disclaimers. THE SERVICES (INCLUDING ANY FREE SERVICES) AND BETA SERVICES AND CONTENT ARE AND WILL BE PROVIDED “AS-IS” AND “WITH ALL FAULTS” AND WE HEREBY SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY THE SERVICES (INCLUDING ANY FREE SERVICES) AND BETA SERVICES AND CONTENT, INCLUDING THAT RELATED TO ANY THIRD-PARTY HOSTING PROVIDERS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.3. Non-Solicitation. During the existence of this Agreement and Your Subscription and for a period of two years after expiry or termination of this Agreement, You shall not directly or indirectly, employ, solicit for employment, or advise or recommend to any other person that such other person employ or solicit for employment, any person employed by or engaged by or for Us (whether as a consultant, contractor, employee or otherwise) during the period of Your subscription with Us.
9.4. Non-Disparagement. You will not, during the term of this Agreement and any applicable Purchase Order and thereafter, make, or cause to be made, any statements, observations or opinions, or communicate any information (whether oral or written) (“Statements”) including Statements to the press, media, social media (including but not limited to Facebook, LinkedIn, Glassdoor) or any public forum (real or virtual), to any clients, customers, contractors of Ours or anyone else, that disparage or are likely in any way to harm Our reputation or Our affiliated entities or any of Our or their directors, officers, agents or employees. Breach of this clause will constitute material breach of this Agreement.
10.1. Indemnification. You shall indemnify, defend and hold Us and Our Affiliates and their respective representatives harmless from and against any and all loss, damage, liability, suits, actions, proceedings, demands, damages, judgments, liabilities, claims, and expenses (including, without limitation, reasonable attorneys' fees, expert fees and court costs, direct, indirect and consequential damages, and the costs of investigation and defense and settlement awards) (collectively, the "Losses") relating to, arising from, or in connection with (i) Your or Your Affiliates', or any of their representatives' performance under this Agreement, (ii) the breach or violation by You or Your Affiliates, or any of their representatives of any representation, warranty, covenant or obligation under this Agreement; (iii) any act or omission by You or Your Affiliates, or its representatives in connection with their actions, omissions, obligations and agreements hereunder; (iv) noncompliance with any applicable laws, including any Data Protection & Privacy Laws, (v) any third party products or services used by You or any products or Services offered by You, and (iv) any allegation by a third party alleging that any information, design, specification, instruction, software, Your Data or other material furnished by or for You hereunder infringes or misappropriates such third party’s intellectual property rights.
11. LIMITATION OF LIABILITY
11.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOSS OF PROFITS OR REVENUE, OR LOSS OF DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE TO YOU FOR ANY CAUSE OF ACTION (CONTRACT, TORT OR OTHERWISE) FOR MORE THAN THE TOTAL AMOUNT PAID TO US BY YOU DURING THE THREE (3) MONTH PERIOD PRIOR TO THE DATE THE ALLEGED CLAIM AROSE, WHETHER ARISING IN A SINGLE OR MULTIPLE CAUSES OF ACTION.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
12.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Purchase Order. Except as otherwise specified in a Purchase Order, subscriptions will automatically renew for additional periods equal to the expiring subscription term, unless (i) You give Us written notice of non-renewal at least 60 days before the end of the relevant subscription term in which case the subscription shall terminate effective on the last date of the end of the then-current term, or (ii) We give You written notice of termination in which case the subscription shall terminate effective on the date of written notice to You. The per-unit pricing during any renewal term will increase by an amount determined by Us in our sole discretion above the applicable pricing for the prior term. Except as expressly provided in the applicable Purchase Order, renewal of promotional or one-time priced subscriptions will be at Our applicable price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at a new specified rate that We determine in Our sole discretion without regard to the prior term’s pricing.
12.3. Termination. We may terminate this Agreement at any time and for any reason effective on the date of written notice to You. You may terminate effective on the last day of the end of the then-current subscription term specified on the applicable Purchase Order by providing Us with a written notice of non-renewal at least 60 days prior to the end of the then-current subscription term.
12.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3 (Termination), You shall not be entitled to any refund and You will be obligated to pay all fees set out in the applicable Purchaser Order that apply until the end of the then-current term (unless such fees were already paid in advance). If this Agreement is terminated by Us in accordance with Section 12.3 for convenience (and not for cause or breach by you), You will pay any unpaid fees covering the remainder of the subscription term of all Purchase Orders. Subject to the foregoing, in no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination or due Us for the period after the date of termination through the end of the then-current subscription term.
12.5. Your Data Portability and Deletion. Upon request by You or prior to or upon termination or expiration of this Agreement and all applicable Purchase Orders, We will make Your Data, in Our possession available to You for export or download. After termination or expiration of this Agreement and all applicable Purchase Orders, We will have no obligation to maintain or provide You with any of Your Data and We may thereafter delete or destroy all copies of Your Data in Our systems.
12.6. Surviving Provisions. The sections titled “Removal of Content,” “Non-Hoku Applications,” “Fees and Payment for Purchased Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Representations, Warranties, Exclusive Remedies Disclaimers, and Waivers,” “Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion,” “Surviving Provisions,” and “General Provisions” will survive any termination or expiration of this Agreement. This Agreement and any applicable Purchase Orders do not supersede, release, waive, amend, or in any way alter any release or waiver You have given to Us or in any way release You from any obligation You owe Us.
13.1. Governing Law. This Agreement and any disputes, controversy or claim arising out of or in connection therewith shall be governed by and construed in accordance with the laws of the State of New York without regard to conflict or choice of laws principles. Any dispute arising out of or in connection with this Agreement including any question regarding its existence, validity or termination, shall be referred to and finally resolved by the courts situated in County of New York, State of New York.
13.2. Equitable Reliefs. Money damages may not be an adequate remedy if Sections relating to Confidentiality, and Non- solicitation are breached by the Client and, therefore, Company may, in addition to any other legal or equitable remedies available against the Client, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety.
13.3. Basis of Bargain. Each Party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material, form the basis of this Agreement and that they have been taken into account and reflected in determining the consideration to be given by each Party under this Agreement and in the decision by each Party to enter into this Agreement.
13.4. Remedies. Except as otherwise set forth in this Agreement, Our rights and remedies under this Agreement are cumulative and not exclusive of any remedies provided by law. Our failure at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or equity, or to exercise any option herein provided will in no way be construed to be a waiver of such provisions, rights, remedies, or options or in any way to affect the validity of this Agreement.
13.5. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable forum. The parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods from this Agreement.
13.6. Disputes. The parties agree in good faith to use reasonable efforts to resolve any and all conflicts and controversies between them relating to this Agreement informally and amicably between themselves before submitting any such matter for adjudication.
13.7. Notices. Any notice required or permitted to be given under this Agreement must be in writing and will be deemed effective:
(i) if given by personal delivery, upon such personal delivery;
(ii) if given by internationally-recognised courier or mail service, at the time that the notice is delivered to the receiver's premises according to the tracking records of the courier or mail service; or
(iii) upon delivery by facsimile or electronic transmission by verified electronic transmission receipt, in each case with a courtesy copy sent by email.
13.8. Addresses. The addresses for notice for each party are the respective addresses of the parties set forth in the Purchase Order. Either party may change its address for notice by written notification to the other party.
13.9. WAIVER OF JURY TRIAL. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, OR RELATING TO, THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.10. WAIVER OF CLASS ACTION TYPE RELIEF. ALL CLAIMS BROUGHT BY YOU MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY OR IN THE CAPACITY AS A SINGLE CLIENT, AND NOT AS A CLASS MEMBER OR PLAINTIFF IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE CLIENT’S CLAIMS.
14. GENERAL PROVISIONS
14.1. Entire Agreement and Order of Precedence. This Agreement and any applicable Purchase Order (together with the documents referred to herein) constitutes the entire agreement between You and Us in relation to the transactions referred to herein and supersedes all prior and contemporaneous agreements (including any previously executed confidentiality and non-disclosure agreements), proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by Us. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Purchase Order, (2) this Agreement, and (3) the Documentation.
14.2. Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent (not to be unreasonably withheld). We may assign this Agreement to any entity at any time in our sole discretion. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.4. Third-Party Rights. A person who is not a party to this Agreement has no rights under this Agreement.
14.5. Use of Name. We shall have the right to publish any case study and include therein Your name and logo therein and You expressly allow us to use your name and logo identifying you as a customer of Us and allow Us to use screen shots of you application, provided, we will use all reasonable efforts not to include or disclose any confidential information belonging to You that may be included in the applications.
14.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of any other right under this Agreement.
14.7. Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force.