This License, dated as of 3/23/2023 (the “Agreement”), by and between hh2 Cloud Services, LLC, a Delaware limited liability company (“HH2”) and the customer (“Licensee”). HH2 and Licensee are also referred to herein, individually, as “party” and, collectively, as “parties”. This Agreement is effective on the date that the first Authorized User indicated their acceptance of this Agreement (“Effective Date”).
WHEREAS, HH2 has joined the appropriate Development Partner Program for each Construction ERP it integrates with, if such a Development Partner Program exists and has allowed HH2 entrance;
WHEREAS, HH2 owns certain software, databases, and equipment for providing cloud-based software and integration platform, including source code, servers, user interfaces, libraries, websites, database schemas, apps, packages as a service or subscription (the “Software” or “Subscription” to the Software), designed to interface with construction ERP; and
WHEREAS, HH2 provides the Software as a service to clients and Independent Software Vendor resellers (“ISV”);
WHEREAS, Licensee is the user of the Software;
WHEREAS, HH2 is willing to license Licensee to access HH2’s database and use the Software on the terms and subject to the conditions of this Agreement; and WHEREAS, Licensee may have received a hh2 Cloud Services Sales Order Form (“Sales Order Form” or “Sales Order”) in connection with directly purchasing access to HH2’s Software;
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, the issuance of certain membership interests in HH2 to the members of Licensee, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Services. Subject to the terms and conditions set forth below, HH2 will (a) permit Licensee, and its employees and agents who register under Licensee’s Account (“Users”), to use the Software; and (b) provide Licensee support as set forth in Section 7 below (collectively, “Services”).
2. Licensee’s and User’s Accounts. Upon receipt of (a) current and complete information about Licensee, and (b) Licensee’s execution of a Sales Order and/or this Agreement by an Authorized User, and (c) payment in full of any Service Fees by the Licensee, or the ISV on the Licensee’s behalf, which are due and payable as a condition of account registration or set-up, HH2 shall issue an account identifier and access password to Licensee (“Licensee’s Account”). Following issuance of Licensee’s Account and an Authorized User indicates their agreement with this End User License Agreement (“EULA”) on behalf of the Licensee, User accounts (“User Accounts”) may be set up on demand. Each and every User that uses the Software hereby agrees to all terms and conditions of the EULA. Each User Account shall be dependent upon the continuing validity of Licensee’s Account and shall terminate or expire automatically upon any termination or expiration of Licensee’s Account. If Licensee or any User does not accept all of the terms and conditions, Licensee or User, as the case may be, must immediately cease and desist from any further access or use of the Website or Services provided by HH2. Neither Licensee nor any User shall market, distribute, sell, or otherwise transfer to any third party all or any part of the Services or any access to the Software or Licensee’s or User’s Account.
3. License. Upon activation of a Licensee Account or a User Account (as the case may be), HH2 hereby grants to Licensee and its registered Users only the nonexclusive, revocable, nontransferable license to access and use the Software, in object code format only, solely for Licensee’s internal business purposes (“Permitted Uses”). Except for the foregoing, all rights in the Software are reserved to HH2. The HH2 Products will at all times remain the exclusive, sole, and absolute property of HH2 or the third parties from whom HH2 has obtained the right to use the HH2 Software. Except for the license granted to Licensee in this Agreement, neither Licensee nor any User will have interest in the HH2 Software. All rights, title, and interest in or to any copyright, trademark, service mark, trade secret, and other proprietary right relating to the HH2 Software and the related logos, product names, etc. are reserved and all rights not expressly granted are reserved by HH2 and such third parties. Licensee may not obscure, alter or remove any copyright, trademark, service mark or proprietary rights notices on any HH2 Software. Neither Licensee nor any of its Users shall: (i) copy, install, download or read the Software into memory on any computer, file server or other storage device; (ii) modify, enhance, alter or otherwise create derivative works based upon or derived from the Software; (iii) sell, transfer, assign, lease, loan, rent, sublicense, reproduce, duplicate, or distribute the Software or any rights therein to any third party; (iv) provide items or services for third parties using the Software or Services in any manner; or (v) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software.
4. Fees, Taxes and Payment Terms.
4.1. Fees for Services. In exchange for the Services provided by HH2, Licensee shall pay to HH2 the service fees set forth in the Sales Order, the product fee schedule found on hh2.com, or attached hereto as Schedule A (“Fee Schedule”) or ISV shall pay to HH2 the service fees on their behalf per written agreement with the ISV (collectively “Service Fees”). Unless otherwise agreed to in writing, HH2 reserves the right to adjust its prices or otherwise modify the Fee Schedule by providing thirty (30) days written notice to Licensee or ISV on behalf of the Licensee, after which the fees payable by Licensee to HH2, or ISV to HH2 on Licensee’s behalf, shall automatically adjust to the then-current Fee Schedule at the end of the 30-day period. Unless otherwise provided in the Sales Order, Schedule A, or by written agreement of ISV on Licensee’s behalf, Service Fees shall be calculated by HH2 pursuant to the product fee schedule on hh2.com based upon usage data in HH2’s possession (such as number of employees, number of Users, data storage requirements, usage levels, etc., in each case by reference to the maximum usage levels) during the preceding calendar month. Unless otherwise provided in the Fee Schedule, (i) any up-front Service Fees shall be due and payable as a condition precedent to activation of Licensee’s Account; and (ii) all other amounts shall be due and payable within thirty (30) days after the date of HH2’s invoice therefor.
4.2. Prepayment. Upon written agreement, a Licensee may prepay for a specified period of time. If Licensee has prepaid for a given period, then Licensee will not be subject to a Fee Schedule adjustment for that period that has been prepaid. After the prepaid period has expired, Licensee is subject to the then-current Fee Schedule. Notwithstanding the foregoing, Licensee may be required to pay overages according to Section 4.3 of this Agreement.
4.3. Overage Charges/Sales Order Adjustment. If Licensee exceeds the usage tier that was agreed to in the Sales Order, then the Licensee may choose to adjust their Sales Order to the higher tier for the remainder of the Term or be subject to overage charges. The (“Sales Order Adjustment”) charge is the difference in price between the usage tier indicated in Sales Order and the usage tier the Licensee is currently operating at for each month remaining in the Term, payable in the month where usage was first exceeded. The (“Overage Charge”) is the difference in price between the usage tier indicated in Sales Order and the usage tier the Licensee is currently operating, plus an additional fee of 25% of the difference. The Overage Charge may be added to each month that the Licensee is in excess. By default, the Overage Charge will be applied. However, the Licensee may unilaterally request in writing to be subject to the Sales Order Adjustment instead, if done within 30 days of the Overage Charge being assessed and payment is made in full before the original invoice with the Overage Charge is due. After signing a new Sales Order Adjustment form, the original Overage Charge invoice will be voided, and a new invoice will be issued reflecting the Sales Order Adjustment and is due on the same date as the original invoice.
4.4. Taxes. Licensee will pay directly, or will pay to HH2 or ISV, an amount equal to all applicable taxes or similar fees levied or based on this Agreement or the Services, exclusive of taxes based on HH2's net income.
4.5. Payment Terms. Unless otherwise agreed to in writing, Licensee will pay all invoices to HH2 or to the ISV for use of the Software in full within thirty (30) days of the invoice date. In cases where the Licensee pays HH2 directly, all amounts not paid when due are subject to a late payment charge of the greater of $25 or 1.5% per month (not to exceed the maximum allowed by law) of the past due amount from the due date until the date paid. All fees are shown in U.S. Dollars and all payments will be made in U.S. Dollars. 4.6. Billing. HH2 shall send an electronic invoice to the Licensee, to the email address specified in the Sales Order, annually unless otherwise agreed upon in writing. HH2 does not send out physical/paper bills.
4.6. Shut Down/Suspension of Services. HH2 reserves the right to shut down or suspend services once any amount that is due to HH2 is over ninety (90) days past due. Notwithstanding the foregoing, all amounts due under the Sales Order, the Fee Schedule at hh2.com, or Schedule A, will continue to accrue until the end of the Term, and will be and remain payable to HH2, even in cases where services are suspended.
4.7. Collection Expenses. Licensee will reimburse HH2 for all reasonable expenses HH2 may incur, including reasonable attorney fees, in collecting any amounts past due under this Agreement. HH2 may turn the Licensee debt over to collection agencies to collect all fees and any late payment penalties (if applicable) up to the maximum allowed by law. 4.8. Discounts/Promotions. Unless otherwise specified in writing all promotional discounts apply to the first year Fees only while the Licensee is compliant with the terms and conditions of the discount. Unless otherwise specified in writing all other discounts apply while the Licensee is compliant with the terms and conditions of the discount. All discounts and promotions require the Licensee to make timely payments. HH2 reserves the right to remove and/or adjust discounts when Licensee does not make timely payments.
5. Access to Software.
5.1. Use of Services via the Internet. This provision applies to any Services which are being provided to Licensee via the Internet or which Licensee may access via the Internet. The security of transmissions over the Internet can never be guaranteed. HH2 is not responsible for Licensee’s access to the Internet, for any interception or interruption of any communications through the Internet, or for changes to or losses of data through the Internet. In order to protect Licensee and Licensee’s data, HH2 may suspend Licensee’s use of the Services via the Internet immediately, without notice, pending an investigation, if any breach of security is suspected. Licensee acknowledges that the speed and latency of Licensee’s internet connection will impact the speed and operation of HH2’s Software. If the speed and latency of Licensee’s internet connection is not adequate, HH2’s Software may not function properly.
6. Account Responsibility. As between HH2 and each User, User shall be responsible for all activities occurring under his, her or its Account. As between HH2 and Licensee, Licensee shall be responsible for all activities occurring under his, her or its Account or any of its User’s Accounts.
7. Licensee Support and Training. In cases where support is included in writing, HH2 will provide limited Licensee support, only to authorized representatives of Licensee, for resolution of issues during HH2’s normal business hours and otherwise in accordance with its normal business practices. Notwithstanding anything to the contrary in the Agreement, unless separately purchased and otherwise agreed in Schedule A or a separate written contract between HH2 and Licensee (specifying therein the training and implementation services to be provided and the compensation therefore payable to HH2), HH2 shall have no obligation to provide training, implementation, or similar services to Licensee or its Users. HH2 reserves the right to refer Users to their ISV in cases where the ISV is contractually obligated to provide support. 7.1 Standard Support. If included in the Sales Order, Standard Support includes the bare essentials training and implementation to get new subscriptions of the Software up and running along with a set number of support incidents that can be used in each 12-month term. Standard Support is only available to companies that have multiple business entities and are already well acquainted and trained in the Software and have redundant subscriptions where one is already subscribed to Pro-Support. The exact amount of training and implementation time and the exact number of annual support incidents will vary based on the module of Software being subscribed to. Unless otherwise agreed to in writing, additional annual support incidents can be purchased at $150 per incident and additional training and implementation time can be purchased at $200 per hour in blocks of 4 hours or ad hoc at $250 per hour rounded up to the hour. All annual support incidents and training and implementation time expires 12 months after purchase. HH2 reserves the right to increase the monthly subscription Fees by $10 or the annual subscription Fees by $120 for each incident the Licensee uses beyond what is agreed to in the Sales Order. Licensee will not be billed for used annual support incidents if they are the result of bugs or defects in the Software. Additional support terms and conditions are kept up to date at http://www.hh2.com/support.
7.1 Pro-Support. If included in the Sales Order, Pro-Support includes sufficient support, training, and implementation to get new subscriptions of the Software up and running. Pro-Support is generally required for companies that are new to using the Software, are implementing one of HH2’s more complex modules, or who wish to add support for complex or proprietary workflows. Pro-Support includes additional support, training, implementation, and other benefits on top of Standard Support. Most new subscriptions to the Software require Pro-Support. Pro-Support will be renewed each year along with the subscription Fees. If the billing frequency is Monthly, then the extra annual support incidents are billed monthly, but the rest of the Pro-Support fees specified on the Sales Order will be re-billed annually. Subscriptions to Pro-Support may not be downgraded to Standard Support. Additional Pro-Support terms and conditions are kept up to date at http://www.hh2.com/prosupport.
8. Licensee and User Indemnification Obligations. Licensee and each User shall jointly and severally indemnify, defend, and hold harmless HH2 and its officers, directors, employees, agents, and attorneys from and against any and all third-party claims, demands, causes of action, or liabilities, of any kind or nature, including reasonable attorneys’ fees, arising from or related to any acts or omissions of Licensee or any of its User, including claims arising out of misuse of the Software by Licensee or any of its Users, or any breach of any of the covenants or conditions of this Agreement's terms and conditions by the Licensee or any of its Users.
9. Protection of Licensee Files. HH2 will take precautions which are commercially reasonable within the industry in which the Services are being provided to prevent the loss of or alteration to Licensee’s data files in HH2’s possession (“Personal Information”). Licensee will, to the extent it deems necessary, keep copies of all source documents of the information delivered to HH2 or entered by Licensee or on behalf of Licensee into the HH2 system and will maintain a procedure external to the HH2 system for the reconstruction of lost or altered data files. HH2 agrees that it does and shall continue to provide such level of security as set forth herein. HH2 employs and shall continue to employ policies and practices to protect Licensee’s Confidential Information during the term of this Agreement and following termination until all such Confidential Information is destroyed or returned to Licensee. HH2 shall implement and/or maintain an information security program that includes administrative, technical, and physical safeguards and other security measures that are commercially reasonable within the industry. Licensee and each User shall at all times maintain original and duplicate or backup copies of his, her or its data, including but not limited to business records, Confidential Data and Content. Notwithstanding anything to the contrary in this Agreement, in the event of loss, destruction, or deletion of any data files maintained by HH2, HH2 shall have no responsibility and no liability for the loss, destruction or deletion or failure to retain archival or backup data files.
10. Nondisclosure. Nondisclosure. All Confidential Information disclosed under this Agreement will remain the exclusive and confidential property of the disclosing party. The receiving party will not disclose the Confidential Information of the disclosing party and will use at least the same degree of care, discretion, and diligence in protecting the Confidential Information of the disclosing party as it uses with respect to its own confidential information; provided; however for the avoidance of doubt, HH2 will limit disclosure of, and otherwise protect, Licensee’s Confidential Information pursuant to all other applicable terms and conditions of this Agreement. The receiving party will limit access to Confidential Information to its employees that need to know the Confidential Information and will instruct those employees to keep the information confidential. Each receiving party shall cause each of its employees who have access to the other party’s Confidential Information to sign an agreement to keep such information confidential. The Agreement between HH2 and its employees shall include a provision giving Licensee the right to enforce the confidentiality obligation of HH2’s employees with respect to Licensee’s Confidential Information. It is understood, however, that HH2 may disclose the Licensee’s Confidential Information on a need-to-know basis to HH2’s subcontractors, if any, who perform Services for HH2, provided such HH2 subcontractors have executed confidentiality agreements. In addition, HH2 will establish and follow reasonable security measures to prevent unauthorized access to Licensee’s data files. Notwithstanding the foregoing, the receiving party may disclose Confidential Information (i) to the extent necessary to comply with any law, rule, regulation or ruling applicable to it, (ii) as appropriate to respond to any summons or subpoena or in connection with any litigation and (iii) to the extent necessary to enforce its rights under this Agreement. Where legally permissible, the recipient shall provide the disclosing party with prompt notice of any order, summons, subpoena, or similar action of a court or governmental agency, so that a protective order or other appropriate relief may be sought by the disclosing party. Notwithstanding anything to the contrary in this Agreement, the following data (“Diagnostics, Usage, Configuration, and Industry Data”) shall not be deemed Confidential Information and shall be owned by HH2 once it is queried: (1) HH2 may query any data source connected to it for diagnostics, configuration, and usage patterns that would help HH2 support the Licensee, better understand the Licensee’s business, and determine which HH2’s products and services can be of use. (Examples include but are not limited to: querying configuration in ERP to help setup an hh2 product, querying what version of ERP is installed to ensure API compatibility, or querying the hardware specs of the ERP server to ensure it meets minimum specifications) (2) Any data that is uploaded to or passed through HH2’s Software may be queried for anonymous data (data that doesn’t identify the Licensee) that hh2 may use to establish patterns in the industry, provide aggregate reporting and analysis in the industry, and how the Licensee is using the software. (Examples include but are not limited to: querying employees with time coded to them for billing purposes, querying active employees count for industry analysis…etc.) Upon the request of the disclosing party, the receiving party will return or destroy all Confidential Information of the disclosing party that is in its possession. The provisions of this Section 10 will survive the termination of this Agreement. For purposes of this Agreement, “Confidential Information” means all information that is confidential or proprietary provided by the disclosing party to the receiving party for use in connection with the Services, but does not include (a) information the receiving party already knows (b) information that becomes generally available to the public except as a result of disclosure by the receiving party in violation of this Agreement, (c) information that becomes known to the receiving party from a source other than the disclosing party on a non-confidential basis, and (d) Diagnostics, Usage, Configuration, and Industry Data. Confidential Information also includes all trade secrets, processes, proprietary data, information or documentation, or any pricing or product information the disclosing party provides to the receiving party.
11. Third-Party Software. The website through which the Software and Services are provided may contain links to internet websites, software and/or other electronic resources owned, controlled, or operated by third parties (“Third Party Websites”). HH2 exercises no control whatsoever over such other Third-Party Websites or the data, information, content, or other materials found on such Third-Party Websites. HH2 shall not be liable under any circumstance, and bears no responsibility, for any loss or damage arising from or related to any data, information, content, or other materials found at any such Third-Party Website or the operation or use thereof. HH2 shall not be responsible or liable, directly, or indirectly, for any damage or loss incurred or suffered by Licensee or any User in connection with the access or use of any such Third-Party Websites.
12. Disclaimer of Warranty. Except as otherwise expressly provided in this Agreement, use of the Software and the Services is at Licensee’s and each User’s sole risk. Except as otherwise expressly provided in this Agreement, the Software and the Services are provided on an “as is” and “as available” basis and HH2 assumes no responsibility for the timeliness, deletion, mis-delivery, or failure to store any data or information. Licensee and each User will be solely responsible for any damage to his, her, or its computer system or loss of data which results from the download of any such material. HH2 EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEROPERABILITY, AND NON-INFRINGEMENT. SPECIFICALLY, HH2 MAKES NO WARRANTY THAT (i) THE SOFTWARE, OR ANY SERVICES WILL MEET LICENSEE’S OR USER’S REQUIREMENTS, (ii) ACCESS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (iii) THE QUALITY OF ANY CONTENT, SOFTWARE, DATABASE, SERVICES OR REPORTS OBTAINED BY LICENSEE OR ANY USER WILL MEET HIS, HER OR ITS EXPECTATIONS, OR (iv) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED OR CORRECTED IN TIMELY MANNER.
13. LIMITATION OF DAMAGES; WAIVER. HH2 SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF HH2 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM LICENSEE’S OR ANY USER’S USE OR INABILITY TO USE THE SOFTWARE, THE SERVICES, OR ANY REPORTS GENERATED THEREBY; THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, SOFTWARE, INFORMATION OR CONTENT; UNAUTHORIZED ACCESS TO OR ALTERATION OF LICENSEE’S OR USER’S TRANSMISSIONS OR DATA; OR ANY OTHER MATTER RELATING TO THE SERVICES OR THE SOFTWARE. IN NO EVENT SHALL HH2’S LIABILITY TO LICENSEE, ANY PARTICULAR USER OR OTHER PARTY EXCEED THE SERVICE FEES ACTUALLY PAID BY LICENSEE TO HH2 OR PAID BY THE ISV TO HH2 ON THE LICENSEE’S BEHALF OVER THE SIXTY (60) DAY PERIOD IMMEDIATELY PRECEDING THE DATE OF THE ACT, EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL HH2’S TOTAL CUMULATIVE LIABILITY TO LICENSEE OR ITS USERS EXCEED US$1,000.00 IN ANY CALENDAR YEAR. UPON HH2’S PAYMENT OF SUCH AMOUNTS, IF ANY, TO LICENSEE, HH2 SHALL BE, AND HEREBY IS, AUTOMATICALLY RELEASED AND DISCHARGED FROM ANY FURTHER LIABILITY OF ANY KIND OR NATURE TO LICENSEE OR ITS USERS ARISING FROM OR RELATED TO THE ACT, EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY APPLY, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY CAUSED BY THE FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF ANY ASSET, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR ANY OTHER COURSE OF ACTION BY HH2. REMEDIES HEREIN PROVIDED SHALL BE DEEMED THE SOLE AND EXCLUSIVE AVAILABLE REMEDY(IES); AND LICENSEE AND EACH USER STIPULATES AND AGREES THAT THE EXCLUSIVE REMEDY(IES) HEREIN PROVIDED FULLY SATISFY THEIR ESSENTIAL AND INTENDED PURPOSES (MORE PARTICULARLY, LICENSEE AND EACH USER STIPULATES AND AGREES THAT THE EXCLUSIVE REMEDY(IES) PROVIDED HEREIN WILL, DESPITE THE DIFFICULTY INHERENT IN DETERMINING ACTUAL DAMAGES WHICH MIGHT BE INCURRED OR SUFFERED BY LICENSEE, PROVIDE LEGALLY ADEQUATE MONETARY AND OTHER COMPENSATION TO LICENSEE). FURTHER, LICENSEE AND EACH USER ACKNOWLEDGES AND STIPULATES THAT THE EXCLUSIVE REMEDY(IES) HEREIN ARE BARGAINED FOR, IN EXCHANGE FOR LOWER SERVICE FEES THAN WOULD OTHERWISE APPLY, AND THEREFORE SUCH REMEDIES DO IN FACT SATISFY THEIR ESSENTIAL AND INTENDED PURPOSES. THE SPECIFICATION OF REMEDIES HEREIN IS INTENDED TO EXCLUDE ANY OTHER RIGHTS OR REMEDIES AT LAW OR IN EQUITY WHICH MAY BE AVAILABLE TO LICENSEE.
14. Notices. All notices, requests or other communications shall be in writing and shall be delivered via internet e-mail as follows: if to Licensee or any User, addressed to the email address on file HH2; and if to HH2, addressed to the following e-mail address: email@example.com. All notices, except notices of change of address, shall be deemed given when electronically mailed and notices of change of address shall be deemed given when received.
15. Term. Unless otherwise agreed to in Sales Order, the term of this Agreement shall commence on the Effective Date or the date set forth in Sales Order and shall continue on an annual basis (every 12 months) until terminated at the end of the Term upon 30 days prior written notice (the “Term”). Month-to-month Term(s) may only be used upon mutual written agreement and, unless otherwise agreed to in writing, shall commence on the Effective Date, or the date set forth in the Sales Order, and shall continue on a monthly basis until terminated upon 30 days prior written notice. If the Licensee wishes to cancel the subscription before the end of the Term, and the billing frequency is monthly, then the Licensee agrees to pay the remaining balance of the Term, including all future months of service up to the end of the Term.
16. Renewals. Unless Licensee notifies HH2, in writing, 30 days before the end of Term, the Licensee’s Subscription(s) and this Agreement will renew for 12 months automatically. HH2 will charge the account on file for the renewal Term. Licensee will be bound by current pricing at the time of renewal for the Subscriptions to the Software and Subscriptions to Pro-Support (if applicable) unless otherwise specified in writing. HH2 may automatically renew the Sales Contract at the lowest pricing tier that would prevent overage charges to Licensee or at the pricing tier of the previous Term at HH2 exclusive option. In the case where HH2 automatically renews the Licensee’s Subscriptions and this Agreement, Licensee will have 30 days to dispute the new annual renewal terms and billing tiers, whereupon they will become binding.
17. Termination of Software or Account Access. Any Licensee or User Account may be immediately terminated without notice for reasons that include, but are not limited to, the following: (i) Licensee’s failure to pay any Service Fees as and when due; (ii) violation of Rules promulgated by HH2; (iii) abuse of HH2’s resources or attempts to gain unauthorized access to the Software, restricted Accounts or Confidential Information or data contained in other Accounts; (iv) use of Services in a manner inconsistent with the Permitted Use; (v) use of the Services in any pornographic, unethical, disparaging or criminal manner, as determined by HH2 in its reasonable discretion, (vi) HH2 determines, in its reasonably exercised discretion, that Licensee’s or any User’s Registration Data is untrue, inaccurate, not current or incomplete in any material respect and (vii) as required by applicable laws, rules, regulations, or orders of court or governing agencies of competent jurisdiction. In any such case, HH2 shall not be liable to Licensee or any User or other third party for any termination of any Account or access to the Software or Services. All sales are final. HH2 shall have no obligation and Licensee shall not have any right to a refund upon termination of this Agreement.
18.1. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior agreements, arrangements and understandings related to the subject matter hereof. No representation, promise, inducement or statement of intention has been made by either of the parties that is not embodied in this Agreement or in the documents referred to herein, and neither of the parties shall be bound by or be liable for any alleged representation, promise, inducement or statement of intention not set forth or referred to herein.
18.2. Governing Law. This Agreement shall be governed by, construed by, and enforced in accordance with the substantive laws of the state of Utah, without regard to conflicts of law principles. Each of the parties hereto consent to jurisdiction and venue in the state and federal courts for Salt Lake County, Utah. By executing this Agreement, Licensee and User irrevocably and unconditionally consents to and submits him, her or itself to the jurisdiction of the state and federal courts located in Salt Lake County, UT, and hereby waives any defense or objection, whether procedural or otherwise, based upon lack of personal jurisdiction, inconvenient forum or the like.
18.3. Notice of Infringement. In the event that Licensee or any of its Users become aware of any infringement of the Software by a third party or if a claim is made against either party alleging that the Software infringes the proprietary rights of another party, then such party shall immediately notify the other party of such claim or infringement providing as much information as is readily available to the notifying party.
18.4. Amendments; Waiver. This Agreement may not be amended, modified, superseded or canceled, nor may any of the terms, covenants, representations, warranties, conditions or agreements herein be waived, except by a written instrument executed by the party against whom such amendment, modification, supersedure, cancellation or waiver is charged. The failure of either of the parties at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver by either of the parties of any condition, or of any breach of any term, covenant, representation, warranty, condition or agreement contained herein, shall be deemed to be or shall be construed to be a waiver or continuing waiver of any such condition or breach or a waiver of any other condition or of the breach of any other term, covenant, representation, warranty, condition or agreement hereof.
18.5. Independent Contractor. Neither party nor any of their employees, representatives, subcontractors or agents shall be considered an employee of the other party for any purpose. Neither party or their employees, representatives, subcontractors and agents shall have authority to make representations on behalf of the other party or to bind the other party in any manner.
18.6. Headings; Construction. The captions and headings contained herein are for convenience of reference only, and shall not in any way affect the meaning or interpretation of this Agreement. Notwithstanding any rule or maxim of construction to the contrary, any ambiguity or uncertainty in this Agreement shall not be construed against either of the parties based upon authorship of any of the provisions hereof.
18.7. Invalidity. If any of the provisions of this Agreement shall be found to contravene any binding law or governmental regulation, it is agreed that the invalidity, unenforceability or illegality of such provision should not invalidate the whole of this Agreement, but this Agreement shall be construed as if it did not contain the provision or provisions found to be invalid in the particular jurisdiction(s) concerned, and the rights and obligations of the parties hereto shall be construed and enforced accordingly.
18.8. Force Majeure. Any party to this Agreement will be excused from performance under this Agreement for any period of time that the party is prevented from performing its obligations under this Agreement due to an act of God, war, earthquake, civil disobedience, court order, or other cause beyond the party’s reasonable control. Such non-performance will not constitute grounds for default.
18.9. Assignment. Licensee shall not assign, transfer, delegate, sublicense or subcontract, in whole or in part, directly or indirectly, by operation of law, any of its rights or obligations under these Agreement without the prior written consent of HH2, which consent may be withheld in HH2’s sole discretion for any reason or for no reason, and any such assignment or transfer without prior written consent shall be null and void. In all instances, this Agreement shall be binding upon and inure to the benefit of Licensee and Licensee’s successors and permitted assigns.
18.10. Use Outside the U.S.; Export Laws. Except as otherwise specifically agreed by HH2 and the Licensee in writing, Licensee will use the Services and the HH2 Software only in the U.S., Canada, Australia and New Zealand. For any agreed upon use of the Services or the HH2 Software outside the U.S., Licensee agrees to comply with any applicable export restrictions, laws and regulations imposed from time to time by the governments of the U.S. or the other country, if any, in which the HH2 Products will be used by Licensee. Licensee’s and each User’s use of the Software and Services are, and shall be, subject to compliance with applicable laws and regulations including, without limitation, the Export Administration Act of 1979 and the Export Administration Regulations issued by the United States Department of Commerce. Licensee agrees to comply strictly with all U.S. export laws and regulations and hereby assumes sole responsibility for obtaining any licenses to export or re-export as may be required, and further represents that the neither Licensee nor any of its Users are or will be located in or resident of, or under control of another person or entity located in or resident of, any foreign jurisdiction which is subject to any embargo or prohibition imposed by the United States.
18.11. Counterparts. This Agreement may be executed by facsimile and may be executed in one or more counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument.
18.12. Attorneys’ Fees. In the event either of the parties shall bring an action in connection with the performance, breach or interpretation of this Agreement, or in any action related to the subject matter hereof, the prevailing party in such action shall be entitled to recover from the non-prevailing party in such action all reasonable costs and expenses of such action, including, without limitation, attorneys’ fees, costs of investigation, accounting and other costs reasonably incurred or related to such action.
18.13. Severability. The provisions of this Agreement are severable, and the unenforceability of any provision of this Agreement will not affect the enforceability of the remainder of this Agreement. The Parties acknowledge that it is their intention that if any provision of this Agreement is determined by a court, mediator, or arbitrator to be unenforceable as drafted, that provision should be construed in a manner designed to effectuate the purpose of that provision to the greatest extent possible under applicable law.
18.14. Further Assurances. The parties each hereby covenant and agree that, from time to time, after the date hereof, at the reasonable request of either party, and without further consideration, they will execute and deliver such other documents and instruments and take such other action as may be reasonably required to carry out in all respects the subject matter hereof and the intent of this Agreement.
18.15. No Third-Party Beneficiaries. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the parties and their respective successors or permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third person to either of the parties, nor shall any provision hereof give any third person any right of subrogation or action over or against either of the parties. 18.15 Agreement Conflict. If there is a conflict between the terms of this Agreement and the terms of the Sales Order, the Sales Order prevails.
18.16 Agreement Conflict. If there is a conflict between the terms of this Agreement and the terms of the Sales Order, the Sales Order prevails.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of the Sales Order. By paying the Service Fees on each invoice from HH2 or by paying the service fees attached to any invoice from an ISV paying Service Fees on the Licensee’s behalf, Licensee is specifically and unequivocally agreeing to all the terms and conditions of this Agreement.