Subscription Services Agreement

Hubly Inc (‚ÄúHubly‚ÄĚ) provides a Software as a Service platform to personal finance and wealth management advisers (‚ÄúService‚ÄĚ). The Service is provided on a subscription basis as further described in this Agreement and on the Website under specific subscription plans offered by Hubly from time to time. ¬† The Services are provided through the website https://myhubly.com (the ‚ÄúWebsite‚ÄĚ). ¬† This Agreement applies to anyone (‚ÄúYou‚ÄĚ/‚ÄĚCustomer‚ÄĚ) who subscribes for or otherwise uses the Services.

THESE TERMS (WHICH TOGETHER WITH THE ORDER FORM (AS DEFINED BELOW) ARE COLLECTIVELY REFERRED TO AS THE ‚ÄúAGREEMENT‚ÄĚ) CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES. ¬†EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY OTHERWISE SUBSCRIBING FOR THE SERVICES, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. ¬†IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR SERVICES.

  1. Definitions.

For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:

‚ÄúAffiliate‚ÄĚ means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.‚ÄúControl‚ÄĚ, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;

‚ÄúCustomer Data‚ÄĚ means all electronic data or information submitted by Customer and/or its Users to the Service;

‚ÄúFee‚ÄĚ means the Implementation Fee and the Subscription Fee;

‚ÄúHubly Process Template‚ÄĚ means any Hubly-created workflow, client management or other business process, work flow or similar template as may be made available by Hubly to Customer from time to time.‚ÄúIntegrated Platform‚ÄĚ means a Web-based, mobile, offline or other software application functionality that interoperates with a Service, that is provided by Customer or a third party. Integrated Platforms, other than those obtained or provided by Customer, will be identifiable as such

‚ÄúMalicious Code‚ÄĚ means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;‚ÄúOrder Form‚ÄĚ means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and Hubly or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto."Partner‚ÄĚ means a subscriber to the Hubly Service who elects to make Partner Process Templates available through the Hubly Service;‚ÄúPartner Process Template‚ÄĚ means any Partner-created workflow, client management or other business process, work flow or similar template as may be made available by such Partner through Hubly to Customer from time to time.‚ÄúProcess Template‚ÄĚ means a Hubly Process Template or a Partner Process Template.

‚ÄúSubscription Fee‚ÄĚ means the subscription fees for the Services as specified in the applicable Order Form;‚ÄúSupport Services‚ÄĚ means the implementation, support, training and similar services described in the applicable Order Form, if any.

‚ÄúSupport Fees‚ÄĚ means the fees for the Support Services as specified in the applicable Order Form;‚ÄúService‚ÄĚ has the meaning given to it above, and does not include any Integrated Platforms;‚ÄúTerm‚ÄĚ has the meaning ascribed to that term in Section 10.1‚ÄúUser‚ÄĚ means an individual or entity who is authorized by Customer to use the Service; and

‚ÄúWebsite‚ÄĚ means the Hubly website at myhubly.com

  1. Grant of License.

2.1 Provision of Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement including payment of the applicable fees, on the entering into of an Order Form Hubly shall make the Service available to Customer and its Users for Customer’s internal business use during the Term. Customer’s right to use the Service during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in the applicable Order Form(s). Certain feature updates following initial Subscription may not be available to Customer. Hubly is bound only to provide the Services agreed to in the applicable Order Form(s). Customer fees in such cases will reflect legacy pricing until the Term is renewed. Certain Customers may have access to Preferred Partner programs pursuant to section 4.8 at the time of entering into the Order Form and as specified in such Order Form. Customers may also opt in to Preferred Partner programs by installing a Process Template. Where Customer accesses or opts into such program , Customer agrees that Hubly may share certain information about Customer with such Preferred Partner, including without limitation information such as whether Customer is subscribed to the Hubly Service, Customer’s usage of the Service and other similar information. Customer may opt out of any such program at any time by giving Hubly notice in writing.

2.2 Support Services. Hubly shall provide any Support Services set out in an Order Form in accordance with the description set out in such Order Form and otherwise in a reasonable and workmanlike manner in keeping with industry standards and practices.  Customer shall provide Hubly in a timely manner with such information and assistance as Hubly may reasonably request in connection with such Support Services.

2.3 Process Templates. ¬†Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement including payment of the applicable fees, Hubly may make certain Process Templates available to Customer and its Users for Customer‚Äôs internal business use during the Term on an ‚ÄúAs-Is‚ÄĚ basis. Customer‚Äôs right to use the Process Templates during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in the applicable Order Form(s) or otherwise at the time of acquiring such Process Template. Process Templates are solely recommendations, and do not constitute professional, regulatory or other advice. All Process Templates are provided on an ‚Äúas is‚ÄĚ basis and no representation or warranty is provided by Hubly in respect of any Process Template. It is solely up to Customer to satisfy itself, using its own professional expertise, whether the Process Templates meet its needs, those of its clients, and otherwise satisfy any regulatory or other requirements that may be binding upon Customer or its Users. Where Customer adopts any Partner Process Templates, it accepts and agrees that Hubly may share anonymized information regarding its usage of such Partner Process Template with the applicable Partner who provided such Partner Process Template (which information shall not, for the avoidance of doubt, include any personal information regarding Customer‚Äôs Users). Use of Partner Process Templates may require the payment of additional fees, as indicated at the time of acquiring such Partner Process Template. Process Templates and associated fees may be updated or amended from time to time. Customer may amend any Process Templates for their own internal use, but such amendment shall not grant Customer any ownership rights in such amended Process Template.

2.4 User Accounts.  User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.2.5 Free Trial. If Customer registers for a free trial as made available by Hubly, Hubly will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any fee-based Service subscriptions ordered by Customer for such Service(s), or (c) termination by Hubly in its sole discretion. Section 10 shall not apply to free trials. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Notwithstanding any other provisions of this Agreement, all Service provided on a free trial basis are provided strictly on an as-is basis without any representation, warranty or indemnity.

  1. Use of the Service.

3.1 Hubly Responsibilities.  Hubly shall: (i) follow good industry practice to maintain the security and integrity of the Service and the Customer Data; (ii) provide basic support to Customer's Users, at no additional charge; and (iii) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which Hubly shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. Pacific Time Friday to 3:00 a.m. Pacific Time Monday); or (b) any unavailability caused by circumstances beyond Hubly's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Hubly employees), computer, telecommunications, Internet service Hubly or hosting facility failures or delays involving Equipment, software or power systems not within Hubly’s possession or reasonable control, and denial of service attacks.

3.2 Customer Responsibilities.  Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Integrated Platforms with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Hubly promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation,  Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Integrated Platforms with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in Hubly’s judgment threatens the security, integrity or availability of Hubly’s services, may result in Hubly’s immediate suspension of the Services, however Hubly will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

3.3 Use Guidelines.  Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party (unless written agreement to such has been provided to Customer from Hubly); (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.3.4 Third Party Access. Customer may grant third parties access to their accounts, either through allocating such third parties with User accounts or otherwise through the Service. If a third party is granted access, Hubly will not be responsible for any use, disclosure, modification or deletion of Customer Data by such third party or any other act or omission of such third party.

3.4 Publicity.  Neither party may issue press releases relating to this Agreement without the other party's prior written consent.  Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party's standard guidelines.

3.5 Integrations. The Service integrates with other third party applications and platform as listed on the Website from time to time (‚ÄúIntegrated Platforms‚ÄĚ). As part of such integration, the Service will (to the extent permitted by Customer) import and export data from Integrated Platforms, including without limitation information about Customer‚Äôs clients, their addresses, financial information, and similar related data (‚ÄúIntegrated Data‚ÄĚ). By granting the Service access rights to any account Customer may hold with an Integrated Platform, Customer (i) grants Hubly a limited, non-exclusive license to access. copy, modify, use and create derivatives from such Integrated Data for the purpose of facilitating Customer‚Äôs use of the Services; and (ii) acknowledges and agrees that modifications to data in the Service may modify data on the Integrated Platforms. ¬†Customer acknowledges and agrees that the Integrated Platforms are not under Hubly‚Äôs control, and accordingly Hubly does not warrant or support any Integrated Platform. ¬†It is Customer‚Äôs sole discretion whether to enable an integration with an Integrated Platform. ¬†Any use of an Integrated Platform is solely between customer and the applicable third party provider. If an integration with an ¬†Integrated Platform is enabled, Hubly will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, an Integrated Platform, or use or misuse by the third party provider of such Customer Data. Hubly is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Integrated Platform or its provider. Hubly cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of an Integrated Platform ceases to make the Integrated Platform available for interoperation with the corresponding Service features in a manner acceptable to Hubly.

  1. Fees and Payment.

4.1 Fees.  In consideration for the receipt of the Service, Customer shall pay Hubly the Fees, all as specified in the applicable Order Form. All amounts are payable in the currency specified in the applicable Order Form or, if not so specified, in US Dollars.

4.2 Invoicing and Payment.  Fees for the Service will be invoiced on the basis specified in the applicable Order Form. Unless otherwise stated in an invoice, charges are due immediately on the invoice date and are non-refundable unless otherwise expressly provided for under this Agreement.   Customer is responsible for maintaining complete and accurate billing and contact information with Hubly.

4.3 Overdue Payments.  Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Hubly's discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

4.4 Taxes.  Unless otherwise stated, Hubly's fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes  (collectively, "Taxes").  Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Hubly's net income or property.  If Hubly has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Hubly with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.5 Audit Rights. Hubly shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and Customer’s compliance with this Agreement.

4.6 Suspension of Service. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Hubly reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.

4.7 Preferred Partner Memberships. Customer may be offered preferred fees or discounts due to participation in a joint program between Hubly and a third party (such as a professional association or other type of organisation, whether operating on a profit or not-for-profit basis, each a ‚ÄúPreferred Partner‚ÄĚ). Such discounts shall only apply for the shorter of (i) the duration of such joint program ; or (ii) so long as the Preferred Partner confirms that Customer can avail of such program . Customer may opt out of any such program at any time by giving Hubly notice in writing. Where the discounts cease to apply or Customer opts out of such program , Hubly‚Äôs standard fees shall become payable for the remainder of any then-outstanding term and for any Renewal Term.

  1. Proprietary Rights.

5.1 Reservation of Rights.   Subject to the limited rights expressly granted hereunder, Hubly reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.

5.2 Restrictions.  Customer shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other timing or use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service or User Guide; (d) frame or mirror any content forming part of the Service; or (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service.

5.3 Customer Data. ¬†As between Hubly and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Customer‚Äôs Confidential Information under this Agreement. ¬†Customer hereby grants Hubly a non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), irrevocable, worldwide, royalty-free, fully paid-up license for the Term (and for thirty (30) days thereafter) to process, store and otherwise use the Customer Data as reasonably required to provide the Service. ¬†Hubly may create aggregated or anonymized statistical analytics, Process Templates and machine learnings arising from Customer‚Äôs and its User use of the Service, Process Templates and Customer Data processed through the Service and any Customer workflow, client management or other business process, work flow or similar template used in the Service (‚ÄúLearnings‚ÄĚ), which Learnings shall not include any underlying Customer Data nor shall it otherwise be capable of referencing back to Customer or its Users. As between Customer and Hubly, Hubly shall own all rights to such Learnings free from encumbrance.

5.4 Process Templates. Other than the limited rights granted under this agreement, all rights to (i) Hubly Process Templates are reserved by Hubly; and (ii) Partner Process Templates are reserved by the applicable Partner. Hubly exclusively retains all rights to usage data and insights derived from the usage of Process Templates, and any all processes as may be created by Customer when using the Service.  No Process Templates may be reproduced or used outside of the scope of rights granted under this Agreement.

5.5 Suggestions. Hubly shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the Service.

  1. Confidentiality.

6.1 Definition of Confidential Information. ¬†As used herein, ‚ÄúConfidential Information‚ÄĚ means all confidential and proprietary information of a party (the ‚ÄúDisclosing Party‚ÄĚ) disclosed to the other party (the ‚ÄúReceiving Party‚ÄĚ), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. ¬†Confidential Information shall not include any information that: ¬†(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

6.2 Confidentiality.  The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.

6.3 Protection.  Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

6.4 Compelled Disclosure.  If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

6.5 Remedies.  If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

  1. Warranties and Disclaimers.

7.1 Warranties.  Each party warrants that it has the legal power to enter into this Agreement.  Hubly warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service shall not infringe on  third party’s intellectual property rights; and (iii) the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User or Customer-uploaded materials or otherwise originating from Customer or a User).

7.2 Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, HUBLY MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  1. Mutual Indemnification.

8.1 Indemnification by Hubly. Subject to the terms and conditions of this Agreement, Hubly shall, at its own expense, defend Customer in any action, suit or proceeding by a third party alleging that the Service infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an ‚ÄúIP Claim‚ÄĚ) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by Hubly and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against Customer by a court or tribunal of competent jurisdiction in such IP Claim. ¬†As conditions for such defense and indemnification by Hubly, (i) Customer shall notify Hubly promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give Hubly sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with Hubly in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims without Hubly‚Äôs written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.

8.2 Mitigation.  If (a) Hubly becomes aware of an actual or potential IP Claim, or (b) Customer provides Hubly with notice of an actual or potential IP Claim, Hubly may (or in the case of an injunction against Customer, shall), at Hubly’s sole option and determination: (I) procure for Customer the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Hubly.

8.3 Exclusions.  The obligations in Sections 8.1 and 8.2 do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by Hubly with other products, software or services not provided by Hubly; (2) any IP Claim related to any Customer Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.

8.4 Indemnification by Customer. ¬†Subject to the terms and conditions of this Agreement, Customer shall, at its own expense, defend Hubly, its Affiliates and its and their directors, officers, employees and agents (the ‚ÄúHubly Indemnitees‚ÄĚ) in any action, suit or proceeding brought by a third party against any of the ¬†Hubly Indemnitees alleging that the Customer Data, or Customer's use of the Service in violation of this Agreement, infringes or misappropriates the intellectual property or other rights of, or has otherwise harmed, a third party (‚ÄúCustomer Claims‚ÄĚ) and shall indemnify and hold the Hubly Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Hubly Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim. ¬†As conditions for such defense and indemnification by Customer, (i) Hubly shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (ii) Hubly shall give Customer sole control of the defense and settlement of such Customer Claims; (iii) Hubly shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (iv) Hubly shall not settle any Customer Claims without Customer‚Äôs written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto.

  1. Limitation of Liability.

9.1 Limitation of Liability.  IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

9.2 Exclusion of Consequential and Related Damages.  IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS)  HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.3 Certain Damages Not Excluded.  NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.

9.4 Beneficiaries.  Every right, exemption from liability, release, defence, immunity and waiver of whatsoever nature applicable to a party under this Agreement shall also be available and shall extend to benefit and to protect such party’s Affiliates, subcontractors, agents, licensors, suppliers, directors and/or employees and for such purposes such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to such rights, exemptions, releases, defenses, immunities and waivers.

  1. Term and Termination.

10.1 Term of Agreement. ¬†This Agreement shall commence as of the date of the Order Form (‚ÄúEffective Date‚ÄĚ) and shall continue in effect for an initial term of one (1) year, if subscribing on an annual basis, or one (1) month, if subscribing on a monthly basis, in each case as indicated by the applicable Order Form (such initial term referred to in this Agreement as the ‚ÄúInitial Term‚ÄĚ). ¬†Thereafter, the term of the Agreement shall be automatically renewed on expiry of the Initial Term or any subsequent Renewal Term for periods in equal duration to that of the Initial Term (any such subsequent renewal terms referred to in this Agreement as a ‚ÄúRenewal Term‚ÄĚ), unless either party gives written notice of non-renewal to the other party at least thirty (30) days in the case of monthly subscriptions or sixty (60) days in the case of annual subscriptions prior to the end of the Initial Term or any Renewal Term hereof. ¬†Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the ‚ÄúTerm‚ÄĚ. Except as expressly provided in the applicable Order Form, renewal of subscriptions will be at Hubly‚Äôs applicable list price in effect at the time of the applicable renewal.

10.2 Termination for Cause.  A party may terminate this Agreement for cause:  (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  Upon any termination for cause by Customer, Hubly shall refund Customer any prepaid fees for any periods after the termination of the Agreement.  

10.3 Fees.  Subject to section 10.2, termination or expiration of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to Hubly prior to the effective date of termination or expiration of this Agreement.

10.4 Surviving Provisions.  The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 11.

  1. General Provisions.

11.1 Relationship of the Parties.  The parties are independent contractors.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.2 No Third-Party Beneficiaries.  Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.

11.3 Notices.  All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email.  Notices to Hubly shall be addressed to the attention of the Legal Department.  Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.

11.4 Waiver and Cumulative Remedies.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.5 Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.6 Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).  Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets.  Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.7 Governing Law.  This Agreement shall be governed by the laws of the Province of British Columbia, Canada, without regard to its conflict of law principles.  No choice of laws rules of any jurisdiction shall apply to this Agreement.  The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.  The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.    

11.8 Venue; Waiver of Jury Trial.  The provincial and federal courts located in Vancouver, British Columbia, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.  Each party hereby consents to the exclusive jurisdiction of such courts.  Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

11.9 Force Majeure.  Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service Hubly or hosting facility failures or delays involving equipment, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.

11.10 Export.  Customer acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries.  Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation.  Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service.

11.11 Entire Agreement. This Agreement, including all Order Forms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  .  To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail.  Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

11.12 Hubly reserves the right to change the terms of this Agreement at any time. For new Customers, any changes will be effective from the date of such change. Existing Customers will be provided 7 (seven) days notice by email prior to any changes taking effect. Any change to this Agreement will be posted to the Website and the last revision date of revision will be updated.

Effective date: 25 December 2023