1.1 The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by HubbleIQ for the HubbleIQ Product.
“Order Form” means an order form, quote or other similar document that sets forth the specific HubbleIQ Product and pricing therefor, and that references this Agreement and is mutually executed by the parties. Order Form #1 is attached hereto in Exhibit A.
2. HubbleIQ Product
2.1 Provision of HubbleIQ Product. Subject to the terms and conditions of this Agreement, HubbleIQ will make the (i) a customized desktop Chrome Extension agent, (ii) a customized version of the browser-based HubbleIQ test (the “HubbleIQ Test”), (iii) a temporary dashboard to monitor the test metrics and KPIs from the HubbleIQ Tests, and (iv) if applicable, any integrations thereto (collectively, the “HubbleIQ Product” available to Customer pursuant to this Agreement, the SLA attached in Exhibit B and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the HubbleIQ Product for its internal purposes only.
2.2 Data Security. (a) HubbleIQ will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the HubbleIQ Product (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. In furtherance of the foregoing, HubbleIQ will maintain the administrative, physical and technical safeguards to protect the security of Customer Data.
(b) To the extent that HubbleIQ processes any Personal Data (as defined in the DPA referenced below) contained in Customer Data that is subject to the GDPR (as defined in the DPA), on Customer’s behalf, in the provision of the HubbleIQ Product, the parties will execute a Data Processing Addendum ("DPA" ), and attach such DPA to this Agreement.
2.3 Customer Limitations. The rights granted herein are subject to the following restrictions (the “License Restrictions” ). Customer will not directly or indirectly:
(a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the HubbleIQ Product;
(b) attempt to probe, scan or test the vulnerability of the HubbleIQ Product, breach the security or authentication measures of the HubbleIQ Product without proper authorization or wilfully render any part of the HubbleIQ Product unusable;
(c) use or access the HubbleIQ Product to develop a product or service that is competitive with HubbleIQ’s products or Product or engage in competitive analysis or benchmarking;
(d) transfer, distribute, resell, lease, license, or assign HubbleIQ Product or otherwise offer the HubbleIQ Product on a standalone basis; or
(e) otherwise use the HubbleIQ Product outside the scope expressly permitted hereunder and in the applicable Order Form.
2.4 Customer Responsibilities.
(a) Customer acknowledges that HubbleIQ’s provision of the HubbleIQ Product is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s applications, software systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner.
(b) Customer will (i) be responsible for all use of the HubbleIQ Product under its account (whether or not authorized), (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the HubbleIQ Product and notify HubbleIQ promptly of any such unauthorized access or use and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the HubbleIQ Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and HubbleIQ will have no liability for such failure (including under any service level agreement, if applicable). In addition, Customer will be responsible for ensuring that its systems (e.g., APIs) have sufficient bandwidth to use the HubbleIQ Product.
(c) Customer will not use the HubbleIQ Product to transmit or provide to HubbleIQ any financial or medical information of any nature, or any sensitive personal data (e.g. , social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers and credit card numbers).
2.5 Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and HubbleIQ and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.
3.1 Fees. Customer will pay HubbleIQ the fees set forth in the Order Form. Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
3.2 Late Payment. HubbleIQ may suspend access to the HubbleIQ Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.
3.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes” ). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of HubbleIQ. Customer will not withhold any taxes from any amounts due to HubbleIQ.
4. Proprietary Rights and Confidentiality
4.1 Proprietary Rights. As between the parties, HubbleIQ exclusively owns all right, title and interest in and to the HubbleIQ Product and HubbleIQ’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data and Customer’s Confidential Information.
4.2 Feedback. Customer may from time to time provide HubbleIQ suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the HubbleIQ Product. HubbleIQ will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. HubbleIQ will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.3 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
4.4 Machine Learning. Customer acknowledges that a fundamental component of the HubbleIQ Product is the use of machine learning for the purpose of improving and providing HubbleIQ’s products and services. Notwithstanding anything to the contrary, Customer agrees that HubbleIQ is hereby granted the right to use (during and after the term hereof) all information submitted hereunder to train its algorithms internally through machine learning techniques for such purpose.
4.5 Performance Metrics. Customer further agrees that HubbleIQ has the right to aggregate, collect and analyze data and other information relating to the performance of the HubbleIQ Product and shall be free (during and after the term hereof) to (i) use such data and other information to improve HubbleIQ’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.
5. Warranties and Disclaimers
5.1 HubbleIQ. HubbleIQ warrants that it will, consistent with prevailing industry standards, perform the HubbleIQ Product in a professional and workmanlike manner and the HubbleIQ Product will conform in all material respects with the Documentation. For material breach of the foregoing express warranty, Customer’s exclusive remedy shall be the re-performance of the deficient HubbleIQ Product or, if HubbleIQ cannot re-perform such deficient HubbleIQ Product as warranted, Customer shall be entitled to terminate the applicable Order Form in accordance with Section 8.2(a) and recover a pro-rata portion of the fees paid to HubbleIQ for such deficient HubbleIQ Product.
5.2 Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit HubbleIQ to use the same as contemplated hereunder.
5.3 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE HUBBLEIQ PRODUCT IS INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S IT CAPABILITIES. THE HUBBLEIQ PRODUCT MAY CONTAIN BUGS, MAKE ERRORS OR MISINTERPRET IT ISSUES, AND IN SUCH CASES HUBBLEIQ CAN DISENGAGE ANY FUNCTIONALITY OF THE HUBBLEIQ PRODUCT AT CUSTOMER’S REQUEST. HUBBLEIQ DOES NOT REPRESENT OR WARRANT THAT ANY OR ALL CUSTOMER IT-RELATED ISSUES, INCLUDING THOSE RELATED TO CONNECTIVITY, WILL BE RESOLVED OR THAT HUMAN INTERVENTION WILL NOT BE REQUIRED TO RESOLVE ANY IT ISSUES. 5.4 BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH HUBBLEIQ WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY HUBBLEIQ. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. HUBBLEIQ DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR HUBBLEIQ MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.
6.1 Indemnity by HubbleIQ. HubbleIQ will defend Customer against any claim, demand, suit, or proceeding (“Claim” ) made or brought against Customer by a third party alleging that the use of the HubbleIQ Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against (or any settlement approved by HubbleIQ) Customer in connection with any such Claim; provided that (a) Customer will promptly notify HubbleIQ of such Claim, (b) HubbleIQ will have the sole and exclusive authority to defend and/or settle any such Claim (provided that HubbleIQ may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with HubbleIQ in connection therewith. If the use of the HubbleIQ Product by Customer has become, or in HubbleIQ’s opinion is likely to become, the subject of any claim of infringement, HubbleIQ may at its option and expense (i) procure for Customer the right to continue using and receiving the HubbleIQ Product as set forth hereunder; (ii) replace or modify the HubbleIQ Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term. HubbleIQ will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the HubbleIQ Product by Customer not in accordance with this Agreement; (C) modification of the HubbleIQ Product by any party other than HubbleIQ without HubbleIQ’s express consent; (D) Customer Confidential Information or (E) the combination, operation or use of the HubbleIQ Product with other applications, portions of applications, product(s) or services where the HubbleIQ Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states HubbleIQ’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
6.2 Indemnification by Customer. Customer will defend HubbleIQ against any Claim made or brought against HubbleIQ by a third party arising out of the Excluded Claims, and Customer will indemnify HubbleIQ for any damages finally awarded against (or any settlement approved by Customer) HubbleIQ in connection with any such Claim; provided that (a) HubbleIQ will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without HubbleIQ’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases HubbleIQ of all liability) and (c) HubbleIQ reasonably cooperates with Customer in connection therewith.
7. Limitation of Liability EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OR THE LICENSE RESTRICTIONS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
8.1 Term. The term of this Agreement will commence on the Effective Date of the initial Order Form and continue until terminated as set forth below. The initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
8.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
8.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
9.1 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the HubbleIQ Product.
9.2 Publicity. Customer agrees that HubbleIQ may refer to Customer’s name and trademarks in HubbleIQ’s marketing materials and website; however, HubbleIQ will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
9.3 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
9.4 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.7 Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
9.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.
9.9 Entire Agreement. This Agreement comprises the entire agreement between Customer and HubbleIQ with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by HubbleIQ, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
9.10 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.11 Government Terms. HubbleIQ provides the HubbleIQ Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the HubbleIQ Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The HubbleIQ Product was developed fully at private expense.
9.12 Interpretation. For purposes hereof, “including” means “including without limitation
Platform Fee: The HubbleIQ platform fee includes access to HubbleIQ insights dashboard, administration, and public testing infrastructure.
User License: A user license refers to an authenticated user of HubbleIQ. This information gives IT individual user insights to drive support workflows, such as outbound support and user-centric reporting. Quantity based on initial discussion and will be adjusted based on the rollout schedule.
Professional Services: UI customizations that go beyond standard HubbleIQ configuration, such as embedded web site experience and custom service portal integration, will be charged as a passthrough line item. Out of scope, professional services will be charged at $50/hour with a 1-hour minimum. Professional services will be determined per an agreement between the customer and HubbleIQ.
Availability Commitment. The HubbleIQ Product will be Available 99.0% of the time, measuredly on a calendar monthly basis (the “Availability Commitment”).
“Availability” means that Customer, including its employees and personnel, can login to the HubbleIQ Product. Availability measures will not include downtime resulting from: Upgrades: Customer will receive prior notice by email of HubbleIQ’s upgrade windows, which will be scheduled between 5pm and midnight Pacific Time to the extent feasible. Downtime due to upgrades will not exceed 2 hours per month. Pre-scheduled maintenance periods: Customer will receive at least 24 hours prior notification by email of pre-scheduled maintenance periods. Maintenance shall be scheduled between 5pm and midnight Pacific Time . Downtime due to pre-scheduled maintenance will not exceed 2 hours per month. Emergency maintenance periods: Customer will receive prior notification by email on a commercially reasonable efforts basis. These maintenance periods will involve applying critical security patches and other emergency repairs to the HubbleIQ infrastructure. The Availability Commitment does not apply to any downtime of the HubbleIQ Product that results from: Account suspension or termination due to Customer’s breach of the Agreement; Disengagement of functionality of the HubbleIQ Product due to Customer’s request; Force Majeure Events; or Customer’s or its service provider’s (e.g., ServiceNow, Slack, Skype, Microsoft Bot Framework, Okta, etc.) equipment, software or other technology. HubbleIQ will provide customers with reports on Availability upon request.
Credit. If HubbleIQ fails to achieve the above Availability for the HubbleIQ Product, Customer may claim a credit based on a monthly pro-rated amount of the annual subscription fee, as provided below.