hubley will only perform Services as requested through an Order Form. Order Forms become binding only after hubley and Customer have affirmatively agreed to all material terms and conditions concerning the requested Services, including, the scope, price, and schedule for the Services, and their duly authorized representatives have each executed an Order Form. The failure to respond to a request for Services does not result in a binding Order Form. Each Order Form is a separate contract between the Customer and hubley. Order Forms may not be oral.
By issuing a Change Order request, either party may request changed items, to include new items, or to omit current items. Each offer becomes a binding Change Order only after Customer and hubley have affirmatively agreed in writing to all material terms and conditions concerning the requested change in Services (a “Change Order”). No oral change requests constitute binding Change Orders. When the Parties reach an agreement on a Change Order Request, the Parties will memorialize the Change Order in a Change Order form.
- Ownership of Intellectual Property.
- All documents; deliverables required under an Order Form (“Deliverables”); schedules; technical data; specifications; forms; other instruments of service; concepts, ideas, processes, modifications, and methods developed, prepared, conceived, made or suggested by Customer, hubley, their employees or third parties; other proprietary information; and other work product prepared by hubley under any Order Form (“Work Product”) are and shall remain hubley’s sole and exclusive property upon creation. hubley owns the entire right, title and interest in and to the Work Product and in and to all copyrights, trademarks, and other proprietary rights in, arising from, in connection to, or based on the Work Product. hubley retains ownership of all software and other proprietary and intellectual property rights owned by hubley and developed by it, in whole or in part (“hubley’s Intellectual Property”), regardless of whether such hubley’s Intellectual Property is included in the Work Product, and nothing herein results in a transfer of ownership of any right, title or interest in Work Product or hubley’s Intellectual Property.
- With respect to such Deliverables relating to the Services, hubley hereby grants Customer an irrevocable, fully-paid, perpetual and royalty-free license to use such Deliverables for any internal purpose, but not for disclosure or transfer in any manner to any third party.
- All of Customer’s proprietary data (“Customer Data”) provided to hubley and included in the Work Product is and shall remain the Customer’s sole and exclusive property.
- Termination for Convenience.
- Either party may terminate any outstanding Order Form without cause by providing sixty (60) days’ notice of its intent to terminate.
- The Parties acknowledge and agree that hubley invests a significant amount of its resources for an Order Form upon commencement of the Services. Upon termination of an Order Form for convenience, hubley (i) hubley shall not refund any amount prepaid for the Services; and (ii) Customer shall also promptly pay hubley for all Services satisfactorily performed prior to the termination that were not prepaid, for goods/materials purchased prior to the notice of termination (to the extent the goods/materials cannot be cancelled), and for cancellation charges to cancel pending goods/materials orders.
- Termination for Cause
- If either party believes that the other party has failed in any material respect to perform its obligations under an Order Form, then that party may provide written notice to the other party’s describing the alleged failure in reasonable detail. If the breaching party does not, within thirty (30) calendar days after receiving such written notice, either (a) cure the material failure or (b) if the breach is not one that can reasonably be cured within thirty (30) calendar days, then the non-breaching party may terminate the Order Form, in whole or in part, for cause by providing written notice to the breaching party.
- Upon termination for cause due to Customer’s fault, (i) hubley shall not refund any amount prepaid for the Services; and (ii) Customer shall also pay hubley for all Services satisfactorily performed prior to the termination that were not prepaid, for goods/materials purchased prior to the notice of termination (to the extent the goods/materials cannot be cancelled), and for cancellation charges to cancel pending goods/materials orders.
- Upon termination for cause due to hubley's fault, (i) hubley shall refund the amount prepaid for the Services prorated and weighted towards the initial period of the Order Form; setoff against (ii) the value of all Services satisfactorily performed prior to the termination that were not prepaid, for goods/materials purchased prior to the notice of termination (to the extent the goods/materials cannot be cancelled), and for cancellation charges to cancel pending goods/materials orders.
- Either party shall have the immediate right to terminate an Order Form, by providing written notice to the other party, in the event of the other party’s fraud, intentional misconduct, gross negligence, or bankruptcy.
- hubley will continue to perform Services during the notice period unless otherwise mutually agreed upon by the Parties in writing. In the event that Customer provides the notice of termination and directs hubley not to perform the services through the notice period, Customer agrees to pay hubley an amount equal to the amount normally due to hubley for the notice period.
- CUSTOMER ACKNOWLEDGES AND AGREES THAT UPON TERMINATION OF THIS AGREEMENT OR A ORDER FORM (I) HUBLEY WILL IMMEDIATELY CEASE TO SERVICE OR UPGRADE THE SOFTWARE PORTION OF THE SERVICES THAT REMAINS IN THE CUSTOMER’S INFRASTRUCTURE, (II) THE CUSTOMER’S CONTINUED USE THE SOFTWARE PORTION OF THE SERVICES IS AT CUSTOMER’S SOLE RISK AND THAT THE SOFTWARE REMAINS IN CUSTOMER’S POSSESSION ON AN “AS IS, WHERE IS, WITH ALL FAULTS” BASIS, AND (III) CUSTOMER AGREES TO RELEASE, PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS HUBLEY AND ITS AND ITS SHAREHOLDERS, MEMBERS, MANAGERS, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, AND HUBLEYS FROM AND AGAINST ANY AND ALL DEMANDS, ACTIONS, CLAIMS, LIABILITIES, LOSSES, OR DAMAGES OF ALL KINDS AND DESCRIPTIONS, INCLUDING PUNITIVE, COMPENSATORY, CONSEQUENTIAL, DIRECT, INDIRECT, EXEMPLARY, GENERAL OR SPECIAL DAMAGES, LOST PROFITS, SPECIFIC PERFORMANCE, AND REASONABLE ATTORNEYS’ FEES, EXPERT FEES, AND COSTS WHATSOEVER RELATED TO OR ARISING OUT OF SUCH CONTINUED USE.
- To the extent that any Work Product and hubley’s Intellectual Property, other than the Deliverables (“hubley IP”) remains in Customer’s computer system or in its archived backup, Customer acknowledges and agrees that it is bound by its confidentiality and nondisclosure obligations in the NDA so long as the hubley IP remains in Customer Group’s system(s) and regardless of the time periods stated in the NDA.
In addition to any obligations and responsibilities described in the Order Form, Customer shall have shared responsibility with hubley regarding the following:
- To ensure that the necessary business and application knowledge is available and conveyed from the Customer’s existing support team to hubley’s support team, and from the hubley’s support team to Customer’s support team;
- Provide throughout the term of and Order Form ready access to all appropriate computing platforms, documentation (e.g., program source, copybooks, tables, subroutines) and personnel (i.e., end users and technical representatives) necessary to fully understand the current business systems and environments;
- Provide necessary access to the Customer’s environments, files, and data, as required on a confidential basis, while avoiding access to nonpublic information concerning customers or employees of Customer; and
- If required by the scope of the Services provided in an Order Form, Customer will ensure that hubley has reasonable access to and from the sites where hubley may be working or needs to work.
- hubley represents and warrants to Customer that:
- It will perform the Services using an adequate number of personnel of required skill, experience and qualifications, and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services, and will devote adequate resources to meet its obligations under an Order Form;
- To hubley’s actual knowledge, the Deliverables, as delivered by hubley and used in accordance with the applicable Order Form: (1) will not infringe, misappropriate or otherwise violate any intellectual property rights or other rights of any third-party; and (2) will comply with all applicable laws;
- In performing the Services hereunder, hubley will comply with all applicable laws;
- to hubley’s actual knowledge, when delivered, all Deliverables will not contain any virus, Trojan horse, worm, malware or other software the effect of which is to permit unauthorized access or to disable, erase, corrupt or otherwise harm any computer, systems or software; and
- When delivered and for the duration of an Order Form (the “Warranty Period”), the Deliverables will be, and will function, in all respects in conformity with the applicable Order Form.
- If any non-conformity with the above warranties is discovered during such Warranty Period, Customer’s sole and exclusive remedy therefor shall be hubley’s prompt remedy of such non-conformity at hubley’s sole cost and expense.
- hubley makes no warranty regarding any goods supplied or materials used by hubley in the Services. hubley will assign, to the extent it can, all manufacturers’ warranties that apply to said goods or materials, and said manufacturers’ warranties are Customer’s sole and exclusive remedy regarding defects in said goods and materials.
- OTHER THAN DESCRIBED ABOVE, HUBLEY MAKES NO EXPRESS OR IMPLIED WARRANTIES AND MAKES NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL HUBLEY BE LIABLE FOR INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES. HUBLEY SHALL NOT BE RESPONSIBLE FOR LOSS OF DATA NO MATTER HOW CAUSED AND INCLUDING WITHOUT LIMITATION RESULTING FROM DELAYS, NON-DELIVERIES, MIS-DELIVERIES, SERVICE INTERRUPTIONS, OR OTHER INTERRUPTIONS WHETHER CAUSED BY HUBLEY, CUSTOMER OR ANY OTHER PERSON OR ENTITY.
Limitations of Liability
- HUBLEY SHALL NOT BE LIABLE TO RESELLER FOR ANY PUNITIVE OR EXEMPLARY DAMAGES, NOR FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES SUFFERED BY CUSTOMER, INCLUDING (WHETHER DETERMINED TO BE DIRECT OR CONSEQUENTIAL) LOSS OF INCOME OR PROFITS OR ANTICIPATED PROFITS FOR WORK NOT PERFORMED, OR ANY OTHER INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF HUBLEY; AND
- HUBLEY’S TOTAL LIABILITY TO FOR ANY CLAIM ARISING UNDER OR RELATED TO THIS AGREEMENT OR AN ORDER FORM SHALL NOT EXCEED THE LESSER OF THE TOTAL VALUE OR THE ANNUAL VALUE OF THE APPLICABLE ORDER FORM GIVING RISE TO THE CLAIM.
Each party hereto shall be excused from performance hereunder for any period and to the extent that it is prevented from performing any Services pursuant hereto in whole or in part, as a result of delays caused by the other party or an act of God, or other cause beyond its reasonable control and which it could not have prevented by reasonable precautions and such nonperformance shall not be a default hereunder or a ground for termination hereof. hubley’s time of performance shall be enlarged, if and to the extent reasonably necessary, and hubley’s compensation shall be increased to cover additional costs incurred by hubley in the event: (i) that Customer fails to submit information, instructions, approvals, or any other required element in the prescribed form or in accordance with the agreed upon schedules; (ii) of a special request by Customer or any governmental agency authorized to regulate, supervise, or impact hubley’s normal processing schedule; (iii) that Customer fails to provide any equipment, software, premises or performance called for by the Order Form, and the same is necessary for hubley’s performance hereunder. hubley will notify Customer of the estimated impact on its processing schedule and additional costs, if any.