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”, “HubbubHR” 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 HubbubHR Software Solution to the Customer on the basis of this Agreement.
TERMS & CONDITIONS
1. DEFINED TERMS
- 1.1. “Admin & HR Users” means users employed or engaged by the Customer and its Affiliates, who are assigned authority to configure, create and/or modify any Customer Data for other employees or staff employed or engaged by the Customer and its Affiliates.
- 1.2. “Agreement” means this Software Agreement, including the Service Order Form all addendum’s to or modifications of this Agreement executed in accordance with the provisions of this Agreement.
- 1.3. “Affiliate” means, in respect of a party to this Agreement, any company from time to time directly or indirectly (i) Controlling, (ii) Controlled by or (iii) under common Control with, that party, and any other company agreed to from time to time between the Parties.
- 1.4. “Professional Services” and “Services” means implementation, consulting, training, technical, and related professional services provided by HubbubHR in relation to the Agreement in accordance with Service Order Form. The time spent providing Professional Services may include preparing for, conducting, and follow-up meetings; project management and planning; and webinars, conference calls, data analysis, system design and configuration, installation, training and implementation.
- 1.5. “Control” means, in respect of a company, the holding of shares in that company bearing the majority of the voting rights attaching to all the shares in that company or having the power to control the composition of the Board of Directors of that company (and “Controlling” and “Controlled” will be construed accordingly).
- 1.6. “Documentation” means help files and all other textual or graphical content relating to use of the Software that has been or will be made available to the Customer from time to time by HubbubHR as part of the Software or via other means, including over the internet, and including any training materials provided by HubbubHR under this Agreement.
- 1.7. “Effective Date” means the signature date on the Service Order Form.
- 1.8. “Employee Records” means the number of individual employee, contractor or other personnel records that may be managed by the Customer with or through the Software, as set out in the Service Order Form.
- 1.9. “Employee Users” means users employed or engaged by the Customer and its Affiliates, who are given the authority to create and/or modify their own Customer Data only with respect to themselves.
- 1.10. “Infringement” means actual, potential, or threatened infringement, copying, reproduction, modification, misappropriation, unauthorized distribution, unauthorized use or piracy of the Software or the Documentation or any of HubbubHR’s Intellectual Property Rights therein.
- 1.11. “Intellectual Property Rights” means any and all interest or right which can be protected under the law of any country (including all statutory and/or common law rights throughout the world) as to any form of the following: (i) all patents (including utility models), rights to sue for passing off, rights in the nature of unfair competition rights, trade secret, confidentiality and other proprietary rights including rights to know-how and other technical information and applications to register any of the foregoing and all rights in the nature of any of the foregoing anywhere in the world and applications thereof and all reissues, divisions, renewals, extensions, provisional, continuations and continuations-in-part thereof (“Patents”); (ii) all inventions (whether patentable or not), invention disclosures and improvements, trade secrets, proprietary information, know-how and technology; (iii) all works of authorship, moral rights, database rights, copyrights, and copyright registrations and applications; (iv) all industrial designs (whether or not capable of registration) and any registrations and applications thereof; (v) all trade and business names, logos, trademarks chip topographies, and service marks, trademark and service mark registrations and applications; and (v) any similar, corresponding or equivalent rights to any of the foregoing.
- 1.12. “Subscription” means the HubbubHR Software Use granted to the Customer as provided in Section 3 of this Agreement.
- 1.13. “Subscription Term” means the term for which the Software is granted as set out in the Service Order Form and in accordance with this Agreement.
- 1.14. “Software” means the applications comprising the HubbubHR Software Suite in respect of which the Subscription is granted to the Customer under the terms of this Agreement, pursuant to the Service Order Form, and including all Software Updates and the Work Product. For greater certainty, the Software is only the executable object code of the applications comprising the HubbubHR Software Suite and not the source code.
- 1.15. “Users” means All Users (Admin, HR, Manager, Employee and any other users) employed or engaged by the Customer and its Affiliates, who are included in the Subscription as provided in Section 3 of this Agreement, and as set out in the Service Order Form.
- 1.16. “Customer Data” means all text, data, information, and any other visual, textual or numeric information or data, stored, generated or provided in any format, via any medium and by any means, that is provided, generated or used by the Customer in the course of the use by the Customer of the Software.
- 1.17. “HubbubHR Software Suite” means a software suite of human resources applications developed and owned by HubbubHR (also known as Ode Systems Inc. and Hubbub), as set out in the Service Order Form and as further defined Section 3 of this agreement
- 1.18. “Service Order Form” is a form used when placing an order and constitutes part of this Software Agreement.
- 1.19. “Software Updates” means any updates, modifications, corrections or revisions of or to the Software that HubbubHR has made or will make available to the users of the HubbubHR Software Suite generally or to the Customer specifically, but does not include any new versions, products, applications, modules or options that are designated by HubbubHR, in its sole discretion, as new products, modules or options, whether comprising the HubbubHR Software Suite or otherwise.
- 1.20. “Technical Support” means all support and troubleshooting services, including issue or incident tracking, provided by HubbubHR to the Customer in relation to the Software, but does not include Professional Services.
- 1.21. “Work Product” means any and all derivative works of, modifications to, and software or other tools or materials relating to the Software or the Documentation, made, developed, generated, created, or used by HubbubHR for the Customer during the course of this Agreement.
- 2.1 Delivery: Subject to your obligations hereunder, HubbubHR shall provide the Professional Services set forth on the Order Form, and HubbubHR 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: HubbubHR 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 GRANT OF LICENSE
- 3.1 HubbubHR has developed and is the owner of a human resources software suite which includes applications known as HubbubHR HRIS, Performance, Compensation, Succession and Learning. (The “HubbubHR Software Suite” also known as HubbubHR Suite); and HubbubHR is a re-seller/partner of FlowForma business process workflow.
- 3.2 The HubbubHR 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 HubbubHR host the system data. There is an additional cost for licensing and maintenance if HubbubHR is asked to host Customer employee data. Data hosting and HubbubHR cloud solutions (hosted on Microsoft Azure) are an additional cost on all annual subscription costs.
- 3.3 HubbubHR wishes to grant to the Customer and the Customer wishes to obtain a license to use certain applications in the HubbubHR Software Suite, as set out in the Schedules to this Agreement; and
- 3.4 HubbubHR wishes to provide to the Customer and the Customer wishes to retain HubbubHR to receive certain consulting, support and maintenance services in relation to the licensed HubbubHR Software Suite.
- 3.5 Subject to the terms and conditions of this Agreement, HubbubHR 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 TERM AND TERMINATION
- 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. HubbubHR 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 HubbubHR 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. HubbubHR 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. HubbubHR and Customer agree that the monthly fee increase for the Subscription on such renewal will be three percent (3%). Subscriber acknowledges that HubbubHR 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 HubbubHR 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, HubbubHR shall promptly download (with a charge) all Customer Data within the Software to a HubbubHR secure ftp site or Customer-hosted ftp site in .csv format or similar (as determined by HubbubHR, or in such other medium and/or format as the parties have mutually agreed). In addition, HubbubHR shall, at its then current rates, provide additional assistance to Customer as requested. Following the aforementioned thirty (30) day period, HubbubHR shall dispose of Customer Data.
5. LICENSE RESTRICTIONS AND LIMITATIONS
- 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. INFRINGEMENT OF HUBBUBHR’S RIGHTS
- 6.1. The Customer will notify HubbubHR 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 HubbubHR, at HubbubHR’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 HubbubHR, take or attempt any action, legal or otherwise, in relation to any Infringement.
- 7.1. In consideration for the License granted by HubbubHR to the Customer pursuant to this Agreement, the Customer will pay HubbubHR the fees set out in the Service Order Form, on the terms set out in the Service Order Form and in this Agreement generally.
- 7.2. Order Form: Upon execution of each Service Order Form, Customer shall pay the total one-time fees payable upon signing as further detailed on the Service Order Form. Unless otherwise set forth in the applicable Service Order Form, HubbubHR will invoice fees for recurring Services, including subsequent Subscription Periods, in advance, on an annual basis, payable within thirty (30) days of receipt. All fees under this Agreement are non-refundable (except as otherwise set forth herein).
- 7.3. Taxes: Customer agrees to pay or reimburse any sales, goods or services, value-added, or other similar taxes imposed by applicable law that HubbubHR is required to collect based on the Subscription and all services as outlined on the Service Order Form. The fees listed on an Service Order Form are exclusive of all such taxes.
- 7.4. Payment Due: All invoices rendered by HubbubHR are due and payable within thirty 30 days of the invoice date, with the exception of the initial payment which is due within 15 days of the execution of this agreement.
- 7.5. Late Payment: A finance charge of 3% per month will be added to accounts not paid within 30 days. HubbubHR reserves the right to stop work and/or suspend services on accounts not paid within 30 days.
- 7.6. Non-Assignable: Unused Services cannot be transferred or assigned other than to the Customer’s Affiliates or to a third party to whom HubbubHR has consented the assignment of this Agreement.
- 7.7. Travel: Where provision of any Services may require travel by a representative of HubbubHR, the following conditions will apply:
- 7.7.1 At the written request of the Customer, and if mutually agreed to by HubbubHR, a representative of HubbubHR will travel to the Customer’s location to provide the Services.
- 7.7.2 The Customer shall be solely responsible for all reasonable and pre-approved expenses associated with said travel by an HubbubHR representative including, without limitation, all travel, accommodation, and meal costs.
- 7.7.3 Notwithstanding 7.7.1, at any time, HubbubHR reserves the right to restrict or cancel travel to the Customer’s location in cases where it may be deemed a risk to HubbubHR personnel, such determination will be made at the sole discretion of HubbubHR.
- 7.7.4 When travel to the Customer’s location is not feasible, as determined at the sole discretion of HubbubHR, Services shall be provided by other means including, but not limited to, teleconferencing, video conferencing, remote technology or meeting at an alternate agreed upon location.
8. MAINTENANCE and SUPPORT
- 8.1. Maintenance and Software Updates: HubbubHR will provide to the Customer Software Updates on the terms set out in this Agreement and in the Service Order Form.
- 8.2. Customer Data Entry: The Customer acknowledges and agrees that it will be responsible for generating and entering (or uploading) into the Software all Customer Data necessary for the Customer to use the Software.
- 8.3. Cloud Hosting. HubbubHR 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.
- 8.4. Server/Infrastructure Management: If the Software is installed on the Customer’s server (“on premise”) responsibility for the installation, commissioning and ongoing management of the server, infrastructure and intranet and/or network access environments, including SQL, SharePoint, and system backups, which may be necessary for the Customer to use the Software will be the responsibility of the Customer.
- 8.5. Technical Support: HubbubHR will provide Technical Support to the Customer in accordance with the Service Order Form and the Service Level Agreement. (do we have this outlined somewhere?).
- 8.6. Exclusions: HubbubHR will have no obligation to provide Technical Support for issues or problems caused by (i) negligence of the Customer; (ii) any unauthorized modification of the Software; (iii) use of the Software for the purposes for which the Software was not intended or designed; and (iv) causes external to the Software, such as hardware, network, internet access or third party applications or third party interfaces.
- 8.7. Third Party Issues: HubbubHR will have no obligation to provide Technical Support for or with respect to installation or maintenance of applications or devices external to the Licensed Software.
- 8.8. Remote Access: If the Software is installed the Customer’s server pursuant to Section 8.3, the Customer will provide HubbubHR with VPN or similar remote access means reasonably necessary for HubbubHR to provide professional services, technical support and software updates.
- 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 HubbubHR and provided to the Customer on a time and materials basis.
- 8.10. Data & Configuration: It is the Customer’s responsibility to configure the system, populate data, and manage the system internally unless otherwise specified in the Service Order Form. Data collection, cleansing, validation and verification are the responsibility of the Customer. At the Customer’s request HubbubHR can assist with data cleansing or data entry/upload and these services will be provided on a time and materials basis.
9. REPRESENTATIONS, WARRANTIES, and COVENANTS
- 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 HubbubHR to perform the Services.
- 9.2. HubbubHR Representations and Warranties: HubbubHR hereby provides the following representations and warranties: (i) that it has the right to grant and license the rights and licenses granted under this Agreement, and that, where necessary, it has obtained all necessary permission and consents to grant said rights and licenses; and (ii) that the Licensed Software performs substantially in accordance with the published Documentation.
- 9.3. Limitations:
- 9.3.1. HubbubHR 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, HubbubHR 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. HUBBUBHR 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. HubbubHR Infringement Indemnity
- 9.4.1. HubbubHR 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 “HubbubHR Indemnity”). HubbubHR 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 HubbubHR Indemnity will be subject to: (i) the Customer providing prompt notice to HubbubHR of the details of such Claim, (ii) the Customer providing reasonable assistance to HubbubHR in the defense of such Claim, and (iii) HubbubHR having control over the defense of such Claim.
- 9.4.3. The HubbubHR 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-HubbubHR software or hardware, or if the Licensed Software is modified by anyone other than HubbubHR, or if the infringement arises out of any customization of the Licensed Software carried out by HubbubHR in accordance with the Licensee’s specifications despite HubbubHR 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 HubbubHR.
- 9.4.4. If HubbubHR becomes aware of a Claim or possible Claim, it may, at HubbubHR’s sole option and expense:
- (i) modify the Licensed Software so that it is non-infringing but functionally equivalent;
- (ii) replace the Licensed Software or any portion thereof with functionally equivalent software;
- (iii) obtain for the Customer a license to use the third-party software that is the subject of the Claim; or
- (iv) terminate the License and this Agreement, in which case the Customer will immediately stop using the Licensed Software and the Documentation and HubbubHR will promptly refund to the Customer the amount, not to exceed the amount of any fees (including, without limitations, any ‘one-time’ fees outlined in Schedule A attached hereto) paid by the Customer to HubbubHR under this Agreement.
10. PROPRIETARY RIGHTS
- 10.1. HubbubHR Property: Subject to the terms of this Agreement, the Customer acknowledges and agrees as follows:
- 10.1.1. HubbubHR 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 HubbubHR from third parties;
- 10.1.2. HubbubHR is the owner of any hardware, servers, equipment, networks or other software used by HubbubHR 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 HubbubHR may provide to the Customer are and will remain the property of HubbubHR or its successors.
- 10.2. Customer Property: HubbubHR acknowledges and agrees that the Customer and/or the Affiliates is the owner of the Customer Data.
11. CONFIDENTIAL INFORMATION
- 11.1. HubbubHR Confidential Information: The Customer acknowledges and agrees that the Software and the Documentation, any information provided to the Customer by HubbubHR in the course of providing the Services, and any other information expressly designated by HubbubHR in writing as “confidential” are or contain confidential information and trade secrets of HubbubHR. HubbubHR acknowledges and agrees that any information provided to HubbubHR 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 HubbubHR and of the Customer is referred to collectively as “Confidential Information” in this Agreement.
- 11.2. Confidentiality: Each party (“Recipient”) will treat as confidential all Confidential Information of the other party and will not, unless authorized otherwise in writing by the Disclosing Party: (i) disclose the Confidential Information of the Disclosing Party to third parties (other than the Recipient’s Affiliates) or allow third parties (other than the Recipient’s Affiliates) to gain access to the Confidential Information of the Disclosing Party; and (ii) use the Confidential Information except as necessary to use the Software under the terms of the Agreement (in the case of Customer) or to provide the Services (in the case of HubbubHR) pursuant to the term of this Agreement.
- 11.3. Notice of Unauthorized Use or Access: The Recipient will notify the Disclosing Party as soon as reasonably practicable of any actual or suspected unauthorized access to, reproduction, distribution or use of the Confidential Information of the Disclosing Party.
- 11.4. Exclusion: The parties acknowledge and agree that the definition of Confidential Information, and the corresponding obligations of the parties under this Agreement, will not extend to information that: (i) is already known by the Recipient, as applicable, without an obligation of confidentiality or non-disclosure; (ii) is publicly known or becomes publicly known through no unauthorized act of the Recipient (or any Affiliate), as applicable, and said party does not have any reason to believe that the information has been made publicly known due to a breach of confidentiality obligations owed to the other party under this Agreement; (iii) is rightfully received by the Recipient, as applicable, from a third party; or (iv) is independently developed by the Recipient without use of the Confidential Information of the Disclosing
12. LIMITATIONS ON LIABILITY AND DISCLAIMERS
- 12.1. Limitation on liability: Except for HubbubHR’s indemnification obligations in Section 9.4 of this Agreement, in no event will HubbubHR, its directors, officers, employees, agents, contractors or Affiliates, be liable for any claim for: (a) punitive, exemplary, or aggravated damages; (b) damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of the Customer materials or facilities, including its computer resources, software and any data; (c) indirect, consequential or special damages, or damages for pure economic loss; (d) contribution, indemnity (subject to section 9.4.1) or set-off in respect of any claims against the Customer by third parties; (e) any damages whatsoever relating to third-party products, the Licensee’s materials or any goods or services not developed or provided by HubbubHR; or (f), subject to any contrary provisions in this Agreement, any damages whatsoever relating to interruption, delays, errors or omissions, whether or not the possibility or cause of such damages was known to HubbubHR.
- 12.2. Limitation on Damages: Without limiting the foregoing and except for HubbubHR’s indemnification obligations in Section 9.4 of this Agreement, the maximum liability of HubbubHR, 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 HubbubHR under this Agreement during last twelve (12) months of the current Subscription Term plus any ‘one-time’ fees outlined in Service Order Form.
- 13.1. Acts by the Licensee: All acts or actions prohibited or proscribed to be done or performed by the Customer under the terms of this Agreement include all acts and actions done or performed directly or indirectly by the Customer, or caused, suggested or authorized by the Customer to be done or performed, directly or indirectly, by any third parties or Affiliates.
- 13.2. Modification: This Agreement may not be modified or amended except as agreed to in writing by both the Customer and HubbubHR and such modification or amendment shall be attached to the Service Order Form and form a part of this Agreement
- 13.3. Waiver: Any consent by a party to, or waiver of, any breach of this Agreement by the other party will not constitute a consent to or waiver of any further or subsequent breach and any such waiver or consent must be given in writing by said other party in order to be effective under this Agreement. Except as otherwise provided herein, no term or provision hereof will be deemed waived and no breach excused.
- 13.4. Headings and Gender: The division of this Agreement into Sections, the insertion of headings, are for convenience of reference only and will not affect the construction or interpretation of this Agreement. Unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders.
- 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 HubbubHR 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 HubbubHR without the prior written consent of HubbubHR or Customer, as applicable except that the Customer may assign this Agreement to any of its Affiliates without the prior written consent of HubbubHR. Notwithstanding the foregoing, HubbubHR 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.
- 13.7. Injunctive Relief: The Customer further acknowledges that a breach of this Agreement, and particularly the breach of any terms of the Subscription, will cause irreparable harm to HubbubHR for which damages would not be an adequate remedy, and, therefore, in addition to all other remedies available to HubbubHR at law or in equity HubbubHR may be entitled to injunctive relief.
- 13.8. Governing Law: This Agreement is governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein.
- 13.9. Jurisdiction: With respect to any disputes arising regarding or in relation to this Agreement or its interpretation, the parties will submit to the non-exclusive jurisdiction of the Courts of the Province of British Columbia sitting in the City of Vancouver.
- 13.10. Notices: Any formal notice of termination, breach or any other formal notice under this Agreement or as otherwise required by statute, law or regulation will (unless otherwise provided) be in writing and will be delivered in person or sent by registered mail, properly posted and fully prepaid in an envelope For day-to-day communications between the parties, notices may be sent by email.
- 13.11. Execution: This Agreement may be validly executed in counterparts and by means of transmission of signed facsimile or email.
- 13.12. Severability: If any part of this Agreement is held to be unenforceable or invalid, it will be severed from the rest of this Agreement, which will continue in full force and effect.
- 13.13. Force Majeure: If any part of this Agreement is held to be unenforceable or invalid, it will be severed from the rest of this Agreement, which will continue in full force and effect.
- 13.14. Entire Agreement: This Agreement and any schedules or other documents referred to herein, constitutes the entire agreement between the parties relating to the Services and supersedes all prior written or oral agreements, representations and other communications between the parties, and will endure to the benefit of and be binding upon each of the Customer and HubbubHR and their respective successors and permitted assigns.
- 13.15. Sections 5, 6, 9.1, 9.2, 9.3, 10.1, 11.1, 11.2, 11.4, 4.5, 12.1, 12.2, 13.1, 13.3, 13.5, 13.7, 13.8, 13.9 and 13.12 will survive the termination or expiry of this Agreement.
MAINTENANCE AND SUPPORT
Support & Maintenance
Support and Maintenance is part of the Software Agreement by and between Customer and HubbubHR. In the event of a conflict between this Policy and the Agreement, unless otherwise expressly provided, the Agreement will control.
HubbubHR 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.
To request Support, the Customer must follow the steps outlined in the HubbubHR 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 the HubbubHR Support form and send it to the designated HubbubHR Point Person (POC) and if advised to do so by the HubbubHR POC, submit a HubbubHR Ticket.
Types of support requests may include:
- • User Question/Training Request
- • Functionality Enhancement Request
- • System Error/Corrective Issue Request
Support Priority Level
When submitting a Support Request to HubbubHR please refer to the following classification 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.
The above classifications will be used to prioritize 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 HubbubHR Support Desk.
Subject to the provisions of the Agreement, and provided the Customer has complied with HubbubHR Support Procedures herein, in providing Support, HubbubHR 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:
Priority 1 Critical Incidents: respond within three (3) hour during the Support Times, or within four (4) hours outside of the Support Times; and resolve incident within eight (8) hours of the initial response;
Priority 2, 3, 4, 5 for Non-critical incidents, within one (1) business day.
Service Level Agreement
HubbubHR will guarantee 98.5% system up-time in accordance with system down-time as defined below.
HubbubHR 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.
HubbubHR will not be responsible for corrupt Customer Data, or issues relating to Customer Configuration, 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 prioritize 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:
Definition of Priority
Total System Outage
30 minutes helpdesk telephone response
User impacted but system functionality still available
4 hour response
System Maintenance Required
1 day response
Minor issue (Non Business Critical)
2 day response
Additional Premium Support is Available upon request.
Data Processing Agreement
HubbubHR is committed to providing the controls needed to assist our Customers to meet their obligations as a data controller under GDPR, and our own as a data processor, to ensure compliance with the GDPR which took effect on May 25th 2018. Our Customers can leverage HubbubHR services with confidence understanding the robust data protection capabilities built-in to our services.
We’ve been making important updates to our services and have introduced new contractual commitments including a Data Processing Agreement that directly address GDPR requirements.
The Data Processing Agreement can be found here: www.hubbubhr.com/trust/gdpr/dataprocessingagreement