Last updated: January 22, 2018
Last updated: January 22, 2018
PLEASE READ THIS SOFTWARE AGREEMENT AND TERMS AND CONDITIONS CAREFULLY. BY EXECUTING A SERVICE ORDER FORM INCORPORATING THIS AGREEMENT, YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF AND AGREEING TO BE BOUND BY THIS AGREEMENT.
Ode Systems Inc. (“Ode”, “Hubbub” and variously “we”, “us” and “our”) and the Customer (“Customer” and variously “you” and “your”) set forth on the Service Order Form submitted by Customer (“Service Order Form”) enter into this Subscription Agreement, including all Service Order Forms and exhibits incorporated herein by reference between the parties, (“Agreement”) for the Subscription (as defined in Section 1.1 below).
This contract is a legal agreement made between the Customer (as set out in the Service Order Form) and Ode Systems Inc. whose registered office is at 200-375 Water Street, Vancouver, British Columbia, Canada. Ode Systems Inc. licenses the use of the Hubbub Software Solution to the Customer on the basis of this Agreement.
2.1 Delivery: Subject to your obligations hereunder, Hubbub shall provide the Professional Services set forth on the Order Form, and Hubbub shall provide Software use for the duration of the Subscription Period (as defined in Section 4.2 below) to Customer for Customer’s internal business purpose only, including access by its authorised Users and Affiliates subject to the restrictions set forth herein.
2.2 Equipment & Resources: Hubbub is not responsible for any travel, accommodations, computer equipment, telecommunications, or other expenses required for Customer or its Users to use or access the Software.
3.1 Hubbub has developed and is the owner of a human resources software suite which includes applications known as Hubbub HRIS, Performance, Compensation, Succession and Learning. (The “Hubbub Software Suite” also known as Hubbub HR Suite); and Hubbub is a re-seller/partner of FlowForma business process workflow.
3.2 The Hubbub Software Suite is a suite of web-based applications which are deployed and hosted, along with Customer Data (as that term is defined below), on the Licensee’s computer networks and servers. Or, the Customer can request that Hubbub host the system data. There is an additional cost for licensing and maintenance if Hubbub is asked to host Customer employee data. Data hosting and Hubbub cloud solutions (hosted on Microsoft Azure) are an additional cost on all annual subscription costs.
3.3 Hubbub wishes to grant to the Customer and the Customer wishes to obtain a license to use certain applications in the Hubbub Software Suite, as set out in the Schedules to this Agreement; and
3.4 Hubbub wishes to provide to the Customer and the Customer wishes to retain Hubbub to receive certain consulting, support and maintenance services in relation to the licensed Hubbub Software Suite.
3.5 Subject to the terms and conditions of this Agreement, Hubbub hereby grants the Customer and its Affiliates, the following worldwide, non-exclusive, non-assignable, non-transferable and non-sublicensable subscription and right to use the software (the “Subscription”): for the Customer and the Affiliates, to install and deploy the Software, the Documentation and the Work Product, for following use: (i) for use with the Employee Records; and (ii) for use by the authorised Users; and for the Licensed Users, to access and use the Software, the Documentation and the Work Product.
4.1 Term: The term of this Agreement begins on the date of signature (the Effective Date) on the initial Service Order Form signed by Customer (the “Service Order Form”) and continues until the expiration (pursuant to Section 4.3) or termination (pursuant to Section 4.4) of the Agreement.
4.2 Subscription Period: The Subscription Period begins on the Agreement Effective Date (pursuant to Section 4.1) and lasts for the duration of such period. Hubbub may require any Service Order Forms added to this Agreement to end on the same date as the first Subscription (or renewal thereof) under this Agreement so that all Subscriptions will share the same renewal date, and Hubbub will prorate the fees for the Subscription Period of each new Service Order Form accordingly.
4.3 Expiration: The Subscription automatically renews at the end of the Subscription Period (as identified on each applicable Service Order Form) for an additional period equal to the initial Subscription Period (entered into under the initial Service Order Form), unless either party provides written notification to the other of their intent not to renew this Agreement thirty (30) days in advance of the end of the applicable Subscription Period or this Agreement is otherwise terminated as set forth herein. Hubbub shall use commercially reasonable efforts to notify Customer (including by email to the Point of Contact or the billing contact as noted in the most recent Service Order Form) of such pending automatic renewal within a reasonable time, but no less than forty-five (45) days prior to the expiration of the then current Subscription Period. Hubbub and Customer agree that the monthly fee increase for the Subscription on such renewal will be three percent (3%). Subscriber acknowledges that Hubbub is not responsible for any claims, demands, causes of action, costs, losses, damages, expenses (including reasonable attorneys’ fees), or liabilities (collectively “Damages”) that result from Customer’s failure to timely renew the Subscription as set forth herein.
4.4 Termination for Cause: In the event of any alleged material breach of this Agreement, the party claiming the breach shall give written notice thereof to the other party with reasonable specificity of the claimed breach. The other party will have thirty (30) days (or ten (10) days if the breach is of Section 5 (License Restrictions) Section 7 (Fees), and/or Section 11 (Confidential Information & Intellectual Property)) from receipt of the written notice to cure any such breach reasonably specified in the notice. If the breach remains uncured after such period, the party claiming such breach may terminate this Agreement for cause.
4.5 Effect of Termination: Upon termination for any reason, (i) Customer and its Users shall immediately cease to access or use any and all parts of the Subscription and Software and promptly return any property belonging to Hubbub that is in their possession or control, and (ii) all rights granted hereunder to Customer or its Users will cease to exist.
4.6 Data Return & Transition Assistance: Upon written request by Customer within thirty (30) days following the expiration or termination of this Agreement and payment of all undisputed amounts, Hubbub shall promptly download (without charge) all Customer Data within the Software to a Hubbub secure ftp site or Customer-hosted ftp site in .csv format or similar (as determined by Hubbub, or in such other medium and/or format as the parties have mutually agreed). In addition, Hubbub shall, at its then current rates, provide additional assistance to Customer as requested. Following the aforementioned thirty (30) day period, Hubbub shall dispose of Customer Data.
5.1 No Copying: The Customer will not use, copy, modify, or transfer by any means the Software, in whole or in part, except as expressly permitted by the terms in this Agreement.
5.2 No Reverse Engineering: The Customer will not attempt, directly or indirectly, to reverse engineer, decompile, disassemble or make any attempt to discover the source code of the Software.
5.3 No Modification: The Customer will not modify, port, translate or create derivative works from or based on the Software.
5.4 Responsibility for Content: The Customer will be solely responsible for all Customer Data and other content generated, received, or transmitted in the course of the use of or via the Software, and for the consequential effect thereof, even if said Customer Data or other content was generated, received, or transmitted by third parties.
6.1 The Customer will notify Hubbub as soon as reasonably practicable in writing upon becoming aware of or having any reason to suspect any Infringement.
6.2 The Customer will use reasonable commercial efforts to assist and support Hubbub, at Hubbub’s request and expense, in prosecution of any legal action in relation to any Infringement, including by providing any available information or data.
6.3 The Customer will not, without express written permission from Hubbub, take or attempt any action, legal or otherwise, in relation to any Infringement.
8.3 Cloud Hosting. Hubbub uses Microsoft Azure Cloud Services. For more information please review the Microsoft Azure website at: https://www.microsoft.com/en-us/trustcenter/CloudServices/Azure. Hosting fees are outlined on the Service Order Form.
8.9 Training: The Customer will be responsible to provide end-user training to the HR, Managers and Employee Users, although such training can be requested from Hubbub and provided to the Customer on a time and materials basis.
9.1 Representations and Warranties of the Licensee: The Customer hereby provides the following representations and warranties: (i) that it has the right to enter into this Agreement; and (ii) that it has the right to allow Hubbub to perform the Services.
9.3.1 Hubbub provides no representations and warranties of any kind and whatsoever other than those set out in Section 9.2 of this Agreement including but not limited to any representations, warranties or conditions of any kind whether express, implied, statutory, by usage of trade, custom of dealing or otherwise and specifically disclaims all implied representations, warranties and/or conditions of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.
9.3.2 Notwithstanding Section 9.2 of this Agreement, Hubbub is not responsible for (a) problems caused by changes in, or modifications to, the operating characteristics of any computer hardware or operating system for which the License Software is procured; (b) problems that result from the use of the Licensed Software in conjunction with software of third parties or with hardware that is incompatible with the operating system for which the Licensed Software is being procured; or (c) any requirements of any civil or governmental authority.
9.3.3 HUBBUB EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OTHER THAN THOSE LISTED IN SECTION 9.2 OF THIS AGREEMENT, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO STATUTORY WARRANTIES AND CONDITIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
9.4.1 Hubbub will indemnify and save harmless the Customer for the amount of any direct damages awarded against the Customer by a Canadian court upon exhaustion of all available appeals, as a result of a successful claim (the “Claim”) as well as all reasonable legal fees related to such Claim by a third party that the Customer’s use of the Software and/or the Documentation as permitted herein infringes a valid U.S. or Canadian patent (or a foreign patent having a U.S. or Canadian counterpart) issued to such third party as of the Effective Date, or infringes a valid copyright or trade-mark right of such third party that is enforceable in the U.S. or Canada (the “Infringement”) (the “Hubbub Indemnity”). Hubbub will also indemnify and save harmless the Customer for any reasonable legal fees incurred as result of an unsuccessful claim of Infringement by a third party.
9.4.2 The Hubbub Indemnity will be subject to: (i) the Customer providing prompt notice to Hubbub of the details of such Claim, (ii) the Customer providing reasonable assistance to Hubbub in the defense of such Claim, and (iii) Hubbub having control over the defense of such Claim.
9.4.3 The Hubbub Indemnity will not apply if the infringement would not have occurred but for the combination of the Licensed Software and/or the Documentation with any non-Hubbub software or hardware, or if the Licensed Software is modified by anyone other than ODE, or if the infringement arises out of any customization of the Licensed Software carried out by Hubbub in accordance with the Licensee’s specifications despite Hubbub notifying Customer of the possibility of a claim arising from such customization) or if such infringement would not have occurred if the Customer had installed and used any Software Updates made available by ODE.
9.4.4 If Hubbub becomes aware of a Claim or possible Claim, it may, at ODE’s sole option and expense:
10.1 Hubbub Property: Subject to the terms of this Agreement, the Customer acknowledges and agrees as follows:
10.1.1 Hubbub is the owner of the Software and the Documentation and all Intellectual Property Rights therein, subject to any of said Intellectual Property Rights being or having been licensed or otherwise acquired by Hubbub from third parties;
10.1.2 Hubbub is the owner of any hardware, servers, equipment, networks or other software used by Hubbub to provide the Software or the Services, but specifically excluding all equipment owned by the Customer or its Affiliates on which the Software is installed in accordance with this Agreement;
10.1.3 Other than the Subscription expressly granted in this Agreement, the Customer obtains no right, title, interest or other license in or to the Software, the Documentation, or any Intellectual Property Rights therein; and
10.1.4 All whole and partial copies of the Software and the Documentation Hubbub may provide to the Customer are and will remain the property of Hubbub or its successors.
10.2 Customer Property: Hubbub acknowledges and agrees that the Customer and/or the Affiliates is the owner of the Customer Data.
11.1 Hubbub Confidential Information: The Customer acknowledges and agrees that the Software and the Documentation, any information provided to the Customer by Hubbub in the course of providing the Services, and any other information expressly designated by Hubbub in writing as “confidential” are or contain confidential information and trade secrets of Hubbub. Hubbub acknowledges and agrees that any information provided to Hubbub by the Customer pursuant to this Agreement and any other information expressly designated by the Customer in writing as “confidentially are, or may contain confidential and/or proprietary information of the Customer. The confidential information of both Hubbub and of the Customer is referred to collectively as “Confidential Information” in this Agreement.
12.2 Limitation on Damages: Without limiting the foregoing and except for Hubbub’s indemnification obligations in Section 9.4 of this Agreement, the maximum liability of Hubbub, its directors, officers and employees, for any claim whatsoever, including without limitation claims for breach of contract (including, without limitation, fundamental breach), tort (including, without limitation, negligence) or otherwise, and the Customer’s sole remedy, will be damages not to exceed the amount of fees paid to Hubbub under this Agreement during last twelve (12) months of the current Subscription Term plus any ‘one-time’ fees outlined in Service Order Form.
13.5 Relationship of the Parties. Both parties agree that they are independent entities and that nothing in this Agreement creates a partnership, joint venture, fiduciary, agency, or affiliate relationship between the parties. Each party is responsible for the supervision, management, and direction of its own employees. Each party is responsible for the payment of compensation to its employees and for any injury to them occurring in the course of their employment and neither party is responsible for the supervision, management, and direction of the employees of the other party. The Customer acknowledges that Hubbub exercises no control over Customer’s staffing practices employed using the Subscription or Customer’s decisions as to the employment, promotion, notification, termination, or compensation of any User.
13.6 No Assignment: Neither this Agreement nor any rights or obligations hereunder, in whole or in part, may be assigned by either the Customer or Hubbub without the prior written consent of Hubbub or Customer, as applicable except that the Customer may assign this Agreement to any of its Affiliates without the prior written consent of Hubbub. Notwithstanding the foregoing, Hubbub may assign this Agreement with notice to Customer in connection with any merger or acquisition or sale of all or substantially all of its assets or stock. Such assignment will not in any event relieve the assignor of any obligations that accrue under this Agreement prior to any such assignment. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in violation of this Section 13.6 shall be null and void.
Support & Maintenance: is part of the Software Agreement by and between Customer and Hubbub. In the event of a conflict between this Policy and the Agreement, unless otherwise expressly provided, the Agreement will control.
Support Times: Hubbub will provide Customer Support from 9:00 am to 6:00 pm EST (Eastern Standard Time), Monday to Friday, and not on weekends and government or state statutory holidays.
Support Requests: To request Support, the Customer must follow the steps outlined in the Hubbub Support Procedures document (steps summarized below):
Step 1: All questions or issues should be routed from the Customer End User to Customer HR, as in many cases Customer HR may be able to answer the question or assist the user.
Step 2: If Customer HR needs assistance, they should then send their question or issue to the System Administrator (Customer Point of Contact, CPP), who in most cases will be able to answer the question or assist HR/or the user.
Step 3: In cases where the System Administrator (CPP) requires assistance to answer a question or to address an issue, or in the case of a system error, the Administrator (CPP) should fill out this form and send it to the designated Hubbub Point Person (POC) and if advised to do so by the Hubbub POC, submit a Hubbub Ticket.
Types of support requests may include:
Support Priority Level: When submitting a Support Request to Hubbub please refer to the following table to determine the correct Priority Level and indicate the appropriate level on your Request:
Priority 1: Your Production Site is stopped or so severely impacted that the whole application cannot reasonably continue to work. You experience a complete loss of service.
Priority 2: You experience a severe loss of service in your Production Site. Important features are unavailable with no acceptable workaround, impaired or broken functionality with significant impact to applications, and/or frequent application failure but not data loss; however, operations can continue in a restricted fashion.
Priority 3: You experience a minor loss of service to your Production Site. The impact is an inconvenience, which may require a workaround to restore functionality. Or you experience a stop or severe impact to a Test or other Non-Production site which is impeding critical testing.
Priority 4: You experience a minor loss of service or disruption to your Test or other non-Production site. You experience no loss of service to your Production site.
Priority 5: You request information, configuration assistance, an enhancement, or clarification regarding your software but there is no impact on the operation of the software. You experience no loss of service to your Production site. The impact to your Test or other Non-Production site is an inconvenience, which may require a workaround to restore functionality.
Response Times: Subject to the provisions of the Agreement, and if the Customer has complied with Section 15 herein, in providing Support, Hubbub will make reasonable commercial efforts to respond to a Customer’s request for support with a return e-mail as follows and to ultimately correct the incident:
Hubbub will guarantee 98.5% system up-time.
Hubbub will reimburse the Customer 1.5% of the applicable Annual Subscription Fees for each day that system down-time exceeds 1.5% in any one calendar year. System down-time is defined as situations when or where the Licensed Software or the Customer Data is inaccessible by the Licensed Users and the cause of said situation is an error in or issue with the Customer Software, and specifically excluding down-time arising from the following causes:
i. network issues, including network topology, configuration or security;
ii. server issues, server configuration, hardware, or software;
iii. database issues, including database configuration, connection, or data or schema corruption; and
iv. data issues, including data back-up issues or data corruption.
Hubbub will not be responsible for corrupt Customer Data, and such issues will not be considered system down-time, where said corruption is caused by the Customer or the Licensed Users or data from third party systems, including administration and/or configuration errors, user errors, bad or corrupt database data, or issues that result from system management under resourcing.
Service Level Agreement (FlowForma business process workflow):
The customer will log calls according to the following priorities:
P1: Critical – Total System Outage
P2: High – User impacted but system functionality still available
P3: Medium – System Maintenance Required
P4; Low – Minor issue (Non Business Critical)
The above classifications will be used to prioritise support cases received. In order to ensure clear communication and a consistent approach, the classification of any case will be confirmed after the initial review and response by the Supplier Support Desk.
The following response times may be expected of the Supplier by the Customer:
|Priority||Definition of Priority||Response Time|
|P1||Total System Outage||30 minutes helpdesk telephone response|
|P2||User impacted but system functionality still available||4 hour response|
|P3||System Maintenance Required||1 day response|
|P4||Minor issue (Non Business Critical)||2 day response|
Additional Premium Support is Available upon request.