LAST MODIFIED: FEBRUARY 5, 2021
Hub Master Service Agreement
This Master Service Agreement (the “Agreement”) is a legal agreement between you as either an individual or a legal entity (“Customer” or “You”) and Hub Technical Sales Inc. (“Hub” or “We”), located at 3527 Mt. Diablo Blvd. Suite 285, Lafayette, CA 94549, and includes the terms and conditions below (the “Terms”), together with the Addendum and Exhibits referenced therein, and any Order or statement of work signed by the Parties that references this Agreement. Hub and Customer are each a “Party” and together are the “Parties”. All capitalized terms used in the Exhibits attached hereto, which are not defined, shall have the meanings provided in the Terms, and all capitalized terms used but not defined in the Terms have the meanings provided in the applicable Order.
BY CLICKING THE ACCEPT BUTTON, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, DO NOT CLICK THE ACCEPT BUTTON. IF YOU CLICK THE ACCEPT BUTTON AND USE THE SERVICES, THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE FULLY ACCEPTED BY YOU. If you agree to these terms on behalf of an organization, You hereby represent to Hub that You are authorized to accept these terms on its behalf.
IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, CLICK THE “DECLINE” OR “CANCEL” BUTTON AND DO NOT USE THE SERVICES
1.1. “Admin User” means an Authorized User who has access to certain additional features and functionalities of the Hub Services to monitor and administer Your Account (defined in Section 2.1 of these Terms).
1.1. “Authorized User” means Customer or an employee, contractor, or agent of Customer who is authorized to use the Hub Services and who has access to the Hub Services via a unique username and password under Your Account.
1.2. “Hub Services” means the Hub online communication application accessible via our website and mobile applications.
1.3 “Initial Term” means the period following the Services Start Date as described in Section 1 of the initial Order.
1.4. “Intellectual Property Rights” means: (i) copyrights and other rights associated with works of authorship; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; and (v) all registrations, applications, renewals, extensions, continuations, divisions, or reissues now or in the future.
1.5 “Order” means any Services Order Form signed by the Parties that references this Agreement and describes the services to be provided by Hub and the fees that will be paid by Customer.
1.6. “Representatives” means officers, employees, contractors, or representatives of a Party
1.7“Services” means the services provided to You by Hub as indicated in the applicable Order, including the Hub Services and Support (as described in Exhibit 1, attached hereto) and as applicable any professional services set forth in any applicable statement of work.
1.8. “Service Fees” means the fees Hub charges and You pay for the Services as specified in the applicable Order.
1.9. “Software” means any and all software and tools (including updates) provided to Your Authorized Users by Hub to facilitate use of or access to the Hub Services.
1.10. “Your Data” means any content, materials, software, date, or other information that Your or Your Authorized Users provide to Hub through the Hub Services.
- SERVICES AND SOFTWARE
2.1. We will provide the Services to You in accordance with the applicable Order and these Terms. As of the Services Start Date You will receive access to an Hub Services account (“Your Account”). To use the Services You must link at least one third party email account to Your Account, but may link no more email accounts than the total number of Your Authorized Users. You will keep all information related to Your Account current and promptly notify us of any changes by sending an e-mail to firstname.lastname@example.org.
2.2. Some features and functionalities of our Hub Services may require Your Authorized Users to download and use our Software. During the Term, and subject to Your payment of all applicable Service Fees, Hub hereby grants You a limited, nonexclusive, nontransferable, nonsublicensable, revocable right and license to (i) access and use the Hub Services via a web browser or web-enabled device and (ii) use the Software solely for the purposes of accessing and using the Services. If we provide You with any downloadable Software under an open source license, we will only provide such Software that is governed by permissive open source license(s), as currently listed at http://www.Hub.io/open-source-software-disclosure/.
2.3. We may modify the Services or update the Software from time to time without notice to You. We will use commercially reasonable efforts to notify You in advance if a change is material, other than those changes which enhance or extend any features or functionality of the Services or Software.
2.4. You are solely responsible for the acts and omissions of Your Authorized Users, including their use of the Services, Software, and Your Data. You agree that You will only permit Authorized Users to access the Hub Services and that You and Your Authorized Users will maintain the security of their usernames and passwords. You will notify Hub immediately if You suspect or become aware of any unauthorized use of the Services or if an Authorized User’s username or password is lost or stolen.
2.5. You and Your Authorized Users must not: (a) use the Hub Services to provide services to third parties or otherwise reproduce, license, sell, rent, lease, outsource, act as service bureau, or sublicense the Hub Services or Software; (b) use the Hub Services or Software (including by uploading Your Data, downloading or sharing other content or information, or emailing or communicating with others through the Hub Services) in any manner that is harmful, infringing, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, is a hate crime, or otherwise violates the rights of another or does not comply with applicable law; (c) except as permitted by applicable law, decompile, decipher, disassemble, translate, modify, prepare derivative works of, reverse engineer or otherwise attempt to access or derive the source code or other trade secrets from the Hub Services or Software; (d) interfere with or disrupt, disable, damage, impair, or overburden the Hub Services or Software, including by transmitting viruses or other malicious code or using the Hub Services to spam others; or (e) access the Hub Services or Software to (i) build a competitive product or service or (ii) copy any features, functions, or graphics of the Hub Services or Software. In addition, You shall not cause or permit a third party to do any of the foregoing.
- YOUR DATA
3.1. Your Data is and will remain Your property. You hereby grant Hub a worldwide, limited, revocable, non-exclusive right and license to use and reproduce Your Data solely for the purposes of providing the Services to You, and providing Support and analysis as further described below. For example, we may use Your Data to make recommendations and update versions of Your Authorized Users’ address books, calendars, social media contacts, and phone call histories in the Hub Services. We may also have access to and see Your Data when we provide Support or if we provide other assistance or training to You or Your Authorized Users.
3.3. If Your Authorized Users choose to share Your Data with third parties, You are solely responsible for that disclosure, and what any third parties do with Your Data. Likewise, You are solely responsible for any actions Your Authorized Users take with respect to Your Data, including deleting or corrupting Your Data. You acknowledge that We are not responsible for the disclosure of Your Data by You or Your agents (including Your Authorized Users), to any third parties.
3.4. Subject to Hub’s obligations regarding Your Data set forth in Section 3.5 of these Terms, You are solely responsible for Your Data, including the content, accuracy and integrity of Your Data and for correcting errors and omissions in Your Data. You acknowledge that Hub has the right has no obligation to monitor any information on the Hub Services and that we are not responsible for the accuracy, completeness, appropriateness, or legality of Your Data or any other information or content You may be able to access using the Services.
3.5. Hub will provide the Services in compliance with the Hub Information Security & Data Protection Addendum attached hereto as Addendum A, and will maintain and enforce physical and logical security procedures with respect to its access and maintenance of the Hub Services and any of Your Data stored for the provision of the Services. You acknowledge that if You wish to protect Your Data when You are transmitting it to Hub, it is Your responsibility to use a secure encrypted connection to do so.
3.6 You represent and warrant that (i) You have the authority and right to transmit Your Data to Hub; and (ii) the use of Your Data under this Agreement will not infringe the Intellectual Property Rights or other proprietary rights of any third party.
3.7 Hub may disclose Your Data as required by applicable law or by proper legal or governmental authority. Hub shall give You prompt notice of any such legal or governmental demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure, at Your expense.
- PAYMENT, TAXES
4.1. Hub will invoice You for amounts due under the Agreement and You will pay all undisputed Service Fees as specified in the applicable Order. Unless the Customer identifies any disputed amounts within ten (10) days of receipt of invoice, such invoice shall be deemed undisputed. In the event of a dispute, the Parties agree to work together in good faith to resolve such dispute. If the dispute is regarding a portion of an invoice, the undisputed portion shall remain due and payable in accordance with the Terms of this Agreement.
4.2. You will pay all applicable sales, use, service, value-added, consumption or other taxes associated with the Services You purchase. Hub will pay all taxes on its income and all taxes and insurance associated with its personnel.
4.3. For all Service Fees not paid when due, You shall pay an additional charge equal to the lesser of one and one-half percent (1.5%) of the invoiced amount or the maximum amount permitted by law per month or partial month, except that these additional fees will not apply to unpaid amounts that You are disputing in good faith. You shall also reimburse Hub for all expenses incurred by Hub in exercising our rights under this Agreement or applicable law with respect to a default in payment by You, including reasonable attorneys’ fees and the fees of any collection agency retained by Hub.
4.4 Except as otherwise provided under this Agreement, all Service Fees are final and no Service Fees paid or payable hereunder are refundable.
4.5. After the Initial Term, the Service Fees are subject to change and may be changed upon email notice to You at least sixty (60) days prior to the start of any Renewal Term (as defined below).
4.6. Unless legally prohibited, Hub may irretrievably delete Your Data if Your account is delinquent, suspended, or terminated for sixty (60) days or more.
- TERM AND TERMINATION; SUSPENSION
5.1. This Agreement will commence on the Order Effective Date of the initial Order and will continue for the Initial Term, after which, subject to Section 4.3 of these Terms, this Agreement and the initial Order will automatically renew for successive terms of twelve (12) months each (each a “Renewal Term”, and together with the Initial Term, the “Term”). Additional, but separate Orders for Services will auto-renew beginning on the anniversary of such Order’s applicable Order Effective Date.
5.2 Except as otherwise expressly permitted in this Agreement, this Agreement may only be terminated as follows: (A) either Party (“Terminating Party”) may terminate this Agreement at any time, immediately upon written notice to the other, if: (i) the other Party attempts to assign this Agreement or delegate any obligation under the Agreement, except as otherwise permitted in Section 11.1 of these Terms; (ii) the other Party, in full or in part, acquires ownership in or control of or is acquired by or becomes controlled by, a direct competitor of Terminating Party; or (iii) any assignment is made of the other Party’s business for the benefit of creditors, or if a petition in bankruptcy is filed by or against the other Party, or if a receiver or similar officer is appointed to take charge of all or part of the other Party’s property, or if the other Party is adjudicated as bankrupt; (B) either Party may terminate this Agreement upon written notice to the other if the other Party is in breach of any material term or condition of this Agreement and the breaching Party fails to cure the breach within thirty (30) days of receipt of notice of that breach; or (C) either Party may terminate the auto renewal of this Agreement and/or any Order upon written notice to the other Party, which notice is given at least thirty (30) days prior to the end of the applicable then-current Initial Term or Renewal Term, as the case may be.
5.3 In addition to any other remedies available at law or in equity, Hub will have the right, in its sole discretion, to immediately suspend Your or any of Your Authorized Users’ access to the Hub Services in the event of (i) acts or omissions of Customer or its Authorized Users not in compliance with the terms of this Agreement; or (ii) Events Beyond Hub’s Immediate Control, as defined in Exhibit 1, attached hereto. We will use commercially reasonable efforts to give You prior e-mail notice of suspension under this Section, and we will resume the Services as soon as possible once the issue necessitating suspension is resolved. We will not be liable to You for any loss, damage or inconvenience suffered as a result of any suspension, unless such suspension is necessitated due to Hub’s breach of its warranty under 7.1 (ii).
5.4 Upon termination of this Agreement, Hub will cease providing the Services and promptly invoice Customer for any unpaid amounts owed, and Customer will pay Hub for all Services rendered and expenses incurred prior to the effective date of termination. To the extent such termination is the result of a material, uncured breach by Hub, You are entitled to a pro-rata refund, as of the effective date of the termination, of any prepayment made by you for any Services not yet performed. Hub will, after sixty (60) days following termination of this Agreement, irretrievably delete Your Data. To the extent termination is not due to Your material, uncured breach of this Agreement (including but not limited to non-payment of any invoice), Hub will provide You with access to Your Data during the sixty (60) days following termination, solely for the purpose of downloading Your Data to Your own data storage systems, if You have given written notice prior to the end of such sixty (60) day period of your request to access Your Data. Excepted from the foregoing is any of Your Data permanently deleted in order to comply with applicable law or to avoid a security breach. You acknowledge that if Your access to the Services is suspended or the Agreement is terminated, You will not have access to Your Data stored on the Hub Services during any period of suspension, or at any time following sixty (60) days after the effective date of such termination. The foregoing notwithstanding, any refund of Service Fees whatsoever under this Agreement shall exclude any one-time professional Service Fees or Service Fees and expenses related to training, and shall be less any Service Fees for Services to be paid in arrears, which have been provided by Hub as of the effective date of the related termination, but which have not yet been paid by Customer.
- NON DISCLOSURE OF CONFIDENTIAL INFORMATION
6.1. During the Term and for a period of four (4) years after termination of the Agreement (except for trade secrets, which shall be held in confidence for so long as they constitute trade secrets, and confidentiality obligations as required by applicable law), each Party (the “Receiving Party”) that receives Confidential Information (as defined below) of the other Party (the “Disclosing Party”) will not use, other than in connection with the provision or receipt of the Services, or disclose to anyone, other Representatives of the Receiving Party with a need to know for purposes of this Agreement and who are subject to confidentiality obligations no less stringent than the terms of this Agreement, any Confidential Information disclosed to the Receiving Party by or on behalf of the Disclosing Party. The Receiving Party will safeguard disclosure of such Confidential Information to the same extent that Receiving Party safeguards its own Confidential Information, but in any case will at a minimum use reasonable care. Upon request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy, certifying in writing to the Disclosing Party the destruction of such Confidential Information, the Disclosing Party’s Confidential Information in its possession or under its control. Notwithstanding the foregoing, Receiving Party may retain a limited number of electronic backup copies of the Confidential Information as are automatically created, retained, and destroyed by its standard backup processes and systems. Receiving Party shall be bound by its obligations of confidentiality under this Agreement for such copies until they are destroyed.
6.2. “Confidential Information” means all information, material and data of the Disclosing Party which (i) is labeled or designated in writing as confidential or proprietary, (ii) the Receiving Party is advised is proprietary or confidential, or (iii) in view of the nature of such information and/or the circumstances of its disclosure, the Receiving Party knows or reasonably should know is confidential or proprietary. Confidential Information includes, without limitation, the terms and conditions of this Agreement, the Services and Software, Your Data, and all information relating to the Disclosing Party’s business plans, marketing plans, customers, technology, employee and organizational information, product designs, product plans and financial information.
6.3. These confidentiality obligations will not apply to any information which (i) is or becomes publicly known without any fault of or participation by the Receiving Party or its Representatives; (ii) was in Receiving Party’s possession prior to the time it was received from Disclosing Party or came into Receiving Party’s possession thereafter, in each case lawfully obtained from a source other than Disclosing Party or its Representatives and not subject to any obligation of confidentiality or restriction on use; (iii) is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the Receiving Party will, unless prohibited by law, notify the Disclosing Party of the requirement of disclosure before making such disclosure and will comply with any protective order or other limitation on disclosure obtained by the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
6.4. Any use or disclosure of the Disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the Disclosing Party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the Disclosing Party may request injunctive or other equitable relief seeking to restrain such use or disclosure.
7.1. Hub warrants that: (i) it will perform the Services in conformity in all material respects with the Hub Information Security & Data Protection Addendum attached hereto as Addendum A, and with the Support and Service Level Agreement, attached as Exhibit 1, attached hereto; (ii) it will provide the Services in a professional manner, consistent with recognized industry standards and good commercial practices ; (iii) it will comply with all applicable law, and be duly licensed and otherwise authorized to provide the Services; and (iv) it has the authority and right to enter into this Agreement and to observe and perform its respective obligations contained in this Agreement.
7.2. Customer warrants that it has the authority and right to enter into this Agreement and to observe and perform its respective obligations contained in this Agreement.
7.3. WITH THE EXCEPTION OF THOSE EXPRESS WARRANTIES MADE IN THIS SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY LAW, HUB DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (I) HUB DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR AND (II) HUB DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE OR SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT YOUR DATA WILL REMAIN PRIVATE OR SECURE.
7.4 Hub will have no obligation or other liability with regard to any error or non-compliance with a warranty that is caused by: (i) modifications to the Software or the Services made by any person or entity other than Hub or its Representatives; (ii) use of the Software or the Services installed in a hardware or operating environment not supported by Hub; (iii) a malfunction of hardware or other equipment; (iv) hardware, software, or other products not provided by Hub; (v) a breach of this Agreement; or (iv) the negligence, misuse, or improper use of the Software or the Services by You or any third party.
- INTELLECTUAL PROPERTY
8.1. You acknowledge that, as between the Parties and except as licensed in Section 2.2 of these Terms, Hub owns and retains all right, title and interest in the Intellectual Property Rights in the Services and Software. You will not acquire any rights, express or implied, in and to the Services other than those specified in this Agreement. Except as licensed under Section 3 of these Terms, You own and retain all right, title, and interest in the Intellectual Property Rights in Your Data.
8.2. You agree that we (or others we authorize) may freely use, disclose, reproduce, license, distribute, or otherwise exploit in any manner any feedback, comments, or suggestions (collectively, “Feedback”) You post in our forums or otherwise provide to us about our Services and Software without any obligation to You, restriction of any kind (including on account of any Intellectual Property Rights), and without paying any compensation to You or any third party. All Feedback will be deemed to be the sole and exclusive property of Hub. Hub does not agree to treat any Feedback as Confidential Information and nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict Hub’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting You or Your Authorized Users. Hub may, in its sole discretion, include such Feedback in a future version of the Software and/or the Services but Hub is not obligated to include such Feedback.
8.3. You acknowledge that information and content accessible through the Hub Services may be protected by Intellectual Property Rights of third parties. The Hub Services may contain links to websites or resources of others, however we do not endorse and are not responsible or liable for the accuracy, availability, content, products, or services of any third party. You are solely responsible and liable for Your use of any third party websites and any third party content or information You copy, share, or download while using the Services. We will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. Such notices should be reported using our Digital Millennium Copyright Act (“DMCA”) Notice Process, as described at https://www.Hub.io/legal/copyright.
9.1. Hub will defend, indemnify and hold harmless Customer and its officers, directors, employees, shareholders, agents, legal representatives, subsidiaries, affiliates, successors and permitted assigns from and against any claim, action, demand or proceeding by a third party (collectively “Claims”) resulting in liability, direct damages, cost, loss or expense, including court costs and reasonable attorney’s fees, and fines and penalties imposed by any governmental entity (collectively “Losses”) to the extent they result from (a) infringement or misappropriation of a third party’s Intellectual Property Rights by the Services or Software; or (b) resulting from the gross negligence, willful misconduct, or fraud of Hub or its Representatives in connection with its obligations under this Agreement. If a Loss is found by a court of competent jurisdiction to have been caused only in part by Hub, then its liability hereunder will be only such amount as is attributable to its fault. Notwithstanding the foregoing, we shall have no liability under this section to the extent that an alleged infringement of Intellectual Property Rights arises from (i) use of the Hub Services and/or Software in combination with other equipment or software not provided or approved by us in writing, if such claim would have been avoided but for such combined use; (ii) any modification to the Software made by You or any other third party not approved by us in writing or permitted under this Agreement; (iii) Your failure to install any Software updates provided by us, if such Claim would have been avoided by the updates; or (iv) use of the Hub Services and/or Software other than in the manner permitted or authorized under this Agreement. In the event that Customer’s right to continue using the Services and/or Software are likely to be enjoined in our sole discretion we may (A) attempt to obtain the right for You to continue to use the Services and Software; or (B) replace or modify the Services and/or Software so that they no longer infringe but function substantially equivalently or (C) if neither (A) or (B) is commercially practicable, we shall have the right to terminate this Agreement and the license granted hereunder, and within thirty (30) days of the return of all Confidential Information to us by You, and return of Your Data to You, refund to Customer all unearned fees paid by Customer, if any, for any Services not yet performed. THE PROVISIONS OF THIS SECTION STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF HUB TO CUSTOMER, AND CUSTOMER’S SOLE REMEDY, WITH RESPECT TO THE INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
9.2. Customer will defend, indemnify and hold harmless Hub and its officers, directors, employees, shareholders, agents, legal representatives, subsidiaries, affiliates, successors and permitted assigns from any Claims resulting in Losses to the extent they result from (a) a claim that Your Data infringes upon or misappropriates a third party’s Intellectual Property Rights; (b) a violation by Customer of applicable law; or (c) a violation by Customer of Section 2.4 of these Terms.
9.3. The Party seeking indemnification under this Agreement will: (i) give the indemnifying Party prompt written notice of the Claim, (ii) tender to the indemnifying Party control of the defense and settlement of the Claim, and (iii) cooperate with the indemnifying Party in defending or settling the Claim. The indemnified Party will have the right to participate in, but not control, at its own expense any indemnification action or related settlement negotiations using counsel of its own choice. Neither Party may consent to the entry of any judgment or enter into any settlement that adversely affects the rights or interests of the other Party without that Party’s prior written consent, which may not be unreasonably withheld.
- LIMITATIONS OF LIABILITY
10.1. SUBJECT TO SECTION 10.3 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE HEREUNDER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS, LOST SALES OR ANTICIPATED ORDERS, OR DAMAGES FOR LOSS OF GOODWILL, EVEN IF A PARTY WAS INFORMED OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
10.2. SUBJECT TO SECTION 10.3 BELOW,THE AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS RELATING TO THE SERVICES OR CONNECTED WITH THIS AGREEMENT, REGARDLESS OF THE DAMAGES THEORY, WILL NOT EXCEED THE FEES PAID OR OWING TO HUB UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. HUB WILL NOT BE LIABLE FOR ANY DAMAGES INCURRED BY YOU TO THE EXTENT ARISING FROM ANY UNAUTHORIZED ACCESS RESULTING FROM YOUR ACTIONS OR ANY THIRD PARTY OTHER THAN HUB’S REPRESENTATIVES.
10.3. SECTIONS 10.1 AND 10.2 OF THESE TERMS NOTWITHSTANDING, IN THE EVENT OF INDEMNIFICATION CLAIMS ARISING FROM SECTION 9.1(c) OF THESE TERMS, THE AGGREGATE TOTAL LIABILITY RELATING TO SUCH CLAIMS OR CONNECTED WITH AND/OR ARISING PURSUANT TO SUCH CLAIMS, REGARDLESS OF THE DAMAGES THEORY, WILL NOT EXCEED ONE HUNDRED THOUSAND U.S. DOLLARS (US$100,000).
10.4. THE LIMITATIONS OF LIABILITY STATED IN SECTIONS 10.2 AND 10.3 ABOVE SHALL NOT APPLY TO THE FOLLOWING:
- LIABILITY FOR PERSONAL INJURY OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT;
- LIABILITY FOR A PARTY’S BREACH OF SECTION 8 (INTELLECTUAL PROPERTY);
- LIABILITY ARISING FROM FRAUD OR MISREPRESENTATION; AND
- YOUR PAYMENT OBLIGATIONS UNDER THE AGREEMENT.
11.1. Neither Party may assign this Agreement, or any of its rights or obligations under the Agreement, without prior written consent of the other Party, provided, however that either Party may assign its rights and obligations to any of its majority-owned affiliates or subsidiaries, or to any successor in interest to all or substantially all of such Party’s business or assets associated with the Services, provided that such successor is not a competitor of the other Party.
11.2. Hub and Customer are independent contractors and this Agreement will not establish any relationship of partnership, employment, agency, joint venture, or franchise between Hub and Customer. Neither Party will have authority, and will not represent that it has any authority, to bind the other.
11.3. Except as otherwise expressly set forth in these Terms, all notices given to the Parties under the Agreement will be in writing and will be given by nationally recognized overnight courier service, certified mail (return receipt requested), facsimile with electronic confirmation or personal delivery, if to Customer at the address indicated on the applicable Order, and if to Hub at:
Hub Technical Sales Inc.
Attn: Legal Notices
3527 Mt. Diablo Blvd. Suite 285
Lafayette, CA 94549
With a copy emailed of even date to: email@example.com
11.4. This Agreement is governed by the laws of the State of Delaware, without regard to its conflicts of law rules. Any legal proceeding arising out of or relating to this Agreement will be brought in the state and federal courts of Contra Costa, California. Each Party consents to the exclusive jurisdiction and venue of such courts. The prevailing party in any legal proceeding shall be entitled to recover their reasonable attorneys’ fees and costs, and You will also pay all costs incurred by Hub to collect undisputed amounts due, including reasonable attorneys’ fees, whether or not litigation is commenced. FOR ALL CLAIMS ARISING FROM THIS AGREEMENT, THE PARTIES IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY.
11.5. Hub may identify Customer as such, in general listings of customers that Hub may make available on its website or in promotional or marketing materials.
11.6. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions will in no way be affected or impaired. A Party does not waive any right under this Agreement by failing to insist on compliance with any term or by failing to exercise any right under this Agreement. Waiver of any provision of this Agreement is effective only if it is written and signed by the Party granting the waiver and will not imply a subsequent waiver of that or any other provision of this Agreement.
11.7. Except as otherwise set forth in this Agreement, the rights and remedies of the Parties under this Agreement are cumulative, and either Party may enforce any of its rights or remedies under this Agreement or other rights and remedies available to it at law or in equity.
11.8. The section headings of this Agreement are for convenience only and have no interpretive value. Any list of examples following “including” or “e.g.,” is illustrative and not exhaustive, unless qualified by terms like “only” or “solely.” This Agreement may be executed by provision of original signatures, or electronically or via facsimile, and in counterparts, which together will constitute one and the same agreement.
11.9. The rights and obligations of a Party which by their nature must survive termination or expiration of this Agreement in order to achieve its fundamental purposes will survive any termination of this Agreement.
11.10. The Services and Software are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). You will not import, export, re-export, transfer or otherwise use the Software or Services in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the Software and Services, You represent that (a) You are not located in any such country or on any such list, and (b) You will not engage in activity that would cause Hub to be in violation of these laws and regulations.
11.11. Neither Party will be liable for any delay or default in its performance of any obligation under the Agreement (other than a payment obligation) caused directly or indirectly by fire, flood, act of God, acts of government (such as shelter-in-place or similar orders), an act or omission of civil or military authority of a state or nation, strike, lockout or other labor problem, inability to secure, delay in securing or shortage of, labor, materials, supplies, transportation or energy, failures of suppliers, or by war, riot, embargo or civil disturbance, breakdown, or destruction of plant or equipment arising from any cause whatsoever, epidemics, or any cause or causes beyond such Party’s reasonable control (collectively, “Force Majeure Events”). This provision will in no way impair either Party’s right to terminate this Agreement.
11.12. This Agreement, constitutes the complete and final agreement of the Parties pertaining to the Services, and supersedes the Parties’ prior agreements, understandings and discussions relating to the Services. No modification of this Agreement is binding unless it is in writing and signed by Customer and Hub. In the event of any conflict or inconsistency between a provision in these Terms and in an Order, the provision in these Terms will govern unless the Order expressly indicates the intent to override the contrary provision in the Terms.
11.13. Nothing in this Agreement is intended or will be construed to confer upon any person or entity (other than the Parties hereto and their respective indemnities) any rights, benefits, or remedies of any kind or character whatsoever, and no person or entity will be deemed a third-party beneficiary under or by reason of this Agreement.
Hub Information Security & Data Protection Addendum
This Hub Information Security & Data Protection Addendum (“Addendum”) is an integral part of the Terms, which together with one or more Orders, form the “Agreement” between Hub Technical Sales Inc. (“Hub”) and the Customer executing the Order (“Customer”), and is made part of the Terms. This Addendum governs the manner in which Hub shall process EU Customer Personal Data (as defined below) and only applies to the extent Hub Processes such EU Customer Personal Data. Except for the changes made by this Addendum, the Agreement remains unchanged and in full force and effect. In the event of a conflict between this Addendum and any other portion of the Agreement, the provision imposing the stricter data protection requirements of any conflicting provision shall control. The parties agree that this Addendum shall replace any existing data processing addendum the parties may have previously entered into in connection with the Hub Services.
Capitalized terms have the meaning given to them in the Terms, unless otherwise defined below.
For the purposes of this Addendum, the following terms and those defined within the body of this Addendum apply.
a) “Applicable Data Protection Law(s)” means the relevant data protection and data privacy laws, rules and regulations to which the Customer Personal Data are subject. “Applicable Data Protections Law(s)” shall include, but not be limited to, the California Consumer Privacy Act of 2018 (“CCPA”) after its effective date on January 1, 2020, and the General Data Protection Regulation (EU 2016/679) (the “GDPR”).
b) “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of personal data.
c) “Customer Personal Data” means Personal Data pertaining to Customer’s users or employees located in the European Union and received or collected by Hub. The Customer Personal Data and the specific uses of the Customer Personal Data are detailed in Schedule 1, as required by the GDPR.
d) “Personal Data” shall have the meaning assigned to the terms “personal data” or “personal information” under Applicable Data Protection Law(s).
e) “Process,” “Processes,” “Processing,” “Processed” means any operation or set of operations which is performed on data or sets of data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.
f) “Processor” means a natural or legal person, public authority, agency or other body which Processes Customer Personal Data subject to this Addendum.
g) “Security Incident(s)” means the unauthorized access, use or disclosure of Customer Personal Data.
h) “Sensitive Personal Data” shall have the meaning assigned to the terms “sensitive data”, “sensitive information”, “special categories of personal data”, or similar term under Applicable Data Protection Law(s) and, as required by Applicable Data Protection Law(s), shall include personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data or biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.
i) “Third Party(ies)” means Hub authorized contractors, agents, vendors and third-party service providers (i.e., sub-processors) that Process Customer Personal Data.
- Data Handling and Access
a) Role of the Parties. As between Hub and Customer, Customer is the Controller of Customer Personal Data, and Hub shall Process Customer Personal Data only as a Processor acting on behalf of Customer.
b) General Compliance by Hub. Customer Personal Data shall be Processed by Hub in compliance with the terms of this Addendum and all Applicable Data Protection Law(s), including the GDPR.
c) General Compliance by Customer. Customer agrees that (i) it shall comply with its obligations as Controller under Applicable Data Protection Law(s) in respect of its Processing of Customer Personal Data and any Processing instructions it issues to Hub and (ii) it has provided notice and obtained (or shall obtain) all consents and rights necessary under Applicable Data Protection Law(s) for Hub to process Customer Personal Data and provide the Hub Services pursuant to the Agreement and this Addendum.
d) Hub and Third-Party Compliance. Hub agrees to (i) enter into a written agreement with Third Parties regarding such Third Parties’ Processing of Customer Personal Data that imposes on such Third Parties data protection and security requirements for Customer Personal Data that are compliant with Applicable Data Protection Law(s); and (ii) remain responsible to Customer for Hub’s Third Parties’ (and their sub-processors if applicable) failure to perform their obligations with respect to the Processing of Customer Personal Data.
e) Authorization to Use Third Parties. To the extent necessary to fulfill Hub’s contractual obligations under the Agreement or any Statement of Work, Customer hereby authorizes (i) Hub to engage Third Parties and (ii) Third Parties to engage sub-processors. Any transfer of Customer Personal Data shall comply with all Applicable Data Protection Law(s). Hub will provide Customer any records of Processing of Customer Personal Data that Processors are required to maintain and provide under Applicable Data Protection Law(s).
f) Right to Object to Third Parties. Hub shall make available to Customer a list of Third Parties upon reasonable request. Hub agrees to notify Customer by email thirty (30) days in advance of any new Third Party. Customer may object within thirty (30) days and the parties will work together in good faith to resolve the grounds for the objection for no less than 30 days, and failing any such resolution, Customer may terminate the part of the service performed under the Agreement that cannot be performed by Hub without use of the objectionable Third Party. If Customer does not object, the Third Party shall be deemed accepted and Hub may start using it.
g) Following Instructions. Hub shall Process Customer Confidential Data only in accordance with the written instructions of Customer or as specifically authorized by this Addendum, the Agreement, or any applicable Statement of Work. Hub will, unless legally prohibited from doing so, inform Customer in writing if it reasonably believes that there is a conflict between Customer’s instructions and applicable law or otherwise seeks to Process Customer Personal Data in a manner that is inconsistent with Customer’s instructions.
h) Confidentiality. Any person authorized to Process Customer Personal Data must agree to maintain the confidentiality of such information or be under an appropriate statutory or contractual obligation of confidentiality.
i) Personal Data Inquiries and Requests. Hub agrees to comply with all reasonable instructions from Customer related to any requests from individuals exercising their rights in Personal Data granted to them under Applicable Data Protection Law(s) (“Privacy Request”). At Customer’s request and without undue delay, Hub agrees to assist Customer in answering or complying with any Privacy Request.
j) Processing of Sensitive Personal Data. Customer agrees that it shall not use the Hub Services to Process Sensitive Personal Data without Hub’s explicit and prior written consent.
k) Sale of Customer Personal Data Prohibited. Hub shall not sell Customer Personal Data as the term “sell” is defined by the CCPA. Hub shall not disclose or transfer Customer Personal Data to a Third Party or other parties that would constitute “selling” as the term is defined by the CCPA.
- EU – U.S. Compliance
a) Cross-Border Data Transfer Mechanism. The parties acknowledge and agree that to the extent Hub Processes any Customer Personal Data under the Agreement in a country that has not been designated as providing an adequate level of protection for Personal Data, Hub shall enter into the then current European Commission Standard Contractual Clauses for Data Processors (2010/87/EU) (the “Standard Contractual Clauses”). The foregoing will not entitle Customer to any termination or cancellation right with respect to the Agreement.
b) Prior Consultation. Hub agrees to provide reasonable assistance at Customer’s expense to Customer where, in Customer’s judgement, the type of Processing performed by Hub is likely to result in a high risk to the rights and freedoms of natural persons (e.g., systematic and extensive profiling, Processing sensitive Personal Data on a large scale and systematic monitoring on a large scale, or where the Processing uses new technologies) and thus requires a data protection impact assessment and/or prior consultation with the relevant data protection authorities.
c) Demonstrable Compliance. Hub agrees to keep records of its Processing in compliance with Applicable Data Protection Law(s) and provide such records to Customer upon reasonable request to assist Customer with complying with supervisory authorities’ requests.
d) Notice of Non-Compliance. Hub shall promptly notify Customer’s Designated POC (as defined below) if it can no longer meet its obligations under this Section 4.
- Information Security Program
Hub agrees to implement appropriate technical and organizational measures designed to protect Customer Personal Data as required by Applicable Data Protection Law(s) (the “Information Security Program”). Further, Hub agrees to regularly test, assess and evaluate the effectiveness of its Information Security Program to ensure the security of the Processing. Hub has comprehensive privacy and security assessments and certifications performed by multiple third parties. Hub is currently pursuing certifications such as SOC2 and ISO27001.
Upon request from Customer, Hub agrees to reasonably cooperate with Customer for the purpose of verifying Hub’s compliance with Applicable Data Protection Law(s).
- Return or Deletion of Data
Upon termination of the provision of the Hub Services, Hub shall within sixty (60) days or any other applicable destruction period set forth in the Agreement, whichever is longer, destroy, or, at Customer’s request, return the Customer Personal Data. Hub may retain Customer Personal Data to the extent that it is required or authorized to do so under applicable law and/or regulation or to the extent Customer Personal Data is archived on Hub’s back-up systems, in which case Hub will securely isolate and protect such data from any further processing, except to the extent required by applicable law and/or regulation.
- Security Incident
a) Security Incident Procedure. Hub will deploy and follow policies and procedures to detect, respond to, and otherwise address Security Incidents including procedures to (i) identify and respond to suspected or known Security Incidents, mitigate harmful effects of Security Incidents, document Security Incidents and their outcomes, and (ii) restore the availability or access to Customer Personal Data in a timely manner.
b) Notice. Hub agrees to provide prompt written notice without undue delay and within the time frame required under Applicable Data Protection Law(s) to Customer’s Designated POC if it knows or suspects that a Security Incident has taken place. Such notice will include all available details required under Applicable Data Protection Law(s) for customers to comply with its own notification obligations to regulatory authorities or individuals affected by the Security Incident.
- Contact Information
Hub and the Customer agree to designate a point of contact for urgent security issues (a “Designated POC”). The Designated POC for both parties are:
Hub Designated POC: firstname.lastname@example.org
Customer Designated POC: the email You entered to use the Services
Schedule 1 to the Hub Information Security & Data Protection Addendum
1.1 Subject Matter of Processing
The subject matter of Processing is the Hub Services pursuant to the Agreement.
1.2 Duration of Processing
The Processing will continue until the expiration or termination of the Agreement.
1.3 Categories of Data Subjects
Includes the following:
- Prospects, customers, business partners and vendors of Customer (who are natural persons)
- Employees or contact persons of Customer’s prospects, customers, business partners and vendors
- Employees, agents, advisors, freelancers of Customer (who are natural persons)
- Customer’s users authorized by Customer to use the Hub Services
1.4 Nature and Purpose of Processing
Includes the following:
The purpose of Processing of Customer Personal Data by Hub is the performance of the Hub Services pursuant to the Agreement.
1.5 Types of Personal Information
Includes the following:
- Identification Data (notably email addresses, usernames and phone numbers)
- Electronic identification data (notably IP addresses and mobile device IDs)
Exhibit 1 to Terms
SUPPORT AND SERVICE LEVEL AGREEMENT
This Support and Service Level Agreement (this “SSLA”) provides the support and service level terms and conditions for the Hub Services and related Software.
- Support. Support, at the level as selected by Customer and as shown in the applicable Order, is available from the Technical Support Engineering Team during normal business hours Monday through Friday, from 5:00 am – 5:00 pm PT for Standard Support, excluding holidays (“Business Hours”). Currently, the holidays Hub observes are: New Year’s Day (January 1st), Martin Luther King, Jr. Day (3rd Monday of January), George Washington’s Birthday/Presidents’ Day (3rd Monday of February), Memorial Day (last Monday of May), Independence Day (July 4th), Labor Day (first Monday of September), Thanksgiving (4th Thursday of November) and the Friday after, and Christmas Day (December 25th). Requests may be submitted on a 24/7 basis via email to email@example.com or via Hub’s in-application chat feature, and will be responded to by the Product Expert Team as follows:
Email First Response
3 hours, if request is submitted prior to 2:30 pm PT, or the following day for requests submitted after 2:30 pm PT (or the following Monday for requests submitted after 2:30 pm PT Friday).
Chat First Response
Chat response time not guaranteed under Standard Support.
“PT” means Pacific Standard Time or Pacific Daylight Time, whichever is currently in effect for the Pacific Time Zone.
- Customer Responsibility. Customer is responsible for ensuring that its hardware and software used to access the Services meet the minimum requirements specified by Hub. Minimum requirements include use of a currently supported browser (Chrome is recommended), a high-speed internet connection, and integration with a compatible customer relationship management system Customizations, installation, or professional services are not included in this SSLA. Hub Support must be able to reproduce an error in order to resolve it. Customers agree to cooperate and work closely with Hub Support to reproduce errors, including conducting diagnostic or troubleshooting activities as reasonably requested and as appropriate.
- Software Updates and Upgrades. Customer will be provided with and agrees to accept, and install if required for provision of the Services, all updates, upgrades, enhancements, and/or new releases to the Hub Services and Software that are generally provided to Hub customers.
- Support Response Guidelines. When submitting a support request Customer must (i) provide Hub with all information necessary for Hub to address the request, and (ii) respond promptly with any information reasonably requested by Hub to clarify the support request. On receipt of the support request, Hub will respond to the request as detailed in Section 1 of this SSLA, and determine the appropriate priority level based on the classifications specified below, and input from Customer. The terms used in the table below are defined as follows: “Action Plan” means a workaround or action plan for addressing the problem; and “Issue” means a failure of the Hub Services to operate in accordance with its then-current technical or user documentation or specifications located at: https://support.hub.inc (“Documentation”).
Severity 1 – Critical Business Impact
Work will start immediately following Hub’s first response if the support request is made via email during Business Hours (or within 60 minutes following Hub’s first response if the support request is made via in-application chat during Business Hours), otherwise at the beginning of the next day’s Business Hours and will continue during Business Hours until a resolution is in place. Status will be communicated every hour during Business Hours, unless the Parties agree otherwise.
Issue has one or both of the following characteristics:
- The Hub Services are not functioning in accordance with the Documentation and are causing mission-critical business operations to be non-operational and no workaround is available.
- Your Data is corrupted due to an Issue in the Hub Services
Note: Hub’s obligations to meet the steps for a Severity 1 Issue are dependent and contingent upon a Customer contact being available to provide information required for problem diagnosis and to test/confirm any resolution.
Severity 2 – Significant Business Impact
Work will start within the next business day following Hub’s first response if the support request is made via email or chat and will continue during Business Hours until a resolution is in place and communicated to Customer.
Issue has one or both of the following characteristics:
- Severely degraded performance due to an Issue in the Hub Services.
- Critical functionality is unavailable, yet the Hub Services can continue to operate in a restricted fashion and there is no workaround available to the Customer. For purposes of clarification, if Authorized Users are temporarily unable to sign into the Hub Services, but the Hub Services otherwise continue to operate in accordance with the Documentation, the Issue is Severity 2.
Severity 3 – Moderate Business Impact
The Issue will be researched and resolution will be communicated to Customer.
Issue has one or more of the following characteristics:
- The Hub Services are not functioning in accordance with the Documentation, but most business operations continue.
- Impacts a limited number of Authorized Users.
Severity 4– Minimal Impact
The Issue will be researched and Severity 4 Issues that are agreed to be fixed will be resolved during a subsequent product release or update. It may be determined, with consultation and input from Customer, that minor Severity 4 items that require a code fix will not be corrected.
Reported shortcoming in Hub Services or Software that has no significant impact to usage and/or availability.
Issues include, but are not necessarily limited to, the following examples:
- Minor spelling errors
- Minor usability issues
- Usage and design issues
- Availability Commitment. Hub commits to the Hub Services being Available (as defined below) 99% of each calendar month, not including planned outages for maintenance purposes for which advance notice is provided to the Customer via in-application notifications (the “Availability Commitment”).
“Available” means the Hub Services are available (following Activation, defined below) 24 hours per day x 7 days a week, measured on a calendar month, less actual downtime for (a) up to four (4) hours of scheduled maintenance per calendar month, performed during the regular planned maintenance window as Hub may reasonably designate from time to time, provided that such window(s) are not scheduled Monday through Friday from 5am to 5pm PT; (b) acts or omissions of Customer, its Authorized Users, or anyone gaining access through its Authorized Users’ usernames and passwords; (c) Customer’s use of hardware and network services, which components are controlled by Customer and whose performance or failure to perform can impair Customer’s connections to the Internet and the transmission of data; and (d) Events Beyond Hub’s Immediate Control (defined below).
“Activation” means the date Customer is provided access to the Hub Services by Hub.
“Events Beyond Hub’s Immediate Control” include (i) the flow of data to or from Hub’s network and other portions of the Internet which depends on the performance of Internet not provided or controlled by Hub; (ii) a service interruption caused by a security threat until the security threat has been eliminated; (iii) a Force Majeure Event (as defined in the Terms) and (iv) emergency maintenance, of which Hub will notify Customer of as soon as is practicable but will first endeavor to remedy the emergency. Urgent maintenance that is necessitated due to Hub’s breach of its warranty under 7.1 (ii) shall not be considered emergency maintenance for purposes of this Section 5.
If the Hub Services fail to meet the Availability Commitment, Customer will escalate through firstname.lastname@example.org. If Hub fails to meet the Availability Commitment for three (3) consecutive calendar months, then within thirty (30) days following the conclusion of the third consecutive calendar month, Customer may terminate the applicable Order(s) by giving Hub thirty (30) days prior written notice of termination, without liability for any cancellation fees, penalties or other damages associated with termination, and Customer shall be entitled to a refund of unearned, prepaid fees, if any, prorated from the effective date of such termination through the end of the applicable prepaid period. Notwithstanding any other term or provision in the Agreement, the remedies stated in this Section 5 are Customer’s sole and exclusive remedies for Hub’s failure to meet the Availability Commitment specified herein.