This MasterSoftware as a Service Agreement (“Agreement”) governs Customer’s purchase and use of the HubSync services, software, deliverables, and any other product asset forth in a Service Order from HubSync (the “Services”). This Agreement is incorporated into each Service Order executed by the parties. “Customer” for purposes of this Agreement shall mean the party listed as the Customer on the applicableService Order.
BY EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT,CUSTOMER ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM“CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT ANDMAY NOT USE THE SERVICES.
HubSync’s direct competitors are prohibited from accessing theServices, except with HubSync’s prior written consent. This Agreement was last updated on July 3, 2023. It is effective between Customer and HubSync as of the date of Customer accepts this Agreement (the “Effective Date”).
- DEFINITIONS
“Customer Data” means all data andmaterials provided by Customer to HubSync for use in connection with, or aspart of Customer’s use of, the SaaS Services, including, without limitation, financialand tax information, data files, and graphics.
“Documentation” means the user guides,online help, release notes, training materials, and other documentationprovided or made available by HubSync to Customer regarding the use oroperation of the SaaS Services.
“PersonalData” means any personally identifiable information or data concerning orrelating to Customer or Customer’s employees, agents, or customers that may beused to uniquely identify or contact Customer or such employees, agents, orcustomers of Customer.
“Service Order” is a written document thatdescribes the terms under which the SaaS Services are to be provided by HubSyncto Customer and which is executed by the parties. All Service Orders under thisAgreement shall incorporate the terms and conditions of this Agreement.
“SaaS Services” shall be specified in each Service Order and shall include any software and/or deliverables.
“Subscription Term” shall mean that period specified in a Service Order during which Customer will have access and use of the software through the SaaS Services.
“Third-Party IP” will mean any intellectual property licensed or obtained by Customer from any third party and not owned by Customer or Hubsync. - SERVICES
(2.1) Subject to the terms and conditions set forth herein, including without limitation, Customer’s payment of all applicable fees, Customer will receive a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, right to access and use the SaaS Services solely for its internal business operations, subject to the terms of thisAgreement and up to the number of users documented in the applicable ServiceOrder for the Subscription Term. All rights not expressly granted to Customer are reserved by HubSync and its licensors.
(2.2) Customer shall order SaaS Services pursuant to a Service Order provided by HubSync. All services acquired by Customer shall be governed exclusively by this Agreement and the applicable Service Order. In the event of a conflict between the terms of a Service Order, any applicable Exhibit and this Agreement, the terms of this Agreement shall supersede, unless the applicable Service Order specifically states otherwise and references thisAgreement. - CUSTOMER SUPPORT
(3.1) HubSync will respond to Customer requests for support according to the terms of this Section. Technical support will be provided by HubSync viaHubSync’s internal ticketing system. Critical business support will be provided by HubSync via voice/telephone.
(3.2) Response Times. HubSync will respond to each support request according to the terms below:
(A) Technical Support: (i) For support requests made during Normal Business Hours (defined below), HubSync will respond within four (4) business hours.
(ii) For support requests made outside of Normal Business Hours, HubSync will respond within twenty-four (24)hours.
(B) Critical Business Support:
(i) For support requests made during Normal Business Hours, HubSync will respond within two (2) business hours. (ii) For support requests made outside of Normal Business Hours, HubSync will respond within twelve (12) hours
“Normal BusinessHours” means 8:00am – 6:00pm Eastern Standard Time, Monday through Friday,excluding nationally recognized holidays. - RESTRICTIONS AND AUDIT
(4.1) Restriction on Use. Customer shall not, and shall not permit anyone to: (i) copy or republish the SaaS Services or software, (ii) make the SaaS Services available to any person other than authorized users, (iii) use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create based upon the SaaS Services or Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the SaaS Services or use the Documentation in order to build a similar product or competitive product.
(4.2) Audit Rights. HubSync reserves the right, no more than once per calendar year, to audit Customer to ensure Customer is complying with the license, restrictions on use, and other terms of this Agreement or the appliable Service Order specific to Customer’s use of the SaaS Services, or, alternatively, request that an officer of Customer certify such compliance in writing. Any audit will be performed at HubSync’s cost, with reasonable notice, and in a manner that does not materially and adversely impact Customer’s operations. Customer shall pay for the cost of the audit if such audit discovers that Customer’s usage is more than 5% out of compliance and Customer shall pay for all overages at the contractual rate set forth in the Service Order. - INTELLECTUAL PROPERTY
(5.1) HubSync’s Intellectual Property. HubSync shall own all right, title, and interest in and to the software, SaaS Services, Documentation, and any other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and intellectual property rights therein. Except as specified herein, Customer does not acquire any rights, express or implied, in the SaaS Services or Documentation, and has no right to commercialize or transfer the SaaS Services or Documentation, in whole or in part. No license, right, or intellectual property right in any HubSync trademark, trade name or service mark is granted pursuant to this Agreement. Upon request, Customer agrees to execute such documents as may be reasonably requested by HubSync to secure HubSync’s rights in and to the foregoing.
(5.2) Customer Data. Customer shall own all Customer Data. Customer shall have sole responsibility for the accuracy, completeness, quality, integrity, legality, reliability, timeliness, appropriateness, and intellectual property ownership of all Customer Data, andHubSync shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store Customer Data for any reason. Customer shall hold HubSync harmless from any and all third-party claims arising out ofCustomer’s use or dissemination of any such Customer Data. In the event thisAgreement is terminated, HubSync will make available to Customer a file of the CustomerData in its possession, if any, within thirty (30) following Customer’s request; provided such request is made within thirty (30) days following termination of the Agreement. HubSync reserves the right to purge and delete CustomerData, if any, in its possession within thirty (30) days following termination of this Agreement.
(5.3) License to Customer Data. Customer hereby grants to HubSync the non-exclusive right and license to (a) receive, retrieve, copy, store, configure, perform, display, process, use and transmit any CustomerData necessary or reasonably desirable to perform the SaaS Services or other services; (b) use, copy, manipulate and store any Customer Data that will be archived, stored or otherwise transmitted in connection with the SaaS Services or other services; and (c) to aggregate Customer Data and data with content and data from other Hubsync customers (“Data Aggregations”) for purposes including, without limitation, product and service development, commercialization, or quality improvement initiatives. All Data Aggregations will be the sole and exclusive property of HubSync.
(5.4) License to the Marks. Customer hereby grants to HubSync the worldwide, non-exclusive limited right and license during the Subscription Term to use its trademark, trade name, or service mark in connection with performance of the SaaS Services and its other obligations under thisAgreement.
- CUSTOMER RESPONSIBILITIES
(6.1) Assistance. Customer shall provide commercially reasonable information and assistance to HubSync to enableHubSync to deliver the SaaS Services. Upon request from HubSync, Customer shall promptly deliver Customer Data to HubSync in an electronic file format specified and accessible by HubSync. Customer acknowledges that HubSync’s ability to deliver the SaaS Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.
(6.2) Compliance with Laws. The parties shall comply with all applicable local, state, national and foreign laws in connection with the provision and use of the SaaS Services under this Agreement, including those laws related to data privacy, international communications, and the transmission of technical or PersonalData. Customer acknowledges that HubSync exercises no control over the content of the Customer Data. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
(6.3) Equipment, Hardware, and Software. Customer is fully responsible for ensuring that Customer’s equipment, hardware, devices, software, and internet connections comply with the technical requirements set forth in any Service Order or Documentation and are compatible with the SaaS Services.
(6.4) Linked Sites. The SaaS Services may contain links to websites controlled or operated by persons and companies other than HubSync (“Linked Sites”). Linked Sites are not under the control ofHubSync, and HubSync is not responsible for the contents of any Linked Site, including without limitation any link contained on a Linked Site, or any changes or updates to a Linked Site. HubSync is not responsible if the LinkedSite is not working correctly or for any viruses, malware, or other harms resulting from Customer’s use of a Linked Site. HubSync is providing these links to Customer only as a convenience, and the inclusion of any link does not imply endorsement by HubSync of the website or any association with its operators. Customer is responsible for viewing and abiding by the privacy policies and terms of use posted on the Linked Sites, including any delivery of and payment for goods and services.
(6.5) Customer’s Password and Username. Customer shall keep all username and passwords confidential. - FEES AND PAYMENT
(7.1) Invoicing and Payment. Customer shall pay all undisputed invoices within thirty (30) days from date of invoice and shall notify HubSync of any good faith disputed item in writing no more than ten (10)days after receipt of invoice. Unless expressly provided otherwise, fees are non-cancellable and non-refundable. All fees are stated in United StatesDollars and must be paid by Customer to HubSync in United States Dollars.
(7.2) Taxes. HubSync shall billCustomer for applicable taxes as a separate line item on each invoice. Customer shall be responsible for payment of all sales and use taxes, value-added taxes(VAT), or similar charges relating to Customer’s purchase and use of the Services.If HubSync is required to pay any Customer-owed taxes, Customer shall reimburse, defend, indemnify, and hold harmless HubSync for such taxes and related penalties and interest. Customer shall not be liable for taxes based onHubSync’s net income, capital, or corporate franchise. - TERM AND TERMINATION
(8.1) Term of Agreement. The “Term” of thisAgreement will commence on the Effective Date and will continue until the earlier of (i) termination in accordance with this Agreement or (ii) until allService Orders have expired or otherwise terminated and the parties have not entered into any new Service Orders for twelve (12) months.
(8.2) Termination for Cause. Either party may immediately terminate this Agreement or any Service Order, in whole or in part, upon a material breach of this Agreement by the other party that has not been cured within thirty (30) days after receipt of notice of such breach.
(8.3) Suspension for Non-Payment or Ongoing Harm. HubSync reserves the right to suspend delivery of the SaaS Services if Customer fails to timely pay any undisputed amounts due to HubSync under this Agreement or if HubSync reasonably concludes that Customer’s use of the SaaS Services is causing, or is likely to cause, material harm to HubSync or others. Suspension of the SaaS Services shall not release Customer of its payment obligations under this Agreement and failure to suspend service or reinstatement of service shall not waive HubSync’s rights hereunder. In the extraordinary case that HubSync must suspend delivery of the SaaS Services, HubSync shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. HubSync shall not be liable toCustomer or any third party for any liabilities, claims, or expenses arising from or relating to any suspension of the SaaS Services described herein.
(8.4) Effect of Termination.
(A) Upon termination of this Agreement for any reason, Customer shall immediately cease using the applicable SaaS Services and return all Documentation to HubSync.
(B) Termination of this Agreement shall terminate all outstanding ServiceOrders. Termination of a Service Order will only affect such Service Order, and any other Service Order will remain in full force and effect.
(C) Upon termination of this Agreement for an uncured material breach or expiration of the Subscription Term, HubSync shall immediately cease providing the SaaS Services and all usage rights granted under this Agreement shall terminate.
(D) If HubSync terminates this Agreement or anyService Order due to an uncured material breach by Customer, then Customer shall immediately pay to HubSync all amounts then due under this Agreement and that would otherwise have become due and payable by Customer during the remaining SubscriptionTerm for each terminated Service Order. If Customer terminates this Agreement due to an uncured material breach by HubSync, then HubSync shall refund any pre-paid.unused fees for such time remaining on the Subscription Term then in effect. - WARRANTIES
(9.1) HubSync Warranty. HubSync represents and warrants that it (a) will provide the SaaS Services in a professional manner and that the SaaS Services will perform substantially in accordance with theDocumentation for a period of ninety (90) days from the start date designated in the applicable Service Order and (b) will use and incorporate commercially reasonable security measures in the delivery of the SaaS Services, including prompt notification of any security breaches. Notwithstanding the foregoing,HubSync shall have no obligation to provide the warranty services described in this Section 9.1 if: (i) any portion of the performance failure is attributable to Customer’s deviation from applicable Documentation or failure to performCustomer’s obligations set forth in this Agreement; or (ii) Customer or any other person or entity (other than HubSync) has modified the SaaS Services.
(9.2) Customer Warranty. Customer represents and warrants that (a) Customer has all rights (including third party licenses and consents) necessary for HubSync to access and use Customer Data in the performance of SaaS Services and (b) will use the SaaS Services in accordance with the Service Order and Documentation.
(9.3) Customer Acknowledgment. Customer acknowledges and agrees that it has made its own evaluation in deciding to subscribe for the SaaS Services. The warranties provided in this Agreement extend solely toCustomer and to no other person or entity whatsoever. Without limiting the foregoing, HubSync is not responsible for the results that may be obtained from use of the SaaS Services.
(9.4) Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION, HUBSYNC PROVIDES THE SERVICES AS IS, WITHOUT WARRANTY, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,SATISFACTORY QUALITY, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE TO THE EXTENT PERMITTED BY LAW. ADDITIONALLY, TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. FOR ANY BREACH OF A WARRANTY BY HUBSYNC UNDER THIS SECTION 9,CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE REPERFORMANCE OF THE SAAS SERVICES. - LIMITATIONS OF LIABILITY
(10.1) NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF HUBSYNC) SHALL BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE,INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT,REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT,REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12)MONTHS PRECEDING THE DATE THE CLAIM AROSE. NOTWITHSTANDING THE FOREGOING, THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO ANY BREACH BY A PARTY OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 12, TO ANY BREACH OF INTELLECTUAL PROPERTY RIGHTS, TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, ORTO LIABILITY RESULTING FROM WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY. - INDEMNIFICATION
(11.1) HubSync. If a third party makes a claim against Customer that the SaaS Services infringe any U.S.patent, copyright or trademark, or that HubSync’s gross negligence or willful misconduct has caused bodily injury or death, HubSync shall defend Customer and its directors, officers and employees against the claim at HubSync’s expense and HubSync shall pay all losses, damages, and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by HubSync, solely to the extent such losses arise from the claim. HubSync shall have no liability for any claim based on (a) theCustomer Data, (b) modification of the SaaS Services not authorized by HubSync,(c) use of the SaaS Services other than in accordance with the Documentation and this Agreement or any Service Order, (d) Customer’s failure to use anon-infringing update when one is available, (e) claims against the Customer thatThird-Party IP infringes any U.S. patent, copyright or trademark, (f)Customer’s failure to keep username’s and passwords confidential, (g) use of the SaaS Services with third party offerings that, in combination withHubSync’s services, cause infringement, and (h) Customer’s negligence or willful misconduct. In the event of such claim or allegation results in an injunction prohibiting Customer from continued use of the SaaS Services that are the subject matter of the claim, HubSync may, at its sole option and expense, procure for Customer the right to continue use of the SaaS Services, modify the SaaS Services in a manner that does not materially impair the functionality, or terminate the Subscription Term and refund to Customer any prepaid, but unused fees.
(11.2) Customer. If a third party makes a claim against HubSync related to (a) HubSync’s use of the Customer Data as allowed by this Agreement and the applicable Service Order or (b) Customer’s failure to comply with applicable data privacy laws, including obtaining appropriate consents as required by Section 13.2 (Personal Data), Customer shall defend HubSync and its directors, officers and employees against the claim at Customer’s expense andCustomer shall pay all losses, damages, and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.
(11.3) Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim (except that (i) the indemnified party may participate in the defense at its expense, and (ii) no settlement requiring action or admission by the indemnified party may be made without their express, written consent), and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim. - CONFIDENTIALITY
(12.1) Definition. “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which is not generally known to the public at time of disclosure. Additionally, it may also include information that (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or“proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and confirmed in writing to the receiving party to be “confidential” or “proprietary” within thirty (30) days of such disclosure, (c) is specifically deemed to be confidential by the terms of this Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality.Subject to the display of Customer Data and the SaaS Services as contemplated by this Agreement, Customer Data is deemed Confidential Information ofCustomer. The HubSync software, the SaaS Services, and the Documentation are deemed Confidential Information of HubSync.
(12.2) Confidentiality. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors, agents, accountants, lawyers, investors, or others who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.
(12.3) Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose ConfidentialInformation of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party before such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict parties but agrees that the specific terms of this Agreement will be treated as Confidential Information.
(12.4) Return or Destruction. Upon written request by the disclosing party, the receiving party of Confidential Information shall promptly return or destroy, or provide written certification of the destruction of, suchConfidential Information. Notwithstanding the above, the receiving party may retain Confidential Information as reasonably required by its document retention policies, subject to such party continuing to maintain the confidentiality of such Confidential Information, as required by thisAgreement, for as long as (i) such information remains (a) in such party’s possession and (b) Confidential Information, or (ii) reasonably required to comply with Applicable Law. - GENERAL PROVISIONS
(13.1) Non-Exclusive Service. Customer acknowledges that SaaS Services are provided on a non-exclusive basis. Unless explicitly stated in the applicableService Order, nothing shall be deemed to prevent or restrict HubSync’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.
(13.2) Personal Data. Customer hereby acknowledges and agrees that HubSync’s performance of this Agreement may require HubSync to process, transmit and/or store Personal Data on behalf of Customer or its affiliates. By submitting PersonalData to HubSync, Customer agrees that HubSync and its affiliates may process, transmit and/or store Personal Data only to the extent necessary for, and for the sole purpose of, enabling HubSync to perform its obligations to under this Agreement and Customer agrees to be solely responsible for complying with all applicable data protection or similar laws such as EU General Data Protection Regulation that regulate the processing of Personal Data and special categories of data as such terms are defined therein. Customer agrees to obtain all necessary consents and make all necessary disclosures before including Personal Data in theCustomer Data and using the enabling the software and the SaaS Services.
(13.3) Services. HubSync reserves the right to provide the SaaS Services from host locations, and/or through use of subcontractors, worldwide, as specified in the applicable Service Order.
(13.4) Insurance. Each Party will carry adequate insurance coverage to provide:
(A) Commercial General Liability Insurance. Commercial general liability insurance with limits not less than $1,000,000 each occurrence for bodily injury or property damage and $2,000,000 in the aggregate.
(B) Professional Lability Insurance. $1,000,000 per occurrence, including errors and omissions.
(C) Cyber Liability Insurance. $1,000,000 per occurrence and in the aggregate.
(13.5) Force Majeure. If a party cannot perform due to acts of God, decree of any government, fire, flood, explosion, riot, war, rebellion, sabotage, third party strike or similar official labor dispute, the affected party shall be excused from such performance while the event continues; provided the event is beyond the affected party's reasonable control, was not foreseeable and could not be prevented by reasonable precautions, and the affected party is diligently attempting to promptly recommence performance. The party invoking this clause shall give notice to the other of the event within five (5) days of the date the party became aware of the force majeure event.
(13.6) Assignment. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement, in whole but not in part, without the other party’s permission, in connection with any merger, consolidation, sale of all or substantially all of such assigning party’s assets, or any other similar transaction; provided, that the assignee: (i) is not a direct competitor of the non-assigning party; (ii) provided prompt written notice of such assignment to the non-assigning party; (iii) is capable of fully performing the obligations of the assignor under this Agreement; and (iv) agrees in writing to be bound by the terms and conditions of this Agreement. This Agreement shall inure to the benefit of, and be binding upon, the respective successors and assigns, if any, of the parties. Nothing in this paragraph shall be construed to permit any attempted assignment which would be unauthorized pursuant to any other provision of this Agreement.
(13.7) Amendment. No amendment of this Agreement shall be valid unless in writing and signed by both parties.
(13.8) Choice of Law. This Agreement shall be governed by, and construed and enforced in accordance with, the law of the Commonwealth of Virginia, USA without giving effect to the principles of conflicts of law. To the extent permitted by law, each party consents to the exclusive venue, jurisdiction of, and service of process by, the state and federal courts presiding in the Commonwealth of Virginia, USA.
(13.9) Relationship. HubSync is an independent contractor ofCustomer. The individuals and entities retained by HubSync to perform its obligations shall be under HubSync's exclusive direction and control and shall in no way be deemed to be an employee, agent, partner, or joint venturer ofCustomer. Neither Party has any authority to contract for or bind the other in any manner or make any representation, warranty, or commitment on behalf of the other party.
(13.10) Publicity; Use ofMarks. Customer grants HubSync the right to publicly acknowledge that they are client of Hubsync and provide a limited, non-exclusive, non-transferable, revocable right to display Customer's logo onHubSync's website solely for this intent. Both parties further agree that the specifics of their business relationship and the terms of this Agreement shall remain confidential at all times.
(13.11) Notices. All notices, consents, approvals or requests under the Agreement shall be in writing and shall be deemed given when: (i) delivered by hand (or courier) to the person specified for the receiving party as set forth in the Service Order; (ii)delivered by mail or private carrier (with signature required) to the person specified for the receiving party; or (iii) received by email with confirmation of receipt by a human (not to be withheld) to the address specified approval, request, or permitted notice is sent and with a subject line marked "URGENT: CONTRACT NOTICE", or something similar.
(13.12) Survival. The following provisions shall survive the expiration or termination of the Agreement: Section5 (Fees and Payment), Section 6 (Term and Termination), Section 8 (Limitations of Liability), Section 9 (Indemnification), Section 10 (Confidentiality), andSection 11 (Miscellaneous); and any other provisions set forth in the Agreement that, by their nature should survive the expiration or earlier termination of this Agreement. Each provision of this Agreement shall only apply to the extent permitted by Applicable Law.
(13.13) Waiver. No delay or omission by either party to exercise its rights shall impair or waive such rights and any waiver by a party of its rights shall not waive any succeeding or other rights.
(13.14) Severability. This Agreement may be executed in multiple counterparts, each of which when executed will be an original, and all of which, when taken together, will constitute one agreement.Delivery of an executed counterpart of a signature page of this Agreement by electronic transmission (including via PDF) will be effective as delivery of a manually executed counterpart.
(13.15) Entire Agreement; No Additional Terms. This Agreement, including all Service Orders and all attachments, schedules, and exhibits hereto or thereto, all of which are incorporated herein by reference, constitutes the full and complete agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous understandings and writings with respect thereto. No additional terms contained in any purchase order, order acknowledgment, confirmation, delivery acknowledgement, similar document, other correspondence, or written or oral communication between the parties will be valid and such additional or conflicting terms are deemed rejected by the parties.
