LAST MODIFIED: December 22, 2020
Thank you for using the Hub Services! These Terms of Service (the “Terms”) and the associated order for Services (the “Order”, and, together with these Terms, the “Agreement”) set out the rights and obligations between Hub Technical Sales Inc. (“Hub”) and you governing your access to and use of the Hub Services (which include the Hub website, the Hub hosted services, and the Software (as defined below), all together, the “Services”). Please read them carefully before using the Services.
By using the Services, you are agreeing to the terms and conditions of the Agreement. If you are using the Services on behalf of an organization, you are agreeing to the Agreement on behalf of that organization and representing that you have the authority to bind that organization to the Agreement. In that case, “you” and “your” will refer to that organization. Hub and you are each a “Party” to the Agreement. If you disagree with any part of these Terms, you may not access the Services.
You may use the Services only in accordance with the Agreement. You may use the Services only if you have the legal power and capacity to form a contract with Hub. The Services will continue to evolve as we refine features and functionality, and we may modify the Services, in general or with respect to you, from time to time without prior notice. We may delete any content or data from the Services to meet our regulatory obligations or protect you, other Hub customers, and/or the Services.
In order to use our Services, you must link at least one third-party email account to your Hub account, however you may link no more email accounts than total number of your authorized users, defined herein as an employee, contractor, or agent of yours 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 with Hub (“Your Authorized Users”). With your permission (which you are granting by using the Services), we will create and update versions of your company’s people, products and processes for you to access in Hub. You will also have the option to import and update versions of your company’s people, process and products, and you can later choose to upload files to or provide comments through Hub. You retain full ownership of all of the information associated with your people, processes, products and files you upload or otherwise provide to Hub (“Your Data”). We do not claim any ownership over any of Your Data.
By using the Services, you grant Hub the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute Your Data on and through the Services.
You are solely responsible for your conduct, the content of Your Data and your communications with others while using the Services, and for all activity that occurs under your account, whether done wo by you or any third party using your account. For example, it’s your responsibility to ensure that you have all rights and permissions needed to comply with the Agreement and to avoid infringement or violation of any rights of others.
You acknowledge that Hub has the right, but not the obligation, in its sole discretion, to monitor any information on the Services and that we are not responsible for the accuracy, completeness, appropriateness, safety or legality of Your Data or any other information or content you may be able to access using the Services. We reserve the right to make formatting and edits of any content and can limit or revoke the use of the Services if you post objectionable content. As Hub cannot control all content posted by users and/or third parties on the Services, you agree to use the Services at your own risk. You understand that by using the Services, you may be exposed to content that you find offensive, indecent, incorrect, or objectionable, and you agree that, under no circumstances, including any errors of omissions in any content, or any loss or damage of any kind incurred as a result of your use of any content.
Sharing Your Data, Third Party Products and Your Privacy
A Third-Party Product is any third-party product, application, service, software, network, system, directory, website, database and/or information obtained separately by you which links to the Services, or which you may connect to or enable in conjunction with the Services, including, without limitation, Third-Party Products which may be integrated directly into the Services by you or at your direction. If you or your Authorized Users choose to share Your Data in any manner, including through a Third-Party Product or integration, you are solely responsible for what that third party may do with Your Data, and your relationship with that third party. Likewise, you are solely responsible for any of the effects a Third-Party Product may have on Your Data, including deleting or corrupting Your Data. You acknowledge that Hub is not responsible for the disclosure of Your Data by you or your agents (including your Authorized Users) to any third parties or the effects of any Third-Party Product on Your Data.
Information and content accessible through the Services may be protected by intellectual property rights of others. Please do not copy, upload, download, or share any information or content unless you have the right to do so. You, not Hub, will be fully responsible and liable for what you copy, share, upload, download or otherwise use while using the Services. You must not upload spyware or any other malicious software to the Services or use the Services to spam others.
You acknowledge that, as between you and Hub, Hub owns and retains all right, title and interest in the Intellectual Property Rights in the Services. You own and retain all right, title, and interest in the Intellectual Property Rights in Your Data. “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.
You, and not Hub, are responsible for maintaining and protecting all of Your Data. Hub will not be liable for any loss or corruption of Your Data, or for any costs or expenses associated with backing up or restoring any of Your Data. Although Hub performs regular backups of Your Data, Hub does not guarantee that there will be no loss or corruption of data. Corrupt or invalid backup points may be caused by, without limitation, content that is corrupted prior to being backed up or that changes during the time a backup is performed. Hub will provide support and attempt to troubleshoot any known or discovered issues that may affect the backups of Your Data but you acknowledge that Hub has no liability related to the integrity of Your Data of the failure to successfully restore Your Data to a usable state. You agree to maintain a complete and accurate copy of Your data in a location independent of the Service.
If any information related to your account changes, you must notify us promptly and keep your information current. The Services are not intended for use by you if you are under 18 years of age. By agreeing to these Terms, you are representing to us that you are over 18.
The Services 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 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 Services, you represent and warrant that you are not located in any such country or on any such list.
You will not engage in activity that would cause Hub to be in violation of these laws and regulations, and will indemnify Hub for any fines, penalties or other liabilities incurred by Hub for your failure to comply with this provision.
You are responsible for keeping the password that you use to access the Services secure and you agree not to provide your password to any third party. You are responsible for all activity using your account, whether or not authorized by you. Accordingly, you should notify Hub immediately of any unauthorized use of your account. 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.
Software and Updates
Some parts of our Services may require you to download a client software package (“Software”). Subject to your compliance with the Agreement, Hub hereby grants you a limited, nonexclusive, non-transferable, no- sublicensable, revocable license to use the Software, solely to access the Services. This license will be automatically revoked if you violate the Agreement. We reserve all rights not explicitly granted in the Agreement. You must not attempt to reverse engineer the Software or encourage or assist anyone else to do so; however, this restriction will not prohibit reverse engineering for interoperability in the European Union to the extent European Union law forbids such a restriction. The Services may automatically update the Software on your device when a new version becomes available.
Non-Disclosure of Confidential Information
During the Term of the Agreement and for a period of one (1) year thereafter (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 than officers, employees, contractors, or representatives of the Receiving Party with a need to know for purposes of the Agreement and who are subject to confidentiality obligations no less stringent than the terms of the Agreement (“Representatives”), 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.
“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 the Agreement, the Services, 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.
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.
While we appreciate it when users send us feedback, comments, and/or suggestions about our Services (“Feedback”), please be aware that we (or others we authorize) may use in any manner any feedback, comments, or suggestions you post in our forums or otherwise provide without any obligation to you. You agree that we (or others we authorize) may freely use, disclose, reproduce, license, distribute, or otherwise exploit in any manner any Feedback you post in our forums or otherwise provide to us about our Services 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.
Acceptable Use Policy
You will not, and will not attempt to, use the Services to violate any laws or any rights of Hub or any other person or otherwise misuse or inappropriately use the Services, and will use the Services only in a manner consistent with the Hub Acceptable Use Policy, as it may change from time to time in our discretion.
Hub respects intellectual property rights of others and asks that you do as well. 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 DMCA Process. Without limiting any other rights we may have, we may delete or disable access to content that is alleged to be infringing and terminate repeat infringers. Our designated agent for notice of alleged copyright infringement on the Services is:
Hub Technical Sales Inc.
3527 Mt. Diablo Blvd. Suite 285
Lafayette, CA 94549
Phone: 1 (888) 499-6799
The Services may contain links to websites or resources of others. We do not endorse and are not responsible or liable for their accuracy, availability, content, products, services or anything else. You are solely responsible for your use of any such websites or resources. Also, if we provide you with any Software under an open source license, there may be provisions in those licenses that conflict with the Agreement, in which case the open source provisions will apply with respect to the code to which those provisions apply.
Hub has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or resources. You acknowledge and agree that Hub shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods, or services available on or through any such third-party websites or resources. Hub strongly advises you to read the terms and conditions and privacy policies of any third-party website or services you visit.
Unless otherwise indicated on an Order Form or Statement of Work (“SOW”), all fees will be due and payable upon commencement of the Services (“Service Fees”). If you fail to pay Service Fees within five (5) business days of notice to you that payment is due or delinquent, or if you do not update payment information upon request, we may suspend or terminate access to the Services by you or your Authorized Users.
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.
Payments made by credit card or debit card may be billed and processed by an agent on behalf of Hub. Such agent shall act solely as a billing and processing agent for and on behalf of Hub and shall not be construed to be providing the Service. If you mandate the use of any specific payment portal or other processing agent which charges a fee to Hub of any kind, you shall be invoiced the cost of such fee and obligated to pay it.
After the Initial Term, the Service Fees are subject to change and may be changed upon notice to you at least sixty (60) days prior to the start of any Renewal Term (as defined below).
Term and Termination; Suspension
The Agreement shall begin on the effective date as specified in your Order (“Order Effective Date”) and shall continue as specified in your Order (the “Initial Term”), automatically renewing thereafter for successive periods of twelve months each (each a “Renewal Term” and together with the Initial Term, the “Term”) unless earlier terminated. We reserve the right to suspend or terminate the Services in whole or part at any time, with or without cause, and with or without notice, without incurring liability of any kind. For example, we may suspend or terminate your use if you are not complying with the Agreement, or if you use the Services in any way that may cause us legal liability or disrupt others’ use of the Services or damage to our business or reputation, or for any other reason. You acknowledge that if your access to the Services is suspended or terminated, you may no longer have access to Your Data that is stored with the Services. Either Party may terminate the auto renewal of the Agreement 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.
If Hub determines in its sole discretion that You or any of Your Authorized Users have violated any element of these Terms of Service, You or Your Authorized Users’ access may be immediately suspended or terminated, up to and including the termination of the Agreement by Hub, with or without notice. Hub shall not be liable for any damages of any nature suffered by any user, or any third party, resulting in whole or in part from Hub’s exercise of its rights under these Terms of Service. Upon termination, your right to use the Services will cease immediately.
Hub warrants that: (i) it will provide the Services in a professional manner, consistent with recognized industry security standards and good commercial practices; (ii) it will comply with all applicable law, and be duly licensed and otherwise authorized to provide the Services; and (iii) it has the authority and right to enter into the Agreement and to observe and perform its respective obligations contained in the Agreement.
You warrant that you have the authority and right to enter into the Agreement and to observe and perform its respective obligations contained in the Agreement.
WITH THE EXCEPTION OF THOSE EXPRESS WARRANTIES MADE IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, HUB EXPRESSLY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICES. WITHOUT LIMITING THE FOREGOING, HUB PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE WITH OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
Your indemnity to Hub: You will defend and hold Hub and its affiliates, employees, officers, directors, agents, successors and assigns, harmless at your own expense, against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Your Data; (ii) your violation of any third party rights (including third party intellectual property rights or privacy rights); and (iii) your use of the Services in any way contrary to the Agreement.
Our indemnity to you: We will defend and hold you and your employees, officers, directors, agents, successors and assigns, harmless at our own expense, against any and all third-party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with any third-party claims that the Services infringe or misappropriate the intellectual property rights of a third party.
The Party seeking indemnification under the 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 at its own expense in 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.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL HUB, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF DATA, LOSS OF BUSINESS, OR LOSS OF PROFITS, FOR BUSINESS INTERRUPTION, FOR LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR THE INABILITY TO USE THE SERVICES, AND THIRD-PAY SOFTWARE USED WITH THE SERVICES) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT HUB HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE AGGREGATE LIABILITY OF HUB TO YOU, ANY AFFILIATE OR ANY THIRD PARTY FOR ALL CLAIMS RELATING TO THE SERVICES OR CONNECTED WITH THE AGREEMENT, REGARDLESS OF THE DAMAGES THEORY, WILL NOT EXCEED THE FEES PAID OR OWING TO HUB UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE LIMITATION OF LIABILITY PROVIDED IN THIS PARAGRAPH WILL APPLY IN THE AGGREGATE TO YOU AND YOUR AFFILIATES AND SHALL NOT BE CUMULATIVE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PURPOSE OF THIS PARAGRAPH IS TO PROVIDE FOR THE ALLOCATION OF RISK AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES PAID, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY THAN PROVIDED FOR HEREIN.
Some states do not allow the types of limitations in this paragraph, so they may not apply to you. IN THOSE JURISDICTIONS, HUB’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
We may revise these Terms from time to time and the most current version will always be posted on our website. We will notify you of any change (for example via email to the email address associated with your account or by a notification when you sign in or by some other method). By continuing to access or use the Services after revisions become effective, you are agreeing to be bound by the revised Terms. If you do not agree to the new Terms, simply don’t use the Services after the change is effective, in which case the change will not apply to you.
Miscellaneous Legal Terms
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, 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, 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. The Agreement and the use of the Services will be governed by Delaware law except for its conflicts of laws principles. These Terms, together with the associated Order, constitute the entire and exclusive Agreement between you and Hub with respect to the Services, and supersede and replace any other agreements, terms and conditions applicable to the Services. The Agreement creates no third-party beneficiary rights. Hub’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted to reflect our intent as closely as possible. You may not assign any of your rights under the Agreement, and any such attempt is void, but Hub may assign its rights and obligations to any of its affiliates or subsidiaries, or to any successor in interest of any business or assets associated with the Services. Hub may identify you as a customer in general listings of customers that Hub may make available on its website or in promotional or marketing materials. Except as otherwise expressly set forth in the Agreement, 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 you at the address indicated on the applicable Order, and if to
Hub Technical Sales Inc.
Attn: Legal Notices
3527 Mt. Diablo Blvd. Suite 285
Lafayette, CA 94549
With a copy emailed of even date to: