Documentation. "Documentation" means any online or printed user manuals or functional specifications that are provided to Customer by Hubris Communications or Hubris Communications vendor/partner, and any derivative works of the foregoing.
Effective Date. "Effective Date" means the date of the first invoice issued by Hubris Communications to Customer.
Service Order Form. "Service Order Form" means a document signed by authorized representatives of both parties and itemizing the products and Services purchased by Customer thereunder.
Services. "Services" means VOIP, internet access, data transmission, voice transmission, or other communications services that Hubris Communications agrees to provide to Customer pursuant to a Service Order Form.
Software. "Software" means those computer programs provided to Customer as part of a Hubris Communications or Hubris Communications vendor/partner Product, including any replacements, updated versions or bug fixes that may be provided hereunder, and any derivative works of the foregoing.
2. Services and License
License. During the term and subject to the terms and conditions of this Agreement, Hubris Communications hereby grants to Customer a non-exclusive, non-transferable, non-sub licensable right and license to access and use the Software in object code form for its internal business purposes only. The license in the preceding sentence is limited to the number of Authorized Users for which Customer has paid in accordance with the applicable Service Order Form. All rights in and to the Software not expressly granted herein are reserved to Hubris Communications.
License and Use Restrictions. Customer shall not, directly, indirectly, alone, or with another party,
copy, disassemble, reverse engineer, or decompile the Software;
modify, create derivative works based upon, or translate the Software;
transfer or otherwise grant any rights in the Software in any form to any other party, nor shall Customer attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted hereunder.
Equipment. Hubris Communications has the right to access equipment at any time upon reasonable notice to Customer for purposes of repair or replacement. Customer is responsible for protecting all Hubris Communications equipment from damage of any kind, ordinary wear and tear is acceptable.
911 Service. Customer acknowledges that for 911 services to function properly, the caller must be calling from the location associated with the number as provided by Customer during implementation, and that address must be valid and accurate. Customer is prohibited from altering the Services in any way, and acknowledges and agrees that if the Services are altered in any way by Customer that 911 services may not function properly and Customer hereby agrees to release Hubris Communications from any and all liability associated with the failure of 911 service to function properly.
Service Level Agreements. Hubris Communications' service level agreement is available upon request.
Customer Proprietary Network Information ("CPNI"). Hubris Communications will make Customer's CPNI available to Customer online, via a secure password-protected site or by calling Hubris Communications' dedicated customer care representative.
Agreement Term. The term of this Agreement commences on the Effective Date and will continue for an initial term of 12 months. Thereafter, this Agreement will automatically renew for an unlimited number of additional one year terms unless either Party notifies the other Party of its intention not to renew at least 30 days in advance of the expiration of the then current term.
Fees. In return for the products, services and licenses provided by Hubris Communications to Customer hereunder and pursuant to a Service Order Form, Customer shall pay to Hubris Communications the fees and expenses in the amount and on the schedule set forth on the Proposal. Unless specified to the contrary on a Service Order Form, monthly recurring fees will commence upon the Effective Date of this Agreement. All dollar amounts refer to U.S. dollars.
Payment Terms. Customer shall at all times ensure that Hubris Communications has a valid credit card, debit card, or ACH debit authorization for purposes of paying all fees and expenses due hereunder. Hubris Communications shall use Customer's preferred payment method to automatically charge Customer monthly in advance for all recurring charges and all unpaid non-recurring charges. Monthly invoicing with payment terms may be available upon request.
Credit Authorization. Hubris Communications has the right to perform a credit inquiry on Customer. Customer shall provide a tax identification number, social security number, credit references or any other such information reasonably requested by Hubris Communications. Hubris Communications may, in its sole discretion, deny Service to Customer or require a deposit from Customer based on Hubris Communications' evaluation of Customer's creditworthiness.
Acceptable Use Policies. Hubris Communications will use its reasonable efforts to provide links to the most current AUPs at www.hubris.net/policies/aup/. Customer shall comply with any acceptable use or similar policies of Hubris Communications' vendor/partners.
Taxes. Customer shall pay or shall reimburse Hubris Communications for all sales taxes and other taxes, however characterized by the taxing authority, based upon the license fees or other charges under this Agreement or otherwise incurred on account of Customer's use of the Software, except for any taxes based upon Hubris Communications' net income.
Fee Increases. Effective no earlier than the 1st anniversary of the Effective Date, Hubris Communications has the right to increase any of the fees charged to Customer hereunder, provided that Hubris Communications can only exercise this right upon 30 days prior written notice to Customer.
Termination for Cause. Either party can terminate this Agreement for cause upon written notice to the other party:
if a party fails to pay the other party any delinquent amounts owed to the other party hereunder within 10 days of written notice by the other party specifying the amounts owed;
in the case of Hubris Communications, immediately upon any breach by Customer of Section 2(b) above;
immediately upon any breach of any confidentiality obligations owed to such party by the other party;
if the other party has committed any other material breach of its obligations under this Agreement and has failed to cure such breach within 45 days of written notice by the non-breaching party specifying in reasonable detail the nature of the breach (or, if such breach is not reasonably curable within 45 days, has failed to begin and continue to work diligently and in good faith to cure such breach); or
upon the institution of bankruptcy or state law insolvency proceedings against the other party, if such proceedings are not dismissed within 30 days of commencement.
Obligations Upon Termination. Upon termination of this Agreement:
Hubris Communications shall, within 30 days of termination, send Customer an electronic copy of its Customer Data in a format compatible with a widely-used relational database program such as Oracle or Microsoft SQL;
Hubris Communications shall immediately terminate access to the Software by Customer and its Authorized Users; and
Customer shall immediately pay Hubris Communications any amounts payable or accrued but not yet payable to Hubris Communications, including any deferred payments or payments originally to be made over time;
Customer shall, within 5 days of termination, return all equipment provided to Customer by Hubris Communications.
Indemnification. Each party shall indemnify the other, the other's affiliates, and all of their stockholders, officers, directors, agents, and employees (each, an "Indemnified Party") at all times from and after the Effective Date against any liability, loss, damages (including punitive damages), claim, settlement payment, cost and expense, interest, award, judgment, diminution in value, fine, fee, and penalty, or other charge, including reasonable legal expenses, arising out of or relating to any claim by an unaffiliated third party (i) alleging that the use in accordance with this Agreement of the Software or the Services (in the case of Hubris Communications) or the Customer Data (in the case of Customer) infringes or misappropriates any intellectual property or privacy rights of the unaffiliated third party, or (ii) that arises or is alleged to have arisen solely out of the gross negligence or intentional misconduct of the indemnifying party (each a "Third Party Claim"). Notwithstanding the foregoing, if the Software becomes the subject of such a claim of infringement then Hubris Communications may, at its option: (x) procure for Customer the right to use the Software free of any liability for infringement; (y) replace or modify the Software to make it non-infringing but with reasonably comparable functionality; or (z) if Hubris Communications determines that the previous two options are not available on a commercially reasonable basis, grant to Customer a credit for the unused portion of any prepaid access rights fees and refund any deposits paid by Customer for the affected Software. Furthermore, Hubris Communications has no liability for, and no obligation to indemnify Customer against, any Third Party Claim arising or alleging based in whole or in part on use of the Software other than as specified in this Agreement, or its documentation, including use with third party hardware and software products not specifically authorized by Hubris Communications.
Indemnification Process. The Indemnified Party shall promptly notify the indemnifying party in writing of any Third Party Claim, stating the nature and basis of the Third Party Claim, to the extent known. The indemnifying party shall have sole control over the defense and settlement of any Third Party Claim, provided that, within fifteen (15) days after receipt of the above-described notice, the indemnifying party notifies the Indemnified Party of its election to so assume full control. The foregoing notwithstanding, the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel at its own expense to assist in the handling of such claim, except that the Indemnified Party's legal expenses in exercising this right shall be deemed legal expenses subject to indemnification hereunder to the extent that (x) the indemnifying party fails or refuses to assume control over the defense of the Third Party Claim within the time period set forth above; (y) the Indemnified Party deems it reasonably necessary to file an answer or take similar action to prevent the entry of a default judgment, temporary restraining order, or preliminary injunction against it; or (z) representation of both parties by the same counsel would, in the opinion of that counsel, constitute a conflict of interest. The Indemnifying Party shall not settle any such Third Party Claim without the written consent of the Indemnified Party, except for a complete settlement requiring only the payment of money damages to be paid by the Indemnifying Party.
Sole Remedy. Indemnification pursuant to this Section is the parties' sole remedy for any third party claim against the other party in the nature of negligence, gross negligence, intentional misconduct, intellectual property infringement, or invasion of privacy.
6. Disclaimers and Limitations
Disclaimer of Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HUBRIS COMMUNICATIONS MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, THE SOFTWARE, PRODUCTS OR SERVICES PROVIDED OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE SOFTWARE, PRODUCTS OR SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, HUBRIS COMMUNICATIONS DISCLAIMS ANY WARRANTY THAT THE SOFTWARE, THE PRODUCTS AND SERVICES PROVIDED BY HUBRIS COMMUNICATIONS, OR THE OPERATION THEREOF ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED. HUBRIS COMMUNICATIONS MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
Disclaimer of Consequential Damages. HUBRIS COMMUNICATIONS HAS NO LIABILITY WITH RESPECT TO THE SOFTWARE, SERVICES, OR ITS OTHER OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS AND THE COST OF COVER) EVEN IF HUBRIS COMMUNICATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitations of Remedies and Liability. EXCEPT FOR ANY CLAIMS SUBJECT TO INDEMNIFICATION HEREUNDER, CUSTOMER'S SOLE REMEDIES FOR ANY BREACH OF THIS AGREEMENT BY HUBRIS COMMUNICATIONS ARE CORRECTION OF ERRORS AS SET FORTH HEREIN AND THE REPROCESSING OF ANY DATA THAT IS INCORRECT AS A RESULT OF THE BREACH AND THE APPLICATION OF ANY SERVICE LEVEL CREDITS AS DESCRIBED IN THIS AGREEMENT. EXCEPT FOR SERVICE LEVEL CREDITS APPLIED AS DESCRIBED ELSEWHERE IN THIS AGREEMENT, HUBRIS COMMUNICATIONS'S TOTAL LIABILITY TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO ALL FEES PAID TO HUBRIS COMMUNICATIONS BY THE CUSTOMER IN RESPECT OF USER LICENSES FOR THE SOFTWARE DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABLITY.
Changes in Law. If any law, regulation, court order, or regulatory authority (i) prohibits Hubris Communications from performing under this Agreement, (ii) renders any part of Hubris Communications's performance under this Agreement illegal, or (iii) otherwise makes a change that materially adversely impacts Hubris Communications's ability to perform under this Agreement, then the parties shall negotiate in good faith to amend this Agreement as necessary to address the change. If the parties cannot amend the Agreement in accordance with the above within 30 days, then either party can terminate this Agreement on 30 days notice without liability to the other party.
Force Majeure. "Force Majeure Event" means any act or event that (a) prevents a party (the "Nonperforming Party") from performing its obligations or satisfying a condition to the other party's (the "Performing Party") obligations under this Agreement, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. "Force Majeure Event" does not include economic hardship, changes in market conditions, and insufficiency of funds. If a Force Majeure Event occurs, the Nonperforming Party is excused from the performance thereby prevented and from satisfying any conditions precedent to the other party's performance that cannot be satisfied, in each case to the extent limited or prevented by the Force Majeure Event. When the Nonperforming Party is able to resume its performance or satisfy the conditions precedent to the other party's obligations, the Nonperforming Party shall immediately resume performance under this Agreement. The relief offered by this paragraph is the exclusive remedy available to the Performing Party with respect to a Force Majeure Event.
Assignment. Customer shall not assign any of its rights under this Agreement, except with the prior written consent of Hubris Communications. The preceding sentence applies to all assignments of rights, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law or any other manner. Any change of control transaction is deemed an assignment hereunder. Any purported assignment of rights in violation of this Section is void.
Governing Law; Venue. The laws of the State of Kansas (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Except as set forth in Section 7(e) below, any claims or actions regarding or arising out of this Agreement must be brought exclusively in a court of competent jurisdiction sitting in Wichita, Kansas, and each party to this Agreement submits to the jurisdiction of such courts for the purposes of all legal actions and proceedings arising out of or relating to this Agreement. Each party waives, to the fullest extent permitted by law, any objection that it may now or later have to (i) the laying of venue of any legal action or proceeding arising out of or relating to this Agreement brought in any state or federal court sitting in Wichita, Kansas; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
Arbitration. Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, must be resolved by confidential binding arbitration in Wichita, Kansas in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either party may, without inconsistency with this agreement to arbitrate, seek from a court any provisional remedy that may be necessary to protect trademarks, copyrights, or other rights or property pending the establishment of the arbitral tribunal or its determination of the merits of the controversy. The parties agree that the arbitrator has the power to award all costs of the arbitration, including reasonable attorneys fees and expenses, to the prevailing party.
Recovery of Litigation Costs. If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the unsuccessful party shall pay to the successful party its reasonable attorneys' fees and other costs incurred in that action or proceeding, in addition to any other relief to which the successful party may be entitled.
Entire Agreement. This Agreement and any Service Order Forms or Statements of Work hereunder constitute the final agreement between the parties. In the event of any conflicts between this Agreement, a Service Order Form, and/or a Statement of Work, the order of precedence is the order set forth in this sentence, except to the extent that the conflicting document expressly states its intention to override a specific provision of the controlling document. It is the complete and exclusive expression of the parties' agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. The provisions of this Agreement cannot be explained, supplemented or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of any other party except for those expressly contained in this Agreement. There are no conditions precedent to the effectiveness of this agreement, other than any that are expressly stated in this Agreement.
Amendments. The parties can amend this Agreement only by a written agreement of the parties that identifies itself as an amendment to this Agreement.
Survival of Certain Provisions. Each party hereto covenants and agrees that the provisions in Sections 2(b) (b), 5, 6 and 7 in addition to any other provision that, by its terms, is intended to survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.
Notices. Each party giving or making any notice, request, demand or other communication (each, a "Notice") pursuant to this Agreement must give the Notice in writing and use one of the following methods of delivery, each of which for purposes of this Agreement is a writing: personal delivery, registered or certified U.S. Mail (in each case, return receipt requested and postage prepaid), or nationally recognized overnight courier (with all fees prepaid). Any party giving a Notice must address the Notice to the appropriate person at the receiving party (the "Addressee") at the address listed on the signature page of this Agreement or to another Addressee or another address as designated by a party in a Notice pursuant to this Section. Except as provided elsewhere in this Agreement, a Notice is effective only if the party giving the Notice has complied with this paragraph.