Hosta AI License and Services Agreement
THIS HOSTA AI LICENSE AND SERVICES’ AGREEMENT (AGREEMENT) CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS THE USE OF AND ACCESS TO THE PRODUCTS AND SERVICES BY YOU, AGENTS AND AUTHORIZED UDERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE PRODUCTS.
By accepting this Agreement, either by accessing or using a Product, or authorizing or permitting any Authorized User to access or use a Products, you agree to be bound by this Agreement as of the initial date of such access or use of the Product (Effective Date). If you are entering into this Agreement on behalf of a company, organization or another legal, you are agreeing to this Agreement for that entity and representing to HL Acquisition, Inc., d/a/a Hosta AI (Hosta) that you have the authority to bind such entity and its Affiliates to this Agreement, in which case the terms “Customer,” “you,” “your” or a related terms shall refer to the entity specified in an Order.
1. SCOPE OF AGREEMENT
This Agreement governs Customer’s purchase of the Products and Services described hereunder, and in each Order entered into by the parties. This Agreement includes any accepted Orders and any other referenced policies and attachments.
1.1 This Agreement governs:
- Customer’s use of and access to Hosta’s commercially available software and data products identified in each Order (Product(s)); and
- Product-related technical support provided by Hosta as per the terms of this Agreement and applicable Order (Support); and
- Any related professional services, including services related to implementation and optimization of the Products, change management and business practice optimization, and education and training (Professional Services).
1.2 Authorized Users; Tokens
Customer shall be responsible for compliance with this Agreement and each Order by Authorized Users. An Authorized User is an individual human being who is authorized by Customer to use the Products and to whom Customer has issued a user identification and password as well as any tokens required by Hosta for use of the Products. Authorized Users may include, for example, a Customer Affiliate, employees, independent contractors, and agents, as well as a client or customer of Customer. Affiliate shall mean a legal entity that is controlled by, controls, or is under common control with you or Hosta, as the case may be. The term “control,” and its derivative “controlled,” means ownership or voting rights over at least 50% of the outstanding voting or equity securities of the entity in question or the power to direct or cause the direction of management or policies of such entity, whether through voting securities, by contract or otherwise.
An ordering document (Order) will be required to access a Product, obtain and Support, and/or to engage Hosta to perform Professional Services.
2.1 Products and Support
- Product Orders will specify the authorized scope of use for the Products, which may include number and type of Authorized Users, number of queries/calls, storage or capacity, Authorized User limitations, the Order term (Subscription Term) copies or instances, and/or other restrictions or billable units (as applicable, the Usage Scope). The Usage Scope shall apply only to the Products specified in each Order.
- Unless otherwise specified in the applicable Order, Hosta shall provide applicable standard customer support for the Products as specified at https://www.hosta.ai. Hosta reserves the right to change the terms of
Support by updating the referenced terms. Support is included in the Subscription Fee, unless otherwise indicated in the applicable Order.
- Customer acknowledges that Hosta may modify and improve the features and functionality of the Products during the Subscription Term and shall provide Customers with commercially reasonable advance notice of any changes made to a material feature or functionality.
2.2 Professional Services
Each Order for Professional Services (sometimes referred to as a Statement of Work or SOW) shall include at a minimum, the following terms: (1) a description of the Professional Services and the tangible outputs associated with the same (Deliverables); (2) Professional Services’ fees and agreed to expenses; (3) milestone or project schedule; and (4) Customer responsibilities, including the provision of materials and availability of personnel necessary for the successful performance of the Professional Services. All Professional Services engagements shall be governed by the Professional Services terms specified in Section 10 below.
3. USAGE RIGHTS; RESTRICTIONS
- Subject to this Agreement, including the restrictions specified hereunder as well as the Usage Scope set forth in the applicable Order, Hosta grants to Customer a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the Subscription Term to: (a) use and make calls to the Product to process Customer Data (defined below) in order to create the outputs permitted by the Products (Processed Output(s)); (b) to use the Processed Outputs solely as provided for in this Agreement (or under the applicable Order); and (c) use and display the Hosta Marks only to identify that the Processed Outputs were generated through use of the Products.
- Customer may use the Processed Output solely for its internal business purposes and in accordance with the restrictions specified below. To the extent that any Hosta Proprietary Materials form a part of the Processed Output and are necessary for Customer’s use of the Processed Output as permitted hereunder, then Customer shall have a limited, non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right to use the required Hosta Proprietary Materials, only as incorporated into the Processed Output, and not as a selfstanding or decoupled set of materials.
- Use of product guidance and other materials made available by Hosta (Documentation) is permitted for the sole purpose of supporting Customer’s permitted use of the Products and Processed Outputs. Customer is prohibited from making copies of Documentation or otherwise sharing/disclosing Documentation with any third party.
3.2 Feedback and Images
Hosta shall have, and Customer hereby grants to Hosta, a royalty-free, fully paid-up, worldwide, transferable, sublicensable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into any of Hosta’s products and/or otherwise use in any manner any (a) suggestions, enhancement requests, recommendations or other feedback Hosta receives from Customer or an Authorized User and (b) the image data provided by Customer in the course of using the Products. For clarity, Customer shall retain ownership of its image data in accordance with the proprietary rights provisions set forth below. Notwithstanding any other term of this Agreement, Hosta may access and use, and shall retain all right, title and interest in transactional and performance data related to use of the Products, which may include aggregated and anonymized data based upon the Customer Data, so long as such data does not reveal the identity or traits of any particular individual person.
- Except as expressly authorized under this Agreement or in the applicable Order, Customer shall not and shall not permit any Authorized User to: (i) use the Products or any Hosta Proprietary Materials for any illegal, unauthorized or otherwise improper purposes, or in any manner that would violate this Agreement or the Order, or breach any laws or regulations, or violate the rights of third parties; (ii) remove any legal, copyright, Marks or other proprietary rights notices contained in or on materials Customer accesses pursuant to this Agreement; (iii) sell, lease, share, transfer, sublicense or fail to protect the confidentiality of any Hosta Proprietary Materials obtained through the Products, directly or indirectly, to any third party, including any data broker, ad network, ad exchange, or other advertising monetization-related party; (iv) use the Products in a manner that, as determined by Hosta in its sole discretion, exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the Documentation or this Agreement; (v) use the Products in conjunction with any other product that competes with products or services offered by Hosta; (vi) interfere with or disrupt Hosta servers or networks connected to Hosta servers, or disobey any requirements, procedures, policies or regulations of networks connected to Hosta servers; (vii) transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature through use of the Products; (vii) copy adapt, reformat, reverse-engineer, disassemble, decompile, download, translate or otherwise modify the Products, Hosta Proprietary Materials, Hosta website, or any services provided by Hosta’s third-party providers, through automated or other means; (viii) use the Products to provide service bureau, timesharing services, or shared processing services; (ix) export the Products into any country that does not have copyright laws that will protect the rights of Hosta; or (x) publicly disseminate information regarding the performance of the Products or Customer’s experience with Hosta.
- Customer shall and shall ensure that each Authorized User shall comply with the technical and policyimplemented limitations of the Usage Scope and the restrictions of this Agreement and the applicable Order with respect to Customer’s and the Authorized Users’ use of the Products. Without limiting the foregoing, Customer shall not violate any explicit rate limitations on calling or otherwise interfere with, modify or disable any features, functionality or security controls of the Products, and/or defeat, avoid or bypass any protection mechanism deployed to ensure compliance with Usage Scope and this Agreement and the Order.
- This Agreement does not include any right for Customer to use any trademark, service mark, trade name or any other mark of Hosta or any of Hosta’s licensors or service providers (Marks), other than as expressly provided for.
- No rights or licenses are granted except as expressly and unambiguously set forth herein. If Customer or an Authorized User violates any of the foregoing restrictions, HLA shall own all right, title and interest relating to any and all inventions, works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, using the Products or any Hosta Proprietary Materials, and Customer shall and hereby does make all assignments necessary to accomplish the foregoing ownership by Hosta.
4. CUSTOMER RESPONSIBILITIES
Customer is solely responsible for its use of the Processed Outputs and its or any third-party’s reliance on the same, as well as for any decisions or actions made based on the Processed Outputs.
5. PROPRIETARY RIGHTS; CONFIDENTIALITY
5.1 Proprietary Rights
- Hosta. All Hosta IP as well as the Hosta Confidential Information, Hosta Marks, Products, as well as the Documentation (collectively referred to as the Hosta Proprietary Materials) are and shall remain the sole and exclusive property of Hosta. Excluding any Customer Data (defined below), Hosta’s rights reserved under this Section include, without limitation, the right, title and interest in and to: (i) all Intellectual Property Rights in the Hosta Proprietary Materials; (ii) all copies of the Hosta Proprietary Materials in whole or in part; and (iii) all modifications to, and Derivative Works based upon, the Hosta Proprietary Materials, including any authorized or unauthorized modifications performed by Customer.
- Customer. Customer Data means any document, images, or other materials of any type that Customer or an Authorized User uploads, submits, or otherwise transmits to or through Hosting or otherwise provides to Hosta. Customer will retain all right, title, and interest in and to the Customer Data in the form provided to Hosta. Subject to the terms of this Agreement, and in addition to the rights specified in Section 3.2, Customer hereby grant to Hosta a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit, modify and create Derivative Works of the Customer Data, as necessary to provide the applicable Processed Outputs. Hosta may also access Customer’s account or instance in order to respond to support requests.
- No Other Licenses. Nothing contained in this Agreement shall be deemed to grant, either directly or by implication, estoppel or otherwise, any right or license under any Intellectual Property Right of either party, other than or in addition to the licenses expressly set forth herein or in the applicable SOW.
Intellectual Property Rights or IP means all intellectual property rights worldwide arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued or acquired, including all patent rights, and patent applications whether or not filed; all rights associated with works of authorship including copyrights and mask work rights; rights relating to the protection of trade secrets and Confidential Information; and any right analogous to those set forth herein and other proprietary rights relating to intangible property, including trademarks. Intellectual Property Rights shall apply to items or Technology developed solely by a party hereto without reference to the other party’s Intellectual Property Rights. For purposes of this definition, and subject to the foregoing, “Technology” means any idea, discovery, design, method, material, formula, trade secret, invention (including without limitation any discovery of new technology and any improvement to existing technology), know-how, innovation, writing, work of authorship, compilation and other development or improvement, whether or not patented or patentable, copyrightable, or reduced to practice or writing and all Intellectual Property Rights thereto and therein.
Derivative Works means a work that is based upon another work, such as a revision, modification, translation, abridgment, condensation, expansion, or any other form in which the original work may be recast, transformed, or adapted, and that if prepared without the authorization of the owner of the copyright in the original work, would constitute a copyright infringement.
- Obligations. Each party (Recipient) expressly undertakes to retain in confidence all Confidential Information transmitted to it hereunder by the other party (Discloser), using precautions at least as great as those taken to protect its own confidential information of a similar nature, and shall make no use of such Confidential Information except for the purposes for which it has been disclosed, as permitted under the terms of this Agreement. For purposes of this Agreement, Confidential Information means information relating to the Discloser’s business, products, customers, suppliers, research and development, Intellectual Property Rights, or services. Recipient agrees that during and after the Term of this Agreement, it will not use or disclose to any employee, or any third party without a need to know, any Confidential Information without the prior written consent of the Discloser. Discloser hereby consents to the disclosure of its Confidential Information to only those personnel (including independent contractors) of Recipient and Recipient’s affiliates with a “need to know” who have agreed in writing or under a legal duty of nondisclosure to maintain the Discloser’s Confidential Information in confidence, in order to allow Recipient to perform under this Agreement and to obtain the benefits hereof.
- Designation of Confidential Information. Confidential Information shall, (1) if in written form, be marked “Confidential” or similarly legended upon being furnished to Recipient (2) if an oral disclosure be identified as such prior to disclosure and summarized, in writing, by Discloser and said summary shall be given to the Recipient within thirty (30) days of the subject oral disclosure, unless, in both cases (1) and (2), the disclosure occurred under circumstances that would be understood to be confidential by a reasonable person, in which case, no marking or summary shall be required. All Hosta Intellectual Property shall be deemed “Hosta Confidential Information” whether or not marked as such, as well as the terms and existence of this Agreement. All Customer Intellectual Property shall be deemed “Customer Confidential Information” whether or not marked as such. The terms and existence of this Agreement shall be Confidential Information of both parties.
- Exceptions. Confidential Information does not include information that is: (1) previously known to it without obligation of confidence, which knowledge the Recipient shall have the burden of establishing by clear and convincing evidence; (2) independently developed by it or for it without reference to the Confidential Information of the other party hereto, which independent development the Recipient shall have the burden of establishing by clear and convincing evidence; (3) lawfully acquired by it from a third party that is not under an obligation of confidence to the other party
hereto with respect to such information; or (4) in the public domain through no act or omission by a party hereto.
- Permitted Disclosures. In the event either party receives a subpoena, or other validly issued administrative or judicial order, requesting that Confidential Information of the other party be disclosed, it will (1) promptly notify the disclosing party in writing of such requirement to disclose, and (2) cooperate fully with the disclosing party (at the disclosing party’s expense) in protecting against any such disclosure or obtaining a protective order. Thereafter, such party shall be entitled to comply with the subpoena or other process, only to the extent required by law; provided, that, the Confidential Information so disclosed shall continue to be treated as Confidential Information as between the parties hereto.
- Return of Confidential Information. Except as otherwise specified in this Agreement, all Confidential Information and other proprietary materials made available under this Agreement, including copies thereof, will be returned or destroyed upon the first to occur of: (1) the completion of the Engagement; or (2) a request by the Discloser.
6. AWS HOSTING; PRIVACY AND SECURITY TERMS
Customer acknowledges that access to the Products is facilitated via an on-line, subscription-based model (Hosting), and that Hosta may make changes to the Hosting from time to time. Hosting is provided by a third-party provider, Amazon Web Services, Inc. (AWS) and the terms found at https://aws.amazon.com/service-terms shall apply to the Hosting component of Hosta’s offerings.
6.2 Security & Data
- Without limiting the foregoing, Hosta implements commercially reasonable security procedures to help protect Customer Data from security attacks. However, Customer understands that Hosting necessarily involves transmission of Customer Data over networks that are not owned, operated or controlled by Hosta, and Hosta is not responsible for Customer Data that is lost, altered, intercepted or stored across such networks. Hosta cannot guarantee that its security procedures will be error-free, that transmissions of the Customer Data will always be secure or that unauthorized third parties will never be able to defeat Hosta’s security measures or those of our third-party service providers.
- Customer may not, without the prior written consent from Hosta:
- conduct security, integrity, penetration, vulnerability or similar testing on the Hosting; or
- use any tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as robots) in conjunction with the Hosting.
- Customer must ensure that the Customer Data is at all times compliant with all applicable local, state, federal and international laws and regulations (Laws). Customer represents and warrants that: (i) it has obtained all necessary rights, releases and permissions to provide all Customer Data to Hosta and to grant the rights granted to Hosta in this Agreement; and (ii) Customer Data and its transfer to and use by Hosta as authorized by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 6.2 (Security), Hosta assumes no responsibility or liability for Customer Data, and Customer shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it.
- Unless otherwise agreed by the parties, Customer shall not submit to Hosta, via Hosting or otherwise: (i) any personally identifiable information, except as necessary for the establishment of a Hosta account; (ii) any
patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; (iii) any information with respect to a payment card, the account holder’s name, account number, service code, card validation code/value/number, PIN or PIN block, valid to and from dates and magnetic stripe data and information relating to a payment card transaction or any financial account number, with or without any code or password that would permit access to the account (such as bank account numbers and debit or credit card number), except as necessary for the payment of your Order, in which case, the terms of Hosta’s third-party payment provider shall apply; or (iv) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations), (collectively, Sensitive Data). Customer also acknowledges that Hosta is not acting as Customer’s Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Hosting and other services and products offered by Hosta are not HIPAA compliant. HIPAA means the Health Insurance Portability and Accountability Act, as amended and supplemented. Customer also acknowledges that the Hosting and other products and services offered by Hosta are not compliant with the Payment Card Industry Data Security Standard (PCI DSS). Notwithstanding any other provision to the contrary, Hosta has no liability under this Agreement for Sensitive Data.
- Customer will defend, indemnify and hold harmless Hosta from and against any loss, cost, liability or damage, including attorneys’ fees, for which Hosta becomes liable arising from or relating to any claim relating to Customer Data, including but not limited to any claim brought by a third party alleging that Customer Data, or Customer’s use of the Products or access to Hosting in breach of this Agreement, infringes or misappropriates the worldwide intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to the indemnification processes specified in Section 12 of this Agreement.
- Hosta’s privacy terms are available at https://hosta.ai/privacy-policy and may be updated from time to time by Hosta in its sole discretion.
7. FEES & PAYMENT
Customer agrees to pay all fees in accordance with each Order or SOW, as the case may be. Unless otherwise specified in an Order, Customer will pay all amounts in U.S. dollars within thirty (30) days of Customer’s receipt of an invoice by Hosta. In the event payment is not made when due, Hosta shall have the further right, at its sole option, to suspend access to the Product until payment is made. Other than as expressly set forth in Section 12.1 (IP Indemnification by Hosta), and 11.2 (Limited Warranty), all amounts are non-refundable, non-cancellable and non-creditable. In making payments, Customer acknowledges that Customer is not relying on future availability of any Products beyond the current Subscription Term or any Product upgrades or feature enhancements. If you add Authorized Users or other billable units during a Subscription Term, Hosta will charge you for the increased number of Authorized Users or other billable units pursuant to the then-currently applicable rates in the next billing cycle.
Product and Professional Services’ fees exclude any taxes or duties payable in respect of the Products and/or services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Hosta, Customer must pay to Hosta the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, Customer may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, Customer will have the right to provide to Hosta any such exemption information, and Hosta will use reasonable efforts to provide such invoicing documents as may enable Customer to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
8. COMPLIANCE & AUDIT
At Hosta’s request, Customer shall provide a signed certification that Customer is using all Products pursuant to the terms of this Agreement, including the Scope of Use. Customer agrees to allow Hosta, or Hosta’s authorized agent, to audit Customer’s use of the Products. Hosta will provide Customer with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. Hosta will bear all out-of-pocket costs that Hosta incurs for the audit, unless the audit reveals that Customer has exceeded the Usage Scope. Customer will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at Customer’s own cost and expense. If Customer exceeds the Usage Scope, Hosta may invoice Customer for any past or ongoing excessive use, and Customer will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Hosta at law or equity or under this Agreement.
9. TERM & TERMINATION
This Agreement shall become effective as of the Effective Date and shall remain in effect for as long as you have a valid Order (the Term), unless sooner terminated as permitted in this Agreement. Each Order shall be in effect for the Subscription Term or other duration specified thereunder, unless earlier terminated or renewed in accordance with this Section 9.
9.2 Termination for Breach
Either party may terminate this Agreement or an Order before the expiration of the Term or Subscription Term, as the case may be, if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. Termination of this Agreement shall result in the termination of all then current Orders or SOWs; however, termination of an individual Order or SOW shall not result in the termination of this Agreement or any other SOW or Order, unless the parties otherwise mutually agree. Hosta may suspend access to the Hosting and/or Products if Customer or an Authorized User violates the terms set forth in Section 3.3.
9.3. Effect of Termination
Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that Hosta makes available to you under this Agreement. You shall immediately delete any of the foregoing from your systems (excluding Processed Outputs) as applicable (including any third-party systems operated on your behalf) and provide written certification to Hosta that you have done so at our request. The following terms shall survive expiration or termination of this Agreement 3.1(b), 3.2, 3.3, 4, 5, 9.3, 11.3, 13 and 14.
10. PROFESSIONAL SERVICE TERMS
Hosta will determine in its sole and reasonable discretion whether Professional Services will be performed under the terms of this Agreement or if a separate professional services’ agreement will be required. The Professional Services offered under the terms of this Agreement are intended to be limited to augmenting or further customizing Hosta products provided to Customer under the separate Hosta Services Agreement; or to provide training to Customer and its Authorized Users. Subject to the foregoing:
10.1 Order/Statement of Work
Professional Services shall require execution of an Order or SOW, as per Section 2.2. In the event of any discrepancy or inconsistency between a Statement of Work and the terms of this Agreement, this Agreement shall govern.
10.2 Customer Responsibilities
Customer will make available in a timely manner all technical data, computer facilities, programs, files, documentation, test data, sample output, Customer Data or other information and resources necessary for the performance of the Professional Services hereunder. Customer will be responsible for and assumes the risk for any problems resulting from the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer.
Professional services rates shall be specified in each Statement of Work. All Professional Services will be provided on a time and materials basis unless otherwise specified in the applicable SOW. Reasonable out of pocket traveling expenses (e.g., hotel, airfare, taxi, meals, etc.) incurred in travel to and from the project site or any other location requested by Customer will be reimbursed by Customer. Payment terms are as specified in Section 7.
10.4 Ownership of Deliverables
- Subject to the terms of this Agreement and upon your full and final payment, the Deliverables provided under the Professional Services engagement will be subject to the terms and conditions of this Agreement, including the proprietary rights provisions; and Customer’s use of the same shall be as per this Agreement and the applicable Product Order, unless otherwise specified in the applicable SOW.
- Customer acknowledges that Hosta provides consulting and development services to other customers and agrees that nothing in this Agreement shall be deemed or construed to prevent Hosta from carrying on such business. In particular, Customer agrees that, notwithstanding anything to the contrary set forth herein: (i) Hosta shall have the right to retain a copy of each of the Deliverables for its records; and (ii) as part of Hosta’s provision of the Professional Services hereunder, Hosta may utilize Hosta Proprietary Materials, which shall be governed by the terms of this Agreement and applicable Order.
11. LIMITED WARRANTY; DISCLAIMERS
11.1 Hosta warrants that the Products will perform in all material respects with Hosta’s then current specifications for the Products set forth in the Documentation during the Subscription Term (Warranty Period). The foregoing warranty shall not apply in cases where the breach or issue results from Customer Data or use of the Products by Customer or its Authorized Users does not comply with this Agreement and/or the Documentation. Hosta warrants that Support and the Professional Services will be provided in accordance with industry standards. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if Customer is an entity, this Agreement and each Order is entered into by an employee or agent of Customer with all necessary authority to bind such party to the terms and conditions of this Agreement.
11.2 FOR ANY BREACH OF THE ABOVE WARRANTIES, CUSTOMER’S EXCLUSIVE REMEDY AND HOSTA’S ENTIRE LIABILITY SHALL BE: (A) FOR HOSTA TO CORRECT THE PRODUCT ERRORS THAT CAUSED BREACH OF THE WARRANTY; OR, IF HOSTA CANNOT CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE TIMEFRAME, CUSTOMER MAY TERMINATE THE APPLICABLE ORDER FOR THE SPECIFIC PRODUCT THAT IS IN BREACH AND RECEIVE A REFUND OF THE PRORATED AMOUNT OF THE FEES PREPAID FOR SUCH PRODUCT THAT WERE TO APPLY TO THE REMAINDER OF THE UNEXPIRED TERM, AS CALCULATED FROM THE TERMINATION DATE THROUGH THE REMAINDER OF THE UNEXPIRED TERM; OR (B) FOR HOSTA TO REPERFORM THE DEFICIENT PROFESSIONAL SERVICES PROVIDED THAT YOU NOTIFIED HOSTA IN WRITING OF ANY CLAIM THAT THE PROFESSIONAL SERVICES WERE NOT PROVIDED IN A PROFESSIONAL MANNER CONSISTENT WITH INDUSTRY STANDARDS WITHIN NINETY (90) DAYS OF COMPLETION OF THE STATEMENT OF WORK UNDER WHICH SUCH PROFESSIONAL SERVICES WERE DELIVERED.
11.3 HOSTING IS PROVIDED “AS IS,” AND OTHER THAN AS EXPRESSLY PROVIDED FOR IN THIS SECTION 11, HOSTA AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES
AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NONINFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO THE HOSTING, SERVICES, DELIVERABLES AND/OR PRODUCTS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. HOSTA SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF HOSTA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER HOSTA NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS, DELIVERABLES, SERVICES OR HOSTING WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS, DELIVERABLES, SERVICES OR HOSTING WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS, DELIVERABLES, SERVICES OR HOSTING (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS, DELIVERABLES, SERVICES OR HOSTING (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
12.1. IP indemnification by Hosta. Hosta will defend you against any claim brought against Customer by a third party alleging that a Product, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright (a Claim), and Hosta will indemnify Customer and hold Customer harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Hosta (including reasonable attorneys’ fees) arising out of a Claim, provided that Hosta has received from you: (a) prompt written notice of the claim (but in any event notice in sufficient time for Hosta to respond without prejudice); (b) reasonable assistance in the defense and investigation of the claim, including providing Hosta a copy of the claim and all relevant evidence in your possession, custody or control; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim.
If your use of a Product is (or in our opinion is likely to be) enjoined, if required by settlement, or if Hosta determines such actions are reasonably necessary to avoid material liability, Hosta may, at its sole option and in our discretion: (i) procure a license for your continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate your right to continue using the Product and refund any prepaid amounts for the terminated portion of the Subscription Term.
Hosta’s indemnification obligations above do not apply: (1) if the Product is modified by any party other than Hosta, but solely to the extent the alleged infringement is caused by such modification; (2) if the Product is used in combination with any non-Hosta product, software or equipment, but solely to the extent the alleged infringement is caused by such combination; (3) to unauthorized use of Products; (4) to any Claim arising as a result of (y) Customer Data (or circumstances covered by your indemnification obligations in Section 6.2(d) (Indemnity for Customer Data)) or (z) any third-party deliverables or components contained with the Products; (5) to any unsupported release of the Product; or (6) if you settle or make any admissions with respect to a claim without Hosta’s prior written consent.
12.2 Process. To receive the foregoing indemnities, Customer must (a) promptly notify Hosta in writing of a Claim and provide reasonable cooperation; and (b) tender to Hosta full authority to defend or settle the claim or suit. Hosta shall not be obligated to indemnify you in connection with a settlement made without Hosta’s written consent. The Customer has the right to participate at its own expense in the claim or suit and in selecting counsel therefor.
THIS SECTION (IP INDEMNIFICATION BY HOSTA) STATES HOSTA’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY HOSTA UNDER THIS AGREEMENT.
13. LIMITATIONS ON LIABILITY
13.1. LIMITATION OF LIABILITY
FOR ALL EVENTS AND CIRCUMSTANCES, HOSTA AND ITS LICENSORS’ AND AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY HOSTA FOR THE PRODUCTS GIVING RISE TO THE CLAIM OR LIABILITY DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION ARISES.
13.2 DISCLAIMER OF DAMAGES
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR AN ORDER FORM, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HOSTA OR ITS LICENSORS OR AFFILIATES BE LIABLE TO CUSTOMER OR ITS AFFILIATES FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION: ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, REGULATORY NON-COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF HOSTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR THESE DAMAGES WILL BE LIMITED AND EXCLUDED TO THE EXTENT PERMITTED BY APPLICABLE LAW EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
14. OTHER TERMS
14.1 Force Majeure. Except for the obligation to make payments when due, nonperformance by either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, terrorism, war, pandemic, epidemic, governmental acts or orders or restrictions, failures of suppliers or any other reason where such party’s failure to perform is beyond its reasonable control. The defaulting party shall use commercially reasonable effort to resume performance under this Agreement within thirty (30) days of the occurrence of an event of force majeure.
14.2 Severability. If any term, condition or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same will not affect the other terms, conditions and provisions hereof or the whole of this Agreement, but such term, condition or provision will be deemed modified to the extent necessary in the court’s opinion to render such term, condition or provision enforceable, and the rights and obligations of the parties will be construed and enforced accordingly, preserving to the fullest permissible extent the parties’ intent and agreements set forth herein.
14.3 Entire Agreement. This Agreement (including all exhibits attached hereto) sets forth the entire understanding between the parties with respect to the subject matter contained herein, and supersedes all prior agreements, arrangements and communications, whether oral or written, solely with respect to the subject matter hereof, including term sheets, bids, quotes and proposals, and conflicting terms of POs, invoices or other documents; and no other agreements, representations, warranties or other matters, whether oral or written, will be deemed to bind the parties with respect to the subject matter hereof. This Agreement may not be modified except by a writing signed by authorized representatives of both parties.
14.4 Notices. Any notice or reports required or permitted to be given under this Agreement shall be given in writing and shall be delivered by overnight courier, personal delivery, electronic transmission, fax or by certified or registered mail, postage prepaid, return receipt requested, and shall be deemed given upon receipt, personal delivery, five (5) days after deposit in the mail or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to the following or such other address as either party may specify in
writing. If to Hosta at 93 Gore St. Unit 1, 04121 Cambridge, MA or via email at firstname.lastname@example.org. If to Customer: as per the Order.
14.5 No Assignment. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and permitted assigns.
14.6 Waiver or Delay. Any waiver of any kind or character by either party of a breach of this Agreement must be in writing, shall be effective only to the extent set forth in such writing, and shall not operate or be construed as a waiver of any subsequent breach by the other party. No custom or practice of the parties at variance with the terms hereof, shall constitute a waiver of either party’s rights hereunder.
14.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its choice of law provisions and, as to matters affecting copyrights, trademarks and patents, by U.S. federal law. The parties agree to exclusive personal jurisdiction and venue of the United States District Court for the District of Massachusetts (and any Massachusetts State court within that District) for that purpose. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. THE PARTIES KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO TRIAL BY JURY.
14.8 Equitable Relief. It is expressly agreed that a material breach of this Agreement involving Confidential Information, or Intellectual Property Rights of a party hereto will cause irreparable harm to the other party and that a remedy at law may be inadequate. Therefore, in addition to any and all remedies available at law, the parties shall be entitled to seek injunctive relief (without the necessity of posting any bond or surety) against the breaching party in the event of any such threatened or actual violation. The parties agree that any action relating to or arising under this paragraph shall be instituted and prosecuted in federal or state courts located in Boston, Massachusetts.
14.9 Publicity. Use of the other party’s name or reference to the other party directly or indirectly in any media release, public announcement or public disclosure relating to this Agreement, including in any promotional or marketing materials, web sites, customer lists, referral lists or business presentations, shall require the prior written consent of such party.
14.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.