This InfraNav Agreement (“Agreement”) is between HIP Consult Inc. (“HIP Consult”) and Customer and applies to Customer’s purchase of specific modules or variants of the InfraNav Service, a web-based mapping and analytics product and service that aggregates, visualizes, and contextualizes infrastructure data and associated metadata via the website https://www.infranav.com or any successor thereto (“Website”).
BY ACKNOWLEDGING THIS AGREEMENT, YOU ARE AGREEING THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THE TERMS AND CONDITIONS CONTAINED HEREIN, WILL ABIDE BY THIS USER AGREEMENT IN ITS THEN CURRENT FORM AND ARE LEGALLY BOUND BY THIS USER AGREEMENT.
The following terms, when capitalized, will have the following meanings in this Agreement:
“Authorized User” means individuals identified by Customer as the specific individuals to which access should be provided to.
“Customer” means the individual or entity purchasing the modules or variants of the InfraNav Service covered by this Agreement.
“Customer Data” means information, data and other content, in any form or medium that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Module(s). This includes data files and/or comments uploaded by Customer that provide information on specific networks.
“Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
“Effective Date” means the date that the Module(s) are made available to Customer.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“License” refers to the licensing Module(s) of the InfraNav Service from HIP Consult to a Customer.
“Module(s)” means the specific module or variants of the InfraNav Service as specified and ordered by Customer.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Personal Information” means any information that does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted or located.
“Provider Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by HIP Consult or its designee to disable Customer’s or any Authorized User’s access to or use of the Module(s) automatically with the passage of time or under the positive control of HIP Consult or its designee.
“Provider Materials” means the Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by HIP Consult or any Subcontractor in connection with the Module(s) or otherwise comprise or relate to the Module(s) or Provider Systems. For the avoidance of doubt, Provider Materials include any information, data or other content derived from HIP Consult’s monitoring of Customer’s access to or use of the Module(s), but do not include Customer Data.
“Provider Personnel” means all individuals involved in the performance of Module(s) as employees, agents or independent contractors of HIP Consult or any Subcontractor.
“Provider Systems” means the information technology infrastructure used by or on behalf of HIP Consult in performing the Module(s), including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by HIP Consult or through the use of third-party services.
“Representatives” means, with respect to a party, that party's employees, officers, directors, consultants, independent contractors, service providers, sub-licensees, subcontractors and legal advisors.
“Sales Tax” refers to a sales tax that may be charged to a Customer in regards to a license, if applicable.
“Service Provider” is any company or companies engaged by HIP Consult or its contractors to provide services in connection with the Module(s).
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Module(s) that are not proprietary to HIP Consult.
2. Provision of the Module(s)
2.1 License Grant for Module(s)
Subject to and conditioned on Customer’s and Authorized Users’ compliance with this Agreement, HIP Consult hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicenable license to access and use the Module(s) for its internal business purposes during the Term (as defined below) in accordance with this Agreement. In connection therewith, Customer may (i) download, copy, and store the Module(s); (ii) allow its third party consultants to access and use the Module(s), subject to the terms of this Agreement, solely in connection with providing services to Customer for Customer’s benefit; and (iii) disclose or publish insubstantial portions of the Module(s) in the ordinary course, provided that (a) Customer identifies HIP Consult as the source of the Module(s); and (b) the dissemination is not intended to substitute for, and does not have the result of substituting for, the recipient paying for a license to the Module(s).
2.2 Reservation of Rights
Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Module(s), Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Module(s) and the Provider Materials and the Third Party Materials are and will remain with HIP Consult and the respective rights holders in the Third Party Materials.
2.3 Authorization Limitations and Restrictions
Customer shall not, and shall not permit any other Person to, access or use the Module(s) or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
a. copy, modify or create derivative works or improvements of the Module(s) or Provider Materials;
b. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Module(s) or Provider Materials to any Person, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud or other technology or service, and including the proxying or redistribution of maps provided through the Module(s);
c. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Module(s) or Provider Materials, in whole or in part;
d. bypass or breach any security device or protection used by the Module(s) or Provider Materials or access or use of the Module(s) or Provider Materials;
e. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Module(s), Provider Materials or HIP Consult's provision of services to any third party, in whole or in part;
f. scrap or mass download of the Module(s) and/or Provider Materials by a Customer for purposes other than offline caching;
g. remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Module(s) or Provider Materials, including any copy thereof;
h. access or use of the Module(s) or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the Module(s) of any other HIP Consult customer), or that violates any applicable Law;
i. access or use of the Module(s) or Provider Materials for purposes of competitive analysis of the Module(s) or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the HIP Consult’s detriment or commercial disadvantage;
j. access or use of the Module(s) or Provider Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Module(s) or Provider Materials could lead to personal injury or severe physical or property damage; or
k. otherwise access or use of the Module(s) or Provider Materials beyond the scope of the authorization granted under this Clause.
2.4 Eligible Customers
In order to license usage of the Module(s), Customer may not be resident in any country against which the United States has currently imposed a trade embargo. Customer must have full authorization to conclude the license of the Module(s).
2.5 Provision and Verification of Information
2.6 Paying for the Module(s)
a. For each license to the Module(s), Customer shall pay the agreed relevant monthly or yearly License price (“License Fee”). License Fees are exclusive of any applicable sales tax (“Sales Tax”) or other taxes. Sales Tax is charged where applicable. Customer acknowledges that it is to pay Sales Tax and any taxes or similar applicable charges associated with his/her purchase and assume all risks, liabilities or responsibilities in connection with said statutory payments and/or any variation in the rates thereof.
b. The License Fee are charged in accordance with the currency specified by HIP Consult. Customer acknowledges that it is to assume all risks, liabilities or responsibilities associated with any fluctuations in exchange rates.
c. The License Fee may be changed by HIP Consult at any time. However, HIP Consult will never change a License Fee so as to affect the License Fee charged to Customer at time of License. Therefore, if the License Fee changes during the course of this Agreement, Customer will be notified of this price change in advance by email, with the price change becoming effective in the next billing cycle.
d. All amounts payable to HIP Consult under this Agreement shall be paid by Customer to HIP Consult in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.
2.7 Accessing the Module(s)
a. Modules will be delivered via a secure downloadable files sent by email to Customer. HIP Consult accepts no responsibility for problems Customer may have in accessing and opening the file.
b. For license access to the Module(s), Customer may choose to purchase a monthly or an annual license. Monthly licenses will automatically be renewed on a monthly basis if purchased through the Website until Customer terminates in accordance with this Agreement. Customer will have access to web based tools and publications on the Website by logging into their account.
This Agreement commences on the Effective Date and remains in effect for an initial term of one (1) year (the “Initial Term”). After the Initial Term, this Agreement automatically renews for successive one (1) year renewal terms (each, a “Renewal Term”) unless a party provides written notice of non-renewal to the other party at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term. The Initial Term and all Renewal Terms are collectively referred to in this Agreement as the “Term”.
4. Customer Obligations
4.1. Provision of Complete and Accurate Information
Customer represents and warrants that all information it has provided to HIP Consult, including but not limited to all data entered in connection with any Customer Data will be complete, accurate and up to date at all times. Further, Customer warrants that it has the authority to provide the Module(s) and/or information, and in regards to Customer Data concerning specific networks, they hereby authorize that such data and/or information shall be accessible to all users of the Module(s) in whatever form HIP Consult choses.
HIP Consult is entitled to rely on any information Customer provides and Customer agrees to update his/her information if any changes by sending an email to email@example.com. Customer acknowledges that if, for any reason, the information it provides is inaccurate, invalid or incorrect, HIP Consult shall, nonetheless, be entitled to continue to charge the relevant License Fee and that Customer shall be responsible for any outstanding, uncollected amounts as well as all charges and expenses incurred as a result of said charge.
4.2. Customer Systems and Cooperation
Customer shall at all times during the term of the License: (a) set-up, maintain and operate in good repair all Customer Systems on or through which the Module(s) is accessed or used; and (b) provide all cooperation and assistance as HIP Consult may reasonably request to enable HIP Consult to exercise its rights and perform its obligations under and in connection with this Agreement.
4.3. Corrective Action and Notice
If Customer becomes aware of any actual or threatened activity prohibited by Clause 2.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within its respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Module(s) and Provider Materials and permanently erasing from its systems and destroying any data to which any of them have gained unauthorized access); and (b) notify HIP Consult of any such actual or threatened activity.
During the term of this Agreement and for two years after, Customer shall not, and shall not assist any other person to, directly or indirectly recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior six months employed or engaged by HIP Consult or any Subcontractor and involved in any respect with the Module(s). In the event of a violation of this Clause, HIP Consult will be entitled to liquidated damages equal to the compensation paid by HIP Consult to the applicable employee or contractor during the last six months of the employee’s employment or contractor’s engagement with HIP Consult.
5. Customer Support
HIP Consult will provide Customer with customer service via email to firstname.lastname@example.org to resolve any issues relating to his/her purchase of the Module(s) and/ or Modules and the processing of Credit Cards or Debit Cards or other forms of payment.
6. Customer Control and Responsibility
Customer has and will retain sole responsibility for (a) all information, instructions and materials it provides or on his/her behalf or on any Authorized User’s behalf in connection with the Module(s); (b) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (c) the security and use of Customer’s and Authorized Users’ Access Credentials; and (d) all access to and use of the Module(s) and Provider Materials directly or indirectly by or through Customer Systems or Customer’s or the Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
7,1 If a party materially breaches this Agreement and does not cure such breach within 30 days from the date such party receives written notice of such breach, the other party may terminate this Agreement upon written notice to the breaching party. In addition, HIP Consult may terminate this Agreement immediately upon written notice to Customer and cease providing the Module(s) to Customer, or may suspend the provision of the Module(s) to Customer, if (i) HIP Consult generally discontinues collecting and/or providing the Module(s) in the course of its business; (ii) the Module(s) and/or the provision of the Module(s) as contemplated by this Agreement becomes, or in HIP Consult’s sole judgment is likely to become, the subject of regulation by a local, state, provincial, federal, or foreign jurisdiction or governmental entity; or (iii) any litigation or proceeding is threatened or commenced and HIP Consult reasonably believes that such litigation or proceeding would have a material and adverse effect on (a) the Module(s) and/or the provision of the Module(s); (b) the rights of HIP Consult in the Module(s); or (c) the ability of HIP Consult to perform under this Agreement. Termination of this Agreement will be without prejudice to any other rights and remedies that either party may have under this Agreement or at law or in equity.
7,2 HIP Consult may also, without notice (except as required by Law) and without liability to Customer, refuse to honor any instruction for the purchase of a License at any time if: (a) Customer attempts to charge funds from a Debit Card Account or Credit Card Account that does not belong to Customer or from a Debit Card Account which does not have sufficient available funds, or if Customer is paying by credit card, there is an insufficient available line of credit; (b) Customer’s financial institution attempts to charge back or reverse a purchase of a License on the basis of a dispute related to a purchase; (c) Customer provides incorrect or false information about itself, his/her Debit Card Account or Credit Card Account; (d) Customer attempts to tamper, hack, modify or otherwise corrupt the security or functionality of the Website; (e) HIP Consult receives conflicting claims regarding ownership of, or the right to withdraw funds from, a Debit Card Account or Credit Card Account; (f) Customer has breached a term or condition of this Agreement, or any representation or warranty that Customer makes under this Agreement is false; or (g) HIP Consult believes that any License purchase may be fraudulent or impermissible, violates any applicable Law, rule or regulation or otherwise exposes Customer or HIP Consult to risk of loss.
7.3 HIP Consult may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, cancel, suspend, terminate or otherwise deny a Customer, any Authorized User's or any other Person's access to or use of all or any part of the Module(s) or Provider Materials, without incurring any resulting obligation or liability, if: (a) HIP Consult receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires HIP Consult to do so; or (b) HIP Consult believes, in its sole discretion, that: (a) Customer or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Module(s) beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (b) Customer, any Authorized User or any other Person is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (c) this Agreement expires or is terminated.
7.4 Notwithstanding the above, HIP Consult may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, cancel, suspend, terminate or otherwise deny a Customer, any Authorized User’s or any other Person’s access to or use of all or any part of the Module(s) or Provider Materials for any reason by providing thirty days advance notice. Upon cancellation or suspension, a Customer’s or any Authorized User’s right to use the Module(s) will stop immediately. If HIP Consult cancels a Customer’s access to the Module(s) in its entirety without cause, HIP Consult will refund Customer on a pro-rata basis the amount of the License Fee and Sales Tax corresponding to the portion of access remaining right before HIP Consult terminated access.
7.5 In addition to any other express termination right set forth elsewhere in this Agreement, either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
7.6 This Clause does not limit any of HIP Consult's other rights or remedies, whether at Law, in equity or under this Agreement.
8. Effect of Expiration or Termination
Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
a. all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
b. Customer shall immediately cease all use of the Module(s) or Provider Materials and (a) promptly return to HIP Consult, or at HIP Consult's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on HIP Consult’s Confidential Information; and (b) permanently erase HIP Consult’s Confidential Information from all systems Customer directly or indirectly controls; and (c) certify to HIP Consult in a signed written instrument that they has complied with the requirements of this Clause;
c. notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (a) the Receiving Party may retain the Disclosing Party’s Confidential Information; and (b) Customer may retain Provider Materials, in the case of each of sub-clause (a) and (b) in its then current state and solely to the extent and for so long as required by applicable Law; and (c) all information and materials described in this Clause will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
d. HIP Consult may disable Customer and Authorized User access to the Module(s) and Provider Materials; and
e. Customer shall immediately pay all Fees and taxes owed to HIP Consult for the Module(s) provided through the date of termination of this Agreement.
9. Representations and Warranties
9.1 Mutual Representations and Warranties
Each party represents and warrants to the other party that:
a. it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
b. it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; and
c. this Agreement constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
9.2. Disclaimer of Warranties
HIP Consult assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, or communication of the Module(s) and/or Provider Materials. HIP Consult is also not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any website or combination thereof, including injury or damage to any person’s computer or other hardware or software, related to or resulting from using or downloading materials in connection with the Internet and/or in connection with the Module(s) and/or Provider Materials.
THE MODULE(S) AND THE PROVIDER MATERIALS ARE PROVIDED TO CUSTOMER ON THE BASIS THAT THEY ARE INTENDED SOLELY FOR CUSTOMER’S INTERNAL USE. THE MODULE(S) AND PROVIDER MATERIALS ARE PROVIDED "AS IS" AND HIP CONSULT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, HIP CONSULT AND ITS AFFILIATES, LICENSORS, SUPPLIERS, AND EACH OF THEIR DIRECTORS, OFFICERS, AGENTS, CONTRACTORS, PARTNERS, EMPLOYEES, LICENSORS, AND SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, HIP CONSULT MAKES NO WARRANTY OF ANY KIND THAT THE MODULE(S) AND OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, 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 HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
HIP CONSULT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS DO NOT WARRANT THAT THE INFORMATION CONTAINED IN THE MODULE(S), THE MODULES AND PROVIDER MATERIALS WILL BE ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MODULE(S), THE MODULES AND PROVIDER MATERIALS, THE SERVERS ON WHICH THEY ARE MADE AVAILABLE, OR ANY CONNECTED SYSTEM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHER HIP CONSULT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS DO NOT WARRANT THAT THE ONLINE ACCESS TO THE MODULE(S) OR PROVIDER MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE MODULE(S), THE MODULES AND/OR PROVIDER MATERIALS, THE SERVERS ON WHICH THEY ARE MADE AVAILABLE, OR ANY CONNECTED SYSTEM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
If applicable Law does not allow the exclusion of implied warranties, then the above disclaimers and exclusions shall be amended only to the extent needed to bring them in conformance with applicable Law.
10. Limitations of Liability
USE OF THE MODULE(S) AND THE PROVIDER MATERIALS ARE AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING, USE OF, OR ACCESS TO THE MODULE(S) AND THE PROVIDER MATERIALS. NEITHER HIP CONSULT NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, AND EACH OF THEIR DIRECTORS, OFFICERS, AGENTS, CONTRACTORS, PARTNERS, EMPLOYEES, LICENSORS, AND SUPPLIERS, ARE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND WHATSOEVER ARISING AS A RESULT OF OR RELATING TO (1) INFORMATION OR CONTENT EXPRESSLY OR IMPLIEDLY PUBLISHED IN THE MODULE(S) AND THE PROVIDER MATERIALS, OR (2) ANY ERRORS IN OR OMISSIONS FROM THE MODULE(S) AND THE PROVIDER MATERIALS OR (3) INTERCEPTION OR USE OF CREDIT CARD OR DEBIT CARD INFORMATION OR OTHER PERSONALLY IDENTIFIABLE INFORMATION, IN EACH CASE NOTWITHSTANDING ANY NEGLIGENCE, DEFAULT OR LACK OF CARE BY HIP CONSULT OR ITS SUPPLIERS, OR THAT SUCH LOSS OR DAMAGE WAS FORESEEABLE.
NEITHER HIP CONSULT NOR ANY OF ITS AFFILIATES, LICENSORS, SUPPLIERS, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, CONTRACTORS, PARTNERS, EMPLOYEES, LICENSORS, AND SUPPLIERS, ARE RESPONSIBLE OR LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY LEGAL THEORY OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, ARISING OUT OF OR RELATING IN ANY WAY TO THE MODULE(S) AND THE PROVIDER MATERIALS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE.
IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF HIP CONSULT AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE SUM OF THE LICENSE FEE THAT HIP CONSULT RECEIVED FROM CUSTOMER IN THE ONE MONTH PERIOD PRIOR TO WHEN THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Customer agrees to indemnify and hold HIP Consult, its affiliates, its licensors, its suppliers, its Subcontractors and each of their directors, officers, agents, contractors, partners, employees, licensors, and suppliers (each, a “Provider Indemnitee”) harmless from and against any action, loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with his/her use of the Module(s) and/or Provider Materials, his/her conduct in connection with the Module(s) and/or Provider Materials or any violation of this Agreement or of any Law or the rights of any third party.
Further, Customer agrees to indemnify, defend and hold harmless each Provider Indemnitee from and against any and all Losses incurred by such Provider Indemnitee in connection with any action by a third party (other than an affiliate of a Provider Indemnitee) that arises out of or relates to any:
a. any materials or information (including any documents, data, specifications, software, content or technology) provided by Customer or on its behalf of or any Authorized User’s behalf;
b. allegation of facts that, if true, would constitute his/her breach of any of its representations, warranties, covenants or obligations under this Agreement; or
c. negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of itself or any Authorized User, in connection with this Agreement.
HIP Consult shall promptly notify Customer in writing of any action for which it believes it is entitled to be indemnified pursuant to this Clause. In relation to any action by a third party, Customer shall cooperate with HIP Consult, HIP Consult shall immediately take control of the defense and investigation of such action and HIP Consult shall employ counsel of its own choosing to handle and defend the same. Customer may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
12. Use of Information and Disclosure to Others
13. Intellectual Property
13.1. Module(s), and Provider Materials
Customer acknowledges that all right, title and interest in and to the Module(s), and Provider Materials, including all Intellectual Property Rights therein, are and will remain with HIP Consult and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Module(s), and Provider Materials (including Third-Party Materials) except as expressly set forth in Clause 2 or the applicable third-party license. All other rights in and to the Module(s) and Provider Materials (including Third-Party Materials) are expressly reserved by HIP Consult and the respective third-party licensors.
13.2. Customer Data
As between Customer and HIP Consult, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Clause 13.3.
You retain all ownership rights to all Customer Data you publish on the Website. HIP Consult can, however, reproduce, publish and distribute all or portions of your Customer Data online and offline and permit others to do the same.
13.3. Consent to Use Customer Data
Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to HIP Consult, its Subcontractors and the Provider Personnel as are necessary or useful to perform the Module(s); and (b) to HIP Consult as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder. In regards to Customer Data relating to specific networks that Customer has uploaded as data files or provided comments on, Customer hereby authorizes that such Customer Data shall be accessible to all users of the Module(s) in whatever form HIP Consult choses, and hereby grants HIP Consult a worldwide, perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from, sell and distribute, or incorporate such materials into any form, medium or technology, without compensation to Customer. In addition, Customer warrants that all "moral rights" that Customer may have in those materials have been voluntarily waived by Customer. None of the materials shall be subject to any obligation of confidence on the part of HIP Consult, its Subcontractors, the Provider Personnel, its agents, subsidiaries, affiliates, co-brand partners or other partners and their respective directors, officers and employees.
If Customers wish to remove their Customer Data from the Website they should send an email to email@example.com with the reason for requesting the removal, and HIP Consult will consider each request on a case-by-case basis. Note if Customer Data has already been distributed by HIP Consult to a third party, HIP Consult will not under any circumstances undertake such a removal request in relation to any such third parties who may have received or accessed this data. HIP Consult reserves the right, and has absolute discretion, to remove, screen or edit without notice any Customer Data posted or stored on the Website at any time if HIP Consult deems, in its sole discretion, that Customer Data violates any provisions of this Agreement. However, HIP Consult shall have no liability in respect of the exercise or non-exercise of such rights.
In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Clause 14.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing: all Provider Materials are the Confidential Information of HIP Consult and the terms of this Agreement are Confidential Information of HIP Consult. Please note that all Customer Data relating to specific networks which Customer uploads and shares with HIP Consult will not be considered Confidential Information.
Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
14.3. Protection of Confidential Information
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall two years from any disclosure of or access to Confidential Information:
a. not access or use Confidential Information other than as necessary to exercise its right or perform its obligations under and in accordance with this Agreement;
b. except as may be permitted by and subject to its compliance with Clause 14.3(c) not disclose or permit access to Confidential Information other than to its Representatives who: (a) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (b) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Clause 14.3(b) and (c) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Clause 14.3(b);
c. safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
d. ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Clause 14.
14.4. Compelled Disclosures
If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Clause 14.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Clause 14.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s outside legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
Customer may not assign this Agreement to any other party. HIP Consult may assign this Agreement or delegate certain of its rights and responsibilities under this Agreement to third parties without notice to Customer.
16. Surviving Terms
The provisions set provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Clause 2.3 (Authorization Limitations and Restrictions), Clause 8 (Effects of Termination), Clause 9 (Representations and Warranties), Clause 10 (Limitation of Liability), Clause 11 (Indemnification), Clause 14 (Confidentiality), this Clause 16 (Surviving Terms), and Clause 17 (Miscellaneous).
If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
The relationship between Customer and HIP Consult is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that HIP Consult may, without Customer's consent, include Customer's name and/or other indicia in its lists of HIP Consult’s current or former customers of HIP Consult in promotional and marketing materials.
This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
This Agreement and the relationship between Customer and HIP Consult shall be governed by and construed in accordance with the laws of the District of Columbia without regard to its conflict of law provisions.
Customer agrees that the courts of the District of Columbia shall have exclusive jurisdiction to hear and determine any suit, action or proceedings that may arise out of or in connection with this Agreement and for such purposes irrevocably submits to the jurisdiction of such courts.
Customer agrees that to the extent any statute or Law to the contrary may be modified hereby, any claim or cause of action arising out of or related to the Module(s) and/or Modules or this Agreement must be filed within one (1) year after such claim or cause of action arose or it will be forever barred.
Customer irrevocably and unconditionally waives any right they may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Clause 19 (Confidentiality), and Clause 3.4 (Authorization Limitations and Restrictions), would cause HIP Consult irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, HIP Consult will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at Law, in equity or otherwise.
No waiver by HIP Consult of any breach or default by Customer under this Agreement shall be deemed to be a waiver of any preceding or subsequent breach or default. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action, or creates any other third party beneficiary rights.