Welcome to Humantelligence. Please read this Master Subscription Agreement (the “Agreement”) carefully as this Agreement forms a contract between you and Humantelligence Inc. (“HT”, “We”, “Us”, or “Our”) that governs your access and use of:
- (i) (i) the hosted behavioral science solutions provided by HT for online assessment and questionnaires, personnel data analytics and content, online career training, development, reward and recognition network;
- (ii) (ii) software provided or made available by HT;
- (iii) (iii) the HT websites or applications;
- (iv) (iv) any written or electronic use or features guides or other documentation provided or made available by HT; and
- (v) any and all subscriptions or other agreements pursuant to which HT delivers, has delivered, or will deliver Services (defined below) purchased by You pursuant to a Subscription Agreement, Sales Order, or another agreement entered into between You and HT.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT (“TERMS”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on April 4, 2018. It is effective between You and Us as of the Effective Date of the Subscription Agreement entered into between You and HT.
Table of Contents
- 1. Definitions
- 2. Our Responsibilities
- 3. Use of Services and Content
- 4. Non-Humantelligence Providers
- 5. Fees and Payment for Purchased Services
- 6. Proprietary Rights and Licenses
- 7. Confidentiality
- 8. Representations, Warranties, Exclusive Remedies and Disclaimers
- 9. Mutual Indemnification
- 10. Limitation of Liability
- 11. Term and Termination
- 12. Notices, Governing Law and Jurisdiction
- 13. Payment of Fees
- 14. General Provisions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “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.
“Agreement” means this Master Subscription Agreement.
“Beta Services” means Our services that are not generally available to customers.
“Content” means information obtained by Us from Our content licensors or publicly available sources and provided to You pursuant to a Sales Order, as more fully described in the Documentation.
“Documentation” means Our product list and pricing schedule (as amended from time to time), Your Subscription Agreement, any Sales Order, Our online user guides, documentation, and help and training materials, each, as updated from time to time, accessible via www.humantelligence.com or login to the applicable Service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-HT Applications” means a Web-based or offline software application that is provided by Us or a third party and interoperates with Our Service.
“Sales Order” means an ordering document (including, but not limited to, any product list, Subscription Agreement, and/or Purchase 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 Sales Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” means Services that You or Your Affiliate purchase under a Sales Order.
"Section" means each section of this Agreement and any sub-sections or sub-paragraphs thereto.
“Service(s)” means any and all of the Company’s products and/or services made available by the Company from time to time, including, but not limited to (i) the hosted behavioral science solutions provided by the Company for online assessment and questionnaires, personnel data analytics and content, online career training, development, reward and recognition network; (ii) software provided or made available by the Company; (iii) the Company’s websites or applications; (iv) any written or electronic use or features guides or other documentation provided or made available by the Company; and (v) any associated offline components. “Services” exclude Content and Non-HT Applications.
“Subscription Agreement” means the Subscription Agreement entered into between You and HT.
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Content and Non-HT Applications.
2. OUR RESPONSIBILITIES
2.1. Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Sales Orders, (b) provide Our standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime, 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, Non-HT Application, or denial of service attack.
2.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
2.3. 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.
2.4. Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. USE OF SERVICES AND CONTENT
3.1. Subscriptions. Unless otherwise provided in the applicable Sales Order, (a) Services and Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. You acknowledge that HT has no delivery obligation and will not ship copies of the Software to You as part of the Services.
3.2. Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Sales Orders. Unless otherwise specified, (a) a quantity in a Sales Order refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User's password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding, Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute a Sales 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 Section 5.2 (Invoicing and Payment). You agree to pay any and all amounts due under any pertinent Sales Order.
3.3. Your Responsibilities. You will (a) be responsible for Users' compliance with this Agreement, (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 Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service of Non- HT Applications with which You use Services or Content.
3.4. Usage Restrictions. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service 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, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in a Sales Order or the Documentation, (j) frame or mirror any part of any Service 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 Content in order to build a competitive product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).
3.5. Removal of Content and Non-HT 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 may so notify You and in such event You will promptly remove such Content from Your systems. If You do not take required action in accordance with the above, We may disable the applicable Content, service, and/or Non-HT Application until the potential violation is resolved.
3.6. Software. If you receive Software from Us, its use is governed in one of two ways: If You are presented with license terms that you must accept in order to use the Software, those terms apply; if no license is presented to you, these terms apply. We reserve all other rights to the Software. Any Software is licensed, not sold. Unless we notify you otherwise, the Software license ends when your Service ends. You must then promptly uninstall the Software, or we may disable it. You must not work around any technical limitations in the Software. You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by HT or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to You for use on Your premises or devices, HT hereby grants You a non-exclusive, non-transferable, non-sublicensable license to use such Software during the term of Your agreement with HT and only in connection with the Services.
4. NON-HUMANTELLIGENCE PROVIDERS
4.1. Acquisition of Non-HT Products and Services. We or third parties may make available third-party products or services, including, for example, Non-HT Applications and implementation and other consulting services. Any acquisition by You of such non-HT products or services, and any exchange of data between You and any non-HT provider, is solely between You and the applicable non-HT provider. We do not warrant or support Non-HT Applications or other non-HT products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in a Sales Order.
4.2. Non-HT Applications and Your Data. If You install or enable a Non-HT Application for use with a Service, You grant Us permission to allow the provider of that Non-HT Application to access Your Data as required for the interoperation of that Non-HT Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a Non-HT Application.
4.3. Integration with Non-HT Applications. The Services may contain features designed to interoperate with Non-HT Applications. To use such features, You may be required to obtain access to Non-HT Applications from their providers, and may be required to grant Us access to Your account(s) on the Non-HT Applications. If the provider of a Non-HT Application ceases to make the Non- HT Application available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. Fees. You will pay all fees specified in Sales Orders. Except as otherwise specified herein or in a Sales Order, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid Sales Order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Sales Order for the initial subscription term and any renewal subscription term(s) as set forth in the Subscription Agreement and Sales Order. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Sales Order. If the Sales 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 Sales Order. Unless otherwise stated in the Sales 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.
5.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest 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 Sales Orders on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
5.5. Payment Disputes. We will not exercise Our rights under Section 5.3 (Overdue Charges) or 5.4 (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.
5.6. 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 5.6, 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 solely responsible for taxes assessable against Us based on Our income, property and employees.
5.7. 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.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. License by Us to Use Content. We grant to You a worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use Content acquired by You pursuant to Sales Orders, subject to those Sales Orders, this Agreement and the Documentation.
6.3. License by You to Host Your Data and Applications. You grant Us and Our Affiliates a worldwide, limited- term license to host, copy, transmit and display Your Data, and any Non-HT Applications and program code created by or for You using a Service, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or any Non-HT Application or program code. HT reserves the right to provide the Services and Content from locations, and/or through use of subcontractors, worldwide.
6.4. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
6.5 License to Use Your Data. Notwithstanding anything to the contrary, HT shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Your Data and data derived therefrom), and HT will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other HT offerings, and (ii) disclose such data solely in de-identified form in connection with its business. You agree and authorizes HT to (i) identify You as a recipient of Services; (ii) use Your logo in sales presentations, marketing materials, press releases, and HT websites; and (iii) to develop a brief profile of You for promotional purposes. No other rights or licenses are granted except as expressly set forth herein.
6.6. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
7.1. Definition of Confidential Information. “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 Sales 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.
7.2. Protection of Confidential Information. 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) (i) not to 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, to 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 no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Sales 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 counselor accountants will remain responsible for such Affiliate's, legal counsel's or accountant's compliance with this Section 7.2.
7.3. 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.
7.4 Cumulative Rights. The restrictive covenants and obligations set forth in this Section 7 are separate, distinct and additional to any and all restrictive covenants and agreements between You and HT. Nothing contained herein shall be deemed to limit, restrict or in any way imply or infer any waiver or relinquishment of rights of HT under any other agreement.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Our Warranties. We warrant that (a) this Agreement, the Sales Orders and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) subject to Section 4.3 (Integration with Non-HT Applications), We will not materially decrease the functionality of the Purchased Services during a subscription term, and (e) the Purchased Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are the termination of Your Subscription Agreement and a refund as provided in Your Subscription Agreement.
8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party's intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 8.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days' written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-HT Application or Your breach of this Agreement.
9.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party's intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
9.3. Exclusive Remedy. Notwithstanding anything else to the contrary, this Section 9 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section 9.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES).
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1 Term of Agreement. This Agreement commences on the earlier of the date You first accept it or the effective date of Your Subscription Agreement with the Company. The Term shall continue until all Subscriptions hereunder have expired or have been terminated as provided in Your Subscription Agreement. The Term of each Subscription shall be as specified in the applicable Sales Order.
11.2 Portability and Deletion of Your Data. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make the Your Data available to You for export or download as provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
11.3 Surviving Provisions. The Sections titled Section 5 (“Fees and Payment for Purchase Services”), Section 6 (“Proprietary Rights and Licenses”), Section 7 (“Confidentiality”), Section 8.3 (“Disclaimers”), Section 9 (“Mutual Indemnification”), Section 10 (“Limitation of Liability”), Section 11.2 (“Portability and Deletion of Your Data”), Section 12 (“Notices, Governing Law and Jurisdiction”), Section 13 (“Payment of Fees”), and Section 14 (“General Provisions”) will survive any termination or expiration if this Agreement.
12. NOTICES, GOVERNING LAW AND JURISDICTION
12.1 Manner of Giving Notices. We may send You, in electronic form, information about the Services, additional information, and information the law requires Us to provide. We may provide required information to You by email at the address you specified when You signed up for the Service or by access to a website that We identify. Notices emailed to You will be deemed given and received when the email is sent. If You do not consent to receive notices electronically, You must stop using the Service. You may provide legal notice to Us via email to email@example.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: HT Inc., 3921 Alton Road #323, Miami Beach, FL 33139, Attention: Legal. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.
12.2 Agreement to Governing Law and Jurisdiction. You are contracting with HT Inc., a company incorporated in the state of Delaware, USA. The laws of the State of Florida, USA govern the interpretation of these Terms and apply to claims for breach of these Terms, regardless of conflict of laws principles. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Acts. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will, only to the extent required by applicable law, be subject to the laws of your state of residence in the United States, or, if you live outside the United States, the laws of the country in which you reside. You and We irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts for Dade County, Florida, USA, for all disputes arising out of or relating to these Terms.
13. PAYMENT OF FEES
13.1 Fees. You will pay HT the then applicable fees described in the Subscription Agreement and the Sales Order for the Services in accordance with the terms therein (the “Fees”). If Your use of the Services exceeds the Service capacity set forth on the Sales Order or otherwise requires the payment of additional fees (per the terms of this Agreement), You shall be billed for such usage and You agree to pay the additional fees in the manner provided herein. HT reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of any then current billing cycle, upon fifteen (15) days prior notice to You (which may be sent by email). If You believes that HT has billed You incorrectly, You must contact HT no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to HT’s customer support department. Unless otherwise agreed to in writing by HT, all Fees are non-refundable.
13.2 Interest. HT may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by HT thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. You shall be responsible for all taxes associated with Services other than U.S. taxes based on HT’s net income.
13.3 Billing. You authorizes HT to store and continue billing the credit card provided in the applicable Credit Card Authorization Form provided by you upon Your execution of the Subscription Agreement. You will be responsible for any and all applicable fees and taxes through the end of all applicable subscription periods. Unless otherwise agreed to in writing by HT, all Fees shall be paid in United States Dollars. In the event that a payment must be converted into United States Dollars from another currency, the conversion shall be made based on the applicable exchange rate as published in the Wall Street Journal on the date such Fees are due.
14. GENERAL PROVISIONS
14.1. Export Compliance. The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
14.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department.
14.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your Sales Order or in any other of Your order documentation (excluding Sales Orders) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Sales Order, (2) this Agreement, and (3) the Documentation.
14.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Sales Orders), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5. 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.
14.6. Third-Party Beneficiaries. Our Content licensors shall have the benefit of Our rights and protections hereunder with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
14.7. Waiver.No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
14.9. Intellectual Property Notices. All contents of the Services and Content including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are the proprietary property of HT and/or the proprietary property of its suppliers, affiliates or licensors. HT and the HT logo are including without limitation, either trademarks, service marks or registered trademarks of HT Inc., and may not be copied, imitated, or used, in whole or part, without Our prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners. HT may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter that is part of the Service. Unless We have granted You licenses to Our intellectual property in these Terms, Our providing You with the Service does not give You any license to our intellectual property. Any rights not expressly granted herein are reserved.
14.10. Uniform Computer Information Transactions Act. The Uniform Computer Information Transactions Act does not apply to Our Agreement. You understand that Our business partners, including any third party firms retained by You to provide computer consulting services, are independent of HT and are not Our agents. We are not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as Our subcontractor on an engagement ordered under this Agreement.
14.11. Force Majeure. Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other events outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal recovery procedures or Your obligation to pay for the Services.
14.12. Statistical Information. HT may compile statistical information related to the Services and Content, and may make such information publicly available, provided that such information does not identify Your confidential information, or include Your company name, and is presented as aggregated data collected from various sources. HT retains all intellectual property rights in such information.
14.13. Customer Reference. You agree (i) that We may identify you as a recipient of Services and use Your logo in sales presentations, marketing materials, and press releases, and (ii) to develop a brief profile for promotional purposes.