The following terms, when used in this Agreement shall have the following meanings:
- “API” means the application programming interface for accessing and using the Services and any related materials made available to Customer by Essential Hub, including, without limitation, through essentialhub.com.
- “API Key” means the security key Essential Hub makes available for Customer to access the API.
- “Confidential Information” means all material, non-public, business-related information, written or oral, that either Party discloses to the other Party, directly or indirectly, through any means of communication or observation that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. “Confidential Information” does not include any information which: (i) is publicly available through no fault of receiving Party; (ii) was properly known to receiving Party, without restriction, prior to disclosure by the disclosing Party; (iii) was properly disclosed to receiving Party, without restriction, by another person without violation of disclosing Party’s rights; or (iv) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
- “Customer Application” means the software solution being built or refined by Customer on behalf of its End User(s).
- “Customer Data” means data and other information made available to Essential Hub by Customer through the use of the Services under this Agreement.
- “Documentation” means all of the instructions, code samples, on-line help files, and technical documentation made available by Essential Hub to its Customers, including through the Essential Hub Back Office Platform.
- “End User” means the ultimate consumer of the Services.
- “Essential Hub Back Office Platform” means Essential Hub’s hosted platform and user interface for Customer access the Services and any Documentation.
- “Malicious Code” means any software, hardware or other technology, device, or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.
- “Material Breach” means a breach that is substantial and materially affects the value of this Agreement.
- “Services Fees” means fees charged by Essential Hub for Customer’s, or its End Users’, use of the Services.
- LICENSE TO THE SERVICES; RESTRICTIONS
- Subject to and conditioned on Customer’s compliance with all other/the terms and conditions set forth in this Agreement, including payment of any applicable Services Fees, Essential Hub hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable (excluding licenses to End User(s) in accordance with this Agreement) license during the Term to: (i) use the API solely for the purposes of internally developing the Customer Applications that will communicate and interoperate with the Services; (ii) access and use the Essential Hub Back Office Platform; and (iii) use and make a reasonable number of copies of the Documentation.
- Customer shall not use the Services for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as expressly set forth in this Agreement, Customer shall not at any time, and shall not permit others to: (i) modify, translate or create derivative works based on the Services or any software (except to the extent expressly permitted by Essential Hub or authorized within the Services); (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, Documentation or data related to the Services; (iv) remove any proprietary notices from the Services; (v) use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) combine or integrate the Services with any software, technology, services or materials not authorized by Essential Hub; (vii) design or permit the Customer Applications to disable, override or otherwise interfere with any Essential Hub-implemented communications to End Users, consent screens, user settings, alerts, warning or the like; (viii) attempt to cloak or conceal Customer’s identity or the identity of the Customer Applications when requesting authorization to use the Services; (ix) input, upload, transmit, store or otherwise provide to or through the Services any Customer Data or other information or materials that: (A) contain or transmit any Malicious Code, or (B) are unlawful, abusive, malicious or tortious or (C) infringe upon or violate the intellectual property rights of any third party; (x) frame or mirror any part of the Essential Hub Back Office Platform; or (xi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm, in any manner, the Services or Essential Hub’s information technology systems, in whole or in part. Under no circumstance shall Customer offer the Services on a stand-alone basis.
- Essential Hub has the right (but never the obligation) to monitor Customer’s use of the Services and in its sole discretion may prohibit any use of the Services it reasonably believes are in violation the restrictions set forth in this Agreement.
- CUSTOMER RESPONSIBILITIES
- Customer will ensure that the Services are used in accordance with all applicable laws, regulations, third-party rights and Essential Hub policies, as well as the terms of this Agreement and shall be responsible for any failures to adhere to these standards by Customer or Customer’s End Users. Customer is responsible and liable for all uses of the Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Customer’s End Users in connection with the Customer Applications and their use of the Services, if any. Any act or omission by Customer’s End User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall take reasonable efforts to make all of Customer’s End Users aware of this Agreement’s provisions as applicable to such End User’s use of the Services and shall cause End Users to comply with such provisions.
- To use and access the API, Customer must obtain an API Key, which shall be provided by Essential Hub via email and made available on the Essential Hub Back Office Platform. Customer may not share the API Key with any third party, must keep the API Key and all log-in information secure, and must use the API Key as Customer’s sole means of accessing the API. The API Key may be revoked at any time by Essential Hub. Customer will use commercially reasonable efforts to safeguard the API (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Customer will promptly notify Essential Hub if Customer becomes aware of any infringement of any intellectual property rights in the API and will fully cooperate with Essential Hub in any legal action taken by Essential Hub to enforce Essential Hub’s intellectual property rights.
- Customer will ensure that Essential Hub is entitled (and hereby grants Essential Hub the rights) to use the Customer Data as needed to provide the Services, and Customer will not use the Services in any manner that violates or may violate any data protection statute, regulation, order or any similar law. Customer is solely responsible for posting any privacy notices and obtaining any consents or approvals from Customer’s End Users required under applicable laws, rules and regulations for their use of the Customer Applications.
- Customer shall monitor the use of the Customer Applications for any activity that violates applicable laws, rules and regulations or any terms and conditions of this Agreement, including any fraudulent, inappropriate or potentially harmful behavior, and promptly restrict any offending users of the Customer Applications from such use of the Customer Applications.
- Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to receive data files produced by the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and similar equipment (collectively, the “Equipment”). Customer shall be responsible for maintaining the security of the Equipment and shall take reasonable measures to prevent the unauthorized disclosure of any information stored on or conveyed through the Equipment. Customer shall also be responsible for maintaining the security of all credentials (including usernames, passwords and API Keys) permitting access to the Services and to protect against any unauthorized access to or use of the Services. Customer shall notify Essential Hub of any unauthorized access or use of the Services promptly upon becoming aware thereof.
- RESTRICTIONS ON NUMBER OF RESELLERS
- Customer acknowledges and agrees that at no given time shall Customer engage, enter into an agreement with, or otherwise use the services of more than one (1) of each Domestic United States Postal Service (“USPS”) Reseller First Class and/or Priority Mail and Priority Mail Express Rate Card and one (1) of each International USPS Reseller First Class and/or Priority Mail and Priority Mail Express Rate Card for the purpose of obtaining discounted USPS shipping rates (each, a “Reseller”). Customer further agrees that in the event Customer terminates an agreement with a current Reseller (whether International or Domestic), Customer shall be provided Essential Hub rates, or Essential Hub will manage such rate sets, until Customer enters into an agreement with a different Reseller. Upon reasonable request from Essential Hub, Customer agrees that it shall provide Essential Hub with all relevant information, including copies of all current agreements entered into between Customer and Resellers.
- INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY
- The Parties acknowledge and agree that Essential Hub exclusively owns all right, title and interest in and to the Services (including the API and Essential Hub Back Office Platform) and Essential Hub Confidential Information and all related intellectual property rights and reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Customer or any third party any intellectual property rights or other right, title or interest in or to the Services. The Parties further acknowledge and agree that Customer exclusively owns and reserves all right, title and interest in and to the Customer Data, Customer Applications and Customer Confidential Information, and all related intellectual property rights.
- Subject to the terms of this Agreement, each Party (the “Licensor”) grants to the other Party (the “Licensee”) the right to use and display Licensor’s name and marks (each, a “Licensor Mark” and collectively, the “Licensor Marks”) on its website and in other promotional materials solely in connection with its activities under this Agreement. All such use of the Licensor Marks will be in accordance with the Licensor’s usage guidelines and will inure to the benefit of Licensor. Under no circumstances shall a Licensee use, register or take other action respecting any of the Licensor Marks, except to the extent authorized in writing by Licensor. In its efforts, Licensee will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. Licensee will not, at any time, misrepresent its relationship with Licensor. The license described in this Section will terminate automatically in the event of any termination of this Agreement.
- Each Party agrees that it will use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder. Each Party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure of at least the level of care to protect such Confidential Information as a trade secret under applicable law. Each Party may disclose the Confidential Information of the other Party, in whole or in part, to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Agreement. Either Party may disclose the Confidential Information of the other Party as required by law, upon prior written notice to the other Party (where allowed by law); provided that such Party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.
- Customer acknowledges that Essential Hub considers its Confidential Information to contain trade secrets of Essential Hub and that any unauthorized use or disclosure of such information would cause Essential Hub irreparable harm for which its remedies at law would be inadequate. Accordingly, Customer acknowledges and agrees that Essential Hub will be entitled, in addition to any other remedies available to it at law or in equity, to the issuance of injunctive relief, without bond, enjoining any breach or threatened breach of Customer’s obligations hereunder with respect to the Confidential Information of Essential Hub, and such further relief as any court of competent jurisdiction may deem just and proper.
- Notwithstanding anything herein to the contrary, Essential Hub shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Essential Hub will be free (during and after the term hereof): to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Essential Hub offerings; and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
- WARRANTY AND DISCLAIMER
- Essential Hub shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Essential Hub or by third-party providers, or because of other causes beyond Essential Hub’s reasonable control.
- SUBJECT TO THE WARRANTY SET FORTH IN SECTION X.A, ESSENTIAL HUB HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. EXCEPT AS SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, ESSENTIAL HUB MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR DOCUMENTATION, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS OR THE REQUIREMENTS OF ANY OTHER PERSON, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF MALICIOUS CODE OR ERROR FREE.
- LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL ESSENTIAL HUB AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER SIMILAR DAMAGES OR LOSSES, EVEN IF ESSENTIAL HUB HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL ESSENTIAL HUB BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM. Should this limitation on damages be unenforceable, the total amount of Essential Hub’s liability to Customer shall, nevertheless, not exceed the amounts actually paid to Essential Hub under this Agreement.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
- GOVERNING LAW; DISPUTES
- This Agreement will be governed by the laws of the State of Utah, without regard to its rules governing conflicts of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
- Customer agrees that it shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce. This provision and the assurances made herein shall survive termination of this Agreement.
- Except for claims for injunctive relief (which may be brought in any court of competent jurisdiction), any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be shall be resolved as follows: (i) the Parties shall first attempt in good faith to resolve any such claim or controversy, (ii) failing that, the Parties shall be free to file suit in any state or federal court of competent jurisdiction located in the State of Utah.
- Customer hereby indemnifies and shall defend and hold harmless Essential Hub and its subsidiaries, affiliates, officers, directors, employees, agents and subcontractors from and against all liability, damages, loss, cost or expense, including but not limited to reasonable attorneys’ fees and expenses, arising out of or in connection with any third-party claims or allegations: (i) that Customer’s use of the Services infringe or otherwise violate any rights of any a third party, including intellectual property rights; (ii) that Customer’s use of the Services violate foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein; (iii) arising from (A) Customer’s activities under or breach of this Agreement, or (B) Customer’s acts or omissions in connection with any Customer Application, including without limitation, any intellectual property or other claims relating to Customer Application, Customer Data, End User data or the like.
- Upon the assertion of any claim or the commencement of any suit or proceeding against Essential Hub by any third party that may give rise to liability of Essential Hub hereunder, Customer shall promptly notify Essential Hub of the existence of such a claim and shall give Essential Hub reasonable opportunity to defend and to settle the claim at its own expense and with counsel of its own selection. Customer shall cooperate with Essential Hub, shall at all times have the full right to participate in such a defense at its own expense and shall not be obligated, against its consent, to participate in any settlement which it reasonably believes would have an adverse effect on its business.
- If Customer fails to make any payments required by this Agreement and Essential Hub seeks to collect the amounts owed to it under this Agreement, Customer agrees to pay the reasonable costs of collection. These costs include, but are not limited to, any collection agency’s fees, reasonable attorneys’ fees, interest or late fees accrued, and arbitration or court costs.
- Customer will not assign or otherwise transfer this Agreement, in whole or in part, without Essential Hub’s prior written consent, which Essential Hub may withhold in its sole discretion. Any attempted assignment, delegation, or transfer in violation hereof will be null and void. Essential Hub may assign this Agreement in whole or in part.
- No modification to this Agreement, nor any waiver of any rights, will be effective unless consented to in a writing signed by both Parties.
- Any waiver of any breach or default by either Party will not constitute a waiver of any other right or any subsequent breach or default. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
- The Parties are, and at all times shall remain, independent parties and are not, nor shall they represent themselves to be, Customers or parties to a joint venture for any purpose whatsoever.
- If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, then such provision will be enforced to the maximum extent possible under applicable law so as to effect the intent of the Parties and the remaining provisions of this Agreement will remain in full force and effect. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision, it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so written.
- All notices, requests, demands or other communications under this Agreement shall be in writing and shall be validly given or made to another Party if given by personal delivery, telegram, email, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested. If such notice, demand or other communication is given by personal delivery, telegram or email, service shall be conclusively deemed made at the time of receipt. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given forty-eight (48) hours after the deposit thereof in the United States Mail addressed to the Party to whom such notice, demand or other communication is to be given as hereinafter set forth:
If to Essential Hub: Essential Hub, LLC
7607 S. Main Street
Midvale, Utah 84047
Attn: Legal Department
If to Customer: (Customer to provide this information in writing to Essential Hub via personal delivery, telegram, email, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested.)
- All schedules and exhibits attached to this Agreement constitute a part of this Agreement and are incorporated herein. This Agreement, including any schedules exhibits hereto, constitutes the entire agreement between the Parties. No modification or amendment of this Agreement shall be effective unless in writing and signed by both Parties. This Agreement replaces any and all prior agreements or understandings between the Parties.
- Each of the Parties shall be excused from performing their respective obligations hereunder in the event that either or both are prevented from so performing by reason of an emergency such as floods, earthquakes and other extraordinary natural acts, war, insurrection, riots, and other similar catastrophic events that are beyond the control of and not the fault of the Party claiming the excuse.
- Customer shall maintain accurate, complete and reasonably detailed books, records, accounts and information necessary to substantiate amounts paid to Essential Hub hereunder, consistent with generally accepted accounting principles (GAAP), for a period of five (5) years following the termination of this Agreement for any reason. Upon forty-eight (48) hours’ advance written request, Customer shall provide Essential Hub, its accountants and auditors with reasonable access to Customer’s ledgers, receipts, timesheets and such other relevant accounting and financial records as may be reasonably requested by Essential Hub to verify such invoiced amounts. Customer shall pay for the cost of the audit if the aggregate amount of any accounting errors exceeds ten percent (10%) for the audited period, and shall promptly refund all overcharges including interest thereon at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted under applicable law.
- Each Party has the requisite company power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement have been duly authorized by all necessary company action on the part of each of the Parties.
- This Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which taken together will constitute one and the same instrument.
- In the event that any Party shall be in default or breach of this Agreement, said Party shall be liable to pay all reasonable attorneys’ fees, court costs and other related construction costs and expenses incurred by the non-defaulting or non-breaching Party in prosecuting its rights hereunder.
- No consent, permit, approval or authorization of, or declaration, filing, application, transfer or registration with, any governmental authority, or any other person or entity is required to be made or obtained by either Party by virtue of the execution, delivery or performance of this Agreement.
- The captions used herein are for convenience of reference only and are not part of this Agreement, and shall in no way be deemed to define, limit, describe or modify the meaning of any provision of this Agreement.
This Agreement includes and contains, among other things, financial terms, warranty disclaimers, liability limitations, maintenance of confidentiality and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the Parties after the Effective Date.