By using or installing any part of this Application, you expressly agree to, and consent to be bound by, all of the terms of this Agreement (as defined below). Please review this Agreement carefully before installation and/or acceptance.
“Application” means the self-contained program and software provided by NorthText (“NorthText”) which offers access to NorthText Services and its Users who use the NorthText Application (as defined below), to be used on mobile devices, Web Site and any upgrades from time to time and any other software or documentation which enables the use of the Application. NorthText may elect to update the Application at any time. These updates may include bug fixes, feature enhancements or improvements, or entirely new versions of the Application. You agree that NorthText may automatically deliver such updates to you as part of the Services and you shall receive and install them as required.
“Confidential Information” means all information that is disclosed by one party to the other under this Agreement, including the terms of this Agreement, data, tools or methodologies, business information, trade secrets, or any other information designated by a party as confidential, excluding information that: (i) is or becomes publicly known, through no fault of the receiving party; (ii) was known by the receiving party prior to disclosure here-under; (iii) is disclosed to the receiving party by a third party with no violation of confidentiality to the disclosing party; or (iv) is developed by the receiving party independent of any use of information disclosed by the disclosing party. Confidential Information shall remain such for three (3) years after expiration or termination of the Agreement.
“Customer” means the Person to whom NorthText is providing the Services under this Agreement.
“Fees” are the charges, prices, and fees set forth in the terms on the Fee Schedule within the Application.
“Governmental Authority” means the federal government of the United States, any state government, or any political subdivision of either, or any agency, court or body of the federal government of the United States, or any state, or any political subdivision of either, exercising executive, legislative, judicial, regulatory or administrative functions.
“Illicit Code” means any program containing malicious or detrimental hidden files, any virus, malware or any other malicious computer program, any hardware-limiting, software-limiting or services-limiting function not part of standard configuration (including any key, node lock, time-out or other similar functions) or containing any automatically replicating, transmitting or activating computer program that is not planned or expected by one of the parties hereto.
“Intellectual Property Rights” are all patents, patent applications, trademarks, inventions (whether or not patent-able), know-how, designs, mask works, processes, methodologies, service marks, copyrights and copyright-able works, trade secrets including Confidential Information, data, designs, manuals, training materials and documentations, formulas, knowledge of manufacturing processes, methods, prices, financial and accounting data, products and product specifications and all other intellectual property rights as these terms are understood under Law, including any modifications ,adaptations, adjustments, enhancements, updates, improvements, alterations and error corrections thereto and other derivative works thereof.
“Law” means with respect to any Party, in each case to the extent applicable to such Party, its property, any of the Services or, in connection with this Agreement, any federal, state, county or local law, ordinance, statute, rule, regulation, regulatory guidance, code, guideline, policy, notice, treaty, judgment, order, decree, injunction, permit, issuance or other determination or finding of any Governmental Authority, or self-regulatory organization.
“Parties” are both NorthText and Customer, and NorthText and Customer may be individually referred to as a “Party.”
“Person” means a natural person, sole proprietorship, partnership, firm, corporation, limited liability company, joint stock company, business trust or other entity or association, including any Governmental Authority, and where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative.
“Services” means the provision of access to NorthText Software, the Application, and the NorthText Application to Customer and the other services described within this Agreement.
Software” is the source code and object code versions of any programs, operating system software, computer software languages, utilities and other computer programs (i.e., any set of statements or instructions to be used in a computer to obtain a result), and related documentation and supporting materials, in any form or media, used to provide the Services, including the tangible media upon which the programs, operating system software, computer software languages, utilities and other computer programs, and documentation and supporting materials are recorded or printed, together with all corrections, improvements, updates and releases.
“Taxes” are any value-added, country or local sales, use or similar taxes assessed by any taxing authority, and any telecommunications excise taxes.
“User” is any Person, other than the Customer, who uses the NorthText Application.
“Work Product” is all information, data, deliverables, materials, documents, documentation, works of authorship, computer programs, software, designs, specifications, processes, procedures, techniques and all tangible embodiment’s of the foregoing and all Intellectual Property Rights created, developed or prepared, documented or delivered by NorthText, in providing the Services.
RIGHTS, OBLIGATIONS and WARRANTIES of NORTHTEXT
- NorthText agrees to provide the Services to Customer in a good and workmanlike manner throughout the term of this Agreement. The Services may include access and use of the NorthText Application, certain hosted solutions, support, deliverables, and other items which are described within this Agreement.
- NorthText Representations and Warranties. NorthText represents and warrants to Customer at all times during the term of this Agreement that:
- neither it nor any of its employees, agents, officers, directors will disclose, or share any of Customer’s Confidential Information during the term of confidentiality as defined above;
- it owns, or has the right to use under valid and enforceable agreements, all Intellectual Property Rights reasonably necessary for and related to the performance of the Services, including its delivery or other provision of any Software to Customer;
- that the Services will be provided in good faith and in a professional manner;
- no Illicit Code has been or will be introduced into any Software; and
- it will provide the Services in compliance with all Laws.
- Support and Maintenance; Additional Services. NorthText agrees to provide reasonable updates, improvements, modifications or enhancements to the Services as determined by NorthText in its sole discretion during the term of this Agreement. Updates and feature requests that NorthText does not determine to fall within the scope of the ordinary maintenance of the Services may be completed as a custom project for Customer, at Customer’s cost, agreed upon by the Parties. NorthText personnel will promptly respond to Software or NorthText Application issues reported by Customer to [email protected] but in no case later than two (2) business days from the time the issue is reported.
RIGHTS,OBLIGATIONS, and WARRANTIES of the CUSTOMER
- Customer Representations and Warranties. Customer hereby represents, warrants and covenants to NorthText at all times during the term of this Agreement that:
- neither it nor any of its employees, agents, officers, directors will disclose, share, or make commercial use of any of NorthText Confidential Information during the term of confidentiality as defined above;
- neither it nor any of its employees, officers, or directors will use any Software made available hereunder for any illegal, unauthorized, or unethical purpose;
- neither it nor any of its employees, officers, or directors will reverse engineer, decompile, disassemble, or access the computer code of any Software made available hereunder nor will any of such persons create or attempt to create any derivative works of the Software; and
- neither it nor any of its employees, officers, or directors will permit any third party to use or access the Services without the express permission of NorthText obtained in advance of such use or access.
- Trade Secrets and Nondisclosure. Customer acknowledges and agrees that the Services provided hereunder will give Customer access to NorthText valuable trade secrets and Confidential Information. Customer agrees that it will not sell, transfer, publish, display, or disclose the Services or Software, or otherwise make the Services or Software available to any Person not expressly authorized to access such materials under this Agreement. Customer further agrees to take reasonable measures to prevent its employees and agents from allowing access to the Services or Software to any person or entity in violation of the foregoing. Customer agrees to provide complete and accurate information about Customer’s use, access and security measures in response to any inquiry made by NorthText for purposes of ensuring that use restrictions, trade secret, and nondisclosure and confidentiality covenants are being properly observed.
- Limited Trademark License; Referral Customer. Customer grants NorthText a limited, non-exclusive, revocable license to use Customer’s name and logo solely in oral and written marketing materials to (i) provide the Services, (ii) describe and display the NorthText Application, and (iii) publicly announce the relationship between Customer and NorthText, provided that such use of the Customer’s mark(s) is in accordance with Customer’s trademark and logo use guidelines. Upon termination of this Agreement, the foregoing license shall automatically terminate. The customer further agrees to make itself reasonably available from time to time to which NorthText can refer potential customers that may be interested in subscribing to NorthText’ Services.
- Disruption of Services. Customer acknowledges and agrees that from time to time the Services and NorthText Application may be inaccessible or inoperable due to equipment malfunctions, periodic maintenance procedures, repairs or upgrades which NorthText may undertake from time to time, service malfunctions and causes beyond the reasonable control of NorthText or which are not reasonably foreseeable by NorthText, including, without limitation, interruption or failure of telecommunication or digital transmission links, including delays or failures due to Customer’s hardware, Internet service provider, hostile network attacks, network congestion or other failures.
MUTUAL AGREEMENTS and WARRANTIES
- As between NorthText and Customer, Customer’s Confidential Information shall be owned by Customer, and NorthText Confidential Information shall be owned by NorthText. NorthText owns all right, title, and interest in and to all Intellectual Property Rights arising out of all Software, layouts, specifications, data visualizations, screens, report designs, images, designs, videos, all other visual and technical arrangements displayed on or in connection with any Application, Software or Services and all Work Product, together with all improvements or bug fixes thereto, whether improvements were conceived by NorthText or conceived, suggested by, or commissioned by Customer or others. For the avoidance of doubt, no Services provided hereunder shall be deemed to be “work for hire” services and nothing herein shall be construed so as to vest any rights or ownership in Customer to any Application, Software or Services made available to Customer hereunder. All data gathered for any Customer data query shall be co-owned by the Parties.
- All experiences, content, downloads, digital items, etc. (“ITEMS”) are provided to you ‘as is,’ without warranty of any kind either express or implied. Neither NorthText nor its employees, agents, third-party information providers, merchants, licensors or the like warrant that the ITEMS or its operation will be accurate, reliable, uninterrupted or error-free. No agent or representative has the authority to create any warranty regarding the ITEMS on behalf of NorthText. NorthText reserves the right to change or discontinue at any time any aspect or feature of the ITEMS.
- Mutual Representations and Warranties. Each Party hereby represents, warrants and covenants to the other at all times during the term of this Agreement that the execution, delivery and performance of this Agreement by such Party:
- has been duly authorized by all necessary corporate action or approval on the part of such Party;
- does not conflict with, or otherwise violate the articles of incorporation, articles of organization, bylaws, or operating agreement of such Party;
- does not violate the terms of, and shall not (with or without the giving of notice, the lapse of time, or both) result in a breach of, constitute a default under or otherwise give rise to a right of termination by any other party to any material agreement by which such Party is bound;
- does not violate any Laws of any Governmental Authority having jurisdiction over such Party; and
- constitutes the valid and legally binding obligation of such Party enforceable in accordance with its terms.
- Fees and discounts, if any, for Services will be determined as set forth on the Fee Schedule within the Application. Customer agrees to pay to NorthText all Fees due under this Agreement within thirty (30) days of receiving an invoice from NorthText. All payments shall be paid in United States currency and may be made through credit card, check or wire transfer, in each case to the order or credit of “NorthText” and remitted to 2355 Royal Oaks Dr ., Alamo, CA 94507. NorthText reserves the right to change the payment address and instructions at its discretion in the future.
- Overdue Accounts. NorthText may charge a late fee on delinquent payments at the lesser of (i) the maximum amount chargeable by law or (ii) one and one-half percent (1½%) per month on the unpaid balance due from Customer. Failure to timely pay invoices may cause interruption of Service, in the discretion of NorthText. Dispute of apportion of Customer’s invoice(s) does not suspend or limit Customer’s obligation to pay the undisputed portion. If Customer fails to make any payment within fifteen (15) days after the due date, NorthText reserves the right to immediately terminate the term of the Agreement and to suspend the Services to Customer, and in such event the Customer’s payment and other obligations hereunder shall survive such termination. Customer will review invoices promptly and will identify any disputed items or seek any credit or adjustment which Customer claims, in writing, not later than sixty (60) days following the receipt of each invoice.
- Except to the extent otherwise provided in this Agreement, each Party agrees to be responsible for its own Taxes applicable under all Laws, including Taxes based on a Party’s income, unemployment, social security and other payroll and wage Taxes. Customer will pay all sales or services Taxes due on the transactions hereunder or provide NorthText customary proof that the transactions are exempt from such Taxes.
WARRANTIES, DISCLAIMERS, INDEMNIFICATION
- Limited Warranty; Disclaimer of Warranties. Except for the limited warranties set forth in this Agreement, THE SERVICES ARE PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS OF DATA TRANSMISSION, ACCURACY OF DATA OR DATA SETS, OR UPTIME AVAILABILITY. NorthText DOES NOT WARRANT THAT THE SOFTWARE OR THE SERVICES WILL BE FREE FROM ALL BUGS, ERRORS, OR OMISSIONS. NorthText SPECIFICALLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OF ANY THIRD-PARTY DATA, AND CUSTOMER ACKNOWLEDGES THAT SUCH THIRD-PARTY DATA IS OUTSIDE OF NorthText CONTROL. MyHubPass DOES NOT WARRANT THAT THE SERVICES WILL ACCOMPLISH ANY SPECIFIC OBJECTIVE OF CUSTOMER OR WILL OPERATE ERROR FREE. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE LIMITED, EXPRESS WARRANTIES OF THIS AGREEMENT. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE LIMITED, EXPRESS WARRANTIES SET FORTH HEREIN FAIL THEIR ESSENTIAL PURPOSE. CUSTOMER FURTHER AGREES THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, CUSTOMER WILL NOT HOLD NorthText LIABLE FOR ANY FAILURE OF THE SOFTWARE OR SERVICES. CUSTOMER AGREES THAT IT WILL NOT HOLD NorthText LIABLE FOR ANY THIRD-PARTY INFORMATION EVEN IF SUCH INFORMATION IS DISPLAYED ON, THROUGH, OR IN CONNECTION WITH THE SERVICES OR SOFTWARE. CUSTOMER AGREES THAT NorthText SHALL NOT BE RESPONSIBLE TO CUSTOMER FOR ANY DAMAGES CAUSED BY DATA PROVIDED BY THIRD PARTIES, DELAYS RESULTING FROM HARDWARE AND SYSTEMS OWNED AND CONTROLLED BY THIRD PARTIES (INCLUDING WITHOUT LIMITATION THE CUSTOMER’S OWN DATA TRANSMISSION SPEEDS), DATA ENTRY ERRORS, USER ERRORS, OR ANY OTHER LIMITATIONS, ERRORS, OR DELAYS, THAT ARISE DURING THE TERM OF THIS AGREEMENT THAT CANNOT BE PREVENTED OR MITIGATED BY NorthText.
- Limitation of Liability. WITH THE EXCEPTION OF AMOUNTS ARISING OUT OF THE OBLIGATIONS IN SECTIONS 7.3 AND 7.4, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, EVEN IF A PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMERS EXCLUSIVE REMEDY FOR BREACH BY NorthText OF ANY LIMITED WARRANTY CONTAINED HEREIN SHALL BE TO DISCONTINUE USE OF THE SERVICES AND TERMINATE THE TERM OF THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, A PARTYS LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER TO NorthText IN THE TWELVE(12) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE (EXCEPT WITH RESPECT TO CUSTOMERS PAYMENT OBLIGATIONS UNDER SECTION 6 OF THIS AGREEMENT WHICH SHALL NOT BE LIMITED BY THIS SECTION). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. IN JURISDICTIONS THAT DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE LIMITATIONS CONTAINED IN SECTIONS 7.1, AND 7.2 WILL ONLY APPLY TO THE EXTENT THAT APPLICABLE LAW PERMITS SUCH LIMITATIONS AND THOSE SECTIONS WILL NOT IN SUCH CASE AFFECT THE VALIDITY OR ENFORCEABILITY OF THE REMAINING TERMS OF THIS AGREEMENT.
- Mutual Indemnification. Each Party agrees to defend, indemnify and hold harmless the other party, its affiliates, employees, officers, agents, licensors and permitted successors and assigns from all damages and liability including, without limitation, reasonable attorney’s fees, incurred as a result of such Party’s violation of its obligations under this Agreement, or the grossly negligent or wilful acts of such Party. Each Party’s obligation to indemnify under this provision shall survive termination of the term of this Agreement.
- NorthText Indemnification. NorthText shall defend or settle any claim, suit, or action against Customer based on an allegation that the Services or Software infringes any third party’s patent or copyright. In defending or settling any infringement claim, NorthText may, at its sole option and expense (i) procure the right to continue offering the Services or Software, (ii) modify the Services or Software so that they are non-infringing, (iii) procure a replacement product that has substantially the same functionality, or (iv) if none of the above options is reasonably available, terminate the term of this Agreement and Customer’s right to use the Services or Software hereunder. Notwithstanding the foregoing, NorthText indemnification obligation shall not apply unless Customer delivers to NorthText written notice of a claim or threatened claim promptly after Customer has notice or knowledge of such claim or threat and NorthText is given the opportunity to control the defence of such action. Additionally, NorthText indemnification obligation shall not apply if the Services or Software involved have been altered in any way by Customer or others and such infringement or claimed infringement would not have been alleged but for the alteration. THIS SECTION STATES NorthText ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM, SUIT, OR ACTION ALLEGING INFRINGEMENT OF ANY THIRD-PARTY PATENT OR COPYRIGHT.
- Customer Indemnification. Customer agrees to defend, indemnify and hold harmless NorthText, its affiliates, employees, officers, agents, managers, members and successors and assigns from all damages and liability such Persons may incur, including, without limitation, reasonable legal fees, arising from or as a result of (i) Customer’s, or its employees, agents, or a third party’s use (whether or not such use is approved) of the Services or Software under the Customer’s account, or (ii) any violation of Law by the Customer, its employees, or its agents.
- The Term of this Agreement will commence on the Effective Date and will continue on a month to month basis until terminated by either Party upon written notice to the other.
- Termination for Default. Except as provided in Section 4.2, in the event that either Party materially defaults in the performance of any of its duties or obligations under this Agreement and does not substantially cure such default, or commence a cure, within thirty (30) days after being given written notice specifying the default, the non-defaulting Party may, by giving written notice thereof to the defaulting Party, immediately terminate the term of this Agreement. Except as provided in this Section 8, termination of the term by NorthText for Customer’s payment or other breach does not relieve the Customer from its obligations, including payment obligations, pursuant to this Agreement.
- Bankruptcy; Insolvency. If either Party becomes or is declared insolvent or bankrupt, admits in writing of its inability to pay its debts generally as they become due, is the subject of any proceedings relating to its liquidation or insolvency or for the appointment of a receiver for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, then the other Party may, by giving written notice thereof to such Party, terminate the term of this Agreement as of a date specified in such notice of termination.
- Effect of Termination. Upon termination of the term of this Agreement, (i) any rights or licenses granted to Customer under this Agreement shall be immediately terminated without further notice or action by NorthText, and (ii) each Party will return to the other Party within five (5) business days after receipt of the termination notice all Confidential Information of the other Party and all copies thereof or, at the option of the owner of the Confidential Information, will destroy the Confidential Information and provide to the other Party certificates evidencing the destruction.
- Any notice required or permitted to be given hereunder shall be in writing and be delivered by overnight mail courier, facsimile, U.S. Mail (certified; properly addressed; postage prepaid) or hand delivery, and will be deemed to have been delivered upon receipt or on the second business day following the date the notice is sent if it is not accepted by the addressee. The addresses for such communication shall be at the address first stated in this Agreement or at such other address as may be given by either Party to the other in writing.
- Independent Contractors. Each Party is an independent contractor and the parties shall not have the authority to bind, represent or commit the other to any agreement or contract without the express written permission of the other, in advance. Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership or agency relationship between the Parties.
- Entire Agreement; Amendment. This Agreement constitutes the entire agreement between NorthText and Customer with respect to the subject matter hereof, and replaces, amends and supersedes any prior agreements or oral discussions or negotiations between NorthText and Customer pertaining to the subject matter hereof. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both Parties.
- Governing Law. This Agreement will be governed and construed under the laws of the State of Illinois without regard to conflict of laws rules.
- Waiver/Severability. The waiver or failure of either Party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of this Agreement is determined to be invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted or limited to the fullest extent permitted by Law, and the balance of the Agreement shall remain enforceable.
- Force Majeure. Except for the payments due by a Party to the other and the Confidentiality and Intellectual Property provisions herein, if the performance of any part of this Agreement is prevented, hindered, delayed or otherwise made impracticable by reason of any cause or event not within the reasonable control of such Party and without its fault or negligence, that Party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
- Representation of Counsel; Mutual Negotiation. The language of this Agreement will in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any Party. The Parties agree that this Agreement has been prepared jointly and has been the subject of arms-length and careful negotiation. Each Party has been given the opportunity to independently review this Agreement with legal counsel and other consultants, and each Party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions. Accordingly, notwithstanding the general rules of construction, each Party agrees that in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, the drafting of the language of this Agreement will not be attributed to either Party.
- Assignment and Transfer; Delegation. Customer may not assign, without the prior written consent of NorthText, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part. Upon written notice to Customer, NorthText may delegate any portion of its duties or obligations under this Agreement to any third party that it deems, in its sole discretion, qualified to perform such duties and obligations.
- This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument.
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